J-S47022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

 TAMIR LEE

                             Appellant              No. 2233 EDA 2016


                    Appeal from the PCRA Order June 8, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003299-2011


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                     FILED DECEMBER 01, 2017

       Tamir Lee appeals, pro se, from the June 8, 2016 order entered in the

Philadelphia County Court of Common Pleas dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

We affirm the PCRA court’s order and deny Lee’s motion for special relief.1

       The PCRA court summarized the prior history of this matter as follows:

           By way of background, [Lee] was arrested and charged with
           homicide and related offenses and on December 11, 2012,
____________________________________________


       1Lee’s “Motion for Application for Special Relief Pursuant to
Pa.Crim.P.Rule 123,” requests the dismissal of all charges against him because
the Commonwealth failed to file its brief in a timely manner. While we
recognize that the Commonwealth filed its brief more than four months late,
see Order Granting Second App. For Ext. of Time to File App. Br., 4/23/17,
because we conclude that Lee’s PCRA petition was untimely, we deny Lee’s
motion.
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            after a jury had been selected, he entered an open guilty
            plea to the charges of third-degree murder, possessing
            instruments of crime and criminal conspiracy.2 These
            charges arose out of an incident that occurred on May 31,
            2010, in the area of the 1900 block of South 60th Street in
            Philadelphia during which one Aaron Lewis was shot and
            killed during an alleged drug war. On March 8, 2013, this
            Court imposed an aggregate term of incarceration of 25 to
            50 years upon [Lee]. [Lee] filed an untimely motion for
            reconsideration on March 19, 2013. This Court did not rule
            upon the untimely motion and [Lee] did not file an appeal.

                On January 29, 2015, [Lee] filed a document captioned
            “Petition for Writ of Habeas Corpus Traditional and for
            Access to Courts.” In it he alleged that trial counsel was
            ineffective for various reasons, his plea was involuntary
            because it was entered “under duress of mandatory
            sentences,” the sentences imposed upon him are illegal in
            that they violate the holding of Alleyne v. United States,
            133 S.Ct. 2151 ([]2013), he was denied a preliminary
            hearing on the charge of conspiracy and was never held for
            trial on the charge of possessing instruments of crime at the
            preliminary hearing, the law prohibits convictions for third-
            degree murder and criminal conspiracy, there is newly
            discovered evidence concerning Philadelphia Police
            Detective Ronald Dove, who arrested him, his plea was
            involuntary because of mental health problems, the
            Commonwealth acted illegally by proceeding by filing bills of
            information, and he was entitled to relief pursuant to
            Pa.R.Crim.P. 600. On August 14, 2015, [Lee] filed a
            document entitled “Motion/Petition for Court to Take Judicial
            Notice,” wherein he asserted that his sentence is illegal
            under Commonwealth v. Hopkins, 117 A.3d 247 (Pa.
            2015). He then filed on December 2, 2015, a “Motion for
            Writ of Assistance” which alleged that his sentence was
            illegal and that improper delays and ineffective assistance
            of counsel constituted “governmental interference.”

               Counsel was appointed to represent [Lee] and on April
            20, 2016, counsel filed a “No Merit” letter pursuant to
            Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
            1988); Commonwealth v. Turner, 544 A.2d 927 (Pa.
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       2   18 Pa.C.S. §§ 2502(c), 907(a), and 903(c), respectively.

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           1988), and a Motion to Withdraw as Counsel. Upon
           reviewing the letter and the entire record, this Court sent
           [Lee] a Pa.R.Crim.P. 907 Notice of Intent to Dismiss. [Lee]
           filed a response thereto on May 11, 2016. On June 8, 2016,
           this Court issued an order dismissing [Lee]’s PCRA petition
           and permitting counsel to withdraw. Subsequent thereto,
           [Lee] filed a timely notice of appeal and a requested
           Pa.R.A.P 1925(b) statement.

Opinion, 8/16/16, at 1-2 (“1925(a) Op.”).

       Lee raises the following issues on appeal:

           1. Have the Pennsylvania Legislature and Judiciary, created
              a false system of Post Conviction Relief to give the U.S.
              Supreme Court the false impression that they had
              created a constitutionally sound system under 42
              [Pa.C.S.] § 9541 to § 9546 inclusive?

           2. Can a first time PCRA petitioner receive fundamentally
              fair hearing and due process under the current system
              and Superior Court informed review without a hearing on
              issues in the lower court?

           3. Was [Lee] denied and due process [sic] the effective
              assistance of counsel to his great injury and prejudice?

Lee’s Br. at 4 (full capitalization omitted).3
____________________________________________


       3We agree with the PCRA court’s conclusion that Lee’s “Motion for Writ
of Habeas Corpus Traditional and for Access to Courts” was properly treated
as a PCRA petition. See 1925(a) Op. at 3-4; 42 Pa.C.S. § 9542 (“The action
established in this subchapter shall be the sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for the
same purpose that exist when this subchapter takes effect, including habeas
corpus and coram nobis.”); Commonwealth v. Hall, 771 A.2d 1232, 1235
(Pa. 2001) (“The plain language of the statute above demonstrates quite
clearly that the General Assembly intended that claims that could be brought
under the PCRA must be brought under that Act. No other statutory or
common law remedy ‘for the same purpose’ is intended to be available;
instead, such remedies are explicitly ‘encompassed’ within the PCRA.”)
(emphasis omitted); Commonwealth v. Fowler, 930 A.2d 586, 592
(Pa.Super. 2007) (“[L]egality of sentence [claims are] always subject to



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       Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

       Before we reach the merits of Lee’s petition, we must determine whether

it was timely filed. A PCRA petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final.” 42

Pa.C.S. § 9545(b)(1). A judgment is 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.” 42 Pa.C.S. § 9545(b)(3).

       The trial court sentenced Lee on March 8, 2013. Lee did not file a direct

appeal.    Therefore, his sentence became final on April 8, 2013, when the

period to timely file a notice of appeal expired. See Pa.R.A.P. 903(a); see

also 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on

Saturday or Sunday, or on any day made a legal holiday by the laws of this

Commonwealth or of the United States, such day shall be omitted from the




____________________________________________


review within the PCRA, [but] claims must still first satisfy the PCRA’s time
limits or one of the exceptions thereto.”) (quoting Commonwealth v. Beck,
848 A.2d 987, 989 (Pa.Super. 2007)); Commonwealth v. Holmes, 79 A.3d
562, 576 (Pa. 2013) (holding that absent certain circumstances, “claims of
ineffective assistance of counsel are to be deferred to PCRA review”).

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computation.”). Therefore, Lee’s current petition, filed on January 29, 2015,

is facially untimely.

      To overcome the time bar, Lee was required to plead and prove one of

the following exceptions: (i) unconstitutional interference by government

officials; (ii) newly discovered facts that could not have been previously

ascertained with due diligence; or (iii) a newly recognized constitutional right

that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). To invoke one of these exceptions, Lee must have filed his petition within

60 days of the date the claim could have been presented. See 42 Pa.C.S. §

9545(b)(2).

      Lee’s PCRA petition failed to plead or prove any exception to the one-

year time bar. The PCRA court found:

            Here, because [Lee] filed for post-conviction relief more
         than one year after April [8], 2013, the date his conviction
         became final, which was thirty days after he was sentenced,
         his request for PCRA relief was properly denied because
         none of the above exceptions to the one-year filing
         requirement applies.1 [Lee] attempted to overcome the
         time bar by claiming in his December 2, 2015, filing that
         there was governmental interference caused by the
         appointment of counsel and subsequent ineffective
         representation by court-appointed [counsel].           These
         exceptions clearly do [not] fit under the government
         exception because by its very wording, the PCRA states that
         “government officials” do not include defense counsel. 42
         Pa. C.S. §9545(b)(4).2 And as far as the attack on the
         current court appointment system is concerned, [Lee] has
         not articulated how the current system prejudiced him.
         Consequently, all of the issues raising trial error and the
         ineffectiveness of trial counsel were properly determined to
         be time-barred.


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              1 The PCRA provides that a conviction becomes
              final at the conclusion of direct review, including
              discretionary review by the United States and
              the Pennsylvania Supreme Courts or the time
              limit    for   seeking     such     review.    See
              Commonwealth v. Crews, 863 A.2d 498, 501,
              n.1 (Pa. 2004) (citation omitted) (“A judgment
              of sentence becomes final at the conclusion of
              direct review, including review by the United
              States and Pennsylvania Supreme Courts, or
              when the time for seeking such review expires.
              . . . The time for seeking certiorari with the
              United States Supreme Court is 90 days.”).
              Because [Lee] did not file an appeal from the
              judgment of sentence, his conviction became
              final thirty days after sentence was imposed
              upon him.
              2 A review of [Lee]’s 1925(b) statement failed
              to discern this particular issue. For the sake of
              judicial economy and to provide a complete
              record, this Court has addressed the claim.

          To the extent that defendant contends that PCRA counsel
       provided him with ineffective assistance, for purposes of
       appeal any such claims are limited to the claims raised in
       his Rule 907 response. See Commonwealth v. Smith,
       121 A.3d 1049 (Pa. Super. 2015). In his Rule 907 response,
       other than claiming that he never accepted appointed PCRA
       counsel as his attorney and asserting generally that PCRA
       counsel was ineffective, [Lee] raised no specific claim of
       ineffectiveness. Therefore, it is suggested that any claim
       predicated upon the ineffectiveness of PCRA counsel be
       deemed waived.3
              3 It is noted that a review of PCRA counsel’s
              representation failed to discern any wrongdoing
              by counsel.      [Lee]’s disaffection with his
              representation cannot serve as a basis for relief.

           Although not specifically raised in his 1925(b) statement,
       it is submitted that [Lee] was properly denied relief on his
       newly discovered evidence claim. In that claim, [Lee] baldly
       contended that allegations raised against Detective Dove in
       an unrelated matter entitle him to relief.4 Other than setting


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       forth the claim in general terms, [Lee] has provided no other
       evidence to support a finding that he is entitled to a new
       trial based on this evidence. In Commonwealth v. Castro,
       93 A.3d 818 (Pa. 2014), our Supreme Court recently held
       that newspaper articles were not evidence and could not
       form the basis for the grant of relief on a newly discovered
       evidence claim. Based on the holding of Castro, it is clear
       that no error occurred in denying relief on this claim because
       [Lee] is essentially solely relying on the report of the
       detective's arrest as a basis for relief.5
              4 Recently, Detective Dove was fired by the
              Philadelphia Police Department for allegedly
              covering up evidence in an unrelated homicide
              matter involving a girlfriend.
              5 Even had [Lee] presented argument in support
              of this claim, relief still would have not been
              forthcoming because the outcome of the case
              likely would not have been different because
              there is no evidence that Detective Dove did
              anything inappropriate in the instant matter and
              the evidence of defendant’s guilt was
              overwhelming. Moreover, [Lee] pleaded guilty
              herein and averred that the factual recitation of
              the facts during his plea hearing was essential
              correct. Our Supreme Court stated in
              Commonwealth v. Lyons, 79 A.3d 1053, 1068
              (Pa. 2013), that a court

                    should grant a motion for new trial
                    on the ground of after discovered
                    evidence where producible and
                    admissible evidence discovered
                    after trial (1) could not have been
                    obtained prior to the end of trial
                    with the exercise of reasonable
                    diligence; (2) is not merely
                    corroborative       or      cumulative
                    evidence; (3) is not merely
                    impeachment evidence; and (4) is
                    of such a nature that its use will
                    likely result in a different verdict on
                    retrial.


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               Commonwealth v. Chamberlain, 612 Pa.
               107, 163-64, 30[] A.3d 381, 414 (2011).

            Finally, to the extent that [Lee] challenges the legality of
         his sentence, as noted above, said claims are time-barred.
         Before concluding, it is noted that it appears that this Court
         did not impose any mandatory minimum sentences on
         [Lee]. Therefore, Alleyne does not even apply here.

1925(a) Op. at 5-7.       To the extent that Lee’s PCRA petition raised the

governmental interference or newly-discovered facts exception to the PCRA

time-bar, we agree with the trial court that Lee has failed to plead and prove

either exception. Thus, because Lee’s petition was untimely, and there was

no genuine issue of material fact regarding the timeliness of Lee’s petition,

the PCRA court properly dismissed the petition without a hearing.          See

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super. 2008). (“[I]f

the PCRA court can determine from the record that no genuine issues of

material fact exist, then a hearing is not necessary.”).

      Order affirmed. Motion for special relief denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




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