J-S36007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JERMAINE WILLIAMS

                        Appellant                   No. 2392 EDA 2016


                Appeal from the PCRA Order June 28, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0403571-1996


BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                     FILED SEPTEMBER 15, 2017

      In 1997, a jury convicted Appellant, Jermaine Williams, of first-degree

murder arising from the shooting death of Kenneth Billie. During the trial,

Williams conceded that he had killed Billie, but argued that he had acted in

self-defense. Currently before us is his third petition for relief pursuant to

the Post Conviction Relief Act (“PCRA”) that the Court of Common Pleas

dismissed as untimely. As we agree with the PCRA court’s conclusion that

Williams did not successfully invoke the newly discovered evidence exception

to the PCRA’s time-bar, we affirm.

      Williams implicitly concedes that the instant petition, filed over 14

years after his judgment of sentence became final, is facially untimely. See
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Appellant’s Brief, at 5.1 However, he argues that his recent “discovery” of a

document is newly discovered evidence that entitles him to an exception to

the PCRA’s time bar.

       Williams highlights a police officer’s testimony about the lack of

fingerprints on a firearm found at the crime scene. This testimony undercut

Williams’s theory that Billie brandished a firearm before he shot Billie. The

relevant document that Williams has just discovered is the Philadelphia

Police Department fingerprint analysis policy that was in effect at the time of

the investigation into the killing of Billie. He argues that the policy

demonstrates that the officer perjured himself when testifying to the method

he used to determine that there were no fingerprints on the firearm.

       In order to establish that he is entitled to an exception to the PCRA’s

time bar under § 9545(b)(1)(ii), Williams must establish that the facts upon

which the claim are predicated were unknown to him, and that he could not

have ascertained the facts earlier despite the exercise of due diligence. See

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

asserting a timeliness exception must file a petition within 60 days of the

date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(2).



____________________________________________


1
  Williams’s judgment of sentence became final on April 8, 2001. See
Commonwealth v. Williams, 3087 EDA 2008, at 5 (Pa. Super., filed
October 27, 2009) (unpublished memorandum).



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      Williams’s belief that the officer committed perjury has a long history.

See Williams, 3087 EDA 2008, at 6 (noting that Williams first challenged

the officer’s testimony in a March 29, 2004 letter). Indeed, we affirmed the

dismissal of Williams’s second PCRA petition, filed in 2007, which raised the

issue of the alleged perjury, by concluding that Williams had not established

that he had exercised due diligence in pursuing this claim. See id., at 8. An

additional eight years of delay has not mitigated this defect.

      This avenue of investigation was available to Williams in 2004. To

establish due diligence, he was required to prove that he could not have

possibly obtained the fingerprint policy prior to when he did. This he has not

done. We therefore affirm the order dismissing his third PCRA petition as

untimely.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




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