J

### -S18008-17
NON-PRECEDENTIAL DECISION - SEE 

### SUPERIORCOURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

v. TRACY E. WATTS Appellee



### Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 2032 EDA 2016 Appeal 

### from the PCRAOrderJune 10, 2016 In the CourtofCommon Pleas 

### of Philadelphia County Criminal Division at No(s): 

### CP-51-CR-0707102-2001
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD*, J. MEMORANDUM BY PANELLA, J. 

### FILED

### APRIL06, 2017 Appellant, Tracy E. Watts, appeals 

### from the order denying his second 

### petition 

### for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 

### 9541-9546. We

### affirm. We 

### summarize the relevant facts and procedural 

### history as follows. In 2001, 

### Appellant shot and killed Marquis Henson. 

### Appellant also robbed Mr. Henson of

### $3,000.00 beforefleeing 

### with a 

### cohort. He was apprehended and 

### brought to 

### trial before a

### jury, which convicted him 

### of

### first-degree murder, robbery, conspiracy, and possessing an 

### instrument of crime. Just 

### prior to 

### sentencing,Appellant agreed,to avoid a possible sentence ofdeath by lethal

* FormerJusticespecially assigned to

### the SuperiorCourt.J

### -S18008-17 injection, to waive his 

### appellate rights in exchange 

### for a life sentence. 

### Appellant signed a 

### written colloquy, which the 

### court reviewed 

### withAppellant priorto accepting his

### waiver. The 

### courtthen 

### formallysentenced 

### Appellant on March 13, 2003, to life 

### imprisonment 

### without parole on 

### Appellant's 

### first- degree 

### murder

### conviction.'Appellantattempted tofile a 

### directappeal, which he 

### later 

### withdrew. Appellant then 

### timely filed his 

### first PCRA 

### petition. The 

### court 

### ultimately dismissed 

### that petition 

### without a hearing, and our Court 

### affirmed the decision. 

### See 

### Commonwealth v. 

### Watts, 2109 EDA 2005 (Pa. Super., filed 

### January 24, 2007) (unpublished 

### memorandum). Appellant filed

a

### writof habeas corpus, and wasdenied relief. 

### Appellant filed 

### the instant PCRA 

### petition, his second, on October 29, 2010. Following counsel's 

### entry of appearance, 

### Appellant filed an amended PCRA 

### petition. Neitherwriting acknowledged the 

### untimeliness of Appellant's PCRA 

### petition, save to say 

### that Appellant purportedly presented 

### "newly- discovered 

### evidence,"

### without anydatesor

### times ofthe discovery. The PCRA 

### court held a hearing, and 

### Appellant presented two witnesses who claimed to know 

### of a close 

### relationship between

### Appellant's 

### trial counsel and the 

### victim's father. One 

### witness, Thomas Davis, claimed the two men 

### frequented the same 

### "motorcycle club" bar. N.T., 

### 6/10/16, at 10. The 

### other



### ' Appellant was also sentenced on his 

### remaining charges at 

### that time. As 

### Appellant previously waived his 

### directappeal 

### rights, we find his

### judgment of sentence became final

### forour purposes on March 13, 2003. 

## -2J

### -S18008-17
witness, James Brooks, whose 

### testimony the court found 

### entirely incredible, stated he heard a close friend of counsel discussing 

### with the 

### victim's father how 

### Appellant's counsel planned to 

### "throwthe case."

### Id., at 24. 

### Appellant's 

### trial counsel 

### testified he did not have a 

### relationship with the

### victim's father, and 

### that he never agreed to 

### "throw"Appellant's case. 

### Id., at 40. 

### Appellant then 

### testified 

### that he had been 

### threatened while in prison during the 

### trial, and he

### felt pressured to waive his appellate rights. 

### See

### id., at 51. The PCRA 

### court

### ultimately dismissed

### Appellant's petition on the merits. On appeal, 

### Appellant argues 

### the 

### trial court erred in denying his PCRA 

### petition, given his 

### presentation of newly discovered evidence regarding counsel's 

### conflict of 

### interest. As a 

### threshold 

### matter, we note 

### that the timeliness of a PCRA 

### petition is a

### jurisdictional requisite. 

### See

### Commonwealth v. 

### Hackett, 956 A.2d 978, 983 (Pa. 

### 2008). A 

### court cannot hear an 

### untimely petition. See 

### Commonwealth v. 

### Flanagan, 854 A.2d 489, 509 (Pa. 

### 2004). Therefore, a PCRA 

### petition must be filed 

### within one 

### year of the date the 

### underlying 

### judgment becomes 

### final. 

### See 42 Pa.C.S.A. § 

### 9545(b)(1). A 

### judgment is deemed final at the conclusion of 

### direct review or at the 

### expiration of time for seeking review. 

### See42 Pa.C.S.A. § 

### 9545(b)(3). Three 

### statutory exceptions to the PCRA's 

### timeliness provisions allow 

### forvery limited circumstances underwhich the late 

### filing of a 

### petition will be excused. 

### See 42 Pa.C.S.A. § 

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

### petitioner asserting a 

## -3J

### -S18008-17

timeliness exception mustfile a 

### petition within 60 days ofthe date the claim could have been presented. 

### See42 Pa.C.S.A. § 

### 9545(b)(2). As noted, 

### Appellant's

### judgment ofsentence becamefinal on March 13, 2003. Thus, 

### Appellant's petition filed on October 29, 2010, is 

### patently untimely. The PCRA 

### court did not 

### conduct a 

### timeliness inquiry, but 

### rather dismissed

### Appellant's petition on the merits. We, however, will address the 

### timeliness issue based on the single exception cited inthe amended PCRA 

### petition. See

### also

### Commonwealth v. 

### Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en banc) ("Since 

### Appellant's PCRA 

### petition is 

### untimely, our review focuses on 

### whetherAppellant has pled and proven 

### that one of the 

### three limited exceptions to the timeliness 

### requirements ofthe PCRA

### apply.") In his amended 

### petition, Appellant purportedly invokes the newly discovered evidence exception to the PCRA's

### jurisdictional time bar. 

### See 42 Pa.C.S.A. § 

### 9545(b)(1)(ii). "In order to be 

### entitled to the exceptions to 

### the PCRA's 

### one-yearfiling deadline, the 

### petitioner 

### mustpleadandprove specific facts 

### thatdemonstrate his claim was raised 

### within the 

### sixty-day timeframe under section 

### 9545(b)(2)." 

### Commonwealth v. 

### Hernandez, 79 A.3d 

### 649, 652 (Pa. Super. 

### 2013) 

### (citation and 

### internal quotation marks 

### omitted; emphasis added). 

### See

### alsoThomas M. Place, The PostConviction 

### Relief

### Act: Practice 

### and Procedure 

### (2010 ed.), § 

### 6.01[b] ("The 

### defendant must include the precise date in his or her 

### petition ofwhen he or she learned 

### ofthe

### after- 

## -4J

### -S18008-17
discovered evidence to allow the 

### court to 

### determine whether the exception has been

### timely invoked.") While 

### Appellantvigorously argues

### thattrial counselwas 

### corrupt dueto

a 

### conflict of 

### interest,Appellantfails even to plead, much less prove,

### thatthis discovery and 

### subsequent petition fell 

### within the 

### time allotted by the PCRA. This is 

### fatal to his claim. 

### It deprived the PCRA 

### court of 

### jurisdiction to proceed. Despite 

### Appellant's failure to include precise dates in 

### order for the 

### courtto 

### evaluate 

### whether the claim was 

### properly filed 

### within 60 days of the date it could have been presented, the PCRA 

### court nevertheless chose to conduct an 

### evidentiary hearing. The PCRA 

### court should have 

### simply rejected Appellant's 

### petition as 

### untimely. The 

### court should not have held an 

### evidentiary hearing. 

### Appellant failed to address this 

### timeliness issue in the 

### testimony he presented at 

### the hearing. Moreover, even if 

### Appellant had filed this claim 

### within 60 days of learning of 

### this newly discovered evidence, he also failed to give any reason regarding why he could not have obtained 

### this information sooner 

### with reasonable diligence. Given 

### that Mr. Brooks is 

### Appellant's cousin, and Mr. Davis is 

### Appellant's childhood 

### friend, we find unavailing 

### Appellant's assertions

### that anyofthe purported newly discovered evidence presented at the 

### evidentiary hearing was 

### unavailable to him 

### prior to his second PCRA

### filing. 

## -5J

### -S18008-17
In response to a question about 

### whether he had told 

### Appellant about counsel's alleged plan to

### "throwthe case" 

### priorto 2010, when

### Appellantfiled the 

### instant petition, Mr. Brooks 

### testified: 

### "I actually seen 

### [Appellant] before then and I told him then too, but it was 

## - I believe I was 

### waiting on him to do

### whatever he wanted to

### do." N.T., 

### 6/10/16, at 27. 

### Additionally, Mr. Brooks 

### entirely failed to note in his 

### initial 

### affidavit attached to 

### Appellant's PCRA 

### petition 

### that he 

### ever heard any discussion of a plan to 

### "throw" Appellant's
case.The 

### courtfound Mr. 

### Brooks'

### testimony incredible. Appellant's childhood 

### friend, Mr. Davis, also gave 

### conflicting 

### testimony how close his 

### relationship was 

### with Appellant and the 

### frequency of 

### their contact. 

### Contrary to 

### Appellant's assertions 

### that the PCRA 

### court specifically found Mr. Davis 

### "credible," the 

### transcript from the 

### evidentiary hearing reveals

### thatthe PCRA

### court actuallystated: 

### "[E]ven accepting 

### everything he said to be

### true, it 

### doesn't prove 

### [] the cornerstone ofthe 

### argument."

### Id., at 87. Given 

### Appellant's failure to prove the 

### timeliness exception, in 

### addition to Mr. Brooks'

### testimony

### that he 

### previously told 

### Appellant aboutthe alleged 

### conflict, the record 

### demonstrates Appellant was aware 

### of this supposed ground 

### for relief well before he filed second PCRA 

### petition. The record does not 

### support the PCRA 

### court's brief footnote stating 

### that it found 

### Appellant filed his second pro se PCRA 

### petition within 60 days of learning 

### of his 

### trial counsel's alleged 

### conflict of 

### interest and 

### thus "satisfied the requirements of 

## -6J

### -S18008-17
the newly discovered evidence exception to the PCRA's 

### time

### -bar." PCRA Court Opinion, 

### 8/22/16, at 2 n.1. However, we may 

### affirm the PCRA 

### court's decision on any basis. 

### See 

### Commonwealth v. 

### Burns, 988 A.2d 684, 690 n.6 (Pa. Super. 

### 2009) 

### ("[A]n appellate court may 

### affirm the lower 

### court on any basis, even one notconsidered or presented inthe 

### court below.") Appellant has failed to establish 

### that his claims fall 

### within any of the exceptions to the PCRA's 

### timeliness requirement. Accordingly, we 

### affirm the dismissalof

### Appellant's second PCRA 

### petition. Order

### affirmed. Judgment Entered.

J seph D. 

### Seletyn, Prothonotary
Date: 

### 4/6/2017



## -7