J-S23033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 MILTON KEELS                              :
                                           :
                    Appellant              :    No. 96 EDA 2017

              Appeal from the PCRA Order November 17, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0714021-2002


BEFORE:    SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MAY 07, 2018

      Appellant Milton Keels appeals from the order of the Court of Common

Pleas of Philadelphia County denying Appellant’s petition pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541–9546, as untimely filed. After

careful review, we affirm.

      On June 23, 2003, a jury convicted Appellant of attempted involuntary

deviate sexual intercourse and related sexual offenses involving Appellant’s

minor stepson, D.D. (“Complainant”). On September 4, 2003, the trial court

sentenced Appellant to four to ten years’ imprisonment to be followed by five

years’ probation. On August 23, 2007, this Court affirmed the judgment of

sentence and on July 19, 2007, the Supreme Court denied Appellant’s petition

for allowance of appeal.     On May 20, 2008, Appellant filed his first PCRA

petition, which was denied as frivolous, and this Court dismissed Appellant’s

petition on September 22, 2010 for failing to file an appellate brief as required.

____________________________________
* Former Justice specially assigned to the Superior Court.
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      On May 16, 2012, Appellant filed the instant pro se PCRA petition,

alleging that he was entitled to a new trial as Complainant had admitted that

he had lied about the abuse and that Appellant had not committed the crimes

for which he was convicted. After a period of extensive delay which is not

explained in the certified record, the lower court appointed Appellant counsel,

who filed an amended petition on January 14, 2016.

      The PCRA court held evidentiary hearings on Appellant’s petition on

September 16, 2016 and November 4, 2016 at which the following factual

background was developed.       On November 19, 2011, Appellant’s stepson,

Complainant, executed an affidavit which indicated that he had lied about

Appellant’s sexual abuse and recanted his trial testimony. On January 12,

2012, Complainant’s mother met with former Assistant District Attorney (ADA)

Joseph J. Khan, who had prosecuted Appellant’s original case. Complainant’s

mother informed Atty. Khan that Complainant recanted his testimony in an

affidavit, which she indicated she had sent to Appellant right after it was made.

      Atty. Khan immediately drafted an email to notify the District Attorney’s

Office of these allegations. In the email, Atty. Khan suggested Complainant’s

recantation was suspect for a number of reasons, including that Complainant

had been a credible witness at trial, Complainant needed years of subsequent

therapy to address the effects of the sexual abuse, and that Appellant and

Complainant’s mother are married and have a child together.

      On April 6, 2012, Complainant’s mother took Complainant to a notary

to execute another affidavit recanting his allegations of abuse. On May 8,

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2012, Complainant’s mother again took Complainant to a notary to execute a

third copy of the affidavit. In filing the PCRA petition in this case, Appellant

attached only the most recent May 8, 2012 affidavit as support.

      At the conclusion of the hearing, the PCRA court denied Appellant’s

petition as untimely filed. Appellant filed this appeal and complied with the

lower court’s direction to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

      As an initial matter, we must determine whether Appellant is eligible for

relief under the PCRA. The PCRA requires that a petitioner plead and prove,

inter alia, that at the time relief is granted, he or she is “currently serving a

sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A. §

9543. Our Supreme Court has consistently interpreted this language to bar

PCRA relief from those who are not serving a sentence.” Commonwealth v.

Volk, 138 A.3d 659, 661 (Pa.Super. 2016).            Moreover, “the statutory

requirement that a PCRA petitioner be currently serving the sentence is

applicable ... where the PCRA court's order was issued while [the] petitioner

was still serving the required sentence, but that sentence terminated prior to

the resolution of his appeal.” Commonwealth v. Plunkett, 151 A.3d 1108,

1112–13 (Pa. Super. 2016).

      In this case, Appellant was released from prison on February 19, 2013,

after completing his maximum ten-year prison sentence. See N.T., 9/16/16,

at 13, 24. While not addressed by the parties or the PCRA court, it appears

that Appellant finished the maximum of his consecutive five-year period of

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probation on February 19, 2018. As Appellant is no longer serving a sentence

of imprisonment, probation, or parole, he is not eligible for PCRA relief.

      Moreover, Appellant is not entitled to collateral relief as his PCRA petition

was untimely filed.      It is well-established that “the PCRA's timeliness

requirements are jurisdictional in nature and must be strictly construed;

courts may not address the merits of the issues raised in a petition if it is not

timely filed.” Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super.

2011) (citations omitted). Generally, a PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment of

sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time

for seeking the review. 42 Pa.C.S.A. § 9545(b)(3).

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of the three exceptions

enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the

petitioner’s inability to raise a claim as a result of governmental interference;

(2) the discovery of previously unknown facts or evidence that would have

supported a claim; or (3) a newly-recognized constitutional right.              42

Pa.C.S.A. § 9545(b)(1)(i)-(iii).    Any PCRA petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).

      In this case, this Court affirmed Appellant’s judgment of sentence and

our Supreme Court denied Appellant’s petition for allowance of appeal on July

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19, 2007. As a result, the judgment of sentence became final three months

later on October 17, 2007, after the expiration of the ninety-day period in

which Appellant was allowed to seek review in the U.S. Supreme Court. See

U.S. Sup.Ct. R. 13(1). Thus, this petition, which was not filed until May 26,

2012, is facially untimely.

      Moreover, we agree with the PCRA court that none of the timeliness

exceptions set forth in section 9545(b)(1)(i-iii) are applicable. In his petition,

Appellant attempted to invoke the newly discovered fact exception under

9545(b)(1)(ii) based on Complainant’s recantation. Our courts have explained

that 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. Brown, 141 A.3d 491, 500 (Pa.Super. 2016) (quoting

Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1272 (2007)).

      Although Appellant testified at the PCRA hearing that he was aware of

Complainant’s May 8, 2012 affidavit, Complainant had executed his first

affidavit executed six months earlier on November 19, 2011.             Appellant

admitted that in early 2012, Complainant’s mother (who is also Appellant’s

wife) wrote to Appellant in jail to indicate that Complainant had lied about the

abuse. Appellant instructed Complainant’s mother to ensure that Complainant

put this statement in writing.


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      Former ADA Khan testified that Complainant’s mother met with them to

share Complainant’s affidavit, signed on November 19, 2011, recanting his

trial testimony. ADA Khan recalled that Complainant’s mother told him that

she had sent the November 19, 2011 affidavit to Appellant in prison and that

Appellant had the affidavit.

      Complainant’s mother initially testified on direct examination that she

mailed Appellant an affidavit after April 6, 2012. However, when confronted

on cross-examination with Atty. Khan’s claim that she had told him that she

had sent Appellant the earlier November 19, 2011 affidavit right after it was

notarized, Complainant’s testified that she “guessed” that she had sent the

prior affidavit. N.T. Hearing, 11/4/16, at 66.

      Based on the aforementioned testimony, the PCRA court determined

that Appellant had not met the newly discovered fact exception as he failed to

invoke the exception within sixty days of the date the claim first could have

been presented.    42 Pa.C.S.A. § 9545(b)(2).      The PCRA court found that

Appellant knew of Complainant’s November 19, 2011 affidavit before

Complainant’s mother met with Atty. Khan on January 12, 2012.

      Therefore, after applying the sixty-day deadline to run from that

meeting, the PCRA court noted that Appellant was required to file his PCRA

petition no later than March 12, 2012. As Appellant did not file a petition until

May 16, 2012, we conclude that that the PCRA court correctly determined that




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Appellant had filed an untimely petition and had failed to prove that one of

the PCRA timeliness exceptions applied.1

       Accordingly, we affirm the PCRA court’s order denying Appellant’s

petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/18




____________________________________________


1 We note that Appellant suggested for the first time on appeal that the
Commonwealth interfered with his ability to file a PCRA petition as the
prosecution did not inform him that Complainant had recanted his trial
testimony. To the extent that Appellant wishes to invoke the government
interference exception, we observe that he did not raise this claim in his pro
se or amended PCRA petition. This Court has held that “exceptions to the
time bar must be pled in the PCRA petition, and may not be raised for the first
time on appeal.” Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.
2007). See also Pa.R.A.P. 302(a) (issues not raised in the lower court are
waived and cannot be raised for the first time on appeal). Therefore, we will
not review this claim further.

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