J-S31022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ALFONSO DORSEY                          :
                                         :
                    Appellant            :   No. 905 EDA 2017

               Appeal from the PCRA Order February 24, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0421771-1988


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JULY 13, 2018

      Alfonso Dorsey appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing as untimely his second petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm.

      The PCRA court summarized the procedural history as follows:

      On March 31, 1989, [Dorsey] was convicted by a jury of murder
      of the first degree, 18 Pa.C.S. § 2502, criminal conspiracy, 18
      Pa.C.S. § 903, and possession of an instrument of crime, 18
      Pa.C.S. § 907. [Dorsey] received an aggregate sentence of life
      imprisonment. On January 7, 1991, [the] Superior Court affirmed
      [his] judgment of sentence[.] [Commonwealth v. Dorsey,] 589
      A.2d 1173 (Pa. Super. 1991) (table). On January 9, 1992, the
      Supreme Court denied [Dorsey’s] petition for allowance of
      appeal[.] [Commonwealth v. Dorsey,] 602 A.2d 856 (Pa.
      1992) (table). On January 14, 1997, [Dorsey] filed his first PCRA
      Petition. The PCRA Petition was dismissed on May 20, 1998. The
      Superior Court affirmed the dismissal on February 4, 2000[.]
      [2000 WL 709526 (Pa. Super. Feb. 4, 2000)]. Thereafter,
      [Dorsey] sought relief in the Federal Courts; his efforts were
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      unsuccessful. On July 3, 2013, [Dorsey] filed the instant PCRA
      Petition. On February 24, 2017, this Court dismissed the PCRA
      Petition as untimely and without merit.

Trial Court Opinion, filed 8/7/17, at 1-2.

      At the PCRA hearing, Dorsey presented six witnesses: Reginald Jones,

Larry Thomas, Wayne Humphrey, Ricky Burns, Lamar Jones (“Lamont”; no

relation to Reginald), and himself. Reginald Jones allegedly contacted Dorsey

in 2013, while the latter was serving his prison sentence, and told him that he

was gathering witnesses with possible exculpatory evidence.               The four

witnesses found by Jones were supposedly at the scene the night of the

murder, and testified that they did not see Dorsey at the scene. The PCRA

court found the witnesses were not credible and dismissed Dorsey’s petition.

      On November 8, 2017, Dorsey filed the present appeal, averring that

the PCRA court erred in determining that his petition was not timely filed.

Dorsey also asserted that the court erred in denying him relief because he

presented sufficient evidence during the PCRA hearing to warrant a new trial.

      The standard of review this Court uses to analyze a PCRA court’s order

is, “whether the determination of the PCRA court is supported by the evidence

of the record and is free of legal error.” Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011). If the record supports the PCRA court’s findings,

then this Court will grant substantial deference to the PCRA court.             See

Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (“A PCRA court

passes   on   witness   credibility   at   PCRA   hearings,   and   its   credibility

determinations should be provided great deference by reviewing courts.”).


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See also Commonwealth v. Abu-Jamal, 720 A.2d 79, 97 (Pa. 1998)

(“[W]here the record supports the PCRA court’s credibility determinations,

those determinations are binding on this [C]ourt”).       “Indeed, one of the

primary reasons PCRA hearings are held in the first place is so that credibility

determinations can be made[.]” Johnson, 966 A.2d at 539.

      The PCRA court does not have jurisdiction to consider the merits of

Dorsey’s PCRA petition unless his petition was timely filed.      42 Pa.C.S. §

9545(b)(1). PCRA petitions, unless they meet some exception, must be filed

within one year of the date of a final judgment. 42 Pa.C.S. § 9545(b)(1).

Dorsey’s judgment became final on April 8, 1992, ninety days after the

Pennsylvania Supreme Court denied his petition for allowance of appeal. 42

Pa.C.S. § 9545(b)(3); U.S.Sup.Ct. R. 13. Thus, Dorsey’s deadline to file a

PCRA petition was April 8, 1993. Dorsey filed his PCRA petition more than

twenty years after the date of his final judgment, and therefore, his petition

is facially untimely.

      Dorsey asserts that under 42 Pa.C.S. § 9545(b)(1)(ii), his case presents

an exception to the one-year jurisdictional time bar because he is raising

newly-discovered facts. Section 9545(b)(1)(ii) provides as follows:

            (b) Time for filing petition.

             (1) Any petition under this subchapter, including a second
      or subsequent petition, shall be filed within one year of the date
      the judgment becomes final, unless the petition alleges and the
      petitioner proves that:
                   ...



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                     (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[.]

            (2) Any petition invoking an exception provided in
      paragraph (1) shall be filed within 60 days of the date the claim
      could have been presented.

42 Pa.C.S. § 9545(b)(1)(ii), (2).

      To determine whether the PCRA court erred in holding that the petition

was time-barred, we must analyze whether Dorsey’s witnesses could have

been discovered at trial through the exercise of due diligence. 42 Pa.C.S. §

9545(b)(1). Due diligence is not a bright-line rule, and is to be determined

on a case-by-case basis.      Commonwealth v. Bradford, 2 A.3d 628 (Pa.

Super. 2010). While due diligence does not require perfection, the petitioner

must “put forth a reasonable effort.” Id.        “Due diligence demands that the

petitioner   take    reasonable     steps   to   protect    his   own   interests.”

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011).

      Dorsey argues that he meets the due diligence standard because, due

to his prison sentence, he had no way of knowing the existence of the new

witnesses or the allegedly exculpatory information they possessed. According

to Dorsey, due diligence is thus satisfied because he was incapable of

discovering new exculpatory evidence while in prison.

      However, as the Commonwealth points out, and as Dorsey concedes,

he failed to take initiative to investigate his case.      Dorsey did not contact

friends or family throughout the entire span of his incarceration leading up to

the instant petition, even though he had more than twenty-five years to do


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so. Dorsey was aware that Larry Thomas allegedly was inside a nearby store

the night of the shooting, but he never made an effort to contact Thomas,

either during his trial or during his lengthy prison sentence. Dorsey also knew

witness Wayne Humphrey, and he knew that Humphrey could possibly testify

at his trial, but Humphrey was never contacted before or during Dorsey’s trial.

Finally, Lamar Jones allegedly told Dorsey’s family his account of the incident

more than twenty years prior to the petition’s filing, so Dorsey might have

discovered Jones had he simply contacted his own family. Such gross inaction

cannot meet the due diligence standard for the newly-discovered facts

exception to the PCRA.

      With regard to the fourth witness, Ricky Burns, Dorsey did not know of

his existence or of his potential to be a witness until 2013 when Reginald Jones

contacted Dorsey in prison, and therefore would not have been able to

discover Burns through due diligence. Burns was allegedly a bystander who

happened to witness the crime being committed, and had no relation to

Dorsey. Therefore, Dorsey’s petition is not time-barred with regard to Burns’

testimony.

      Burns’ testimony, or the “newly-discovered facts,” only provides a basis

for PCRA relief if Dorsey complied with section 9545(b)(2) and can show “[t]he

unavailability at the time of trial of exculpatory evidence that has subsequently

become available and would have changed the outcome of the trial if it had

been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi).




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      With regard to section 9545(b)(2), Dorsey’s petition must be submitted

within sixty days of the date the claim could have been presented. 42 Pa.C.S.

§ 9545(b)(2). Dorsey allegedly learned of the possible exculpatory evidence

when Reginald Jones visited him in prison, on June 23, 2013. Dorsey’s petition

was filed on July 3, 2013.      Therefore, Dorsey’s petition was timely filed

pursuant to section 9545(b)(2).

      The Pennsylvania Supreme Court in Commonwealth v. D’Amato, 856

A.2d 806 (Pa. 2004), clarified section 9543(a)(2)(vi) into a four-prong test.

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.” Id. at

823 (emphasis added).      If witness testimony is deemed incredible, then it

likely will not compel a different verdict and is not sufficient to afford the

plaintiff relief. See Abu-Jamal, 720 A.2d at 97 (holding incredible testimony

will not likely change outcome of case).

      Here, the PCRA court found Burns lacking in credibility.       The record

reveals that Burns signed a sworn affidavit recounting the events the night of

the murder, but at the PCRA hearing he spontaneously changed his story and

recounted different facts. The record thus supports the credibility findings of

the PCRA court that Burns’ testimony is unreliable. See Commonwealth v.

Santiago, 855 A.2d 682, 694 (Pa. 2004) (“[W]e are bound by the PCRA

court’s credibility determinations where there is record support for those

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determinations”). Accordingly, we find that Burns’ testimony does not meet

the requirements of the newly-discovered facts exception because it would

not change the outcome of the case.

      As the facts indicate, Dorsey’s PCRA petition does not overcome any

exceptions to the PCRA’s time-bar, and, except for Burns’ testimony, remains

time-barred. However, the record supports the PCRA court’s findings that the

new witnesses, including Burns, were not credible and would not afford Dorsey

relief under the newly-discovered facts exception.

      Therefore, we affirm the PCRA court’s order dismissing Dorsey’s

petition.

      Order Affirmed.



      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/18




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