Com. v. Watts, D.

• Court: Superior Court of Pennsylvania
• Decided: February 11, 2019
• Docket: 3213 EDA 2017
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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975 (Pa.Super. 2008) (unpublished memorandum), appeal denied, 599 Pa.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 J-S66009-18

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Commonwealth v. Watts, 48 A.3d 488 (Pa.Super. 2012) (unpublished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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