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

v.

SEAN SULLIVAN

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2675 EDA 2019 Appeal from the PCRA Order Entered August 26, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0014636

- 2011

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 4, 2020 Sean Sullivan appeals pro se from the denial of his second petition for relief under the Post

- Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546. Specifically, he claims that the PCRA court provided inadeq uate notice of its intent to dismiss, and thereafter erred when it dismissed his petition as untimely. However, Sullivan filed his petition more than one year after his judgment of sentence became final and he has not plead ed and prove n any of the three ex ceptions to the PCRA time

- bar. Therefore, we affirm. On March 1, 2013, following a bench trial, the court convicted Sullivan of third degree murder 1 and related offenses. The conviction arose from a multi

- person prison attack wherein Sullivan and three as sociates, all inmates, attacked five other inmates with various weapons resulting in the stabbing

________________ _ __________ ______ ____ _______ 1 18 Pa.C.S.A. § 2502(c).J

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death of Earl Bostic. On May 10, 2013, the trial court sentenced Sullivan to an aggregate sentence of life without parole. T his Court affirmed the judgment of sentence on April 17, 2015 , and o ur Supreme Court denied the petition for allowance of appeal on December 8, 2015. Sullivan did not petition the United States Supreme Court for a writ of certiorari

. On October 3, 2016, Sullivan filed a timely first PCRA petition. The PCRA court appointed counsel, who filed a Turner / Finley 2 no merit letter and motion to withdraw as counsel. The PCRA court denied PCRA relief and granted counsel’s motion to withdraw. This Court affirmed the order denying PCRA relief. On October 25, 2018, Sullivan filed the instant pro se , second PCRA petition. The PCRA court issued notice of its intent to dismiss the petition pursuant to Rule of Criminal Procedure 907(1). Sullivan responded to the notice of intent to dismiss. The PCRA court dismissed the petition as untimely on August 26, 2019. This timely appeal followed. Sullivan raises one question on appeal: Did the PCRA court commit an error of law by failing to adequately give [Sullivan] notice that his petition was untimely, wh ereas the 907 Notice stated “The issues raised in the original and amended post conviction relief act petition are without merit;” prejudice ensued where [Sullivan] could have sought leave to amend and address timeliness? Sullivan’s Br., at 4.

________________ _ __________ ______ ____ _______ 2 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1998); Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) ( en banc ).J

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Prior to re aching the merits of Sullivan’s claims on appeal, we must first consider the timeliness of his PCRA petition. See Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014). Crucial to the determination of any PCRA appeal is the timeliness of the underlyin g petition. Thus, we must first determine whether the instant PCRA petition was timely filed. The timeliness requirement for PCRA petitions is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petit ion. The question of whether a petition is timely raises a question of law. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary. A PCRA petition is timely if it is “filed within one year of the da te the judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment [of sentence] becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsy lvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). . . . Commonwealth v. Brown , 141 A.3d 491, 499 (Pa.Super. 2016) (case citations and some quotation marks omitted). Sullivan’s judgment of sentence became final on Mar ch 7 , 2016 , 90 days after our Supreme Court denied allowance of appeal and Sullivan did not petition the United States Supreme Court for a writ of certiorari

. See 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final “at the conclusion of direct re view .

. . or at the expiration of time for seeking the review”) ; U.S. Sup. Ct. R. 13

. Accordingly, Sullivan had until March 7 , 2017 , to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). He filed the instant petition on October 25, 2018. Th erefor e, it was patently untimely andJ

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the PCRA court lacked jurisdiction to review it unless Sullivan successfully pleaded and proved one of the statutory exceptions to the PCRA time

- bar. The PCRA provides three exceptions to its time bar: (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 t he 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). Exceptions to the time

- bar must be pled in the petition, and may not be raised for t he first time on appeal. See Commonwealth v. Burton , 936 A.2d 521, 525 (Pa.Super. 2007). “[Our Supreme] Court has repeatedly stated it is the appellant ’ s burden to allege and prove that one of the timeliness exceptions applies.” Commonwealth v. Hawkins , 95 3 A.2d 1248, 1253 (Pa. 2008). In his petition, Sullivan invokes the newly discovered fact exception to the PCRA time bar. The newly discovered facts exception requires a petitioner to establish that 1) “ the facts upon which the claim was predicated were

u nknown ” and 2) “ could not have been ascertained by the exercise of due diligence.” 42 Pa.C.S.A. § 954 5 (b)(1)(ii)

. Further, a “petitioner must explain why he could not have obtained the new fact(s) earlier with the exercise of due diligence.” Commonwealth v . Monaco , 996 A.2d 1076, 1080 (Pa.Super.J

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2010). Notably, “ [t] he 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. Marshall , 947 A.2d 714, 720 (Pa. 2008) (citation, emphasis, and internal quotation marks omitted)

. Here, Sullivan claimed to be eligible for the newly discovered fact exception to the PCRA time

- bar on account of his newly discovering an affidavit from a man named Alvin Lloyd who averred that he witnessed the prison fight, and Sullivan was on the upper floor of the prison at the time

— away from the assault. Therefore, he claims he has pleaded and p roven the exception to the PCRA time

- bar. Additionally, Sullivan argues that the PCRA court erred when its 907(1) notice stated that it intended to dismiss his petition without a hearing based on lack of merit, and thereafter dismissed the petition as unti mely. See Sullivan’s Br. at 10

- 11. Upon review, we conclude that Sullivan has not prove n applicability of the newly discovered fact exception. The newly discovered “fact” on which Sullivan relies is Lloyd’s affidavit stating that he saw Sullivan on the t op tier of the prison when the fighting occurred on the lower tier. However, Sullivan fails to establish why he was not able to obtain Lloyd’s testimony at the time of trial, or how his location

— which he would have known at trial

— should be considered a “ne wly discovered” fact. For these reasons, Lloyd’s affidavit does not satisfy the newly discovered fact exception to the PCRA’s time

- bar. In addition, we conclude that the PCRA court’s notation on its 907(1) notice of intent to dismiss constitutes harmless e rror. Sullivan’s claim as set forth in hisJ

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petition could not be amended to meet the requisites of the newly discovered fact exception to the time

- bar. 3 The PCRA court properly concluded that it lacked jurisdiction to consider the merits of Sullivan’s PCRA petition because it was untimely and does not fall under an exception to the PCRA time

- bar. Accordingly, we affirm the PCRA court’s order dismissing the petition. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/04/2020

________________ _ __________ ______ ____ _______ 3 If Sullivan intended to attempt to establish either the newly discovered fact or one of the other two exceptions to the PCRA time bar by amending his petition to include an entirely new claim, he may do so by attempting to establish the applicability of that exception in a subsequent PCRA petition.