J-S12038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARVELL RICE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1065 EDA 2021

Appeal from the PCRA Order Entered May 3, 2021

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

No(s): CP-51-CR-1215161-1990

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 17, 2022

Appellant, Carvell Rice, appeals pro se from the May 3, 2021 Order 

entered in the Philadelphia County Court of Common Pleas dismissing his 

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-46, as untimely. After careful review, we affirm.

On December 2, 1991, a jury convicted Appellant of Second-Degree

Murder, Robbery, Possessing an Instrument of Crime (“PIC”), and Criminal 

Conspiracy. The court sentenced him to a term of life imprisonment.

1 This 

Court affirmed Appellant’s judgment of sentence on November 21, 1995, and 

our Supreme Court denied allocatur. See Commonwealth v. Rice, 673 A.2d 

404 (Pa. Super. 1995) (unpublished memorandum), allocatur denied, 675 

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1 The court also imposed concurrent sentences of 5 to 10 years’ incarceration 

and 21⁄2 to 5 years’ incarceration for Appellant’s Conspiracy and PIC 

convictions, respectively.
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A.2d 1256 (Pa. 1996). Appellant’s judgment of sentence became final on July 

10, 1996. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13(1).

Appellant filed three prior petitions seeking post-conviction relief, none 

of which garnered relief.

On June 29, 2015, almost 20 years after his judgment of sentence 

became final, Appellant pro se filed the instant PCRA Petition, his fourth. On 

October 7, 2015, Appellant pro se filed a Supplemental PCRA Petition. In his 

Petition and Supplemental Petition, Appellant asserted that the 

Commonwealth violated his constitutional right to confront his accuser by 

failing to present Philadelphia Police Detective Richard Tyer—the author of and 

affiant to the criminal complaint in this matter—as a witness at Appellant’s 

trial. Petition, 6/29/15, at 5-7 (unpaginated). Appellant also claimed that his 

trial counsel had been ineffective for failing to investigate and request copies 

of the criminal complaint and affidavit of probable cause. Id. at 8-9. 

Appellant acknowledged the patent untimeliness of his Petition but invoked 

the “new facts” and “governmental interference” exceptions to the PCRA’s 

time-bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(ii). In support of his invocation of 

the “new facts” exception, Appellant appended to his Petition copies of his 

criminal complaint, Right to Know request forms, and correspondence 

between Appellant and the Pennsylvania Office of Open Records. Petition at 

Exh. 

On March 25, 2021, the PCRA court notified Appellant of its intent to 

dismiss Appellant’s Petition without a hearing pursuant to Pa.R.Crim.P. 907. 
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The court noted that Appellant’s Petition was untimely, and that Appellant had 

failed to plead and prove an applicable exception to the PCRA’s jurisdictional 

time-bar. Appellant did not file a response to the court’s Rule 907 Notice. On 

May 3, 2021, the PCRA court dismissed Appellant’s Petition as untimely. 

This timely pro se appeal followed. The PCRA court prepared a Pa.R.A.P. 

1925(a) opinion but did not order Appellant to file a Rule 1925(b) Statement.

Appellant raises the following four issues for our review:

1. Whether Appellant satisfied 42 Pa.C.S. § 9545(b)(1)(ii) which 

gives the PCRA court jurisdiction over all claims under its 

subsection?

2. Whether the lower court’s “independent review” was contrary 

to or involved an unreasonable application of clearly 

established federal law, where both lower court judge[’]s 

determination had no basis with Appellant’s sixth amendment 

confrontation clause claim?

3. Whether trial counsel rendered ineffective assistance [by] 

failing to protect Appellant[’]s fourth and sixth amendment 

constitutional rights, and failure to seek disclosure and review 

the criminal complaints and affidavits of probable cause?

4. Whether Appellant[’]s fourth and fourteenth amendment 

constitutional rights were violated[] when Appellant was 

arrested absent affidavits of probable cause?

Appellant’s Brief at 7.

We review the denial of a PCRA Petition to determine whether the record 

supports the PCRA court’s findings and whether its order is otherwise free of 

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). Before 

addressing the merits of Appellant’s claims, however, we must first determine 

whether we have jurisdiction to entertain the underlying PCRA Petition. Under 
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the PCRA, any petition “including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final[.]” 42 Pa.C.S. § 

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 Pennsylvania, or at the expiration of time 

for seeking the review.” 42 Pa.C.S. § 9545(b)(3). 

The PCRA’s timeliness requirements are jurisdictional in nature, and a 

PCRA court may not address the merits of the issues raised if the petitioner 

did not timely file the PCRA petition. Commonwealth v. Albrecht, 994 A.2d 

1091, 1093 (Pa. 2010). In fact, no court has jurisdiction to review the merits 

of the claims raised in an untimely PCRA Petition. Commonwealth v. 

Lambert, 884 A.2d 848, 851 (Pa. 2005).

Appellant has conceded that his Petition is untimely but invokes the 

timeliness exception under Section 9545(b)(1)(ii).2 To satisfy this exception, 

a petitioner must plead and prove “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.” 42 Pa.C.S. § 9545(b)(1)(ii). Our Supreme Court 

has held that this exception “does not require any merits analysis of the 

underlying claim.” Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 

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2 As noted above, in his Petition, Appellant also invoked the “governmental 

interference” exception set forth at Section 9545(b)(1)(i). In his Brief, 

however, he confines his argument to applicability of the “new facts” exception

to the PCRA’s time-bar. Thus, we conclude that Appellant has abandoned his 

claim that the “governmental interference” exception excuses the 

untimeliness of the Petition and we do not consider it.
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2007). Rather the exception merely requires the petitioner to plead and prove 

two elements: “1) the facts upon which the claim was predicated were 

unknown and 2) could not have been ascertained by the exercise of due 

diligence.” Id. at 1272 (internal quotation marks omitted), citing 42 Pa.C.S. 

§ 9545(b)(1)(ii).

Due diligence requires a petitioner to make reasonable efforts to 

uncover facts that may support a claim for collateral relief. Commonwealth 

v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015). Moreover, a petitioner 

must explain why he could not have learned the new facts earlier by exercising 

due diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).

Notably, a petitioner does not satisfy the Section 9545(b)(1)(ii) timebar exception where he merely alleges a newly discovered or newly willing 

source for previously known facts. Commonwealth v. Marshall, 947 A.2d 

714, 721 (Pa. 2008). 

Here, Appellant claimed that he discovered that Detective Tyer, the 

affiant of the criminal complaint, was not called as a witness at trial and 

supported the claim with the purported “new evidence” of, inter alia, the 

criminal complaint. 

The PCRA court concluded that Appellant had not satisfied the “new 

facts” exception to the PCRA’s time-bar because Appellant failed to 

demonstrate that the “fact” that the Commonwealth did not call Detective Tyer 

as a witness was not previously unknown to Appellant. Rule 907 Notice, 

3/25/21, at 2; PCRA Ct. Op., 5/19/21, at 1. We agree. 
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Moreover, we observe that the criminal complaint and affidavit of 

probable cause Appellant claims to have just “discovered” would have been 

readily available to him at the time of trial. Further, Appellant did not explain 

why he could not discover earlier the documents upon which he relies to 

support his claim. Appellant has simply failed to proffer any evidence to 

demonstrate that he made any effort to obtain the criminal complaint or 

related documents, or the information contained in them, at an earlier time. 

Thus, even if Appellant had discovered a “new fact,” Appellant has failed to 

plead and prove that he could not have ascertained this information by the 

exercise of due diligence.

Accordingly, the PCRA court properly concluded that Appellant failed to 

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. § 

9545(b)(1) and properly dismissed Appellant’s Petition as untimely.

We, thus, affirm the denial of PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2022