J-S74027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DOMINICK PEOPLES                           :
                                               :
                       Appellant               :   No. 1170 EDA 2019

              Appeal from the PCRA Order Entered March 19, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0312271-2006


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 18, 2020

        Dominick Peoples (Appellant) appeals from the order dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        A prior panel of this Court summarized the facts and procedural history

of this case:

              After a dispute over a dice game, Appellant shot and killed
        Lamar Canada. A jury convicted Appellant of first-degree murder,
        criminal conspiracy, and possessing instruments of crime
        (“PIC”).[FN]1 The court imposed a life sentence, and Appellant
        appealed. In an unpublished memorandum filed on May 7, 2010,
        this Court affirmed Appellant’s judgment of sentence; thereafter,
        the Pennsylvania Supreme Court denied Appellant’s petition for
        allowance of appeal, and the United States Supreme Court denied
        certiorari. See Commonwealth v. Peoples, 4 A.3d 185 (Pa.
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       Super. 2010) (Table), appeal denied, 12 A.3d 752 (Pa. 2010),
       cert. denied, 563 U.S. 951, 131 S.Ct. 2131 (2011).

              FN1   18 Pa.C.S.A. §§ 2502, 903, and 907 [].

             Appellant timely filed a pro se PCRA petition. The PCRA
       court appointed counsel[.] . . .The PCRA court issued Rule 907
       notice, granted counsel’s petition to withdraw, and subsequently
       dismissed Appellant’s petition without a hearing. Appellant filed a
       notice of appeal[.]


Commonwealth v. Peoples, 408 EDA 2015, *1-2 (Pa. Super. Jan. 13, 2017)

(unpublished memorandum).

       On January 13, 2017, this Court affirmed the PCRA court’s order

dismissing Appellant’s petition. Id. The Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal on September 21, 2017.

Commonwealth v. Peoples, 170 A.3d 1062 (Pa. 2017) (Table).

       On October 3, 2017, Appellant filed the underlying pro se PCRA petition.

Appellant filed a subsequent pro se PCRA petition on October 11, 2017.2 On

February 7, 2018, Appellant retained private counsel, who entered his

appearance and filed a motion for leave to file an amended PCRA petition. On

May 5, 2018, Appellant filed an amended petition.

       On December 19, 2018, the PCRA court issued notice of its intent to

dismiss Appellant’s petition without a hearing pursuant to Rule 907 of the

Pennsylvania Rules of Criminal Procedure. On March 19, 2019, the PCRA court

dismissed Appellant’s petition as untimely. Appellant appealed.

____________________________________________


2Appellant’s October 11, 2017 PCRA petition is identical to the petition filed
on October 3, 2017.

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      Appellant raises two issues for review:

      [1.] Did the PCRA Court violate Appellant’s constitutional right to
      due process and fair trial by finding that the Appellant’s PCRA
      petition was not timely filed under either the ‘newly discovered
      evidence’ or the ‘governmental interference’ exceptions?

      [2.] Did the PCRA Court violate Appellant’s constitutional right to
      due process and a fair trial by finding that Appellant’s Petition
      lacked merit?

Appellant’s Brief at 3.

      In reviewing the denial of a PCRA petition, our review is limited to

examining whether the PCRA court’s findings are supported by the record and

free of legal error. See Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.

2011). We view the findings of the PCRA court and the evidence of record in

the light most favorable to the prevailing party.     Id.      “The PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court; however, we apply a de novo standard of review to the PCRA court’s

legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015).

      Further, Pennsylvania law makes clear that no court has jurisdiction to

hear an untimely PCRA petition.     Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within

one year of the date on which the petitioner’s judgment of sentence became

final, unless one of the three statutory exceptions applies:




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       (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.


42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).3 If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).



____________________________________________


3 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
2018, and now provides that a PCRA petition invoking a timeliness exception
must be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall
apply only to claims arising one year before the effective date . . . or
thereafter.” Id. This change does not impact our analysis.


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       Appellant’s PCRA petition is facially untimely. “A judgment is deemed

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.’” Monaco, 996 A.2d at

1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)).

       Here, the trial court entered Appellant’s judgment of sentence on April

16, 2008. This Court affirmed Appellant’s judgment of sentence on May 7,

2010, and the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on November 16, 2010. Appellant’s petition for writ of

certiorari with the United States Supreme Court was denied on April 18, 2011.

Peoples v. Pennsylvania, 131 S.Ct. 2131 (U.S. 2011).                   Therefore,

Appellant’s judgment of sentence became final on April 18, 2011. See 42

Pa.C.S.A. § 9545(b)(3).

       Under Section 9545(b)(1), Appellant had to file his PCRA petition within

one year of his judgment of sentence becoming final - or April 18, 2012.

Appellant did not file the underlying petition, his second, until October 3, 2017.

Accordingly, we are without jurisdiction to decide Appellant’s appeal unless he

pled and proved one of the three timeliness exceptions of Section 9545(b)(1).

See Derrickson, 923 A.2d at 468.

       Appellant argues that he satisfies both the newly-discovered fact

exception and the governmental interference exception to the PCRA’s time

bar.   To qualify for the newly-discovered fact exception, a petitioner must

establish that (1) he did not know the facts upon which he based his petition,

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and (2) he could not have learned those facts earlier with the exercise of due

diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Appellant asserts that he meets

the exception based upon his discovery, through news reports on April 26,

2017, that Detective Ronald Dove, an investigating officer in Appellant’s case,

was convicted of crimen falsi offenses in an unrelated matter.       Appellant’s

Brief at 8.   Specifically, Appellant avers that he qualifies for the exception

“based on the recent discovery of two new facts: 1) lead [Detective] Dove

pled guilty to crimes which are consistent with his behavior in the instant case

and 2) the existence of an unconstitutional interrogation pattern and practice

within the Homicide Unit which was consistent with Det. Dove’s actions in the

instant case.” Id. at 7-8.

      Appellant further argues that he meets the government interference

exception. The government interference exception requires a petitioner to

prove that his “‘failure to raise the claim [or claims] previously was the result

of interference by government officials with the presentation of the claim [or

claims] in violation of the Constitution or laws of this Commonwealth or the

Constitution or laws of the United States. . . .’” Chester, 895 A.2d at 523

(quoting 42 Pa.C.S.A. § 9545(b)(1)(i)) (emphasis and brackets in original).

Appellant contends that “the Commonwealth interfered with his ability to

present the claims pertaining to Det. Dove’s misconduct earlier than he did,”

and as such, he satisfies the governmental interference exception to the PCRA

time-bar. Id. at 12.




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        Upon review, we conclude that the PCRA court correctly dismissed

Appellant’s petition as untimely.4             Appellant’s argument that he did not

previously know about Detective Dove’s misconduct is belied by the record.

In his first PCRA petition, Appellant alleged a claim of newly-discovered

evidence based upon “two newspaper articles detailing Detective Dove’s

dismissal from the police force.” Peoples, 408 EDA 2015, at *12 (affirming

PCRA court’s dismissal).          Appellant also alleged “without support that

Detective Dove forced one of the witnesses in his case to give a statement

identifying Appellant as the shooter.” Id. at *12-13. Appellant’s first PCRA

petition advancing these arguments was filed on April 11, 2012. Therefore,

Appellant fails to satisfy the newly-discovered fact exception to the time bar

because his claims were previously known to him, as evidenced by his 2012

PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1)(ii) (A petitioner satisfies the

newly-discovered fact exception when “the facts upon which the claim is

predicated were unknown to the petitioner[.]”).

____________________________________________


4   Notably:

        Numerous defendants in recent years similarly and unsuccessfully
        have sought relief under the PCRA due to former Detective Dove’s
        criminal misconduct. Detective Dove was fired by the Philadelphia
        Police Department for allegedly covering up evidence in an
        unrelated homicide matter[] involving a girlfriend. He ultimately
        was arrested and charged with: obstructing justice, unsworn
        falsification to authorities, tampering with/fabricating evidence,
        hindering prosecution, flight, and conspiracy.          CP-51-CR-
        0001382-2015, Commonwealth v. Ronald S. Dove.

Commonwealth v. Johnson, 179 A.3d 1105, 1123 n.9 (Pa. Super. 2018).

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      Appellant also fails to satisfy the government interference exception

under Section 9545(b)(1)(i). As noted, Appellant advanced his arguments

regarding Detective Dove in his 2012 petition. Because Appellant raised these

claims in his first petition, we cannot conclude that he was precluded, because

of government interference, from raising this claim earlier. See 42 Pa.C.S.A.

§ 9545(b)(1)(i) (A petitioner satisfies the governmental interference

exception when “the failure to raise the claim previously was the result of

interference by government officials[.]”); see also Chester, 895 A.2d at 523.

Appellant therefore fails to satisfy any exception to the PCRA’s time bar, and

the PCRA court correctly dismissed his petition as untimely.

      Even if Appellant successfully pled and proved an exception to the PCRA

time-bar, his after-discovered evidence claim has been previously litigated.

Appellant alleges that Detective Dove’s unrelated criminal conduct qualifies as

after-discovered evidence. See Appellant’s Brief at 13-29. In disposing of

Appellant’s first PCRA petition, this Court specifically held that “Appellant fails

to fulfill the requirements for obtaining relief based on after-discovered

evidence” because “Appellant is unable to show how Detective Dove’s

subsequent misconduct bears on Appellant’s own case[,]” and therefore, “the

allegations   Appellant   touts   as   newly   discovered   evidence    constitute

impeachment evidence insufficient for obtaining relief.” Peoples, 408 EDA

2015, at *13-14 (citation and emphasis omitted); see also 42 Pa.C.S.A. §

9543(a)(3) (To be eligible for PCRA relief, “the petitioner must plead and prove

by a preponderance of the evidence . . . that the allegation of error has not

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been previously litigated or waived.”); 42 Pa.C.S.A. § 9544(a)(3) (“[A]n issue

has been previously litigated if . . . it has been raised and decided in a

proceeding collaterally attacking the conviction or sentence.”).

      In sum, Appellant has failed to plead and prove an exception to the

PCRA’s time bar, and his underlying after-discovered evidence claim has been

previously litigated on collateral review.    Because Appellant’s petition is

untimely and not subject to a statutory exception to the PCRA’s time bar, the

PCRA court lacked jurisdiction. We therefore affirm the order denying relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/20




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