J-S52038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID LEE                                  :
                                               :
                       Appellant               :   No. 2416 EDA 2018

               Appeal from the PCRA Order Entered July 11, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0431051-1988


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED DECEMBER 16, 2019

       David Lee appeals from the order dismissing his petition filed under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, for

untimeliness. We affirm.

       In 1987, Lee, with Carl Gooding, shot and killed Tim Lynch. Following a

bench trial, the court convicted Lee of first-degree murder, criminal

conspiracy, and possessing an instrument of crime, and sentenced him to

serve a mandatory term of life imprisonment for first-degree murder.1 This

Court affirmed Lee’s judgment of sentence on January 30, 1991. See

Commonwealth v. Lee, 585 A.2d 1084 (Pa.Super. 1991). Lee did not seek

review in the Supreme Court of Pennsylvania.


____________________________________________


1 The trial court imposed lesser, consecutive sentences for the other
convictions.
J-S52038-19



       Lee filed the instant PCRA petition, his first, on May 31, 2011. Lee

asserted he was entitled to relief based on the United States Supreme Court’s

decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The

court appointed counsel, who filed an amended petition.2 The PCRA court

issued a Rule 907 notice of its intent to dismiss the petition without a hearing,

and thereafter dismissed the petition as untimely.

       Lee appealed, and raises the following:

       I. Did the Honorable PCRA Court err in denying relief, without
       holding      an    evidentiary     hearing,     even     though    the
       Defendant/Appellant pled that he was eligible for PCRA relief, and
       is entitled to a new trial, as the result of a change in the law which
       impacted his constitutional right of confrontation and which made
       his trial constitutionally infirm as trial counsel did not assert this
       issue and did not effectively challenge same?

Lee’s Br. at 3.

       Our standard of review of an order denying relief under the PCRA “is

limited ‘to whether the PCRA court’s determination is supported by evidence

of record and whether it is free of legal error.’” Commonwealth v. Hart, 199

A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew, 189 A.3d

486, 488 (Pa.Super. 2018)).

       The timeliness of a PCRA petition is a jurisdictional prerequisite; if a

petition fails to satisfy the statutory timeliness requirements, a PCRA court

has no jurisdiction to grant relief. Commonwealth v. Rizvi, 166 A.3d 344,
____________________________________________


2The docket reflects that an attorney entered his or her appearance in 2014,
but that the attorney was relieved in 2015. Instant counsel entered his
appearance in 2015, and filed an amended petition in 2017.

                                           -2-
J-S52038-19



347 (Pa.Super. 2017). A PCRA petition must be filed within one year of the

date the petitioner’s judgement of sentence becomes final, which is at the

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

42 Pa.C.S.A. § 9545(b)(1), (3). In addition, petitioners who were convicted

prior to January 16, 1996 had one year, until January 16, 1997, to file a first

petition. See Commonwealth v Banks, 726 A.2d 374, 376 (Pa. 1999). As

Lee’s judgment of sentence became final in 1991, and he did not file his

petition until 2011, the petition is facially untimely.

       A petition filed after the deadline may be deemed timely if one of three

enumerated exceptions applies. Under the third exception, a petition is timely

if “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.” 42 Pa.C.S.A. § 9545(b)(1)(iii). If the exception applies,

the petitioner must prove the petition was filed within 60 days of the earliest

date it might have been filed. Id. at § 9545(b)(2).3

       Lee argues that the petition is timely because he filed it within 60 days

of discovering the decision of Melendez-Diaz. Lee’s Br. at 8.4 Lee posits that
____________________________________________


342 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one
year to file a petition. The amendment applies to claims arising on or after
December 24, 2017, and thus does not apply to Lee’s 2011 petition.

4“In Melendez–Diaz, the Court held that lab reports admitted to establish a
defendant’s guilt constituted testimonial statements covered by the



                                           -3-
J-S52038-19



although Melendez-Diaz does not provide “clear guidance . . . as to whether

the decision should be retroactive or not,” Lee should be provided relief if this

Court finds that Melendez-Diaz announced a new rule of law, implicating his

constitutional rights, that should be given retroactive effect on collateral

review. Id.

       Lee’s petition fails to meet the exception to the time-bar. First, the

operative date for the purposes of the after-recognized constitutional right

exception is the date of the decision, not the date of the petitioner’s discovery

of the decision. See Commonwealth v. Brandon, 51 A.3d 231, 236

(Pa.Super. 2012); Commonwealth v. Leggett, 16 A.3d 1144, 1146

(Pa.Super. 2011). Lee’s 2011 petition was not filed within 60 days of the June

25, 2009 Melendez-Diaz decision, and therefore that decision cannot provide

the basis for the timeliness exception.

       Furthermore, this exception only applies if the Supreme Court of

Pennsylvania or the United States Supreme Court has already determined

that the newly-recognized constitutional right is to be given retroactive effect

on collateral review. See Leggett, 16 A.3d at 1147 (citing Commonwealth

v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007)). Here, counsel concedes

that the Melendez-Diaz decision does not announce it is applicable


____________________________________________


Confrontation Clause of the United States Constitution and that such reports
were inadmissible unless the defendant had the opportunity to cross-examine
the lab analyst at trial.” Commonwealth v. Barton-Martin, 5 A.3d 363, 365
(Pa.Super. 2010).

                                           -4-
J-S52038-19



retroactively on collateral review; nor does counsel argue that the

Pennsylvania Supreme Court has tendered such a holding.

     Finally, we have established that the United States Supreme Court did

not recognize a new constitutional right in Melendez-Diaz, and again, neither

that court nor the Pennsylvania Supreme Court has held that the Melendez-

Diaz decision applies retroactively to cases on collateral review. See

Brandon, 51 A.3d at 236; Leggett, 16 A.3d at 1147-48.

     As Lee has failed to prove he is entitled to an exception to the PCRA’s

timeliness requirements, we affirm the order dismissing his petition as

untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/19




                                    -5-
