J-S27023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NAREE ABDULLAH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2029 EDA 2016

Appeal from the PCRA Order May 17, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0601182-1995

BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.: FILED MAY 23, 2017

Naree Abdullah appeals from the order entered May 17, 2016, in the 

Philadelphia County Court of Common Pleas, denying, as untimely, his 

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 

Abdullah seeks relief from the judgment of sentence of an aggregate term of 

life imprisonment imposed on May 13, 1996, after his jury conviction of 

second-degree murder, robbery (three counts) and conspiracy,2for his 

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* Retired Senior Judge assigned to the Superior Court.

1 See 42 Pa.C.S. §§ 9541-9546. Although this is technically Abdullah’s third 

petition, his direct appeal rights were reinstated, nunc pro tunc, as a result 

of his first petition. Therefore, this is only the second petition Abdullah has 

filed after his judgment of sentence became final.

2 See 18 Pa.C.S. §§ 2502(b), 3701, and 903, respectively.
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participation in the 1993 robbery of a market in North Philadelphia that 

resulted in the death of the store owner. On appeal, Abdullah contends the 

PCRA court erred in dismissing his petition as untimely filed without first 

conducting an evidentiary hearing on his claim of newly discovered evidence. 

For the reasons below, we affirm.

The facts underlying Abdullah’s arrest and conviction are well-known 

to the parties and need not be recited herein. For our purposes, we note 

Abdullah was one of five co-conspirators charged with the crimes, although 

he was not the shooter. See Commonwealth v. Abdullah, 880 A.2d 2 

[1799 EDA 2004] (Pa. Super. 2005) (unpublished memorandum at 1-2), 

appeal denied, 890 A.2d 1055 (Pa. 2005). On March 13, 1996, a jury 

convicted Abdullah of the above-stated charges, and he was sentenced, on 

May 13, 1996, to an aggregate term of life imprisonment.

On June 12, 2001, a panel of this Court affirmed Abdullah’s sentence 

on direct appeal nunc pro tunc, and the Supreme Court subsequently denied 

his petition for review.3 See Commonwealth v. Abdullah, 779 A.2d 1213 

(Pa. Super. 2001) (unpublished memorandum), appeal denied, 796 A.2d 

313 (Pa. 2002). 

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3 Abdullah’s initial direct appeal was dismissed based on his failure to file a 

brief. However, as noted supra, his direct appeal rights were later 

reinstated, nunc pro tunc, when he sought, and was granted, PCRA relief. 
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In July of 2002, Abdullah filed a timely PCRA petition, asserting he was 

entitled to a new trial on the basis of newly discovered evidence, specifically 

that co-defendant, Demond Jackson, was willing to recant his trial testimony 

implicating Abdullah, and two other co-defendants would corroborate his 

new testimony. See Abdullah, supra, 880 A.2d 2 (unpublished 

memorandum at 3). The PCRA court conducted an evidentiary hearing, but 

later dismissed Abdullah’s petition. On appeal, a panel of this Court 

affirmed, refusing to interfere with the PCRA court’s credibility determination 

regarding the recantation testimony. See id. (unpublished memorandum at 

7-9). The Pennsylvania Supreme Court again denied Abdullah’s petition for 

review. See Commonwealth v. Abdullah, 890 A.2d 1055 (Pa. 2005).

On December 23, 2013, Abdullah filed the instant PCRA petition, pro 

se, again asserting he was entitled to relief based upon newly discovered 

evidence. He attached to his petition two affidavits, one from witness, Zahir 

Wise, and one from non-testifying co-defendant, Gregory Womak, both of 

which stated Abdullah was not involved in the robbery and shooting.4 He 

subsequently filed an amended and a supplemental request for relief on July 

22, 2015, and August 24, 2015, respectively. On April 8, 2016, the PCRA 

court sent Abdullah notice of its intention to dismiss his petition as untimely 

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4 We note that on appeal, Abdullah has abandoned his claim regarding 

Womack’s affidavit.
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filed without first conducting an evidentiary hearing. Although Abdullah filed 

a response to the court’s notice, the PCRA court ultimately dismissed the 

petition on May 17, 2016. Abdullah filed a motion for reconsideration on 

June 1, 2016, followed by a timely notice of appeal on June 15, 2016.5

The sole issue Abdullah raises on appeal challenges the PCRA court’s 

dismissal of his petition without first conducting an evidentiary hearing. 

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) 

(internal punctuation and citation omitted). Further, a PCRA court may 

dismiss a petition “without an evidentiary hearing if there are no genuine 

issues of material fact and the petitioner is not entitled to relief.” Id.

(citations omitted).

Here, the PCRA court concluded Abdullah’s petition was untimely filed. 

See PCRA Court Opinion, 9/22/2016, at 7. 

The PCRA timeliness requirement ... is mandatory and 

jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d 

1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951 

A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 

1, 753 A.2d 201, 203 (2000)). The court cannot ignore a 

petition’s untimeliness and reach the merits of the petition. Id.

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5 The PCRA court did not order Abdullah to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied, 

134 S.Ct. 2695 (U.S. 2014).

A PCRA petition must be filed within one year of the date the 

underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). Abdullah’s 

judgment of sentence was final on April 10, 2002, 90 days after the 

Pennsylvania Supreme Court denied his petition for allowance of appeal from 

his direct appeal, and he failed to petition for a writ of certiorari in the United 

States Supreme Court. See id. at § 9545(b)(3); United States Supreme 

Court Rule 13. Therefore, Abdullah had until April 10, 2003, to file a timely 

petition, and the one before us, filed more than 10 years later, is patently 

untimely. 

Nevertheless, an untimely PCRA petition may still be considered if one 

of the three time-for-filing exceptions applies. See 42 Pa.C.S. § 

9545(b)(1)(i)-(iii). A PCRA petition alleging any of the exceptions under 

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim 

could have first been brought. 42 Pa.C.S. § 9545(b)(2).

In the present case, Abdullah asserts his petition meets the timeliness 

exception for newly discovered facts found in Section 9545(b)(1)(ii). This 

Court has explained the interplay between the newly discovered facts 

exception to the timeliness requirements and a substantive collateral claim 

of after-discovered evidence. 

The timeliness exception set forth in Section 9545(b)(1)(ii) 

requires a petitioner to demonstrate he did not know the facts 
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upon which he based his petition and could not have learned 

those facts earlier by the exercise of due diligence. 

Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 

1271 (2007). Due diligence demands that the petitioner take 

reasonable steps to protect his own interests. Commonwealth 

v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner 

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

earlier with the exercise of due diligence. Commonwealth v. 

Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001); 

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. 

Super.2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). 

This rule is strictly enforced. Id. Additionally, the focus of this 

exception “is on the newly discovered facts, not on a 

newly discovered or newly willing source for previously 

known facts.” Commonwealth v. Marshall, 596 Pa. 587, 

596, 947 A.2d 714, 720 (2008) (emphasis in original).

The timeliness exception set forth at Section 9545(b)(1)(ii) 

has often mistakenly been referred to as the “after-discovered 

evidence” exception. Bennett, supra at 393, 930 A.2d at 1270. 

“This shorthand reference was a misnomer, since the plain 

language of subsection (b)(1)(ii) does not require the petitioner 

to allege and prove a claim of ‘after-discovered evidence.’” Id.

Rather, as an initial jurisdictional threshold, Section 

9545(b)(1)(ii) requires a petitioner to allege and prove that 

there were facts unknown to him and that he exercised due 

diligence in discovering those facts. See 42 Pa.C.S.A. § 

9545(b)(1)(ii); Bennett, supra. Once jurisdiction is 

established, a PCRA petitioner can present a substantive afterdiscovered-evidence claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) 

(explaining that to be eligible for relief under PCRA, petitioner 

must plead and prove by preponderance of evidence that 

conviction or sentence resulted from, inter alia, unavailability at 

time of trial of exculpatory evidence that has subsequently 

become available and would have changed outcome of trial if it 

had been introduced). In other words, the “new facts” exception 

at:

[S]ubsection (b)(1)(ii) has two components, which must 

be alleged and proved. Namely, the petitioner must 

establish that: 1) the facts upon which the claim was 

predicated were unknown and 2) could not have been 

ascertained by the exercise of due diligence. If the 

petitioner alleges and proves these two components, then 
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the PCRA court has jurisdiction over the claim under this 

subsection.

Bennett, supra at 395, 930 A.2d at 1272 (internal citations 

omitted) (emphasis in original). Thus, the “new facts” exception 

at Section 9545(b)(1)(ii) does not require any merits analysis of 

an underlying after-discovered-evidence claim. Id. at 395, 930 

A.2d at 1271.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) 

(some emphasis added), appeal denied, 125 A.3d 1197 (Pa. 2015). 

Accordingly, before we may consider whether Abdullah’s substantive claim of 

after-discovered evidence merits relief,6 we must first determine whether he 

has established “there were facts unknown to him and that he exercised due 

diligence in discovering those facts.” Id. at 176. 

Here, Abdullah argues the affidavit he submitted from Wise satisfies 

the newly discovered facts exception to the timeliness requirements, and the 

PCRA court erred in dismissing his petition without first conducting an 

evidentiary hearing. In the affidavit, Wise attests Abdullah was leading an 

Islamic service at the time the crime was committed, and Wise failed to 

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6

 To obtain relief based upon a substantive claim of after-discovered 

evidence, a petitioner must demonstrate the evidence: 

(1) could not have been obtained prior to the conclusion of the 

trial by the exercise of reasonable diligence; (2) is not merely 

corroborative or cumulative; (3) will not be used solely to 

impeach the credibility of a witness; and (4) would likely result 

in a different verdict if a new trial were granted.

Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009) (quotation 

omitted), cert. denied, 562 U.S. 857 (2010).
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come forward previously because of his “hard feelings” against Abdullah. 

Declaration of Zahir Wise, 9/10/2013, at 1. 

Although Wise signed the affidavit on September 10, 2013, Abdullah 

maintains he did not receive the affidavit until November 8, 2013, after 

which he filed his petition for relief less than 60 days later on December 17, 

2013. See 42 Pa.C.S. § 9545(b)(2). He summarily states the “facts of [his] 

claim were previously unknown and could not have been ascertained by the 

exercise of due diligence.” Abdullah’s Brief at 8. Indeed, he asserts the 

discovery of this evidence was “dependent on Mr. Wise coming forward.” 

Id. at 9.

Assuming Abdullah submitted the petition within the requisite 60-day 

period,7 we conclude he is entitled to no relief. The previously unknown 

“fact” alleged in the affidavit is that Abdullah was leading a religious service 

at the time of the crime. Indeed, this “fact” had to have been previously 

known to Abdullah. As this Court emphasized in Brown, supra, the focus of 

the newly discovered facts exception “is on the newly discovered facts, not 

on a newly discovered or newly willing source for previously known facts.” 

Brown, supra, 111 A.3d at 176 (quotation omitted). Furthermore, as the 

PCRA court states in its opinion, Abdullah “does not explain what due 

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7 Abdullah provides no proof that he did not receive the petition until 

November 8, 2013.
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diligence he has undertaken to elicit the alleged ‘new information’ in the 

intervening eighteen (18) years.” PCRA Court Opinion, 9/22/2016, at 5. 

Abdullah argues he was entitled to an evidentiary hearing so that he 

would have the opportunity to prove his claim. See Abdullah’s Brief at 11. 

Indeed, he maintains that, after listening to Wise’s testimony, the court 

“could have always chosen to disbelieve Mr. Wise.” Id. We disagree. The 

burden was on Abdullah to allege and prove the application of a time-forfiling exception. See 42 Pa.C.S. § 9545(b)(1). Even if we were to find 

Abdullah sufficiently alleged he was unaware of Wise’s willingness to testify 

on his behalf until November of 2013, we have no hesitation in concluding 

Abdullah failed to demonstrate the “facts” in Wise’s affidavit – namely, that 

Abdullah had an alibi for the crime – were previously unknown to Abdullah. 

Accordingly, we find the PCRA court properly dismissed his petition without 

first conducting an evidentiary hearing, and no relief is warranted on appeal. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2017