J-S33038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GEORGE WILLIAMS

Appellant No. 2523 EDA 2014

Appeal from the PCRA Order August 18, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0419612-1990

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 14, 2015

George Williams appeals pro se from the order entered in the Court of 

Common Pleas of Philadelphia County, dated August 18, 2014, dismissing 

his petition and supplemental petition filed pursuant to the Post Conviction 

Relief Act (“PCRA”)1as untimely. We affirm.

The PCRA court set forth the factual and procedural history of the 

matter as follows:

[Williams] was found guilty after a jury trial of second degree 

murder, robbery, and possession of an instrument of crime on 

December 27, 1991, before the Honorable Judge John J. 

Poserina, Jr. On April 8, 1994, [Williams] was sentenced by 

Judge Poserina to serve a life sentence. After [Williams] filed his 

timely appeal, the Superior Court affirmed the judgment of 

sentence on December 21, 1994. No further appeal was filed.

____________________________________________

1 42 Pa. C.S. §§ 9541-9546.
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[Williams] filed his first pro se post conviction relief petition on 

March 4, 1995. Thereafter counsel was appointed, and the 

petition was dismissed after his appointed counsel filed a “no 

merit” letter pursuant to [Commonwealth v. Turner, 544 A.2d 

927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988).] The Superior Court affirmed the dismissal 

on November 24, 1997, and the Supreme Court denied allocatur

on August 17, 1998.

[Williams] filed his second post conviction petition on March 28, 

2006, and the petition was dismissed as untimely on June 21, 

2007. [Williams] then filed his third post conviction petition on 

May 5, 2008, and the petition was dismissed as untimely on 

February 17, 2009. The Superior Court affirmed the dismissal 

on October 8, 2009 and the Supreme Court denied allocatur on 

May 19, 2010.

Prior to the denial of allocatur, [Williams] filed a petition for reargument in the Superior Court, which denied the petition on 

December 10, 2009. Subsequent thereto, on July 30, 2010, 

[Williams] filed a Writ of Certiorari to the United States Supreme 

Court which denied it on October 4, 2010. [Williams] filed his 

fourth post conviction petition on August 24, 2010, which was 

denied. The Superior Court affirmed the dismissal on December 

14, 2012, and the Supreme Court denied allocatur on September 

24, 2013.

[Williams] filed his current post conviction petition on August 15, 

2012, and a supplemental petition on July 16, 2013. After 

conducting an extensive and exhaustive review of the record and 

applicable case law, this [c]ourt determined that [Williams’] 

petition and supplemental petition seeking post conviction 

collateral relief were untimely field. Therefore, this [c]ourt did 

not have jurisdiction to consider Williams’ PCRA petition.

PCRA Court Opinion, 11/24/14, at 1-2.

On March 26, 2014, the PCRA court issued a notice of its intention to 

dismiss Williams’ August 15, 2012 petition and July 16, 2013 supplemental 

petition (collectively the “PCRA petition”) without a hearing. See

Pa.R.Crim.P. 907(1). Williams filed a pro se response on April 4, 2014. On 
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August 18, 2014, the PCRA court entered an order dismissing the PCRA 

petition.2 The PCRA court subsequently filed a supporting opinion on 

November 24, 2014.

In his timely pro se appeal, Williams raises the following issues for our 

review, verbatim:

I. Whether the PCRA court erred in finding that [Williams’] 

8/15/12 and 7/16/13 PCRA petitions are untimely filed 

when both petitions were: a) filed within 60 days of their 

discovery; b) predicated on information previously 

unknown and couldn’t be discovered any earlier by the use 

of due diligence; c) 8/15/12 petition was based upon 

recent rulings rendered in Miller v. Alabama3and 

Commonwealth v. Knox;

4

and d) properly pled 

exceptions as required by the filing statute?

II. Whether the PCRA court erred in not holding a hearing on 

[Williams’] 7/16/13 petition that was based upon an 

affidavit of Commonwealth witness Kevin M. Lewis and the 

after-discovered evidence[, consisting of several 75-48 

police reports, including one by Coroner Block,] which 

shows that [Williams] did not search the pockets of Mr. 

Fleming for money after the shooting and killing of Mr. 

Fleming by an alleged codefendant and that [Williams] is 

therefore convicted of a crime that he did not commit?

Appellant’s Brief, at v.

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2

It appears that the PCRA court issued two identical orders dismissing the 

PCRA petition, one dated August 18, 2014, and one dated August 25, 2014. 

Williams’ notice of appeal was filed August 26, 2014, and references the 

order of August 18, 2014.

3 Miller v. Alabama, 132 S.Ct. 2455 (2012).

4 Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012). 
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Our standard and scope of review for the denial of a PCRA petition is 

well-settled. We review the PCRA court’s findings of fact to determine 

whether they are supported by the record, and review its conclusions of law 

to determine whether they are free from legal error. Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to 

the findings of the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level. Id.

Before we may consider the merits of Williams’ claims, we must 

consider whether this appeal is properly before us. 

A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner’s judgment of 

sentence became final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S. § 9545(b)(1). A 

judgment becomes final at the conclusion of direct review by 

[the Pennsylvania Supreme] Court or the United States Supreme 

Court, or at the expiration of the time for seeking such review. 

42 Pa.C.S. § 9545(b)(3). The PCRA's timeliness requirements 

are jurisdictional; therefore, a court may not address the merits 

of the issues raised if the petition was not timely filed. The 

timeliness requirements apply to all PCRA petitions, regardless of 

the nature of the individual claims raised therein. The PCRA 

squarely places upon the petitioner the burden of proving an 

untimely petition fits within one of the three exceptions. 

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and 

footnote omitted). 

Williams was sentenced to serve a life sentence on April 8, 1994. This 

Court affirmed the judgment of sentence on December 21, 1994, and 

Williams did not seek allowance of appeal. Thus, Williams’ judgment of 

sentence became final on January 20, 1995, when his time to seek 
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allowance of appeal expired. See Pa.R.A.P. 1113. Williams had one year 

from that date to file a PCRA petition, specifically, until January 20, 1996. 

However, Williams filed the instant PCRA petition on August 15, 2012, and 

filed a supplemental petition on July 16, 2013, such that the PCRA petition is 

untimely on its face. Thus, the PCRA court lacked jurisdiction to review the 

PCRA petition unless Williams pleaded and proved one of the statutory 

exceptions to the time-bar. 

The three statutory exceptions for an untimely petition under the PCRA 

consist of the following:

(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. § 9545(b)(1)(i)-(iii). Additionally, a petition invoking a timeliness 

exception pursuant to the statute must “be filed within 60 days of the date 

the claim could have been presented.” Id. at § 9545(b)(2).

Williams’ first PCRA claim invokes the newly-recognized constitutional 

right exception in section 9545(b)(1)(iii); Williams bases his claim upon the 

holding in Miller v. Alabama, 132 S.Ct. 3455, decided on June 25, 2012. 
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Williams filed his PCRA petition on August 15, 2012, within sixty days of the 

Miller decision. The holding in Miller provides that a sentence of life 

imprisonment without the possibility of parole is an unconstitutional 

sentence when imposed upon juveniles convicted of murder. Id. See 

Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012) (applying the 

Miller holding in a Pennsylvania case). However, despite providing a new 

constitutional right with respect to sentencing, Miller does not apply 

retroactively. See Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), 

cert. denied sub nom. Cunningham v. Pennsylvania, 134 S.Ct. 2724 

(2014). 

Moreover, the Miller holding is specifically limited to juveniles under 

eighteen years of age at the time they committed murder. See Miller, 132 

S.Ct. at 2460; Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 

2013) (refusing to extend Miller to individuals eighteen years of age or 

older at time murder committed). In the instant matter, Williams was over 

the age of eighteen at the time he committed the crimes for which he was 

convicted of murder. Thus, the holding in Miller is wholly inapplicable to 

Williams’ case, and Williams has failed to plead and prove a timeliness 

exception with respect to this claim.

Williams’ second PCRA claim is asserted in his supplemental petition, 

filed July 16, 2013. Williams invokes the newly-discovered evidence 

exception in section 9545(b)(1)(ii). Williams provides two separate types of 

newly-discovered evidence. First, Williams asserts that three police reports, 
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including one completed by Coroner Block, were withheld at earlier stages of 

the proceedings and contain exculpatory information. However, the police 

reports Williams mentions were provided to Williams on February 3, 2006, 

and he filed a PCRA petition based on the contents of the police reports on 

March 28, 2006. That petition was Williams’ second, and it ultimately was 

dismissed as untimely on June 21, 2007. As the police reports have been in 

Williams’ possession for nearly a decade and have already been considered 

within the context of a PCRA petition, the police reports do not constitute 

newly-discovered evidence and Williams’ claims regarding the police reports 

are not timely.

Next, Williams provides an affidavit of Kevin M. Lewis, an eye-witness 

to the killing. Williams asserts that the affidavit indicates that he, the 

appellant, did not search the victim’s pockets for money after a codefendant 

shot the victim, despite the testimony of another codefendant, Alvin Morgan, 

indicating that Williams had searched the victim’s pockets. Williams claims 

that the Commonwealth used his alleged search of the victim’s pockets as 

“the overt act that sustained [his] conviction for second degree murder and 

robbery as an accomplice.” Appellant’s Brief, at 16. Accordingly, Williams

claims that he was wrongly convicted and that the instant PCRA is timely 

filed because Lewis did not prepare his exculpatory affidavit until May 28, 

2013.

As to the contents of Lewis’ affidavit, Williams has the burden of 

demonstrating that he could not have previously discovered the information 
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in Lewis’ affidavit through the exercise of due diligence. 42 Pa.C.S. § 

9545(b)(1)(ii). “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) (citations omitted). Moreover, the focus of the 

exception is “on the newly discovered facts, not on a newly discovered or 

newly willing source for previously known facts.” Commonwealth v. 

Johnson, 863 A.2d 423, 427 (Pa. 2004).

Lewis testified on behalf of the Commonwealth at trial. In his affidavit, 

however, he seems to indicate that he was pressured into this testimony by 

the prosecutor and that his testimony changed from his original recollection 

to become more favorable to the Commonwealth.5 Lewis indicates that he 

provided his testimony at trial because he was concerned that if he did not, 

he would be arrested and would lose a college basketball scholarship. Lewis 

seems to indicate that his trial testimony merely placed Williams at the 

crime scene; the affidavit, however, expands upon this to indicate that 

____________________________________________

5

Lewis’ affidavit is difficult to comprehend and what Lewis attempts to 

express is not entirely clear in places. Additionally, as the PCRA court noted, 

Lewis “was recently convicted of first-degree murder and sentenced to life 

imprisonment thereby giving him nothing to lose by fabricating the 

information in his affidavit.” PCRA Court Opinion, 11/24/14, at 6.
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though Williams was present, he did not say anything, did not touch the 

victim or search the victim’s pockets, and did not have a weapon. 

Williams obtained Lewis’ affidavit more than twenty years after 

Williams was convicted. Williams was aware the entire time that Lewis had 

been present at the crime scene. Williams nevertheless asserts that he 

could not have obtained Lewis’ observations sooner, though he provides no 

concrete reason why this is so. In fact, Williams did nothing regarding 

Lewis’ observations until Lewis provided Williams with his affidavit. 

Accordingly, Williams fails to show due diligence or that he took reasonable 

steps to protect his interests. Monaco, supra. See also, e.g., 

Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013) (holding PCRA claim 

regarding new evidence untimely since defendant failed to articulate reasons 

for failing to interview witnesses and obtain information sooner). 

However, in support of his claim that he could not have determined 

the information sooner, Williams cites to a recent en banc decision by this 

Court, Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en 

banc), appeal granted, Commonwealth v. Medina, 105 A.3d 658 (Pa. 

2014).6

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6 Among other things, the issues raised on appeal include whether the Court 

erred in deeming a PCRA petitioner duly diligent in pursuing his claim despite 

failing to speak with the recanting witness for fourteen years, and whether 

the Court erred in determining that the recantation evidence would have 

changed the verdict in the matter.
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Medina specifically considered recantation testimony in the context of 

a PCRA petition. This Court held that Medina’s PCRA petition was timely 

based upon the newly-discovered fact exception to the time-bar even though 

the petition was filed years beyond the deadline to file a timely petition. The 

facts involved a witness relied upon by the Commonwealth at trial, who later 

recanted and indicated that the Commonwealth had coerced him into 

testifying against Medina. This Court determined that the record supported 

the PCRA court’s determination that petitioner could not have previously 

discovered the source of prosecution witness’ recantation, or the recantation 

itself, through the exercise of due diligence. Id. at 1217-18 (noting that 

witness “testified consistently and unequivocally at trial that [Medina] 

wielded a knife shortly before the murder and stated that he was going to 

kill someone. As such, it was highly unlikely that defense counsel, without 

any supporting factual basis, could have compelled [the witness] to change 

his testimony during cross-examination, by engaging in a fishing expedition 

as to why [the witness] was lying.”).

Because the Medina Court considered the petition timely, the decision 

involved whether a new trial was properly granted based upon afterdiscovered evidence. Id. at 1218. In determining whether a new trial 

should be granted based on newly-discovered evidence, it is the PCRA 

petitioner’s burden to 

[d]emonstrate that the evidence: (1) could not have been 

obtained prior to the conclusion of the trial by the exercise of 

reasonable diligence; (2) is not merely corroborative or 
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cumulative; (3) will not be used solely to impeach the credibility 

of a witness; and (4) would likely result in a different verdict if a 

new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). 

In Medina, the Commonwealth argued that only the fourth prong in 

Pagan was not satisfied. The Court, however, held that a different verdict 

was likely because the witness’ recantation testimony not only repudiated 

his own trial testimony implicating the petitioner in a stabbing death, it 

directly contradicted the only eyewitness account which was made by a 

witness lacking in credibility. The Court found that if a jury believed the 

recantation testimony, “the Commonwealth would be left with shaky 

circumstantial proof.” Medina, 92 A.3d at 1220.

Here, however, while Williams attempts to label Lewis’ affidavit as 

“recantation,” Williams also states that Lewis did not directly recant his trial 

testimony.7 See Brief for Appellant, at 18. Further, even if Lewis’ affidavit 

were considered to recant his trial testimony, Medina is distinguishable from 

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7 Unfortunately, the notes of testimony Williams’ trial proceedings appear to 

have been lost permanently, as they are unable to be located and a 

memorandum within the record indicates an attorney who previously 

represented Williams had the notes of testimony and refused to return them. 

While some citations to the notes of testimony exist in the record, they are 

not available in their entirety for us to compare with Lewis’ affidavit. Even 

so, Lewis’ affidavit itself seems to indicate that his testimony was used 

merely to place Williams at the crime scene. Under these circumstances, it 

cannot be said that Lewis’ affidavit contradicts his trial testimony.
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the instant matter because the contents of Lewis’ affidavit would not result 

in a different verdict if a new trial were granted. 

In the instant matter, the Commonwealth had at least one other 

eyewitness, Alvin Morgan, who testified to Williams’ presence and actions at 

the crime scene. No argument has been raised demonstrating that Morgan 

was not credible in his testimony against Williams. Unlike the circumstances 

in Medina, the Commonwealth would not be left with merely “shaky” 

circumstantial evidence. Additionally, because Moore testified to Williams’ 

presence and participation in the crime, Lewis’ testimony was cumulative at 

the trial. We also note the PCRA court’s skepticism regarding Lewis’ 

credibility, and we find that if Lewis’ proffered his testimony at this late date 

it would not change the outcome of the matter. 

Furthermore, because an apparently credible witness implicated 

Williams for his involvement in the crime and Lewis’ affidavit is an inherently 

suspect piece of evidence, we find that Williams has not satisfied his burden 

of providing a strong prima facie showing that a miscarriage of justice 

occurred. See Commonwealth v. Hawkins, 598 Pa. 85, 91, 953 A.2d 

1248, 1251 (2006) (holding that second or subsequent request for relief 

under the PCRA will not be entertained without strong case for miscarriage 

of justice). See Medina, 92 A.3d at 1224 (Gantman, P.J., dissenting). 

Thus, Williams is not entitled to a new trial based upon newlydiscovered evidence, and the PCRA court was therefore not required to hold 

an evidentiary hearing prior to dismissing the PCRA petition. See 
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Commonwealth v. Neal, 713 A.2d 657, 660 (Pa. Super. 1998) (right to 

evidentiary hearing in PCRA context is not absolute; where PCRA petitioner 

is not entitled to relief, the court may dismiss a PCRA petition without 

conducting an evidentiary hearing). Therefore, we affirm the order 

dismissing Williams’ PCRA petition, albeit on different grounds than the PCRA 

court.8

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015

____________________________________________

8

“This Court may affirm the trial court’s decision on any basis supported by 

the record.” Commonwealth v. Barren, 74 A.3d 250, 254 (Pa. 2013) 

(citation omitted).