J-S61011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                           Appellee

                     v.

DAMIEN PHILLIPS,

                           Appellant               No. 2160 EDA 2017


             Appeal from the PCRA Order Entered May 22, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1100411-1994


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED NOVEMBER 27, 2018

      Appellant, Damien Phillips, appeals pro se from the post-conviction

court’s May 22, 2017 order denying, as untimely, his petition filed under the

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

review, we affirm.

      This Court previously summarized the facts of Appellant’s underlying

convictions, as follows:
            On February 28, 1994, [Appellant] and his accomplice,
      Antonio Hudson, entered the San Jan Chinese Restaurant on East
      Adams Avenue in Philadelphia with the intent to commit a robbery.
      Once inside, [Appellant] ran behind the counter and pushed an
      employee, Xia Gan Lin, to the floor. Hudson then pointed his gun
      at Lin while [Appellant] went into the kitchen. While in the
      kitchen, [Appellant] forced Xiaohuang Wang and Kim Wing Lam to
      the floor, and shot each man in the head at close range.
      [Appellant] then returned to the front of the store, grabbed Lin,
      and ordered him to open the cash register at gunpoint. Hudson
      grabbed the money out of each cash register, and as he fled,
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     [Appellant] shot Lin. Wang and Lam were found dead in the
     kitchen with bullet wounds to their heads, and Lin died ten days
     later.

           On July 26, 1995, a jury convicted [Appellant] of three
     counts each of first-degree murder and robbery, and one count
     each of criminal conspiracy and possessing instruments of a crime.
     On July 27, 1995, the trial court sentenced [Appellant] to three
     consecutive terms of life imprisonment for the murder convictions,
     plus a consecutive term of thirty-seven and one-half to seventy-
     five years’ imprisonment for the remaining offenses. This Court
     affirmed the judgment of sentence on May 30, 1996, and our
     Supreme Court denied [Appellant’s] petition for allowance of
     appeal on November 1, 1996. [Appellant] did not seek further
     review with the United States Supreme Court. Consequently,
     [Appellant’s] judgment of sentence became final on January 31,
     1997, pursuant to 42 Pa.C.S. § 9545(b)(3) (“[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[.]").

Commonwealth v. Phillips, No. 1048 EDA 2014, unpublished memorandum

at 1-2 (Pa. Super. filed March 2, 2015).

     Over the ensuing years, Appellant litigated five PCRA petitions, all of

which were denied.

     On October 23, 2015, [Appellant] commenced the subject
     proceeding by filing a sixth pro se petition. In it he claimed that
     Dr. Adrienne Sekula-Perlman, who performed autopsies of the
     victims Wang and Lam, and Dr. Edwin Lieberman, who performed
     an autopsy of the victim Lin, reported that all of them received
     perforating gunshot wounds to the head, the range of the
     gunshots were indeterminate, and there was no evidence of soot
     or gunpowder on their scalps or clothing. He claimed that those
     reports were inconsistent with the state’s evidence at trial, that
     the victims were all shot from a range of one to two feet, which
     was based in part on Hudson’s testimony to that [e]ffect, and with
     a medical examiner’s report read into evidence at his preliminary
     hearing that stated that Wang was shot “in close contact.” He
     claimed that if Dr. Sekula-Perlman were compelled to testify at a
     PCRA hearing she would confirm those inconsistencies. In support

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     of this allegation he cited a copy of a Request for Leave to File an
     Amended Petition which he filed on December 3, 2009, while his
     fourth PCRA proceeding was still on appeal, attached to which was
     his proposed Amended Petition in which he presented the same
     claim. He went on to claim that the Commonwealth was aware of
     those inconsistencies but suppressed the doctor’s report and
     produced false testimony by the other medical witnesses instead.
     He claimed that he first learned of those facts while his previous
     proceeding was still pending and was, therefore, precluded from
     presenting the claim until its conclusion. He d[id] not explain why
     he could not have ascertained those facts before, during, or
     shortly after his trial in time to include it in his first PCRA
     [petition,] which was timely filed. The only evidence he cited in
     support of his claim as to Dr. Sekula-Perlman’s purported
     testimony were a series of letters to and from [Appellant’s]
     investigator and the doctor, in which she eventually responded
     that her reports spoke for themselves and she would not provide
     a supplemental report, and a forensic article which posited that
     the lack of residue on a gunshot victim’s clothes or body could
     indicate a range of up to five or six feet. He d[id] not cite anything
     that would indicate that a shot from one to two feet away would
     have to have left residue, which he could not claim since its
     common knowledge that that is not the case. His requested
     supplement to his brief in his previous appeal proves that this was
     not a recently discovered fact, but only goes to show that
     [Appellant] began to concoct this theory in January of 2014. He
     also neglected to mention that those reports were produced by
     the Commonwealth both before and at trial.

            That petition was followed by an Amended Petition on
     December 8, 2015, a Second Amended Petition on February 23,
     2016, another Second Amended Petition on April 15[, 2016,] and
     a “Defendant’s Amended Petition” on November 4[, 2016]. They
     consisted of his slanted interpretations of case law on the
     suppression of evidence and their applicability to his
     characterization of his “newly discovered evidence[,]” but [he]
     added no further factual support for the claims. On January 10,
     2017, the Commonwealth filed a letter brief in response alleging,
     and clearly demonstrating, that [Appellant’s] petition was
     untimely and he could not possibly meet any of the PCRA timely
     filing exceptions to its one[-]year time limit. On January 17[,
     2017], the court issued a Pa.R.Crim.P. 907 notice of intent to
     dismiss [the petition] as untimely[,] after which [Appellant] filed
     a reply to the [Commonwealth’s] letter brief on January 19[,


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      2017,] objections to the [Pa.R.Crim.P.] 907 notice on January
      27[,2017,] and supplemental objections and a motion for leave to
      file [the] same on May 2[, 2017]. The court issued its order
      dismissing the petition on May 22[, 2017,] but, upon receipt of a
      motion for reconsideration pointing out that the body of the order
      was addressed to a different defendant, the court issued an
      amended order dismissing the petition on June 14[, 2017]. This
      [pro se] appeal was filed two days later.

PCRA Court Opinion (PCO), 1/22/18, at 4-6.

      The PCRA court issued an order on August 11, 2017, directing Appellant

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal

within 30 days, but Appellant failed to comply. However, on March 16, 2018,

Appellant filed with this Court a pro se “Application for Relief,” claiming that

he had never received the Rule 1925(b) order. Appellant explained that, after

noticing the filing of that order on the docket, he discovered, upon requesting

a log of his prison mail, that a document addressed to him had been received

on August 22, 2018, and returned to the sender because it lacked an inmate

number. This Court issued an order denying Appellant’s application for relief

without prejudice to his right to raise the issue in his brief. Upon reviewing

the record, which supports Appellant’s claim that he did not receive the Rule

1925(b) order, we will not deem his issues waived based on his failure to file

a concise statement with the PCRA court.

      Herein, Appellant presents six issues for our review. However, before

we may examine those claims, we must begin by addressing the timeliness of

Appellant’s petition, because the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the



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merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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 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. § 9545(b)(1)(i)-(iii).    Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

      As stated supra, Appellant’s judgment of sentence became final in

January of 1997 and thus, his present petition filed in October of 2015 is

facially untimely.   For this Court to have jurisdiction to review the merits



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thereof, Appellant must prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

      Appellant first contends that he has satisfied both the governmental

interference exception and the newly-discovered fact exception, based on

‘new evidence’ that Dr. Sekula-Perlman’s autopsy reports contradict the

Commonwealth’s theory, and the testimony provided by Dr. Lieberman, that

Appellant shot the victims at close range while they were lying on the ground.

Appellant’s Brief at 26.   Appellant claims that Dr. Sekula-Perlman’s report

instead shows “that the victims were shot from a distance and [were] standing

when they were shot[,]” because the victims had no “soot or powder residue

present” on their bodies.       Id. at 30, 20.      Appellant avers that the

Commonwealth knew of the “exculpatory fact of the victims[’] being shot from

a distance[,]” but “it did not provide this information to [Appellant] during his

trial[,] or correct the misleading testimony provided to the jury.” Id.

      However, the Commonwealth argues, and Appellant concedes, that

“[t]he autopsy reports [Appellant] addresses were marked and moved into

evidence at [Appellant’s] 1995 trial.” Commonwealth’s Brief at 15; see also

Appellant’s Brief at 31 (admitting that the Commonwealth “turned over the

autopsy [r]eports prior to trial”). Appellant nevertheless contends that the

information contained in those reports constitutes ‘new facts’ because the




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Commonwealth “did not disclose the truth of the raw data or its significance.”1

Appellant’s Brief at 31.         We find this argument unconvincing.   As the

Commonwealth stresses, it “had no burden to assist [Appellant] in his review

of the evidence or his development of a defense[,]” especially where Appellant

“had the assistance of two attorneys at his trial.” 2 Commonwealth’s Brief at

16 n.9.

       We also reject Appellant’s argument that his “claim is centered upon Dr.

[Sekul-]Perlman[’s] reviewing the trial record and interpreting her reports -

then stating for the first time - that the Commonwealth’s theory of the case

and witnesses[’] testimony [were] inconsistent with her reports.” Appellant’s

Reply Brief at 13.       According to Appellant, Dr. Sekul-Perlman made this
____________________________________________


1 In support of his argument that the facts established by the ‘raw data’
provided in the autopsy reports were unknown to him, Appellant relies on this
Court’s unpublished decision in Commonwealth v. Hale, No. 2940 EDA
2014, unpublished memorandum (Pa. Super. filed September 23, 2016).
However, citing an unpublished decision by this Court is impermissible under
our Internal Operating Procedures. See 210 Pa. Code § 65.37(A) (“An
unpublished memorandum decision shall not be relied upon or cited by a Court
or a party in any other action or proceeding….”). Therefore, we will not
address Appellant’s claims premised on Hale.

2 The fact that Appellant was counseled, and that the autopsy reports were
provided to him, makes his reliance on Commonwealth v. Burton, 158 A.3d
618 (Pa. 2017), misplaced. There, our Supreme Court held “that the
presumption that information which is of public record cannot be deemed
‘unknown’ for purposes of subsection 9545(b)(1)(i) does not apply to pro se
prisoner petitioners.” Id. at 638 (emphasis in original). Instantly, Burton is
inapplicable because the autopsy reports were not simply public records, but
they were actually turned over to Appellant, who was also counseled at that
time. Thus, Burton does not support Appellant’s position that the ‘true
nature’ of the autopsy reports were unknown to him.


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statement in two letters that she sent to him, which he attached to his PCRA

petition. However, our review of those letters belies Appellant’s interpretation

of them. In the first, dated December 1, 2009, Dr. Sekul-Perlman states that

she has reviewed materials sent to her by Appellant, and that she is “not able

to issue any sort of additional written statement in this matter as [her] report

speaks for itself.” See Appellant’s PCRA Petition, 10/23/15, at Exhibit F. In

Dr. Sekul-Perlman’s second letter to Appellant, which is undated, she states:

“I am in receipt of your letter dated September 20, 2013. Please have your

investigator contact me again…. I also need the name of the Attorney General

in Philadelphia who handled your case.” See id. at Exhibit G. Nothing in

these two letters indicates that Dr. Sekul-Perlman is “stating the testimony of

Dr. Lieberman and other witnesses [was] inconsistent with her factual

findings.” Appellant’s Reply Brief at 5. In any event, Appellant has also failed

to prove that his October 23, 2015 petition was filed within 60 days of his

receipt of Dr. Sekul-Perlman’s second, undated letter.

      In sum, because Appellant had Dr. Sekula-Perlman’s autopsy report at

the time of his trial, he cannot now contend that the ‘truth’ of the information

contained in that report was unknown to him, or that it could not have been

discovered with due diligence. Additionally, Dr. Sekula-Perlman’s letters to

Appellant did not state any ‘new fact’ pertaining to her report that would

invoke the exception of section 9545(b)(1)(ii).          Appellant also cannot

demonstrate that the Commonwealth interfered with his ability to raise a claim

regarding the autopsy report earlier, as the Commonwealth provided that

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report to Appellant prior to trial. Accordingly, Appellant’s argument does not

satisfy either of the timeliness exceptions of section 9545(b)(1)(i) or (ii).

      Appellant next contends that he satisfies the newly-discovered fact

exception based on information that Detective Thomas Augustine, who

participated in the investigation of this case, had “played a significant role in

the wrongful conviction of a Mr. Anthony Wright.” Appellant’s Brief at 53.

Essentially, Appellant claims that Detective Augustine fabricated evidence,

falsified reports, and coerced statements from witnesses in Wright’s case and,

therefore, the detective likely acted with the same “malfeasance” in

Appellant’s case.   See id. at 53, 54.      Appellant contends that he did not

discover the facts of Detective Augustine’s misconduct in Wright’s case until

September 20, 2016, when “Wright initiated a [l]awsuit against the City of

Philadelphia[,] including Detective Augustine.” Id. at 54.

      However, Appellant does not explain why he never presented this issue

to the PCRA court.     The record demonstrates that Appellant filed several

documents with the PCRA court after he purportedly became aware of Wright’s

allegations against Detective Augustine, including an amended petition on

November 4, 2016, as well as two responses to the court’s Rule 907 notice,

filed on January 19th and 27th of 2017. Appellant did not mention his discovery

of this ‘new evidence’ of Detective Augustine’s misconduct in any of those

filings. Accordingly, he has waived this claim for our review. See 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.”).

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      In conclusion, Appellant’s PCRA petition is patently untimely and, for the

reasons stated supra, he has not demonstrated the applicability of any

timeliness exception. Therefore, the court properly denied his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/18




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