Case Information

NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

KHALID ANDERSON

Appellant No. 542 EDA 2015 Appeal from the Order January 2015 the Court of Common Pleas Philadelphia County Criminal Division at No(s): CP- 51 -CR- 0900791 -2002

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.* FILED OCTOBER MEMORANDUM BY STEVENS, P.J.E.:

Khalid Anderson ( "Appellant ") appeals, pro se, from order entered the Court of Common Pleas of Philadelphia County dismissing patently untimely, serial petition for collateral relief pursuant Post Conviction Relief Act ( "PCRA "), et seq. contends the court erroneously failed to conduct an evidentiary hearing his which sought reinstatement appeal rights, nunc tunc, grounds breakdown the courts prevented from filing the appeal timely. Also raised Appellant's brief after - discovered evidence claim, not previously raised before the court, asserting recantation statements proffered co- conspirators * Former Justice specially assigned the Superior Court.

overcomes the time -bar would otherwise apply the present petition. We affirm. complete factual and procedural history pertinent the present

matter appears this Court's memorandum decision v. Anderson, No. EDA 2010, (Pa.Super. filed June 7, 2011) (unpublished memorandum), such need repeat it. For present purposes, suffice it to say currently serves a term of twenty -six fifty - two years' incarceration convictions of Murder of the Third Degree, Robbery, and Conspiracy. His convictions arise from a drug transaction gone awry buyer's home, wherein either fellow co- conspirator fatally shot the buyer, but not before the buyer stabbed each them multiple times. The second co- conspirator drove two cohorts the hospital for emergency care, and he later provided authorities with statement implicating Appellant the gunman. On direct this Court affirmed judgment of sentence and Pennsylvania Supreme Court denied allowance of appeal. filed se August 2008, Appellant

alleged trial counsel ineffective for failing to raise defense of self- defense at trial challenge the weight of the evidence and the length sentence post- sentence motions. Appointed counsel initially an amended petition August 2009, but she followed with "no- merit" letter withdraw served upon court and Appellant, issued Pa.R.Crim.P. 907 notice of its intent to

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dismiss without hearing. On March 18, 2010, after receiving no response from Appellant, the court granted counsel's petition to withdraw and dismissed Appellant's petition. On April Appellant filed an Application for Appointment of Counsel Appeal with the PCRA but did not file Notice of Appeal until May 13, 2010.

This Court ultimately quashed his PCRA appeal as untimely, determining, first, record demonstrated Appellant had received ample notice of his right to proceed pro se or with privately retained counsel following PCRA counsel's request withdraw but prior to PCRA court's order. After Appellant filed no response counsel's PCRA court entered its order dismissing Appellant's and, again, informed Appellant of his right to appeal se basis with retained counsel, we found.

On we found merit Appellant's assertion belated notice of appeal because both counsel court deprived of notice of his rights following counsel's motion withdraw. counsel's motion withdraw was Specifically, we observed accompanied certificate of Proof of Service listing Appellant an intended recipient of the motion. Additional evidence Appellant was properly notified of rights, determined, lay his timely filing of an application for appointment appellate counsel following the dismissal petition. We, therefore, held aware of rights

J-S74002-16 throughout PCRA proceedings "simply failed to assert them timely manner." Id. at 6.

On January 16, 2013, Appellant filed, pro se, the present petition. his he alleged he entitled nunc pro tunc relief from this Court's quashal of his PCRA appeal because he never received "legal mail informing of the [PCRA] court[']s actions timely manner too [sic] D.O.C. procedures [namely, his transfer new institution]. Appellant also challenged legality consecutive sentence, arguing merger should apply, the sufficiency of evidence intended participating conspiracy commit robbery or homicide. On March 27, 2013, Appellant filed an amended petition reiterating for nunc tunc relief. On April 3, and, again, on April Appellant with motions compel discovery blood evidence for DNA testing. The court, however, discerned merit with issues raised by entered order January 2015, dismissing petition. This timely appeal followed.

Appellant presents five questions our review: I. IN VIOLATION OF THE U.S.C.A. 5,6, AND 14, AS WELL AS THE DUE PROCESS CLAUSES OF THE PENNSYLVANIA PCRA: DID NOT THE COURT ERR AND COMMIT [SIC] FAILED TO REVERSIBLE ERROR, WHEN THEY CONDUCT AN EVIDENTIARY HEARING TO PROPERLY ANALYZE THE PETITION AND CONSTRUCT LAWFULLY RECOGNIZED CONCLUSION AND JUDICIAL OPINION AS TO WHY THE PETITIONER IS NOT ENTITLED TO THE REQUESTED RELIEF WITHIN THE CURRENT PETITION?

J-S74002-16 II. DID NOT THE PCRA COURT ERR AND COMMIT REVERSIBLE ERROR, WHEN THEY [SIC] FAILED TO RECOGNIZE THAT PETITIONER'S CURRENT PCRA PETITION INVOKED AN EXCEPTION TO THE TIME BAR REQUISITE AND FURTHER INVOKED THE COURT[']S JURISDICTION TO ENTERTAIN THE PETITION?

III. DID NOT THE PCRA COURT ERR AND COMMIT REVERSIBLE ERROR WHEN THE FACT -FINDER CONFLATED MERITS ANALYSIS PURSUANT TO 42 C.S.A. 9543(A)(2)(VI) WITH THAT OF A JURISDICTIONAL ANALYSIS AS DETERMINED WITHIN THE DUE PROCESS CLAUSES OF § 9545(B)(1)(i -iii)?

IV. DID NOT THE SENTENCING COURT ABUSE ITS DISCRETION IN SENTENCING THE APPELLANT TO A FAR INCARCERATION, THAN HIS GREATER TERM OF CONFEDERATE, WHERE IT WAS CLEARLY ESTABLISHED THAT APPELLANT'S CONFEDERATE WAS THE ACTUAL PERPETRATOR OF THE CRIMINAL ACT? DID NOT THE PCRA COURT IMPROPERLY DISMISS THE

V. APPELLANT'S PRIOR PLEADINGS, BY FAILING TO ISSUE A PROPER RULE NOTICE, AND DISMISSING IN VIOLATION OF PETITIONER'S DUE THE PETITION PROCESS RIGHTS?

Appellant's brief at 15 -16.

"Our standard of review of the denial relief clear; we are limited determining whether court's findings are supported by record without legal error." Wojtaszek, A.2d 1169, 1170 (Pa.Super. 2008) (quotation quotation marks omitted). We will not entertain or subsequent request relief unless petitioner makes strong prima facie showing miscarriage of

J-S74002-16 justice may have occurred." Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).

Pennsylvania law mandates has jurisdiction hear an untimely petition. Robinson, 837 A .2d (Pa. 2003). The most recent amendments the PCRA, effective January 1996, provide petition, including a or subsequent shall be within one year of the date the underlying judgment becomes final. Pa.C.S.A. § 9545(b)(1). judgment is deemed final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States the Supreme Court of Pennsylvania, or at the expiration of the time for seeking review." Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions the timeliness provisions the allow for very limited circumstances under which the late filing of petition will be excused. 42 9545(b)(1). To invoke exception, petition must allege petitioner must prove:

(i) the failure to raise previously the result of interference by government officials with the presentation of the claim violation of the Constitution or the law this Commonwealth the Constitution or law of the United States; (ii) the facts upon which the claim is predicated were unknown petitioner could have been ascertained by the exercise of diligence; or

(iii) right asserted constitutional right was recognized the Supreme Court of Pennsylvania after time

J-S74002-16 period provide this section and has been held by that to apply retroactively.

42 § 9545(b)(I)(i)- (iii). "We emphasize that it is the petitioner who bears the burden to allege prove one of the timeliness exceptions applies." Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citations omitted).

There is dispute that failed file the instant petition within the one -year time -bar. See 42 Pa.C.S. 9545(b)(1). To the extent Appellant attempts overcome the time -bar by asserting, in first three questions presented, newly- acquired recantation his statements made two co- conspirators meets the newly- discovered fact exception, fails, for he did not raise this claim before the court either initial petition consolidated amended petition may not, therefore, present it for the first time appeal. Our Supreme Court has held "makes clear where ... the petition untimely, it is petitioner's burden to plead in prove one of the exceptions applies." Commonwealth v. Beasley, A.2d 1261 (emphasis added); accord Edmiston, supra at 346. (Pa. 1999) Furthermore, "[t]hese exceptions must be specifically pleaded or they may be invoked." Commonwealth v. Liebensperger, 904 A.2d 40, 46 (Pa.Super. 2006), citing Beasley, supra. We have also stated that generally "[a] new and different theory relief may not be successfully advanced time appeal." Santiago, A.2d n. 6 (Pa.Super. 2009) (citation omitted); see also Pa.R.A.P.

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302(a) (stating, "[i]ssues not raised the lower court are waived and cannot be raised for the first time appeal[ ] "). This claim, accordingly, fails to trigger the newly- discovered evidence exception to the time - bar.' his fourth question presented, Appellant raises challenge to the

discretionary aspects of sentence, which does not, of course, overcome the timeliness requirements of the PCRA. Insofar the may be construed to raise challenge the legality of sentence, it still commands no merits review, for "[a]lthough legality sentence always subject review within PCRA, claims must still first satisfy the PCRA's time limits one of the exceptions thereto." Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). See also Commonwealth v. Jackson, A.3d 516 (Pa.Super. 2011).

For Appellant's fifth and final issue, Appellant contends he denied due process when dismissed first under Pa.R.Crim.P. 907 without supplying with proper notice, event which ' Setting aside the question of whether such recantation statements represent newly- discovered facts or simply newly discovered source of facts, see, e.g., Bennett, 930 A.2d 1264, 1270 -1272 (Pa. 2007) (explaining newly discovered fact exception Section 9545(b)(1)(ii) "requires petitioner to allege prove there were 'facts' were 'unknown' him" he could have ascertained those facts exercise due diligence), we observe that, even if we were position review the present claim time would find makes showing exercised diligence in ascertaining such "facts" presenting them the court.

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caused him to file belated appeal which this Court, ultimately, quashed. He fails explain, however, how the purported lack Rule 907 notice prevented from filing timely first particularly where this Court conducted thorough review of the proceedings before the concluded possessed ample notice of right file appeal. To extent Appellant seemingly offers this as governmental interference exception time -bar, therefore, we find it meritless.2

Order affirmed.

Judgment Entered.

J: seph D. Seletyn,

Prothonotary

Date: 10/24/2016 If were review the claim its merits, we would find it previously

litigated, well, as this Court rejected Appellant's attempt attribute his belated appeal to lack notice regarding the dismissal of claim, the withdrawal of counsel, and his appellate rights.