Case Information

*1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellee

v.

TRACY E. WATTS No. EDA 2016

Appeal from the Order June 10, In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0707102-2001 BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD*, J. FILED APRIL 06, 2017

MEMORANDUM BY PANELLA, J. Appellant, Tracy E. Watts, appeals from the order denying second for relief pursuant Post Conviction Relief Act ("PCRA"), 42 §§ 9541-9546. We affirm. We summarize the relevant facts and procedural history as follows. In Appellant shot killed Marquis Henson. robbed Mr. Henson $3,000.00 before fleeing cohort. He apprehended and brought before jury, which convicted him first -degree murder, robbery, conspiracy, possessing instrument of crime. Just to sentencing, Appellant agreed, to avoid possible sentence of death by lethal * Former Justice specially assigned the Superior Court.

injection, waive his appellate rights exchange for a life sentence. Appellant signed a written colloquy, which the court reviewed with Appellant accepting his waiver. The court then formally sentenced Appellant on March 13, 2003, to life imprisonment without parole on first - degree murder conviction.' Appellant attempted file a direct appeal, which later withdrew. Appellant timely filed first PCRA petition. The ultimately without a hearing, and our Court affirmed the decision. Watts, EDA (Pa. Super., filed January 2007) (unpublished memorandum). Appellant filed writ habeas corpus, and was denied relief.

Appellant the instant petition, second, on October 2010. Following counsel's entry of appearance, Appellant amended petition. Neither writing acknowledged the untimeliness of Appellant's petition, save to say Appellant purportedly presented "newly - discovered evidence," without any dates or times of the discovery.

The held hearing, Appellant presented two witnesses who claimed to know close relationship between counsel victim's father. One witness, Thomas Davis, claimed the two men frequented the same "motorcycle club" bar. N.T., other ' was also sentenced on his remaining charges at time. As Appellant previously waived direct appeal rights, find his of sentence became final for our purposes March 13, 2003.

witness, James Brooks, whose the court found entirely incredible, stated he heard a close friend of counsel discussing victim's father how counsel planned "throw the case." Id., at 24. counsel testified did have a relationship with the victim's father, never agreed to "throw" case. Id., at 40. testified he had threatened while prison during the trial, and he felt pressured waive appellate rights. See id., PCRA ultimately Appellant's petition the merits.

On appeal, argues trial court erred denying petition, given presentation of newly discovered evidence regarding counsel's interest.

As threshold matter, note the timeliness of a petition jurisdictional requisite. See Commonwealth v. Hackett, 956 A.2d (Pa. 2008). A cannot hear untimely petition. See Flanagan, 854 A.2d 509 2004). Therefore, a petition must one year of the date the underlying becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at the conclusion of direct review or at expiration of time for seeking review. See Pa.C.S.A. § 9545(b)(3).

Three statutory exceptions provisions allow for very limited circumstances under which the late filing of will be excused. § 9545(b)(1)(i)-(iii). A petitioner asserting a *4 timeliness exception must file petition within 60 days of the date the claim could have presented. See 42 Pa.C.S.A. § 9545(b)(2).

As noted, Appellant's of sentence became final on March 13, 2003. Thus, Appellant's petition on October 2010, is patently untimely. did conduct timeliness inquiry, but rather Appellant's petition on the merits.

We, however, will address issue based on the single exception cited amended petition. See also Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en banc) ("Since petition untimely, our review focuses has pled proven one of the three limited exceptions the timeliness requirements of the apply.")

In amended petition, Appellant purportedly invokes the newly discovered evidence exception PCRA's jurisdictional time bar. § 9545(b)(1)(ii). "In order entitled the exceptions one-year filing deadline, the petitioner must plead and prove specific facts demonstrate claim raised sixty-day time frame under section 9545(b)(2)." Hernandez, A.3d Super. 2013) (citation and internal quotation marks omitted; emphasis added). See also Thomas M. Place, The Post Conviction Relief Act: Practice and Procedure (2010 ed.), § 6.01[b] ("The defendant must include the precise date or her when or she learned of the after- *5 discovered evidence to allow the court determine whether the exception has been timely invoked.")

While Appellant vigorously argues counsel was corrupt due to interest, Appellant fails even to plead, much less prove, that this discovery subsequent petition fell within time allotted by the PCRA. This is fatal claim. It deprived the court of jurisdiction to proceed.

Despite Appellant's failure to include precise dates order for court evaluate claim was properly within 60 days of the date it could have presented, the court nevertheless chose to conduct evidentiary hearing. The should have simply rejected Appellant's as untimely. should not have held an evidentiary hearing.

Appellant failed to address this issue he presented at hearing. Moreover, even if had this claim days of learning of this newly discovered evidence, failed give any reason regarding why could have obtained this information sooner reasonable diligence. Given Mr. Brooks is cousin, Mr. Davis Appellant's childhood friend, find unavailing assertions any of the purported newly discovered evidence presented at the evidentiary hearing unavailable to him prior filing.

In response to question about he had told Appellant about counsel's alleged plan to "throw the case" to 2010, when filed the instant petition, Mr. Brooks testified: "I actually seen [Appellant] before and I told him then too, but it was - I believe I was waiting him to do whatever he wanted to do." N.T., Additionally, Mr. Brooks entirely failed to note his initial affidavit attached petition that he ever heard any discussion of plan "throw" case. found Mr. Brooks' testimony incredible.

Appellant's childhood friend, Mr. Davis, gave conflicting testimony how close relationship was with Appellant the frequency of their contact. Contrary Appellant's assertions that the PCRA court specifically found Mr. Davis "credible," the transcript from the evidentiary hearing reveals court actually stated: "[E]ven accepting everything he said true, it doesn't prove [] the cornerstone of the argument." Id., at 87.

Given Appellant's failure to prove timeliness exception, addition Mr. Brooks' previously told Appellant about alleged conflict, the record demonstrates Appellant aware of this supposed ground for relief well before petition. The record does support court's brief footnote stating it found second pro se days of learning trial counsel's alleged interest thus "satisfied the requirements of *7 the newly discovered evidence exception PCRA's time -bar." Court Opinion, n.1. However, we may affirm court's decision any basis. Burns, A.2d 684, 690 n.6 Super. 2009) ("[A]n appellate court may affirm the lower on any basis, even one not considered or presented court below.") has failed to establish claims fall any of the exceptions timeliness requirement. Accordingly, affirm dismissal of petition.

Order affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 4/6/2017