J. S06038/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :    IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
WILLIE STOKES,                               :
                                             :
                          Appellant          :    No. 1335 EDA 2014


                Appeal from the PCRA Order November 15, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0606661-1984

BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 06, 2015

        Appellant, Willie Stokes, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, denying his fifth Post

Conviction Relief Act1 (“PCRA”) petition for untimelness. Appellant contends:

(1) the PCRA court erred in dismissing his habeas corpus petition as an

untimely PCRA petition; and (2) the Commonwealth permitted known false

testimony to remain on the record.2 We affirm.

        The PCRA court summarized the facts and procedural history of this

case:

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    The Commonwealth did not file a brief.
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           In August 1984, [Appellant] elected to exercise his right
       to a jury trial and pled not guilty to all charges . . . . On
       August 21, 1984, the jury found [him] guilty of Murder in
       the First Degree and Possession of an Instrument of Crime
       (PIC). The [court] sentenced [him] to the mandatory term
       of Life imprisonment on the murder charge and 2.5-5
       years of incarceration on the PIC charge, to run
       concurrently. [Appellant] subsequently filed a notice of
       appeal to the Superior Court of Pennsylvania and the Court
       affirmed his convictions and judgment of sentence on
       March 31, 1986.[3 Appellant] filed a Petition for Allowance
       of Appeal to the Supreme Court of Pennsylvania, which the
       Court denied on April 1, 1987.

          In April 1987, [Appellant] filed his first PCRA petition,
       which was dismissed by the PCRA court.           [Appellant]
       subsequently appealed the dismissal to the Superior Court
       of Pennsylvania and the Court affirmed the dismissal on
       August 22, 1991.

          On October 30, 1995, [Appellant] filed a second PCRA
       petition, which was dismissed by the PCRA court. [He]
       subsequently appealed the dismissal to the Superior Court
       of Pennsylvania and the Court affirmed the dismissal on
       December 26, 1996.       [Appellant] filed a Petition for
       Allowance of Appeal to the Supreme Court of Pennsylvania,
       which the Court denied on July 2, 1997.

          In September 1998, [Appellant] filed a Petition for a
       Writ of Habeas Corpus in the United States District Court,
       which the Court denied in May 1999. [Appellant] appealed
       to the United States Court of Appeals for the Third Circuit
       and the Court affirmed the denial of the Petition for a Writ
       of Habeas Corpus in April 2001. [Appellant] filed a Petition
       for Writ of Certiorari in the Supreme Court of the United
       States, which the Court denied in October 2001.

          In November 2002, [Appellant] filed a third PCRA
       petition, which was dismissed by the PCRA court in May
       2003.

3
  Commonwealth v. Stokes, 1202 PHL 1985 (unpublished memorandum)
(Pa. Super. Mar. 31, 1986).



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           In January 2005, [Appellant] filed a fourth PCRA
        petition and PCRA counsel was appointed. The PCRA court
        dismissed the petition on December 12, 2005. On January
        20, 2006, [Appellant] appealed the dismissal to the
        Superior Court of Pennsylvania and the Court affirmed the
        dismissal on October 30, 2008. [Appellant] filed a Petition
        for Allowance of Appeal to the Supreme Court of
        Pennsylvania on January 16, 2009, which the Court denied
        on June 1, 2009.

           On November 17, 2010, [Appellant] filed the instant
        PCRA petition, in the form of a Petition for Writ of Habeas
        Corpus.     [Appellant] also filed a Petition for Writ of
        Mandamus and/or Extraordinary Relief in the Supreme
        Court of Pennsylvania. On January 25, 2012, the Supreme
        Court of Pennsylvania denied [Appellant’s] petition
        requesting extraordinary relief, but granted his petition
        requesting mandamus relief and directed the Court of
        Common Pleas to dispose of the Petition for Writ of Habeas
        Corpus. [Appellant] filed an Amended Petition for Writ of
        Habeas Corpus on March 12, 2012 and on February 20
        2013, PCRA counsel was appointed. On July 22, 2013,
        counsel filed a [Commonwealth v.] Finley [550 A.2d 213
        (Pa. Super. 1988)] Letter. The matter was first listed
        before this court for decision on September 16, 2013. On
        September 17, 2013, following a review of the record, this
        court sent [Appellant] a 907 Notice, pursuant to
        Pa.R.Crim.P. 907(1). This court received a response to the
        907 Notice on September 27, 2013. On November 15,
        2013 this court dismissed the PCRA petition [and
        granted counsel permission to withdraw].

            On January 16, 2014, [Appellant] filed an Application to
        File an Appeal Nunc Pro Tunc, which this court granted on
        April 17, 2014 because [he] had not received the
        November 15, 2013 Order formally dismissing his
        PCRA petition. On April 28, 2014, this court received
        [Appellant’s] Notice of Appeal and, in response, has
        submitted the instant Opinion.

Trial Ct. Op., 6/18/14, at 1-3 (footnotes omitted) (emphases added).

     Appellant raises the following issues for our review:


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         1. Whether the Court of Common Pleas was in err [sic] for
         dismissing Appellant’s Habeas Corpus as untimely and as a
         PCRA[?]

         2. Did the Commonwealth’s prosecuting Attorney err and
         commit reversible error, when he permitted known false
         testimony to remain on the records uncorrected[?]

Appellant’s Brief at 3.

      As a prefatory matter, we consider whether the PCRA court erred in

considering Appellant’s Habeas Corpus petition as a PCRA petition.

         It is well-settled that the PCRA is intended to be the sole
         means of achieving post-conviction relief. 42 Pa.C.S. §
         9542 . . . . Unless the PCRA could not provide for a
         potential remedy, the PCRA statute subsumes the writ of
         habeas corpus. Issues that are cognizable under the PCRA
         must be raised in a timely PCRA petition and cannot be
         raised in a habeas corpus petition. . . .             Phrased
         differently, a defendant cannot escape the PCRA time-bar
         by titling his petition or motion as a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (some

citations omitted).

      Before examining the merits of Appellant’s claims, we also consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. On appellate review of a PCRA ruling, “we determine whether the

PCRA court’s ruling is supported by the record and free of legal error.”

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).

                We . . . turn to the time limits imposed by the PCRA,
         as they implicate our jurisdiction to address any and all of
         [an a]ppellant’s claims. To be timely, a PCRA petition
         must be filed within one year of the date that the
         petitioner’s judgment of sentence became final, unless the



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        petition alleges and the petitioner proves one or more of
        the following statutory exceptions:

           (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).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any
        of the timeliness exceptions must be filed within 60
        days of the date the claim first could have been
        presented. 42 Pa.C.S. § 9545(b)(2). A petitioner fails to
        satisfy the 60–day requirement of Section 9545(b) if he or
        she fails to explain why, with the exercise of due diligence,
        the claim could not have been filed earlier.

Id. at 719-20 (emphases added) (some citations omitted).

     This Court has stated:

        To obtain relief based upon newly-discovered evidence
        under the PCRA, a petitioner must establish that: (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).

      Appellant’s judgment of sentence became final on June 1, 1987, thirty

days after the Pennsylvania Supreme Court denied his petition for allowance

of appeal.   See 42 Pa.C.S. § 9545(b)(3) (providing “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[ ]”); Sup. Ct. R. 20.1

(repealed June 30, 1990).4 Appellant thus generally had until June 1, 1988

to file his PCRA petition.   See 42 Pa.C.S. § 9545(b)(1) (providing PCRA

petition, including second and subsequent petitions, must be filed within one

year of date judgment becomes final). Appellant filed his fifth PCRA petition,

in the form of a Petition for Writ of Habeas Corpus, on November 17, 2010.

Therefore, it is patently untimely.

      Appellant avers that he is raising a claim of fraud upon the court based

upon the October 19, 2005 affidavit of Commonwealth witness Frank Lee.

Appellant’s Brief at 9. He contends this issue was not previously litigated or

waived. Id. He claims “the information upon which this Petition rests was


4
  We note that Appellant’s sentence became final before the effective date of
the amendments to the PCRA, January 16, 1996. “The 1995 amendments to
the PCRA also provide that if the judgment of sentence became final before
the effective date of the amendments (i.e., January 16, 1996), a PCRA
petition could be filed within one year, or by January 16, 1997. This grace
period does not apply to second or subsequent petitions, regardless of when
the first petition was filed.” Commonwealth v. Fairiror, 809 A.2d 396,
398 (Pa. Super. 2002).



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not previously known or discoverable with reasonable diligence.

Consequently, to the extent that [he] properly raised the claim of fraud upon

the Court relying on Mr. Lee’s Affidavit were not previously litigated, [he]

was entitled to review of the claims.”     Id. (emphasis added).     Appellant

contends the PCRA court erred in failing to conduct an evidentiary hearing

on alleged newly discovered evidence based upon Lee’s affidavit. Id.

at 10. Appellant avers he “acted with sufficient diligence in discovering Lee’s

perjury. [He] had no proof of Lee’s perjury until he received Lee’s Affidavit

on 10/19/05.” Id. at 11 (emphasis added).

      A prior panel of this Court, affirming the PCRA court’s dismissal of

Appellant’s fourth PCRA petition, stated: “Appellant presents an affidavit

from Lee dated October 19, 2005, in which Lee states that his testimony was

false[.]”   Commonwealth v. Stokes, 272             EDA 2006     (unpublished

memorandum at 9) (Pa. Super. Oct. 30, 2008).          The PCRA court opined

Appellant “has not proven that his claim, relating to after-discovered

evidence of the conviction being procured by fraud, warranted relief under

any of the enumerated exceptions to the one year filing requirement.

Moreover, even if his claim did satisfy one of the timeliness exceptions, his

claim has already been litigated in a previous PCRA proceeding and is,

therefore, waived for purposes of the instant proceeding.” PCRA Ct. Op. at

5. The PCRA court found no relief was due. We agree. See Marshall, 947

A.2d at 719-20; D'Amato, 856 A.2d at 823.



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     Appellant did not plead and prove any exception to the PCRA’s

timeliness requirement.   See Marshall, 947 A.2d at 719-20.      Thus, the

PCRA court did not err in dismissing his PCRA petition as untimely. See id.

at 719.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/6/2015




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