Com. v. Lee, E.

J-S09039-22


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    ESSITE LEE                                 :
                                               :
                       Appellant               :   No. 332 EDA 2021

            Appeal from the PCRA Order Entered September 15, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0501421-2006


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED MARCH 25, 2022

        Appellant, Essite Lee, appeals pro se from the September 15, 2017,

order entered in the Court of Common Pleas of Philadelphia County, which

dismissed Appellant’s second petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, on the basis it was untimely filed. After

a careful review, we affirm.

        Appellant was arrested in connection with the shooting deaths of R.G.

and B.F. Represented by counsel, he proceeded to a jury trial. This Court

previously summarized the evidence presented at the jury trial as follows:

               Appellant and R.G., who was known as “Muscles,” sold drugs
        in the 1900 block of Ingersoll Street, Philadelphia. N.T. Trial
        (Jury) Vol. 5, 6/22/07, at 210. Other drug dealers worked in the
        vicinity, and all of them paid R.G. for the right to transact their
        business in that area. Appellant was paying R.G. for the right to
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S09039-22


     deal drugs along the 1900 block of Ingersoll Street, but just before
     the murder, started to refuse to share the profits of his drug
     enterprise. In the days leading up to the murder, R.G. and
     Appellant had several arguments, and R.G. told Appellant that he
     could no longer sell drugs in the area. Id. at 211; N.T. (Jury) Vol.
     7, 6/26/07, at 15. On the night of November 24, 2004, R.G. and
     Appellant both sold drugs along the 1900 block of Ingersoll Street
     and then verbally fought after Appellant refused to give R.G. some
     of the proceeds of his drug sales from that evening. N.T. Trial
     (Jury) Vol. 7, 6/26/07, at 17-18.
            After the exchange with R.G., Appellant left Ingersoll Street,
     retrieved a gun, and returned to the scene of the argument. By
     that time, R.G. was seated in the driver’s seat of his car next to
     another drug dealer, B.F. Two eyewitnesses, Thomas Noble and
     Sean Timmons, who both knew Appellant, gave signed statements
     to police. Timmons’s statement also was videotaped. They
     indicated that they observed Appellant shoot the two victims. B.F.
     managed to escape from the car as he was being shot, but he
     collapsed in the street shortly thereafter.
           At trial, Noble repudiated the information that he gave to
     the police, and Timmons denied any memory of speaking with
     them, claiming that he was undergoing drug withdrawal at the
     time. Noble’s police statement was read into evidence:
           [T]he night of the shooting, I was outside the house
           on Ingersoll Street, the only house with a porch, right
           across from where Muscles’s car was parked. I went
           outside to talk to Muscles and then he came outside
           and I came out after he did and when I got outside,
           the car was started, Muscles was in the driver’s seat
           and the young boy that got killed was in the passenger
           seat in the front. A couple minutes after Muscles came
           out and got into the car, I was coming out the door
           and I saw [Appellant] and [Lamar Osborne] walking
           past Muscles’s car coming from 18th Street walking
           towards the Ridge. And then when [Appellant] walked
           past Muscles’s car, [Appellant] turned and started
           shooting through the side window on the driver’s seat.
           [Appellant] fired a lot of times, five or six and ran
           away. [Appellant] and [Osborne] then ran straight
           down Ingersoll Street towards Ridge Avenue.
     N.T. Trial (Jury) Vol. 5, 6/22/07, at 211-12.



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             The Commonwealth established that Timmons related to
      police that Appellant and “Muscles had an argument over selling
      drugs on the block. [Appellant] told my cousin, Muscles, that he
      would be back. When [Appellant] came back, he walked up on
      the car and shot my cousin, Muscles, in the back. [B.F.] tried to
      get out of the car and run[; Appellant] shot him in the back.” N.T.
      Trial (Jury) Vol. 6, 6/25/07, at 132. Timmons continued that after
      the shooting, “[Appellant] told me if I wanted any trouble. I told
      him no and I ran because he was still holding the gun in his
      hands.” Id. Timmons’s videotaped statement also was shown to
      the jury.
            Rohine Poplar, who also knew Appellant, testified that he
      was in the vicinity of the shooting on the night of November 24,
      2004, and after hearing the gunshots, proceeded to the scene of
      the crime. Poplar related that when he arrived, he encountered
      Noble. At trial, Poplar was asked, “Did Tommy Noble ever tell you
      he saw who did this [murder]?” N.T. Trial (Jury) Vol. 7, 6/26/07,
      at 12. Poplar responded, “[Noble] said-he said he seen, yeah, he
      said he seen [Appellant] run down the street, that’s it, that’s all I
      can go by.” Id. The Commonwealth established R.G. was struck
      by ten bullets, and that one of the bullets penetrated his body,
      exited the other side, and struck B.F., killing him as well.

Commonwealth v. Lee, No. 1510 EDA 2009, at 1-4 (Pa.Super. filed 9/22/10)

(unpublished memorandum).

      On June 28, 2007, a jury found Appellant guilty of two counts of first-

degree murder and one count of possession of an instrument of crime. The

jury was deadlocked as to the imposition of the death penalty, and on July 17,

2007, the trial court imposed two consecutive terms of life imprisonment.

      Appellant filed a timely notice of appeal from his judgment of sentence;

however, the appeal was dismissed due to trial counsel’s failure to file a brief.

Appellant’s direct appeal rights were then reinstated via a timely-filed PCRA

petition.



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      On appeal, Appellant presented challenges to the weight and sufficiency

of the evidence. He also contended the trial court erred in denying various

motions in limine, denying trial counsel’s objection to the prosecutor’s opening

statement, permitting detectives to read into evidence the statements of

Noble and Timmons, overruling trial counsel’s objections to the prosecutor’s

closing argument, and refusing to provide a jury charge on third-degree

murder.

      Finding Appellant was not entitled to relief on his claims, this Court

affirmed his judgment of sentence on September 22, 2010. Appellant filed a

petition for allowance of appeal, which our Supreme Court denied on February

24, 2011.   Appellant did not file a petition for a writ of certiorari with the

United States Supreme Court.

      On March 3, 2011, Appellant filed a first, timely pro se PCRA petition,

and the PCRA court appointed counsel, who filed an amended PCRA petition.

The PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition

without an evidentiary hearing under Pa.R.Crim.P. 907, and the PCRA court

dismissed the petition on July 20, 2012.

      Appellant filed a timely appeal contending the PCRA court erred in

dismissing his PCRA petition without an evidentiary hearing. Specifically,

Appellant sought a remand so that he could develop his claim that trial counsel

was ineffective in failing to call the following witnesses at trial: Warren




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Harding, Jamillah Butler, Walter Perry, Markisha Graham, and Basheen

Farrison. PCRA Court Opinion, filed 1/10/13, at 5-6.

       Finding Appellant’s underlying ineffectiveness issue lacked arguable

merit, this Court concluded the PCRA court properly dismissed Appellant’s

PCRA petition without an evidentiary hearing. Thus, on October 4, 2013, we

affirmed the PCRA court’s dismissal order. See Commonwealth v. Lee, No.

2129 EDA 2012 (Pa.Super. filed 10/4/13) (unpublished memorandum).

Appellant filed a petition for allowance of appeal, which our Supreme Court

denied on April 16, 2014. Appellant did not file a petition for a writ of certiorari

with the United States Supreme Court.

       On May 3, 2015,1 Appellant filed a second pro se PCRA petition. Therein,

Appellant acknowledged that the instant petition was untimely; however, he

contended that he was entitled to the “newly-discovered facts” exception to

the PCRA’s time-bar.2 See PCRA Petition, filed 5/4/15. In support of his

contention, he attached to his PCRA petition two letters, which he marked as

Exhibit A and Exhibit B.




____________________________________________


1Although the pro se PCRA petition was time-stamped and docketed on May
4, 2015, we shall deem it to have been filed on May 3, 2015, when Appellant
handed it to prison authorities. See Commonwealth v. Jones, 549 Pa. 58,
700 A.2d 423 (1997) (discussing the prisoner mailbox rule).

2 There are three exceptions to the PCRA’s time bar, one of which is the
“newly-discovered facts” exception discussed infra. See 42 Pa.C.S.A. §
9545(b)(1)(i-iii).

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J-S09039-22


       Exhibit A is a letter that is dated April 14, 2015, and purports to be

written by Dia Jiles. Exhibit B is a letter that is undated and purports to be

written by Warren Harding. Appellant averred that, after the litigation of his

first PCRA petition, he received the letters. See id. at 1.

       On July 14, 2017, the PCRA court provided Appellant with notice of its

intent to dismiss the petition without an evidentiary hearing under

Pa.R.Crim.P. 907.       On August 4, 2017, Appellant filed a pro se response

arguing that the two letters, which he attached to his May 3, 2015, PCRA

petition, entitled him to an evidentiary hearing. He contended the existence

of the witnesses and the facts set forth in the letters met the “newly-

discovered facts” exception under Subsection 9545(b)(1)(ii).

       On September 15, 2017, the PCRA court dismissed Appellant’s PCRA

petition. On October 20, 2017,3 Appellant filed a pro se notice of appeal.4 On

____________________________________________


3 We note there appears to have been a breakdown in the courts in that the
Clerk of Courts sent Appellant’s notice of appeal to this Court on February 19,
2021. Further, the PCRA court notes that it made corrective entries to the
docket to reveal that, under the prisoner mailbox rule, Appellant filed his
notice of appeal on October 20, 2017, which is the date of the postmark on
the envelope in which Appellant mailed his notice of appeal. PCRA Court
Opinion, filed 5/10/21, at 2 n.2. See Jones, supra (discussing the prisoner
mailbox rule).

4  Even in consideration of the prisoner mailbox rule as discussed supra,
Appellant’s notice of appeal is facially untimely. See Pa.R.A.P. 903(a)
(indicating a notice of appeal shall be filed within 30 days after the entry of
the order from which the appeal is taken). However, this defect does not
deprive us of jurisdiction because there is no indication on the PCRA court
docket that it notified Appellant of the September 15, 2017, dismissal order.
(Footnote Continued Next Page)


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November 14, 2017, the PCRA court directed Appellant to file a Pa.R.A.P.

1925(b) statement, and on or about January 9, 2018, Appellant filed a Rule

1925(b) statement.5 On May 10, 2021, the PCRA court filed a Rule 1925(a)

opinion.

       Appellant sets forth the following issue in his “Statement of the Question

Involved” (verbatim):

       1. Is the Defendant entitled to a remand to the PCRA court for full
       evidentiary hearing where the Defendant properly pled and would
       have been able to prove that he was entitled to relief under the
       PCRA but where the PCRA court erred in denying that PCRA
       petition as untimely without a hearing?
____________________________________________


See Pa.R.A.P. 108(a)(1) (indicating the appeal period begins to run on the
date the Clerk of Courts “mails or delivers copies of the order to the parties”);
Pa.R.Crim.P. 114(C)(2)(c) (indicating the docket entries shall contain the date
of service of the order or court notice); Pa.R.Crim.P. 907(4); Commonwealth
v. Jerman, 762 A.2d 366, 368 (Pa.Super. 2000) (finding breakdown in PCRA
court and deeming petitioner’s appeal timely where Clerk of Courts failed to
notify petitioner of order denying collateral relief).
5 We note the docket entries reveal the PCRA court directed Appellant to file
a Rule 1925(b) statement within 21 days of November 14, 2017. However,
Appellant filed his pro se Rule 1925(b) statement on or about January 9, 2018.
Generally, such an untimely filing would result in waiver of all issues on
appeal. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues…not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”). However, before we find
waiver for non-compliance with a Rule 1925(b) order, we must confirm the
Clerk of Courts has complied with the docketing requirements of Pa.R.Crim.P
114(C)(2)(c). Commonwealth v. Hess, 570 Pa. 610, 810 A.2d 1249, 1254
(2002) (holding where docket sheet did not indicate the date of service of Rule
1925(b) order, Pennsylvania Supreme Court was “unable to ascertain the date
upon which [the a]ppellant was purportedly served with the trial court’s
1925(b) order and, therefore, simply cannot conclude when, if ever, the
[filing] period under Rule 1925(b) began to run”).
       In the case sub judice, there is no notation on the PCRA court docket
regarding service of the Rule 1925(b) order upon Appellant. Thus, we decline
to find waiver on this basis. See Hess, supra.


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Appellant’s Brief at V (unnecessary capitalization omitted) (suggested answer

omitted).

      Initially, we note the following:

            On appeal from the denial of PCRA relief, our standard of
      review calls for us to determine whether the ruling of the PCRA
      court is supported by the record and free of legal error. The PCRA
      court’s findings will not be disturbed unless there is no support for
      the findings in the certified record. The PCRA court’s factual
      determinations are entitled to deference, but its legal
      determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quotation

marks and quotations omitted).

            Pennsylvania law makes clear no court has jurisdiction to
      hear an untimely PCRA petition. The most recent amendments to
      the PCRA, effective January 16, 1996, provide a PCRA petition,
      including a second or subsequent petition, shall be filed within one
      year of the date the underlying judgment becomes final. 42
      Pa.C.S.A. § 9545(b)(1). 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.”
      42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)

(citations omitted).

             [There are] three statutory exceptions to the timeliness
      provisions in the PCRA [that] allow for the very limited
      circumstances under which the late filing of a petition will be
      excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
      petitioner must allege and prove:
             (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;


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             (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 provided in
       this section and has been held by that court to apply retroactively.

Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)).

       Any petition invoking a timeliness exception must be filed within sixty

days of the date the claim could have been presented.6 42 Pa.C.S.A. §

9545(b)(2). “We emphasize that it is the petitioner who bears the burden to

allege and      prove    that    one    of     the   timeliness   exceptions   applies.”

Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008)

(citation omitted).

       Here, Appellant was sentenced on July 17, 2007, and this Court affirmed

his judgment of sentence on September 22, 2010. The Pennsylvania Supreme



____________________________________________


6 42 Pa.C.S.A. § 9545(b)(2) has been amended to provide that a petition
invoking a timeliness exception is required to be filed within one year of the
date the claim could first have been presented. Specifically, effective
December 24, 2018, the legislature amended Subsection 9545(b)(2) to read:
“Any petition invoking an exception provided in paragraph (1) shall be filed
within one year of the date the claim could have been presented.” See 42
Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). The amendment to
Subsection 9545(b)(2) only applies to “claims arising on [December] 24,
2017, or thereafter.” See id., cmt. In the case sub judice, Appellant filed the
instant PCRA petition, to which he attached his letters, on May 3, 2015, well
before the effective date of the amended version of Subsection 9545(b)(2).
In any event, assuming, arguendo, Appellant met the initial threshold under
Subsection 9545(b)(2), we conclude Appellant did not otherwise meet the
requirements of a timeliness exception as discussed infra.

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Court denied Appellant’s petition for allowance of appeal on February 24,

2011, and Appellant did not file a petition for a writ of certiorari with the United

States Supreme Court.

      Accordingly, Appellant’s judgment of sentence became final 90 days

later, on May 25, 2011. See U.S. Supreme Court Rule 13 (effective January

1, 1990) (stating that a petition for writ of certiorari to review a judgment of

sentence is deemed timely when it is filed within 90 days). Appellant filed the

instant PCRA petition on May 3, 2015, and consequently, it is facially untimely.

      However, this does not end our inquiry as Appellant attempts to invoke

the “newly-discovered facts” exception set forth in Subsection 9545(b)(1)(ii).

             To establish the newly discovered fact timeliness exception
      in [Sub]section 9545(b)(1)(ii), a petitioner must demonstrate he
      did not know the facts upon which he based his petition and could
      not have learned those facts earlier by the exercise of due
      diligence.    Due diligence demands that the petitioner take
      reasonable steps to protect his own interests. A petitioner must
      explain why he could not have learned the new fact(s) earlier with
      the exercise of due diligence. This rule is strictly enforced.
      Additionally, the focus of this exception is on the newly discovered
      facts, not on a newly discovered or newly willing source for
      previously known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations

and quotation marks omitted).

      “The test is conjunctive; the appellant must show by a preponderance

of the evidence that each of these factors has been met in order for a new

trial to be warranted.” Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa.

Super. 2012) (citation omitted). Accordingly, we must determine whether


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J-S09039-22


Appellant has established both that “there were facts unknown to him and

that he exercised due diligence in discovering those facts.” Brown, 111 A.3d

at 176.

     Appellant’s “newly-discovered facts” claim relates to two letters, which

he attached to his PCRA petition as Exhibit A and Exhibit B. The PCRA court

aptly summarized the letters as follows:

            [Exhibit A] is dated April 14, 2015[,] and signed “Dia…Jules
     or Jiles,” along with another unreadable signature. The writer of
     Exhibit A states that he and friends heard shots and rushed to the
     scene where they saw the bodies of the shooting victims, “Little
     B” and “Muscles”. After a crowd gathered, Jiles recounts that
     “[Appellant] walked upon the scene a little after and asked, ‘What
     happened?’” Jiles responded “that Lil B and Muscles just got shot.”
     [Appellant] said “damn that young bull just came home on a pass
     and got shot.” According to Jiles, [Appellant] had approached
     from 19th and Masters Streets.
            Exhibit B is undated and signed by Warren Harding, who
     wrote that on November 24, 2007, he and others were detained
     in a police vehicle in an unrelated incident when he heard a police
     radio call of a shooting at 19th and Ingersoll. The police [officer],
     who had [d]etained Harding, released him in order to respond to
     the call. About a half an hour later[,] Harding received a call from
     “Jerz” or “J” who told Harding that he had just shot Muscles. “Jerz”
     came to Harding’s house the next day…and told Harding he shot
     Muscles [R.G.] and Lil B [B.F.] while they were in Muscles’ car
     because Muscles was a rat and was going to testify the next day
     against “Kyle.” “Jerz” told Harding that he threw the gun he used
     into the Schuylkill River.
            Harding wrote that he did not know [Appellant] previously
     or that [Appellant] had been convicted of murdering Muscles until
     some unspecified time later when he encountered [Appellant’s]
     sister. Harding told [Appellant’s] sister that he knew that
     [Appellant] was innocent because of Jerz’ confession.

PCRA Court Opinion, filed 5/10/21, at 4-5.



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      Regarding Exhibit A, which is the letter from Jiles, Appellant asserts Jiles

is a “new” witness who contacted his family on April 14, 2015, to report what

he observed on the night of the shooting. Appellant’s Brief at 1. Specifically,

Appellant contends Jiles’s letter indicates he would testify that Appellant

arrived at the scene after the shooting and made comments suggesting he

was surprised by the shooting.

      Our review of Jiles’s letter reveals that, as early as the night of the

shooting, Appellant was aware or should have been aware of Jiles’s existence

since Appellant allegedly spoke to him. Appellant has not explained why he

did not provide Jiles’s identity to his trial counsel, or, if Jiles’s identity was

unknown to Appellant, what steps, if any, he took to determine his identity.

      Further, inasmuch as Jiles’s letter recounts Appellant’s alleged acts and

statement, Appellant has failed to demonstrate “he did not know the facts

upon which he based his petition.” Brown, 111 A.3d at 176. Simply put, as

it applies to Jiles’s letter, Appellant has failed to demonstrate “there were facts

unknown to him and that he exercised due diligence in discovering those

facts.” Brown, 111 A.3d at 176.

      Regarding Exhibit B, which is the undated letter from Warren Harding,

we note Appellant alleged in his first PCRA petition that trial counsel was

ineffective in failing to call Warren Harding to testify at trial. Accordingly, we

conclude Appellant has failed to demonstrate Harding is a previously unknown

“new” witness as Appellant avers on appeal.


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      Moreover, in support of his ineffectiveness claim in his first PCRA

petition, Appellant attached to his first PCRA petition a summary of the

evidence to which Mr. Harding would have been willing to testify. Specifically,

he averred:

              [Warren Harding is the] [b]est friend of the actual
      murderer….[He] [would] testify that on the day and time of the
      shooting he received a phone call from a friend named Jerz, who
      inform[ed] him that he had just shoot [sic] the deceased and his
      friend and that he had disposed of the murder weapon in the
      river[.] [T]his witness has provided a sworn affidavit to such and
      is willing to testify.

PCRA Petition, filed 3/3/11, exhibit. Appellant also attached to his first PCRA

petition a letter from Mr. Harding dated August 20, 2008.

      The summary of evidence and letter from Mr. Harding, both of which

were attached as exhibits to Appellant’s first PCRA petition, are substantially

similar to the information contained in Mr. Harding’s letter, which was

attached as Exhibit B to Appellant’s present PCRA petition.       Accordingly,

Appellant has failed to “demonstrate he did not know the facts upon which he

based his [instant PCRA] petition and could not have learned those facts

earlier by the exercise of due diligence.” Brown, 111 A.3d at 176. Thus,

Appellant has failed to plead and prove he is entitled to the “newly-discovered

facts” timeliness exception on this basis.

      Finally, as it pertains to Appellant’s claim the PCRA court erred in

denying his petition without an evidentiary hearing, we note “[t]here is no

absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA


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court can determine from the record that no genuine issues of material fact

exist, then a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d

903, 906 (Pa.Super. 2008). In the case sub judice, the PCRA court properly

concluded there was no genuine issue of material fact regarding the

untimeliness of Appellant’s petition, and the PCRA court did not otherwise

abuse its discretion in failing to hold a hearing.

      For all of the foregoing reasons, we agree with the PCRA court that

Appellant’s second PCRA petition is untimely. Thus, we affirm.

      Affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/2022




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