Com. v. Watts, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DWAYNE R. WATTS :
:
Appellant : No. 3213 EDA 2017
Appeal from the PCRA Order September 6, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0810991-2005
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED FEBRUARY 11, 2019
Appellant, Dwayne R. Watts, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his second petition
brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On August 22, 2006, a jury convicted Appellant of first-degree
murder and related offenses, where Appellant shot two victims, one of whom
died. The court sentenced Appellant on October 20, 2006, to life
imprisonment plus 4½ to 9 years’ imprisonment. On July 14, 2008, this Court
affirmed the judgment of sentence; our Supreme Court denied allowance of
appeal on December 29, 2008. See Commonwealth v. Watts, 959 A.2d
975 (Pa.Super. 2008) (unpublished memorandum), appeal denied, 599 Pa.
709, 962 A.2d 1197 (2008).
Appellant timely filed his first PCRA petition on December 1, 2009. After
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the PCRA court issued notice per Pa.R.Crim.P. 907, it denied relief on April 1,
2011. This Court affirmed the denial of PCRA relief on April 27, 2012; our
Supreme Court denied allowance of appeal on January 30, 2013. See
Commonwealth v. Watts, 48 A.3d 488 (Pa.Super. 2012) (unpublished
memorandum), appeal denied, 619 Pa. 691, 63 A.3d 777 (2013).
Appellant filed pro se his second PCRA petition on April 3, 2013. The
PCRA court appointed counsel on August 14, 2014, who filed a no-merit letter
pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc),
on October 29, 2015. Appellant responded on November 26, 2015. On May
12, 2016, counsel filed an amended PCRA petition and withdrew his
Turner/Finley letter. After two evidentiary hearings, the PCRA court denied
relief on September 6, 2017. Appellant timely filed a notice of appeal on
October 1, 2017. On October 4, 2017, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). After the grant of an extension, Appellant timely complied on
November 12, 2017.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final at the
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conclusion of direct review, including discretionary review in the U.S. Supreme
Court and the Pennsylvania Supreme Court, or upon expiration of the time for
seeking the review. 42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to
the PCRA time-bar allow for very limited circumstances to excuse the late filing
of a petition; a petitioner asserting a timeliness exception must file a petition
within 60 days of when the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(1-2).
Instantly, the judgment of sentence became final on Monday, March 30,
2009, following expiration of the 90 days for filing a petition for certiorari with
the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current
petition on April 3, 2013, which is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1). Nevertheless, Appellant attempts to invoke the newly discovered
facts exception per Section 9545(b)(1)(ii). Specifically, Appellant argues he
filed his amended PCRA petition within 60 days of an affidavit signed by Mr.
Trevino Porter on February 20, 2013, which stated Mr. Porter witnessed the
shooting and that Appellant was not the perpetrator. According to Mr. Porter’s
testimony at the evidentiary hearing, however, he informed Appellant about
this new information months or years before signing the affidavit. Therefore,
Appellant cannot satisfy the 60-day rule, the instant petition remains time-
barred, and the PCRA court lacked jurisdiction to review it on the merits.
Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/19
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