J-S11029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TYRONE GREEN                             :
                                          :
                    Appellant             :   No. 6 EDA 2019

           Appeal from the PCRA Order Entered December 4, 2018
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0000028-1994


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                            FILED APRIL 02, 2019

      Tyrone Green (Appellant) appeals pro se from the order dismissing as

untimely his eighth petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      A prior panel of this Court summarized the relevant factual and

procedural history as follows:

              On July 20, 1996, a jury convicted Appellant of recklessly
      endangering another person, possessing an instrument of crime,
      and firearms not to be carried without a license in connection with
      Appellant’s role in a December 18, 1993 robbery and homicide at
      a laundromat in Coatesville, Pennsylvania. Although a jury was
      initially unable to reach a verdict on second degree murder and
      robbery, Appellant was subsequently retried on those offenses
      and convicted.

             On March 12, 1997, the trial court sentenced Appellant to
      life imprisonment for murder and imposed an aggregate term of
      three to seven years imprisonment on the remaining offenses. We
      affirmed the judgment of sentence on December 31, 1997, and
      our Supreme Court denied allowance of appeal on June 8, 1998.
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     Commonwealth v. Green, 706 A.2d 1252 (Pa.[]Super. 1997)
     (unpublished memorandum), appeal denied, 724 A.2d 936 (Pa.
     1998). Appellant timely filed a PCRA petition, the trial court
     denied relief, we affirmed, and our Supreme Court denied
     allowance of appeal. Commonwealth v. Green, 816 A.2d 328
     (Pa.[]Super. 2002) (unpublished memorandum), appeal denied,
     839 A.2d 351 (Pa. 2003). On November 28, 2005, the United
     States Supreme Court denied Appellant’s petition for writ of
     certiorari. Green v. Brooks, 546 U.S. 1037 (2005).

            On January 5, 2006, Appellant filed his second PCRA petition
     invoking, inter alia, a newly-discovered fact in the form of a
     disclosure by a fellow prisoner, Shawn Smith, regarding Tyrone
     Allen, who testified for the Commonwealth at the trial for
     Appellant’s co-defendant. According to Smith, Mr. Allen had
     informed police that Appellant left the laundromat prior to the
     murder. The PCRA court dismissed the petition as untimely filed
     without exception to the time-bar, and we affirmed. Specifically,
     we reasoned that Appellant could not establish due diligence
     because Allen testified at the co-defendant’s trial “three years
     prior to Appellant’s second trial and twelve years prior to the filing
     of the instant PCRA petition . . . [and] Allen testified to having
     seen Appellant leave the laundromat shortly before shots were
     fired.” Commonwealth v. Green, 928 A.2d 1122 (Pa. Super.
     2007) (unpublished memorandum at 5) (internal citations
     omitted). Hence, we concluded “[t]he information therefore was
     available and could have been obtained by due diligence, but was
     not.” Id. at 6.

            Between 2007 and 2016, Appellant filed four more
     unsuccessful PCRA petitions. Thereafter, on May 26, 2017,
     Appellant filed [his seventh PCRA petition.] Appellant sought to
     revive his newly-discovered-fact claim in light of Commonwealth
     v. Burton, 158 A.3d 618 (Pa. 2017), wherein our Supreme Court
     held that incarcerated pro se PCRA petitioners cannot be
     presumed to know information that is public record for the
     purpose of determining whether a fact is “previously unknown”
     under 42 Pa.C.S. § 9545(b)(1)(ii). Following the proper notice
     pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed the
     petition as untimely.

Commonwealth v. Green, 3569 EDA 2017, *1-3 (Pa. Super. May 25, 2018)

(unpublished memorandum).


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      On May 25, 2018, this Court affirmed the PCRA court’s dismissal of

Appellant’s seventh PCRA petition, holding that Appellant’s petition was

untimely and no exception to the statutory time-bar applied.       Id. at *9.

Appellant did not file a petition for allowance of appeal.

      On October 23, 2018, Appellant filed his eighth PCRA petition. The trial

court filed a Rule 907 Notice on November 20, 2018, to which Appellant filed

a response on November 29, 2018. On December 4, 2018, the trial court

dismissed Appellant’s petition. Appellant filed a timely notice of appeal on

December 17, 2018. Both the trial court and Appellant have complied with

Pennsylvania Rule of Appellate Procedure 1925. Appellant presents two issues

for our review:

      [1.] DID THE PCRA COURT ABUSE ITS DISCRETION IN DENYING
      PETITIONER PCRA RELIEF WHEN IT CONCLUDED HE WAS AWARE
      FOR YEARS THAT HE WAS NOT PRESENT DURING THE CRIME
      THEREFORE THE AFTER DISCOVERED EVIDENCE PROVING SUCH
      IS IRRELEVANT?

      [2.] WHETHER FIFTH PCRA COUNSEL WAS INEFFECTIVE FOR
      FAILING TO INVESTIGATE?

Appellant’s Brief at 2.

      Instantly, the PCRA court denied relief on the basis that Appellant’s

petition was untimely. Our standard of review of an order denying PCRA relief

is “whether the PCRA court’s determination is supported by the evidence of

record and free of legal error. We grant great deference to the PCRA court’s

findings, and we will not disturb those findings unless they are unsupported

by the certified record.” Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.


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Super. 2017) (citation omitted). Before we reach the merits of a petitioner’s

claim, Section 9545 of the PCRA requires that “[a]ny petition under this

subchapter, including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1).

The timeliness requirement of the PCRA is “mandatory and jurisdictional in

nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-85 (Pa. Super.

2008) (citation omitted). Therefore, “no court may disregard, alter, or create

equitable exceptions to the timeliness requirement in order to reach the

substance of a petitioner’s arguments.” Id. at 785. Although the timeliness

requirement is mandatory and jurisdictional, “an untimely petition may be

received when the petition alleges, and the petitioner proves, that any of the

three limited exceptions to the time for filing set forth at 42 Pa.C.S.A. §

9545(b)(1)(i), (ii), and (iii), is met.”   Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa. Super. 2013).       The three exceptions to the timeliness

requirement are:

      (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


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               provided in this section and has been held by that court
               to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Until recently, a petition invoking an exception had to be filed within 60

days of the date the claim could have been presented. However, effective

December 24, 2017, Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2),

and now provides that a PCRA petition invoking a timeliness exception must

be filed within one year of the date the claim could have been presented. See

Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3 (“[T]he amendment . . . shall

apply to claims arising on Dec. 24, 2017 or thereafter.”). Although applicable

to Appellant’s instant petition, the change in the law from 60 days to one year

does not impact our analysis in this case.

      Appellant’s PCRA petition is facially untimely. “A judgment is deemed

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.’”    Commonwealth v.

Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010) (quoting 42 Pa.C.S.A. §

9545(b)(3)). The Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal from his judgment of sentence on June 8, 1998.

Therefore, his judgment of sentence became final on September 6, 1998, 90

days after the Pennsylvania Supreme Court’s denial of Appellant’s petition for

allowance of appeal, which marked the expiration of the period Appellant could




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have sought certiorari with the United States Supreme Court.           See U.S.

S.Ct.R. 13; Commonwealth v. Lark, 746 A.2d 585, 587 (Pa. 2000).

      To be timely, Appellant was required to file a PCRA petition on or before

September 6, 1999. Appellant’s eighth PCRA petition, filed on October 23,

2018, is facially untimely. Accordingly, we are without jurisdiction to decide

Appellant’s appeal unless he pled and proved one of the three timeliness

exceptions of Section 9545(b)(1). See Derrickson, 923 A.2d at 468.

      Appellant argues that he satisfied the newly-discovered fact exception

under section 9545(b)(1)(ii), and therefore, the PCRA court possessed

jurisdiction over the merits of his petition.      The newly-discovered fact

exception:

      has two components, which must be alleged and proved. Namely,
      the petitioner must establish that: 1) the facts upon which the
      claim was predicated were unknown and 2) could not have been
      ascertained by the exercise of due diligence. If the petitioner
      alleges and proves these two components, then the PCRA court
      has jurisdiction over the claim under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citations

omitted) (emphasis removed).

      Appellant contends that an affidavit he received on October 17, 2018

from co-defendant, Darrick Hall, successfully meets the newly-discovered fact

exception criteria cited above. Specifically, Appellant argues that the affidavit

brings to light the following “newly-discovered facts”:

            Mr. Hall’s 2018 affidavit is relevant because for the first
      time, Mr. Hall stated that he was facing the front of the
      laundromat and actually observed [Appellant] holding the door
      open for customers. Mr. Hall also states that once he pulled out

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      his gun the victim grabbed him, as he glanced towards the front
      where [Appellant] was at and saw [Appellant] running out of the
      laundromat leaving him behind. Mr. Hall further stated that once
      he (Mr. Hall) ran out that [Appellant] was trying to leave him and
      that he hated [Appellant] for that. Finally, Mr. Hall admits that
      [Appellant] did not know that he had a gun on him.

Appellant’s Brief at 16.

      However, Appellant admits that “[t]he new evidence is also corroborated

by key [C]ommonwealth witness Tyrone Allen’s testimony at Mr. Hall’s trial

where he testified that [Appellant] ran before the shots were fired.” Id. at

17. (citations omitted).   Mr. Allen’s testimony was the basis of Appellant’s

newly-discovered fact exception claim in his second PCRA petition. In finding

this Court had no jurisdiction to address the merits of his second petition

because Appellant failed to plead and prove an exception to the PCRA time-

bar, we stated:

             The instant claim relates to Appellant’s assertion of a
      disclosure by a fellow prisoner, Shawn Smith, that Commonwealth
      witness Tyrone Allen, who testified at the trial of Appellant’s co-
      defendant, told police that Appellant had left the laundromat
      before the shooting started; Allen reportedly had been intimidated
      by police and therefore had not testified at Appellant’s trial. The
      petition also asserts a failure of the prosecutor’s office to provide
      this information to the defense as an example of governmental
      interference, and alleges ineffectiveness of counsel for failure to
      discover it.

             The newly discovered evidence exception requires the
      petitioner to allege and prove that the information referred to was
      “unknown by the petitioner and could not have been ascertained
      by the exercise of due diligence.” 42 Pa.C.S.A. §[]9545(b)(1)(ii).
      Allen’s testimony had been given in October of 1994
      (Commonwealth’s Answer and Motion to Dismiss Defendant’s
      Second PCRA Petition, at 4 n.11), three years prior to
      Appellant’s second trial and twelve years prior to the filing
      of the instant PCRA petition. During Hall’s trial Allen testified

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     to having seen Appellant leave the laundromat shortly before
     shots were fired. (Id., Exhibit N.T., 10/24/94, at 84-85, 90-91,
     94-99). The information therefore was available and could
     have been obtained by due diligence, but was not.
     Moreover, Appellant provides nothing to support his corollary
     claim that the prosecutor’s interference prevented disclosure of
     the transcript to his defense attorney. Neither the claim nor its
     adjunct qualifies as newly-discovered evidence so as to provide
     an exception to the PCRA time bar. We are thus without
     jurisdiction to address Appellant’s claims.

Commonwealth v. Green, 2316 EDA 2006, *5-6 (Pa. Super. Apr. 19, 2007)

(emphasis added).

     In its November 20, 2018 order, the trial court explained why it intended

to dismiss Appellant’s eighth PCRA petition:

             [Appellant’s] second PCRA petition, filed on January 5,
     2006, invoked, inter alia, a newly-discovered fact similar to the
     one asserted here. . . . Upon review of the full record, the court
     finds that [Appellant] has failed to establish a newly-discovered
     fact.     [Appellant’s] claim for newly-discovered exculpatory
     evidence is based upon his co-defendant’s account of the robbery
     and killing. The pivotal fact here is that Darrick Hall, who never
     testified at his own or [Appellant’s] proceedings, now asserts that
     [Appellant] fled the scene of the crime prior to any shots being
     fired. As set forth above, this specific fact was the subject of
     [Appellant’s] second PCRA petition, although the fact came from
     Tyrone Allen, a source other than Darrick Hall. Thus, Hall’s
     proposed testimony concerns only a newly willing source
     for previously alleged facts. This is insufficient to warrant
     relief.

            Indeed, Hall’s declaration does not constitute newly-
     discovered evidence at all. If true, [Appellant] knew from the time
     of trial and every day thereafter that he was not present at the
     laundromat when the shots were fired and could not have only
     recently discovered the information. Moreover, as discussed
     above, this information was the subject of [Appellant’s] 2nd PCRA
     petition wherein [Appellant] claimed that the discovery of Tyrone
     Allen’s testimony at Hall’s trial established his innocence, entitling
     him to PCRA relief. The only new information is Hall’s

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     willingness to come forward with his own testimony as to
     this fact.

            [Appellant] has further failed to establish due diligence on
     his part. [Appellant’s] petition alleges that he acted within 60
     days of encountering Hall in SCI-Phoenix on September 17, 2018
     when he learned of the affidavit Hall sent to [Appellant’s] prior
     counsel, Attorney Himebaugh (or within 60 days of receiving Hall’s
     affidavit dated October 17, 2018). However, it is apparent
     from our review of the record, specifically [Appellant’s]
     own admissions, that [Appellant] made no effort to contact
     Hall since 1994 or 1995, more than 23 years ago. See,
     Affidavit of Tyrone Green dated July 27, 2011, attached as Exhibit
     P-1 to [Appellant’s] 7th PCRA petition. If [Appellant’s] allegations
     are true that he was not present when the shots were fired,
     [Appellant] has been aware of this fact since the crime occurred,
     as has Hall. Nevertheless, [Appellant] did not pursue evidence of
     this fact for a number of years. While it may be true that Hall
     would have refused to come forward, or that he would have
     ignored [Appellant’s] attempts to reach out over the years, this is
     speculation given that [Appellant] did not make any such effort
     after 1995.

           As a result, [Appellant] fails to meet either requirement to
     the exception set forth in 42 Pa.C.S.A. §[]9545(b)(1)(ii),
     permitting an untimely claim upon the discovery of facts
     previously unknown to [Appellant], which could not have been
     discovered with due diligence. [Appellant’s] 8th PCRA petition
     must be dismissed as untimely.

Order, 11/20/18, at n.1 (emphasis added).

     We find instructive the Pennsylvania Supreme Court’s analysis of

Section 9545(b)(1)(ii) in Commonwealth v. Marshall, 947 A.2d 714 (Pa.

2008):

           Exception (b)(1)(ii) requires petitioner to allege and prove
     that there were facts that were unknown to him and that he could
     not have ascertained those facts by the exercise of due diligence.
     The focus of the exception is on [the] newly discovered facts, not
     on a newly discovered or newly willing source for
     previously known facts. In [Commonwealth v. Johnson, 863

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      A.2d 423 (Pa. 2004)], this Court rejected the petitioner’s
      argument that a witness’s subsequent admission of alleged facts
      brought a claim within the scope of exception (b)(1)(ii) even
      though the facts had been available to the petitioner beforehand.
      Relying on Johnson, this Court more recently held that an
      affidavit alleging perjury did not bring a petitioner’s claim of
      fabricated testimony within the scope of exception (b)(1)(ii)
      because the only new aspect of the claim was that a new
      witness had come forward to testify regarding the
      previously raised claim. Specifically, we held that the fact that
      the petitioner discovered yet another conduit for the same claim
      of perjury does not transform his latest source into evidence
      falling within the ambit of [Section] 9545(b)(1)(ii).

Id. at 720 (some citations omitted) (bold emphasis added, italics in original).

      In applying the Supreme Court’s holding in Marshall to Appellant’s

petition, we agree with the PCRA court that Appellant failed to plead and prove

the newly-discovered facts exception to the PCRA time-bar. Appellant’s eighth

petition merely asserts that Appellant has discovered a new source for facts

that have been known to him, or could have been known to him through due

diligence, at least as early as October of 1994. As the focus of the Section

(b)(1)(ii) exception is newly-discovered facts, and not a newly-discovered

willing source for previously-known facts, Marshall, 947 A.2d at 720,

Appellant fails to plead and prove such an exception to the PCRA’s time-bar.

      Accordingly, we agree with the PCRA court’s determination that

Appellant’s petition is facially untimely, and he has failed to prove any




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applicable Section 9545(b)(1) exception.           We are therefore without

jurisdiction and cannot reach the merits of Appellant’s substantive claims.1

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/19




____________________________________________


1 If a petition is untimely, and the petitioner has not pled and proven any
exception, “neither this Court nor the trial court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. Derrickson, 923 A.2d
466, 468 (Pa. Super. 2007) (quoting Commonwealth v. Chester, 895 A.2d
520, 522 (Pa. 2006)).



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