J-S61029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KHALIL MALIK WATSON                   :
                                       :
                   Appellant           :   No. 2061 EDA 2019

                Appeal from the Order Entered July 2, 2019
   In the Court of Common Pleas of Chester County Criminal Division at
                     No(s): CP-15-CR-0004377-2012

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KHALIL MALIK WATSON                   :
                                       :
                   Appellant           :   No. 2062 EDA 2019

                Appeal from the Order Entered July 2, 2019
   In the Court of Common Pleas of Chester County Criminal Division at
                     No(s): CP-15-CR-0004377-2012

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KHALIL MALIK WATSON                   :
                                       :
                   Appellant           :   No. 2063 EDA 2019

                Appeal from the Order Entered July 2, 2019
   In the Court of Common Pleas of Chester County Criminal Division at
                     No(s): CP-15-CR-0004377-2012
J-S61029-19


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                   FILED AUGUST 12, 2020

        Appellant, Khalil Malik Watson, appeals pro se from the order entered

on July 2, 2019, which dismissed his fifth petition filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On September 23, 2013, Appellant pleaded guilty to two counts of

attempted homicide and one count of resisting arrest. On that same day, the

trial court sentenced Appellant to serve an aggregate term of 11 to 22 years

in prison.    Appellant did not file a notice of appeal from his judgment of

sentence.

        On April 11, 2014, Appellant filed a timely, pro se PCRA petition and the

PCRA court appointed counsel to represent Appellant. However, appointed

counsel    petitioned    for    and   was      permitted   to   withdraw   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

dismissed Appellant’s first PCRA petition on September 16, 2014. PCRA Court

Order, 9/16/14, at 1.          Further, although Appellant filed a timely notice of

appeal from the PCRA court’s order, this Court dismissed Appellant’s appeal

on July 9, 2015, for failure to file a brief. Superior Court Order, 7/9/15, at 1.

        On July 24, 2015, Appellant filed a second PCRA petition. The PCRA

court dismissed Appellant’s second PCRA petition on October 14, 2015 as

untimely and, on June 14, 2016, this Court affirmed the PCRA court’s order.
____________________________________________


*   Former Justice specially assigned to the Superior Court.

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Commonwealth v. Watson, 153 A.3d 1108 (Pa. Super. 2016) (unpublished

memorandum) at 1-4.

       Appellant filed his third and fourth PCRA petitions on October 22, 2016

and July 24, 2017, respectively. The PCRA court dismissed Appellant’s third

petition on January 13, 2017 and dismissed Appellant’s fourth petition on

October 13, 2017.1 This Court affirmed the dismissal of Appellant’s fourth

petition on June 28, 2018. Commonwealth v. Watson, 183 A.3d 1124 (Pa.

Super. 2018) (unpublished memorandum) at 1-3.

       On December 28, 2018, Appellant filed the current PCRA petition, which

constitutes Appellant’s fifth petition seeking post-conviction collateral relief.

Within Appellant's petition, Appellant acknowledged that he filed his petition

more than one year after his judgment of sentence became final. However,

Appellant claimed that his petition was timely under the “newly recognized

constitutional right” exception to the PCRA's time-bar. Specifically, Appellant

claimed that he was entitled to relief under the United States Supreme Court’s

2018 decision in Carpenter v. United States, 138 S.Ct. 2206 (2018).

According to Appellant, the police conducted an “illegal[, warrantless] cell

phone ping[]” on him and, in Carpenter, the Supreme Court held that the

government must generally obtain a warrant before it is able to obtain

historical cell-site location information. See Appellant’s Fifth PCRA Petition,



____________________________________________


1 Appellant appealed the dismissal of his third petition but he voluntarily
discontinued his appeal.

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12/28/18, at 1-2.       Appellant claimed that he is now entitled to have his

convictions vacated and all evidence against him suppressed. See id.

       On April 4, 2019, the PCRA court appointed counsel to represent

Appellant. However, on June 12, 2019, counsel filed a no-merit letter and a

petition to withdraw. On July 2, 2019, the PCRA court dismissed Appellant’s

PCRA petition and granted counsel’s petition to withdraw. See PCRA Court

Order, 7/2/19, at 1. Appellant filed a timely notice of appeal. We now affirm

the dismissal of Appellant’s patently untimely, serial PCRA petition.2

       As our Supreme Court held, we “review an order granting or denying

PCRA relief to determine whether the PCRA court’s decision is supported by

evidence of record and whether its decision is free from legal error.”

Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).

       The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.        This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]



____________________________________________


2On November 25, 2019, we entered an order that stayed the current appeal
pending the en banc resolution of Commonwealth v. Johnson, ___ A.3d
___, 2020 WL 3869723 (Pa. Super. 2020) which concerned the proper
application of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) in light
of Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019) (reading
Walker as a mandate to quash appeal unless notice of appeal contains only
one trial court docket number). On July 9, 2020, the en banc Court decided
Johnson and we can thus now decide the current appeal.


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petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since

the time-bar implicates the subject matter jurisdiction of our courts, we are

required to first determine the timeliness of a petition before we consider the

underlying claims. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999).

Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in nature
        and, accordingly, a PCRA court is precluded from considering
        untimely PCRA petitions. See, e.g., Commonwealth v.
        Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that “given
        the fact that the PCRA's timeliness requirements are
        mandatory and jurisdictional in nature, no court may properly
        disregard or alter them in order to reach the merits of the
        claims raised in a PCRA petition that is filed in an untimely
        manner”); Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa.
        1999) (holding that where a petitioner fails to satisfy the
        PCRA time requirements, this Court has no jurisdiction to
        entertain the petition). [The Pennsylvania Supreme Court
        has] also held that even where the PCRA court does not
        address the applicability of the PCRA timing mandate, th[e
        court would] consider the issue sua sponte, as it is a
        threshold question implicating our subject matter jurisdiction
        and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

      In the case at bar, Appellant’s judgment of sentence became final on

October 24, 2013, when his time for filing a notice of appeal to this Court

expired. Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Appellant then had

until October 24, 2014 to file a timely PCRA petition.           42 Pa.C.S.A.

§ 9545(b)(1). As Appellant did not file his current petition until December 28,



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J-S61029-19



2018, the current petition is manifestly untimely and the burden thus fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case.      See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements of

the relied-upon exception).

      Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date
        the judgment becomes final, unless the petition alleges and
        the petitioner proves that:

                                     ...

            (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.

                                     ...

        (2) Any petition invoking an exception provided in paragraph
        (1) shall be filed within one year of the date the claim could
        have been presented.

42 Pa.C.S.A. § 9545(b).

      According to Appellant, in Carpenter v. United States, the United

States Supreme Court recognized a new constitutional right and, in

accordance with this new constitutional right, Appellant is now entitled to the

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vacation of his convictions and the suppression of all evidence against him.

This claim fails.

      The “newly recognized constitutional right” exception to the PCRA’s

time-bar is codified in 42 Pa.C.S.A. § 9545(b)(1)(iii). As our Supreme Court

has explained:

         Subsection (iii) of Section 9545(b)(1) has two requirements.
         First, it provides that 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
         provided in this section. Second, it provides that the right
         “has been held” by “that court” to apply retroactively. Thus,
         a petitioner must prove that there is a “new” constitutional
         right and that the right “has been held” by that court to apply
         retroactively. The language “has been held” is in the past
         tense. These words mean that the action has already
         occurred, i.e., “that court” has already held the new
         constitutional right to be retroactive to cases on collateral
         review. By employing the past tense in writing this provision,
         the legislature clearly intended that the right was already
         recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007), quoting

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (internal

corrections omitted).

      In this case, even assuming that Carpenter announced a new

constitutional right, neither the United States Supreme Court nor the

Pennsylvania Supreme Court has held that the right applies retroactively to

cases on collateral review. Therefore, Appellant cannot rely upon Carpenter

to avoid the PCRA’s one-year time-bar.       Further, since Appellant has not

attempted to plead any other exception to the time-bar, we conclude that


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Appellant’s petition is time-barred and that our “courts are without jurisdiction

to offer [Appellant] any form of relief.” Commonwealth v. Jackson, 30 A.3d

516, 523 (Pa. Super. 2011). Therefore, we affirm the PCRA court’s order,

which dismissed Appellant’s fifth PCRA petition without a hearing.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2020




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