J-S43032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DONTAYE MALIK DESHIELDS                  :
                                          :
                    Appellant             :   No. 2065 MDA 2018

          Appeal from the PCRA Order Entered November 7, 2018
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0006790-2007


BEFORE:    GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                     FILED AUGUST 26, 2019

      Appellant, Dontaye Malik DeShields (“DeShields”), appeals pro se from

the November 7, 2018, order entered in the Court of Common Pleas of York

County dismissing his second petition filed under the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. § 9541-46, on the basis it was untimely filed. After

a careful review, we affirm.

      The relevant facts and procedural history have been set forth previously

by this Court, in part, as follows:

            On August 4, 2007, La’Mar Porter (“Porter”) was standing
      outside of his residence at 126 Edgar Street, York, Pennsylvania,
      along with Rodney Pinckney (“Pinckney”) and several other
      people, including Theodore Varcarcel (“Theo”), the victim. Porter
      noticed a light-colored automobile traveling down Edgar Street.
      Porter knew that the car belonged to DeShields. Upon seeing
      DeShields’ automobile on Edgar Street, Porter suggested to the
      others that they leave that location. Porter and the others then
      walked to the corner of Edgar and Poplar Street, and proceeded
      up Poplar Street. At that point, Porter heard a gunshot, looked
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43032-19


     over his shoulder, and saw DeShields standing on the corner
     shooting his gun. Porter and the others ran away from the
     gunshots.
           Subsequently, a person with Porter received a call on his cell
     phone from Theo. Porter and that person went to look for Theo.
     However, one of the neighbors in the area came up to them,
     indicating that he/she had found Theo in an alley, and Theo had
     died.
           On August 5, 2007, Detective Anthony Fetrow of the York
     City Police interviewed Pinckney, who gave Detective Fetrow an
     audiotaped statement. [In that statement, Pinckney described an
     incident in] which DeShields had robbed him of his cell phone at
     gunpoint. Pinckney stated that, after the robbery, he went to the
     corner of Poplar and Edgar, where he joined Theo, Porter, and
     some other people. While on the corner with the others, Pinckney
     saw DeShields riding in the passenger seat of a tan car as it drove
     down the street. One of the men told Porter to “get the gun,” and
     he and Porter walked toward the stop sign to see where the tan
     car had gone. As those two men started to walk back toward
     Pinckney and the others, DeShields emerged from an alleyway
     near Edgar. Pinckney then heard seven or eight gunshots, but did
     not see who was shooting. Upon hearing the gunshots, Pinckney
     and others ran up Poplar Street. When the group reunited, a
     person from the original group came running around the corner
     and indicated that Theo had been shot. Subsequently, DeShields
     called the cell phone of Lloyd Varcarcel (“Lloyd”), Theo’s brother,
     from Pinckney’s phone and said, “Who got the last laugh?”
     DeShields called Lloyd’s phone several times, and Lloyd told
     DeShields that he better “duck” when Lloyd saw him.
            DeShields was charged with first-and third-degree murder
     relating to the death of Theo. At DeShields’ trial, Commonwealth
     witness Detective Fetrow played Pinckney’s audiotaped statement
     for the jury. After the statement had been played, the
     Commonwealth called Pinckney to the stand. Pinckney indicated
     he did not want to take the stand, but the trial court ordered him
     to do so. The Commonwealth asked Pinckney no questions, and
     counsel for DeShields then cross-examined Pinckney. Pinckney
     indicated that he did not recall if he spoke to Detective Fetrow in
     August 2007. Pinckney testified that he was robbed in August
     2007, but he did not know who had robbed him. Pinckney also
     stated that he did not remember saying that he saw DeShields
     riding in a car through the area of Poplar and Edgar Streets, that


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      he saw DeShields firing a gun, that he heard DeShields call
      someone on Pinckney’s cell phone, or that he saw who shot Theo.
            At the conclusion of trial, the jury found DeShields guilty of
      third-degree murder. On July 28, 2008, the trial court sentenced
      DeShields to a prison term of twenty to forty years. DeShields
      filed a [m]otion for post-sentence relief, which the trial court
      denied. DeShields then filed [a] timely appeal[, after which this
      Court affirmed DeShields’ judgment of sentence].
             The Pennsylvania Supreme Court denied DeShields’ petition
      for allowance of appeal on March 23, 2010. [DeShields did not
      file a petition for a writ of certiorari with the U.S. Supreme Court.]
            On April 21, 2011, DeShields filed a pro se PCRA petition.
      The PCRA court appointed counsel on May 3, 2011, and
      supplemental PCRA claims were filed [on] June 20, 2011.
      Following a hearing, the court denied Deshields’ petition on July
      26, 2011. Thereafter, on September 6, 2011, DeShields filed an
      appeal, which this Court quashed as untimely filed by order dated
      March 28, 2012. The PCRA court reinstated DeShields’ appellate
      rights on May 10, 2012, and [DeShields filed a] timely appeal.


Commonwealth v. DeShields, No. 1044 MDA 2012, 2013 WL 11264301, at

*1–2 (Pa.Super. filed 6/20/13) (unpublished memorandum) (citation and

footnote omitted).

      On appeal, DeShields alleged appellate counsel was ineffective for not

presenting a Brady claim on direct appeal. He also alleged trial counsel was

ineffective for not calling Lloyd to testify, not requesting a cautionary

instruction following the replaying of Pinckney’s audiotaped statement, and

not requesting a Kloiber instruction. Finding no merit to the claims, this Court

affirmed the PCRA court’s denial of PCRA relief.       DeShields did not file a

petition for allowance of appeal with our Supreme Court.




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       On August 20, 2018, DeShields filed the instant pro se PCRA petition,1

and on September 26, 2018, the PCRA court provided DeShields with notice

of its intent to dismiss the petition on the basis it was untimely filed. DeShields

filed no response, and by order entered on November 7, 2018, the PCRA court

dismissed the PCRA petition.         This timely, pro se appeal followed,2 and all

Pa.R.A.P. 1925 requirements have been met.

       On appeal, DeShields presents the sole issue of whether the PCRA court

erred in dismissing his PCRA petition on the basis it was untimely filed.

       In reviewing the propriety of the PCRA court’s dismissal of an appellant’s

petition, we are limited to determining whether the PCRA court’s findings are

supported by the record, and whether the order is free of legal error.

Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).




____________________________________________


1 Although DeShields’ pro se PCRA petition was docketed on August 24, 2018,
the petition is dated August 20, 2018. Moreover, although the certified record
contains the envelope in which DeShields mailed the petition, the postage
time-stamp is unreadable. Nevertheless, out of an abundance of caution,
pursuant to the prisoner mailbox rule, we shall deem August 20, 2018, as the
filing date for DeShields’ pro se PCRA petition. See Commonwealth v.
Whitehawk, 146 A.3d 266, 268 n.3 (Pa.Super. 2016) (“Under the ‘Prisoner
Mailbox Rule’ a document is deemed filed when placed in the hands of prison
authorities for mailing.”).

2 Although the notice of appeal was docketed on December 18, 2018, the
certified record contains an envelope with a postage time-stamp dated
December 2, 2018. Accordingly, pursuant to the prisoner mailbox rule, we
shall deem DeShields notice of appeal as having been filed on December 2,
2018. See Whitehawk, supra.

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      Pennsylvania law makes it clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003).     The most recent amendments to the PCRA, effective

January 19, 1996, provide that 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). 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 the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      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 the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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).




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      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, “the PCRA limits the reach of the exceptions by providing that a

petition invoking any of the exceptions must be filed within 60 days of the

date the claim first could have been presented.” Commonwealth v. Walters,

135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42 Pa.C.S.A. §

9545(b)(2).

      Here, DeShields was sentenced on July 28, 2008, and this Court

affirmed DeShields’ judgment of sentence on October 9, 2009.              The

Pennsylvania Supreme Court denied DeShields’ petition for allowance of

appeal on March 23, 2010, and DeShields did not file a petition for a writ of

certiorari with the United States Supreme Court.      Accordingly, DeShields’

judgment of sentence became final 90 days later, on or about June 23, 2010.

See U.S. Supreme Court Rule 13 (effective January 1, 1990) (stating that a

petition for writ of certiorari to review a judgment of sentence is deemed

timely when it is filed within 90 days).    DeShields filed the instant PCRA

petition on August 20, 2018, and consequently, it is facially untimely.

      However, this does not end our inquiry as DeShields attempts to invoke

the timeliness exception of 42 Pa.C.S.A. § 9545(b)(1)(iii) relating to a new

constitutional right that applies retroactively.   Specifically, he avers the




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warrantless seizure of his cell-site location information3 violated the United

States Supreme Court’s recent Opinion in Carpenter v. United States, ___

U.S. ___, 138 S.Ct. 2206 (2018), which was filed on June 22, 2018.4

       In Carpenter, the High Court addressed the issue of cell-site location

information and an individual’s expectations of privacy for Fourth Amendment

purposes. The High Court held that the Government must generally obtain a

search warrant supported by probable cause before acquiring a suspect’s cell-

site location information from a wireless carrier.

       DeShields argues the police did not secure a search warrant in this case

before acquiring his cell-site location information, and thus, his case falls

within the newly recognized constitutional-right exception.

       Our Supreme Court has set forth a two-part test to determine the

applicability of Section 9545(b)(1)(iii) to a new decision:

       Subsection (iii) of Section 9545 has two requirements. First, it
       provides that the right asserted is a constitutional right that was
       recognized by the Supreme Court of the United States or [the
       Pennsylvania Supreme Court] after the time provided in this
____________________________________________


3 DeShields alleges the Commonwealth’s trial theory was that, after DeShields
shot and killed Theo, he called Theo’s brother, Lloyd, to taunt him about the
murder. DeShields further alleges that, to prove this theory, as well as
DeShields’ physical location at the time of the murder, the Commonwealth
presented the testimony of a radio frequency engineer for T-Mobile, who
testified about DeShields’ cell phone’s physical movement as captured through
cell-site location information.

4Inasmuch as the U.S. Supreme Court filed its Opinion in Carpenter on June
22, 2018, and DeShields filed the instant pro se PCRA petition on August 20,
2018, we conclude he has met the initial threshold of raising his claim within
60 days of when claim first could have been presented. Walters, supra.

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      section. Second, it provides that the right “has been held” by
      “that court” to apply retroactively. Thus, a petitioner must prove
      that there is a “new” constitutional right and that the right “has
      been held” by that court to apply retroactively. The language “has
      been held” is in the past tense. These words mean that the action
      has already occurred, i.e., “that court” has already held the new
      constitutional right to be retroactive to cases on collateral review.
      By employing the past tense in writing this provision, the
      legislature clearly intended that the right was already recognized
      at the time the petition was filed.

Commonwealth v. Abdul-Salaam, 571 Pa. 219, 812 A.2d 497, 501 (2002).

      In the case sub judice, assuming, arguendo, Carpenter set forth a “new

constitutional right,” we conclude that neither the United States Supreme

Court nor our Pennsylvania Supreme Court has held that Carpenter applies

retroactively so as to satisfy Section 9545(b)(1)(iii).   See Abdul-Salaam,

supra. Since no holding has been issued by the High Federal or State Courts,

DeShields cannot rely on Carpenter to meet the timeliness exception of

Section 9545(b)(1)(iii).

      Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented. Thus, we affirm the PCRA court’s order dismissing DeShields’ PCRA

petition.

      Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/26/2019




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