J-S10021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALFRED DILL,

                            Appellant                 No. 3549 EDA 2014


            Appeal from the PCRA Order Entered November 17, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1105921-1982


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 25, 2016

         Appellant, Alfred Dill, appeals pro se from the post-conviction court’s

November 17, 2014 order dismissing, as untimely, his fourth petition under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

         On July 16, 1983, Appellant was convicted by a jury of second-degree

murder, robbery, criminal conspiracy, and possessing an instrument of crime

(PIC).     Prior to sentencing, the court granted Appellant’s motion for an

arrest of judgment pertaining to his conviction for PIC. Appellant was then

sentenced to an aggregate term of life imprisonment.          He filed a timely

direct appeal, and this Court affirmed his judgment of sentence on April 10,



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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1987. Commonwealth v. Dill, No. 00102 Philadelphia 1985, unpublished

memorandum (Pa. Super. filed April 10, 1987).

      Over the next 25 years, Appellant filed three PCRA petitions, all of

which were denied. On March 1, 2013, he filed his fourth pro se petition,

which underlies the instant appeal.     The PCRA court issued a Pa.R.Crim.P.

907 notice of its intent to dismiss Appellant’s petition on the basis that it was

untimely filed, and Appellant filed a pro se response.            However, on

November 17, 2014, the PCRA court issued an order dismissing his untimely

petition. Appellant filed a timely, pro se notice of appeal. While the court

did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, the court filed a Rule 1925(a) opinion on

January 20, 2015. Herein, Appellant raises one issue for our review: “Are

there any issues of merit present in the instant appeal or are any non-

frivolous issues available to [A]ppellant pursuant to the facts and events

presented in the record?” Appellant’s Brief at 2.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).      Under the PCRA, any petition for post-conviction

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relief, including a second or subsequent one, must be filed within one year of

the date on which the judgment of sentence becomes final, unless one of the

following exceptions applies:

      (b) Time for filing petition.--

         (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:

            (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).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

      Here, Appellant’s judgment of sentence became final on May 10, 1987,

at the expiration of the thirty-day time-period for seeking review with the

Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (stating that a

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Pa.R.A.P. 1113(a) (directing,



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“a petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days of the entry of the order of the Superior Court

sought to be reviewed”).    Thus, Appellant’s present petition, filed over 25

years after his judgment of sentence became final, is patently untimely, and

he must meet one of the exceptions set forth in 42 Pa.C.S. § 9545(b) to

invoke our jurisdiction to review the merits of his claim.

      Appellant does not explicitly identify which of the timeliness exceptions

he is attempting to satisfy, but it appears from his argument that section

9545(b)(1)(ii) is the only one possibly applicable.          Appellant essentially

maintains that he discovered new evidence in the form of an affidavit, which

he attached to his pro se PCRA petition, from his co-conspirator, “Bobbie Lee

Sims Jr.” See Appellant’s Pro Se PCRA Petition, 3/1/13 (Exhibit 4). In that

affidavit, Sims alleged that he committed the crimes with a person named

Barry Hilton, not with Appellant.      See id.    Appellant claims that Sims’

affidavit ‘clears’ Appellant of any culpability in the crimes for which he was

convicted, and warrants a new trial.

      Our review of Sims’ affidavit and the record reveals that Appellant did

not file the instant petition within 60 days of discovering this ‘new evidence.’

Specifically, Sims’ affidavit was signed before a notary on May 12, 2005.

The certified record confirms that Appellant received this affidavit shortly

after it was drafted, as he attached it to a pro se PCRA petition filed on July

11, 2005.    It appears that counsel was appointed and filed an amended

PCRA petition on May 2, 2007, asserting that Appellant should be afforded a

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new trial in light of Sims’ affidavit.     However, the PCRA court dismissed

Appellant’s petition without a hearing, and without any explanation of its

reason(s) for doing so. Appellant did not file an appeal.

      Instead, Appellant filed another pro se PCRA petition on July 18, 2008,

again asserting that Sims’ affidavit warrants a new trial.    On October 21,

2009, the PCRA court issued a Rule 907 notice of its intent to dismiss the

petition without a hearing, simply stating (in boilerplate fashion), that the

petition was untimely and did not satisfy any exception set forth in section

9545(b)(1). Appellant filed a timely, pro se response, but on November 30,

2009, the court issued an order dismissing Appellant’s petition.        Again,

Appellant did not file an appeal.

      On March 1, 2013, Appellant filed the present pro se PCRA petition

reiterating the same claim based on Sims’ affidavit.         Unfortunately for

Appellant, because the instant petition was obviously filed well outside the

60 day time-limit set forth in section 9545(b)(2), we do not have jurisdiction

to review the merits of his claim that Sims’ affidavit entitles him to a new

trial. Our lack of jurisdiction also precludes us from assessing whether the

PCRA court erred by denying, without a hearing or any explanation,

Appellant’s first attempt to raise this claim in his July 11, 2005 petition.

Accordingly, we are constrained to conclude that the PCRA court properly

dismissed Appellant’s untimely petition.

      Order affirmed.

      Judge Platt joins this memorandum.

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     President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2016




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