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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                                           :
              v.                           :
                                           :
DYQUEAL AKEEM LARRY,                       :
                                           :
                    APPELLANT              :     No. 351 MDA 2016

                 Appeal from the PCRA Order February 3, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000703-2008

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                         FILED DECEMBER 12, 2016

        Appellant, Dy’Queal Akeem Larry, appeals pro se from the Order

entered in the York County Court of Common Pleas, which dismissed his

fourth Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546, as untimely. After careful review, we conclude that

Appellant has failed to plead and prove the newly-discovered-evidence

exception to the PCRA time-bar because the witness recantation Affidavit he

now presents is identical in substance to the same witness’s testimony

provided at Appellant’s preliminary hearing. Therefore, we affirm.

        On December 8, 2008, Appellant pled nolo contendere to one count of

Third-Degree Murder in connection with the shooting death of Christine


*
    Retired Senior Judge Assigned to the Superior Court.
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Zelinsky.   The PCRA court summarized the procedural history thereafter

follows:

      [Appellant] was sentenced to 15 to 40 years in state prison on
      January 26, 2009 for murder in the third degree. [Appellant]
      filed his first PCRA Petition on August 27, 2010, which was
      denied after [a] hearing. [Appellant] appealed the denial of his
      first PCRA Petition to the Superior Court and the Superior Court
      affirmed the decision on May 24, 2010. [Appellant] filed his
      second PCRA Petition on May 24, 2012, which was denied as
      untimely. [Appellant] appealed the denial of his second PCRA to
      the Superior Court on August 15, 2012. [Appellant] failed to
      show cause why his appeal should not be quashed as untimely,
      and as a result, the Superior Court quashed the appeal on
      October 1, 2012. On August 6, 2015, [Appellant] sought a
      modification of his sentence imposed January 26, 2009. The
      Petition was treated as [Appellant’s] third PCRA Petition and was
      denied as untimely on August 7, 2015.

Trial Court Order, filed 2/3/16, at 1.

      On September 16, 2015, Appellant filed the instant PCRA Petition,

averring that his plea of nolo contendere was not knowing, voluntary and

intelligent and pleading an exception to the PCRA’s timeliness requirement

based on newly discovered evidence. On February 3, 2016, the PCRA court

dismissed the instant Petition as untimely.

      Appellant timely appealed, raising three issues:

      1.    Did the PCRA court abuse [its] discretion in finding that
      Ms. Quaisha Matthews[’] recantation statement dated September
      9, 2015, was not credible evidence newly-discovered that would
      have changed the outcome of [Appellant’s] plea hearing.

      2.   Did the PCRA court abuse [its] discretion in finding that
      [Appellant] was not entitled to a hearing to test the veracity of
      Ms. Matthews[’] recantation statement.




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      3.   Did the PCRA court abuse [its] discretion in finding that
      [Appellant] was not entitled to withdraw the guilty plea in light of
      Ms. Matthews[’] recantation statement.

Appellant’s Brief at 2.

      When reviewing a PCRA court’s dismissal of a PCRA petition, this Court

“is limited to examining whether the PCRA court’s determination is

supported    by   the     evidence   of    record   and   free   of   legal   error.”

Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en

banc) (citation omitted). Before addressing the merits of Appellant’s claims,

we must first determine whether we have jurisdiction to entertain the

underlying PCRA petition. See Commonwealth v. Hackett, 956 A.2d 978,

983 (Pa. 2008) (explaining that the timeliness of a PCRA petition is a

jurisdictional requisite).

      Under the PCRA, a PCRA petition “shall be filed within one year of the

date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment

of Sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements are

jurisdictional in nature, and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.            Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).




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      Here, because Appellant filed the instant Petition more than five years

after his Judgment of Sentence became final after pleading nolo contendere,

it is facially untimely under the PCRA.

      Pennsylvania courts may consider an untimely PCRA petition if the

appellant can explicitly plead and prove one of the three exceptions set forth

in 42 Pa.C.S. § 9545(b), which provides the following:

      (b) Time for filing petition.

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

            (i) the failure to raise the claim previously was the
            result of interference by government officials with
            the presentation of the claim in violation of the
            Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States;

            (ii) the facts upon which the claim is predicated were
            unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or

            (iii) the right asserted is a constitutional right that
            was recognized by the Supreme Court of the United
            States or the Supreme Court of Pennsylvania after
            the time period provided in this section and has been
            held by that court to apply retroactively.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).      See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (applying sixty-day timeframe after reviewing

specific facts that demonstrated the claim was timely raised).


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      Here, Appellant attempts to circumvent the timeliness requirement by

invoking the newly-discovered-evidence exception provided in Section

9545(b)(1)(ii). This exception is strictly limited to “newly discovered facts”

and cannot be satisfied by “a newly discovered or newly willing source for

previously known facts.” Commonwealth v. Marshall, 947 A.2d 714, 720

(Pa. 2008).

      In his PCRA Petition, Appellant claimed to have newly discovered

evidence in the form of an Affidavit from Quaeisha Matthews repudiating her

prior statement to police.1 In her Affidavit, dated September 9, 2015, she

states, verbatim:

      To whom may concern

      I Quaeisha Mattews is writing this because when the detective
      had came to me they had threaten me that’s why I lied because
      he (detective Clarke) told me if I wouldn’t had said what he told
      me that I could be going to jail and that they would’ve took my
      son from me. I told Detective Clarke that I knew nothing about
      what had happen. He told me if I didn’t write what he said that I
      would be going to jail. So I wrote it because I was scared.

Affidavit of Quaeisha Matthews, dated 9/9/15.

      Although   Ms.   Matthews’   current   Affidavit   repudiates   her   initial

statement to police, it is not based on “newly discovered facts” and does not

constitute newly discovered evidence. Ms. Matthews previously repudiated



1
  For purposes of this appeal, we note that shortly after the shooting, Ms.
Matthews gave a statement to police in which she implicated Appellant and
connected him to the gun used to kill Ms. Zelinsky. See Order Denying
Motion for Habeas Corpus Relief, filed 7/17/08, at 1-2.



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her prior statement to police at Appellant’s preliminary hearing, before

Appellant elected to enter a plea of nolo contendere.

      In fact, her recantation Affidavit is nearly identical to her testimony at

Appellant’s preliminary hearing. She testified then as follows:

      [Commonwealth]. You don’t recall anything that happened [the
      night of the murder]?

      A. Nope.

      Q. All right. But you do recall making this signature on [the
      signed statement to police]; right?

      A. Um-hum.

      Q. Why did you sign that?

      A. ‘Cause I was scared.

      Q. You were scared; of what?

      A. ‘Cause they kept saying I was going to get 5 to 10.

                                      ...

                             [Cross Examination]

      [Co-Defendant’s Counsel]. You did sign the document; right?

      A. Yes, sir.

      Q. Did you write down everything else that was in the
      document?

      A. They wrote it down.

      Q. Who is they?

      A. The detective.

      Q.   So the only thing that is in your handwriting is your
      signature; right?

      A. Yes, sir.


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      Q. And you’re saying here today that you were scared?

      A. Yes, sir.

      Q. And forced into making that statement?

      A. Yes, sir.

      Q. You’re saying that what’s in that statement today is untrue?

      A. Yes, sir.

N.T., 1/28/08, at 20, 22-23.

      Simply put, there is nothing “new” about the facts contained in Ms.

Matthews’ Affidavit. Although Ms. Matthews is now recanting in an Affidavit

rather than in sworn testimony, the underlying facts remain the same: Ms.

Matthews claims that her statement to police implicating Appellant was

coerced and is untrue. At best, the sworn Affidavit is simply a new vehicle

to present old facts from a known source and does not permit Appellant to

invoke an exception to the PCRA time-bar. Marshall, 947 A.2d at 720.

      Therefore, we affirm the PCRA court’s order dismissing Appellant’s

Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/12/2016




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