J-S43032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

TYRONE TOMLIN

                          Appellant                    No. 2855 EDA 2014


               Appeal from the PCRA Order September 3, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0201421-1998


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                         FILED JULY 22, 2015

        Appellant, Tyrone Tomlin, appeals from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his serial petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546.     On February 16, 2000, a jury convicted Appellant of third-degree

murder and related offenses.         The court sentenced Appellant on April 26,

2000, to an aggregate term of 23½ to 47 years’ imprisonment. This Court

affirmed the judgment of sentence on April 9, 2001, and our Supreme Court

denied petition for allowance of appeal on August 20, 2001.                See

Commonwealth v. Tomlin, 778 A.2d 739 (Pa.Super. 2001), appeal denied,

566 Pa. 681, 784 A.2d 117 (2001).

        On September 13, 2001, Appellant timely filed his first PCRA petition,

which the PCRA court ultimately denied.          This Court affirmed, and our
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Supreme Court denied allowance of appeal. Appellant subsequently filed a

second PCRA petition, which was unsuccessful.     Appellant filed the current

PCRA petition pro se on December 5, 2012. On August 7, 2014, the PCRA

court issued Rule 907 notice; and Appellant responded pro se on August 22,

2014. The PCRA court dismissed Appellant’s petition on September 3, 2014.

Appellant timely filed a notice of appeal on October 1, 2014.        No Rule

1925(b) statement was ordered or filed.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at

the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused.         42 Pa.C.S.A. §

9545(b)(1)(i)-(iii). A petitioner asserting a timeliness exception must file a

petition within sixty days of the date the claim could first have been

presented. 42 Pa.C.S.A. § 9545(b)(2). Section 9545(b)(1)(ii) requires the

petitioner to allege and prove facts unknown to him, which he could not

have ascertained by the exercise of due diligence.      See 42 Pa.C.S.A. §

9545(b)(1)(ii).


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      Instantly, Appellant’s judgment of sentence became final on November

18, 2001, upon expiration of the time to file a petition for writ of certiorari.

Appellant filed his current petition on December 5, 2012, more than eleven

years after the judgment became final; thus, it is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “after discovered

facts” exception under Section 9545(b)(1)(ii) by contending a witness had

provided Appellant with a statement of the witness’ version of the events

that led to Appellant’s convictions. Nevertheless, Appellant failed to prove

how, with the exercise of due diligence, he could not have discovered the

evidence earlier, when the witness’ unsworn statement indicated he had

been with Appellant on the night of the crimes.          See 42 Pa.C.S.A. §

9545(b)(1)(ii).    Thus, Section 9545(b)(1)(ii) cannot serve to excuse

Appellant’s otherwise untimely petition.     See id.    Accordingly, the PCRA

court properly dismissed Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2015




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