J-S74010-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY DAVID A/K/A TYRONE 

DAVIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2308 EDA 2019

Appeal from the PCRA Order Entered July 12, 2019

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

No(s): CP-51-CR-1209481-1999

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 31, 2020

Appellant, Timothy David A/K/A Tyrone Davis, appeals pro se from the 

post-conviction court’s July 12, 2019 order dismissing, as untimely, his 

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

On June 9, 2000, a jury convicted Appellant of three counts each of 

attempted murder and aggravated assault, as well as single counts of 

possessing an instrument of crime and criminal conspiracy. These convictions 

were premised on evidence that Appellant and two cohorts initiated a gun 

battle on a residential street in Philadelphia, during which three people —

including a four-year-old child — were shot. On October 4, 2000, Appellant

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* Former Justice specially assigned to the Superior Court.
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was sentenced to an aggregate term of 35 to 70 years’ incarceration for his 

convictions. Due to procedural circumstances we need not discuss herein, it 

was not until November 14, 2005, that we affirmed Appellant’s judgment of 

sentence on direct appeal. Commonwealth v. Davis, 890 A.2d 1096 (Pa. 

Super. 2005) (unpublished memorandum). Our Supreme Court denied his 

subsequent petition for allowance of appeal on May 9, 2006. Commonwealth 

v. Davis, 989 A.2d 1069 (Pa. 2006). 

Over the ensuing years, Appellant filed several PCRA petitions, all of 

which were denied. On April 26, 2017, he filed the pro se petition underlying 

the present appeal. Therein, he claimed that he had discovered the new fact 

that his “co-defendant[,] Bruce Wayne Burdine[,] will testify that [Appellant] 

did no shooting.” PCRA Petition, 4/26/17, at 3. Appellant further averred 

that, “[a] third party investigating on [his] behalf obtained a statement from 

Mr. ... Burdine.” Id. at 4. Appellant did not attach that statement to his 

petition, but he claimed that he was “waiting for a copy of Mr. Burdine’s 

affidavit, and [he would] promptly forward it to the court within 60 days of 

the docketing of this PCRA [petition].” Id. at 5. However, Appellant never 

filed any supplement to his petition containing Mr. Burdine’s affidavit.

Nearly two years later, on March 12, 2019, the PCRA court issued a 

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition. While 

Appellant filed a response to the court’s Rule 907 notice arguing that Mr. 

Burdine’s affidavit was ‘new evidence,’ he again failed to attach the affidavit
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to his response. Consequently, on July 12, 2019, the court issued an order 

dismissing his petition. 

Appellant filed a timely, pro se notice of appeal. The court filed a 

Pa.R.A.P. 1925(a) opinion on August 23, 2019. Herein, Appellant states a 

single issue for our review: “Whether the PCRA court erred when denying 

[Appellant] an evidentiary [hearing], based on an affidavit providing evidence 

that [Appellant] did not have a gun, nor did [he] plan on shooting anyone.” 

Appellant’s Brief at 3.

This Court’s standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

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

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the 

timeliness of Appellant’s petition, because the PCRA time limitations implicate 

our jurisdiction and may not be altered or disregarded in order to address the 

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 

2007) (stating PCRA time limitations implicate our jurisdiction and may not be 

altered or disregarded to address the merits of the petition). Under the PCRA, 

any petition for post-conviction relief, including a second or subsequent one, 

must be filed within one year of the date the judgment of sentence becomes 

final, unless one of the following exceptions set forth in 42 Pa.C.S. § 

9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--
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(1) Any petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year of the 

date the judgment becomes final, unless the petition alleges 

and the petitioner proves that: 

(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, at the time Appellant’s petition 

was filed, section 9545(b)(2) required that any petition attempting to invoke 

one of these exceptions “be filed within sixty days of the date the claim could 

have been presented.” 42 Pa.C.S. § 9545(b)(2).1

Here, Appellant’s judgment of sentence became final on August 7, 2006, 

ninety days after our Supreme Court denied his petition for allowance of 

appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence 

becomes final at the conclusion of direct review or the expiration of the time 

for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. 

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1 A recent amendment to section 9545(b)(2), which became effective on 

December 24, 2018, changed the language to require that a petition “be filed 

within one year of the date the claim could have been presented.” 42 Pa.C.S. 

§ 9545(b)(2). That amendment only applies to claims arising on or after 

December 24, 2017. 
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Super. 1998) (directing that under the PCRA, petitioner’s judgment of 

sentence becomes final ninety days after our Supreme Court rejects his or her 

petition for allowance of appeal since petitioner had ninety additional days to 

seek review with the United States Supreme Court). Thus, Appellant had until 

August 7, 2007, to file a timely petition, making his present petition filed in 

April of 2017 facially untimely. Consequently, for this Court to have 

jurisdiction to review the merits thereof, Appellant must prove that he meets 

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 

9545(b). 

Appellant argues that he meets the after-discovered evidence exception 

of section 9545(b)(1)(ii) based on the affidavit he received from Mr. Burdine, 

which he has attached to his appellate brief. In that affidavit, Mr. Burdine 

states, in pertinent part, that Appellant was not with him during the shooting. 

He also explains that he did not testify about Appellant’s innocence at trial 

because he “was advised by [his] attorney to remain silent....” Appellant’s 

Brief at Exhibit B (Mr. Burdine’s Affidavit). According to Appellant, 

[t]he affidavit by Mr. Burdine establishes newly discovered facts, 

that if known by [Appellant], and used at trial, ... would have 

undermined the testimony used to convict. Equally important, the 

affidavit would have given reasonable expectation that the codefendant’s trial counsel impeded Mr. Burdine from testifying at 

the trial. His testimony exonerates [Appellant] of any criminal 

intent to murder, assault, or any other criminal act. 

Appellant’s Brief at 6.

Problematically, Appellant never presented Mr. Burdine’s affidavit to the 

PCRA court. Thus, the affidavit is not part of the certified record, and we may 
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not consider it in assessing if Appellant has met a timeliness exception. See 

Bennyhoff v. Pappert, 790 A.2d 313, 318 (Pa. Super. 2001) (stating “[i]t is 

black letter law in this jurisdiction that an appellate court cannot consider 

anything which is not part of the record in [the] case”). Without the affidavit, 

we discern no error in the PCRA court’s denying Appellant’s petition without a 

hearing.

In any event, even had Appellant provided the PCRA court with the 

affidavit, we would affirm the court’s order denying him relief. The record 

demonstrates that Mr. Burdine informed police of Appellant’s innocence in a 

statement made prior to trial, a fact which Appellant knew and acknowledged 

in at least two prior PCRA petitions. See PCRA Petition, 5/14/10, at 4 

(acknowledging that Mr. Burdine gave an “initial statement in which he stated 

that [Appellant] was not one of the individuals that was with him during the 

shooting”); PCRA Petition, 8/20/12, at 5 (recognizing “[Mr.] Burdine[’s] initial 

police statement, stating that [Appellant] was not one of the individuals that 

was with him during the shooting”). Thus, Mr. Burdine’s current affidavit

attesting to Appellant’s innocence is merely a new source of a previously 

known fact. Commonwealth Marshall, 947 A.2d 714, 720 (Pa. 2008) (“The 

focus of the [after-discovered fact] exception is on [the] newly discovered 

facts, not on a newly discovered or newly willing source for previously known 

facts.”) (internal quotation marks omitted; emphasis added). 

Moreover, even if the ‘new fact’ were the affidavit itself (and not the 

fact(s) set forth therein), Appellant does not explain why he could not have 
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obtained Mr. Burdine’s affidavit earlier. Clearly, Appellant knew, at least as 

early as 2010, that Mr. Burdine told police that Appellant was innocent. Thus, 

Appellant must explain why he could not have obtained the affidavit from Mr. 

Burdine setting forth this exonerating information earlier than 2017. Appellant 

has failed to meet this burden of establishing due diligence. Thus, we would 

affirm the order denying his petition on this basis, as well.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/31/20