J-S59038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

RASHEEN NIFAS 

Appellant No. 3395 EDA 2016

Appeal from the PCRA Order October 5, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-1004371-1991

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 25, 2017

Appellant, Rasheen Nifas, appeals pro se from the order entered in the 

Philadelphia County Court of Common Pleas denying his second Post 

Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant argues the 

PCRA’s newly discovered facts and governmental interference exceptions 

excuse the untimeliness of his petition. We affirm. 

On February 18, 1993, a jury convicted Appellant of first-degree 

murder2 and related offenses. The trial court subsequently sentenced 

Appellant on October 4, 1994, to life imprisonment, with concurrent terms of 

incarceration for the remaining convictions. Appellant timely appealed, and 

 

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. 

2 18 Pa.C.S. § 2502(a). 
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this Court affirmed his judgment of sentence on March 29, 1996. Appellant 

did not file a petition for allowance of appeal to our Supreme Court. 

Appellant timely filed his first PCRA petition pro se on November 18, 

1996. The PCRA court appointed counsel, who subsequently filed a “nomerit” letter and petition to withdraw. On September 24, 1999, the PCRA 

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

without a hearing. Appellant did not respond, and the PCRA court dismissed 

his petition on October 26, 1999. Appellant appealed to this Court; 

however, his appeal was dismissed on August 10, 2000, for failure to file a 

brief. Appellant filed a petition for reconsideration, which this Court denied. 

Appellant filed his current PCRA petition pro se on May 20, 2015. The 

PCRA court issued notice of its intent to dismiss the petition without a 

hearing pursuant to Pa.R.Crim.P. 907, and denied the petition as untimely 

on October 5, 2016. Appellant timely appealed on October 21, 2016. 

“Our standard of review of a PCRA court’s dismissal of a PCRA petition 

is limited to examining whether the PCRA court’s determination is supported 

by the evidence of record and free of legal error.” Commonwealth v. 

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted). 

As our Supreme Court has explained:

the PCRA timeliness requirements are jurisdictional in 

nature and, accordingly, a PCRA court is precluded from 

considering untimely PCRA petitions. We have also held 

that even where the PCRA court does not address the 

applicability of the PCRA timing mandate, th[e] Court will 

consider the issue sua sponte, as it is a threshold question 
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implicating our subject matter jurisdiction and ability to 

grant the requested relief. 

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations 

omitted). 

A PCRA petition “must normally be filed within one year of the date the 

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.” Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted). Pursuant to 42 

Pa.C.S. § 9545(b)(3), “[a] judgment becomes final at the conclusion of 

direct review by this Court or the United States Supreme Court, or at the 

expiration of the time seeking such review.” Commonwealth v. Jones, 54 

A.3d 14, 17 (Pa. 2012) (citations omitted). 

When a petition is filed outside the one-year time limit, the petitioner 

must plead and prove the applicability of one of the three exceptions to the 

PCRA timeliness requirements. Commonwealth v. Johnston, 42 A.3d 

1120, 1126 (Pa. Super. 2012) (“If the petition is determined to be untimely, 

and no exception has been pled and proven, the petition must be dismissed 

without a hearing because Pennsylvania courts are without jurisdiction to 

consider the merits of the petition.” (citation omitted)). The three 

exceptions to the general one-year time limitation are:

(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 
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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. § 9545(b)(1)(i)-(iii). 

Instantly, Appellant’s judgment of sentence became final on April 28, 

1996, thirty days after this Court affirmed his judgment of sentence. 

Therefore, his current petition, which was filed more than nineteen years 

later on May 20, 2015, is facially untimely. Although Appellant alleges an 

affidavit from his co-defendant indicating Appellant was not present during 

the crime satisfies the newly discovered facts exception, Appellant has not 

proven that these facts were unknown to him at the time of his trial or that 

they could not have been discovered through due diligence. See id. § 

9545(b)(1)(ii). In fact, the co-defendant’s affidavit states he told Appellant’s 

trial counsel of this exculpatory information in 1992, prior to Appellant’s 

trial. Furthermore, Appellant asserts the governmental interference 

exception applies because the Commonwealth withheld exculpatory 

information that was discovered during his co-defendant’s trial. 

Nevertheless, Appellant again failed to prove he exercised due diligence in 

obtaining the alleged exculpatory information when his co-defendant was 
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tried before Appellant and Appellant could have requested a copy of the 

transcripts from his co-defendant’s trial prior to his own trial. See id. § 

9545(b)(1)(i). Therefore, Appellant has failed to prove any of the statutory 

exceptions to the PCRA’s timeliness requirement. See id. § 9545(b)(1)(i)-

(iii). Accordingly, the PCRA court lacked jurisdiction to consider the merits 

of Appellant’s claims, and we affirm the dismissal of Appellant’s untimely 

PCRA petition. See Johnston, 42 A.3d at 1126. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2017