J-S34018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EDWARD MITCHELL :
:
Appellant : No. 1398 WDA 2018
Appeal from the PCRA Order Entered August 30, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001924-1997
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EDWARD MITCHELL :
:
Appellant : No. 1399 WDA 2018
Appeal from the PCRA Order Entered August 30, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003600-1997
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 04, 2019
James Edward Mitchell appeals from the denial of his seventh petition
for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Mitchell maintains that the PCRA court erred in denying his PCRA
petition as untimely because he met the newly-discovered fact time-bar
exception. We affirm.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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On May 18, 1998, a jury found Mitchell guilty of first-degree murder and
carrying a firearm without a license.1 The trial court sentenced Mitchell to life
without the possibility of parole for first-degree murder and three and one-
half to seven years’ incarceration for the firearm conviction. This Court
affirmed the judgment of sentence and our Supreme Court denied Mitchell’s
petition for allowance of appeal on October 4, 2002. See Commonwealth v.
Mitchell, 803 A.2d 795 (Pa.Super. 2002).
After several unsuccessful PCRA petitions, Mitchell filed the instant,
counseled PCRA petition in April 2018. He alleged newly discovered evidence
in the form of the recantation of one of the Commonwealth’s witnesses against
him at trial, who had testified that he was an eyewitness to the murder. The
PCRA court issued a notice of intent to dismiss the petition without a hearing
pursuant to Pa.R.Crim.P. 907. Mitchell did not respond to the Rule 907 notice
and the PCRA court denied the petition. This timely appeal followed.
Mitchell asks us to review the following claim:
Whether the PCRA Court erred and/or abused its discretion by
failing to give relief, in the form of a new trial and/or an
evidentiary hearing, when [Mitchell] presented newly discovered
evidence in the form of the testimony of Charles Fleming?
Mitchell’s Br. at 4.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
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1 18 Pa.C.S.A. §§ 2502(a) and 6106(a)(1), respectively.
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and whether its decision is free of legal error. See Commonwealth v.
Conway 14 A.3d 101, 108 (Pa.Super. 2011). Before we may address the
merits of Mitchell’s claim, we must first address the timeliness of his petition
as the PCRA time-bar is jurisdictional in nature. See Commonwealth v.
Peterkin, 722 A.2d 638, 641 (Pa. 1998).
If a PCRA petition is untimely, neither our Court nor the PCRA court has
jurisdiction to review the petition. See Commonwealth v. Chester, 895 A.2d
520, 522 (Pa. 2006). Once a judgment of sentence is final, a petitioner has
one year to file a first or subsequent PCRA petition. See 42 Pa.C.S.A §
9545(b)(1). A judgment of sentence is 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.” 42 Pa.C.S.A. § 9545(b)(3).
After the one year deadline, a petitioner must plead and prove at least
one of the time-bar exceptions before the court may entertain the petition.
These exceptions include: (1) the failure to raise the claim previously was due
to interference by government officials; (2) the facts of the claim were
unknown to the petitioner and could not have been ascertained by the exercise
of due diligence; or (3) a newly recognized constitutional right that the United
States Supreme Court or the Pennsylvania Supreme Court has held to apply
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retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner must raise
the exception within 60 days that the claim could have been raised.2
Here, Mitchell’s judgment of sentence became final on January 2, 2003,
at the expiration of the 90-day appeal period for filing a petition for writ of
certiorari with the United States Supreme Court. See U.S. Sup.Ct.R. 13(1).
Therefore, he had until January 2, 2004, to file a timely petition. Thus, the
instant petition – which he filed more than 14 years after the time-bar deadline
- is patently untimely. Accordingly, the PCRA court was without jurisdiction to
consider the petition unless Mitchell pled and proved at least one of the time-
bar exceptions. See Commonwealth v. Pursell, 749 A.2d 911, 913-14 (Pa.
2000).
In his petition, Mitchell claimed relief under the newly discovered fact
exception. In order to satisfy this exception, a petitioner must prove that the
newly discovered fact: (1) could not have been obtained prior to the
conclusion of the trial by exercising due diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in a different verdict if a
new trial were granted. See Commonwealth v. Pagan, 950 A.2d 270, 292
(Pa. 2008). This Court has defined due diligence in the context of the PCRA as
____________________________________________
2 As of December 24, 2018, a petitioner has one year to raise a time-bar
exception for any petition filed on December 24, 2017 and after. See 42
Pa.C.S.A. § 9545(b)(2).
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“reasonable efforts by a petitioner, based on the particular circumstances, to
uncover facts that may support a claim for collateral relief.” Commonwealth
v. Burton, 121 A.3d 1063, 1071 (Pa.Super. 2015) (en banc).
Mitchell claims he discovered a new fact in the form of a recantation
from one of the Commonwealth’s witnesses, Charles Fleming, and provided
the PCRA court with a certification from Fleming. See Certification of Charles
Fleming, signed and dated July 14, 2017. On July 14, 2017, Fleming allegedly
sent a certification to Mitchell recanting his trial testimony in identifying
Mitchell as the shooter. Id. In this certification, Fleming claimed that he falsely
accused Mitchell of the shooting because police had told him that Mitchell was
blaming Fleming for the victim’s murder. To protect himself, Fleming identified
Mitchell as the perpetrator. Id. The PCRA concluded that this alleged
recantation did not warrant relief for Mitchell because Mitchell failed to allege
the date when the new information came into his possession, making it
impossible to know if he had raised the claim within 60 days of the date he
first could have raised it. We agree.
Fleming dated his certification July 14, 2017, yet Mitchell waited an
entire year before filing his PCRA petition. His petition as well as his brief on
appeal are void of any explanation for this delay. Furthermore, Mitchell fails
to explain why he could not have obtained this certification by exercise of due
diligence and also fails to explain how Fleming’s alleged recantation would
have resulted in a different outcome at trial. He thus fails to establish two of
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the four necessary prongs of the newly discovered facts time-bar exception,
due diligence and prejudice. Further undermining any claim of prejudice is the
fact that another eyewitness also identified Mitchell as the shooter. See Trial
Court Opinion, filed 2/28/01, at 4. As such, we conclude that the PCRA court
did not abuse its discretion in denying Mitchell’s PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2019
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