J-S30007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    LORENZO HARRIS,

                             Appellant                No. 782 WDA 2017


              Appeal from the PCRA Order Entered April 27, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009422-1998


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 21, 2019

        Appellant, Lorenzo Harris, appeals pro se from the post-conviction

court’s April 27, 2017 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful

review, we vacate the court’s order and remand for further proceedings.

        On February 16, 2000, a jury convicted Appellant of rape, 18 Pa.C.S. §

3121; terroristic threats, 18 Pa.C.S. § 2706; unlawful restraint, 18 Pa.C.S. §

2902; and possessing an instrument of crime, 18 Pa.C.S. § 907. The trial

court also convicted Appellant of persons not to possess a firearm, 18 Pa.C.S.

§ 6105. Appellant’s convictions stemmed from his sexual assault of a female

guest at his residence in Pittsburgh on May 4, 1998. The victim testified at


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*   Retired Senior Judge assigned to the Superior Court.
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trial that Appellant, whom she had met one time before this incident, pointed

a gun at her and forced her to engage in sexual intercourse with him. See

N.T. Trial, 2/14-2/16/00, at 126-33. The Commonwealth also presented the

testimony of Walter Lorenz, a criminalist for the Allegheny County Coroner’s

Office.     Lorenz testified that he compared semen samples taken from the

victim’s clothing to DNA from a blood sample provided by Appellant. Id. at

224-25.      Lorenz opined “that the DNA profile found in [the semen] stains

matches the DNA profile of [Appellant] and that because of that, he cannot be

excluded as a potential donor of that DNA.”          Id. at 228.   Lorenz further

explained:

        [Lorenz:] [I]n this case we found a match of DNA between
        [Appellant] and the sperm fractions of the stains. This means that
        either it could be from [Appellant] or it could be from an individual
        with the same DNA profile. We cannot exclude that particular
        possibility.

              Now, I can give you about how many people might be
        expected to have that same kind of DNA profile from our analysis
        of the populations and from what we’ve seen in Allegheny County.

        …

               In Caucasians in the white population, you would expect to
        see that DNA profile in one in about three million individuals; and
        in the African-American population, you would expect to see this
        in about 1 in 1,690 individuals. It’s [a] relatively common DNA
        profile.[1]

        [The Commonwealth:] However, [Appellant] cannot be excluded
        in the DNA analysis of his DNA?

        [Lorenz:] That is correct.

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1   The certified record indicates Appellant is a black male.

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Id. at 230-31.

     Based on this evidence, the jury and the court convicted Appellant of

the above-stated crimes. On August 7, 2000, the court sentenced Appellant

to 18½ to 37 years’ imprisonment.      This Court affirmed his judgment of

sentence on February 17, 2004. See Commonwealth v. Harris, 849 A.2d

605 (Pa. Super. 2004) (unpublished memorandum). Appellant did not appeal

to our Supreme Court.

     On March 2, 2004, Appellant filed his first PCRA petition, which was

ultimately denied. He did not appeal. On January 3, 2005, he filed a second

petition, which was denied on August 8, 2005. This Court affirmed on appeal,

and our Supreme Court denied Appellant’s petition for allowance of appeal.

See Commonwealth v. Harris, 913             A.2d 941     (Pa. Super. 2006)

(unpublished memorandum), appeal denied, 921 A.2d 495 (Pa. 2007).

Appellant filed a third PCRA petition on May 3, 2007, which the PCRA court

denied on December 19, 2007. Appellant did not appeal.

     On September 13, 2016, Appellant filed the pro se PCRA petition

underlying the present appeal. Therein, he alleged that in August of 2016, he

had blood work done, which revealed he has sickle cell disease. Appellant

claimed that this new fact of his disease demonstrates that it was not his DNA

on the victim’s clothing. He further alleged that the Commonwealth’s DNA

expert, Walter Lorenz, must have known about Appellant’s disease and that




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the Commonwealth committed a Brady2 violation by withholding this evidence

from Appellant.

        On March 8, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss that petition, stating (without any elaboration) that it

“lacks jurisdiction in regard to the above-captioned case[].” Rule 907 Notice,

3/8/18 (single page). Appellant did not respond. On April 27, 2017, the PCRA

court issued an order denying Appellant’s petition without any explanation of

the basis for that decision. The order informed Appellant that he had 30 days

to file a notice of appeal. Because 30 days from April 27, 2017, was Saturday,

May 27, 2017, and Memorial Day was Monday, May 29, 2017, Appellant’s

notice of appeal was due on Tuesday, May 30, 2017. See 1 Pa.C.S. § 1908;

see also Pa.R.A.P. 903(a) (stating that a notice of appeal must be filed within

thirty days after the order appealed from is entered). Appellant’s notice of

appeal was time-stamped and docketed on June 1, 2017.

        On June 6, 2017, the PCRA court issued an order directing Appellant to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal

by June 30, 2017. Appellant’s Rule 1925(b) statement was time-stamped and

docketed on July 10, 2017. On November 21, 2017, the PCRA court issued a

Rule 1925(a) opinion concluding that Appellant’s notice of appeal was

untimely and his appeal should be quashed.        The PCRA court offered no

discussion as to why it denied Appellant’s petition.

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2   Brady v. Maryland, 373 U.S. 83 (1963).

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       On August 22, 2018, this Court issued a memorandum decision

remanding Appellant’s case for the PCRA court to conduct a hearing to

determine if Appellant’s pro se notice of appeal and Rule 1925(b) statement

were timely-filed pursuant to the ‘prisoner mailbox rule.’ 3    On August 30,

2018, the PCRA court entered an order stating that those documents were

timely filed under the prisoner mailbox rule, and that no hearing was

necessary. The order also declared that a Rule 1925(a) opinion would “be

forthcoming.” PCRA Court Order, 8/30/18 (single page).

       Unfortunately, the PCRA court failed to file any such opinion.        On

January 4, 2019, this Court issued a per curiam order again directing the PCRA

court to file an opinion, and stating that the court must do so within 30 days.

Again, the PCRA court did not adhere to our order and, to date, it has not filed

a Rule 1925(a) opinion. Consequently, we decline to delay the disposition of

Appellant’s case any longer, and we will proceed to address Appellant’s claims

without the court’s input.4




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3 See Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011)
(“Under the prisoner mailbox rule, we deem a pro se document filed on the
date it is placed in the hands of prison authorities for mailing.”).

4 We also observe that in its brief, the Commonwealth only argues that
Appellant’s appeal should be quashed as untimely. The Commonwealth
provides no discussion of the merits of Appellant’s challenge to the PCRA
court’s dismissal of his petition.




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        In Appellant’s pro se brief to this Court, he sets forth five issues for our

review in the Statement of the Questions Involved section of his brief. See

Appellant’s Brief at 4 (unnumbered).5 However, Appellant’s Argument section

does not include issues that align with those set forth in his Statement of the

Questions Involved.        Instead, Appellant’s Argument section contains the

following, single issue, and multiple subparts thereto:

        I.      Appellant … is entitled to post-conviction relief based upon
                the new fact of his secretor status, DNA Sickle Cell Trait,
                Discease [sic][.]

             A. Appellant[’s] … claims are timely[.]

             B. These facts were unknown to Appellant[.]

             C. The Commonwealth failed to disclose favorable evidence
                in violation of Brady and Giglio[.6]

             D. The    [Commonwealth]            suppressed   exculpatory
                evidence[.]

             E. The Commonwealth failed to correct misleading trial
                testimony in violation of Giglio[.]

             F. Appellant exercised due diligence[.]

             G. The PCRA court failed to ensure compliance with its order
                commanding a thorough search for DNA evidence[.]

Appellant’s Brief at 15-25 (unnecessary capitalization omitted)

        This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported


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5Appellant drafted his brief such that each page sets forth two, smaller pages.
When referring to page numbers, we count each smaller page individually.

6   Giglio v. U.S., 405 U.S. 150 (1972).

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by the evidence of record and is free of legal error.        Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition alleges
         and the petitioner proves that:

            (i) the failure to raise the claim previously was      the
            result of interference by government officials with    the
            presentation of 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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final on March 18, 2004

at the expiration of the thirty-day time period for seeking review of his

judgment of sentence with the Pennsylvania Supreme Court. See 42 Pa.C.S.

§ 9545(b)(3) (stating that a judgment of sentence becomes final at the

conclusion of direct review or the expiration of the time for seeking the

review); Pa.R.A.P. 1113(a) (directing that “a petition for allowance of appeal

shall be filed with the Prothonotary of the Supreme Court within 30 days of

the entry of the order of the Superior Court sought to be reviewed”).

Consequently, his present petition is patently untimely and, for this Court to

have jurisdiction to review the merits thereof, Appellant must prove that he

meets one of the exceptions to the timeliness requirements set forth in 42

Pa.C.S. § 9545(b).

      Instantly, Appellant argues that he meets both the after-discovered fact

and the governmental interference exceptions based on his discovery, in

August of 2016, that he has sickle cell disease. Appellant claims that the fact

that he has this disease proves that he could not have been the contributor of

semen samples found on the victim’s clothing.       Appellant also argues that

Lorenz must have known about Appellant’s sickle cell disease based on the

DNA tests he conducted in this case, and that Lorenz and the Commonwealth




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committed a Brady violation by withholding this exculpatory information from

the defense.

      Appellant further asserts that after Lorenz testified at trial, he

“requested an investigation into his DNA report[,]” but his trial counsel failed

to “request [that] any test[ing be] done” or “seek to have an expert [testify

in] favor of [Appellant’s] defense….” Appellant’s Brief at 13. Appellant argues

that his efforts to obtain further testing of his blood demonstrate his due

diligence in discovering his sickle cell disease. He further explains that it was

not until August of 2016, when he began having weakness in his legs, as well

as dizziness and headaches, that his doctor ordered blood tests that revealed

his disease.   Appellant insists that he could not have discovered this fact

earlier, as he had no symptoms that indicated his blood should be tested.

Therefore, Appellant concludes that he has met the newly-discovered fact

exception to the PCRA’s time-bar, and that a hearing to review the merits of

his claim is warranted. Additionally, Appellant alleges that Lorenz (and, thus,

the Commonwealth) must have known - based on Lorenz’s DNA testing - that

Appellant has sickle cell disease, yet they failed to disclose that fact to

Appellant prior to trial.      Consequently, Appellant concludes that the

Commonwealth committed a Brady violation and, thus, he has also satisfied

the governmental interference exception.

      We agree with Appellant that he has satisfied the newly-discovered fact

exception. Appellant asserted in his petition that he had blood tests done on

August 8, 2016, which first revealed that he suffers from sickle cell disease.

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On September 13, 2016, he filed the present, pro se petition premised on his

discovery of this new fact. Therein, Appellant averred that he acted with due

diligence in raising this claim as soon as he received this diagnosis, which

arose from blood tests conducted after he exhibited physical symptoms of

muscle weakness, dizziness, and headaches. On appeal, Appellant adds that

he asked his trial counsel to seek further testing of his blood sample, but

counsel did not comply with that request. In light of this record, we conclude

that Appellant has demonstrated that he exercised due diligence in discovering

a new fact that was previously unknown to him.

       Therefore, we vacate the PCRA court’s order denying Appellant’s petition

as untimely. We remand for the court to appoint Appellant counsel, and to

conduct a hearing on the merits of his after-discovered evidence claim, as well

as his related allegation that the Commonwealth committed a Brady

violation.7   At that proceeding, Appellant must present evidence regarding

why the presence of his sickle cell disease affected (or may have affected) the

DNA results that were admitted at his trial.
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7 On December 24, 2018, Appellant filed a document entitled, “Ruquest [sic]
to Submit Ciations [sic] Opinions Above.” It is unclear what relief Appellant
seeks in that petition. Thus, we deny it.

      Additionally, on February 28, 2019, Appellant filed an “Application for
Remand and for the Appointment of a Substitute Judge,” and on March 11,
2019, he filed an “Application for Relief.” In both petitions, Appellant
essentially complains about the PCRA court’s failure to comply with this Court’s
orders directing it to file a Rule 1925(a) opinion, and he asks that we vacate
the court’s order, remand, and appoint a new judge to this case. In light of
our disposition, we deny these petitions as moot, without prejudice to
Appellant’s right to seek the recusal of the current judge on remand.

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      Order vacated. Case remanded for further proceedings.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2019




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