J-S60022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SAMUEL D. HARPER

                            Appellant                No. 3634 EDA 2015


                  Appeal from the PCRA Order October 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1002831-2003


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                          FILED NOVEMBER 17, 2016

        Samuel D. Harper appeals, pro se, from the order entered October 30,

2015, in the Philadelphia County Court of Common Pleas dismissing, as

untimely filed, his second petition for collateral relief filed pursuant to the

Post Conviction Relief Act (“PCRA”).1 Harper seeks relief from the judgment

of sentence of an aggregate term of life imprisonment imposed on February

16, 2005, after a jury found him guilty of first-degree murder2 and related

offenses for the shooting death of his wife. On appeal, Harper contends (1)

the PCRA court erred in dismissing his claim of after-discovered evidence
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    See 42 Pa.C.S. §§ 9541-9546.
2
    See 18 Pa.C.S. § 2502(a)(1).
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without first conducting an evidentiary hearing; (2) his mandatory sentence

of life imprisonment is unconstitutional pursuant to Alleyne v. United

States, 133 S.Ct. 2151 (2013) and its progeny; and (3) trial counsel

rendered ineffective assistance by advising him to waive his appellate rights,

post-trial, in exchange for the Commonwealth’s decision not to seek the

death penalty.      For the reasons below, we affirm the order denying PCRA

relief.3

       The relevant facts and procedural history underlying Harper’s appeal

are summarized by the PCRA court as follows:

             On February 15, 2005, following a jury trial, [Harper] was
       convicted of first-degree murder, possessing an instrument of
       crime and carrying a firearm without a license.2 On February 16,
       2005, [Harper] entered into an agreement with the
       Commonwealth whereby the Commonwealth would not seek the
       death penalty and [Harper] would be sentenced to life
       imprisonment in exchange for his waiver of his direct appeal,
       post-conviction, and habeas corpus rights. After the trial court
       conducted a waiver colloquy, [Harper] was sentenced to life
       imprisonment for the murder conviction and lesser concurrent
       sentences for the remaining charges. In a letter to the trial
       judge dated February 21, 2005, [Harper] sought to withdraw his
       agreement. [He] thereafter filed an untimely notice of appeal
       (dated April 3, 2005) in December 2005.

       _________
           2
           See 18 Pa.C.S.A. §§ 2502(a)(1), 907, 6106.
       _________
____________________________________________


3
  Although we conclude, infra, that one of Harper’s issues overcomes the
PCRA’s time-bar, “we may affirm the PCRA court’s order on any basis.”
Commonwealth v. Reed, 107 A.3d 137, 144 (Pa. Super. 2014).




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            On June 1, 2006, [Harper] filed his first PCRA petition.
     Counsel was appointed. On May 24, 2007, counsel filed a
     Turner/Finley3 no-merit letter. The PCRA court dismissed his
     petition as untimely on July 10, 2007, and permitted counsel to
     withdraw. The Superior Court affirmed the dismissal on March
     27, 2009.4 [Harper] did not file a petition for allowance of
     appeal with the Pennsylvania Supreme Court.
     __________
        3
          Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
        Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
        (en banc).
        4
         Commonwealth v. Harper, 972 A.2d 553 (Pa. Super.
       2009) (unpublished memorandum).
     __________

            On August 6, 2012, [Harper] filed the instant pro se PCRA
     petition, his second. Pursuant to Pennsylvania Rule of Criminal
     Procedure 907, [Harper] was served notice of the lower court’s
     intention to dismiss his petition on September 14, 2015. On
     October 30, 2015, the PCRA court dismissed his petition as
     untimely. On December 1, 2015, the instant notice of appeal
     was filed to the Superior Court.

PCRA Court Opinion, 1/5/2016, at 1-2.

     Preliminarily, we must address the timeliness of this appeal since the

PCRA court suggests the notice of appeal may have been untimely filed.

See id. at 2 n.5. Our review of the record reveals the October 30, 2015,

order dismissing Harper’s petition was not mailed to the parties until

November 2, 2015. See Docket Entry, 10/30/2015. Therefore, Harper had

until December 2, 2015, to file a timely notice of appeal.   See Pa.R.A.P.




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108(a)(1); 903(a). Accordingly, his notice of appeal, which is time-stamped

December 1, 2015, was timely filed.4

       Before we consider the issues Harper raises on appeal, we first

emphasize that after he was convicted, Harper entered into an agreement

with the Commonwealth whereby he waived all his appellate rights in order

to avoid the death penalty.         See Written Agreement Colloquy, 2/16/2005.

The validity of Harper’s waiver was upheld by this Court on appeal from the

denial of his first PCRA petition.             See Harper, supra, 972 A.2d 553

(unpublished memorandum at 4-5). See also Commonwealth v. Barnes,

687 A.2d 1163 (Pa. Super. 1996) (finding defendant’s agreement to

relinquish post-trial review rights was entered into knowingly, voluntarily

and intelligently; thus, agreement was valid), appeal denied, 693 A.2d 585

(Pa. 1997).     Furthermore, none of the claims raised in his present PCRA

petition undermine the validity of his agreement. Accordingly, on this basis

alone, we could find Harper’s PCRA petition fails.

       Nevertheless, we will consider the petition before us, which the PCRA

court found to be untimely filed.5       Indeed, it is axiomatic that:

____________________________________________


4
  The PCRA court did not direct Harper to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
5
  Our review of an order dismissing a PCRA petition is well-established: we
must determine whether the PCRA court’s findings of fact are supported by
the record, and whether its legal conclusions are free from error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference
(Footnote Continued Next Page)


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      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply
      to all PCRA petitions, regardless of the nature of the individual
      claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citations omitted).

      A PCRA petition must be filed within one year of the date the judgment

of sentence becomes final.             See 42 Pa.C.S. § 9545(b)(1).      Harper’s

judgment of sentence was final on March 18, 2005, 30 days after sentence

was imposed, and Harper failed to file a direct appeal.            See id. at §

9545(b)(3). Therefore, he had until March 18, 2006, to file a timely petition,

and the one before us, filed six years later, was manifestly untimely. See

Harper, supra, 972 A.2d 553 (unpublished memorandum at 5) (finding

Harper’s first PCRA petition was untimely).

      However, the PCRA provides that an otherwise untimely petition is not

time-barred if a petitioner pleads and proves the applicability of one of three

time-for-filing exceptions:         (1) interference by government officials, (2)

newly discovered evidence, or (3) a newly-recognized constitutional right

which had been applied retroactively. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii).

Any petition invoking one of these exceptions must be filed “within 60 days

of the date the claim could have been presented.” Id. at § 9545(b)(2).
                       _______________________
(Footnote Continued)

is granted to the findings of the PCRA court, and these findings will not be
disturbed unless they have no support in the certified record.”
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation
omitted).




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       We note that Harper does not directly address the timeliness of his

petition in his brief. However, in his PCRA petition, he attempted to invoke

the newly discovered facts exception, set forth in subsection (b)(1)(ii), by

attaching to his petition a newspaper article that stated the investigating

homicide detective assigned to his case, Detective Kenneth Rossiter, was

dismissed from his position in the Philadelphia Police Department for

submitting fraudulent overtime hours. See Motion for Post Conviction Relief,

8/6/2012, at 3.       Harper maintained this disciplinary action supported his

claim that Detective Rossiter tampered with witnesses and withheld

exculpatory evidence in investigating the murder of his wife.         See id.

Furthermore, he asserted the article was published on June 19, 2012, less

than 60 days before he filed the instant PCRA petition on August 6, 2012.

See Motion for Post Conviction Relief, 8/6/2012, attachment.        See also

Amended Petition Under the Post Conviction Collateral Relief Act, 4/9/2013,

at 10-11.     In his brief, Harper contends the PCRA court erred in failing to

conduct an evidentiary hearing so that he could “establish the relevance of

Detective Rossiter’s testimony.”6 Harper’s Brief at 8.




____________________________________________


6
   Because of our ultimate disposition, we have considered Harper’s pro se
filings very liberally.




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      First, we find the newspaper article satisfies the newly discovered

evidence exception to the time-bar. This Court has explained there are two

components to the exception:

      Namely, the petitioner must establish that: 1) the facts upon
      which the claim was predicated were unknown and 2) could not
      have been ascertained by the exercise of due diligence. If the
      petitioner alleges and proves these two components, then the
      PCRA court has jurisdiction over the claim under this subsection.

Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016)

(quotation omitted).   Here, Harper asserts, albeit unartfully, the fact that

Detective Rossiter was being investigated for fraud was unknown to him,

and he could not have discovered that fact by the exercise of due diligence.

See Objection to the Pa.R.Crim.P. 907 Notice of Dismissal, 10/1/2015, at ¶

9 (noting the Commonwealth did not inform Harper during trial that the

detective was being investigated or that his credibility was “questionable”).

      Nonetheless, “[i]t is possible for a petitioner to plead and prove the

newly-discovered fact exception, which gives the PCRA court jurisdiction and

permits it to consider the petition on the merits, and then ultimately fail on

the merits of an after-discovered evidence claim.” Brown, supra, 141 A.3d

at 500. That is where Harper’s argument ultimately misses the mark.

      In order to obtain collateral relief based on newly-discovered evidence,

the petitioner must establish:

      (1) the evidence has been discovered after trial and it could not
      have been obtained at or prior to trial through reasonable
      diligence; (2) the evidence is not cumulative; (3) it is not being
      used solely to impeach credibility; and (4) it would likely compel
      a different verdict.

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Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004).               Here, the

PCRA court found that Detective Rossiter’s dismissal would not have

changed the outcome of the trial. The court explained:

       Even if [Harper] established jurisdiction, his “newly-discovered
       evidence” claim is meritless. Detective Rossiter’s dismissal was
       subsequently determined to have been improper and he was
       reinstated in April 2013. See http://articles.philly.com/2013-04-
       06/news/38309790_1_drug-kingpin-alleged-overtime-abuse-
       kaboni-savage. Specifically, the arbitrator determined that there
       was insufficient evidence of wrongdoing. Id. [Harper] failed to
       demonstrate that the fact that Detective Rossiter was
       unjustifiably dismissed would have altered the outcome of his
       trial.

PCRA Court Opinion, 1/5/2016, at 5 n.7. We agree. Moreover, we also note

the detective’s dismissal for overtime fraud would have been used solely to

impeach his credibility.      Accordingly, while these allegations overcome the

PCRA’s time-bar, they do not support Harper’s claim for relief.

       Next, Harper argues his life sentence, imposed pursuant to 42 Pa.C.S.

§ 9711, is unconstitutional under the United States Supreme Court’s decision

in Alleyne, supra.7 However, the Alleyne decision does not satisfy any of

the exceptions to the time-bar. Indeed, this Court has “expressly rejected

____________________________________________


7
  In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct.
at 2155. In interpreting that decision, the courts of this Commonwealth
have determined that most of our mandatory minimum sentencing statutes
are unconstitutional. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.
Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).




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the notion that judicial decisions can be considered newly-discovered facts

which would invoke the protections afforded by section 9545(b)(1)(ii).”

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013).                 Moreover, in Commonwealth v.

Washington, 142 A.3d 810 (Pa. 2016), the Pennsylvania Supreme Court

definitively held “Alleyne does not apply retroactively to cases pending on

collateral review,” so that it also fails to satisfy the “new constitutional right”

exception.    See 42 Pa.C.S. § 9545(b)(1)(iii) (providing exception to one-

year filing requirement when petitioner proves “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.”)

(emphasis supplied). Because he cannot overcome the PCRA’s time-bar with

respect to this issue, Harper is, once again, entitled to no relief.8
____________________________________________


8
  We note that in various filings, Harper attempted to overcome the time-bar
by citing to the United States Supreme Court’s decisions in Miller v.
Alabama, 132 S.Ct. 2455 (U.S. 2012) (mandatory life without parole for
juvenile offenders violates Eighth Amendment), and Martinez v. Ryan, 132
S.Ct. 1302 (U.S. 2012) (federal habeas court may excuse procedural default
of trial counsel ineffectiveness claim where collateral counsel was
ineffective). See Motion for Post Conviction Relief, 8/6/2012; Amended
Petition Under the Post Conviction Collateral Relief Act, 4/9/2013; Objection
to the Pa.R.Crim.P. 907 Notice of Dismissal, 10/1/2015. However, Harper
does not repeat these claims in his brief on appeal, and accordingly, they are
waived.

      Moreover, neither decision provides him with a basis for relief. With
regard to Miller, although the United States Supreme Court held in
(Footnote Continued Next Page)


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      In his third, and final, claim, Harper asserts the ineffective assistance

of trial counsel. However, since we have concluded Harper’s petition was

untimely filed, and this claim does not implicate any of the exceptions to the

time-bar,   Harper’s       third   argument      fails.   See   Commonwealth   v.

Robinson, 139 A.3d 178, 186 (Pa. 2016) (“[I]t is well-settled that couching

a petitioner's claims in terms of ineffectiveness will not save an otherwise

untimely filed petition from the application of the time restrictions of the

PCRA.”).

      Order affirmed.




                       _______________________
(Footnote Continued)

Montgomery v. Louisiana, 136 S.Ct. 718 (U.S. 2016), that it applies
retroactively, the decision has no relevance here since Harper was over the
age of 18 at the time he committed murder. See Commonwealth v.
Furgess, ___ A.3d ___, ___, 2016 WL 5416640, *2 (Pa. Super. 2016)
(“The Miller decision applies to only those defendants who were ‘under the
age of 18 at the time of their crimes.’”) (quotation omitted). With respect to
Martinez, that decision focused on federal habeas claims, and our Supreme
Court has explained that any potential change in Pennsylvania jurisprudence
to “account for the concerns of Martinez is one of policy, and it should await
either the action of the General Assembly…or a case where the issue is
properly joined.” Commonwealth v. Holmes, 79 A.3d 562, 584 (Pa.
2013).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




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