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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

VINCENT THOMAS

                         Appellant                   No. 497 EDA 2015


               Appeal from the PCRA Order January 14, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP--23-CR-0006924-1981
                           CP-23-CR-0006925-1981


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                           FILED OCTOBER 09, 2015

      Vincent Thomas appeals pro se from the order entered in the Court of

Common Pleas of Delaware County, on January 14, 2015, denying him relief

on his serial petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. § 9541 et seq. The PCRA court determined it had no jurisdiction

to address the merits of Thomas’ claim as his petition was untimely and

none of the statutory exceptions applied.    Thomas argues the PCRA court

erred in failing to grant him an evidentiary hearing as he had presented a

prima facie claim he was entitled to the after discovered evidence exception.

Following a thorough review of the submissions by the parties, relevant law,

and the certified record, we affirm.

      In 1982, Thomas was convicted on multiple counts of rape, involuntary

deviate sexual intercourse, and related charges.        Thomas received an
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aggregate sentence of 18 to 60 years’ incarceration.     Prior to sentencing,

Thomas received a mental health evaluation from Dr. John K. Fong, D.O.

Dr. Fong’s report indicated he believed Thomas would benefit from

psychiatric treatment and posed a risk to reoffend.

     Thomas obtained no relief in his direct appeal or in any of his several

prior PCRA petitions. On February 4, 2014, Thomas filed the instant PCRA

petition claiming he had recently discovered that Dr. Fong was not a licensed

psychologist and, therefore, was unqualified to render an opinion about his

mental state. The PCRA court considered this argument but concluded that

Thomas had not explained why this previously unknown fact, which was in

the public record, could not have been discovered at any time in Thomas’

prior 30 plus years of incarceration.   Accordingly, the PCRA court denied

Thomas’ petition as untimely.

     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:




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        (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).

     Further,

     Our standard of review for an order denying post-conviction
     relief is whether the record supports the PCRA court's
     determination and whether the PCRA court's determination is
     free of legal error. The PCRA court's findings will not be
     disturbed unless there is no support for the findings in the
     certified record.

Commonwealth v. Perzel, 116 A.3d 670, 671 (Pa. Super. 2015) (citation

omitted).




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      There is no dispute that Thomas was originally convicted and

sentenced in 1982 and that his judgment of sentence became final in June,

1984, when time expired for Thomas to seek review by the Pennsylvania

Supreme Court.    Accordingly, Thomas had until June 1985 to file a timely

PCRA petition. Therefore, this petition is facially untimely by more than 29

years.   However, as noted, Thomas claims that he is entitled to the

application of the timeliness exception found at section 9454(b)(1)(ii),

regarding newly discovered facts.      Thomas claims that by letter dated

December 6, 2013, the State Board of Psychiatry informed him that John K.

Fong, D.O., was not a licensed psychologist, but was a licensed osteopathic

physician (D.O.). Prior to sentencing in 1982, Dr. Fong had conducted the

mental health evaluation for Thomas’ pre-sentence report.

      The PCRA court rejected Thomas’ assertion, noting that Thomas had

not explained,

      why he could not have obtained this purported newly discovered
      evidence in the many years that followed his sentence … The
      information regarding Dr. Fong’s credentials that [Thomas’]
      claims are “newly discovered facts” were of public record and
      could have been discovered by [Thomas] through the exercise of
      due diligence prior to the filing of his current PCRA [petition].

PCRA Court Opinion, 5/15/2015, at 4-5.

      Our review of this matter confirms the certified record supports this

determination.   The information from the State Board of Psychiatry was

available upon request. Accordingly, the PCRA court’s legal conclusion that

Thomas’ petition is untimely is free from error.


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     Additionally, we note that in reviewing Dr. Fong’s letter-report, he

never claimed to have been a licensed psychologist.    The letter-report is

signed by “John K. Fong, D.O., Psychiatric Consultant”. See Letter-Report,

July 30, 1982.    The alleged newly discovered fact that Dr. Fong was an

osteopathic physician and not a licensed psychologist is evident from the

1982 Letter Report itself. Accordingly, the 2013 letter to Thomas from the

State Board of Psychology is nothing more than a reiteration of a fact made

known to Thomas and his counsel in 1982.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2015




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