J-S76036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    WENDELL GRAVES,

                             Appellant                 No. 3275 EDA 2016


                  Appeal from the PCRA Order October 11, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0510551-2000


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED FEBRUARY 16, 2018

        Appellant, Wendell Graves, appeals from the order denying his fifth

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

§§ 9541-9546. We affirm.

        The PCRA court described the facts pertinent to this appeal, as follows:

               On March 12, 2000, Appellant got into a physical altercation
        with Shawn Davis and decedent, Samuel Butler.            Appellant
        sustained a broken jaw as a result of the fight. On March 15,
        2000, at 7:50 p.m., Mr. Curtis Williams was on the corner of
        Carlisle Street and Allegheny Avenue when he heard sixteen
        shots. After ducking, Mr. Williams ran back to his house. On the
        way back to his house, Mr. Williams passed an alley where he saw
        Appellant with a gun cocked and out of ammo. Appellant ran into
        the house, left and fled in a car.        After returning to the
        neighborhood, Mr. Williams saw Appellant shake hands and be
        congratulated by members of the neighborhood. At the time Mr.
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*   Retired Senior Judge assigned to the Superior Court.
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        Williams heard the sixteen gunshots, both Mr. Butler and Mr. Davis
        were hit by gunfire at 1414 West Allegheny Avenue while getting
        ready to enter the front door of a friend’s home. Mr. Davis
        testified he saw Appellant fire the shots at him and Mr. Butler while
        standing five to ten steps away at the intersection of Rosewood
        and Allegheny Avenues. . . . When visited by Detective Gregory
        Rodden of the homicide division, Mr. Davis identified Appellant as
        the shooter via photo array.

(PCRA Court Opinion, 9/01/17, at 3) (footnote omitted).

        On May 23, 2001, the jury convicted Appellant of murder of the first

degree, attempted murder, and possession of an instrument of crime. The

trial court sentenced him to an aggregate term of life imprisonment on July

12, 2001. Appellant filed a timely appeal that this Court dismissed for his

failure to file a docketing statement pursuant to Rule 3517. See Pa.R.A.P.

3517.    Thereafter, the PCRA court granted Appellant permission to appeal

nunc pro tunc and he timely appealed. A panel of this Court affirmed the

judgment of sentence on August 19, 2003, and the Pennsylvania Supreme

Court denied further review on December 30, 2003. (See Commonwealth

v. Graves, 833 A.2d 1145 (Pa. Super. 2003) (unpublished memorandum),

appeal denied, 841 A.2d 529 (Pa. 2003)).

        The PCRA court described the ensuing PCRA litigation as follows:

               On December 17, 2004,[1] Appellant filed a pro se [PCRA]
        petition . . . . On October 7, 2005, the petition was denied. The
        Superior Court affirmed the denial on June 30, 2006[,] and the
        Supreme Court denied Appellant’s petition for allowance of appeal
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1The certified record and docket provided to the Court do not contain the
December 17, 2004 filing. However, this does not affect our disposition, and
we will presume the accuracy of the date provided by the PCRA court.

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       on November 27, 2006. (See Commonwealth v Graves, 905
       A.2d 1043 (Pa. Super. 2006) (unpublished memorandum), appeal
       denied, 912 A.2d 837 (Pa. 2006)). Appellant filed his second PCRA
       petition on January 24, 2007. On [October 13], 2007, that
       petition was dismissed. No appeal was filed.

              Appellant filed his third PCRA [petition] on December 16,
       2010. On October 31, 2011, the [PCRA court] denied the PCRA
       as untimely. Appellant did not appeal. Appellant filed [his fourth]
       PCRA [petition] on January 17, 2012[,] seeking nunc pro tunc
       reinstatement of his appellate rights from the denial of his third
       petition[,] alleging that he did not receive the PCRA [c]ourt’s order
       dismissing his petition until December 16, 2011, after the time for
       filing a notice of appeal had expired. On June 26, 2012, the PCRA
       court granted reinstatement of his appellate rights nunc pro tunc
       to the Superior Court. Appellant filed a timely notice of appeal on
       July 10, 2012. The Superior Court dismissed his appeal on
       February 19, 2013. (See Commonwealth v. Graves, 68 A.3d
       365 (Pa. Super. 2013) (unpublished memorandum)).                  The
       [Pennsylvania] Supreme Court denied Appellant’s [p]etition for
       [a]llowance of [a]ppeal on July 24, 2013. (See Commonwealth
       v. Graves, 69 A.3d 600 (Pa. 2013)).

(PCRA Ct. Op., at 2) (record citations provided).

       On June 2, 2015, Appellant filed his fifth petition pro se. On November

24, 2015, retained counsel filed an amended petition. On October 11, 2016,

the PCRA court denied the petition after a hearing.             Appellant timely

appealed.2

       Appellant raises one question for our review: “Did the [PCRA] court err

in denying [him] a new trial because the testimony of Alexander Maldonado

constituted newly discovered evidence and the record does not support the


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2 On November 15, 2016, Appellant filed a timely statement of errors
complained of on appeal pursuant to the PCRA court’s order. The court filed
an opinion on September 1, 2017. See Pa.R.A.P. 1925.

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[PCRA] court’s determination that the testimony of Alexander Maldonado is

incredible?” (Appellant’s Brief, at 2).

             We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. We grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford no
      such deference to its legal conclusions. Further, where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

      Further, it is well-settled that:

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply
      to all PCRA petitions, regardless of the nature of the individual
      claims raised therein.     The PCRA squarely places upon the
      petitioner the burden of proving an untimely petition fits within
      one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations and

footnote omitted).




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      In the case sub judice, Appellant’s judgment of sentence became final

on March 29, 2004, at the expiration of the time for him to seek review of his

judgment of sentence in United States Supreme Court. See 42 Pa.C.S.A. §

9545(b)(3); U.S. Sup. Ct. R. 13. Therefore, he had one year from that date

to file a petition for collateral relief unless he pleaded and proved that a timing

exception applied. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Hence, Appellant’s

current petition, filed over eleven years later, on June 2, 2015, is untimely on

its face unless he pleads and proves one of the statutory exceptions to the

time-bar.

      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-recognized

constitutional right. See id. When a petition is filed outside the one-year

time limit, petitioners must plead and prove the applicability of one of the

three exceptions to the PCRA timing requirements. See Commonwealth v.

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If the petition is

determined to be untimely, and no exception has been pled and proven, the

petition must be dismissed without a hearing because Pennsylvania courts are

without jurisdiction to consider the merits of the petition.”) (citation omitted).

Additionally, a PCRA petition invoking one of these statutory exceptions must




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“be filed within 60 days of the date the claim could have been presented.” 42

Pa.C.S.A. § 9545(b)(2).

      Here, Appellant attempts to argue the applicability of the newly-

discovered evidence exception to the PCRA’s time-bar.            See id. at §

9545(b)(1)(ii); (see also Appellant’s Brief, at 5-6). However, his argument

fails to establish the applicability of the claimed exception.

      Section 9545(b)(1)(ii)’s [previously unknown facts] exception
      requires the facts upon which the [underlying] claim is predicated
      were not previously known to the petitioner and could not have
      been ascertained through due diligence. . . . [T]he exception set
      forth in subsection (b)(1)(ii) does not require any merits analysis
      of the underlying claim. Rather, the exception merely requires
      that the facts upon which such a claim is predicated must not
      have been known to appellant, nor could they have been
      ascertained by due diligence.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert.

denied, 555 U.S. 916 (2008) (citations and quotation marks omitted;

emphasis added).

      Instantly, Appellant’s petition alleges previously unknown facts based

on the discovery of witness Alexander Maldonado, whom he met in prison.

Maldonado provided him with an affidavit that stated he believed Curtis

Williams committed the shootings because he saw Williams running from the

direction of the gunshots with “his arm tucked in[,]” and he was wearing a

change of clothes later that night. (Alexander Maldonado Affidavit, 5/24/16;

see Appellant’s Pro Se PCRA Petition, 6/02/15, at 3). However, the focus of

the previously unknown facts exception “is on [the] newly discovered facts,


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not on a newly discovered or newly willing source for previously

known facts.” See Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa.

2008) (internal quotation mark and emphasis omitted; emphasis added).

       Here, the underlying “fact” that Appellant allegedly did not shoot Butler

and Davis, if true, was information available to him and cannot be considered

to be previously unknown. See id.; Abu-Jamal, supra at 1268. Additionally,

as Appellant admits, Williams testified as an eyewitness at trial.        (See

Appellant’s Brief, at 7). Therefore, Appellant also knew the facts on which

Maldonado based his opinion: Williams was at the scene, he ran away after

the shooting, and he changed his clothes. (See N.T. PCRA Hearing, 10/11/16,

at 7, 10); see also Marshall, supra at 720; Abu-Jamal, supra at 1268.

       Accordingly, we conclude Appellant has failed to establish the existence

of a previously unknown fact that could not have been ascertained by the

exercise of due diligence, as required by Section 9545(b)(1)(ii).        Hence,

because Appellant has failed to plead and prove the applicability of an

exception to the PCRA time-bar, we affirm the PCRA court’s denial of his

petition.3    See Rykard, supra at 1183; Johnston, supra at 1126.

Appellant’s issue lacks merit.

       Order affirmed.



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3 Our analysis differs from that of the PCRA court. However, we may affirm
its decision on any basis. See Greenberg v. McGraw, 161 A.3d 976, 989
n.12 (Pa. Super. 2017).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/18




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