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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
KAREEM SAMPSON,                            :         No. 3410 EDA 2015
                                           :
                          Appellant        :


                 Appeal from the PCRA Order, October 30, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0502081-1999


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 20, 2016

        Kareem Sampson appeals from the order of October 30, 2015,

dismissing his third PCRA1 petition. We affirm.

        The history of this case has been summarized by this court as follows:

              In    March    of   1999,    [Appellant]    telephoned
              Natise Johnson to question her about her brother’s
              relationship with [A]ppellant’s former fiancée, Crystal
              Mack.[Footnote 1] Unhappy with Natise Johnson’s
              responses, [Appellant] went to Natise Johnson’s
              home located at 5428 Lansdowne Avenue, in the City
              and County of Philadelphia. Natise Johnson had
              known [A]ppellant since middle school, so she
              allowed [him] into the living room where they began
              to talk. During their conversation, Natise Johnson
              informed [Appellant] that “Crystal was a big girl and
              could do whatever she wants.” Frustrated with the
              situation, [A]ppellant put his gun to Natise Johnson’s

* Former Justice specially assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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             face and ordered her to tell him the whereabouts of
             her brother and Mack. She refused. [A]ppellant
             fired four times in Natise Johnson’s head. Natise
             Johnson was found dead on the kitchen floor by her
             father later that day when he returned from work.
             At the time of her murder, Natise Johnson was
             nine (9) months pregnant. Her unborn child died
             twenty minutes after the shooting from a lack of
             oxygen.

                   [Footnote 1] Crystal Mack and the
                   [A]ppellant had dated for years and
                   shared a child.      She had left the
                   [A]ppellant’s home and started dating
                   Natise Johnson’s brother.

                     Following a jury trial, [Appellant] was found
             guilty of the first degree murder of Natise Johnson
             and first degree murder of her unborn child. After
             [the] penalty phase, the jury could not reach a
             unanimous decision on the issue of penalty.
             Appellant was sentenced to two concurrent terms of
             life in prison without parole.

                   At trial, [A]ppellant was represented by Ronald
             Joseph, Esquire. Subsequent to trial Mitchell Strutin,
             Esquire, was appointed for direct appeal.          On
             August 13, 2002, the Superior Court affirmed the
             judgment of sentence. Petition for Allowance of
             Appeal to the Supreme Court was filed and
             subsequently denied on April 14, 2003.

                   On September 2, 2003, [A]ppellant filed a
             pro se Post Conviction Relief Act (PCRA) petition.
             After    the     Commonwealth’s       response    and
             [A]ppellant’s supplemental response, the PCRA
             [c]ourt   issued   a [Rule] 907         Notice[2] on
             September 30, 2004 deeming the issues raised in
             the PCRA petition meritless. This appeal flows from
             the denial of [A]ppellant’s PCRA petition.



2
    Pa.R.Crim.P. 907.


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Commonwealth v. Sampson, 900 A.2d 887, 888-889 (Pa.Super. 2006),

appeal denied, 907 A.2d 1102 (Pa. 2006), quoting PCRA court opinion,

6/22/05 at 1-2 (brackets in original).      On May 23, 2006, in a published

opinion, this court affirmed the denial of PCRA relief; appellant filed a

petition for allowance of appeal with the Pennsylvania Supreme Court, which

was denied on September 28, 2006. Id.

      Appellant filed a second pro se PCRA petition on July 6, 2011, which

was denied on April 30, 2013, following Rule 907 notice. Appellant did not

file a notice of appeal from denial of his second PCRA petition.           On

December 1, 2014, appellant filed the instant PCRA petition, his third,

seeking reinstatement of his appeal rights from denial of his second petition.

Appellant claimed that he never received notice of the PCRA court’s denial of

his second petition. Following Rule 907 notice, appellant’s third petition was

dismissed on October 30, 2015, as untimely.        The PCRA court found that

appellant did not act with due diligence in presenting his claim. This timely

appeal followed.   Appellant was not ordered to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); however, on

December 21, 2015, the PCRA court filed a Rule 1925(a) opinion explaining

the reasons for its dismissal of appellant’s third PCRA petition.

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

            1.     Whether the lower Court abused its discretion
                   in denying PCRA relief by failing to reinstate
                   appellate rights to Appellant nunc pro tunc
                   where Appellant establ[is]hed timeliness and


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                 due diligence, where the Court’s offic[]er sent
                 Notice of Judgment Order, 907 Dismissal
                 Notice, and Memorandum Opinion to another
                 prisoner and not Appellant, [and] as a result
                 Appellant was denied Due Process of Law?

Appellant’s brief at 5 (emphasis added).

           The standard of review for an order denying
           post-conviction relief is limited to whether the record
           supports the PCRA court’s determination, and
           whether that decision is free of legal error. The
           PCRA court’s findings will not be disturbed unless
           there is no support for the findings in the certified
           record. Furthermore, a petitioner is not entitled to a
           PCRA hearing as a matter of right; the PCRA court
           can decline to hold a hearing if there is no genuine
           issue concerning any material fact and the petitioner
           is not entitled to post-conviction collateral relief, and
           no purpose would be served by any further
           proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),

appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.

Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).

           Pennsylvania law makes clear no court has
           jurisdiction to hear an untimely PCRA petition.
           Commonwealth v. Robinson, 575 Pa. 500, 508,
           837 A.2d 1157, 1161 (2003). The most recent
           amendments to the PCRA, effective January 16,
           1996, provide a PCRA petition, including a second or
           subsequent petition, shall be filed within one year of
           the date the underlying judgment becomes final.
           42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
           Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
           Commonwealth v. Vega, 754 A.2d 714, 717
           (Pa.Super.2000). 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



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          Pennsylvania, or at the expiration of time for seeking
          the review.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).

          The three statutory exceptions to the timeliness
          provisions in the PCRA allow for very limited
          circumstances under which the late filing of a
          petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
          To invoke an exception, a petition must allege and
          prove:

          (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)(i)-(iii). “As such, when a
          PCRA petition is not filed within one year of the
          expiration of direct review, or not eligible for one of
          the three limited exceptions, or entitled to one of the
          exceptions, but not filed within 60 days of the date
          that the claim could have been first brought, the trial
          court has no power to address the substantive merits
          of a petitioner’s PCRA claims.” Commonwealth v.
          Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
          (2000); 42 Pa.C.S.A. § 9545(b)(2).


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Id. at 1079-1080.

            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
            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 Vega,
            supra at 718.

Id. at 1080.

      Instantly, the Supreme Court of Pennsylvania denied allowance of

appeal on April 14, 2003. Commonwealth v. Sampson, 821 A.2d 587 (Pa.

2003). Therefore, appellant’s judgment of sentence became final for PCRA

purposes on or about July 13, 2003, upon expiration of the time to file a

petition for writ of certiorari with the United States Supreme Court. See

42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.1 (allowing 90 days to file a

petition for writ of certiorari with the United States Supreme Court).

Appellant filed the current petition, his third, on December 1, 2014, over

11 years later.   Therefore, appellant’s current PCRA petition is manifestly

untimely on its face.




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      However, as previously stated, there are three exceptions under which

a facially untimely PCRA petition may still be considered. Appellant attempts

to invoke the after-discovered facts exception to the time restrictions of the

PCRA, enumerated in Subsection 9545(b)(1)(ii).        Appellant alleges that he

did not know until November 2014, within 60 days of filing the instant

petition, that his July 6, 2011 petition had been dismissed. (Appellant’s brief

at 12.) According to appellant, the PCRA court’s April 30, 2013 order and

memorandum       dismissing   his   petition   contained   the   wrong   prisoner

identification number. (Id. at 10.) Appellant relies on Bennett, in which

our supreme court found that appointed counsel had abandoned the

appellant by failing to file an appellate brief, resulting in dismissal of the

appeal. The Bennett court held that this allegation brought the appellant’s

claim within the ambit of Subsection 9545(b)(1)(ii) and distinguished the

Gamboa-Taylor line of cases, in which it was held that an allegation of

PCRA counsel’s ineffectiveness cannot be invoked as a newly-discovered

“fact” to circumvent the one-year time limitation.3 Crucial to the analysis in

Bennett was that a defendant is entitled to assistance of counsel on a first

PCRA petition:

            As part of the PCRA process, indigent petitioners
            may apply for the assistance of counsel for purposes
            of their first PCRA petition. We have held this rule to

3
  Gamboa-Taylor, supra (holding a claim of ineffective assistance of
counsel does not save an otherwise untimely petition for review on the
merits); see also Breakiron, 781 A.2d at 97 (allegations of ineffective
assistance of counsel will not avoid the timeliness requirement of the PCRA).


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           be absolute inasmuch as we have concluded that a
           petitioner need not establish that his petition is
           timely before he or she is entitled to the
           appointment      of   counsel.           See,     e.g.,
           Commonwealth v. Smith, 572 Pa. 572, 818 A.2d
           494 (2003). To this end, it can be assumed that the
           PCRA court will appoint appropriate counsel, i.e.,
           counsel that can and will raise potentially meritorious
           claims. In this same vein, while the performance of
           PCRA counsel is not necessarily scrutinized under the
           Sixth Amendment, the performance of counsel must
           comply with some minimum norms, which would
           include not abandoning a client for purposes of
           appeal.

Bennett, 930 A.2d at 1273-1274 (citations omitted).

     In this case, appellant was not entitled to counsel on a serial, untimely

PCRA petition.   Commonwealth v. Kubis, 808 A.2d 196, 200 (Pa.Super.

2002), appeal denied, 813 A.2d 839 (Pa. 2002).             Appellant already

received the review to which he was entitled.       Therefore, we find that

appellant’s reliance on Bennett is misplaced.4

     Additionally, the petitioner in Bennett filed his PCRA petition within

60 days of the date it could have been presented, since it was filed fewer

than 25 days after he received the letter from this court explaining that his

appeal was dismissed due to PCRA counsel’s failure to file a brief. Id., 930

A.2d at 1272 n.11. Instantly, appellant has not provided any description of

steps he took to ascertain the status of his case, such that would satisfy



4
   As the Commonwealth observes, appellant also asserted that the
governmental interference exception applied; however, he has abandoned
that claim on appeal. (Commonwealth’s brief at 12.)


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Subsection (b)(1)(ii)’s due diligence requirement.5    Appellant must have

received a copy of the PCRA court’s October 14, 2011 Rule 907 20-day

notice, because he filed a pro se response on October 26, 2011. (Docket

#30.) Yet, as the PCRA court stated, “he failed to set forth the efforts he

made to ascertain the status of his prior petition after the 907 notice was

sent to him.” (PCRA court opinion, 12/21/15 at 3.) The PCRA court did not

err in finding that appellant failed to demonstrate he acted with due

diligence to protect his own interests.

            Additionally, courts “will not entertain a second or
            subsequent request for PCRA relief unless the
            petitioner makes a strong prima facie showing that
            a miscarriage of justice may have occurred.”
            Commonwealth v. Marshall, 596 Pa. 587, 947
            A.2d 714, 719 (2008) (citation omitted). “Appellant
            makes a prima facie showing of entitlement to relief
            only if he demonstrates either that the proceedings
            which resulted in his conviction were so unfair that a
            miscarriage of justice occurred which no civilized
            society could tolerate, or that he was innocent of the
            crimes for which he was charged.” Commonwealth
            v. Allen, 557 Pa. 135, 732 A.2d 582, 586 (1999)[.]

Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa.Super. 2014)

(en banc), appeal dismissed as improvidently granted,                A.3d   ,

2016 WL 3390813 (Pa. 2016) (per curiam).




5
  Appellant refers to various letters he allegedly sent inquiring about the
status of his PCRA petition. (Appellant’s brief at 12.) These letters do not
appear in the certified record and do not exist for purposes of appellate
review. Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa.Super. 1998).


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      In his July 6, 2011 PCRA petition, appellant leveled a bald,

unsupported allegation that the trial court altered the transcripts in his case.

(PCRA court opinion, 4/30/13 at 2.) Apparently, this claim was based on a

newspaper article detailing an incident involving the same trial judge in an

unrelated case. (Id.) This is hardly the sort of claim that would succeed in

a serial PCRA petition.

      For these reasons, the PCRA court did not err in dismissing appellant’s

third PCRA petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/20/2016




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