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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYREE LITTLE,
Appellant No. 266 EDA 2013
Appeal from the PCRA Order December 28, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0505671-2000
BEFORE: BOWES, SHOGAN, and OTT, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 28, 2014
Tyree Little appeals from the December 28, 2012 order denying his
second PCRA petition as untimely filed. We affirm.
Based upon the following events, a jury convicted Appellant on May 3,
2001, of third degree murder, possession of a firearm without a license, and
possession of an instrument of crime:
During the afternoon of December 8, 1999, Appellant and a
friend drove around the area of 24th and Somerset Streets in
Philadelphia looking for the victim, Walter Bryant, with whom
Appellant had argued earlier. When they again came upon the
victim, he waved at them to stop and Appellant and his friend
got out of the car. Mr. Bryant and Appellant renewed their
ter
Appellant pulled out his gun and shot the victim seven
times. Mr. Bryant was pronounced dead shortly thereafter. No
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Commonwealth v. Little, 816 A.2d 331 (Pa.Super. 2002) (unpublished
memorandum at 1-2). On June 13, 2001, the trial court sentenced
Appellant to fifteen to thirty years imprisonment. We affirmed the
conviction. Id. On May 28, 2003, our Supreme Court denied allowance of
appeal. Commonwealth v. Little, 825 A.2d 1260 (Pa. 2003).
Appellant filed a timely PCRA petition on November 24, 2003. Counsel
was appointed, filed a no-merit letter and petition to withdraw, and was
permitted to withdraw. PCRA relief was denied, and, on appeal, we
affirmed. Commonwealth v. Little, 895 A.2d 648 (Pa.Super. 2006)
(unpublished memorandum). Appellant filed the present, counseled PCRA
petition on July 25, 2011. This appeal followed its dismissal, which was
based upon untimeliness. Appellant presents these issues on appeal:
th
I. and 4th
untimely filed and did not invoke an exception to the timeliness
provision of the Post-Conviction Relief Act?
th
II. and 14th
Amendment rights by denying the PCRA petition without benefit
of conducting a hearing and making a determination based on
the merits of the evidence and claim?
Our Supreme Court has observed that limited appellate review applies
in the PCRA context. Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014).
As delineated in Commonwealth v. Feliciano, 69 A.3d 1270, 1274-
75 (Pa.Super. 2013) (citation omitted),
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Our standard of review of the denial of a PCRA petition is
limited to examining whether the court's rulings are supported
by the evidence of record and free of legal error. This Court
treats the findings of the PCRA court with deference if the record
supports those findings. It is an appellant's burden to persuade
this Court that the PCRA court erred and that relief is due.
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). In this case,
denial of allowance of appeal. 42 Pa.C.S. § 9545(b)(3) (judgment of
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking the review). He had until 2004 to file a timely PCRA
petition and his 2011 petition is facially untimely.
There are three exceptions to the one-year time bar: when the
when the defendant has recently discovered the facts upon which his PCRA
claim is predicated, and when either our Supreme Court or the United States
Supreme Court has recognized a new constitutional right and made that
right retroactive. 42 Pa.C.S. § 9545(b)(1)(i-iii). Commonwealth v.
Brandon, 51 A.3d 231, 233-
exceptions to this [one-year] time requirement: (1) interference by
government officials in the presentation of the claim; (2) newly discovered
facts; and (3) an after-
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the burden of pleading and proving the applicability of any exception.
Feliciano, supra; 42 Pa.C.S. § 9545(b)(1).
Appellant herein invokes the newly-discovered fact exception, which
facts
upon which the claim was predicated were unknown
been ascertained by the exercise of due diligence.
§ Commonwealth v. Medina, 92 A.3d 1210, 1216
(Pa.Super. 2014) (emphases omitted) (quoting Commonwealth v.
Bennett,
the petitioner take reasonable steps to protect his own interests. A
petitioner must explain why he could not have learned the new fact(s)
Medina, supra at 1216 (citation omitted); see also Commonwealth v.
Edmiston, 65 A.3d 339 (Pa. 2013); Commonwealth v. Monaco, 996 A.2d
1076 (Pa.Super. 2010); Commonwealth v. Priovolos, 746 A.2d 621, 626
(Pa.Super. 2000).
In this case, Appellant raises a claim of juror misconduct. He avers
that within sixty days of filing
juror in his case Jennifer Redding had three separate conversations with
juror purportedly knew Appellant and made remarks about the case.
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brief at 11. He claims that he was unable to uncover the name of the juror
newly discovered facts exception.
Appellant openly acknowledges that he was able to uncover the
Appellant failed to exercise due diligence in not pursuing the same
investigation in 2003, when he first learned of the alleged conversations that
this juror, who knew Appellant, had with people who were associated with
Appellant.1 Commonwealth v. Edmiston, supra (defendant claimed PCRA
petition was timely due to new information gleaned from witnesses;
interview and obtain newly discovered facts from witnesses sooner rendered
his PCRA petition untimely); Monaco, supra (defendant failed to prove that
he was diligent in uncovering his mental health diagnosis where he could
have obtained a mental health examination when he was tried).
Commonwealth v. Priovolos, supra (citation omitted) (long after
to uncover purportedly exculpatory evidence; his attempt to come within the
parameters of the newly-discovered-facts exception was rejected since the
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1
At the time of the trial, this same juror also purportedly spoke with
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with the exercise of due diligence, have be
names of the jurors were a matter of public record, to which Appellant had
access in order to ascertain who might have known him and spoke with his
cousin and former girlfriend. Hence, the PCRA court did not commit legal
error in concluding that the present PCRA petition was untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
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