Com. v. Sekou, M.

J-S32037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MWANGI SEKOU,
Appellant No. 2183 EDA 2015
Appeal from the PCRA Order June 24, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1103481-2002
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 13, 2016
Appellant, Mwangi Sekou, appeals pro se from the order of June 24,
2015, dismissing his serial, third petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We
affirm.
On February 4, 2004, a jury convicted Appellant of murder of the third
degree and related offenses. The charges arose from Appellant’s July 19,
2002, shooting of the victim. On April 8, 2004, the trial court sentenced
Appellant to an aggregate term of incarceration of not less than thirty-five
nor more than seventy-seven years. This Court affirmed the judgment of
sentence on August 31, 2005. (See Commonwealth v. Sekou, No. 1888
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S32037-16
EDA 2004 (Pa. Super. filed Aug. 31, 2005) (unpublished memorandum)).
Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.
Subsequently, Appellant filed two PCRA petitions. The PCRA court
dismissed each petition and this Court affirmed the dismissals on appeal.
On October 17, 2014, Appellant filed the instant, pro se, third PCRA
petition. On May 11, 2015, the PCRA court filed a Rule 907 notice of its
intention to dismiss Appellant’s PCRA petition. See Pa.R.Crim.P. 907(1). On
May 26, 2015, Appellant filed a response. On June 24, 2015, the PCRA court
dismissed Appellant’s third PCRA petition as untimely. Appellant timely
appealed.1
Appellant raises one question for this Court’s review:
Did the PCRA [c]ourt abuse its discretion in its
determination of whether it had jurisdiction over the PCRA
petition under the timeliness exception of 42 Pa.C.S. §
9545(b)(1(ii)?
(Appellant’s Brief, at vi).
Our standard of review for an order denying PCRA relief is well-settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record.
____________________________________________
1
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). The PCRA court filed an
opinion on August 3, 2015. See Pa.R.A.P. 1925(a).
-2-
J-S32037-16
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his third PCRA petition on October 17, 2014. The
PCRA provides that “[a]ny petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the date the
judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s
judgment of sentence became final on September 30, 2005, thirty days after
this Court affirmed the judgment of sentence and Appellant did not seek
leave to appeal to the Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a);
42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had one year, until October
2, 2006,2 to file a timely PCRA petition. Because Appellant did not file his
current petition until October 17, 2014, the petition is facially untimely.
Thus, he must plead and prove that he falls under one of the exceptions at
Section 9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully proves that:
(i) the failure to raise the claim previously was the result
of interference by government officials with the presentation of
____________________________________________
2
September 30, 2006 was a Saturday.
-3-
J-S32037-16
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.
Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any
of the above exceptions must file the petition “within [sixty] days of the date
the claim could have been presented.” Id. at § 9545(b)(2). The
Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s
burden to plead and prove that one of the above-enumerated exceptions
applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa. 2008), cert. denied, 555 U.S. 916 (2008).
Here, Appellant seeks to invoke the newly-discovered facts exception
codified at 42 Pa.C.S.A. § 9545(b)(1)(ii) and discussed in the Pennsylvania
Supreme Court’s decision in Commonwealth v. Bennett, 930 A.2d 1264(Pa. 2007), which held that this exception refers not to after-discovered
evidence but to facts that were previously unknown to the petitioner. See
Bennett, supra at 1270; (see also Appellant’s Brief, at 5). The Court in
Bennett also held, in accord with the statutory language, that an appellant
must prove that the facts upon which the claim is predicated could not have
been ascertained earlier through the exercise of due diligence. See
-4-
J-S32037-16
Bennett, supra at 1272. “A petitioner must . . . explain why his asserted
facts could not have been ascertained earlier with the exercise of due
diligence.” Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa. Super.
2007), appeal denied, 951 A.2d 1163 (Pa. 2008) (citation omitted).
In its August 3, 2015 opinion, the PCRA court dicussed Appellant’s
newly discovered facts claim as follows:
In [an] attempt to satisfy the PCRA’s timeliness exception,
[Appellant] invoked section (b)(1)(ii) by presenting the
purported exculpatory fact that Jonathan Williams perpetrated
the shooting for which [Appellant] was convicted. This newly
discovered fact was presented by three individuals who were not
at the scene of the homicide. See PCRA petition, exhibits A-C.
According to Ms. Zakiyyah Williams’ certification, Mr. Williams,
her brother, confessed to her years prior that he perpetrated the
killing. Ms. Williams also claimed her brother revealed in 2004
that he intended to turn himself in on an unspecified future date
and that the [Appellant] was wrongly convicted. Mr. Williams
was killed in 2004 before fulfilling his supposed plan. Ms.
Williams further asserted that she approached Ms. Bernadine
Branch ([Appellant’s] mother) and Ms. Shana Ryles-Sekou
([Appellant’s] wife) at a religious service on October 15, 2013 to
convey her brother’s inculpative message. The certifications of
Ms. Branch and Ms. Rules-Sekou iterated Ms. Williams’
conveyance.
Despite the attached certifications, [Appellant] failed to
demonstrate that the fact that someone other than himself,
specifically Jonathan Williams, was the shooter was previously
unknown. [Appellant] submitted an affidavit of Karif Holloway
on June 8, 2012, wherein Jonathan Williams is identified as the
alleged shooter. See [Second] PCRA petition, 7/26/12 exhibit B.
Furthermore, Mr. Holloway asserted that [Appellant] furnished
the shooter’s name. Id. The [Appellant’s] prior knowledge of
the shooter’s identity is further evinced by the affidavit of
Dennard Hawkins, which asserted that [Appellant] knew the
shooter. See [Supplemental Amended Second] PCRA petition,
9/6/12 exhibit A. . . .
-5-
J-S32037-16
(PCRA Court Opinion, 8/03/15, at 4-5).
Our independent review of the record corroborates the PCRA court’s
finding that Appellant first raised the claim that Jonathan Williams was the
shooter in his second PCRA petition. (See Second PCRA Petition, 7/26/12,
at Exhibit B; Supplemental Amended Second PCRA Petition, 9/06/12, at
Exhibit A). Thus, Appellant’s current claim is not a newly discovered fact but
rather additional verification of a previously discovered fact. It is settled
that a newly discovered source for an already known fact does not meet the
requirements of 42 Pa.C.S.A. § 9545(b)(1)(ii). See Commonwealth v.
Marshall, 947 A.2d 714, 720-21 (Pa. 2008) (citations omitted).
Accordingly, Appellant has failed to show that he meets the newly
discovered fact requirement of 42 Pa.C.S.A. § 9545(b)(1)(ii). See
Johnson, supra at 427.
Thus, because the record demonstrates that Appellant’s third PCRA
petition is untimely with none of the statutory exceptions to the time bar
proven, we affirm the order of the trial court dismissing Appellant’s PCRA
petition.
Order affirmed.
-6-
J-S32037-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
-7-