J-S11009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :                 IN THE SUPERIOR COURT OF
                             :                      PENNSYLVANIA
                             :
           v.                :
                             :
                             :
 KEVIN JONES,                :
                             :
              Appellant      :                 No. 3557 EDA 2017
                             :

                  Appeal from the PCRA Order October 5, 2017
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0001003-1999


BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                           FILED SEPTEMBER 12, 2018

       Kevin Jones, pro se, appeals the order of the Court of Common Pleas of

Montgomery County, entered October 5, 2017, that denied his third petition

filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

       [Jones] is presently serving a sentence of life imprisonment
       without the possibility of parole upon his [jury trial] convictions
       for first degree murder, 18 Pa.C.S.A. § 2502(a), possessing
       instruments of crime, 18 Pa.C.S.A. § 907, firearms not to be
       carried without a license, 18 Pa.C.S.A. § 6106, and unsworn
       falsification to authorities, 18 Pa.C.S.A. § 4904. [Jones] was
       convicted upon the Commonwealth’s evidence that [he] snuck up
       from behind the victim[, Kevin Cornish,] and shot him five times
       in the back and then two times as the victim lay on the ground.

PCRA Court Opinion, 11/9/2017, at 1. During trial, Jones testified that he

believed Cornish “looked like one of the guys that [had] robbed” him at

gunpoint on the night before the murder. N.T., 11/8/1999, at 67; see also
____________________________________________


1   42 Pa.C.S. §§ 9541–9546.
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id. at 16-19. He continued that he “was upset [and] real angry” and had

approached Cornish intending “to get [his] stuff back.” Id. at 21; see also

id. at 70, 73. Jones testified that, after he “just shot somebody[,]” he “still

didn’t get [his] stuff back” and it “had [him] upset, angry, scared, [and]

stressed.” Id. at 74.

      The trial court sentenced Jones to life in prison without the
      possibility of parole.

      Jones filed an untimely Notice of Appeal, which this Court quashed
      in 2001.     See Commonwealth v. Jones, 779 A.2d 1219
      (Pa.Super.2001) (unpublished memorandum). However, the trial
      court reinstated Jones’s right to file a direct appeal, nunc pro tunc.
      This Court affirmed the judgment of sentence.                     See
      Commonwealth v. Jones, 816 A.2d 330 (Pa.Super.2002)
      (unpublished memorandum). Jones did not file a petition for
      allowance of appeal to the Pennsylvania Supreme Court.

      Jones filed his first timely PCRA Petition, pro se, in 2003. The
      PCRA court appointed counsel, who filed a Petition to withdraw
      from representation pursuant to Commonwealth v. Turner, 544
      A.2d 927 (Pa.1988), and Commonwealth v. Finley, 550 A.2d
      213 (Pa.Super.1988) (en banc). The PCRA court allowed counsel
      to withdraw and dismissed Jones’s Petition. This Court affirmed
      the dismissal, and the Pennsylvania Supreme Court denied Jones’s
      Petition for Allowance of Appeal. See Commonwealth v. Jones,
      873 A.2d 768 (Pa.Super.2005) (unpublished memorandum),
      appeal denied, 889 A.2d 1214 (Pa.2005).

Commonwealth v. Jones, 121 A.3d 1145 (Pa. Super. 2015) (unpublished

memorandum) at 1-2.

      Jones, pro se, filed a second PCRA petition in 2012, which the PCRA

court dismissed without a hearing as untimely filed. Jones appealed, and, in

his brief to this Court, referred to his crime as such a “‘textbook example’ of

a ‘coldly and deliberately executed’ first-degree murder that no reasonable


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counsel would have discouraged him from accepting the plea deal for third-

degree murder.” Id. at 4, quoting Jones’s Brief, 3/3/2015, at 8. This Court

affirmed the PCRA court on April 29, 2015. Id. at 1, 5. Jones petitioned for

allowance of appeal to the Supreme Court of Pennsylvania, which was denied

on December 22, 2015.          Commonwealth v. Jones, 128 A.3d 1205 (Pa.

2015).

       On July 4, 2017,2 Jones filed his third PCRA petition, pro se, in which he

invoked the after discovered facts exception to the PCRA time for filing

requirements. See 42 Pa.C.S. § 9545(b)(1)(ii). Jones alleged:

       The following facts were previously unknown to me:

       There is an eyewitness who saw victim point a gun at Petitioner.
       His testimony was unavailable until he was introduced to
       Petitioner and disclosed new facts that if introduced at trial raises
       the reasonable probability that the outcome at trial would have
       been different. . . . I met Mr. Jonathan David Rickets Burwell in
       the prison[’]s library. He knew who I was, I did not know him,
       and he spoke candidly with me about the herein facts. . . .

       [Burwell] will testify that on the evening of January 16, 1999, he
       saw the victim[,] Kevin Cornish, pull a gun from his waistband and
       turn himself and his gun towards Petitioner.



____________________________________________


2  According to the cash slip attached to Jones’s third PCRA petition, he gave
the petition to prison authorities to mail on July 4, 2017. The petition was
received by the Montgomery County Clerk of Courts on July 7, 2017. Pursuant
to the prisoner mailbox rule, we will consider July 4, 2017, to be the date of
filing. See Commonwealth v. Whitehawk, 146 A.3d 266, 268 n.3 (Pa.
Super. 2016) (“under the ‘prisoner mailbox rule’ a document is deemed filed
when placed in the hands of prison authorities for mailing”).




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PCRA Pet., 7/4/2017, at 3-4, 7. Jones attached to his petition an “Affidavit,”

purportedly signed by Burwell,3 which stated, in relevant part:

       On January 16th, 1999, at around 6:30 pm I was on my way into
       Argento’s Pizza Shop. As I was about to go in, I saw this older
       guy I knew from the neighborhood, Kevin Cornish, walking down
       High Street towards me. Instead of going in I waited to say what’s
       up to him. As I was waiting I saw someone walking up behind
       him, as they both got closer I could tell that it was the other Kev,
       Kevin Jones, walking up behind him. Kevin Jones was calling
       something out to Kevin Cornish. When Kevin Cornish turned
       around to see who was calling him, he immediately turn back in
       my direction like he was going to run. That’s when I saw
       Kevin Cornish reach into to his waist band and grab his gun. He
       turned back towards Kevin Jones that’s when I saw Kevin Jones
       almost simultaneously pull out a gun. I heard gun shots and saw
       Kevin Cornish drop his gun and fall to the ground. When the
       shooting stopped, Kevin Jones started heading in the direction I
       was standing. I took off running up Hanover Street and kept going
       until I got to my grandmother’s house.

       On May 17, 2017 I was talking to a friend in the prison about the
       neighborhood, and he asked me if I knew certain people. He
       asked me if I knew Kevin Jones. I told him, I didn’t know him,
       but I witnessed when he caught his case. He told me Kevin Jones
       was in this prison.

       On May 30, 2017 I was in the prison’s library, with my friend, and
       Kevin Jones came in and we were introduced. I told him what
       I witnessed and he asked me if I would write an affidavit and
       testify to these facts.

Id., Ex. “1”.

       On July 24, 2017, without seeking the PCRA court’s leave, Jones filed

an amended PCRA petition and a memorandum of law. On September 12,

2017, the PCRA court entered a notice of its intent to dismiss the PCRA petition

____________________________________________


3  Burwell’s “Affidavit” is neither witnessed nor notarized.         PCRA Pet.,
7/4/2017, Ex. “1”.

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without a hearing.       Jones filed a response to the PCRA court’s notice on

October 4, 2017, but the PCRA court dismissed Jones’s PCRA petition as

untimely the next day. On October 17, 2017, Jones filed a “motion to rescind

final order of dismissal,” followed by a notice of appeal on November 2, 2017.4

       Jones now raises the following issues for our review:

       I.     [Jones] was denied Due Process of law and Equal Protection
       when the P.C.R.A. Court dismissed his petition as untimely filed
       when [he] gave detailed descriptions of how he received the new
       facts, when he met the author of the Affidavit, and presented the
       Affidavit to the court, and why he could not have ascertained these
       facts any time beforehand, and took the required steps to
       effectuate his pleadings[, w]hich satisfies the newly-discovered
       facts exception.

       II.    [Jones] was denied Due Process of law and Equal Protection
       when the P.C.R.A. Court failed to grant an evidentiary hearing, as
       [Jones] set forth allegations that if available, would have affected
       the entire evidentiary picture at trial. Moreover, now that they
       have become available, there is a reasonable probability that the
       presentation of these new facts would have altered the outcome
       at trial.

Jones’s Brief at 5.

       In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

the PCRA court and whether the ruling is free of legal error.” Commonwealth

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

____________________________________________


4  The PCRA court did not request, and Jones did not provide, a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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Generally, a petition for relief under the PCRA, including a second or

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

of sentence is final, unless the petition alleges and the petitioner proves one

of the three exceptions to the time limitations for filing the petition set forth

in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).5 Here, the PCRA

court concluded that it lacked jurisdiction over Jones’s third PCRA petition,

because the petition was untimely and failed to satisfy an exception to the

PCRA’s time bar.

       Jones’s judgment of sentence became final on December 16, 2002,

30 days after this Court affirmed. See Pa.R.A.P. 1113.6 Jones thus had one



____________________________________________


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

42 Pa.C.S. § 9545(b)(1).
6 The thirtieth day after November 14, 2002, was Saturday, December 14,
2002.    Therefore, Jones had until the next business day, Monday,
December 16, 2002, to file a timely petition. See 1 Pa.C.S. § 1908.

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year thereafter to file a PCRA petition – i.e., until December 16, 2003. 42

Pa.C.S. § 9545(b)(1). Jones filed the current petition on July 4, 2017, over

14 years late. Therefore, Jones’s petition was patently untimely.

      Nevertheless, Jones attempts to circumvent the time bar by asserting

the “newly discovered facts” exception under subsection 9545(b)(1)(ii). PCRA

Pet., 7/4/2017, at 3-4; Jones’s Brief at 11.     Jones contends that he was

“denied due process and equal protection of the law when the PCRA court

dismissed [his] petition as untimely filed” after he “presented the affidavit to

the court” and “gave detailed descriptions of how the new facts came about[,]”

including how he “met affiant[.]” Id. He continues that he could not have

“ascertained” the facts in Burwell’s affidavit “through the exercise of any due

diligence prior to May 30, 2017, the date when [he] met [Burwell].” Id. at 8.

Jones argues that, “[b]ased on the particular circumstances, to uncover facts

that may support a claim for collateral relief, [he] acted with as much due

diligence as anyone under these particular set of circumstances could.” Id.

at 16; see also Jones’s Reply Brief at 1 (“the newly-discovered facts . . . were

unknown, unknowable, and not obtainable to [Jones] until May 30, 2017”).

      “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. Fennell, 180 A.3d 778, 782 (Pa. Super.

2018) (en banc) (citation omitted).        “Due diligence demands that the


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petitioner   take   reasonable   steps    to     protect   his    own   interests.”

Commonwealth v. Robinson, 185 A.3d 1055, 1063 (Pa. Super. 2018) (en

banc) (citation omitted).

      A petitioner must explain why he could not have learned
      the new fact(s) earlier with the exercise of due diligence.
      This rule is strictly enforced. Additionally, the focus of this
      exception is on the newly discovered facts, not on a newly
      discovered or newly willing source for previously known facts.

Fennell, 180 A.3d at 782 (emphasis in original).

      In his third PCRA petition, Jones explained that he could not have

learned that Burwell was a witness until he met Burwell “by chance . . . in the

prison[’]s library.” PCRA Pet., 7/4/2017, at 4. Prior to that meeting Jones did

not know Burwell. Id. In his affidavit, Burwell stated that he was introduced

to Jones by a “friend in the prison[.]”        Id., Ex. “1”.     The circumstances

represented by Jones and Burwell suggest that Jones could not have learned

by the exercise of due diligence that Burwell was a witness. See Fennell,

180 A.3d at 782.

      While these circumstances could necessitate remand of this appeal to

the PCRA court for an evidentiary hearing, there is no reason to do so in the

current case. The section 9545(b)(1)(ii) exception is for “newly discovered

facts,” not newly discovered evidence or a new source of facts that should

have been known to the defendant. See Fennell, 180 A.3d at 782.

      Assuming Jones did not know of Burwell’s proposed testimony, Jones

should have known the facts Burwell alleged – i.e., that Jones fired his gun in

self-defense. Had Jones truly acted in self-defense, he would have known that


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at the time of his testimony at trial. However, his trial testimony contradicted

his present claim of self-defense, as did his assertion in a brief filed in this

Court in a prior appeal. The PCRA court explained:

      Here, in the matter now on appeal, [Jones] failed to set forth
      allegations sufficient to bring his motion or amended motion
      within the newly-discovered facts exception. [Jones] testified at
      trial that he believed that the man he shot in the back was one of
      the men who had robbed him at gunpoint the day before. N.T.[,]
      11/8/[19]99, [at] 11, 16-19, 21, 67-70, 73-74. [Jones] testified
      that he was angry and that he approached the man intending to
      retrieve the property that had been stolen from him. [Id.]2
         2  It should be noted that [Jones] represented to the
         Superior Court in his appeal from the dismissal of his second
         PCRA petition that his killing of the victim was a “textbook
         example” of a “coldly and deliberately executed” first-
         degree murder. [Jones, 121 A.3d 1145 (unpublished
         memorandum) at 4, quoting Jones’s Brief at 8.]

      [Jones] in no way claimed at trial that it was in self-defense that
      he shot the victim five times in the back and then two times as
      the victim lay on the ground. Thus, the new facts alleged by
      [Jones] in his motion and amended motion were that his motive
      was self-defense and that the victim had surreptitiously drawn a
      handgun from his waistband and wheeled around to face
      defendant who then began firing at the victim. See [PCRA Pet.],
      7/[4]/17, Exhibit “1” (affidavit of Jonathan David Ricketts
      Burwell). [Jones] failed to explain to this court why he could not
      have learned sooner with the exercise of due diligence that he had
      shot the victim in self-defense: [Jones]’s failure to do so meant
      that neither his motion nor his amended motion could be ruled to
      be within the newly-discovered facts exception set out at 42
      Pa.C.S.A. § 9545(b)(1)(ii).

PCRA Court Opinion, 11/9/2017, at 2-3.

      Having discerned no error of law, we affirm the order below.          See

Andrews, 158 A.3d at 1263.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/18




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