J-S01019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DERRICK Y. THOMAS

                         Appellant                   No. 541 EDA 2015


                Appeal from the PCRA Order January 22, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1126921-1991


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                         FILED FEBRUARY 03, 2016

      Appellant, Derrick Y. Thomas, appeals pro se from the January 22,

2015 order, dismissing as untimely his fifth petition for relief filed pursuant

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

careful review, we affirm.

      A prior panel of this Court has summarized the relevant factual and

procedural background of this case as follows.

            On February 7, 1990 Appellant and co-defendants
            lured the victim to one of co-defendant’s homes.
            The victim had been a witness to a murder and
            planned to testify against Appellant’s and co-
            defendants’ friend. A short time after arriving at the
            home, Appellant and co-defendant’s hit the victim in
            the head with a baseball bat, tied his hands behind
            his back, and repeatedly sliced the victim’s neck with
            a machete. A jury trial was held from February 25,
            1993 to March 16, 1993.          The jury convicted
            Appellant of first-degree murder, retaliation against
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          a witness, criminal conspiracy, and possessing an
          instrument of crime [PIC]. … On April 20, 1994, the
          court sentenced Appellant to life imprisonment for
          the murder conviction, and a concurrent sentence of
          four (4) to fourteen (14) years’ imprisonment for the
          remaining convictions. Appellant did not file a direct
          appeal. On April 28, 1995, Appellant filed a PCRA
          petition to reinstate his direct appeal rights nunc pro
          tunc. The [PCRA] court granted Appellant’s petition
          on June 19, 1996. On June 12, 1997, this Court
          reversed Appellant’s judgment of sentence for [PIC]
          and affirmed the remaining judgments of sentence.
          Appellant filed a petition for allowance of appeal,
          which the Supreme Court denied on December 9,
          1997.

                 Appellant timely filed pro se his first PCRA
          petition on April 21, 1998.        The [PCRA] court
          appointed counsel, who filed a “no-merit” letter
          pursuant to Commonwealth v. Turner, 544 A.2d
          927 ([Pa.] 1988) and Commonwealth v. Finley,
          550 A. 2d 213 (Pa. Super. 1988) (en banc). On April
          7, 1999, the [PCRA] court issued notice of its intent
          to    dismiss   Appellant’s  petition   pursuant   to
          [Pennsylvania Rule of Criminal Procedure] 907. …
          [T]he [PCRA] court dismissed the petition on May 20,
          1999. On April 27, 2000, this Court determined
          counsel’s “no-merit” letter was defective and vacated
          the order dismissing Appellant’s petition and
          remanded for appointment of new counsel. The
          PCRA court appointed new counsel, who also filed a
          “no-merit” letter.    The [PCRA] court once again
          dismissed Appellant’s petition, and this Court
          affirmed the dismissal on January 22, 2003. On
          October 3, 2003, Appellant filed a second PCRA
          petition. The PCRA court dismissed the petition as
          untimely on November 17, 2003, and this Court
          affirmed the dismissal on December 10, 2004.
          Appellant filed a third PCRA petition on January 10,
          2008, which the [PCRA] court dismissed as untimely
          on December 4, 2009.         Appellant appealed the
          dismissal but filed a praecipe for discontinuance on
          March 10, 2010.


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Commonwealth           v.   Thomas,       102    A.3d   523,   (Pa.   Super.   2014)

(unpublished memorandum at 1-3) (parallel citation omitted).               Appellant

filed his fourth PCRA petition, and the PCRA court denied said petition as

untimely on April 8, 2014. See id. Appellant filed the instant, fifth petition

for PCRA relief on June 30, 2014. On August 8, 2014, the PCRA court issued

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

Appellant filed a response on August 28, 2014. On January 22, 2015, the

PCRA court dismissed Appellant’s petition. Appellant filed a timely notice of

appeal on February 13, 2015.1

       On appeal, Appellant raises the following issues for our consideration.

              [I]. Whether the [PCRA] court committed an
              injustice and manifest abuse of discretion and
              committed an error in dismissing Appellant’s PCRA
              [petition] as untimely, when Appellant is showing
              due diligence regarding exculpatory evidence, to
              prove he is a [sic] actual innocent person[?]

              [II.] Whether trial counsel was ineffective for failing
              to investigate and interview alibi witness[?]

              [III.] Whether [the] prosecutor used perjured and
              false testimony to obtain a tainted conviction[?]

Appellant’s Brief at 3.




____________________________________________
1
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court issued a Rule 1925(a) opinion on March
13, 2015, explaining the reasons for its dismissal.



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      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA   relief,   we   examine    whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”          Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).            “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”             Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Before we may address the merits of Appellant’s arguments, we must

first consider the timeliness of Appellant’s PCRA petition because it

implicates     the   jurisdiction     of   this   Court   and   the   PCRA    court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation

omitted).      Pennsylvania law makes clear that when “a PCRA petition is

untimely, neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)

(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for

filing a PCRA petition is not subject to the doctrine of equitable tolling;


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instead, the time for filing a PCRA petition can be extended only if the PCRA

permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014) (internal quotation marks and citation omitted), cert. denied, Ali v.

Pennsylvania, 135 S. Ct. 707 (2014).          This is to “accord finality to the

collateral review process.”   Commonwealth v. Watts, 23 A.3d 980, 983

(Pa. 2011) (citation omitted).      “However, an untimely petition may be

received when the petition alleges, and the petitioner proves, that any of the

three limited exceptions to the time for filing the petition, set forth at 42

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.”      Commonwealth v.

Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).           The PCRA

provides, in relevant part, as follows.

            § 9545. Jurisdiction and proceedings

                                          …

            (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

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                          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.

                   (2) Any petition invoking an exception
                   provided in paragraph (1) shall be filed within
                   60 days of the date the claim could have been
                   presented.

                                        …

42 Pa.C.S.A. § 9545(b).

      In the instant case, as the previous panel noted, “Appellant’s judgment

of sentence became final on or about March 8, 1998[.]” Thomas, supra at

5.   Appellant’s petition fifth petition was filed on June 30, 2014, and is

therefore patently untimely.      See generally 42 Pa.C.S.A. § 9545(b)(1).

However, Appellant avers that the newly discovered fact exception applies.

Appellant’s Brief at 6.

      Our Supreme Court has previously described a petitioner’s burden

under the newly-discovered evidence exception as follows.

            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. Namely, the petitioner
            must establish that: 1) “the facts upon which the
            claim was predicated were unknown” and 2) “could
            not have been ascertained by the exercise of due
            diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
            added).

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Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in

original). “Due diligence demands that the petitioner take reasonable steps

to protect his own interests.    A petitioner must explain why he could not

have learned the new fact(s) earlier with the exercise of due diligence.   This

rule is strictly enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.

Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012).

      Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

                     The statutory exceptions to the timeliness
             requirements of the PCRA are also subject to a
             separate time limitation and must be filed within
             sixty (60) days of the time the claim could first have
             been presented. See 42 Pa.C.S.A. § 9545(b)(2).
             The sixty (60) day time limit … runs from the date
             the petitioner first learned of the alleged after-
             discovered facts. 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. (some citations omitted).     Our Supreme Court has held that Section

9545(b)(2) also requires a showing of due diligence insofar that a petitioner

must file the petition within 60 days that the claim could have first been

presented.   Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),

cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).




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       Instantly, Appellant avers that his sister’s affidavit stating she told trial

counsel that Appellant was asleep at home at the time of the crimes, is a

newly-discovered       fact   for   the    purposes   of   Section   9545(b)(1)(ii).2

Appellant’s Brief at 6; PCRA Court Opinion, 3/13/15, at 4; Appellant’s PCRA

Petition 6/30/14, at 3. Appellant’s petition alleges that he “recently learned

[from] his sister that she told his trial attorney that [Appellant] was home

[a]sleep during the time that the assault and killing took place.” Appellant’s

PCRA Petition 6/30/14, at 3. Appellant further argued that he and “his sister

[have] been separated in their relationship for many years due to

irreconcilable differences.”        Id.    Appellant continues, “[h]owever, [he]

brought up his case and surprisingly he learned that his sister was home

while he was [a]sleep.” Id. Appellant further argues that he exercised due

diligence because “[e]ven had [Appellant] been in contact with his sister, he

would not have known to ask her about the night of the crime, because

[Appellant] could not clearly remember where he was the night of the


____________________________________________
2
  Appellant does not set forth any other time bar exceptions regarding his
remaining issues asserting claims of actual innocence and ineffective
assistance of counsel. Therefore, the PCRA court and this Court lack
jurisdiction to consider the merits of these issues and we do not address
them. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa.
2000) (stating, “a claim for ineffective assistance of counsel does not save
an otherwise untimely petition for review on the merits[]”);
Commonwealth v. Fahy, 737 A.2d 214, 223, (Pa. 1999) (explaining that a
claim of actual innocence pertains to the merits of a timely second or
subsequent PCRA petition, but does not amount to an exception to the PCRA
time-bar).



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crime.” Appellant’s Brief at 7. Appellant further alleges that at the time, he

frequently spent nights with a female friend, so he assumed the night of the

crime he was at her residence. Id.

      The PCRA court concluded that Appellant had not satisfied the newly-

discovered fact exception to the time-bar based on the following cogent

analysis.

                    Here, [Appellant]’s claim entitled to him to
            neither an evidentiary hearing nor relief because he
            failed to establish that the information contained in
            his filings could not have been discovered previously.
            Nearly twenty-five years after he was convicted,
            [Appellant] claims [he] only recently learned that his
            sister offered his trial counsel alibi evidence asserting
            that [Appellant] was “home [a]sleep during the time
            that the assault and killing took place.” Despite the
            fact that [Appellant] surely knew where he asserts
            he was and knew that his sister could support his
            alibi he raised this claim for the first time in his fifth
            PCRA petition. Clearly, [Appellant] did not exercise
            due diligence with respect to this claim.

                   It is further noted that relief was properly
            denied because he has not shown that he exercised
            due diligence to obtain this evidence or why it could
            not have been discovered sooner. “A petitioner must
            explain why he could not have obtained the new
            fact(s) earlier with the exercise of due diligence.
            This rule is strictly enforced.” Commonwealth v.
            Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)
            (citations omitted).     Thus, [Appellant] failed to
            establish that he was duly diligent and his failure to
            do so precluded review on this issue by this Court
            because [Appellant] failed to overcome the time bar.

PCRA Court Opinion, 3/13/15, at 4-5.




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      After careful review, we conclude Appellant has not met his burden

under Section 9545(b)(1)(ii). As the PCRA court noted, Appellant first raised

this claim in his fifth PCRA petition, filed more than 24 years since the

crimes took place.      Although Appellant and his sister may have been

estranged, the due diligence requirement demanded that in those 24 years,

Appellant attempt to reach out to his sister to see if she had any information

that could help him. Therefore, we agree with the PCRA court that Appellant

has not shown that his petition was timely under Section 9545(b)(1)(ii).

See Bennett, supra; Williams, supra.

      Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s PCRA petition as untimely.      Accordingly, the PCRA

court’s January 22, 2015 order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2016




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