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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAPHAEL TAN : : Appellant : No. 1547 EDA 2023 Appeal from the PCRA Order Entered May 24, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1103141-1996

BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, P.J.: FILED JULY 30, 2024 Raphael Tan appeals from the order, entered in the Court of Common Pleas of Philadelphia County, dismissing as untimely his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). 1 Upon review, we affirm.

On March 21, 2000, following a nonjury trial, Tan was convicted of two counts of first-degree murder and related offenses in conjunction with a shooting arising out of a dispute over drug territory. Tan was sentenced to two concurrent terms of life imprisonment for the murders, and concurrent ____________________________________________

terms of five to ten years of imprisonment for aggravated assault and ten to twenty years of imprisonment for conspiracy. This Court affirmed Tan’s judgment of sentence on November 8, 2001, and our Supreme Court denied his petition for allowance of appeal. See Commonwealth v. Tan, 792 A.2d 619 (Pa. Super. 2001) (Table), appeal denied, 796 A.2d 982 (Pa. 2002) (Table). Tan did not seek review before the United States Supreme Court and, therefore, his judgment of sentence became final for purposes of the PCRA in 2002. See 42 Pa.C.S.A. § 9545(b)(3) (judgment becomes final at conclusion of direct review, including discretionary review in U.S. Supreme Court and Supreme Court of Pennsylvania, or at expiration of time for seeking such review”); Sup. Ct. R. 13(1) (petition for writ of certiorari timely when filed within 90 days after entry of state court order denying discretionary review). In the ensuing years, Tan filed three PCRA petitions, none of which merited relief.

Tan filed the instant PCRA petition, his fourth, on September 8, 2021, nearly 20 years after his judgment of sentence became final. Tan’s petition was facially untimely. See 42 Pa.C.S.A. § 9545(b)(1) (PCRA petition timely if filed within one year of date judgment of sentence becomes final). However, section 9545 of the PCRA provides three exceptions that allow for review of an untimely PCRA petition: (1) the petitioner’s inability to raise a claim because of governmental interference; (2) the discovery of previously unknown facts that would have supported a claim; and (3) a newly recognized constitutional right. See id. at § 9545(b)(1)(i)-(iii). A PCRA petition invoking -2- J-S21002-24

one of these statutory exceptions must be filed within the time constraints set forth at 42 Pa.C.S.A. § 9545(b)(2).2 “The PCRA petitioner bears the burden of proving the applicability of one of the exceptions.” Spotz, 171 A.3d at 678 (citation omitted).

In his PCRA petition, Tan asserted the newly discovered fact exception to the time bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Specifically, Tan claimed that, on September 5, 2021, he obtained a signed exculpatory statement from a witness, Johnny Rodriguez, who claimed to have witnessed the shooting and stated that Tan was not one of the gunmen.

In denying Tan’s petition, the PCRA court highlighted the following portion of Rodriguez’s statement, made in response to a question from Tan’s investigator regarding when Rodriguez met Tan and discussed his case: I got to SCI Dallas in ‘14, ‘15, ‘16; maybe the following year, I’m in the yard with a friend that I grew up with, Lamont Sanders. We’re going back and forth and walk by the Domino table. He said, “You remember him right there?” He said that’s Tan. He said, “Tan from Mascher n*****. Tan that always be in the bar.” He was telling me that they got him for Chello and Rollo deaths. I said, “Damn, they just got him or something?” He said, “No. They got him when it happened.” I was talking to Tan, but he ain’t too good with English. I told him that I remember that he used to buy Big Momma clothes and stuff. That’s when I asked ____________________________________________

This amendment applies to claims arising on December 24, 2017, or thereafter. See id. Because Tan’s claim arose, at the latest, in 2017, see discussion, infra, he was required to present his claim within sixty days under the prior version of the statute.

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him, “Rollo and Chello, you’re locked up for that?” He said yeah.

The next afternoon, we had a conversation. The same thing that I told to you is the same thing that I told to him. He then started crying. I lost all of my friends by this violence.

Exhibit “A” to PCRA Petition, 9/8/21, at 5 (emphasis added).

Based on Rodriguez’s statement, it is clear that Tan was aware of Rodriguez’s exculpatory information by 2017, at the latest. Nevertheless, Tan waited until September 2021 to file the instant PCRA petition. 3 Pursuant to the version of subsection 9545(b)(2) in effect at the time Tan became aware of the exculpatory information, he was required to file a PCRA petition invoking the newly discovered facts exception within 60 days of the date the claim could have been presented.4 He failed to do so. Accordingly, his claim under section 9545(b)(1)(ii) is untimely and the PCRA court properly denied relief.

Order affirmed.

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Date: 7/30/2024

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