J-S37006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 EARL MORGAN                              :
                                          :
                    Appellant             :   No. 2956 EDA 2017

                Appeal from the PCRA Order August 14, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0112531-2002


BEFORE:    OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                               FILED JULY 31, 2018

      Appellant, Earl Morgan, appeals from the order entered on August 14,

2017, dismissing his second petition filed under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      We previously explained the underlying facts of this case:

        [On] the afternoon of August 23, 2001, two men knocked on
        [the Victim’s] front door. When [the Victim] answered it, [the
        men] pulled guns out and ordered him back into his house.
        They made him kneel and asked for his money and drugs.
        When he stated that he did not know what they were talking
        about, they hit him. They threatened to shoot him and he
        told them to go ahead. They then hit him on his right temple
        with a pistol, knocking him unconscious. At trial, [the Victim]
        testified that the two men were [Appellant] and [Appellant’s
        co-defendant, John Realer].

        When [the Victim] regained consciousness, [he] grabbed
        [Appellant’s] pistol and wrestled with him while [Mr. Realer]
        continued to hit him in the back of the head. Both men
        escaped. [The Victim] was covered in blood. The police
        transported him to the hospital, where he again slipped into

____________________________________
* Former Justice specially assigned to the Superior Court.
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        unconsciousness. He was held for two days, and diagnosed
        with major depression and post-concussion syndrome. The
        strike to his temple had fractured his skull.

        A jury found [Appellant] guilty of aggravated assault and
        possession of an instrument of crime. On May 22, 2002, the
        [trial court] sentenced [Appellant to serve an aggregate term
        of ten to 20 years in prison for his convictions].

Commonwealth v. Morgan, ___ A.2d ___, 1846 EDA 2002 (Pa. Super.

2003) (unpublished memorandum) at 1-2 (internal footnotes omitted).

      We affirmed Appellant’s judgment of sentence on April 25, 2003;

Appellant did not petition the Pennsylvania Supreme Court for allowance of

appeal. Id.

      Appellant filed his first PCRA petition on April 23, 2004. The PCRA court

dismissed the petition on May 26, 2005, we affirmed the PCRA court’s order

on November 29, 2006, and the Pennsylvania Supreme Court denied

Appellant’s   petition   for   allowance   of   appeal   on   June   26,   2007.

Commonwealth v. Morgan, 915 A.2d 147 (Pa. Super. 2006) (unpublished

memorandum) at 1-6, appeal denied, 927 A.2d 623 (Pa. 2007).

      Appellant filed the current PCRA petition – his second – on July 19, 2007.

Within his pro se PCRA petition, Appellant acknowledged that the petition was

filed outside of the PCRA’s one-year time-bar. See Appellant’s Second Pro Se

PCRA Petition, 7/19/07, at 3.       Appellant, however, claimed that his co-

defendant, John Realer, had recently come forward with “exculpatory

evidence” regarding Appellant’s case. Id. Appellant thus claimed that his

PCRA petition was timely under the “newly-discovered facts” exception to the



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PCRA’s one-year time-bar.1          Id.; see also 42 Pa.C.S.A. § 9545(b)(1)(ii).

Moreover, attached to Appellant’s PCRA petition was a sworn affidavit from

Mr. Realer, where Mr. Realer averred:

         [Appellant] did not participate, agree to take part in, nor
         conspire in the crime for which I am incarcerated for
         committing.

         On the day of said crime, I called [Appellant] and asked him
         for a ride to the 2600 block of Thompson St. (at which time I
         did not have a vehicle myself) and he agreed.

         Upon arrival to Thompson St., [Appellant] parked his car on
         the corner. I exited there and walked down to the street to
         the address [of the Victim].

         [Appellant] at this time was left standing on the corner
         speaking on his cell phone awaiting for me to return.

         Once I reached [the Victim’s address, the Victim and I]
         engaged in a drug deal that went bad and turned into a
         robbery.

         After I exited the house I calmly walked back up to the corner
         and got back in the car, and [Appellant] proceeded to drive
         me back to the address he brought me from. At which time
         I never told him of the robbery.


____________________________________________


1 Obviously, in order to satisfy the “newly-discovered facts” exception to the
PCRA’s one-year time-bar, the petitioner need not plead or prove that the
evidence was “exculpatory” or that the evidence “would have changed the
outcome of the trial.” Commonwealth v. Bennett, 930 A.2d 1264, 1270-
1272 (Pa. 2007) (holding that the PCRA’s newly-discovered facts exception
“merely requires that the ‘facts’ upon which such a claim is predicated must
not have been known to appellant, nor could they have been ascertained by
due diligence”) (internal quotations and citations omitted). Our reference to
the alleged “exculpatory” nature of Appellant’s evidence simply reflects our
effort to summarize Appellant’s claim.


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          In the past, before [Appellant’s] trial, I found out through a
          friend who his lawyer was and I attempted to make contact.
          I wanted him to know of [Appellant’s] true innocence, but I
          never received a response back.

Affidavit of John Realer, attached to Appellant’s Second Pro Se PCRA Petition,

at 1.

        On May 2, 2016, Appellant’s counsel filed an amended petition and

reiterated Appellant’s claim that Mr. Realer’s statement constituted newly-

discovered evidence, which entitled Appellant to post-conviction relief.

Appellant’s Amended Second PCRA Petition, 5/2/16, at 3.2

        On July 11, 2017, the PCRA Court provided Appellant with notice that it

intended to dismiss his untimely PCRA petition in 20 days, without a hearing.

PCRA Court Order, 7/11/17, at 1; see also Pa.R.Crim.P. 907(1). The PCRA

court finally dismissed Appellant’s PCRA petition on August 14, 2017. PCRA

Court Order 8/14/17, at 1.

        Appellant filed a timely notice of appeal to this Court and now claims

that the PCRA court erred when it determined that his PCRA petition was

untimely. We conclude that the PCRA court properly dismissed Appellant’s

untimely, serial PCRA petition.

        As our Supreme Court has held, we “review an order granting or denying

PCRA relief to determine whether the PCRA court’s decision is supported by
____________________________________________


2Appellant’s amended second PCRA petition also claimed that Appellant’s wife
could “provide testimony relaying background details which establishes that
Mr. Realer’s statement was prepared in 2006 but not obtained by [Appellant]
until the time of his pending appeal.” Appellant’s Amended Second PCRA
Petition, 5/2/16, at 3.


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evidence of record and whether its decision is free from legal error.”

Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.    This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since

the time-bar implicates the subject matter jurisdiction of our courts, we are

required to first determine the timeliness of a petition before we consider the

underlying claims. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999).

Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in nature
        and, accordingly, a PCRA court is precluded from considering
        untimely PCRA petitions. See, e.g., Commonwealth v.
        Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that “given
        the fact that the PCRA's timeliness requirements are
        mandatory and jurisdictional in nature, no court may properly
        disregard or alter them in order to reach the merits of the
        claims raised in a PCRA petition that is filed in an untimely
        manner”); Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa.
        1999) (holding that where a petitioner fails to satisfy the
        PCRA time requirements, this Court has no jurisdiction to
        entertain the petition). [The Pennsylvania Supreme Court
        has] also held that even where the PCRA court does not
        address the applicability of the PCRA timing mandate, th[e
        court would] consider the issue sua sponte, as it is a
        threshold question implicating our subject matter jurisdiction
        and ability to grant the requested relief.


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Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

      In the case at bar, Appellant’s judgment of sentence became final in

2003. As Appellant did not file his current petition until July 19, 2007, the

current petition is manifestly untimely and the burden thus fell upon Appellant

to plead and prove that one of the enumerated exceptions to the one-year

time-bar   applied   to   his   case.    See   42   Pa.C.S.A.   §   9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead all required elements of the relied-

upon exception).

      Here, Appellant claims to invoke the “newly-discovered facts” exception

to the time-bar. This statutory exception provides:

        (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:

                                        ...

            (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[.]

                                        ...

        (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.A. § 9545(b).



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      Thus, to properly invoke the newly-discovered facts exception, the

petitioner is statutorily required to file his petition “within 60 days of the date

the claim could have been presented.”         Id.   As our Supreme Court has

explained, to satisfy this “60-day requirement,” a petitioner must “plead and

prove that the information on which he relies could not have been obtained

earlier, despite the exercise of due diligence.” Commonwealth v. Stokes,

959 A.2d 306, 310-311 (Pa. 2008); Commonwealth v. Breakiron, 781 A.2d

94, 98 (Pa. 2001). Moreover, because the “60-day requirement” of section

9545(b)(2) is a statutory mandate, the requirement is “strictly enforced.”

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).

      Appellant claims that the PCRA court erred in dismissing his petition as

untimely, as his petition satisfies the newly-discovered facts exception to the

PCRA’s one-year time-bar. This claim fails.

      The PCRA’s newly-discovered facts exception permits the filing of a

petition outside of the one-year time-bar if the petitioner pleads and proves

that 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.” 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court has explained

that the newly-discovered facts exception “does not require any merits

analysis of the underlying claim. Rather, the exception merely requires that

the ‘facts’ upon which such a claim is predicated must not have been known

to appellant, nor could they have been ascertained by due diligence.”

Bennett, 930 A.2d at 1271 (internal quotations and citation omitted), quoting

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Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa. 2005). Yet, as our

Supreme Court has made clear, “[t]he focus of the exception is on the newly

discovered facts, not on a newly discovered or newly willing source for

previously known facts. . . . [Stated another way,] the newly-discovered facts

exception is not focused on newly discovered or newly willing sources for

‘facts’ that were already known.” Commonwealth v. Marshall, 947 A.2d

714, 720 and 722 (Pa. 2008) (internal quotations, citations, and corrections

omitted) (emphasis in original).

         Appellant claims that Mr. Realer’s statement satisfies the PCRA’s newly-

discovered facts exception because Appellant “had no idea that [Mr. Realer]

was willing to come forward to exonerate him until he received an affidavit

from him.” Appellant’s Brief at 17. Further, Appellant claims that he first

discovered this fact on October 4, 2006, when Mr. Realer swore the affidavit

that exonerated him. See id. According to Appellant, since he filed his current

petition within 60 days of the date the claim could have been presented, his

petition is timely under the newly-discovered facts exception. Id. This claim

fails.

         If true, Appellant has long been aware of all of the alleged “facts” that

are contained in Mr. Realer’s affidavit. Indeed, Mr. Realer’s affidavit simply

declares that, during the assault and robbery, Appellant stood down the street

from the Victim’s residence and that Appellant did not participate in, or know

of, the crimes. However, if true, Appellant knew of these facts at the time

and Appellant could have testified to the facts at trial. Thus, Appellant has

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simply found in Mr. Realer “a newly discovered or newly willing source for

previously known facts.” Marshall, 947 A.2d at 720 and 722. As explained

above, such evidence does not satisfy the PCRA’s newly-discovered facts

exception.

      Therefore, Appellant has failed to plead a valid exception to the PCRA’s

one-year time-bar. Appellant’s petition is thus time-barred and our “courts

are   without   jurisdiction   to   offer   [Appellant]   any   form   of   relief.”

Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). We affirm

the PCRA court’s order dismissing Appellant’s second PCRA petition without a

hearing.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/18




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