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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                         :
                                         :
                                         :
DENNIS MADISON                           :
                                         :
                     Appellant           :   No. 2357 EDA 2017

                 Appeal from the PCRA Order July 10, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0007654-2010


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.:                               FILED JUNE 18, 2018

        Dennis Madison appeals pro se from the July 10, 2017 order

dismissing his PCRA petition as untimely. We affirm.

        We glean the facts giving rise to the underlying convictions from the

preliminary hearing transcript and the guilty plea colloquy.   Shortly before

midnight on September 1, 2009, Kymeen Bennett was shot and killed while

he was standing next to the open window of a truck occupied by Michael

Lane on Tenth Street near the intersection with Booth Street in Chester City,

Pennsylvania.      He sustained multiple gunshot wounds to the back of the

head.     Mr. Lane located his firearm and returned fire.       He identified

Appellant, whom he had known for more than fifteen years, as the shooter,

and stated that was wearing a black hoodie and black jeans and holding a

semi-automatic weapon.       Mr. Lane saw two other persons with Appellant,

but he could not identify them.

* Retired Senior Judge Assigned to the Superior Court.
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      Near the victim’s body, police found three 9mm shell casings,

consistent with Mr. Lane’s weapon.        On the corner of Tenth and Booth

Streets, the investigators located twelve 7.62 shell casings, which are

typically fired from assault weapons, and twelve .22 caliber shell casings.

This evidence was submitted for ballistics analysis.

      One week later, Detective Eugene Solgeugene III, of the Wilmington

Delaware Police Department, was conducting a search of a house at 510

East Ninth Street in Wilmington. Kevin Martin was present at the time of the

search. Police recovered several firearms, including a .22 caliber JC Higgins

rifle that ballistics linked to the .22 caliber shell casings found at the scene of

the Chester City homicide.      Thereafter, Mr. Martin gave a tape-recorded

statement to police in which he implicated himself and Appellant in the

shooting, and identified Appellant as the shooter. There was a third person

involved, whom he knew only as Appellant’s cousin, but who was identified

later as Amir Tucker.    Martin’s statement confirmed Mr. Lane’s account of

the shooting. A criminal complaint was filed charging Appellant, Martin, and

Tucker with criminal homicide, criminal conspiracy, and other related

offenses, and warrants issued for their arrest.

      Appellant and Martin were scheduled for a joint trial. Appellant filed a

motion to suppress his oral and written statements to police, as well as a

photographic identification. Co-defendant Martin filed a motion to suppress

the .22 rifle that was obtained pursuant to search warrant and connected

through ballistics to the homicide herein. At a hearing on August 8, 2011,

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all motions were either withdrawn or denied. Appellant’s counsel moved to

sever his case from co-defendant Martin’s case based on the Bruton1 issue

presented by his statement implicating Appellant. The court intimated that

Martin’s statement would be redacted to remove all references to Appellant,

but did not formally rule on the severance motion.

       On September 30, 2011, Appellant entered a negotiated guilty plea to

third-degree murder and criminal conspiracy to commit murder, and the

agreed-upon sentence of seventeen and one-half years to forty years in

prison was imposed.2 Appellant did not file a post-sentence motion nor seek

to withdraw his plea. He did not file a direct appeal.

       Almost two years later, on July 2, 2013, Appellant filed a motion for

reconsideration of his sentence, which was denied as untimely by order

dated that same day.3 Appellant filed a pro se PCRA petition on November

10, 2016, which was treated as his first petition. Counsel was appointed. In

lieu of an amended petition, counsel prepared and served upon Appellant a

____________________________________________


1 Bruton v. United States, 391 U.S. 123 (1968) (precluding admission at
joint trial of co-defendant’s confession implicating defendant as violative of
defendant’s Sixth Amendment right of confrontation).

2  Sixteen charges, including first-degree murder and conspiracy to commit
first-degree murder, and numerous firearm violations, were nolle prossed as
part of the negotiated plea.

3 This untimely motion for reconsideration should have been treated as a
PCRA petition, and counsel should have been appointed to file an amended
petition. We note, however, that even that petition was facially untimely.



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no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en

banc), and filed an application to withdraw as counsel. On June 16, 2017,

the PCRA court, following review of counsel’s no-merit letter, granted

counsel’s application to withdraw, and issued notice to Appellant of its intent

to dismiss his petition without a hearing in twenty days.

       Appellant filed objections to the proposed dismissal, and alleged that,

after filing his pro se petition, he “uncovered potentially exculpatory after-

discovered evidence which was unavailable to Petitioner during his trial, by

means of a signed unsworn affidavit from Petitioner’s co-defendant, Keith

Martha, which in essence, outlines recantation testimony and exonerate[s]

Petitioner of any involvement in the incident in question.”4         Defendant’s

Objections to the Commonwealth’s Notice of Intent to Dismiss PCRA Petition

Without a Hearing, 6/30/17, at 1-2. He averred that this newly-discovered

fact was discovered in June 2017.              Appended to his Objections was an

“Unsworn Affidavit” purportedly signed by Kevin Martha, in which the affiant

stated that his statements implicating Appellant were false, that they were

made in retribution for Appellant’s involvement with Kevin Martha’s


____________________________________________


4  Appellant’s co-defendants were Kevin Martin and Amir Tucker. In his
Objections, Appellant referred to his co-defendants as “Keith Martha” and
“Kevin Martha.” It is unclear from the record if that person is Kevin Martin,
although Kevin Martin was Appellant’s co-defendant, and he made
statements to police that implicated Appellant.



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girlfriend, and that Appellant was not with him or involved in the shooting.

Appellant asserted that this affidavit from his co-defendant recanting his

prior statement constituted a newly-discovered fact for purposes of the

timeliness exception.

      On July 10, 2017, the PCRA court dismissed Appellant’s petition

without a hearing. Appellant timely appealed and complied with the court’s

order directing him to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and the PCRA court issued its opinion. Appellant

presents four issues for our review:

   (A)   Did the PCRA err in denying [Appellant’s] PCRA petition where
         he sought to withdraw his guilty plea on the basis that trial
         counsel failed to review and explain all of the elements of the
         crimes for which he pled guilty to; and whether the lower
         court erred by stating the [Appellant] should plead guilty
         rather than risk receiving a life sentence absent defense
         counsel’s objection?

   (B)   Whether [Appellant’s] PCRA [petition] should be granted
         under the newly discovered evidence exception to the
         statutory time bar?

   (C)   Whether PCRA counsel was ineffective for failing to amend
         [Appellant’s] pro se PCRA petition to include a witness’s
         recantation of a statement made to police that implicated
         [Appellant] as the assailant in this crime.

   (D)   Whether the lower court abused its discretion when it
         impermissibly relied on the charges as an aggravated factor,
         and failed to consider mitigating factors and imposed an
         aggregated sentence of 17 1/2 to 40 years in which were
         manifestly excessive under the circumstances.

Appellant’s brief at 4.




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       In reviewing the denial of PCRA relief, we must determine “whether

the PCRA court’s determination is supported by the evidence of record and

free of legal error.”     Commonwealth v. Holt, 175 A.3d 1014, 1017

(Pa.Super. 2017). Preliminarily we must determine, however, whether the

PCRA    petition   is   timely,   as   that   affects   our   jurisdiction.   See

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008). A

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

sentence becomes final. 42 Pa.C.S. § 9545(b)(1). The one-year time bar

can “only be overcome by satisfaction of one of the three statutory

exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)—(iii).”        Commonwealth

v. Spotz, 171 A.3d 675, 678 (Pa. 2017). “Questions regarding the scope of

the statutory exceptions to the PCRA’s jurisdictional time-bar raise questions

of law; accordingly, our standard of review is de novo.” Commonwealth v.

Robinson, --A.3d--, 2018 PA Super 109 (Pa.Super. 2018) (en banc)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 n.1 (Pa. 2006)).

       Appellant’s judgment of sentence became final on Monday October 31,

2011, when the thirty-day period for seeking direct review expired. Thus,

any PCRA petition, in order to be timely, had to have been filed within one

year of that date, or by October 31, 2012. Appellant’s petition herein, filed

more than four years later, is patently untimely. Therefore, unless Appellant

has pled and proved an exception to the time-bar, he is not entitled to relief.

Those exceptions are:


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      (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)(i)-(iii). Additionally, any petition seeking to invoke

one of these three exceptions “shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Appellant avers that his PCRA petition is timely under the exception for

newly-discovered facts. As such, he was required to establish that the fact

upon which he based his claim was unknown to him and that he could not

have discovered it earlier with the exercise of due diligence. He provided an

“Unsworn Affidavit” from someone identified as Keith or Kevin Martha, who

supposedly participated in the crime. The affiant represented therein that he

implicated Appellant in statements he made to police, but that he was

recanting those statements and exculpating Appellant.

      The PCRA court addressed the affidavit and rejected Appellant’s

characterization of it as recantation testimony, noting that since Appellant

pled guilty, the affiant did not testify. The court cited Commonwealth v.



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Sattazahn, 869 A.2d 529 (Pa.Super. 2005), for the proposition that the

newly-discovered facts exception is for facts unknown to the petitioner, and

that could not have been ascertained with the exercise of due diligence. The

PCRA court characterized the affiant’s retraction as “a newly discovered or

newly willing source for previously known facts[,]” not newly-discovered

facts.     PCRA Court Opinion, 8/30/17, at 4 (citing Commonwealth v.

Marshall, 947 A.2d 714 (Pa. 2008).        Moreover, the court concluded that

Appellant made no showing of due diligence.          Thus, he could not avail

himself of the exception, and his petition was untimely.

         The record supports the PCRA court’s finding that the newly-

discovered facts exception did not render Appellant’s petition timely.     This

Court recently reiterated in Commonwealth v. Shannon, --A.3d-- , 2018

PA Super 94 *14 (Pa.Super. 2018), that to fall within the timeliness

exception for newly-discovered facts, “the factual predicate of the claim

must not be of public record and must not be facts that were previously

known but are now presented through a newly discovered source.”

Moreover, while “there need not be a direct connection between the newly-

discovered facts and the claim asserted[,]” “the statutory language in 42

Pa.C.S. § 9545(b)(1)(ii) requires there be some relationship between the

two.” Id.

         Appellant’s alleged newly-discovered fact, the June 2017 retraction of

Keith/Kevin Martha, cannot support the timeliness of his November 2016


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PCRA petition because it is unrelated to the claims raised in the PCRA

petition.   Appellant alleged in his November petition that counsel was

ineffective relative to the negotiated guilty plea because he failed to explain

the elements of the offenses to which he was pleading guilty. Appellant also

challenged the legality of his sentence and maintained that he was eligible

for additional credit for time served. The alleged newly-discovered fact, i.e.,

that Keith/Kevin Martha retracted his statement implicating Appellant, is

unrelated to any of these claims. See Shannon, supra.

      For the foregoing reasons, we affirm the PCRA court’s determination

that Appellant’s November 2016 PCRA petition was untimely. Since we lack

jurisdiction, we do not reach the merits of Appellant’s petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/18




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