J-S27017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KYLE DICKERSON

                            Appellant                 No. 1120 EDA 2014


            Appeal from the PCRA Order entered February 24, 2014
               In the Court of Common Pleas of Lehigh County
              Criminal Division at No: CP-39-CR-0002659-2010


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 20, 2015

        Appellant, Kyle Dickerson, appeals pro se from the February 24, 2014

order entered in the Court of Common Pleas of Lehigh County, denying as

untimely his petition for collateral relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.

        On direct appeal, this Court adopted the trial court’s comprehensive

summary of evidence presented at the trial in this case. Commonwealth v.

Dickerson, K., 1073 EDA 2011, unpublished memorandum at 1-7 (Pa.

Super. filed March 16, 2012). For purposes of this appeal, it is sufficient to

know that on January 21, 2011, a jury found Appellant guilty of first degree

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S27017-15


murder, robbery, burglary, theft by unlawful taking, receiving stolen

property, and criminal conspiracy to commit robbery,[1] all stemming from

events that occurred in the early morning hours of March 15, 2010.           On

February 23, 2011, the trial court sentenced Appellant to a term of life

imprisonment without possibility of parole for the murder conviction and an

aggregate consecutive sentence for the remaining convictions.          The trial

court denied Appellant’s post-sentence motions on March 17, 2011.

        Appellant filed a direct appeal to this Court raising sufficiency and

weight of the evidence issues and alleging error for denying a pre-trial

motion to exclude expert fingerprint testimony and schedule a Frye

hearing.2    This Court affirmed Appellant’s judgment of sentence on March

16, 2012.      No petition for allowance of appeal was filed and Appellant’s

judgment of sentence became final on April 15, 2012.

        Appellant filed a pro se PCRA petition on October 18, 2013. The PCRA

court appointed counsel who filed a Finley3 no-merit letter after reviewing

the file and corresponding with Appellant.       In the no-merit letter, counsel

explained that Appellant failed to allege or prove any exception to the PCRA

timeliness requirement.         The PCRA court granted counsel’s request to

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 3701, 3502, 3921, 3925 and 903, respectively.
2
    Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3
    Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



                                           -2-
J-S27017-15


withdraw and Appellant proceeded pro se from that point. The PCRA court

conducted a hearing on February 19, 2014, during which Appellant testified

as did Steven Mills and Matthew Potts, the two lawyers who represented

Appellant at trial and on direct appeal.     Appellant cross-examined both

attorneys.   On February 24, 2014, the PCRA court dismissed Appellant’s

petition as untimely, noting Appellant failed to prove a timeliness exception.

This timely pro se appeal followed.

      Appellant presents one issue for our consideration:

      Did the PCRA court error [sic] by denying Appellant’s first PCRA
      petition as untimely by unreasonably applying the due diligence
      standard to an incarcerated indigent defendant who was
      abandoned by appellate counsel on direct appeal[?]

Appellant’s Brief at 4.

      As this Court recently explained:

            In PCRA appeals, our scope of review “is limited to the
      findings of the PCRA court and the evidence on the record of the
      PCRA court’s hearing, viewed in the light most favorable to the
      prevailing party.” Commonwealth v. Sam, 597 Pa. 523, 952
      A.2d 565, 573 (2008) (internal quotation omitted). Because
      most PCRA appeals involve questions of fact and law, we employ
      a mixed standard of review. Commonwealth v. Pitts, 603 Pa.
      1, 981 A.2d 875, 878 (2009). We defer to the PCRA court’s
      factual findings and credibility determinations supported by the
      record. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
      2014) (en banc). In contrast, we review the PCRA court’s legal
      conclusions de novo. Id.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015 (en banc).

      The PCRA court made the following factual findings:


                                      -3-
J-S27017-15


              [Appellant] presented to this [c]ourt a letter authored by
       his trial counsel on March 23, 2012, informing [Appellant] of the
       Superior Court’s denial of his appeal and advising [Appellant]
       that the only procedural remedy available to him was to file a
       Petition for Allocatur to the Supreme Court of Pennsylvania.
       Trial counsel ended the letter by requesting [Appellant’s] input in
       this matter.[4] Additionally, [Appellant] then presented to this
       [c]ourt an unauthenticated, purported handwritten letter by
       [Appellant] dated March 25, 2012, in which he requests that his
       trial counsel file a Petition for Allocatur with the Supreme Court
       of Pennsylvania.[5] This [c]ourt takes exception to this letter, as
____________________________________________


4
 The text of the March 23, 2012 letter from trial counsel to Appellant reads
as follows:

       Dear Kyle:
              Enclosed you will find a copy of the Superior Court Opinion
       denying your Appeal. It was filed with the Superior Court of
       Pennsylvania on March 16, 2012. Also I am in receipt of your
       last correspondence. You said you are in the process of getting
       Affidavits together regarding witnesses who are changing their
       testimony. If that is in fact true, please let me know. The only
       procedural remedy you have now would be to Petition for
       Allocatur to the Supreme Court of Pennsylvania and me [sic] and
       Matt are both in agreement that they would not grant it. Please
       let us know your thoughts on the matter.
              If you have any questions or concerns, please do hesitate
       to write to me.
                                                  Very truly yours,
                                                  /s/ Steve Mills
                                                  Steven R. Mills, Esquire

Notes of Testimony, PCRA Hearing, 2/19/14, Exhibit D-1.
5
  The handwritten letter from Appellant bearing the date March 25, 2012,
reads verbatim as follows:

       Mr. Steven R. Mills,
             I’m writing in regards to your last correspondence. Like I
       told you in my previous letters I am in possession of a affidaviat
       from a witness who wishes to recant his/her testimony. So
       please inform me of what I should do with this newly discovered
(Footnote Continued Next Page)


                                           -4-
J-S27017-15


      common sense suggests that it was fabricated by [Appellant]
      solely for the purpose of this hearing. First, this [c]ourt notes
      the dates on the correspondence. This [c]ourt finds it highly
      improbable that [Appellant] received at state prison a letter
      dated and mailed on March 23, 2012, and had time to respond
      to same on March 25, 2012. Quite frankly, this is actually
      inconceivable to the [c]ourt. In addition, [Appellant] failed to
      present this [c]ourt with any proof of mailing. Also, defense
      counsel Steven Mills and Matthew Potts both testified that they
      never received [Appellant’s] alleged correspondence of March
      25, 2012. Furthermore, even [Appellant] admitted that Attorney
      Mills always wrote back to [Appellant] upon receipt of any
      correspondence from him. Attorney Mills did not respond to the
      phantom letter. Finally, [Appellant] did not present this letter of
      March 25, 2102, to [PCRA counsel Charles] Banta when he was
      asked to furnish Attorney Banta with evidence of an exception to
      the timeliness requirement.

             Nevertheless, even assuming, arguendo, that the letter is
      legitimate, this [c]ourt finds that [Appellant] did not exercise
      due diligence in pursuing or perfecting his appeal to the
      Supreme Court of Pennsylvania. In fact, [Appellant] did nothing
      for approximately 18 months with regard to his case. A review
      of the file of the Clerk of Courts – Criminal Division reveals three
      (3) letters written by [Appellant] to the Clerk of Courts. The first
      letter was dated February 22, 2012, in which [Appellant]
                       _______________________
(Footnote Continued)

      evidence. Also I’ve been writing you and Mr. Potts about the
      status of my appeals. I still haven’t received my brief from my
      direct let alone the brief for the Superior or the Supreme. In
      your letter you said that the only remedy I have left is Allocatur
      to the Supreme. I don’t know specificaly what that is but please
      file it anyway. I want to exaust any and every remedy at my
      disposal. I don’t know what issues you and or Matt raised on my
      appeal but I have my own findings that I wish to include and so I
      ask that you and or Matt start to contact me so that my appeals
      be done sufficiently and collectively.
              Thank you for your time.
                                                Truly,
                                                /s/ Kyle C. Dickerson

Notes of Testimony, PCRA Hearing, 2/19/14, Exhibit D-2.



                                            -5-
J-S27017-15


      inquired as to the status of his Superior Court appeal. In
      response to his inquiry, the Clerk of Courts sent to [Appellant] a
      copy of the docket for his matter. Then, one year and five
      months later, on August 8, 2013, [Appellant] inquired of the
      Clerk of Courts the status of his appeal to the Supreme Court of
      Pennsylvania.       Three weeks later, on August 29, 2013,
      [Appellant] again wrote to the Clerk of Courts inquiring about an
      appeal to the Supreme Court of Pennsylvania. This [c]ourt finds
      that [Appellant’s] lack of action for approximately one year and
      five months belies the fact that he never requested his counsel
      to file a Petition for Allocatur, as well as demonstrates a
      complete lack of due diligence. Consequently, [Appellant] has
      failed to carry his burden.

PCRA Court Opinion, 2/24/14, at 3-4 n.8 (references to exhibits omitted)

(emphasis in original).

      Our review leads us to conclude that the PCRA court’s factual findings

and credibility determinations are supported by the record. Therefore, we

defer to them. Reyes-Rodriguez, 111 A.3d at 779 (citing Henkel, 90 A.3d

at 20).   As for the legal determinations, we shall review them de novo. Id.

      This Court recently reiterated:

            As a prefatory matter, the timeliness of a PCRA petition is
      a jurisdictional requisite. Commonwealth v. Robinson, 12
      A.3d 477 (Pa. Super. 2011). A PCRA petition, including a second
      or subsequent petition, shall be filed within one year of the date
      the underlying judgment becomes final.              42 Pa.C.S.A.
      § 9545(b)(1). A judgment is deemed 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.A. § 9545(b)(3).

            The three statutory exceptions to the timeliness provisions
      in the PCRA allow for very limited circumstances under which the
      late filing of a petition will be excused.         42 Pa.C.S.A.
      § 9545(b)(1). To invoke an exception, a petition must allege
      and the petitioner must prove:

                                        -6-
J-S27017-15



         (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.A. § 9545(b)(1)(i)-(iii).         Additionally, a PCRA
      petitioner must present his claimed exception within sixty days
      of the date the claim first could have been presented. 42
      Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA petition is not
      filed within one year of the expiration of direct review, or not
      eligible for one of the three limited exceptions, or entitled to one
      of the exceptions, but not filed within 60 days of the date that
      the claim could have been first brought, the [PCRA] court has no
      power to address the substantive merits of a petitioner's PCRA
      claims.” Commonwealth v. Gamboa–Taylor, 562 Pa. 70, 77,
      753 A.2d 780, 783 (2000).

Commonwealth v. Brown, 111 A.3d 171, 175-76 (Pa. Super. 2015)

(emphasis in original).

      Appellant’s judgment became final on April 15, 2012, thirty days after

this Court affirmed his judgment of sentence and the date on which his time

expired for seeking discretionary review in our Supreme Court. Therefore,

Appellant was required to file his PCRA petition on or before April 15, 2013.

His PCRA petition filed on October 18, 2013 was untimely on its face so we

must ascertain whether any § 9545(b)(1) exception applies. Appellant has

                                     -7-
J-S27017-15


not alleged the applicability of either § 9545(b)(1)(i) or (iii). Therefore, our

review is focused on whether he can successfully rely on § 9545(b)(1)(ii) to

overcome the PCRA’s time limitations.

      In Brown, this court considered an appellant’s contention that

§ 9545(b)(1)(ii) overcame the PCRA’s time limitations. The Court explained:

             The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned
      those facts earlier by the exercise of due diligence.
      Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
      1271 (2007). Due diligence demands that the petitioner take
      reasonable steps to protect his own interests. Commonwealth
      v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner
      must explain why he could not have learned the new fact(s)
      earlier with the exercise of due diligence. Commonwealth v.
      Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001);
      Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super.
      2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). This
      rule is strictly enforced. Id.

Id. at 176.

      Unlike Brown, in which appellant advanced an argument based on

“after-discovered evidence,” Appellant here argues simply that, despite his

due diligence, he was unaware his counsel did not petition our Supreme

Court for allocatur.        Appellant suggests “a court should look to the

circumstances surrounding a defendant[’]s circumstances to inquire whether

or not more could have been done to discover whatever proffer is being

presented.”   Appellant’s Brief at 8.    He explains his own circumstances as

having been and presently being incarcerated and, as such, “by law an

indigent litigant.”   Id.      He contends telephone calls to attorneys are

                                        -8-
J-S27017-15


prohibited at SCI Smithfield, where he is incarcerated, and his mother was

unable to assist him because she was ill. Id. at 10. He asserts he alerted

the courts when he became aware his counsel abandoned him. Id.

       As explained in Brown, it is incumbent on Appellant to demonstrate

he took reasonable steps to protect his own interests and to explain why he

could not have learned sooner, with the exercise of due diligence, that his

counsel did not file a petition for allocatur. See Brown, 111 A.3d at 176.

Appellant has not done so.

       The record reflects that Appellant wrote to the clerk of courts in

February of 2012, inquiring about the status of his direct appeal. The clerk

responded by sending a copy of the docket sheet to Appellant.            As of

February 2012, Appellant’s direct appeal was still pending before this Court.

This Court’s decision affirming Appellant’s judgment of sentence was filed on

March 16, 2012.         A week later, Appellant’s counsel wrote to Appellant,

advising him of this Court’s decision and the sole remaining procedural

remedy of filing a petition for allocatur, an option counsel predicted to be

unsuccessful. See n.4, supra. Despite the invitation to share his thoughts

with counsel, Appellant did not take any action until August 2013 when he

again wrote to the clerk of courts, inquiring into the status of his appeals. 6

____________________________________________


6
  Despite Appellant’s claim at the PCRA hearing that he wrote a letter to
counsel on March 25, 2012, see n.5, Appellant does not repeat that
assertion in his brief filed with this Court. We note the PCRA court rejected
(Footnote Continued Next Page)


                                           -9-
J-S27017-15


In what can be viewed as a continued show of gamesmanship, Appellant

concludes the argument section of his brief filed with this Court by asking,

“After all, did counsel know if Appellant actually received the letter informing

him of the results of the appeal?” Appellant’s Brief at 12. While perhaps

intended as a rhetorical question to this Court, Appellant ignores his

representation under oath to the PCRA court that he wrote his March 25,

2012 letter in response to counsel’s March 23, 2012 letter.            See Notes of

Testimony, 2/19/14, at 11-12 and Exhibit D-1 (see n.5, supra).

      By virtue of his February 2012 inquiry to the clerk of courts, Appellant

demonstrated his ability to inquire about the status of his appeal.              He

ignored the invitation from counsel to provide his thoughts following this

Court’s affirmance of his judgment of sentence and failed to produce any

evidence of a request that they file a petition for allocatur. When appointed

PCRA counsel asked Appellant for information to support an exception to the

PCRA’s one-year time bar, Appellant “failed to give [PCRA counsel] any basis

for pursuing one of the exceptions.”                Petition to Withdraw as Counsel,

12/16/13, Exhibit A at 1-2.

      Appellant contends he was abandoned by his trial counsel, counsel

who represented him from his preliminary hearing through the conclusion of

his direct appeal, and who invited input from him on proceeding beyond this
                       _______________________
(Footnote Continued)

the March 25, 2012 letter as fabricated for purposes of the PCRA hearing.
PCRA Court Opinion, 2/24/14, at n. 8.



                                           - 10 -
J-S27017-15


Court’s ruling. When reviewing this record to determine whether Appellant

exercised due diligence to excuse an untimely PCRA petition, we conclude it

was Appellant, not counsel, who abandoned his efforts both to pursue

allocatur and, more importantly for purposes of this appeal, a timely claim

for PCRA relief. Because Appellant did not exercise due diligence, he is not

entitled to an exception to the PCRA’s timeliness requirements.

      Appellant’s PCRA petition was untimely on its face and he has failed to

prove an exception to the PCRA’s time bar. Therefore, we affirm the PCRA

court’s order dismissing Appellant’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




                                    - 11 -
