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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DAVID KEYS, :
:
Appellant : No. 1151 EDA 2015
Appeal from the PCRA Order March 12, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-1105111-2005
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
JUDGMENT ORDER BY FITZGERALD, J.: FILED AUGUST 31, 2015
Pro se Appellant, David Keys, appeals from the order entered in the
Philadelphia County Court of Common Pleas dismissing his serial Post
Conviction Relief Act1 (“PCRA”) petition. Appellant contends newly-
discovered evidence of a Brady claim excuse the untimeliness of his petition
and the PCRA court erred by concluding he was not eligible for relief. We
affirm.
We adopt the facts and procedural history set forth by the PCRA court.
See PCRA Ct. Op., 5/1/15, at 1-2. The PCRA court docketed the instant
serial petition on July 7, 2014. On January 20, 2015, the PCRA court issued
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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a Pa.R.Crim.P. 907 notice of intent to dismiss,2 and the court docketed
Appellant’s pro se response on February 5, 2015. The PCRA court dismissed
Appellant’s petition on March 12, 2015, and Appellant timely appealed.
Before addressing the merits of Appellant’s claims, we examine
whether we have jurisdiction to entertain the underlying PCRA petition. See
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). “Our standard of
review of a PCRA court’s dismissal of a PCRA petition is limited to examining
whether the PCRA court’s determination is supported by the evidence of
record and free of legal error.” Commonwealth v. Wilson, 824 A.2d 331,
333 (Pa. Super. 2003) (en banc) (citation omitted). A PCRA petition “must
normally be filed within one year of the date the judgment becomes final . . .
unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition
is filed within 60 days of the date the claim could have been presented.”
Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations
and footnote omitted).
Instantly, Appellant’s judgment of sentence became final on June 16,
2009; Appellant filed the instant serial petition on July 7, 2014, over five
years later. Thus, this Court must discern whether the PCRA court erred by
holding Appellant did not plead and prove one of the three timeliness
2
The Rule 907 notice asserted that Appellant was no longer serving a
sentence in the instant case, although he was incarcerated at a federal
corrections facility. Pa.R.Crim.P. 907 Notice, 1/20/15.
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exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Copenhefer, 941 A.2d at
648. In this case, Appellant has not pleaded and proved any of the
timeliness exceptions; nowhere in his petition did he establish that he filed
the instant petition within sixty days of obtaining alleged newly-discovered
evidence. Accordingly, we agree with the PCRA court’s determination that
Appellant did not properly invoke any one of the three timeliness exceptions.
See Copenhefer, 941 A.2d at 648; Fahy, 737 A.2d at 223. Thus, the PCRA
court lacked jurisdiction.3 See Fahy, 737 A.2d at 223. Having discerned no
error of law, we affirm the order below. See Wilson, 824 A.2d at 333.
Application for relief denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2015
3
Although we need not address whether Appellant is no longer eligible for
PCRA relief because he did not establish jurisdiction, it appears he is on
parole for the instant sentence. See Ex. A. to Appellant’s Response to
Pa.R.Crim.P. 907 Notice, 2/5/15.
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