J-S22026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERREL DARNELL DIXON

                            Appellant                No. 1606 WDA 2014


               Appeal from the PCRA Order September 16, 2014
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0001027-2010


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 19, 2015

        Terrel Darnell Dixon appeals from the order of the Court of Common

Pleas of Beaver County that dismissed his petition filed pursuant to the Post

Conviction Relief Act.1 After careful review, we affirm.

        Dixon entered an open guilty plea to one count of third-degree murder

on August 5, 2011, and one week later, the trial court sentenced him to 12

to 30 years’ imprisonment. Dixon filed a pro se PCRA petition on June 27,

2012.     The court appointed counsel, who filed an amended petition on

August 16, 2012.        Following a hearing, the court denied the petition on

November 16, 2012. Dixon appealed to this Court, which denied relief on

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S22026-15



August 20, 2013.        Commonwealth v. Dixon, 83 A.3d 1069 (Pa. Super.

2013) (unpublished memorandum). We denied reargument on October 23,

2013, and Dixon filed a petition for allowance of appeal on November 21,

2013, which our Supreme Court denied on May 6, 2014. Commonwealth

v. Dixon, 91 A.3d 161 (Pa. 2014).2

       On August 18, 2014, Dixon filed the instant PCRA petition, which the

court dismissed by opinion and order dated September 16, 2014. Prior to

dismissing the petition, the court did not provide a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907.          On October 3, 2014, Dixon filed a pro se

response to the opinion and order setting forth the reasons why the court

should not have dismissed the petition without a hearing. On the same day,

he filed a notice of appeal to this Court.

       In response to an order from the trial court, Dixon filed a statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and on

November 5, 2014, the trial court issued an opinion that incorporated its

opinion of September 16, 2014.

       On appeal, Dixon raises the following issues verbatim for our review:



____________________________________________


2
  While the petition for allowance of appeal was pending, Dixon filed a
motion with the trial court to compel the clerk of courts to file a second
PCRA petition that he alleged to have filed. The trial court denied relief, and
Dixon filed an appeal in this Court, which was denied by judgment order on
February 5, 2015. Commonwealth v. Dixon, 930 WDA 2014 (Pa. Super.
2015).



                                           -2-
J-S22026-15


     1. Whether Judge Tesla should have recused from [Dixon’s] case
        for his (Judge[’s]) bias du[e] to [the] fact that said judge
        refused to hear grounds for plea withdrawal at any time prior
        to sentencing necessitating recusal in the instant matter and
        said judge’s dismissal affirm said refusal or whether [Dixon] is
        “judge shopping[.]”

     2. Whether Judge Tesla was bias[ed] and incompetent in issuing
        an order of dismissal, which was in effect, a final order,
        before [Dixon] was given an opportunity to respond pursuant
        to Pa.R.Crim.P. 907(1) necessitating recusal in the instant
        matter or whether [Dixon] was “judge shopping[.]”

     3. Whether Judge Tesla committed further procedural error as a
        result of incompetence and bias in issuing an order dismissing
        the petition prior to [Dixon’s] response pursuant to Pa.R.A.P.
        907(a) necessitating recusal in the instant matter[.]

     4. Whether a ruling by Judge Tesla being the subject matter of
        the petition which gives rise to the instant appeal shows
        impropriety    and/or   the    appearance  of    impropriety
        necessitating recusal in the instant mater [sic] or whether
        [Dixon] is “judge shopping[.]”

     5. Whether Judge Tesla’s examination of the merits of the
        petition which effectively exercises jurisdiction over the
        petition which gives rise to the instant appeal requires the
        Court to examine[e] all merits[.]

     6. Whether an exception to the timeliness requirement under 42
        Pa.C.S.A. § 9545(b)(1) is applicable to the petition which
        gives rise to the instant appeal in that the petition contains
        facts unknown to [Dixon] in this matter and said facts could
        not have been obtained by any exercise of due diligence due
        to the fact that the Affiant clearly states that she “only
        recently” remembered the facts as having occurred as
        described in the affidavit[.]

     7. Whether an exception to the timeliness requirement under 42
        Pa.C.S.A. § 9545(b)(1) is applicable to the petition which
        gives rise to the instant appeal in that a request for a
        subpoena made by the Commonwealth was granted resulting
        in governmental interference[.]

     8. Whether due diligence could have been exercised to obtain
        the information contained in the affidavit which gave rise to

                                    -3-
J-S22026-15


           the filing of the petition due to the fact that the Affiant clearly
           states that “only recently” has she gained proper recollection
           of the contents of the affidavit[.]

      9. Whether [Dixon] demonstrated that due diligence was
         exercised in contacting the Affiant as a result of subpoenas on
         his mail and Affiant’s contact information being withheld by
         his (Appellant[’]s) appellate counsel[.]

      10. Whether the affidavit contains facts unknown to [Dixon] in
         this matter, thus invoking an exception to 42 Pa.C.S.A. §
         9545(b)(1), and whether Judge Tesla made an unreasonable
         inference in assuming what [Dixon] knew[.]

      11. Whether an evidentiary hearing is necessary to clarify the
         contents of the affidavit that is the newly-discovered evidence
         on the basis that Judge Tesla admits that he “did no[t] share
         [Dixon’s] understanding of the affidavit” and whether the
         statements in the affidavit need to be elaborated upon by way
         of an evidentiary hearing[.]

      12. Whether the court proceeded further in determining
         whether the newly-discovered evidence was exculpatory and
         other issues were previously litigated, thus exercising
         jurisdiction over the petition or whether “the court expressly
         limited its review to the timeliness of [Dixon’s] PCRA
         Petition[.]

      13. Whether [Dixon] in this matter cited Judge Tesla’s
         procedural error in dismissing the PCRA Petition by way of
         final order to demonstrate Judge Tesla’s bias and
         incompetence and whether Judge Tesla is holding [Dixon] to
         the same standards as an attorney due to [Dixon’s] failure to
         file a motion to vacate or whether [Dixon] was just citing the
         Court’s procedural error to show prejudice?

Appellant’s Brief, at iv-v.

      The PCRA court summarized the underlying facts of this case as

follows:

      On May 17, 2010 at approximately 9:26 p.m., police officers
      were dispatched to 286 Sixth Street, Ambridge, Pennsylvania in
      response to a report of a shooting at that location. Upon arrival


                                        -4-
J-S22026-15


      at the scene, officers discovered the victim, Kevin Johnson, lying
      on the sidewalk with multiple gunshot wounds to his face and
      torso. The deputy coroner later pronounced Mr. Johnson dead at
      the scene.

      While investigating the incident, Officer Alan Shaffer of the
      Ambridge Police Department interviewed Tammy Sgro, the
      individual who resided at the apartment located at 286 Sixth
      Street. Ms. Sgro informed Officer Shaffer that, earlier that night,
      [Dixon] was at her apartment repairing her door when Mr.
      Johnson arrived and asked to be let into the apartment. Ms.
      Sgro yelled from her upstairs window that Mr. Johnson would not
      be permitted to enter the apartment. Shortly thereafter, she
      heard loud banging at her apartment door followed by several
      gunshots. Ms. Sgro then ran down the stairs, looked outside,
      and observed that [Dixon] was gone and that a black male was
      lying on the sidewalk bleeding.      Ms. Sgro stated that she
      subsequently returned to her apartment and dialed 911 to report
      the incident. In addition to Ms. Sgro, the responding officers
      interviewed several other witnesses who indicated that a man
      matching [Dixon’s] description was seen running from the scene
      of the shooting, and, ultimately, he agreed to turn himself in to
      the Ambridge Police Department.

Opinion and Order, 9/16/14, at 1-2.

      At a hearing on Dixon’s first PCRA petition, Sgro testified that she and

Johnson had been in a brief relationship. N.T. PCRA Hearing, 11/16/12, at

12.   She further testified that “[Dixon] . . . showed up [the night of the

shooting] to try to help [her] fix the lock [on her front door] because [she]

was in fear of [Johnson] showing up drunk and wanting to start a fight with

[her].” Id. at 12-13.

      In an affidavit attached to the instant PCRA petition, Sgro makes the

following statements: (1) when Dixon arrived at her house, he was

accompanied by another man; (2) shortly after Dixon arrived, they went

upstairs where they “became intimate,” and in the process she disrobed him


                                      -5-
J-S22026-15



but “never was aware of any firearms,” (3) when she and Dixon were

interrupted by loud banging on the door, she “heard two other male voices

plus” Johnson’s; and (4) shortly before Dixon’s trial, his counsel told her that

she should convince Dixon to plead guilty.         Affidavit of Tamara Sgro,

6/18/14, at 1-2.       These averments are the basis for his claims of newly

discovered evidence.

        We agree with the Honorable Kim Tesla that the facts averred in the

PCRA petition and supporting affidavit were known to the petitioner or could

have been ascertained by the exercise of due diligence. Accordingly, they

do not serve as a basis for seeking relief more than one year after Dixon’s

judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1)(ii).

        After a review of Dixon’s brief,3 the relevant case law, and record on

appeal, we affirm the trial court’s order dismissing Dixon’s PCRA petition as

untimely filed based upon Judge Tesla’s Pa.R.A.P. 1925(a) opinion.          We

instruct the parties to attach a copy of Judge Tesla’s decision in the event of

further proceeding in the matter.

        Order affirmed.




____________________________________________


3
    The Commonwealth did not file an appellee’s brief.



                                           -6-
J-S22026-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2015




                          -7-
                                                                                 Circulated 04/28/2015 02:04 PM




                lN THE COURT OF COMMON PLEAS OF BEAVER COUNTY
                                  PENNSYLVANIA
                             CRrMfNAL DIVISION - LAW

COMMONWEALTH OF PENNSYLVANIA,

        vs.
                                                                             No. 1027 of2010
TEREL DIXON,

               Defendant.
Tesla, J.                                                                November§____, 2014

                                  RULE 1925(a) OPINION
        Before this Court for disposition is the petition for post-conviction collateral relief under

the Post Conviction Relief Act (hereinafter, "PCRA") filed on behalf of Defendant Terel Dixon.

For the reasons stated below, Defendant's Petition is denied.

                            FACTS AND PROCEDURAL HISTORY

        On September 17, 2014, this Court signed an Opinion and Order of Dismissal in this

case. That Order, which further specifies the prior facts and procedural history, as well as the

Court's rationale for the dismissal of Defendant's Petition, is attached to this 1925(a) opinion as

Appendix "A" and incorporated as if fully set forth herein. On October 3, 2014, Defendant filed

a notice of appeal of the Court's Opinion and Order of Dismissal, and also filed a Response to

Opinion and Order of Dismissal (hereinafter,       "Pro Se Response.") On October 24, 2014,

Defendant then also filed a Concise Statement of Matters Complained of on Appeal (hereinafter,

"Concise Statement").

                                           ANALYSIS
                                                                                                         (")
         Between his Pro Se Response and Concise Statement, Defendant appears t!hfflue ~                 fnf::
                                                                              rn Q_    o                 :DO
       .                                                                       z< <                      A~
following;                                                                     Z Cr:    I                Q   ":;:J
                                                                                    Cf)_~          u,    ,-, .
                                                                                    ·-<;   1 ·-)               rn
    1. Judge Tesla should be disqualified from Defendant's case.                    '<: c:.,
                                                                                     -..,_;
                                                                                          r ·-
                                                                                                   -o
                                                                                                   ::C
                                                                                                         OZ
                                                                                                         (_) (!)
                                                                                     z~            w     ~r-n
                                                                                     )>~           ~      az
                                                                                Circulated 04/28/2015 02:04 PM




    2. The Court erred in refusing to address the merits of the case.

    3. The Court erred in finding that Defendant's PCRA Petition was not timely filed because

        the evidence qualifies as newly discovered evidence and Defendant has exercised due

        diligence.

    4. The Court erred in finding that Defendant's PCRA Petition was not timely filed because

        the affidavit Defendant proffers is exculpatory.

    5. The Court erred in filing an Opinion and Order of Dismissal without giving the required

        Notice of Intent under Rule 907.

    6. The Court erred in dismissing Defendant's PCRA Petition because his ineffective

        assistance of counsel arguments have not been waived or previously litigated.

The Court will proceed to address each of Defendant's arguments in turn.

        1. Recusal of Judge Tesla

       Defendant argues that Judge Tesla should be disqualified from the case. Defendant has

already previously made a motion to recuse Judge Tesla on April 1, 2013. That Motion was

denied by the Court on April 4, 2014. Defendant did not appeal that decision.

       When a trial court judge is presented by a defendant with a motion to recuse himself from

the case,

       '"the judge makes an independent, self-analysis of the ability to be impartial. If
       content with that inner examination, the judge must then decide 'whether his or
       her continued involvement in the case creates an appearance of impropriety
       and/or would tend to undermine public confidence in the judiciary.' This
       assessment is a 'personal and unreviewable decision that only the jurist can
       make.' 'Once the decision is made, it is final....'

       "'This Court presumes judges of this Commonwealth are 'honorable, fair and
       competent,' and, when confronted with a recusal demand, have the ability to
       determine whether they can rule impartially and without prejudice. The party who
       asserts a trial judge must be disqualified bears the burden of producing evidence
       establishing bias, prejudice, or unfairness necessitating recusal, and the 'decision


                                                 2
                                                                                 Circulated 04/28/2015 02:04 PM




       by a judge against whom a plea of prejudice is made will not be disturbed except
       for an abuse of discretion."?

Com. v. Thomas, 615 Pa. 477, 498-99, 44 A.3d 12, 24 (2012) (quoting Com v. Druce. 577 Pa.

581, 848 A.2d 104, 108 (2004)).

       "The mere participation by the presiding judge in an earlier stage of the proceeding

neither suggests the existence of actual impropriety nor provides a basis for a finding of the

appearance of impropriety." Com. v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252 (1982) (citing

U.S. v. Lowrey, 77 F.Supp. 301 (E.D.Pa.1948) affirmed 172 F.2d 226 (1949)). "In addition, we

have concluded that, in general, it is preferable for the judge who presided at trial to preside over

any post-conviction proceedings because his or her familiarity with the case will likely assist the

proper administration of justice." Com. v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 319 (2011).

       This Court does not believe recusal is either necessary or appropriate in this case, and

Defendant has failed to meet his burden to prove bias, prejudice, or unfairness necessitating

recusal. Defendant's argument for recusal is based solely on Judge Tesla's familiarity with the

case from having presided over it, and Defendant's dissatisfaction with the results of his guilty

plea. In essence, Defendant seeks to begin a process in which he can obtain a more favorable

outcome from a judge less acquainted with the case.

       "Judge shopping has been universally condemned, and will not be tolerated at any stage

of the proceedings. Thus, where fabricated, frivolous or scunilous charges are raised against the

presiding judge during the course of the proceeding, the court may summarily dismiss those

objections without hearing where the judge is satisfied that the complaint is wholly without

foundation." Mun. Publications. Inc. v. Court of Common Pleas of Philadelphia Cnty., 507 Pa.

194, 202, 489 A.2d 1286, 1289-90 (1985) (external citations omitted).




                                                 3
                                                                               Circulated 04/28/2015 02:04 PM




       Because Defendant has failed to meet his burden of proof, because the law favors that the

previously presiding judge continue to preside over post-conviction proceedings, and because

Defendant's arguments are a frivolous attempt at "judge-shopping," his first argument is denied.

       2. Merits of the Case

       Defendant argues that because the Court addressed some of the merits in its Opinion and

Order of Dismissal that the Court must then hear all of the merits. This argument plainly

misapprehends the Court's Opinion and Order, which clearly stated in the final paragraph and

second footnote that the merits of the case were not, and indeed could not, be reached due to the

untimeliness of the Petition and the absence of jurisdiction. For the reasons stated in the Court's

Opinion and Order of Dismissal, Defendant's second argument is denied.

       3. Timeliness of Defendant's PCRA Petition

       In his Pro Se Response and Concise Statement of Matters Complained of on Appeal,

Defendant's argues that a key fact in Ms. Sgro's Affidavit was unaddressed by the Court in

considering the after-discovered evidence exception under 42 Pa.C.S.A. § 9545(b)(l )(ii).

Defendant refers specifically to Ms. Sgro's statement regarding the presence of a second lighter-

skinned male. Defendant asserts, "There is nothing in Sgro's affidavit nor any other evidence in

possession of the court that even suggests that Appellant was aware of the presence of a second

male." As with his previous arguments, the Court believes that Defendant mistakes Ms. Sgro's

affidavit. What she states is that "Mr. Dixon did arrive at the residence with another male" and

that she "allowed both men to enter" her home. If Ms. Sgro's affidavit upon which Defendant

relies is to be believed, then Defendant also at that time would have known of the existence and

presence of this other male, because he came to her residence with him and both were allowed

inside. See, e.g., Com. v. Johnson, 2008 Pa.Super. 26, 945 A.2d 185, 190-91 (2008) (proffer of



                                                4
                                                                                Circulated 04/28/2015 02:04 PM




testimony of new witnesses to facts which were already known to Defendant does not satisfy

requirements of exception under section 9545(b )(1 )(ii)). Therefore these facts, if true, would not

have been unknown to Defendant or unascertainable by him by the exercise of due diligence. Id.

       In relation to this argument, Defendant appears to claim that his mail was under subpoena

by the District Attorney's office, and that this somehow interfered with his ability to exercise due

diligence in his learning of the facts contained in Ms. Sgro's affidavit. It is unclear to the Court

precisely what Defendant is arguing with regard to his mail. He provides no evidence on this

alleged matter and his argument in this respect is not well developed. Regardless, the facts in Ms.

Sgro's affidavit upon which Defendant relies would, as previously explained, already have been

known to Defendant because he would have been present when the alleged facts occurred.

Further, as Defendant himself recognizes in his Pro Se Response, Ms. Sgro was available and

testified at Defendant's earlier PCRA evidentiary hearing in 2012. Thus Defendant has plainly

had the opportunity to not only contact Ms. Sgro, but to even examine her under oath.

       Although omitted from his Concise Statement, in his Pro Se Response Defendant also

attempted to further clarify his position by arguing that the exception for timeliness under 42

Pa.C.S.A. § 9545(b)(l)(i) applies to his case because his PCRA counsel, Dirk Goodwald, did not

provide him with Ms. Sgro's contact information.

       (b) Time for filing petition.--
       (]) 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:
       (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 Jaws of the
       United States;

       (4) For purposes of this subchapter, "government officials" shall not include
       defense counsel, whether appointed or retained.



                                                5
                                                                                    Circulated 04/28/2015 02:04 PM




42 Pa.C.S.A. § 9545(b) (emphasis added).

        Because Dirk Goodwald was Defendant's                counsel, the exception to the timeliness

requirement under 42 Pa.C.S.A.    § 9545(b)(l)(i)       does not apply. ld.; Com. v. Crews, 581 Pa. 45,

53, 863 A.2d 498, 503 (2004) ("[I]t is well settled that the alleged ineffectiveness of all prior

counsel, including first PCRA counsel,       does not fall within the governmental interference

exception."). Therefore, Defendant's Petition is not timely under 42 Pa.C.S.A. § 9545(b)(l)(i).

        For these reasons and those stated in the Court's Opinion and Order of Dismissal,            the

Court remains unconvinced, and finds that the Defendant, even by his further clarification and

additional arguments, has failed to prove that the facts upon which he rests his Petition were

either unknown to him, or that they could not have been ascertained by exercising due diligence.

See 42 Pa.C.S.A. § 9545(b)(l )(ii). The Court further finds no evidence of any interference by

government officials with the presentation of his claim. See 42 Pa.C.S.A. § 9545(b)(1 )(i).

Defendant's third argument is therefore denied.

       4. WhetherAffidavit Profferedby Defendant is Exculpatory

       Defendant next argues that the Court denied his PCRA Petition on the basis that the

evidence he presented was not exculpatory. Again, Defendant misapprehends the Court's

opinion. In its Opinion and Order of Dismissal, the Court noted Defendant's confusion over the

difference between after-discovered evidence and exculpatory evidence, and stated in its first

footnote that "for purposes of whether this Petition is timely or not, the question is not whether

the proffered evidence is exculpatory, but whether the facts were unknown and could not have

been ascertained by the exercise of due diligence."

       Defendant argued in his PCRA Petition that the affidavit of Ms. Sgro was exculpatory

and thus provided new evidence. In addressing this argument, the Court simply noted that it did



                                                    6
                                                                                   Circulated 04/28/2015 02:04 PM




not share Defendant's understanding of the affidavit or find that it was evidence meeting the

requirements of section 9545(b )(1 )(ii). As stated previously, due to jurisdictional   limitations, the

Court expressly limited its review to the timeliness of Defendant's PCRA Petition and, finding it

untimely, proceeded no further.

        For these reasons and those stated m the Court's Opinion and Order of Dismissal,

Defendant's fourth argument is denied.

5. The Court Failed to File a Notice of Intention to Dismiss Without a Hearing.

        Defendant argues that the Court failed to follow correct criminal procedure in dismissing

his PCRA Petition without first filing a Notice of Intent to Dismiss. The Court dismissed the

instant PCRA Petition for lack of jurisdiction because of the evident timeliness bar discussed

therein. Defendant takes issue in his Pro Se Response and Concise Statement that the PCRA

Petition was dismissed without first filing a Notice of Intention to Dismiss, citing Pa.R.Crim.P.

907.

       Nevertheless, Defendant has proceeded to file his fro Se Response and Notice of Appeal

of the Court's order. In his Pro Se Response, Defendant argues that the Court's Opinion and

Order of Dismissal should be treated as the Notice oflntention to Dismiss required by Rule 907,

and that his Pro Se Response must be considered by the Court. The Court notes its procedural

error. It also notes Defendant's decision to proceed by filing his Pro Se Response, Notice of

Appeal, and Concise Statement, rather than filing a Motion to Vacate due to the proper Notice of

Intention to Dismiss not being filed.

       Although the language of the rule appears mandatory, strict compliance with Rule 907

may not be necessary where the Defendant has not been prejudiced. Compare Com. v. Bond, 428

Pa.Super. 344, 349, 630 A.2d 128 I, 1283 (1993) (strict compliance unnecessary where defendant



                                                  7
                                                                               Circulated 04/28/2015 02:04 PM




has not been prejudiced), with Com. v. Feighery, 443 Pa.Super. 327, 330, 661 A.2d 437, 439

(1995) ( distinguishing Bond and requiring strict compliance where Defendant has been

prejudiced). See also Com. v. Pursell, 561 Pa. 214, 225, 749 A.2d 911, 917, n.7 (2000) (no relief

available where PCRA petition dismissed without hearing or filing of a Notice of Intention to

Dismiss because PCRA Petition was untimely and trial court therefore had no jurisdiction).

        In this case, rather than vacating its prior Opinion and Order and then filing the required

Notice of Intention to Dismiss, which would serve no purpose other than to further delay

Defendant's petition as he has already filed his Notice of Appeal of the Court's prior Order and

submitted his Pro Se Response and Concise Statement, the Court instead believes it best to

proceed as Defendant has requested in his Pro Se Response, addressing his additional arguments

stated therein within this 1925(a) Opinion. The chief reason for Rule 907 is to allow the

defendant a chance to respond to the court. See Pa.R.Crim.P. 907 ("The defendant may respond

to the proposed dismissal within 20 days of the date of the notice."); Com. v. Hopfer, 2009

Pa.Super. 16, 965 A.2d 270, 275 (2009) (vacating dismissal of PCRA Petition and remanding to

PCRA court to allow defendant to file response where defendant was deprived of opportunity to

respond to Notice of Intent to Dismiss). That purpose is fulfilled in this case by proceeding in

this manner.

       Although the Notice of Intent required by Rule 907 was not filed in this case prior to

dismissing the PCRA Petition without a hearing, Defendant has suffered no prejudice as he has

in fact responded and his response is now considered by the Court. See Bond, 428 Pa.Super. at

349, 630 A.2d at 1283; Pursell, 561 Pa. at 225, 749 A.2d at 917, n.7. By recognizing the error

and considering Defendant's responses, the Court has sought to apply the remedy employed in

Hopfer at this earlier stage in the proceedings, thus protecting Defendant's right to respond and



                                                8
                                                                               Circulated 04/28/2015 02:04 PM




be heard by the Court, preventing any other potential prejudice or future delay that might occur

by proceeding otherwise under these circumstances, and also fulfilling the purpose of Rule 907.

See Hopfer, 2009 Pa.Super. 16, 965 A.2d at 275.

         Finally, it appears to the Court that Defendant, through his Pro Se Response which

requests on the first page under the third numbered paragraph that the Court's Opinion and Order

of Dismissal be treated as a Notice oflntent to Dismiss, has waived the requirements of Rule 907

on the condition that his Pro Se Response is considered by the Court. Defendant's Pro Se

Response, Notice of Appeal, and Concise Statement have all been taken into account by the

Court in this opinion. Therefore, the Court also finds that Defendant has waived the procedural

error.

         Because Defendant has suffered no prejudice, because the Court has applied the proper

remedy by addressing Defendant's Pro Se Response and Concise Statement within this opinion,

and because Defendant has waived the Rule 907 requirements in his Pro Se Response,

Defendant's fifth argument is denied.

         6. Ineffective Assistance of Counsel

         Defendant's final argument is that he should be allowed to present additional arguments

for ineffective assistance of counsel. As stated before in its Opinion and Order of Dismissal, the

timeliness bar cannot be circumvented simply by presenting issues in terms of ineffective

assistance of counsel. See, e.g., Com. v. Edmiston, 619 Pa. 549, 565-66, 65 A.3d 339, 349 (2013)

cert. denied, 134 S.Ct. 639, 187 L.Ed.2d 423 (U.S. 2013) ("[W]e note that we have previously

rejected attempts to circumvent the timeliness requirements of the PCRA by asserting prior

counsel's ineffectiveness for failing timely to raise a claim. As we have explained, the nature of

the constitutional violations alleged has no effect on the application of the PCRA time bar.



                                                9
                                                                                  Circulated 04/28/2015 02:04 PM




Rather, the only cognizable exceptions are set forth at Section 9545(b )(1 ). ") ( citations omitted).

Because Defendant's PCRA petition is untimely, the Court has no jurisdiction to consider

Defendant's arguments relating to ineffective assistance of counsel. Defendant's sixth argument

is therefore denied.

                                          CONCLUSION

       For the aforementioned reasons, Defendant's appeal should be denied.



                                                              BY THE COURT




                                                                                                                 J.
                                                                                                 -        '--'


                                                                                c., ::-:;:            .   -,
                                                                                c:- .            I
                                                                               ; .:: --·:
                                                                               :.:-)f';j      (;f
                                                                               r··,<.l,              G
                                                                                   r-                C:)
                                                                                   J>                c:
                                                                                                     ~
                                                                                                     -,
                                                                                             0
                                                                                             (..fl




            _   :.




                                                 10
                                 Circulated 04/28/2015 02:04 PM




      APPENDIX "A"

Opinion and Order of Dismissal
                                                                                        Circulated 04/28/2015 02:04 PM




                IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY
                                 PENNSYLVANIA
                            CRIMINAL DIVISION - LAW

COMMONWEALTH OF PENNSYLVANIA,

        vs.
                                                                            No. 1027 of2010
TEREL DIXON,

               Defendant.
Tesla, J.                                                                 September/~     2014

                      OPINION AND ORDER OF DISMISSAL

        Bei>re this Court for disposition is the Petition for Post-Conviction Collateral Relief

under the Post Conviction Relief Act (hereinafter, "PCRA") filed on behalf of Defendant Terel

Dixon. For the reasons stated below, Defendant's Petition is dismissed.

                            FACTS AND PROCEDURAL HISTORY

        On May 17, 2010 at approximately 9:26 p.m., police officers were dispatched to 286

Sixth Street, Ambridge, Pennsylvania in response to a report of a shooting at that location. Upon

arrival at the scene, officers discovered the victim, Kevin Johnson, lying on the sidewalk with

multiple gunshot wounds to his face and torso. The deputy coroner later pronounced Mr. Johnson

dead at the scene.

        While investigating the incident, Officer Alan Shaffer of the Ambridge Police

Department interviewed Tammy Sgro, the individual who resided in the apartment located at 286

Sixth Street. Ms. Sgro informed Officer Shaffer that, earlier that night, Defendant was at her

apartment repairing her door when Mr. Johnson arrived and asked to be let into the apartment.

Ms. Sgro yelled from her upstairs window to Mr. Johnson that be would not be permitted to enter

the apartment. Shortly thereafter, she beard loud banging at her apartment door followed by

several gun shots. Ms. Sgro then ran down the stairs, looked outside, and observed that
                                                                                      Circulated 04/28/2015 02:04 PM




Defendant was gone and that a black male was lying on the sidewalk bleeding. Ms. Sgro stated

that she subsequently returned to her apartment and dialed 911 to report the incident. In addition

to Ms. Sgro, the responding officers interviewed several other witnesses who indicated that a

man matching Defendant's description was seen running from the scene of the shooting. Based

on this information, Defendant   was identified as a suspect in the shooting, and, ultimately, he

agreed to turn himself into the Ambridge Police Department.

       On May 18, 2010, a CriminaJ Complaint was filed against Defendant, charging him with

one count of criminal homicide under 18 Pa.C.S.A. § 250l(a), one count of firearms not to be

carried without a license under 18 Pa.C.S.A. § 6106(a), and two counts of recklessly endangering

another person under 18 Pa.C.S.A. § 2705. On August 5, 2011, Defendant pled guilty to third

degree murder and was sentenced on August 12, 2011 to a term of imprisonment of twelve to

thirty years. On February 9, 2012, Defendant filed a Motion to Modify and Reduce Sentence. On

February 21, 2012, this Court entered a Memorandum Opinion and Order dismissing

Defendant's Motion to Modify and Reduce Sentence, denying his Request for Transcripts, and

granting Defendant's Application for Assignment of Counsel by appointing the Public

Defender's Office to represent Defendant.

       On June 27, 2012, Defendant filed a prose Motion for Post Conviction Collateral Relief.

On August 16, 2012, the Deputy Public Defender filed an Amended Petition for Post Conviction

Relief on behalf of Defendant. Following a hearing on November 16, 2012, the Court entered an

Order denying Defendant's Petitions. On December 17, 2012, Defendant filed an Appeal with

the Superior Court. Defendant was directed to file a Rule 1925(b) Statement, which be submitted

on January 8, 2013. On August 20, 2013, the Superior Court affirmed this Court's denial of

Defendant's Petitions. On November 21, 2013, Defendant filed a Petition for Allowance of



                                                2
                                                                                      Circulated 04/28/2015 02:04 PM




 Appeal to the Supreme Court of Pennsylvania. On May 6, 2014, Defendant's Petition for

Allowance of Appeal was denied.

        In addition to his Petition for Allowance of Appeal, on November 18, 2013, Defendant

also filed an Application for Leave to File Original Process and a Writ of Mandamus with the

Supreme Court of Pennsylvania in Terel Dixon v. Nicholas Corsetti, Hon. Mary Bowes, Hon.

Sally Mundy, Hon. Robert E. Colville, No. 82 WM 2013. On February 5, 2014, the Supreme

Court entered an order denying Defendant's Writ, and also directing the Prothoootary to strike

the names of the jurists from the caption.

        On December 18, 2013, before his Petition for AJlowance of Appeal to the Supreme

Court had been resolved, Defendant mailed a second pro se PCRA Petition to the District

Attorney's office. On May 13, 2014, after his Petition for Allowance of Appeal had been denied,

Defendant filed a Motion with this Court to compel District Attorney Anthony Berosh to submit

the mailed PCRA Petition on his behalf. On May 22, 2014, this Motion was denied because it

was not filed with the Clerk of the Court and could not have been pursued anyway while

Defendant's Petition for Allowance of Appeal with the Supreme Court for his first PCRA

Petition was pending. On June 4, 2014, Defendant filed a Notice of Appeal with the Superior

Court regarding this Court's denial of his Motioo to Compel, in which Defendant also sought the

recusal of Judge Tesla. On August 13, 2014, Defendant filed a 1925(b) Concise Statement. On

August 15, 2014, this Court filed its I925(a) Opinion and Order. On August 18, 2014, Defendant

then filed this instant third PCRA Petition with this Court.

                                             ANALYSIS

        Before proceeding to any of the potential merits of Defendant's argument, this Court

must first detennine whether Defendant's instant PCRA Petition is timely filed. If it is not, then



                                                 3
                                                                                        Circulated 04/28/2015 02:04 PM




this Court does not have jurisdiction to consider Defendant's Petition, and the Petition must be

dismissed. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (citing Commonwealth v. Fahy.

558 Pa. 313, 737 A.2d 214 (1999)) ("PCRA time limits are jurisdictional in nature, implicating a

court's very power to adjudicate a controversy.").

        Any petition for PCRA relief, "including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final," unless the Defendant alleges and proves

that one of three enumerated exceptions applies. 42 Pa.C.S.A. § 954S(bXl) ... 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." 42 Pa.C.S.A. § 9S45(b)(2). A notice of appeal must be filed within 30

days, after which an appeUate court no longer has jurisdiction to hear the case. Commonwealth v.

Bey, 437 Pa. 134, 136, 262 A.2d 144, 145 (1970); PaR.A.P. 903.

        In this case, Defendant was sentenced on August 12, 201 I. Defendant never filed a direct

appeal and did not file a post-sentence motion within ten days of the date of his sentence, but

rather filed a post-sentence motion to modify his sentence on February 9, 2012, almost six

months later. This motion was dismissed as untimely. The Court's order therefore became final

for PCRA purposes thirty days after the August 12, 2011 sentencing date. See. e.g..

Commonwealth v. Concordi~ 2014 Pa. Super. 155 (2014) ("Appellee's sentence became final

for purposes of the PCRA statute thirty days after the entry of his sentence since he did not file a

direct appeal.").

        Because this date would have fallen on a Sunday, September 11, 2011, the actual final

day would have been Monday, September 12, 2011. See id.; l PaC.S.A. § 1908. Defendant

therefore had until Wednesday, September 12, 2012 in which to file all PCRA petitions, unless



                                                 4
                                                                                                          Circulated 04/28/2015 02:04 PM




one of the statutory exceptions         applies. 41 PaC.S.A.       § 9545(b). Defendant did previously file a

timely PCRA petition on June 27, 2012, making the present petition a subsequent PCRA petition

for purposes of 42 PaC.S.A. § 9545(b). See Commonwealth v. DiVentura, 1999 Pa. Super. 124,

734 A.2d 397, 399 (1999). Because the present Petition was filed on August 18, 2014, almost

two years after the September 12, 2011 deadline, the Petition is untimely and this Court has no

jurisdiction to consider the Petition unless one of the enumerated exceptions under 41 Pa.C.S.A.

§ 9545(b) is satisfied. See id., 1999 Pa. Super. 124, 734 A.2d at 399-400.

         Defendant argues that his Petition is timely under 42 Pa.C.S.A. § 9545(b)(ii),1 alleging

ineffective assistance of counsel in relation to facts previously unknown to him in the fonn of a

new affidavit by Ms. Tamara Sgro. In order to invoke this exception to the general one year

timeliness requirement, Defendant must raise the issue within 60 sixty days of the date the claim

could have been presented. 42 Pa.C.S.A. § 9545(b)(2). The affidavit to which Defendant refers is

dated June 18, 2014, a Saturday. The Petition with the attached affidavit was filed with the Court

on August 18, 2014, and thus satisfies the 60 day requirement, if Defendant can satisfy his

burden of proof that his "claim is predicated on facts [that] were unknown to the petitioner and

could not have been ascertained by the exercise of due diligence ....                           " 42 Pa.C.S.A. §

9545(b)(l)(ii); Commonwealth v. Beasly, 559 Pa 604, 741 A.2d 1268, 1261·21 (1999). "Due

diligence demands that the petitioner talce reasonable steps to protect bis own interests. A

petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of



I After COITCCtly citing in his first paragraph this section as being the one relevant to whether his Petition is timely
filed, at later points throughout his pro se Petition Defendant appears to conflate 42 Pa.C.S.A. § 9S4S(b)(l)(ii),
which requires that "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 .... " with 42 Pa.C.S.A. § 9S43(a)(2)(vi), which concerns the
unavailability of excu1patory evidence at the time of triaJ and which is relevant not to timeliness but to whether a
petitioner bas plead and proved an issue for which relief may be granted under the PCRA. Thus, for purposes of
whether this Petition is timely or not, the question is not whether the proffered evidence is exculpatory, but whether
the facts were unknown and could not have been asccnained by the exercise of due diligcncc. l!L at § 9S4S(b)( I )(ii).

                                                           5
                                                                                       Circulated 04/28/2015 02:04 PM




 due diligence. This rule is strictly enforced." Commonwealth v. Medin!!, 2014 Pa. Super. 108, 92

 A.3d 1210, 1216 (2014) (citing Commonwealth y. William§. 35 A.3d44, 53 (Pa. Super. 2011)).

        Defendant states, "All prior evidence corroborates Sgro's affidavit as Sgro bas never

claimed to have seen the actual shooting of Mr. Johnson nor has Sgro testified at any pre-trial

proceeding or the trial itself." In this Defendant is correct. The Affidavit of Ms. Sgro which he

presents is consistent with her prior statements to the police as evidenced in the Affidavit of

Probable cause contained within the Criminal Complaint, which was filed and docketed with the

Beaver County Clerk of Courts, and was thus a public record. See Commonwealth v. Taylor, 620

Pa. 429, 435, 67 A.3d 1245, 1248 (2013) cert. denied, T~lor v. Pennsylvania. 134 S.Ct. 2695

(2014) ("This Court has found matters of public record are not unknown.").

       In both her prior statement to police and her present affidavit, Ms. Sgro claims that

Defendant came to her apartment to fix her door; that the victim, Mr. Johnson, came banging on

the door, that she instructed Mr. Johnson to leave; that Defendant had then gone; that she then

came down the steps; and that when she came downstairs, and found the body of Mr. Johnson on

the ground, she then proceeded to call 911. Although it is unclear to this Court exactly what Ms.

Sgro believes she is now remembering differently, it is clear that the facts she averred to on June

18, 2014 in her affidavit appear no different from those which she provided to the police on May

17, 2010 as contained within the Affidavit of Probable Cause. Thus, Defendant presents no

relevant new or unknown facts.

       Nevertheless, Defendant argues that "[t]he unknown fact upon which this petition is

predicated is Sgro's awareness of Mr. Dixon's innocence." In this, Defendant is mistaken. At no

place in Ms. Sgro's affidavit does she exonerate Defendant, nor is her affidavit particularly

exculpatory. In fact, as she did in 2010, she consistently places Defendant at the time and place



                                                6
                                                                                       Circulated 04/28/2015 02:04 PM




 of the murder, and as having fled the scene. Ms. Sgro does aver to becoming intimate with

Defendant, completely disrobing him, and not being aware of any fireanns. Whether Ms. Sgro

did or did not remove aJI of Defendant's clothes, and whether Defendant did or did not have a

firearm in his immediate possession at that precise moment, these would surely have been facts

that Defendant would not have been unaware of. Given their averred intimate relationship, there

aJso appears to be no reason why Defendant himself could not have previously contacted Ms.

Sgro to learn what she knew. Therefore, even if Defendant was actually unaware of what Ms.

Sgro knew, he has not met his burden of proof to show that he bas exercised due diligence to

learn. See Medina. 2014 Pa. Super. 108, 92 A.3d at 1216.

       Ultimately, Defendant has not met his burden of proof that any of the facts in Ms. Sgro's

affidavit were either unknown to him or that they could not have been ascertained by exercising

due diligence. Nor does Defendant's framing of the issue in terms of ineffective assistance of

counsel alter the analysis. See Commonwealth v. Lesko, 609 Pa. 128, 165, 15 A.3d 345, 367

(2011) ("[IJt is well established that the fact that a petitioner's claims are couched in tenns of

ineffectiveness will not save an otherwise untimely petition from the application of the time

restrictions of the PCRA.").

       Because the facts alleged in the affidavit are essentially no different than those contained

in the Affidavit of Probable Cause from the original Criminal Complaint,     and because there are

no facts alleged and proven in Defendant's Petition which were unknown to him or which he

could not have discovered by exercising due diligence, Defendant has not met his burden of

proof under 41 Pa.C.S.A. § 9545(b)(l)(ii). Finally, Defendant does not allege, nor does this

Court find, that his Petition is timely under either of the other two exceptions under 41 Pa.C.S.A.




                                                 7
                                                                                                                   Circulated 04/28/2015 02:04 PM




            § 954S(b)(l). Therefore; Defendant's Petition has not been timely filed and this Court has no

         jurisdiction to otherwise consider Defendant's Pctition.2

                                                          CONCLUSION

                       AND NOW, to wit, this /      "1',    day of September, 2014, upon considering Defendant's

            Post-Conviction Relief Act Petition, it is hereby ordered for the aforementioned reasons that

            Defendant's Petition is hereby DISMISSED. Defendant has the right to appeal this Order to the

            Superior Court of Pennsylvania within thirty (30) days of the date of this Order in accordance

         with Rule 908(E) of the Pennsylvania Rules of Criminal Procedure.



                                                                                   BY THE COURT,

     •y')
                (")
 7\'-·
 ; ...... -
                .::r     >-
... ·.          M
                         -s;
   .. ~                   Zz
 .. '..         x:        =2:5(
                         .. }>,
                a...        . __,
                            . >-                                                                                             J.
                \D          -o»                                                                                   .......
                          -z                                                                                      c~
·- .:1-         c,       ~z
                         ~UJ
                                                                                                                  .=               ..
                                                                                                                                  " .
~c:             u.J
                en       uJo...                                                                                   (,')
                                                                                                                  r:,
                                                                                                                                  -<
::)~
....,0          J        rn                                                                            '--~       -0
                                                                                                       c:·-                       ......
                                                                                                       c::;;--.                   r-1
                                                                                                       C)('rt
                                                                                                                  er
                                                                                                                                  <,
                                                                                                       r:,(I)                     C)
                                                                                                            r      1J             c
                                                                                                            »      r;-.,:>
                                                                                                                                  :::::,
                                                                                                                                  -;

                                                                                                                   z:
                                                                                                                   0




        2 Although not reaching the merits of Defendant's Petition because of the absence of jurisdiction, to the extent
        Defendant in his Petition argues that counsel was ineffective for not presenting alternative theories, for failing to file
        post-sentence motions, or that his guilty plea was involuntary, these issues have already been previously litigated
        and resolved against him on appeal in Case No. 1987 WDA 2012, and so cannot be relitigated. 42 Pa.C.S.A. §
        9S43(a}. To the extent Defendant in bis Petition argues that the evidence against him was not sufficient, Defendant
        also waived this ar&UJDCDt by entering a ·knowing, intelligent, and voluntary guilty plea. See Commonwealth v.
        Rounsley, 717 A.2d 537, 538-39 (Pa. Super. 1998} (..It is well established that any issue n:laling to sufficiency of
        the evidence is waived by entry of a guilty plea and is not subjut to anack in a post conviction proceeding."}.


                                                                    8
