NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No EDA 2012

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. TYRONE GREEN Appellant No EDA 2012 Appeal from the PCRA Order July 30, 2012 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR BEFORE: GANTMAN, J., OLSON, J., and PLATT, J.* MEMORANDUM BY GANTMAN, J.: Filed: April 2, 2013 Appellant, Tyrone Green, appeals from the order entered in the Chester County Court of Common Pleas, dismissing his fifth petition brought pursuant to the Post Conviction Relief Act ( PCRA ). 1 We affirm. The relevant facts and procedural history of this appeal are as follows. The charges in this case arose out of a robbery and a homicide that occurred on December 18, 1993, in a laundromat in Coatesville. Appellant, armed with a revolver, had stood guard in the doorway while the crimes were committed. Darrick Hall, the shooter, and Troy Davis, who waited in the getaway car, were also arrested for the crime. On July 20, 1996, a jury found Appellant guilty of recklessly endangering another person, possessing an 1 42 Pa.C.S.A * Retired Senior Judge assigned to the Superior Court.

2 instrument of crime and firearms not to be carried without a license. Appellant was found not guilty of conspiracy to commit robbery and conspiracy to commit recklessly endangering another person. However, the jury was unable to reach a decision on either the second degree murder or the robbery charge. At retrial a second jury found Appellant guilty of both unresolved charges. [2] On March 12, 1997, the trial court sentenced Appellant to mandatory life imprisonment on the murder and an aggregate, consecutive 3 to 7 years imprisonment on the remaining counts from both trials. On December 31, 1997, this Court affirmed Appellant s judgment of sentence, and, on June 8, 1998, our Supreme Court denied Appellant s petition for allowance of appeal. On February 18, 1999, Appellant filed his first pro se petition pursuant to the PCRA, but thereafter retained private counsel. Following an evidentiary hearing, the PCRA court denied Appellant s petition on January 31, Appellant appealed pro se, and this Court remanded for appointment of counsel. Although the [PCRA] court appointed counsel, Appellant chose to proceed pro se. On September 28, 2001, this Court quashed Appellant s appeal as untimely filed. On October 9, 2001, Appellant filed an application for reconsideration and reinstatement of the appeal, which was granted. On November 15, 2002, this Court affirmed the denial of Appellant s PCRA petition and our Supreme Court denied allowance of appeal on December 2, Appellant filed a Petition for Writ of Certiorari with the United States Supreme Court, which was denied on November 28, Commonwealth v. Green, No EDA 2006, unpublished memorandum at 1-3 (Pa.Super. filed April 19, 2007) (internal citations omitted). Between 2006 and 2010, Appellant filed three more unsuccessful PCRA 2 The jury found Appellant guilty of second degree murder under a theory of accomplice liability

3 petitions. Private counsel filed the current PCRA petition, Appellant s fifth, on August 9, That same day, counsel filed an amended petition on Appellant s behalf. 3 In it, Appellant claimed to have received affidavits from Mr. Hall, who would testify that Appellant did not know that his cohorts intended to commit a robbery at the laundromat. On June 28, 2012, the court issued notice of its intention to dismiss the petition without a hearing, pursuant to Pa.R.A.P Appellant filed a counseled response to the Rule 907 notice on July 12, Nevertheless, the court denied PCRA relief on July 30, The court also advised Appellant that he could proceed pro se or continue with private counsel for purposes of appeal. Appellant timely filed a pro se notice of appeal on August 27, On September 4, 2012, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a pro se Rule 1925(b) statement on September 14, Appellant raises two issues for our review: WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW AND/OR ABUSED ITS DISCRETION IN DISMISSING APPELLANT S AUGUST 9, 2011 PETITION FOR [PCRA] RELIEF WHERE: 3 Counsel filed the amended petition after discovering a typographical error in the original version of Appellant s fifth PCRA petition. (Letter Attached to Amended PCRA Petition, filed 8/9/11, at 1)

4 (A) THE FACTS UPON WHICH THE CLAIMS SET FORTH WITHIN APPELLANT S AUGUST 9, 2011 PETITION FOR [PCRA] RELIEF ARE PREDICATED WERE UNKNOWN TO APPELLANT AND COULD NOT HAVE BEEN ASCERTAINED THROUGH THE EXERCISE OF DUE DILIGENCE; (B) SAID CLAIMS WERE PRESENTED WITHIN SIXTY (60) DAYS OF THE DATE ON WHICH APPELLANT BECAME AWARE OF THE FACTS GIVING RISE TO THOSE CLAIMS; AND (C) IT ERRONEOUSLY CATEGORIZED THE AFFIDAVIT OF DARRICK HALL AS A NEWLY DISCOVERED OR NEWLY WILLING SOURCE OF PREVIOUSLY KNOWN FACTS? WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL BASED UPON THE AFFIDAVIT OF DARRICK HALL WHERE THE ADMISSIONS OF HALL CONTAINED THEREIN CONSTITUTE EXCULPATORY EVIDENCE, UNAVAILABLE AT THE TIME OF TRIAL, THAT HAVE SUBSEQUENTLY BECOME AVAILABLE AND WOULD HAVE CHANGED THE OUTCOME OF APPELLANT S TRIAL IF THEY HAD BEEN INTRODUCED? (Appellant s Brief at 4) (internal quotation marks omitted). As a preliminary matter, we must determine whether Appellant timely filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196 (Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009). Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective January 16, 1996, provide that 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); Commonwealth v. Bretz,

5 A.2d 1273 (Pa.Super. 2003). 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 review. 42 Pa.C.S.A. 9545(b)(3). The three statutory exceptions to the timeliness provisions in the PCRA allow for 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 petition must allege and the petitioner must 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; (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. 42 Pa.C.S.A. 9545(b)(1)(i)-(iii). As such, when a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner s PCRA claims. Commonwealth v. Gamboa-Taylor, 562 Pa

6 70, 77, 753 A.2d 780, 783 (2000). Instantly, the court sentenced Appellant on March 12, This Court affirmed the judgment of sentence on December 31, 1997, and our Supreme Court denied Appellant s petition for allowance of appeal on June 8, Thereafter, Appellant did not seek further review with the United States Supreme Court. Thus, Appellant s judgment of sentence became final on September 6, 1998, upon expiration of the time to file a petition for certiorari with the United States Supreme Court. See 42 Pa.C.S.A. 9545(b)(3). Appellant filed his current PCRA petition on August 9, 2011, almost thirteen years after his judgment of sentence became final. Accordingly, Appellant s current prayer for relief was patently untimely. Appellant attempts to invoke an exception to the time restrictions of the PCRA, arguing the facts upon which his claim is based were unknown to him and could not have been ascertained by the exercise of due diligence. See 42 Pa.C.S.A. 9545(b)(1)(ii). Specifically, Appellant relies on two affidavits from Mr. Hall for the proposition that Appellant did not know his cohorts intended to commit a robbery. Appellant argues that he acted with due diligence in obtaining the affidavits, and the PCRA court erred in refusing to conduct an evidentiary hearing on the matter. Appellant concludes this Court must grant relief in the form of a new trial or, in the alternative, remand the matter to the PCRA court for an evidentiary hearing. We disagree

7 The timeliness exception set forth in Section 9545(b)(1)(ii) requires a petitioner to 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. Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007). Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have obtained the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced. Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011) (internal citations omitted). The focus of Section 9545(b)(1)(ii) is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts. Commonwealth v. Lambert, 57 A.3d 645 (Pa.Super. 2012). A PCRA petitioner s discovery of a new conduit for a previously raised theory of relief does not transform the petitioner s latest source of information into evidence falling within the ambit of Section 9545(b)(1)(ii). Id. Instantly, Appellant s current PCRA petition included two notarized affidavits from Mr. Hall. The first affidavit, dated June 22, 2011, explained that Mr. Hall did not inform Appellant of the plan to commit the robbery: On 12/28/1993, I called [Appellant] and asked him to come over to my house. Once there, I asked [Appellant] to do me a favor and drive me to Coatesville to pick up some money that was owed to me. [Appellant] agreed to - 7 -

8 do it. We then drove to Red Lion Road and Roosevelt Boulevard to pick up Troy Davis. I told [Appellant] that Troy was going to show us the way to Coatesville. I never told [Appellant] that Troy Davis was really the one that owed me money and that me and Troy were going to do a robbery because I knew if I did [Appellant] would [have] never agreed to drive us there in his car. I always felt bad about lying to [Appellant] and using him like that which resulted in him being dragged into this situation. I wanted to let someone know about it years ago, but my anger wouldn t let me. For years I thought it was [Appellant] who snitched on me to the police for lying to him and pulling him into a robbery, but I later found out that it was really Troy Davis who snitched on me. Now I really feel bad because I pulled an innocent man into something he wouldn t have otherwise been involved in. (See Amended PCRA Petition, filed 8/9/11, at P2; Appellant s Brief at D.1.) The second affidavit, dated July 29, 2011, elaborated on why Mr. Hall did not immediately come forward with the information pertaining to Appellant s case: 1. I found out that it was Troy Davis that snitched on me and not [Appellant] once I finally read my transcripts around I didn t contact [Appellant] immediately because I remembered that he was hanging out with Troy Davis in general population when we were all in Chester County Prison, so I assumed that [Appellant] knew all along that Troy snitched on me and didn t tell me. I was angry about that. 3. After so long of being angry with [Appellant], I realized that it was wrong for [Appellant] to be in prison because he trusted me and I [misled] him. I knew I had to tell the truth of how everything transpired that day, so I decided to contact his sister Cheryl Green. 4. If [Appellant] would [have] contacted me before now, I - 8 -

9 would not have helped him because it took a long time for me to get over my anger. 5. If a hearing is granted, I am willing to testify on [Appellant s] behalf. 6. I did not receive nor was I promised anything in exchange for my testimony. (See Amended PCRA Petition at P3; Appellant s Brief at D.2.) Additionally, the current PCRA petition detailed Appellant s prior efforts to obtain a statement from Mr. Hall: [Appellant] tried to contact Mr. Hall several times over the years. He sent several letters to Mr. Hall at his mother s address but they were unanswered. He also called Mr. Hall s mother who refused to acknowledge him. Mr. Hall attests that even if he had received these letters from [Appellant], Mr. Hall still would not have come forward and told the truth because he was still too angry. (See Amended PCRA Petition at 4-6 n.1) (internal citations omitted). Assuming Appellant could not have obtained Mr. Hall s affidavits earlier through the exercise of due diligence, the affidavits present the latest conduit for Appellant s serial claims of actual innocence. Appellant concedes he has consistently averred that he did not know that Davis and Hall intended to rob the Laundromat when he agreed to give Hall a ride. (Id. at 2). Likewise, Appellant admits that Mr. Hall s affidavits are cumulative of other evidence that was available at the time of trial: The new evidence is corroborated by other evidence adduced at trial. The new evidence corroborates the statement that [Appellant] initially gave police wherein he told them that - 9 -

10 he went to Coatesville with the express understanding that they were only going there to pick up money from someone who owed money to Hall and not with the intent of robbing the Laundromat. The new evidence is also consistent with the statement that Davis gave before he decided to testify against [Appellant] that there was no discussion of a robbery during the drive to Coatesville. The new evidence is additionally consistent with [Appellant s] testimony that Hall had previously told him that if Hall went down he would take all of them with him. (Id. at 5-6) (emphasis in original) (internal footnote omitted). Here, Mr. Hall amounts to a newly willing source to support Appellant s prior claims that he did not know Mr. Davis and Mr. Hall intended to commit a robbery. See Lambert, supra. Thus, Appellant failed to satisfy the requirements of Section 9545(b)(1)(ii). Based upon the foregoing, Appellant s fifth PCRA petition remains time-barred. See Bretz, supra; 42 Pa.C.S.A. 9545(b)(1). Accordingly, we affirm. Order affirmed