J-S37006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EARL MORGAN :
:
Appellant : No. 2956 EDA 2017
Appeal from the PCRA Order August 14, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0112531-2002
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JULY 31, 2018
Appellant, Earl Morgan, appeals from the order entered on August 14,
2017, dismissing his second petition filed under the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We previously explained the underlying facts of this case:
[On] the afternoon of August 23, 2001, two men knocked on
[the Victim’s] front door. When [the Victim] answered it, [the
men] pulled guns out and ordered him back into his house.
They made him kneel and asked for his money and drugs.
When he stated that he did not know what they were talking
about, they hit him. They threatened to shoot him and he
told them to go ahead. They then hit him on his right temple
with a pistol, knocking him unconscious. At trial, [the Victim]
testified that the two men were [Appellant] and [Appellant’s
co-defendant, John Realer].
When [the Victim] regained consciousness, [he] grabbed
[Appellant’s] pistol and wrestled with him while [Mr. Realer]
continued to hit him in the back of the head. Both men
escaped. [The Victim] was covered in blood. The police
transported him to the hospital, where he again slipped into
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S37006-18
unconsciousness. He was held for two days, and diagnosed
with major depression and post-concussion syndrome. The
strike to his temple had fractured his skull.
A jury found [Appellant] guilty of aggravated assault and
possession of an instrument of crime. On May 22, 2002, the
[trial court] sentenced [Appellant to serve an aggregate term
of ten to 20 years in prison for his convictions].
Commonwealth v. Morgan, ___ A.2d ___, 1846 EDA 2002 (Pa. Super.
2003) (unpublished memorandum) at 1-2 (internal footnotes omitted).
We affirmed Appellant’s judgment of sentence on April 25, 2003;
Appellant did not petition the Pennsylvania Supreme Court for allowance of
appeal. Id.
Appellant filed his first PCRA petition on April 23, 2004. The PCRA court
dismissed the petition on May 26, 2005, we affirmed the PCRA court’s order
on November 29, 2006, and the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on June 26, 2007.
Commonwealth v. Morgan, 915 A.2d 147 (Pa. Super. 2006) (unpublished
memorandum) at 1-6, appeal denied, 927 A.2d 623 (Pa. 2007).
Appellant filed the current PCRA petition – his second – on July 19, 2007.
Within his pro se PCRA petition, Appellant acknowledged that the petition was
filed outside of the PCRA’s one-year time-bar. See Appellant’s Second Pro Se
PCRA Petition, 7/19/07, at 3. Appellant, however, claimed that his co-
defendant, John Realer, had recently come forward with “exculpatory
evidence” regarding Appellant’s case. Id. Appellant thus claimed that his
PCRA petition was timely under the “newly-discovered facts” exception to the
-2-
J-S37006-18
PCRA’s one-year time-bar.1 Id.; see also 42 Pa.C.S.A. § 9545(b)(1)(ii).
Moreover, attached to Appellant’s PCRA petition was a sworn affidavit from
Mr. Realer, where Mr. Realer averred:
[Appellant] did not participate, agree to take part in, nor
conspire in the crime for which I am incarcerated for
committing.
On the day of said crime, I called [Appellant] and asked him
for a ride to the 2600 block of Thompson St. (at which time I
did not have a vehicle myself) and he agreed.
Upon arrival to Thompson St., [Appellant] parked his car on
the corner. I exited there and walked down to the street to
the address [of the Victim].
[Appellant] at this time was left standing on the corner
speaking on his cell phone awaiting for me to return.
Once I reached [the Victim’s address, the Victim and I]
engaged in a drug deal that went bad and turned into a
robbery.
After I exited the house I calmly walked back up to the corner
and got back in the car, and [Appellant] proceeded to drive
me back to the address he brought me from. At which time
I never told him of the robbery.
____________________________________________
1 Obviously, in order to satisfy the “newly-discovered facts” exception to the
PCRA’s one-year time-bar, the petitioner need not plead or prove that the
evidence was “exculpatory” or that the evidence “would have changed the
outcome of the trial.” Commonwealth v. Bennett, 930 A.2d 1264, 1270-
1272 (Pa. 2007) (holding that the PCRA’s newly-discovered facts exception
“merely requires that the ‘facts’ upon which such a claim is predicated must
not have been known to appellant, nor could they have been ascertained by
due diligence”) (internal quotations and citations omitted). Our reference to
the alleged “exculpatory” nature of Appellant’s evidence simply reflects our
effort to summarize Appellant’s claim.
-3-
J-S37006-18
In the past, before [Appellant’s] trial, I found out through a
friend who his lawyer was and I attempted to make contact.
I wanted him to know of [Appellant’s] true innocence, but I
never received a response back.
Affidavit of John Realer, attached to Appellant’s Second Pro Se PCRA Petition,
at 1.
On May 2, 2016, Appellant’s counsel filed an amended petition and
reiterated Appellant’s claim that Mr. Realer’s statement constituted newly-
discovered evidence, which entitled Appellant to post-conviction relief.
Appellant’s Amended Second PCRA Petition, 5/2/16, at 3.2
On July 11, 2017, the PCRA Court provided Appellant with notice that it
intended to dismiss his untimely PCRA petition in 20 days, without a hearing.
PCRA Court Order, 7/11/17, at 1; see also Pa.R.Crim.P. 907(1). The PCRA
court finally dismissed Appellant’s PCRA petition on August 14, 2017. PCRA
Court Order 8/14/17, at 1.
Appellant filed a timely notice of appeal to this Court and now claims
that the PCRA court erred when it determined that his PCRA petition was
untimely. We conclude that the PCRA court properly dismissed Appellant’s
untimely, serial PCRA petition.
As our Supreme Court has held, we “review an order granting or denying
PCRA relief to determine whether the PCRA court’s decision is supported by
____________________________________________
2Appellant’s amended second PCRA petition also claimed that Appellant’s wife
could “provide testimony relaying background details which establishes that
Mr. Realer’s statement was prepared in 2006 but not obtained by [Appellant]
until the time of his pending appeal.” Appellant’s Amended Second PCRA
Petition, 5/2/16, at 3.
-4-
J-S37006-18
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]
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.
-5-
J-S37006-18
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
In the case at bar, Appellant’s judgment of sentence became final in
2003. As Appellant did not file his current petition until July 19, 2007, 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 all required elements of the relied-
upon exception).
Here, Appellant claims to invoke the “newly-discovered facts” 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:
...
(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[.]
...
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within 60 days of the date the claim could
have been presented.
42 Pa.C.S.A. § 9545(b).
-6-
J-S37006-18
Thus, to properly invoke the newly-discovered facts exception, the
petitioner is statutorily required to file his petition “within 60 days of the date
the claim could have been presented.” Id. As our Supreme Court has
explained, to satisfy this “60-day requirement,” a petitioner must “plead and
prove that the information on which he relies could not have been obtained
earlier, despite the exercise of due diligence.” Commonwealth v. Stokes,
959 A.2d 306, 310-311 (Pa. 2008); Commonwealth v. Breakiron, 781 A.2d
94, 98 (Pa. 2001). Moreover, because the “60-day requirement” of section
9545(b)(2) is a statutory mandate, the requirement is “strictly enforced.”
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).
Appellant claims that the PCRA court erred in dismissing his petition as
untimely, as his petition satisfies the newly-discovered facts exception to the
PCRA’s one-year time-bar. This claim fails.
The PCRA’s newly-discovered facts exception permits the filing of a
petition outside of the one-year time-bar if the petitioner pleads and proves
that 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.” 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court has explained
that the newly-discovered facts exception “does not require any merits
analysis of the underlying claim. Rather, the exception merely requires that
the ‘facts’ upon which such a claim is predicated must not have been known
to appellant, nor could they have been ascertained by due diligence.”
Bennett, 930 A.2d at 1271 (internal quotations and citation omitted), quoting
-7-
J-S37006-18
Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa. 2005). Yet, as our
Supreme Court has made clear, “[t]he focus of the exception is on the newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts. . . . [Stated another way,] the newly-discovered facts
exception is not focused on newly discovered or newly willing sources for
‘facts’ that were already known.” Commonwealth v. Marshall, 947 A.2d
714, 720 and 722 (Pa. 2008) (internal quotations, citations, and corrections
omitted) (emphasis in original).
Appellant claims that Mr. Realer’s statement satisfies the PCRA’s newly-
discovered facts exception because Appellant “had no idea that [Mr. Realer]
was willing to come forward to exonerate him until he received an affidavit
from him.” Appellant’s Brief at 17. Further, Appellant claims that he first
discovered this fact on October 4, 2006, when Mr. Realer swore the affidavit
that exonerated him. See id. According to Appellant, since he filed his current
petition within 60 days of the date the claim could have been presented, his
petition is timely under the newly-discovered facts exception. Id. This claim
fails.
If true, Appellant has long been aware of all of the alleged “facts” that
are contained in Mr. Realer’s affidavit. Indeed, Mr. Realer’s affidavit simply
declares that, during the assault and robbery, Appellant stood down the street
from the Victim’s residence and that Appellant did not participate in, or know
of, the crimes. However, if true, Appellant knew of these facts at the time
and Appellant could have testified to the facts at trial. Thus, Appellant has
-8-
J-S37006-18
simply found in Mr. Realer “a newly discovered or newly willing source for
previously known facts.” Marshall, 947 A.2d at 720 and 722. As explained
above, such evidence does not satisfy the PCRA’s newly-discovered facts
exception.
Therefore, Appellant has failed to plead a valid exception to the PCRA’s
one-year time-bar. Appellant’s petition is thus time-barred and our “courts
are without jurisdiction to offer [Appellant] any form of relief.”
Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). We affirm
the PCRA court’s order dismissing Appellant’s second PCRA petition without a
hearing.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/18
-9-
Com. v. Morgan, E.
Combined Opinion