J. S03006/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   v.                     :
                                          :
DAVID THOMPSON,                           :          No. 637 EDA 2015
                                          :
                        Appellant         :


              Appeal from the PCRA Order, February 10, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0308212-1995


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 16, 2016

      David Thompson appeals, pro se, from the February 10, 2015 order

dismissing his fourth petition filed pursuant to the Post Conviction Relief Act

(“PCRA”),   42   Pa.C.S.A.   §§     9541-9546,   following   his   convictions   of

first-degree murder, conspiracy, and possessing an instrument of crime. We

affirm.

      The trial court provided the following procedural history:

                  On October 26, 1995, following a jury trial
            before Judge Jane Cutler Greenspan, [appellant] was
            found guilty of murder of the first degree, possessing
            an instrument of crime, and criminal conspiracy.
            [Appellant] was sentenced to mandatory life
            imprisonment for murder of the first degree. No
            further penalty was imposed on the charges of
            possessing an instrument of crime and criminal
            conspiracy. At trial, [appellant] was represented by
            Charles P. Mirarchi III.
J. S03006/16


                [Appellant] failed to file a timely direct appeal.
          His appellate rights were reinstated nunc pro tunc
          by the trial court.        On June 18, 1997, the
          Pennsylvania Superior Court affirmed the judgments
          of sentence. On October 28, 1997, the Pennsylvania
          Supreme Court denied [appellant’s] petition for
          allowance of appeal.      [Appellant’s] judgments of
          sentence became final on January 27, 1998, ninety
          days after the Pennsylvania Supreme Court denied
          allowance of appeal on his direct appeal and the time
          period for seeking discretionary review by the U.S.
          Supreme Court had expired.

                 Less than one year later, on April 14, 1998,
          [appellant] filed his first PCRA petition pro se.
          Counsel was appointed; that counsel subsequently
          filed a “no merit” letter pursuant to Commonwealth
          v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
          Commonwealth v. Finley, 550 A.2d 213
          (Pa.Super. 1988). On October 1, 1998, this court
          dismissed     [appellant’s]    petition  without    an
          evidentiary hearing. On appeal, the Superior Court
          affirmed the denial of [appellant’s] PCRA Petition.

                 According to the criminal docket, on December
          15, 2004, [appellant] filed his second PCRA petition
          pro se. Counsel was subsequently appointed and
          filed a Finley letter.     On September 23, 2005,
          [appellant’s] petition was dismissed as frivolous. On
          or around February 2, 2006, [appellant] filed pro se
          his third PCRA petition, and on April 24, 2006, he
          filed a Memorandum of Law in support thereof. On
          August 31, 2007, Judge Greenspan issued a Notice
          Pursuant to Pennsylvania Rule of Criminal Procedure
          907 advising [appellant] of this court’s intent to
          dismiss the petition for failure to demonstrate an
          exception to the statutory time-bar provided in the
          PCRA statute. On October 2, 2007, [appellant] filed
          a Response to this court’s Notice under Rule 907.
          On November 13, 2007, Judge Cutler Greenspan
          filed an Opinion and Order dismissing [appellant’s]
          Petition for Post Conviction Relief as untimely. On
          December 3, 2007, [appellant] filed a Notice of
          Appeal to the Superior Court. On September 5,


                                   -2-
J. S03006/16


            2008, the Superior Court affirmed the denial of
            [appellant’s] PCRA petition. [Appellant’s] petition for
            allowance of appeal was denied by the Supreme
            Court of Pennsylvania on January 20, 2009.

                   On or about May 6, 2013, [appellant] filed a
            pro se Motion for Post Conviction Collateral Relief
            and a Memorandum of Law in support thereof. On
            May 31, 2013, [appellant] filed a Motion to Amend
            Petition for Post Conviction Relief Pursuant to the
            Post Conviction Relief Act.    Thereafter, Attorney
            Steven T. O’Hanlon was appointed to represent him.
            On October 4, 2014, Attorney O’Hanlon filed a
            Finley letter and Motion to Withdraw as Counsel.
            On January 20, 2015, this court issued a Notice
            Pursuant to Pennsylvania Rule of Criminal Procedure
            907 advising [appellant] of this court’s intent to
            dismiss the petition. On February 10, 2015, this
            court dismissed [appellant’s] PCRA petition for lack
            of merit. On March 2, 2015, [appellant] filed a
            timely Notice of Appeal.

Trial court opinion, 8/3/15 at 1-3 (footnotes omitted).

      Appellant raises the following issues for our review:

            1.    Did the PCRA court error [sic] by dismissing
                  the petitioner’s new[ly] discovered evidence
                  claim as no merit[?]

            2.    [Was] the probable cause of petitioner[’s]
                  arrest sufficient, base[d] on an absent
                  Commonwealth’s witness, who did not testified
                  [sic] at preliminary, suppression hearing, nor
                  trial, violated petitioner’s U.S. Const., 6th
                  Amendment right and PA Const. Article I, []
                  Section 9[?]

            3.    [Was] the Commonwealth evidence sufficient
                  to convict petitioner’s [sic] of first degree
                  murder[?]




                                     -3-
J. S03006/16


             4.    [Was] petitioner’s trial counsel ineffective for
                   failure to call defense witness “Nicole Peter” to
                   show petitioner’s innocence[?]

Appellant’s brief at iii (capitalization omitted).

      Having determined, after careful review, that the Honorable Steven R.

Geroff, in his Pa.R.A.P. 1925(a) opinion of August 3, 2015, ably and

comprehensively disposes of appellant’s issues on appeal, with appropriate

references to the record and without legal error, we will affirm on the basis

of that opinion dismissing his serial PCRA petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2016




                                       -4-
                                                                                    Circulated 02/25/2016 02:31 PM
                                                                                                                     -

                            IN THE COURT OF COMMON PLEAS
                       FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                          TRIAL DIVISION - CRIMINAL SECTION



COMMONWEALTH OF                                                      CP- 51-CR-0308212-1995
PENNSYLVANIA

          vs.                         FILED
DAVID THOMPSON                           AUG O 3}0l5
                                  Crimtmai! ~~s l:Jn'iti            SUPERIOR COURT
                                First .Jlllm!ocall li)l~~' of P)\   NO. 637 EDA 2015


                                              OPINION


GEROFF,J.                                                           AUGUST 3, 2015



        Petitioner, David Thompson, has filed an appeal of this court's order denying his petition

pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq ..




I. PROCEDURAL IDSTORY

        On October 26, 1995, following a Jury trial before Judge Jane Cutler Greenspan,

Petitioner was found guilty of murder of the first degree, possessing an instrument of crime, and

criminal conspiracy.   Petitioner was sentenced to mandatory life imprisonment for murder of the

first degree.   No further penalty was imposed on the charges of possessing an instrument         of

crime and criminal conspiracy. At trial, Petitioner was represented by Charles P Mirarchi UT.

        Petitioner failed to file a timely direct appeal. His appellate rights were reinstated nunc

pro tune by the trial court. On June 18, 1997. the Pennsylvania Superior Court affirmed the
judgments of sentence.1                      On October 28, 1997,        the Pennsylvania       Supreme Court, denied

Petitioner's petition for aJlowance of appeal.'                   Petitioner's      judgments of sentence became final

on January 27, 1998, ninety days after the Pennsylvania Supreme Court denied allowance of

appeal on his direct appeal and the time period for seeking discretionary review by the U.S.

Supreme Court had expired.3

             Less than one year later, on April 14, 1998, Petitioner filed his first PCRA petition prose.

Counsel was appointed; that counsel subsequently                            filed a "no merit"       letter pursuant to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988).4                    On October l, 1998, this court dismissed Petitioner's petition

without an evidentiary hearing. On appeal, the Superior Court affirmed the denial of Petitioner's

PCRA Petition.5

             According to the criminal docket, on December 15, 2004, Petitioner filed his second

PCRA petition pro se.                  Counsel was subsequently appointed and filed a Finley letter.                On

September 23, 2005, Petitioner's petition was dismissed as frivolous. On or around February 2,


             I
                 Commonwealth v. Thompson, 700 A.2d 1029 (Pa. Super. 1997) (unpublished memorandum).
             2
                 Commonwealth v, Thompson, 550 Pa. 682, 704 A.2d 637 (1997).
             J   See U.S. Sup. Ct. R. I 3.
             4
                 In Commonwealth v. Turner, 5 l 8 Pa. 491, 544 A.2d 927( 1988), our Supreme Court held:

         When, in the exercise of his professional judgment, counsel determines that the issues raised under the
         PCHA [Post Conviction Hearing Act] are meritless, and when the PCHA court concurs, counsel will be
         permitted co withdraw and the petitioner may proceed prose, or by privately retained counsel, or not at all.
Id at 928-29.

             In Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988), the Superior Court explained:

             (T}he "independent review" necessary to assure a withdrawal request by PCHA counsel require[s) proof of:
             I) A "no-merit" letter by PCHA counsel detailing the nature and extent of his review;
             2) The "no merit" letter by PCHA counsel listing each issue the petitioner wished to have reviewed;
             3) The PCHA counsel's "explanation," in the "no-merit" letter, of why the petitioner's issues were
                 mentless;
              I) The PCHA court conducting its own independent review of the record, and
             5) The PCHA court agreeing with counsel that the petltion was rneritless.
Id. at 215
             ' Commonwealth      v   Thompson, 742 A 1d 21 :! (Pa. Super. t 999).

                                                                 2
  2006, Petitioner filed pro se his third PCRA petition, and on April 24. ~006, he filed a

  Memorandum of Law in support thereof.                On August J 1, 2007, Judge Greenspan issued a

 Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907 advising Petitioner of this

 court's intent to dismiss the petition for failure to demonstrate an exception to the statutory time-

 bar provided in the PCRA statute. On October 2, 2007, Petitioner filed a Response to this court's

 Notice under Rule 907. On November 13, 2007, Judge Cutler Greenspan filed an Opinion and

 Order dismissing the Petitioner's Petition for Post Conviction Relief as untimely.             On December

 3, 2007, Petitioner filed a Notice of Appeal to the Superior Court. On September 5, 2008, the

 Superior Court affirmed the denial of Petitioner's PCRA petition."                 Petitioner's petition for

 allowance of appeal was denied by the Supreme Court of Pennsylvania on January 20, 2009. 7

            On or about May 6, 2013, Petitioner filed a pro se Motion for Post Conviction Collateral

 Relief and a Memorandum          of Law in support thereof'!       On May 31, 2013, Petitioner filed a

 Motion to Amend Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act.

Thereafter, Attorney Steven T. O'Hanlon was appointed to represent him. On October 4, 2014,

Attorney O'Hanlon filed a Finley Jetter and a Motion to Withdraw as Counsel.                  On January 20,

2015, this court issued a Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907

advising Petitioner of this court's intent to dismiss the petition. On February 10, 2015, this court

dismissed Petitioner's PCRA petition for lack of merit.             On March 2, 2015, Petitioner filed a

timely Notice of Appeal


11. STANDARD OF REVIEW

        The Post Conviction Relief Act requires that a post-convicuon petition be filed within

        6
           Commonwealth v. Thompson, 963 A.2d 575 (Pa. Super 2008).
        7
           Commonwealth v Thompson; 600 Pa 745, 964 A.2d 89"i {2009).
         I
           On August 6, 2012. Petitioner filed a subsequent Post Conviction Relief Act Petition On October 18,
2012. the following criminal docket entry was made. Return Case from Collection Agency Court Request/Order'

                                                       J
one year of the date the judgment becomes final.          42 Pa.C.S.   § 9545 (b)(l).   A judgment

becomes final at the conclusion of direct review, including time to seek discretionary review

before the Pennsylvania    Supreme Court and the United States Supreme Court.           42 Pa.C.S. §

9545 (b)(3). The one-year limitation is exempted if a petitioner pleads and 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 du.e 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. § 9545 (b)(l)(i)-(iii).

        Any petition invoking an exception to the one-year limitation must be filed within sixty

days of the date the claim could be presented. 42 Pa.C.S. § 9545 (b)(2).

        The Pennsylvania Supreme Court has ruled that Pennsylvania courts have no Jurisdiction

to hear untimely Post Conviction Relief Act petitions.     Commonwealth v. Hall. 565 Pa. 92, 95,

771 A.2d 1232, 1234 (2001 ).         Where the Post Conviction Relief Act petition is untimely, a

petitioner must plead and prove that a one-year filing exception applies.     See Commonwealth. v.

Yarris, 557 Pa. 12, 24, 731 A.2d 581, 587 (1999) (stating that all PCRA petitions, "including

second and subsequent ones, must be filed within one year of the date on which the judgment

became final, unless one of the three statutory exceptions ... applies").




III. DISCUSSION

       As a preliminary matter, the Petitioner's    petition is untimely.   Petitioner's judgment of

sentence became final on January 27, 1998, the date on which the time period for seeking
 discretionary review by the U.S. Supreme Court had expired. Petitioner's current PCRA petition

 was filed on May 6, 2013, over fifteen years after his judgment of sentence had become final; it

 is, therefore, time-barred under§ 9545(b), unless one of the enumerated exceptions is satisfied.

             Petitioner claims that he is eligible for rehef pursuant to 42 Pa.C.S. § 9545(b)(l)(ii),

 under the after-discovered evidence exception. He also alleges that his petition is timely because

 he filed it within 60 days of obtaining an affidavit by Michael Woolfolk.                  Memorandum of Law

 in Support of Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act,

05/06/2013, p. 2. He explains that Michael Woolfolk was not known to him and that he could

not have discovered him "as a witness through due diligence because Petitioner did not know

Mr. Woolfolk "9 Id at 16              Petitioner also claims that District Attorney Gail Fairman violated

his right to a fair trial "due to her misconception and misconduct behaviors; which fa turn

violated his right to due process of law." Id. at l.               In addition, Petitioner alleges ineffective

assistance of all prior counset.10 Id.

         Petitioner argues that had the alleged newly-discovered evidence been introduced, it

would have changed the outcome of the trial. He claims that the proposed testimony of Michael

Woolfolk would warrant granting a new trial because, in Petitioner's view, the affidavit

demonstrates that the Petitioner and co-defendant did not share specific intent. Petitioner insists

that the affidavit shows "the innocence and state of mind of Petitioner during the time Charles

Byrd was killed."        Memorandum         of Law, 05/06/2013, p. 2.           Petitioner explained that "Mr.

Woolfolk as a witness would of [src] convince(d] a jury that Petitioner did not have 'Shared
         9
               Petitioner states that he met with Mr Woolfolk while incarcerated. Memorandum of Law in Support of
Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act, 05/06/2013, p. 2. It follows from Mr.
Woolfolk's Affidavit that he and Petitioner had known each other in the past: Mr. Woolfolk states that he ran into
Petitioner (whom he refers to as "Dink") in the "chow hall" in prison and that he had not seen Petitioner for about 20
years prior to that meeting. Memorandum of Law, 05/06/201J, Exhibit "A," p. L[unnumbered].
            10
               See also Motion to Amend Petition for Post Conviction Relief, 05/31/20LJ, pp. l-4 in which Petitioner
discusses ineffective assistance of his trial counsel for failure to call a defense witness "Nicole Peter" to show
Petitioner's "state of mind of innocence."

                                                          5
  Specific Intent' that is required by law to be guilty of murder of first degree." Id. at 6.

                In his Affidavit, Mr. Woolfolk states that he saw Petitioner ("Oink'') and his co-defendant

 ("Bop") arguing "about some mess Bop got Dink into" the same day the decedent in this case

 was shot and killed by Petitioner's co-defendant.            Id., Exhibit A.1   t


                This court finds that m his Finley letter, Attorney O'Hanlon correctly concluded that the

 alleged newly-discovered evidence did not make a strong prima facie showing that Petitioner is

 innocent and that a miscarriage           of justice occurred.        This court agrees with the attorney's

 conclusion that the newly-discovered             evidence neither illustrates Petitioner's          innocence nor

                                                                                         12
 negates the evidence presented at trial and that his petition is meritless.                  This court, therefore,

 allowed Attorney O'Hanlon to wtthdraw as Petitioner's counsel.

            Furthermore, Petitioner's claim of ineffective assistance of counsel does not place his

petition        within any of the enumerated exceptions           to the one-year limitation.        "[AJ claim of

ineffective assistance         of counsel does not save an otherwise untimely petition for review on the

merits."          Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 2l4, 223 (1999).                         See also

Commonwealth v Breakiron, 566 Pa. 323, 334, 781 A.2d 94, too (2001) ("[O]ur Court has

expressly rejected attempts to utilize ineffective assistance of counsel claims as a means of


           II
             ln his Affidavit, Mr. Woolfolk states, inter alia, "Dink drove Bop to the market, not knowing that Bop
had this argument [with the decedent] earlier that day. I know because [ was there during the early argument and
after the shooting. .. . Earlier that day, me, Cindy, and Bop was trying to get a ride and rt escalated into something
else causing Bop to shot [sic) the guy. Dink not knowing this drove Sop to the market. Oink just pop up at the
wrong time." Memorandum of Law, 0.S/06(.!013, Exhibit "A," p. 2[unnumbered]. Attorney O'Hanlon notes that
Petitioner uses the Affidavit for the purpose of showing that he would not have been angry with his co-defendant rf
he had entered mro a conspiracy with co-defendant to kill the decedent. Commonwealth v David Thompson, CP-51 ·
CR-0308212-1995, Finley Letter of No Merit, 10/04/2014, p. 2
          11
             As Attorney O' Hanlon ably demonstrated in his Finley letter, Petitioner admitted to the police that his
co-defendant used Petitioner's gun to kill decedent; Petruoner also admitted to the police that he told his co-
defendant to "bust" the decedent, which was followed by the co-defendant's shooting and killing the decedent, there
was an independent witness corroboration of this statement (that witness testified that Petitioner tolJ his co-
defendant to "slump" the decedent and get it over with); and Petitioner tled the crime scene with his co-defendant
Commonwealth v. David Thompson, CP-51-CR-0308212-1995,            Finley Letter of No Ment, I 0/04/2014, pp. 2·)




                                                          6
escaping the Jurisdictional time requirements for filing a PCRA Petition.")        Petitioner cannot

escape the Jurisdictional time requirements for filing a PCRA Petition by raising an ineffective-

assistance-of-counsel claim.

        The instant petition was filed over fifteen years after the judgment of sentence in this case

became final. It was time-barred from review, and the Petitioner has not demonstrated that one

of the statutory exceptions applied.




IV. CONCLUSION

       Petitioner has failed to demonstrate any basis for relief. In the absence of any meritorious

challenge that can be found in the reviewable record, Petitioner has failed to articulate his

allegations in -aecordanee-with the requisites of a claim predicated        upon newly-discovered       -   ---···   -

evidence which could not have been ascertained by the exercise of due diligence as well as

ineffective assistance of counsel. No relief is due.

       For the foregoing reasons, Petitioner's petition for post-conviction collateral relief was

properly dismissed.

                                                       BY THE COURT:




                                                  7
