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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


  RODERICK SIMS

                    Appellant               :     No. 1828 MDA 2018
            Appeal from the PCRA Order Entered October 25, 2018
     In the Court of Common Pleas of Union County Criminal Division at
                       No(s): CP-60-CR-0000385-2008

BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                   FILED: JULY 23, 2019

      Roderick Sims (Sims) appeals from the order of the Court of Common

Pleas of Union County (PCRA Court) denying his pro se petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

                                       I.
      The following facts and procedural background are gleaned from our

independent review of the certified record. In 2012, Sims was convicted after

a jury trial of second-degree murder and sentenced to a life term on that
count.' Sims appealed the judgment of sentence and this Court affirmed.



   Retired Senior Judge assigned to the Superior Court.

' Sims was also found guilty of one count of burglary (sentenced to five to 20
years) and two counts of terroristic threats (sentenced to one to five years, to
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See Commonwealth v. Sims, 2013 WL 11253791, No. 15 MDA 2013 (Pa.

Super. September 11, 2013). Our Supreme Court denied his petition for an

allowance of appeal on September 22, 2014. See Commonwealth v. Sims,

105 A.3d 736 (Pa. 2014). Sims timely filed PCRA petitions in 2015 and 2016,

but withdrew them both prior to disposition.

      In 2017, Sims filed a third PCRA petition that was dismissed as untimely.

This Court affirmed that denial in Commonwealth v. Sims, 2017 WL
6523381, No. 371 MDA 2017 (Pa. Super. December 21, 2017). One of the

issues raised in that appeal concerned the Commonwealth's inadvertent

destruction of blood sample evidence. See Sims, 2017 WL 6523381, No. 371

MDA 2017 at *4-5.      Sims contended that the loss of the blood samples
constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963), which trial

counsel and PCRA counsel failed to assert as a basis for relief.     Sims also

argued that the loss of this evidence satisfied the "government interference"

and "newly -discovered fact" exceptions to the PCRA's time -bar provisions. Id.

     We held that Sims' claim did not satisfy those exceptions because he

knew of the destruction of the blood samples years prior to his trial. See

Sims, No. 371 MDA 2017 at *5. He also failed to show how the loss of that




be served consecutively). All counts stemmed from the 2008 murder of the
mother of Sims' four children.

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evidence amounted to newly discovered evidence or government interference

which prevented him from timely filing his PCRA claims. Id. at *5, n.3.

       On September 27, 2018, Sims filed the pro se PCRA petition now at

issue and the trial court summarily dismissed it as untimely on October 25,

2018. See PCRA Court Opinion, 12/4/2018, at pp. 1-2. Sims appealed and

moved the PCRA court to amend his petition to add new claims regarding PCRA

counsel's alleged ineffectiveness and the Commonwealth's attempts to delay

the consideration of his petition.   The PCRA court denied Sims' motion to

amend the petition because its order denying the original version was already

under review.2

       In his brief, Sims asserted a number of issues for our consideration

which are difficult to discern but generally echo the grounds raised in his
previous PCRA appeals. See Sims, 2017 WL 6523381, No. 371 MDA 2017.

We rephrase and condense the issues before us as follows:

  A. Whether the PCRA court abused its discretion by denying an
       evidentiary hearing as to Sims' first PCRA petition, and failing to
       give him advance notice of that denial pursuant to Pa.R.Crim.P.
       907.

  B.   Whether the Commonwealth and the trial court deprived Sims of
       blood sample evidence, satisfying the "government interference"
       exception to the PCRA's time -bar provisions.



2 "Our standard of review in PCRA appeals is limited to determining whether
the findings of the PCRA court are supported by the record and free from legal
error." Commonwealth. v. Spotz, 84 A.3d 294, 319 (Pa. 2014) (quoting
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)).

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   C. Whether Sims' PCRA counsel was legally ineffective in failing to
      investigate the destruction of Brady material and assert it as a
         basis for a time -bar exception in previous PCRA proceedings.

   D. Whether the PCRA court erred in denying Sims' motion to amend
      the present petition.

   E.    Whether the PCRA court erred in denying an evidentiary hearing.

See Appellant's Brief, at 4.3

         The Commonwealth contends that the trial court properly dismissed

Sims' PCRA petition as untimely because no exception applies that would allow

the petition to be filed over a year after his judgment of sentence became

final.   The Commonwealth also asserts that the PCRA court did not err in

denying an evidentiary hearing and barring Sims from amending his untimely

petition. We agree.

                                        II.
         A PCRA petition is timely if filed within one year from the date the
petitioner's judgment of sentence became final, which occurs at the conclusion

of direct review.     See 42 Pa.C.S. § 9545(b)(3).      A PCRA court only has

jurisdiction to entertain timely claims or claims which satisfy an exception to

the PCRA's time -bar.     See id. at § 9545(b)(1); Commonwealth v. Abu-
.7amal , 833 A.2d 719, 724 (Pa. 2003). PCRA petitions cannot be amended

once their denial is under review. See generally Commonwealth v. Beatty,




3 Sims and the PCRA court both complied with Pa.R.A.P. 1925.


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207 A.3d 957, 961 (Pa. Super. 2019) ("Pennsylvania law makes clear the trial

court has no jurisdiction to consider a subsequent PCRA petition while an

appeal from the denial of the petitioner's prior PCRA petition in the same case

is still pending on appeal.").

      A petitioner may establish an exception to the PCRA time -bar by
pleading and proving that:       the delay was caused by the government's
constitutional violation; the facts on which the claims are based were unknown

and could not have been discovered through the petitioner's exercise of due

diligence; or the claims are based on a new constitutional right that applies

retroactively. See 42 Pa.C.S. § 9545(b)(1)(i-iii). These exceptions must be

invoked in a petition that is "filed within 60 days of the date the claim could

have been presented." 42 Pa.C.S. § 9545(b)(2) (emphasis added).4

      Courts seek to avoid "serial requests for post -conviction relief" by
applying a heightened timeliness standard to second or subsequent PCRA

petitions.   Commonwealth v. .7ette, 23 A.3d 1032, 1043 (Pa. 2011). "A
second or subsequent request for relief under the PCRA will not be entertained

unless the petitioner presents a strong prima facie showing that a miscarriage



4 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time -bar
exception - going from 60 days to one year from the date the claim arises.
See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24,
2018]. However, the amendment only applies to claims arising on December
24, 2017 or thereafter. Id. at § 3. In this case, all of Sims' claims arose prior
to the operative date of the amendment, so the 60 -day period applies.

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of justice may have occurred." Commonwealth v. Hawkins, 953 A.2d 1248,

1251 (Pa. 2006); Commonwealth v. Williams, 660 A.2d 614, 618 (Pa.
Super. 1995).

      "An issue is waived under the PCRA 'if the petitioner could have raised

it but failed to do so before trial, at trial, during unitary review, on appeal or

in a prior state post conviction proceeding." Commonwealth v. Jones, 815

A.2d 598, 606-07 (Pa. 2002) (quoting 42 Pa.C.S. § 9544(b)). A petitioner

may not reassert previously litigated claims in a PCRA petition. See id. at §

9544(a); Commonwealth v. Rivera, 199 A. 3d 365, 374 (Pa. 2018).

      In this case, Sims acknowledges that his present petition is facially
untimely because it was filed several years after his judgment of sentence in

2014. In order for this Court to reach the merits of his claims, Sims had to

satisfy one of the above exceptions to the PCRA's time bar. He did not do so.

      Sims primarily argues that he satisfies the "government interference"

exception to the PCRA's time -bar because the Commonwealth destroyed blood

sample evidence and the court denied him access to information about the

circumstances of that incident.     However, those exact same claims were

already raised and disposed of in prior proceedings.       See Sims, 2017 WL
6523381, No. 371 MDA 2017 at *4-5 (affirming denial of PCRA petition as

untimely). Those previously litigated claims may not now be reasserted. See

42 Pa.C.S. § 9544(a).




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       To the extent Sims now couches those grounds in terms of his PCRA

counsel's ineffectiveness, such claims are also of no avail because we
previously rejected the same argument in Sims' last PCRA appeal. See id.

Further, it is well established that when asserting a time -bar exception to a

PCRA petition, newly discovered facts cannot be "another conduit for the same

claim" asserted in an earlier petition or direct appeal. Commonwealth v.
Abu-.7amal, 941 A.2d 1263, 1269 (Pa. 2008). Courts have declined to apply

the exception when the petitioner has just found a new "source for previously

known facts." Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008)

(quotation and citation omitted). PCRA counsel's ineffectiveness cannot save

a petition that does not otherwise fall into an exception to the PCRA's
jurisdictional time -bar. Commonwealth v. Wharton, 886 A.2d 1120, 1127

(Pa. 2005).5

       Again, Sims had 60 days from the date his grounds arose to present

them but he failed to show that he complied with that strict requirement. See

42 Pa.C.S. § 9545(b)(2); Sims, 2017 WL 6523381, No. 371 MDA 2017 at *4-




5 Similarly, none of the remaining claims concerning Sims' previous PCRA
appeals are proper or timely at this stage. In his brief, for example, Sims
vaguely alludes to requesting "sealed" information about evidence destruction
which the Commonwealth did not disclose to him. Appellant's Brief, at J 21.
However, Sims did not provide enough detail in this nebulous ground to make
it   a sufficiently cogent claim, must less plead and prove how this bare
assertion satisfies a PCRA time -bar exception.
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5.   As a result, we have no jurisdiction to consider the merits of Sims' PCRA

claims. See id.

       In light of the petition's untimeliness, the PCRA court did not err in
denying an evidentiary hearing as Sims asserts.    Nor did the PCRA court err

in denying Sims leave to amend his petition as its denial was already under

review by the time amendment was sought. See Beatty, 207 A.3d at 961.

       Order affirmed.



Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/23/2019




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