J-S28013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARKCAIL WILLIAMS 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1156 WDA 2022

Appeal from the Order Entered September 6, 2022

In the Court of Common Pleas of Erie County 

Criminal Division at No(s): CP-25-CR-0002050-2017

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: October 30, 2023

Markcail Williams appeals pro se from the order entered in the Erie 

County Court of Common Pleas, dismissing his serial petition filed pursuant to 

the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546 as 

untimely. After careful review, we affirm.

In January 2018, Williams entered a guilty plea to aggravated assault 

and discharge of a firearm into an occupied structure. Shortly thereafter, 

Williams sent a pro se letter to the court seeking to withdraw his guilty plea, 

based on his claim that plea counsel had lied to him about the plea agreement. 

This correspondence was forwarded to Williams’s counsel of record. Counsel 

then filed a motion to withdraw from representation. After a hearing, the trial 

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-S28013-23

- 2 -

court denied both Williams’s request to withdraw his guilty plea and counsel’s 

motion to withdraw. 

In April 2018, the trial court sentenced Williams to an aggregate term 

of 90 to 240 months’ imprisonment. Williams did not file any post-sentence 

motions or a direct appeal. 

On December 6, 2018, Williams filed a timely pro se PCRA petition, in 

which he raised claims of ineffective assistance of plea counsel. PCRA counsel 

was appointed but did not file an amended petition. Instead, counsel filed a 

Turner/Finley no-merit letter,1 along with a petition to withdraw as counsel. 

The PCRA court granted counsel leave to withdraw and issued notice of its 

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. 

The PCRA court subsequently dismissed the petition.2

____________________________________________

1 Counsel petitioning to withdraw from PCRA representation must proceed 

under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) 

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

must review the record, submit a “no-merit” letter evaluating the issues the 

petitioner wishes to address and explaining their lack of merit, request 

permission to withdraw, and send the “no-merit” letter and petition to 

withdraw to their client along with an explanation of their right to proceed pro 

se.

2 The certified record contains a pro se notice of appeal filed by Williams on 

May 8, 2019. However, this notice of appeal was apparently never processed 

by the trial court prothonotary because Williams did not pay a filing fee or 

seek to proceed in forma pauperis. See Letter, 5/10/2019.
J-S28013-23

- 3 -

On December 23, 2019, Williams filed a second pro se PCRA petition. 

After issuing notice pursuant to Rule 907, the PCRA court later dismissed the 

PCRA petition as untimely. See Order, 1/27/2020.

On February 13, 2020, Williams filed a third pro se PCRA petition. Again, 

after issuing notice pursuant to Rule 907, the PCRA court dismissed the PCRA 

petition as untimely. See Order, 3/24/2020.

On December 8, 2020, Williams filed a pro se “Petition For Sentence 

Modification and Status”. In this filing, Williams sought a modification of his 

allegedly illegal sentence. See Petition, 12/8/2020, at 2. The PCRA court 

properly treated this motion as a fourth PCRA petition, see Commonwealth 

v. Taylor, 65 A.3d 462, 467-68 (Pa. Super. 2013), and issued notice pursuant 

to Rule 907, finding the petition untimely. Williams filed a response in which 

he argued he should have been allowed to introduce evidence of ineffective 

assistance of all prior counsel, and that the PCRA court should have appointed 

him counsel. The court subsequently dismissed the petition. We affirmed the 

dismissal on appeal. See Commonwealth v. Williams, 141 WDA 2021 (Pa. 

Super. filed June 15, 2021) (unpublished memorandum). Williams filed a 

petition for allowance of appeal with the Pennsylvania Supreme Court, 

followed by a “Motion to Amend New Evidence”, in which he sought to amend 

his motion to include newly discovered evidence in the form of a victim 

affidavit exonerating him. On December 7, 2021, our Supreme Court denied 

both the petition for allowance of appeal and the motion to amend. 
J-S28013-23

- 4 -

On May 13, 2022, Williams filed the instant pro se PCRA petition, his 

fifth. In the petition, Williams asserted an exception to the PCRA time-bar 

based on the same victim affidavit he sought to present to the Supreme Court. 

Williams alleged this affidavit was not made known to him until January 23, 

2020. After issuing notice pursuant to Rule 907, the PCRA dismissed the 

petition. On September 30, 2022, after being granted nunc pro tunc relief, 

Williams filed the instant timely appeal. 

Prior to reaching the merits of Williams’s claims on appeal, we must 

consider the timeliness of his PCRA petition. See Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa. Super. 2014).

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

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

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

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). 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 for seeking such review. 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) (internal citations 

and footnote omitted).

Since Williams did not file a post-sentence motion or a direct appeal, his 

judgment of sentence became final on May 3, 2018, 30 days after the entry 

of the judgment of sentence, when his time for seeking direct review with this 
J-S28013-23

- 5 -

Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes 

final “at the conclusion of direct review ... or at the expiration of time for 

seeking the review”). The instant petition – filed four years later – is patently 

untimely.

As a result, the PCRA court lacked jurisdiction to review Williams’s 

petition unless he was able to successfully plead and prove one of the 

statutory exceptions to the PCRA’s time-bar. See 42 Pa.C.S.A. § 

9545(b)(1)(i)-(iii).

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 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.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in 

the petition and may not be raised for the first time on appeal. See 

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also

Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are 

waived and cannot be raised for the first time on appeal). Further,

although this Court is willing to construe liberally materials filed 

by a pro se litigant, pro se status generally confers no special 
J-S28013-23

- 6 -

benefit upon an appellant. Accordingly, a pro se litigant must 

comply with the procedural rules set forth in the Pennsylvania 

Rules of the Court. This Court may quash or dismiss an appeal if 

an appellant fails to conform with the requirements set forth in 

the Pennsylvania Rules of Appellate Procedure.

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003) 

(citations omitted). 

Even liberally construed, Williams has failed to plead and prove that any 

of his claims constitute a valid exception to the PCRA time-bar. Williams 

asserts he meets the requirements of Section 9545(b)(1)(ii), i.e., the newly 

discovered fact exception to the PCRA’s time-bar, based on a victim affidavit

stating Williams did not shoot him.

Section 9545(b)(1)(ii) requires Williams to allege and prove that there 

were facts that were unknown to him and that he could not have ascertained 

those facts by the exercise of due diligence. See Commonwealth v. 

Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). “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. Marshall, 947 A.2d 

714, 720 (Pa. 2008) (citation and brackets omitted). “Due diligence demands 

that the petitioner take reasonable steps to protect his own interests. A 

petitioner must explain why he could not have learned of the new fact(s) 

earlier with the exercise of due diligence.” Commonwealth v. Williams, 35 

A.3d 44, 53 (Pa. Super. 2011) (citations omitted).
J-S28013-23

- 7 -

Williams filed his petition after becoming aware of the victim’s affidavit 

in which the victim exonerates Williams. However, the affidavit itself is not a 

new fact. See Commonwealth v. Maxwell, 232 A.3d 739, 745 (Pa. Super. 

2020). The actual “fact” for purposes of Section 9545(b)(1)(ii) is that Williams 

was not the shooter. See Commonwealth v. Marshall, 947 A.2d 714, 720 

(Pa. 2008) (holding that an affidavit alleging perjury does not satisfy the 

requirements of the newly discovered fact exception “because the only ‘new’ 

aspect of the claim was that a new witness had come forward to testify 

regarding the previously raised claim.” (citation omitted)).

It is clear from a review of the record that the affidavit is merely a new 

conduit for information already known by Williams. The underlying assertion 

that Williams was not the shooter is not a “new fact” to Williams, as he made 

the same argument in his pretrial filings prior to choosing to plead guilty. 

Accordingly, Williams’s allegation of newly discovered evidence does not 

qualify his petition for an exception to the PCRA’s time-bar.

Further, Williams contends he filed his petition within one year of the 

date he discovered the victim’s affidavit. However, Williams admits he became 

aware of the victim’s letter in January 2020. Over a year and half then passed, 

during which time Williams filed two PCRA petitions, neither of which 

mentioned the affidavit. In November 2021, Williams filed a motion to amend 

a petition for allowance of appeal with our Supreme Court, for the sole purpose 

of attaching the victim’s affidavit as “newly discovered evidence.” Despite 
J-S28013-23

- 8 -

attaching the affidavit to a filing at that time, another five months then passed 

from the Supreme Court’s denial of Williams’s petition for allowance of appeal 

before Williams filed the instant PCRA petition, again claiming the affidavit as 

“newly discovered”. 

In his petition, Williams claims the clock did not start until he received 

the affidavit in January 2020, and that the clock “again halted due to 

Statewide Judicial Emergency issued by PA Supreme Court in May 2020.” 

PCRA Petition, 5/13/2022, at 8. However, Williams does not indicate why he 

was unable to file a petition within the five months between those two dates. 

Nor does he explain how he was able to file two PCRA petitions prior to the 

current petition in which he failed to address the affidavit, or why another five 

months passed after he raised the affidavit with our Supreme Court. 

As such, Williams has failed to show he exercised due diligence, or that 

he filed his petition within one year of learning of the newly discovered fact. 

As the PCRA court properly concluded Williams’s PCRA petition was untimely 

and does not fall under an exception to the PCRA time bar, we affirm the PCRA 

court’s order dismissing the petition.

Order affirmed. 
J-S28013-23

- 9 -

10/30/202310/30/2023