J-S42011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

LEONARD AIKEN, JR.

                         Appellant                  No. 1323 WDA 2013


                   Appeal from the PCRA Order July 1, 2013
                 In the Court of Common Pleas of Erie County
              Criminal Division at No(s): 1286 and 1287 of 1985


BEFORE: PANELLA, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY PANELLA, J.                     FILED SEPTEMBER 12, 2014

      Appellant, Leonard Aiken, Jr., appeals pro se from the order entered

on July 1, 2013, in the Court of Common Pleas of Erie County, dismissing his

third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

PA.CONS.STAT.ANN. §§ 9541-9546, as untimely. After careful review, we

affirm.

      The PCRA court set forth the factual and procedural history of this case

as follows:

      [O]n May 27, 1986, a jury found [Aiken] guilty of first-degree
      murder, hindering apprehension or prosecution, possessing
      instruments of a crime and conspiracy to commit firearms not to
      be carried without a license. [Aikens] was acquitted of the
      robbery charge. Following the jury trial, [Aikens] was sentenced
      by the Honorable Jess Jiuliante, on April 3, 1987, and received a
      life sentence on the murder conviction, and received sentences
      totaling nine-and-a-half (9½) years to nineteen (19) years on
      the other related charges, which run consecutive to each other
      and the life sentence. [Aiken] filed a timely Notice of Appeal on
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       April 30, 1987, which was docketed by the Pennsylvania
       Superior Court as 617 Pittsburgh 1987. Thereafter, the
       Pennsylvania Superior Court filed a Memorandum Opinion, dated
       October 18, 1988, ordering the judgment of sentence affirmed.
       [The Pennsylvania Supreme Court subsequently denied
       allocator].

       [Aiken] unsuccessfully filed a PCRA on April 4, 1997. Then, on
       January 9, 2001, [Aiken] filed his second PCRA, which was
       subsequently denied. [Aiken] appealed the dismissal of his
       second PCRA on March 12, 2001. On December 3, 2001, the
       Pennsylvania Superior Court affirmed this Lower Court’s Order
       dismissing [Aiken’s] second PCRA as untimely.

PCRA Court Opinion, 9/25/13, at 1-2.

       Aiken filed the instant PCRA petition, his third,1 on April 17, 2013. The

PCRA court issued notice of its intention to dismiss Aiken’s PCRA petition

without a hearing and Aiken then filed a pro se response. On July 1, 2013,

the PCRA court entered its order dismissing the petition as untimely. This

timely appeal followed.

       On appeal, Aiken raises the following issue for our review:

       1.)    DID THE DEFENDANT’S PCRA PETITION STATE AN
              EXCEPTION TO THE TIMELINESS REQUIREMENTS SET
              FORTH IN 42 PA.C.S. § 9545.

Appellant’s Brief, at 2.

       Our standard of review of a trial court order granting or denying
       relief under the PCRA calls upon us to determine whether the
       determination of the PCRA court is supported by the evidence of
       record and is free of legal error. The PCRA court’s findings will
____________________________________________


1
  Aiken does not benefit from the grace period provided in the statute for
those petitioners whose judgments of sentence became final before the
effective date of the 1995 amendments to the PCRA. See Commonwealth
v. Sattazahn, 869 A.2d 529, 533 n.8. (Pa. Super. 2005).



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     not be disturbed unless there is no support for the findings in the
     certified record.

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)

(citations and quotation marks omitted).

     Before we may consider the merits of Aiken’s claims, we must consider

whether this appeal is properly before us. The PCRA court determined that

Aiken’s petition was untimely and that he did not properly plead an

exception to the PCRA’s jurisdictional time-bar. See PCRA Court Opinion,

9/25/13, at 4-7. We agree.

     A PCRA Petition, including a second or subsequent one, must be
     filed within one year of the date the petitioner’s judgment of
     sentence became final, unless he pleads and proves one of the
     three exceptions outlined in 42 Pa.C.S.[A.] § 9545 (b)(1). A
     judgment becomes final at the conclusion of direct review by
     [the Pennsylvania Supreme] Court or the United States Supreme
     Court, or at the expiration of the time for seeking such review.
     42    Pa.C.S.[A.]   §    9545(b)(3).    The    PCRA’s     timeliness
     requirements are jurisdictional; therefore, a court may not
     address the merits of the issues raised if the petition was not
     timely filed. The timeliness requirements apply to all PCRA
     petitions, regardless of the nature of the individual claims raised
     therein. The PCRA squarely places upon the petitioner the
     burden of proving an untimely petition fits within one of the
     three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

     Aiken’s judgment of sentence became final for PCRA purposes 60 days

after March 20, 1989, when the Pennsylvania Supreme Court denied

allowance of appeal, and the time allowed for petitioning the United States

Supreme Court for writ of certiorari expired. Therefore, Aiken had one year



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from that date to file a petition for collateral relief, specifically, until May 21,

1990. See 42 PA.CONS.STAT.ANN. § 9545(b)(1). Because Aiken filed the

instant petition on April 17, 2013, it is untimely on its face, and the PCRA

court lacked jurisdiction to review it unless he pled and proved one of the

statutory exceptions to the time-bar.

      The PCRA provides only three exceptions that allow for review of an

untimely PCRA petition:

      (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.

42 PA.CONS.STAT.ANn. § 9545(b)(1)(i)-(iii). In addition, a PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claim could have been presented.” 42 PA.CONS.STAT.ANn.§

9545(b)(2).

      Here, Aiken contends that the after-discovered evidence exception,

see 42 PA.CONS.STAT.ANN. § 9545(b)(1) (ii), is applicable to this case. See

Appellant’s Brief, at 9 In support of this claim, Aiken points to affidavits that

he maintains “prove innocence.” Appellant’s Brief, at 8. Aiken claims he first

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learned of this information in 2013, prior to filing the instant PCRA petition.

See id., at 9-10. Aiken’s arguments do not merit relief from the PCRA’s

jurisdictional time-bar.

      The after-discovered evidence exception requires the facts upon which

the claim is predicated “were not previously known to the petitioner and

could not have been ascertained through due diligence.” Commonwealth v.

Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). The PCRA creates a three-

part test for the after-discovered facts exception: 1) the discovery of an

unknown fact; 2) the fact could not have been learned by the exercise of

due diligence; and 3) the petition for relief was filed within 60 days of the

date that the claim could have been presented. See Commonwealth v.

Smith, 35 A.3d 766, 771 (Pa. Super. 2011), appeal denied, 53 A.3d 757

(Pa. 2012).

      Although Aiken claims that he first learned of the “after discovered

evidence” in March 2013, a review of the record belies this claim. Aiken’s

PCRA petition and affidavits attached thereto demonstrate Aiken was made

aware of the evidence he now asserts is “newly discovered” as early as

1999. In his PCRA petition, Aiken states that “[p]etitioner attaches as Exhibit

2 an affidavit of truth from one Paul Johnson dated August 01, 1999,

notarized     by   Thomas   P.   Bender   of   Pittsburgh,   Allegheny   County,

Pennsylvania.” PCRA Petition, 4/17/13, at 10. Interestingly, a review of the

exhibits attached to Aiken’s PCRA petition reveal there are no affidavits

signed by Paul Johnson.

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      Moreover, Aiken admits, by affixing a copy to his PCRA Petition as

Exhibit 3, that he also received an affidavit from Ricky Redd dated April 11,

2003. In the affidavit, Redd asserts that he was coerced into making a

statement against Aiken in the Jordan murder case. Accordingly, at the very

least, Aiken was under a duty in 2003 to exercise due diligence and take any

further reasonable steps to protect his own interests by investigating further

or by filing a PCRA petition at the time he received Redd’s affidavit. The

record indicates that Aiken only filed two PCRA petitions prior to the instant

petition, both of which were filed prior to receipt of Redd’s affidavit. Aiken

elected to wait until the instant PCRA petition, more than 10 years after

receipt of Redd’s affidavit, to raise this “newly-discovered evidence” of his

innocence.

      Pursuant to § 954(b)(2)’s requirement, Aiken only had 60 days from

the date he received Redd’s affidavit to effectively invoke one of the

enumerated exceptions to the timeliness requirements of the PCRA. As

stated previously, over 10 years had elapsed since Aiken learned of the

existence of this claim, making the PCRA petition in this case patently

untimely. Therefore, we are without jurisdiction to reach the merits of

Aiken’s claims.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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