J-A15038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JAMES GRAHAM                               :
                                               :
                       Appellant               :      No. 2781 EDA 2019

            Appeal from the PCRA Order Entered September 5, 2019
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010428-2007


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

MEMORANDUM BY KING, J.:                                   FILED JULY 08, 2020

        Appellant, James Graham, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his third petition

filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The PCRA court set forth the underlying facts of this case as follows:

           On March 12, 2007, at approximately two o’clock p.m., a
           group of basketball players arrived at Dickinson Square
           Park, a neighborhood park with a basketball court, a
           recreation center, and a playground, surrounded by 3rd
           Street, 4th Street, Morris Street, and Tasker Street. George
           Ocasio (“Ocasio”) and Justin Davis (“Davis”) arrived in
           Ocasio’s white Mercury Sable and parked on Morris Street.
           Mark Wilson (“Wilson”), David Stokes (“Stokes”), Terrell
           Drummond (“Drummond”), and Hughes arrived together in
           Wilson’s silver Oldsmobile Intrigue. They parked directly
           behind Ocasio’s car on Morris Street. William Duncan
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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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       (“Duncan”) parked his blue Grand Marquis directly behind
       Wilson’s car.

       Duncan, Ocasio, and Davis were from 5th Street and played
       for one team. Stokes, Drummond, and Wilson were from
       7th Street and played for the other team. Most of the players
       had known each other for years. Each team bet $300 on
       the game.

       Markel White (“White”), [Appellant], and [Appellant’s]
       brother, Kareem Graham (“Kareem”), all from 5th Street, sat
       next to the basketball court and watched the game, along
       with Hughes from 7th Street. There were many other people
       in the park at that time as well—some watching the game,
       others playing on the playground.

       The game went on for approximately twenty minutes until a
       foul call started an argument between the two teams.
       Stokes and [Appellant] were verbally arguing when Stokes
       asked Hughes to pass him his gun. When Hughes passed
       Stokes a gun, people began to leave the basketball court.
       Stokes, Hughes, and Drummond walked back to Wilson’s
       Oldsmobile. Stokes entered the passenger seat, while the
       other two men sat in the backseat, Hughes behind the driver
       seat, and Drummond behind the passenger seat.

       From approximately 50-55 yards away from the car, on a
       pathway in Dickinson Square Park, [Appellant] pulled out a
       gun, aimed it with two hands at the Oldsmobile and fired
       twice at the car. Two fired cartridge casings were found on
       the pathway where witnesses placed [Appellant].

       One of the shots went through the glass window of the
       Oldsmobile and hit Hughes in his head. He was taken to the
       hospital and on March 13, 2007, he was pronounced dead
       as a result of this gunshot wound. The Medical Examiner
       did find stippling on Hughes’ face which he testified could be
       a result of a close range shot or due to the shattered car
       window glass.

       On March 13, 2007, March 15, 2007, and March 19, 2007,
       respectively, Duncan, White, and Davis gave statements to
       detectives identifying [Appellant] as the shooter.


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           On March 16, 2007, an arrest warrant was issued for
           [Appellant] and the Fugitive Squad went to his house that
           morning at 6 a.m. When the police saw a man fitting
           [Appellant’s] description, he showed them identification
           with the name “Malik Lamore Graham” and claimed that he
           was [Appellant’s] brother.          However, when police
           investigated further, this man was in fact [Appellant]
           himself. He was arrested at this time. On May 17, 2007,
           Kareem, [Appellant’s] brother, told a social worker at his
           juvenile detention facility that he had witnessed his brother
           murder someone.        The social worker called Homicide
           Headquarters and Kareem gave a statement identifying
           [Appellant] as the shooter on March 12.

(PCRA Court Opinion, filed September 5, 2019, at 2-3) (citations omitted).

      Appellant initially proceeded to a jury trial in 2008, which resulted in a

hung jury. Following a second trial, a jury convicted Appellant on May 11,

2009, of third-degree murder and possessing instruments of crime. This Court

affirmed Appellant’s judgment of sentence on October 8, 2010 (see

Commonwealth v. Graham, 15 A.3d 520 (Pa.Super. 2010) (unpublished

memorandum)), and our Supreme Court denied allowance of appeal on March

8, 2011.

      Between 2011 and 2018, Appellant unsuccessfully litigated two PCRA

petitions.   On July 2, 2019, Appellant filed the current pro se third PCRA

petition. In his petition, Appellant alleged that on June 27, 2019, he became

aware of a newspaper article in the Philadelphia Daily News, dated May 7,

2019, titled: “Tour De Fourth!” The article discusses how a defendant in a

separate, unrelated case was acquitted after a fourth trial. The article details

how that defendant’s case was helped by “the mounting credibility problems


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of a former Philadelphia homicide detective, James Pitts, who worked the case

and has since been accused in lawsuits, court filings, and Internal Affairs

reports of forcibly coercing statements from suspects and witnesses.”

(Philadelphia Daily News Article, attached as Exhibit A to Appellant’s PCRA

petition). The article further explains how that defendant presented evidence

that Detective Pitts had coerced incriminating statements from two of the

Commonwealth’s witnesses.

       Appellant asserted in his PCRA petition that the newspaper article

substantiated testimony from Commonwealth witness Markel White, who

recanted his statement to police at Appellant’s trial, and testified that

Detective Pitts had coerced his statement incriminating Appellant. 2 On July

23, 2019, the court issued notice of its intent to dismiss the petition without

a hearing, per Pa.R.Crim.P. 907. Appellant filed a pro se response on August

1, 2019, arguing the newspaper article constituted a “new fact” for purposes

of the PCRA time-bar exception at 42 Pa.C.S.A. § 9545(b)(1)(ii). Appellant

claimed he filed his PCRA petition within 30 days of his discovery of the Daily

News article.

       The court denied PCRA relief on September 5, 2019. Appellant timely

filed a pro se notice of appeal on September 25, 2019, along with a voluntary

concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).


____________________________________________


2 Appellant cited to the notes of testimony from his 2008 trial, which resulted
in a hung jury, rather than his 2009 trial, which resulted in his convictions.

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      Appellant raises the following issue for our review:

         DID THE [PCRA] COURT ERR[] WHEN IT DISMISSED
         APPELLANT’S PCRA PETITION AS UNTIMELY[?] APPELLANT
         ATTEMPTED TO INVOKE THE TIMELINESS EXCEPTION
         UNDER SUBSECTION 42 PA.C.S.A. § 9545(B)(1)(II), WHICH
         REQUIRES APPELLANT TO PLEAD AND PROVE “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?”

(Appellant’s Brief at 4).

      Appellant argues Detective Pitts used illegal interview tactics in his case

to force false statements from witnesses. Appellant asserts he discovered the

Daily News article discussing Detective Pitts in the law library on June 27,

2019. Appellant maintains he timely filed his PCRA petition after discovery of

the article. Appellant emphasizes that Detective Pitts was the lead detective

in Appellant’s case and witnesses at Appellant’s trial testified that Detective

Pitts used forcible tactics to coerce their statements implicating Appellant.

Appellant concludes the newspaper article describing Detective Pitts’ improper

conduct constitutes “new facts” for purposes of the PCRA time-bar, and this

Court should vacate the order denying PCRA relief and remand for an

evidentiary hearing or new trial. We disagree.

      As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),

cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).

Pennsylvania law makes clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

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A.2d 1157 (2003).      The PCRA requires a petition, including a second or

subsequent petition, to be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence

is final “at the conclusion of direct review, including discretionary review in

the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      Generally, to obtain merits review of a PCRA petition filed more than

one year after the judgment of sentence became final, the petitioner must

allege and prove at least one of the three timeliness exceptions:

         (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 file his

petition within one year of the date the claim could have first been presented.

See 42 Pa.C.S.A. § 9545(b)(2) (as amended, effective December 24, 2018;

providing one year statutory window in which to invoke time-bar exception for


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claims arising on or after December 24, 2017).

       To meet the “newly discovered facts” timeliness exception set forth in

Section 9545(b)(1)(ii), a petitioner must 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. Brown, 111

A.3d 171, 176 (Pa.Super. 2015). “The focus of the exception is on [the] newly

discovered facts, not on a newly discovered or newly willing source for

previously known facts.” Commonwealth v. Burton, 638 Pa. 687, 704, 158

A.3d 618, 629 (2017) (internal citation and quotation marks omitted).              In

other words, the fact that a petitioner has “discovered yet another conduit”

for the same claim previously presented “does not transform his latest source

into   evidence     falling   within    the    ambit   of   section   9545(b)(1)(ii).”

Commonwealth v. Maxwell, 2020 PA Super 108, 2020 WL 2079168, at *5

(Pa.Super. filed April 30, 2020) (en banc) (quoting Commonwealth v.

Marshall, 596 Pa. 587, 597, 947 A.2d 714, 720 (2008)). As well, a claim

based on inadmissible hearsay does not satisfy the “newly-discovered facts”

exception.3    Commonwealth v. Abu-Jamal, 596 Pa. 219, 230, 941 A.2d

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3 The substantive claim of after-discovered evidence and the newly-discovered
facts exception to the PCRA timeliness requirements are often conflated and
referred to as the same theory of relief. These concepts, however, are not
interchangeable and require different proofs. Under the newly-discovered
facts exception to an untimely PCRA petition, a petitioner must establish “the
facts upon which the claim was predicated were unknown and…could not
have been ascertained by the exercise of due diligence. If the petitioner



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1263, 1269 (2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d

201 (2008).

       Instantly, Appellant’s judgment of sentence became final on or around

June 6, 2011, upon expiration of the time to file a petition for writ of certiorari

in the U.S. Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13

(allowing 90 days to file petition for writ of certiorari with United States

Supreme Court). Appellant filed the current PCRA petition on July 2, 2019,

which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

       Appellant now attempts to invoke the “newly-discovered facts”

exception to the PCRA time-bar, relying on the Daily News article discussing

Detective Pitts’ improper interview tactics.     Nevertheless, Appellant cannot

demonstrate any new facts that were unknown and could not have been

ascertained through the exercise of due diligence.

       Significantly, Appellant admits he was aware of Detective Pitts’ allegedly


____________________________________________


alleges and proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection.” Commonwealth v.
Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1272 (2007) (emphasis in
original). Only if a petitioner meets the statutory jurisdictional requirements
by satisfying this exception to the PCRA time-bar, can he then argue for relief
on a substantive after-discovered-evidence claim, which requires the
petitioner to demonstrate: (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. See,
e.g., Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586 (2007);
Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806 (2004).



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improper interview methods at the time of his 2008 and 2009 trials. Appellant

attached as exhibits to his PCRA petition notes of testimony from his 2008

trial (which resulted in the hung jury) in which Markel White recanted his prior

statement implicating Appellant and described Detective Pitts’ coercive ways.

Indeed, Appellant raised the issue of Detective Pitts’ allegedly forcible tactics

on direct appeal in the context of a challenge to the weight of the evidence.4

See Graham, supra. Thus, Detective Pitts’ allegedly coercive tactics were

not “previously unknown” to Appellant, as required to satisfy the time-bar

exception. See Brown, supra.

       Further, Appellant’s claim is based on inadmissible hearsay that cannot

satisfy the “newly-discovered facts” exception.5      See Commonwealth v.

Castro, 625 Pa. 582, 93 A.3d 818 (2014) (explaining newspaper articles

contain allegations which suggest evidence might exist, but are no more than


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4This Court deemed the issue waived for failure to preserve it in a timely-filed
post-sentence motion. See id.

5 Even if we could reach the substantive after-discovered-evidence claim, we
would agree with the PCRA court that Appellant’s claim would not merit relief.
(See PCRA Court Opinion at 6-7) (explaining that jury heard evidence of
Detective Pitts’ alleged improper behavior at 2009 trial and chose to disregard
it; Appellant presented no additional affidavits or evidence concerning White’s
testimony and presents only Daily News article with respect to Detective Pitts;
newspaper article does not describe Appellant’s case, but concerns
exoneration of unrelated individual; in Appellant’s case, two additional
witnesses besides Markel White identified Appellant as shooter—William
Duncan and Appellant’s brother, Kareem Graham; Detective Pitts did not
interview Duncan or Kareem; Appellant’s presentation of newspaper article
concerning Detective Pitts, without more, is insufficient to overturn jury’s
verdict). See also Washington, supra; D’Amato, supra.

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allegations in any other out-of-court situation; thus, newspaper articles

generally constitute inadmissible hearsay); Abu-Jamal, supra. Accordingly,

we affirm the order dismissing Appellant’s current PCRA petition as untimely.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2020




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