J. S03015/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :      IN THE SUPERIOR COURT OF
                                       :            PENNSYLVANIA
                     v.                :
                                       :
SINORN DIP,                            :           No. 789 EDA 2015
                                       :
                          Appellant    :


                Appeal from the PCRA Order, March 17, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-1204602-2004


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 09, 2016

     Sinorn Dip appeals from the order of March 17, 2015, dismissing his

second PCRA petition without an evidentiary hearing.     Appellant sought to

invoke the after-discovered evidence exception to the one-year time bar,

relying on an affidavit from a key Commonwealth witness, Marcus Harris

(“Marcus”), recanting his trial testimony.   After careful review, we affirm.

     On direct appeal, this court summarized the underlying facts of this

matter as follows:

                 The evidence adduced at trial established that
           in August 2004, Dip, his co-defendant St. John Pen
           (“Pen”), and several of their friends went to confront
           13-year-old Marquis Harris (“Harris”) at Harris’s
           home because Pen suspected that Harris, his twin
           brother Marcus, and their 15-year-old stepbrother,
           Terrell Lovelace, Jr., had broken into his car and
           stolen his car radio. Harris’s mother answered the
           door. Pen stated his accusations and indicated that
J. S03015/16


           he wanted to fight her sons. She said there would
           be no violence over the incident and told Pen that
           her husband would go to his house to resolve the
           situation.    Harris’s stepfather, Terrell Lovelace
           (“Lovelace”), went to Pen’s house and asked for an
           estimate for the broken window and stolen radio,
           telling Pen that he would pay him for his loss. No
           estimate was ever given to Lovelace and Lovelace
           did not pay Pen any money.

                 On September 25, 2004, Pen’s girlfriend’s car
           was broken into, and Pen assumed that it was Harris
           and his brothers who were responsible. Pen, Dip and
           an unidentified third male went to confront Harris,
           his brother, and three of their friends outside of a
           local Chinese restaurant. Brandishing handguns, Dip
           and Pen ordered the boys to get on the ground.
           When they refused to do so, Pen, Dip and the
           unidentified third assailant opened fire on the boys
           as they ran away.       Wayne Jones (“Jones”) and
           Jermaine Myers (“Myers”), two of Harris’s friends,
           were shot in the arm and back, respectively, while
           Harris was shot twice in the leg, falling to the
           ground. Pen stood over Harris and shot him in the
           head at close range. Harris died shortly thereafter.
           Pen and Dip were arrested, whereas the third
           assailant was never apprehended or identified. Pen
           gave two statements to police while in their custody,
           implicating him and Dip in the events described
           above.

Commonwealth v. Dip, No. 198 EDA 2007, unpublished memorandum at

*1-3 (Pa.Super. filed November 24, 2008).

     On October 5, 2006, following a jury trial, appellant was convicted of

third-degree murder, 18 Pa.C.S.A. § 2502(c), and two counts of aggravated

assault, 18 Pa.C.S.A. § 2702.   He was found not guilty of the remaining

charges including two counts of attempted murder, criminal conspiracy,

possessing instruments of crime, and firearms charges.         Id. at *3.


                                   -2-
J. S03015/16


Appellant was sentenced to an aggregate of 15 to 30 years’ imprisonment.

Id. On November 24, 2008, this court affirmed the judgment of sentence.

      On July 29, 2009, appellant filed a timely PCRA petition, and counsel

was appointed.    Appellant amended and/or supplemented his petition on

three occasions. On December 13, 2011, his petition was dismissed without

an evidentiary hearing. Appellant filed a timely appeal, raising three claims

of trial counsel ineffectiveness. This court affirmed on December 28, 2012;

and on June 27, 2013, the Pennsylvania Supreme Court denied appellant’s

petition for allowance of appeal. Appellant did not file a petition for writ of

certiorari with the United States Supreme Court.

      Appellant filed the instant petition, his second, on September 11,

2013, followed by an amended petition on May 24, 2014. Appellant alleged

that Marcus desired to recant his trial testimony and signed an affidavit to

that effect dated November 11, 2013.        On March 17, 2015, appellant’s

petition was dismissed without a hearing, and this timely appeal followed.

Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the

PCRA court has filed a Rule 1925(a) opinion.

      Appellant has raised the following issue for this court’s review:

            1.    Did the PCRA Court err in dismissing
                  Appellant’s second PCRA Petition without a
                  hearing and determining that Appellant’s
                  underlying second PCRA Petition was not
                  timely filed despite the fact that according to
                  42 Pa. C.S. §9545(b)(1)(iii) and 42 Pa. C.S.
                  §9545(b)(2), Appellant’s PCRA Petition was



                                     -3-
J. S03015/16


                   timely filed   because    of   newly-discovered
                   evidence?

Appellant’s brief at 4 (footnote omitted).

        “Our standard of review in reviewing an order either granting or

denying post-conviction relief is limited to examining whether the court’s

determination is supported by evidence of record and whether it is free of

legal error.”   Commonwealth v. Albrecht, 720 A.2d 693, 698 n.3 (Pa.

1998) (citation omitted).

                   In 1995, the legislature amended the PCRA to
             require that PCRA petitions must be filed within a
             certain period of time. These amendments require
             that any PCRA petition, “including a second or
             subsequent petition, shall be filed within one year of
             the date the judgment becomes final.” 42 Pa.C.S.
             § 9545(b)(1). A judgment becomes final “at the
             conclusion of direct review, including discretionary
             review in the Supreme Court of the United States
             and the Supreme Court of Pennsylvania, or at the
             expiration of time for seeking the review.”
             42 Pa.C.S.    § 9545(b)(3).         These    timeliness
             requirements are jurisdictional. Commonwealth v.
             Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999). ‘[A]
             court has no authority to extend filing periods except
             as the statute permits.’ Id. (citation omitted).

Commonwealth v. Howard, 788 A.2d 351, 353 (Pa. 2002).

        This court affirmed appellant’s judgment of sentence on November 24,

2008.     Appellant did not seek allowance of appeal in the Pennsylvania

Supreme Court. Therefore, appellant’s judgment became final on or about

December 24, 2008, after the time for filing a petition for allowance of

appeal expired. Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 5571(a). Appellant had



                                      -4-
J. S03015/16


until December 24, 2009, one year later, to file a timely PCRA petition.

Since this petition, his second, was filed nearly five years after the date on

which appellant’s judgment became final, then it was obviously filed beyond

the one-year time limitation.

            [T]he 1995 amendments afford three narrow
            exceptions to the one-year time limitation for
            seeking PCRA relief. One of the exceptions provides
            that a party is excused from the general one-year
            filing requirement of the PCRA if “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.”           42 Pa.C.S.A.
            § 9545(b)(1)(ii). This exception has come to be
            known as the after-discovered evidence exception.
            See Commonwealth v. Yarris, 557 Pa. 12, 731
            A.2d 581, 592 (1999) (characterizing 42 Pa.C.S.A.
            § 9545(b)(ii) as “the after-discovered evidence
            exception     to    the    timeliness    requirement”);
            Commonwealth v. Peterkin, 554 Pa. 547, 722
            A.2d 638, 643 (1998) (stating that “the exceptions
            to [PCRA] filing period encompass government
            misconduct,      after-discovered     evidence,    and
            constitutional changes”).         Furthermore, as a
            secondary proviso, the amendments mandate that
            when a petitioner alleges entitlement to an exception
            to the one-year time limitation, the petition will only
            be addressed on substantive grounds if it is “filed
            within 60 days of the date the claim could have been
            presented.” 42 Pa.C.S.A. § 9545(b)(2). Thus, a
            petitioner relying on the after-discovered evidence
            exception is further required to file his or her PCRA
            petition within 60 days of the discovery of the new
            evidence proffered in support of relief.

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

            The     timeliness    exception set    forth   in
            Section 9545(b)(1)(ii) requires a petitioner to
            demonstrate he did not know the facts upon which
            he based his petition and could not have learned


                                     -5-
J. S03015/16


           those facts earlier by the exercise of due diligence.
           Commonwealth v. Bennett, 593 Pa. 382, 395, 930
           A.2d 1264, 1271 (2007). Due diligence demands
           that the petitioner take reasonable steps to protect
           his own interests. Commonwealth v. Carr, 768
           A.2d 1164, 1168 (Pa.Super.2001). A petitioner must
           explain why he could not have obtained the new
           fact(s) earlier with the exercise of due diligence.
           Commonwealth v. Breakiron, 566 Pa. 323,
           330-31, 781 A.2d 94, 98 (2001); Commonwealth
           v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590
           (1999).     This rule is strictly enforced.      See
           [Commonwealth v. Vega, 754 A.2d 714, 718
           (Pa.Super.2000)].

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010),

appeal denied, 20 A.3d 1210 (Pa. 2011).

           The sixty (60) day time limit related to Section
           9545(b)(2) runs from the date the petitioner first
           learned of the alleged after-discovered facts.
           Commonwealth v. Albrecht, 606 Pa. 64, 994 A.2d
           1091 (2010). A petitioner must explain when he
           first learned of the facts underlying his PCRA claims
           and show that he brought his claim within sixty (60)
           days thereafter. Id. (holding petitioner failed to
           demonstrate his PCRA petition was timely where he
           did not explain when he first learned of facts
           underlying his PCRA petition) (emphasis added). “A
           petitioner fails to satisfy the 60-day requirement of
           Section 9545(b) if he . . . fails to explain why, with
           the exercise of due diligence, the claim could not
           have been filed earlier.”         Commonwealth v.
           Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720
           (2008) (emphasis added). All of the time limits set
           forth in the PCRA are jurisdictional and must be
           strictly construed. Commonwealth v. Fahy, 598
           Pa. 584, 589, 959 A.2d 312, 315 (2008).

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.Super. 2011), appeal

denied, 50 A.3d 121 (Pa. 2012).



                                   -6-
J. S03015/16


      In his petition, appellant alleged that he learned from prior PCRA

counsel, John P. Cotter, Esq., on or about August 8, 2013, that Marcus

recanted his trial testimony and he then filed his petition on September 11,

2013, within 60 days. Appellant stated that, “There is no way that Petitioner

could have known Marcus Harris’ current position sooner because Mr. Harris

testified against Petitioner at trial.” (Amended PCRA petition, 5/24/14 at 6;

Docket #41.) Appellant attaches an affidavit dated November 11, 2013, in

which Marcus disavows his trial testimony and states that he lied when he

testified that he saw appellant shoot his twin brother.      (Id., Exhibit A.)

Marcus alleges that he was “young and scared” and his statements were

coerced. (Id.)

      However, appellant also attaches an August 2, 2011 letter from

Attorney Cotter to Richard W. Strohm, a private investigator, stating, in

part, that “[Appellant] claims that he is innocent and that Marcus Harris . . .

who testified for the Commonwealth at trial wants to recant his testimony of

9-25-06,” and asking Mr. Strohm to interview Marcus.         (Id., Exhibit B.)

Appellant also attaches an October 24, 2011 letter from Attorney Cotter to

Marcus stating, in part, “I have information which leads me to believe that

you wish to recant your testimony in the case which means that what you

told the jury on 9-25-06 was not correct or not truthful.” (Id.) Therefore,

the record indicates that appellant had information as early as 2011 that

Marcus desired to recant his testimony.



                                     -7-
J. S03015/16


      In fact, appellant fails to plead the exact date on which he allegedly

became aware that Marcus wanted to recant.              Appellant uses the date of

August 8, 2013, when Attorney Cotter forwarded a letter from Marcus dated

August 5, 2013 indicating that he wanted to recant and requesting of

Attorney Cotter, “So if you [are] still representing this defendant, could you

write me back as soon as possible and let me know what I have to do about

recanting my statement[,] thank you!!!”              (Id.)   However, by his own

admission,   appellant     knew   in   2011   that    Marcus   wanted   to   recant.

Attorney Cotter’s August 2, 2011 letter to Mr. Strohm indicates that

appellant had information to the effect that Marcus wanted to recant his trial

testimony.     Appellant fails to explain when or how he obtained this

information. The operative date is not August 5, 2013, when Marcus wrote

to Attorney Cotter, or November 11, 2013, the date of Marcus’s affidavit;

rather, the key date is when appellant first knew, or with the exercise of

reasonable diligence should have known, of this new evidence.            Appellant

has failed to plead and prove the applicability of the after-discovered

evidence exception to the one-year time bar; specifically, that he filed his

petition within 60 days.

      Appellant also argues that his petition is timely because his first

petition was still pending in 2011 when he first heard of Marcus’ desire to

recant. (Appellant’s brief at 17.) Appellant argues that he could not raise

the issue in a second petition while the first petition was being litigated.



                                        -8-
J. S03015/16


(Id.)   According to appellant, dismissal of appellant’s first petition did not

become final until September 27, 2013, when the time for filing a petition

for writ of certiorari with the United States Supreme Court expired. (Id. at

18.)

            A second appeal cannot be taken when another
            proceeding of the same type is already pending.
            See C.J.S. Appeal and Error § 20 (“As a general rule
            a second proceeding to obtain a review by an
            appellate court cannot be taken while a prior valid
            proceeding for such purpose is still pending, and if it
            is attempted, the second proceeding will be
            dismissed, unless it has been validated by the
            abandonment of the first proceeding, or the first
            proceeding is so defective and ineffectual that it
            cannot properly be regarded as pending.”) (footnotes
            omitted).

                   We now hold that when an appellant’s PCRA
            appeal is pending before a court, a subsequent PCRA
            petition cannot be filed until the resolution of review
            of the pending PCRA petition by the highest state
            court in which review is sought, or upon the
            expiration    of   the   time     for   seeking    such
            review.[Footnote 2] If the subsequent petition is not
            filed within one year of the date when the judgment
            became final, then the petitioner must plead and
            prove that one of the three exceptions to the time
            bar under 42 Pa.C.S. § 9545(b)(1) applies. The
            subsequent petition must also be filed within sixty
            days of the date of the order which finally resolves
            the previous PCRA petition, because this is the first
            “date the claim could have been presented.”
            42 Pa.C.S. § 9545(b)(2).

                  [Footnote 2] We note that this holding
                  will not preclude a trial court from
                  granting leave to amend a PCRA petition
                  that is currently pending before that
                  court.



                                     -9-
J. S03015/16


Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). Further, the PCRA

court does not have jurisdiction to adjudicate any issues raised in a

subsequent PCRA while an appeal is pending. Id.

      From our review of the record, appellant failed to raise this argument

until his brief on appeal.    Appellant did not raise it in his pro se PCRA

petition, his counselled amended petition, his response to Rule 907 notice,

or in his Rule 1925(b) statement. In the court below, appellant argued that

the instant petition was filed within 60 days of August 8, 2013, when he

learned from Attorney Cotter that Marcus wanted to recant his eyewitness

testimony.     Appellant never argued that his second petition was timely

because it was filed within 60 days of his first petition being finally resolved.

As this argument is being raised for the first time on appeal, it is deemed

waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

and    cannot     be     raised   for      the   first   time   on    appeal.”);

Pa.R.A.P. 1925(b)(4)(vii) (issues not included in the Rule 1925(b) statement

are waived).

      Furthermore, the argument would be unavailing where, as discussed

supra, appellant fails to plead when he first became aware that Marcus

wanted to recant.      He obviously knew at least as early as late July/early

August 2011, when Attorney Cotter sought the assistance of a private

investigator to interview Marcus. How much earlier is speculation. His first

petition was filed on July 29, 2009, and dismissed on December 13, 2011.



                                        - 10 -
J. S03015/16


At a minimum, appellant could have sought leave to amend his petition to

include a claim of after-discovered evidence in the form of recantation

testimony.

      Appellant has failed to show that his untimely petition satisfies the

after-discovered evidence exception to the statutory one-year time bar.

Therefore, the PCRA court was without jurisdiction to consider the merits of

appellant’s petition and did not err in dismissing appellant’s petition without

a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2016




                                    - 11 -
