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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

                 v.


    ANTHONY DUANE SMITH

                      Appellant            :   No. 671 WDA 2018

                    Appeal from the PCRA Order April 9, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0016177-1999


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY DUBOW, J.:                            FILED AUGUST 13, 2019

        Appellant, Anthony Duane Smith, appeals from the April 9, 2018 Order

dismissing as untimely his fourth Petition filed pursuant to the Post Conviction

Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        On February 26, 2001, following a bench      trial, the court convicted

Appellant of First -Degree Murder' and sentenced him to life imprisonment

without parole. This Court affirmed the judgment of sentence on May 7, 2004,

and our Supreme Court denied Smith's petition for allowance of appeal on

October 12, 2004. Commonwealth v. Smith, 855 A.2d 137 (Pa. Super.

2004) (unpublished memorandum), appeal denied, 860 A.2d 123 (Pa. 2004).

Appellant did not seek review with the United States Supreme Court.          His




'   18 Pa.C.S. § 2502(a).


      Retired Senior Judge assigned to the Superior Court.
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Judgment of Sentence, therefore, became final on January 10, 2005.                        42

Pa.C.S.   §   9545(b)(3); U.S.Sup.Ct.R. 13.

        Appellant subsequently filed three unsuccessful PCRA Petitions. On June

9, 2017, Appellant filed the instant counseled PCRA Petition, his fourth.                  In

this Petition, Appellant asserted, inter alia, that he          is   entitled to relief based

on newly discovered evidence: (1) an affidavit from Christopher Williams,

which states that his son, Darius Williams, admitted to murdering the victim;

and (2) an affidavit from witness, John Balistrieri, Sr., presenting additional

alibi information that he did not testify to at trial. Petition for Relief under the

Post -Conviction      Relief   Act   ("PCRA       Petition"),    filed     6/9/17,   at   2-5

(unpaginated).

        On March      1,   2018, the PCRA court issued               a   Notice pursuant to

Pa.R.Crim.P. 907, advising Appellant of its intent to dismiss his Petition

without   a   hearing. Appellant filed   a   timely Response. On April 9, 2018, after

considering Appellant's Response, the PCRA court dismissed Appellant's

Petition as untimely.

        Appellant timely appealed. Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

        Appellant raises the following issues on appeal:

        1. Did the PCRA Court err by dismissing [Appellant's] petition as
           untimely filed?

        2. Did  the PCRA Court err by dismissing [Appellant's] claims for
           relief without a hearing?


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         3. Should   the case be remanded due to second PCRA counsel's
            failure to file a timely PCRA petition?

Appellant's Br. at 7.

         We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court's findings and whether its order is otherwise free of

legal error.   Commonwealth v. Fears, 86 A.3d 795, 803                      (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007). We give no such deference, however, to the court's legal

conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

         Before addressing the merits of Appellant's claims, we must first

determine        whether    we    have    jurisdiction        to     entertain     this   PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of       a PCRA    petition   is a   jurisdictional requisite).

The PCRA's timeliness requirements are jurisdictional in nature, and neither

this Court nor the PCRA court have the authority to address the merits of the

issues      raised   if    the   appellant    did      not         timely   file   the    PCRA

petition. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

         Under the PCRA, any petition "including       a   second or subsequent petition,

shall be filed within one year of the date the judgment becomes                    final[.]" 42
Pa.C.S.    §   9545(b)(1). A Judgment of Sentence becomes final "at the

conclusion of direct review, including discretionary review in the Supreme

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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.                   §   9545(b)(3).

        Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S.      §   9545(b)(1). Although not specifically stated, Appellant's arguments

implicate the exception provided by subsection 9545(b)(1)(ii), the "newly

discovered facts exception."             This timeliness exception requires the PCRA

petitioner to plead and prove that: (1) the facts upon which the claim was

predicated were unknown; and (2) the facts could not have been ascertained

by     the       exercise   of     due   diligence.   42          Pa.C.S.      §   9545(b)(1)(ii);

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

an appellant who invokes an exception must file his claim within 60 days of

the date the claim could have been presented.2 Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000).

        When there is an outstanding appeal on                      a    prior PCRA petition,     a


subsequent PCRA petition cannot be filed until the resolution of review of the

pending PCRA petition.           Id. Thus, the subsequent petition must             be filed within

60 days of the date of the order which finally resolves the previous PCRA




2  See 42 Pa.C.S § 9545(b)(2). Effective December 24, 2018, Section
9545(b)(2) now provides that, for claims arising on December 24, 2017, or
after, "[a]ny petition invoking an exception    shall be filed within one year
                                                      .   .   .


of the date the claim could have been presented."
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petition-the first date the claim could have been presented. Id. (citing 42
Pa.C.S.    §   9545(b)(2)).

        As stated above, Appellant's Judgment of Sentence became final on

January 10, 2005.         Thus, to be timely, Appellant needed to file his PCRA

Petition by January 10, 2006. Appellant's fourth PCRA Petition, filed on June

9, 2017, more than twelve years after his Judgment of Sentence became final,

is   facially untimely.

        Appellant avers that newly discovered facts render this Petition

reviewable.        First, he asserts that Balistrieri,      a   witness who testified at

Appellant's trial, would have provided additional testimony to support an alibi

defense if he had been properly questioned. Appellant's Br. at 16-17.

        This claim does not meet the newly discovered facts exception.

Balistrieri's willingness to provide information that he could have provided at

the time of trial does not present       a   newly discovered fact.      Rather, he is   a


known source who wants to supplement his prior testimony. Thus, the facts

were not unknown and could have been ascertained by the exercise of

diligence. See, e.g., Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa.

2004) (concluding that information contained in an affidavit from                 a   trial

witness did not meet newly discovered facts exception because the exception

focuses on newly discovered facts, not on         a   newly willing source for previously

known facts); Commonwealth v. Brown, 111 A.3d 171, 178 (Pa. Super.




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2015) (concluding witness's willingness to come forward and elaborate on his

trial testimony did not meet the newly discovered facts exception)

        Appellant also claims as   a    newly discovered fact that he recently learned

that Christopher Williams' son, Darius, admitted to killing the victim.

Appellant's Br. at 16. However, he has not explained how and when he learned

of these details. Consequently, Appellant has not pleaded and proved that he

could not have ascertained this information by the exercise of due diligence.

See 42 Pa.C.S.      §   9545(b)(1)(ii); Bennett, supra at 1272; see e.g.,

Commonwealth v. Holmes, 905 A.2d 507, 510-11                        (Pa. Super. 2006)

(concluding that the appellant did not sustain his burden of pleading and

proving the newly discovered evidence exception because the affidavit in

which the witness attested that someone else murdered the victim did not

disclose when the witness first informed the appellant of this information).

        Appellant also argues that the newly discovered facts exception applies

because his second PCRA counsel provided ineffective assistance by failing to

file his second PCRA petition timely. Appellant's Br. at 18. However, he

concedes that he has raised this issue for the first time on appeal.               Id. at   7.

Because     Appellant   failed     to    raise   this   claim   below,   it   is    waived.

See Pa.R.Crim.P. 902(B) (stating that that failure to state each ground relied

upon in support of the requested relief in the PCRA petition "shall preclude the

defendant from raising that ground in any proceeding for post -conviction

collateral relief"); Pa.R.A.P. 302(a) ("Issues not raised in the lower court


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are waived and       cannot     be     raised   for   the first time on appeal");

Commonwealth v. Burton, 936 A.2d 521, 525                   (Pa.   Super.   2007)

("exceptions to the time bar must be pled in the PCRA petition, and may not

be raised for the   first time on appeal").

        We conclude that Appellant has not pleaded and proved the applicability

of any of the PCRA's timeliness exceptions and, therefore, we are without

jurisdiction to consider the merits of this appeal. The    PCRA    court properly

dismissed Appellant's PCRA Petition as untimely, and its Order is free of legal

error.3

        Order affirmed.

        Judge Colins joins the memorandum.

        Judge McLaughlin concurs in result.




3  Additionally, Appellant's claim that the PCRA court violated Pa.R.Crim.P.
905(B) and 907 by not explaining the reason behind its intent to dismiss
without a hearing and by not ordering an amended petition so he could correct
any defects is meritless. Appellant's Br. at 13. The record shows that after the
PCRA court reviewed Appellant's Petition and the Commonwealth's Answer,
the court complied with Rule 907 by giving notice to Appellant of its "intention
to dismiss the [] matter without a hearing as [the] Petition [was] barred by
the one (1) year statute of limitations." Notice of Intention to Dismiss
Pursuant to Pa.R.Crim.P. 907, filed 3/1/18. See Pa.R.Crim.P. 907 (stating that
if the PCRA court finds no relief is due based on its review of the petition and
record, "the judge shall give notice to the parties of the intention to dismiss
the petition and shall state in the notice the reasons for the dismissal").
Further, the court was not required to order an amended petition pursuant to
Rule 905(b) because the Petition was not defective. See Pa.R.Crim.P. 905,
cmt. (defining "defective" as "inadequate, insufficient, or irregular").

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Judgment Entered.




J   seph D.
Prothonotary
              Seletyn,r
                    Es




Date: 8/13/2019




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