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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE GREEN :
:
Appellant : No. 6 EDA 2019
Appeal from the PCRA Order Entered December 4, 2018
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000028-1994
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED APRIL 02, 2019
Tyrone Green (Appellant) appeals pro se from the order dismissing as
untimely his eighth petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
A prior panel of this Court summarized the relevant factual and
procedural history as follows:
On July 20, 1996, a jury convicted Appellant of recklessly
endangering another person, possessing an instrument of crime,
and firearms not to be carried without a license in connection with
Appellant’s role in a December 18, 1993 robbery and homicide at
a laundromat in Coatesville, Pennsylvania. Although a jury was
initially unable to reach a verdict on second degree murder and
robbery, Appellant was subsequently retried on those offenses
and convicted.
On March 12, 1997, the trial court sentenced Appellant to
life imprisonment for murder and imposed an aggregate term of
three to seven years imprisonment on the remaining offenses. We
affirmed the judgment of sentence on December 31, 1997, and
our Supreme Court denied allowance of appeal on June 8, 1998.
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Commonwealth v. Green, 706 A.2d 1252 (Pa.[]Super. 1997)
(unpublished memorandum), appeal denied, 724 A.2d 936 (Pa.
1998). Appellant timely filed a PCRA petition, the trial court
denied relief, we affirmed, and our Supreme Court denied
allowance of appeal. Commonwealth v. Green, 816 A.2d 328
(Pa.[]Super. 2002) (unpublished memorandum), appeal denied,
839 A.2d 351 (Pa. 2003). On November 28, 2005, the United
States Supreme Court denied Appellant’s petition for writ of
certiorari. Green v. Brooks, 546 U.S. 1037 (2005).
On January 5, 2006, Appellant filed his second PCRA petition
invoking, inter alia, a newly-discovered fact in the form of a
disclosure by a fellow prisoner, Shawn Smith, regarding Tyrone
Allen, who testified for the Commonwealth at the trial for
Appellant’s co-defendant. According to Smith, Mr. Allen had
informed police that Appellant left the laundromat prior to the
murder. The PCRA court dismissed the petition as untimely filed
without exception to the time-bar, and we affirmed. Specifically,
we reasoned that Appellant could not establish due diligence
because Allen testified at the co-defendant’s trial “three years
prior to Appellant’s second trial and twelve years prior to the filing
of the instant PCRA petition . . . [and] Allen testified to having
seen Appellant leave the laundromat shortly before shots were
fired.” Commonwealth v. Green, 928 A.2d 1122 (Pa. Super.
2007) (unpublished memorandum at 5) (internal citations
omitted). Hence, we concluded “[t]he information therefore was
available and could have been obtained by due diligence, but was
not.” Id. at 6.
Between 2007 and 2016, Appellant filed four more
unsuccessful PCRA petitions. Thereafter, on May 26, 2017,
Appellant filed [his seventh PCRA petition.] Appellant sought to
revive his newly-discovered-fact claim in light of Commonwealth
v. Burton, 158 A.3d 618 (Pa. 2017), wherein our Supreme Court
held that incarcerated pro se PCRA petitioners cannot be
presumed to know information that is public record for the
purpose of determining whether a fact is “previously unknown”
under 42 Pa.C.S. § 9545(b)(1)(ii). Following the proper notice
pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed the
petition as untimely.
Commonwealth v. Green, 3569 EDA 2017, *1-3 (Pa. Super. May 25, 2018)
(unpublished memorandum).
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On May 25, 2018, this Court affirmed the PCRA court’s dismissal of
Appellant’s seventh PCRA petition, holding that Appellant’s petition was
untimely and no exception to the statutory time-bar applied. Id. at *9.
Appellant did not file a petition for allowance of appeal.
On October 23, 2018, Appellant filed his eighth PCRA petition. The trial
court filed a Rule 907 Notice on November 20, 2018, to which Appellant filed
a response on November 29, 2018. On December 4, 2018, the trial court
dismissed Appellant’s petition. Appellant filed a timely notice of appeal on
December 17, 2018. Both the trial court and Appellant have complied with
Pennsylvania Rule of Appellate Procedure 1925. Appellant presents two issues
for our review:
[1.] DID THE PCRA COURT ABUSE ITS DISCRETION IN DENYING
PETITIONER PCRA RELIEF WHEN IT CONCLUDED HE WAS AWARE
FOR YEARS THAT HE WAS NOT PRESENT DURING THE CRIME
THEREFORE THE AFTER DISCOVERED EVIDENCE PROVING SUCH
IS IRRELEVANT?
[2.] WHETHER FIFTH PCRA COUNSEL WAS INEFFECTIVE FOR
FAILING TO INVESTIGATE?
Appellant’s Brief at 2.
Instantly, the PCRA court denied relief on the basis that Appellant’s
petition was untimely. Our standard of review of an order denying PCRA relief
is “whether the PCRA court’s determination is supported by the evidence of
record and free of legal error. We grant great deference to the PCRA court’s
findings, and we will not disturb those findings unless they are unsupported
by the certified record.” Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.
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Super. 2017) (citation omitted). Before we reach the merits of a petitioner’s
claim, Section 9545 of the PCRA requires that “[a]ny petition under this
subchapter, including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1).
The timeliness requirement of the PCRA is “mandatory and jurisdictional in
nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-85 (Pa. Super.
2008) (citation omitted). Therefore, “no court may disregard, alter, or create
equitable exceptions to the timeliness requirement in order to reach the
substance of a petitioner’s arguments.” Id. at 785. Although the timeliness
requirement is mandatory and jurisdictional, “an untimely petition may be
received when the petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing set forth at 42 Pa.C.S.A. §
9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa. Super. 2013). The three exceptions to the timeliness
requirement are:
(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
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provided in this section and has been held by that court
to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Until recently, a petition invoking an exception had to be filed within 60
days of the date the claim could have been presented. However, effective
December 24, 2017, Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2),
and now provides that a PCRA petition invoking a timeliness exception must
be filed within one year of the date the claim could have been presented. See
Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3 (“[T]he amendment . . . shall
apply to claims arising on Dec. 24, 2017 or thereafter.”). Although applicable
to Appellant’s instant petition, the change in the law from 60 days to one year
does not impact our analysis in this case.
Appellant’s PCRA petition is facially untimely. “A judgment is deemed
final ‘at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.’” Commonwealth v.
Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010) (quoting 42 Pa.C.S.A. §
9545(b)(3)). The Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal from his judgment of sentence on June 8, 1998.
Therefore, his judgment of sentence became final on September 6, 1998, 90
days after the Pennsylvania Supreme Court’s denial of Appellant’s petition for
allowance of appeal, which marked the expiration of the period Appellant could
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have sought certiorari with the United States Supreme Court. See U.S.
S.Ct.R. 13; Commonwealth v. Lark, 746 A.2d 585, 587 (Pa. 2000).
To be timely, Appellant was required to file a PCRA petition on or before
September 6, 1999. Appellant’s eighth PCRA petition, filed on October 23,
2018, is facially untimely. Accordingly, we are without jurisdiction to decide
Appellant’s appeal unless he pled and proved one of the three timeliness
exceptions of Section 9545(b)(1). See Derrickson, 923 A.2d at 468.
Appellant argues that he satisfied the newly-discovered fact exception
under section 9545(b)(1)(ii), and therefore, the PCRA court possessed
jurisdiction over the merits of his petition. The newly-discovered fact
exception:
has two components, which must be alleged and proved. Namely,
the petitioner must establish that: 1) the facts upon which the
claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. If the petitioner
alleges and proves these two components, then the PCRA court
has jurisdiction over the claim under this subsection.
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citations
omitted) (emphasis removed).
Appellant contends that an affidavit he received on October 17, 2018
from co-defendant, Darrick Hall, successfully meets the newly-discovered fact
exception criteria cited above. Specifically, Appellant argues that the affidavit
brings to light the following “newly-discovered facts”:
Mr. Hall’s 2018 affidavit is relevant because for the first
time, Mr. Hall stated that he was facing the front of the
laundromat and actually observed [Appellant] holding the door
open for customers. Mr. Hall also states that once he pulled out
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his gun the victim grabbed him, as he glanced towards the front
where [Appellant] was at and saw [Appellant] running out of the
laundromat leaving him behind. Mr. Hall further stated that once
he (Mr. Hall) ran out that [Appellant] was trying to leave him and
that he hated [Appellant] for that. Finally, Mr. Hall admits that
[Appellant] did not know that he had a gun on him.
Appellant’s Brief at 16.
However, Appellant admits that “[t]he new evidence is also corroborated
by key [C]ommonwealth witness Tyrone Allen’s testimony at Mr. Hall’s trial
where he testified that [Appellant] ran before the shots were fired.” Id. at
17. (citations omitted). Mr. Allen’s testimony was the basis of Appellant’s
newly-discovered fact exception claim in his second PCRA petition. In finding
this Court had no jurisdiction to address the merits of his second petition
because Appellant failed to plead and prove an exception to the PCRA time-
bar, we stated:
The instant claim relates to Appellant’s assertion of a
disclosure by a fellow prisoner, Shawn Smith, that Commonwealth
witness Tyrone Allen, who testified at the trial of Appellant’s co-
defendant, told police that Appellant had left the laundromat
before the shooting started; Allen reportedly had been intimidated
by police and therefore had not testified at Appellant’s trial. The
petition also asserts a failure of the prosecutor’s office to provide
this information to the defense as an example of governmental
interference, and alleges ineffectiveness of counsel for failure to
discover it.
The newly discovered evidence exception requires the
petitioner to allege and prove that the information referred to was
“unknown by the petitioner and could not have been ascertained
by the exercise of due diligence.” 42 Pa.C.S.A. §[]9545(b)(1)(ii).
Allen’s testimony had been given in October of 1994
(Commonwealth’s Answer and Motion to Dismiss Defendant’s
Second PCRA Petition, at 4 n.11), three years prior to
Appellant’s second trial and twelve years prior to the filing
of the instant PCRA petition. During Hall’s trial Allen testified
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to having seen Appellant leave the laundromat shortly before
shots were fired. (Id., Exhibit N.T., 10/24/94, at 84-85, 90-91,
94-99). The information therefore was available and could
have been obtained by due diligence, but was not.
Moreover, Appellant provides nothing to support his corollary
claim that the prosecutor’s interference prevented disclosure of
the transcript to his defense attorney. Neither the claim nor its
adjunct qualifies as newly-discovered evidence so as to provide
an exception to the PCRA time bar. We are thus without
jurisdiction to address Appellant’s claims.
Commonwealth v. Green, 2316 EDA 2006, *5-6 (Pa. Super. Apr. 19, 2007)
(emphasis added).
In its November 20, 2018 order, the trial court explained why it intended
to dismiss Appellant’s eighth PCRA petition:
[Appellant’s] second PCRA petition, filed on January 5,
2006, invoked, inter alia, a newly-discovered fact similar to the
one asserted here. . . . Upon review of the full record, the court
finds that [Appellant] has failed to establish a newly-discovered
fact. [Appellant’s] claim for newly-discovered exculpatory
evidence is based upon his co-defendant’s account of the robbery
and killing. The pivotal fact here is that Darrick Hall, who never
testified at his own or [Appellant’s] proceedings, now asserts that
[Appellant] fled the scene of the crime prior to any shots being
fired. As set forth above, this specific fact was the subject of
[Appellant’s] second PCRA petition, although the fact came from
Tyrone Allen, a source other than Darrick Hall. Thus, Hall’s
proposed testimony concerns only a newly willing source
for previously alleged facts. This is insufficient to warrant
relief.
Indeed, Hall’s declaration does not constitute newly-
discovered evidence at all. If true, [Appellant] knew from the time
of trial and every day thereafter that he was not present at the
laundromat when the shots were fired and could not have only
recently discovered the information. Moreover, as discussed
above, this information was the subject of [Appellant’s] 2nd PCRA
petition wherein [Appellant] claimed that the discovery of Tyrone
Allen’s testimony at Hall’s trial established his innocence, entitling
him to PCRA relief. The only new information is Hall’s
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willingness to come forward with his own testimony as to
this fact.
[Appellant] has further failed to establish due diligence on
his part. [Appellant’s] petition alleges that he acted within 60
days of encountering Hall in SCI-Phoenix on September 17, 2018
when he learned of the affidavit Hall sent to [Appellant’s] prior
counsel, Attorney Himebaugh (or within 60 days of receiving Hall’s
affidavit dated October 17, 2018). However, it is apparent
from our review of the record, specifically [Appellant’s]
own admissions, that [Appellant] made no effort to contact
Hall since 1994 or 1995, more than 23 years ago. See,
Affidavit of Tyrone Green dated July 27, 2011, attached as Exhibit
P-1 to [Appellant’s] 7th PCRA petition. If [Appellant’s] allegations
are true that he was not present when the shots were fired,
[Appellant] has been aware of this fact since the crime occurred,
as has Hall. Nevertheless, [Appellant] did not pursue evidence of
this fact for a number of years. While it may be true that Hall
would have refused to come forward, or that he would have
ignored [Appellant’s] attempts to reach out over the years, this is
speculation given that [Appellant] did not make any such effort
after 1995.
As a result, [Appellant] fails to meet either requirement to
the exception set forth in 42 Pa.C.S.A. §[]9545(b)(1)(ii),
permitting an untimely claim upon the discovery of facts
previously unknown to [Appellant], which could not have been
discovered with due diligence. [Appellant’s] 8th PCRA petition
must be dismissed as untimely.
Order, 11/20/18, at n.1 (emphasis added).
We find instructive the Pennsylvania Supreme Court’s analysis of
Section 9545(b)(1)(ii) in Commonwealth v. Marshall, 947 A.2d 714 (Pa.
2008):
Exception (b)(1)(ii) requires petitioner to allege and prove
that there were facts that were unknown to him and that he could
not have ascertained those facts by the exercise of due diligence.
The focus of the exception is on [the] newly discovered facts, not
on a newly discovered or newly willing source for
previously known facts. In [Commonwealth v. Johnson, 863
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A.2d 423 (Pa. 2004)], this Court rejected the petitioner’s
argument that a witness’s subsequent admission of alleged facts
brought a claim within the scope of exception (b)(1)(ii) even
though the facts had been available to the petitioner beforehand.
Relying on Johnson, this Court more recently held that an
affidavit alleging perjury did not bring a petitioner’s claim of
fabricated testimony within the scope of exception (b)(1)(ii)
because the only new aspect of the claim was that a new
witness had come forward to testify regarding the
previously raised claim. Specifically, we held that the fact that
the petitioner discovered yet another conduit for the same claim
of perjury does not transform his latest source into evidence
falling within the ambit of [Section] 9545(b)(1)(ii).
Id. at 720 (some citations omitted) (bold emphasis added, italics in original).
In applying the Supreme Court’s holding in Marshall to Appellant’s
petition, we agree with the PCRA court that Appellant failed to plead and prove
the newly-discovered facts exception to the PCRA time-bar. Appellant’s eighth
petition merely asserts that Appellant has discovered a new source for facts
that have been known to him, or could have been known to him through due
diligence, at least as early as October of 1994. As the focus of the Section
(b)(1)(ii) exception is newly-discovered facts, and not a newly-discovered
willing source for previously-known facts, Marshall, 947 A.2d at 720,
Appellant fails to plead and prove such an exception to the PCRA’s time-bar.
Accordingly, we agree with the PCRA court’s determination that
Appellant’s petition is facially untimely, and he has failed to prove any
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applicable Section 9545(b)(1) exception. We are therefore without
jurisdiction and cannot reach the merits of Appellant’s substantive claims.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/19
____________________________________________
1 If a petition is untimely, and the petitioner has not pled and proven any
exception, “neither this Court nor the trial court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. Derrickson, 923 A.2d
466, 468 (Pa. Super. 2007) (quoting Commonwealth v. Chester, 895 A.2d
520, 522 (Pa. 2006)).
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