J-A03045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY MAURICE WYATT :
:
Appellant : No. 458 MDA 2019
Appeal from the PCRA Order Entered September 6, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003361-2013
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 13, 2020
Appellant, Gregory Maurice Wyatt, appeals pro se from the September
6, 2018 Order entered in the Dauphin County Court of Common Pleas
dismissing as untimely his Petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we agree that
the Petition was untimely filed and we are, thus, without jurisdiction to review
its claim. We affirm.
Briefly, the facts underlying Appellant’s conviction stem from the May
27, 2013 murder and robbery of an acquaintance. On June 2, 2014, Appellant
entered a negotiated guilty plea to Third-Degree Murder, Robbery, Possession
of a Firearm by a Prohibited Person, and Carrying a Firearm without a License.
That same day, the trial court imposed an aggregate sentence of 25 to 30
years’ incarceration. Appellant filed a post-sentence Motion to Withdraw Guilty
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Plea, which he withdrew on July 11, 2014.
Appellant did not file a direct appeal. Appellant’s Judgment of Sentence
thus became final thirty days later on August 11, 2014, upon expiration of the
time to file a direct appeal. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).
On September 8, 2017, Appellant filed pro se, the PCRA Petition at issue,
his second. The PCRA court appointed counsel and eventually permitted
counsel to withdraw pursuant to Turner/Finley.1 On September 6, 2018, the
PCRA court dismissed the PCRA Petition without a hearing after providing
notice pursuant to Pa.R.Crim.P. 907.
Appellant timely filed a pro se Notice of Appeal. Both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
Appellant presents one issue for our review: “[d]id the PCRA court err[]
by dismissing the PCRA petition as untimely?” Appellant’s Br. at 4.
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
However, “[i]t is well-settled that the PCRA’s time restrictions are jurisdictional
in nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016)
(citation omitted). Therefore, we must first determine whether we have
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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jurisdiction to entertain this PCRA Petition. Commonwealth v. Albrecht, 994
A.2d 1091, 1093 (Pa. 2010).
As detailed above, Appellant’s Judgment of Sentence became final on
August 11, 2014. Thus, he had until August 11, 2015, to file his PCRA Petition.
See 42 Pa.C.S. § 9545(b)(1). His filing on September 8, 2017, was, therefore,
untimely by more than two years.
Pennsylvania courts may consider an untimely PCRA petition if the
appellant pleads and proves one of the three exceptions set forth in 42 Pa.C.S.
§ 9545(b)(1). The “newly discovered facts exception” requires the PCRA
petitioner to plead and prove that: (1) the facts upon which the claim was
predicated were unknown; and (2) the facts could not have been ascertained
by the exercise of due diligence. Id.; Commonwealth v. Bennett, 930 A.2d
1264, 1272 (Pa. 2007). Additionally, an appellant who invoked an exception
prior to December 2018 must have filed his claim within 60 days of the date
the claim could have been presented.2 Commonwealth v. Lark, 746 A.2d
585, 588 (Pa. 2000).
Here, Appellant asserts that he is entitled to relief based on newly
discovered evidence—an affidavit from Anthony Hodge dated August 25,
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2 See 42 Pa.C.S § 9545(b)(2). Effective December 24, 2018, Section
9545(b)(2) now provides that, for claims arising on December 24, 2017, or
after, “[a]ny petition invoking an exception ... shall be filed within one year of
the date the claim could have been presented.”
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2017, which states that on May 27, 2013, he witnessed an unidentified black
male point a gun and fire shots at Appellant and the victim. Appellant’s Br. at
8; PCRA Petition, filed 9/8/17, at Exh. A.3 Appellant explains that he was
previously unable to procure this information from Mr. Hodge because Mr.
Hodge had refused to cooperate with the investigators. Appellant’s Br. at 8-9.
He states that it was only when Appellant and Hodge were living in the same
prison that he was able to obtain this affidavit. Id. at 9. He also asserts that
he filed his PCRA petition within 60 days of receiving this information from Mr.
Hodge. Id. at 8-9.
This claim does not meet the newly discovered facts exception. Mr.
Hodge’s affidavit indicates that “[o]nce he was away from the area and felt
safe,” Mr. Hodge informed “Josh Salisbury4” of the events he witnessed. PCRA
Petition, filed 9/8/17, at Exh. A. Appellant has not explained why he was
unable to contact Mr. Hodge himself prior to September 2017, or obtain the
newly discovered evidence from Mr. Salisbury. Thus, Appellant has failed to
plead and prove that he could not have ascertained this information by the
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3 Appellant’s PCRA Petition sought relief based on new evidence, Mr. Hodge’s
statement, which he asserted established his innocence. PCRA Petition at 3.
4 PCRA counsel clarified that Josh Salisbury appears to be “Josh Saulsberry,”
who was referenced multiple times in discovery materials. Petition to
Withdraw, filed 4/16/18, Exh. A at 12. Counsel further explained that she
obtained from the Officer of Public Defender an affidavit from Mr. Saulsberry,
dated June 27, 2013, which stated that he had received a call from Mr. Hodge
informing him “that both [Appellant] and [the victim] had been shot.” Id. at
13.
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exercise of due diligence.
Accordingly, the PCRA court properly concluded that Appellant failed to
plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §
9545(b)(1), and properly dismissed Appellant’s Petition as untimely.
We, thus, affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2020
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