J-S36040-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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D.D.K.,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 190 WDA 2015

Appeal from the PCRA Order Entered December 8, 2014

in the Court of Common Pleas of Jefferson County,

Criminal Division, at No(s): CP-33-CR-0000074-2006

and CP-33-CR-0000075-2006

BEFORE: PANELLA, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 28, 2015

D.D.K.1(Appellant) appeals pro se from the December 8, 2014 order 

which dismissed his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm. 

In 2006, a jury convicted Appellant at the above two docket numbers 

of 89 counts of various crimes, including rape and incest, committed upon 

his minor daughters. In 2007, Appellant was given an aggregate sentence 

of 220 to 440 years of imprisonment. Appellant’s judgment of sentence 

became final in 2009, after this Court found no merit to the issues raised on 

his direct appeal, and our Supreme Court denied his petition for allowance of 

appeal. Commonwealth v. D.D.K., 970 A.2d 471 (Pa. Super. 2009) 

 

1

Pursuant to Superior Court I.O.P. 424, we do not include Appellant’s name 

to protect the confidentiality of the minor victims. 
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(unpublished memorandum), appeal denied, 981 A.2d 218 (Pa. 2009). 

Appellant’s first PCRA petition was denied after a hearing, this Court 

affirmed, and our Supreme Court again denied his petition for allowance of 

appeal. Commonwealth v. [D.D.K.], 34 A.3d 226 (Pa. Super. 2011) 

(unpublished memorandum), appeal denied, 40 A.3d 120 (Pa. 2012). 

On October 20, 2014, Appellant filed at both docket numbers the 

petition that is the subject of the instant appeal. Because the petition 

appeared to be untimely filed, the PCRA court issued notice of its intent to 

dismiss the petition without a hearing, and Appellant filed a response. On 

December 8, 2014, the PCRA court entered an opinion and order denying 

Appellant’s petition based upon lack of jurisdiction. Appellant timely filed a 

notice of appeal, and both Appellant and the PCRA court complied with 

Pa.R.A.P. 1925.

Appellant raises three issues on appeal; however, we need only 

address the first: “Did the trial court abuse its discretion by denying 

Appellant’s PCRA petition, by deciding that [the] appellate court’s decision 

on new precedent case law, did not meet the standard for after discovered 

evidence?” Appellant’s Brief at VI (unnecessary capitalization omitted). 

The timeliness of a post-conviction petition is jurisdictional. See, 

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013) 

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f 
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a PCRA petition is untimely, neither this Court nor the [PCRA] court has 

jurisdiction over the petition. Without jurisdiction, we simply do not have 

the legal authority to address the substantive claims.”). Generally, a 

petition for relief under the PCRA, including a second or subsequent petition, 

must be filed within one year of the date the judgment of sentence is final. 

Exceptions exist if the petition alleges, and the petitioner proves, that one of 

the following exceptions to the time for filing the petition is met:

(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). Further, for an exception to apply, the claim must be 

raised within 60 days of the date on which it became available. 42 Pa.C.S. 

§ 9545(c). 

It is clear that Appellant’s 2014 petition is facially untimely: his 

judgment of sentence became final in 2009. Appellant alleges that his 

petition meets a timeliness exception because the decisions in Alleyne v. 

United States, ––– U.S. –––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and 
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Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), 

constitute after-discovered evidence that was not available at the time of 

Appellant’s trial. See PCRA Petition, 10/20/2014, at 5 (pages unnumbered); 

Appellant’s Brief at 5. 

Appellant’s argument is meritless. After-discovered evidence is a 

substantive claim which may entitle a petitioner to PCRA relief; it is not one 

of the exceptions to the one-year time bar. See 42 Pa.C.S. § 9543(a)(2)(vi) 

(“To be eligible for relief under this subchapter, the petitioner must plead 

and prove by a preponderance of the evidence all of the following: ... That 

the conviction or sentence resulted from one or more of the following: ... The 

unavailability at the time of trial of exculpatory evidence that has 

subsequently become available and would have changed the outcome of the 

trial if it had been introduced.”).2 

Assuming that Appellant intended to use the Alleyne and Newman 

cases as the bases for the newly-discovered-facts exception to the timeliness 

requirement, that claim is unavailing: “Our Courts have expressly rejected 

the notion that judicial decisions can be considered newly-discovered facts 

 

2

Further, Appellant offers no explanation of how the Alleyne and Newman

decisions constitute “evidence,” exculpate him, or would lead to a different 

outcome at trial. See, e.g., Commonwealth v. Carbone, 707 A.2d 1145, 

1148 n. 6 (Pa. Super. 1998) (“[T]o sustain a collateral petition for a new 

trial on the basis of after-discovered evidence, the evidence must have been 

unavailable at trial, it must be exculpatory, and it must be of such a quality 

that it would change the outcome of the trial.”).
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which would invoke the protections afforded by section 9545(b)(1)(ii).” 

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citing 

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011)). Moreover, 

Appellant cannot utilize the decisions to satisfy the section 9545(b)(1)(iii) 

exception because neither Supreme Court has held that Alleyne applies 

retroactively to cases on collateral review, and Newman is not even a 

decision of one of the Supreme Courts.

Appellant’s PCRA petition was filed more than one year after his 

judgment of sentence became final and there is no applicable timeliness 

exception alleged. Accordingly, the PCRA court properly dismissed the 

petition for lack of jurisdiction.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015