J-S57037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                          Appellee

                   v.

KENNETH MILLER

                          Appellant                          No. 577 EDA 2014


           Appeal from the PCRA Order dated January 29, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0907901-1984


BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED NOVEMBER 05, 2014

     Appellant, Kenneth Miller, pro se appeals from the January 29, 2014

order of the Philadelphia County Court of Common Pleas dismissing his third

petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-46.     Upon      review,     we   conclude    the    petition   is   untimely.

Accordingly, we affirm.

     For a detailed recitation of the factual and procedural background, we

direct the reader to this Court’s opinions issued in connection with

Appellant’s direct appeal and PCRA petitions. Briefly, on October 29, 1986, a

jury convicted Appellant of first degree murder and possession of an

instrument of crime. On September 22, 1987, the trial court sentenced him

to life imprisonment and an additional concurrent sentence of one to two

years for possessing an instrument of crime.             This Court affirmed his
J-S57037-14



convictions on September 11, 1990.     See Commonwealth v. Miller, 583

A.2d 833 (Pa. Super. 1990) (unpublished memorandum). Appellant did not

petition the Supreme Court for allowance of appeal. Appellant filed his first

PCRA petition on April 27, 1995. After a hearing, the trial court denied his

petition on September 19, 1996. This Court affirmed the denial of relief on

August 28, 1997. See Commonwealth v. Miller, 704 A.2d 164 (Pa. Super.

1997) (unpublished memorandum).        The Supreme Court of Pennsylvania

denied Appellant’s petition for allowance of appeal on June 22, 1998. See

Commonwealth v. Miller, 725 A.2d 180 (Pa. 1998).           Appellant filed a

petition for certiorari, which the United States Supreme Court denied on

November 9, 1998. See Miller v. Pennsylvania, 525 U.S. 985 (1998).

     On October 14, 1999, Appellant filed a petition for habeas corpus in a

federal district court, which the court denied as untimely on April 3, 2000.

Appellant appealed to the Third Circuit, which affirmed the denial on

November 25, 2002.      See Miller v. Dragovich, 311 F.3d 574 (3d Cir.

2002).    On October 6, 2003, the United States Supreme Court denied

Appellant’s petition for certiorari. See Miller v. Dragovich, 540 U.S. 859

(2003).   On November 8, 2006, Appellant filed his second PCRA petition,

which the trial court dismissed as untimely.   On May 20, 2009, this Court

affirmed the denial of relief. See Commonwealth v. Miller, 976 A.2d 1210

(Pa. Super. 2009) (unpublished memorandum). On November 4, 2009, the

Supreme Court denied Appellant’s petition for allowance of appeal.       See

Commonwealth v. Miller, 983 A.2d 727 (Pa. 2009). On March 19, 2012,

                                    -2-
J-S57037-14



Appellant filed the instant (third) PCRA petition, which the trial court

dismissed as untimely on January 29, 2014. This appeal followed.

      On appeal, Appellant raises a claim of newly discovered evidence,

namely, a witness ready to testify Appellant was in fact highly intoxicated at

the time of the crimes. According to Appellant, he discovered the witness,

who was also serving a sentence in the same facility, sometimes toward the

end of February 2012.     To this end, Appellant also argues the trial court

erred in not holding a hearing on his petition.        Appellant also argues the

instant petition is timely because it was filed within 60 days of the discovery

of the witness. Appellant’s Brief at 5-6.

      Before we can address the merits of the claims, we must determine

the timeliness of the instant PCRA petition because we have no jurisdiction

to   entertain any   review   of the    claims   if   the   petition   is untimely.

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011).

      The PCRA contains the following restrictions governing the timeliness

of any PCRA petition.

      (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;


                                       -3-
J-S57037-14



          (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.

       (3) For purposes of this subchapter, a judgment 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.A. § 9545(b).

       Here, the record reflects the judgment of sentence became final on

October 10, 1990, i.e., at the expiration of the time for seeking discretionary

review in the Pennsylvania Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3);

Pa.R.A.P. 1113. Because Appellant had one year from October 10, 1990 to

file his PCRA petition, the current filing is untimely on its face given it was

filed on March 19, 2012.

       The one-year time limitation can be overcome if a petitioner alleges

and proves one of the exceptions set forth in Section 9545(b)(1)(i)-(iii).

Appellant here alleges the newly discovered evidence exception. 1 According
____________________________________________


1
 As we stated in Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
Super. 2010):
(Footnote Continued Next Page)


                                           -4-
J-S57037-14



to Appellant, in February 2012, he learned of the witness, who was with

Appellant at the time of the crimes, willing to testify Appellant had consumed

various narcotic substances on the evening of the homicide.         Appellant’s

Brief at 6; see also Trial Court Memorandum and Order, 1/29/14, at 3.

Appellant also argues the trial court erroneously relied on the dates provided

by the witness for purposes of determining the timeliness of this petition.

Appellant’s Brief at 7. The trial court noted that the witness stated he met

Appellant in 1990 and again in 2011. Based on these allegations, the trial

court concluded, “under the ‘due diligence’ standard . . ., [Appellant] fails to

demonstrate any exercise of due diligence in obtaining [the witness]’s

testimony in 1990 when he encountered [the witness] or in the years

afterwards.” Trial Court Memorandum and Order, 1/29/14, at 3. According

                       _______________________
(Footnote Continued)


      The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned
      those facts earlier by the exercise of due diligence.
      Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
      1271 (2007). Due diligence demands that the petitioner take
      reasonable steps to protect his own interests. Commonwealth
      v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner
      must explain why he could not have obtained the new fact(s)
      earlier with the exercise of due diligence. Commonwealth v.
      Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98 (2001);
      Commonwealth v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590
      (1999). This rule is strictly enforced. See [Commonwealth v.]
      Vega, [754 A.2d 714,] 718 (Pa. Super. 2000)].”

Id. at 1080.



                                            -5-
J-S57037-14



to Appellant, the mere fact that the witness, in his statement, indicated he

met with Appellant in 1990 and 2011, was insufficient to conclude the

instant   petition   was   untimely    for   failure   to   exercise   due    diligence.

Appellant’s Brief at 7, 9.     In fact, according to Appellant, the witness’s

statement contains some misinformation, including the dates and locations

where they met. Id. The claim is without merit.

      The alleged witness to his intoxication was with Appellant at the time

of the crime, August 26, 1984, but Appellant, somehow, despite the

extensive   litigation   over the     years, never mentioned it until 2012.

Additionally, Appellant is not arguing he was not aware of the witness, he

simply argues he did not know his true identity.                Appellant, however,

provided no explanation why he never acted upon this knowledge until 2012.

Had he done so, he would have found out the true identity of the witness,

and could have pursued his claim in a timely fashion. Appellant, however,

took no action for approximately 28 years.             Thus, we conclude Appellant

failed to demonstrate he exercised due diligence in ascertaining the asserted

“newly discovered” witness.

      The instant petition is, therefore, untimely and the trial court properly

noted it did not have jurisdiction to entertain the petition.                See, e.g.,

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (“This

Court has repeatedly stated that the PCRA timeliness requirements are

jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely

PCRA petitions.”) (citation omitted). Accordingly, the PCRA court did not err

                                        -6-
J-S57037-14



in denying Appellant’s petition as untimely, and did not err by dismissing the

petition without a hearing.      See Commonwealth v. Marshall, 947 A.2d

714, 723 (Pa. 2008). (“As explained supra, we have concluded that [the

a]ppellant’s petition was untimely, and accordingly the PCRA court properly

determined that it had no jurisdiction to entertain it. We therefore also must

conclude that the PCRA court did not err in dismissing [the a]ppellant’s

petition without a hearing.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




                                      -7-
