J-S38031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MAHEIM STARKS

                            Appellant                No. 1104 EDA 2015


                   Appeal from the PCRA Order March 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1205752-2005


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED MAY 06, 2016

        Maheim Starks appeals from an order dismissing his second petition

for relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., as

untimely. We affirm.

        The factual and procedural history of this case is as follows.   A jury

found Starks guilty of first degree murder1 and related offenses for

firebombing a house, killing three children inside and seriously injuring two

others. This Court accurately summarized the evidence in its memorandum

decision on direct appeal:

        On the evening of May 13, 2005, [Starks] and co-defendant
        Zakeeyah Harper (‘Harper’) were sitting in a bar commiserating
        over their mutual dislike of the adult victim, Jameeka Clark.
        Clark was the third member of a love triangle consisting of
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1
    18 Pa.C.S. § 2502.
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      Harper and one Thomas ‘TJ’ Dale, the father of Harper’s two
      children. [Starks] purportedly disliked Clark because she recently
      had rebuffed his advances.

      [Starks] and Harper agreed to firebomb the victims’ home later
      that evening, knowing that Clark lived there with her six
      children. Shortly after midnight, on May 14, 2005, Harper and
      her cousin, Tysheea Harper (‘Tysheea’), who agreed to act as
      the lookout, met [Starks] at a gas station. There, Harper
      purchased two bottles of juice and $5.00 worth of gasoline. The
      trio emptied the bottles and [Starks] filled them with the gas. As
      the three individuals walked toward the victims’ home, one of
      them found a t-shirt, ripped it into pieces, and placed the pieces
      into the bottles, creating a makeshift bomb. As Tysheea
      watched, [Starks] and Harper lit their ‘bombs’ and threw them at
      the house. [Starks]’s bottle crashed through a window, and
      Harper’s bottle landed near the house. A fire erupted, killing
      three children and seriously injuring two others. A sixth child
      was thrown from a window to safety. Clark also suffered burns
      and smoke inhalation.

Commonwealth v. Starks, 2125 EDA 2007, at 1-2 (Pa.Super., 1/8/09).

      On May 23, 2007, a jury found Starks guilty of three counts of first

degree murder and multiple other felonies.       On July 25, 2007, the court

sentenced defendant to three consecutive life sentences for murder with

concurrent terms of imprisonment on the remaining offenses. On January 8,

2009, this Court affirmed Starks’ judgment of sentence on direct appeal.

Starks did not file a petition for allowance of appeal.

      On July 10, 2009, Starks filed his first petition for PCRA relief.   The

court appointed counsel, who filed an amended petition. On August 3, 2010,

the PCRA court dismissed defendant’s petition. On August 9, 2010, the PCRA

court vacated its order dismissing defendant’s petition and granted leave to

file an amended petition raising additional claims.       On November 5, 2010,

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counsel filed a letter explaining that there were no meritorious issues to

raise and requested leave to withdraw pursuant to Commonwealth v.

Finley, 550 A.2d 213 (Pa.Super.1998) (en banc). On January 28, 2011, the

PCRA court granted counsel leave to withdraw and once again dismissed

Starks’ petition.    On March 6, 2012, this Court affirmed the order of

dismissal.

      On August 7, 2013, Starks filed a second PCRA petition, the petition

presently under review.        Starks requested a new trial based on alleged

newly-discovered evidence: a letter dated June 27, 2013 to Starks from

Tysheea Harper, the “lookout” during the bombing and one of the

Commonwealth’s witnesses during trial. The letter stated in full:

      Listen Mar, I don’t know how to explain this, you getting all that
      time for something you didn’t do, got me feeling guilty[.] Mar,
      you got to understand, at the time I was pregnant, and the way
      those cops were talking, they made it seem like I was the one
      who did it, so I wasn’t thinking straight at the time[.] I tried to
      tell the cops the truth, but they didn’t want to hear that, they
      wanted to hear that you and Za[keeyah] did the shit[.] Now me
      being pregnant and stressed out, I just started saying whatever
      they wanted to hear, because I wanted to go home. Now
      Za[keeyah] did what she did because she wanted to do it. Now I
      don’t know how you feeling, because of all the years that
      passed, but I’m willing to help you out and do whatever I got to
      do.

PCRA Petition, exhibit “A” (letter dated June 27, 2013).

      On December 23, 2014, the PCRA court filed a notice of intent to

dismiss   Starks’   petition   without   an    evidentiary   hearing   pursuant   to




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Pa.R.Crim.P. 907.    On March 30, 2015, the PCRA court dismissed Starks’

petition as untimely. On April 8, 2015, Starks appealed to this Court.

      On April 28, 2015, after filing his notice of appeal, Starks filed an

amended PCRA petition through counsel, raising claims of ineffective

assistance of trial counsel.      On July 31, 2015, counsel filed a letter

requesting permission to withdraw the present appeal on the ground that

Starks’ amended PCRA petition “has not been ruled upon as of yet.”                On

August 24, 2015, this Court denied counsel’s request without prejudice for

Starks to raise the issue in his brief.

      Counsel has filed a brief on behalf of Starks in this appeal. The brief

does not ask that this Court permit Starks to withdraw this appeal.

Accordingly, we deem the request in counsel’s July 31, 2015 letter moot.

      Starks raises a single issue in this appeal: “Did the [PCRA] court err in

denying an evidentiary hearing and then denying PCRA relief because the

court assumed [that] Starks could lawfully have convinced Tysheea Harper

to recant earlier than she did recant?” Stated differently, Starks contends

that the court erred in dismissing his PCRA petition as untimely, because (1)

Tysheea Harper’s letter satisfied the “newly discovered evidence” exception

to the PCRA’s statute of limitations, and (2) Starks filed his PCRA petition

within sixty days after receiving Harper’s letter.

      No   court   has   jurisdiction     to   hear   an   untimely   PCRA   petition.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing


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Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.2003)). The PCRA

provides that a petition, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S. §

9545(b)(1); accord Monaco, 996 A.2d at 1079; Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa.Super.2003).           A judgment 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 the review.” 42 Pa.C.S. § 9545(b)(3).

      There are three statutory exceptions to the PCRA’s time bar under

which a court may excuse the late filing of a PCRA petition. 42 Pa.C.S. §

9545(b)(1); Monaco, 996 A.2d at 1079. The late filing of a petition will be

excused if a petitioner alleges and proves any of the following:

      (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. § 9545(b)(1)(i)-(iii). A petition which invokes any or all of these

exceptions must “be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2). This is a separate requirement

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over and above the requirements within section 9545 (b)(1)(i)-(iii).    See

Commonwealth v. Green, 14 A.3d 114, 118 (Pa.Super.2012) (defendant

failed to qualify for government interference exception within section

9545(b)(1)(i), based on allegation that Commonwealth failed to reveal

source of magazine article which supported defendant's Batson claim,

where he filed PCRA petition more than 60 days after source of magazine

article was revealed).

      Here, the Superior Court affirmed Starks’ judgment of sentence on

January 8, 2009.     Starks did not file a petition for allowance of appeal.

Therefore, his judgment of sentence became final for purposes of the PCRA

on Monday, February 9, 2009, when the period for seeking review in the

Pennsylvania Supreme Court expired. The statute of limitations for filing a

PCRA petition expired on February 9, 2010. Thus, his present PCRA petition,

filed in August 2013, is untimely on its face.

      Starks fails to satisfy any of the three exceptions to the statute of

limitations.   Starks argues that Tysheea Harper’s June 27, 2013 letter

constitutes newly acquired evidence that entitles him to relief. We disagree.

To overcome the PCRA’s statute of limitations on the basis of newly acquired

evidence, the petitioner must prove that the evidence was unknown to him

and could not have been ascertained by the exercise of due diligence. 42

Pa.C.S. § 9545(b)(1)(ii)). Due diligence

         demands that the petitioner take reasonable steps to
         protect his own interests. A petitioner must explain why

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          he could not have learned the new fact(s) earlier with the
          exercise of due diligence. This rule is strictly enforced.
          Additionally, the focus of this exception ‘is on the newly
          discovered facts, not on a newly discovered or newly
          willing source for previously known facts.’

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.2015).

       Assuming that Harper’s letter provided new facts, Starks totally fails to

explain why he was unable to obtain these facts until June 2013, over three

years after expiration of the statute of limitations.          Thus, he fails to

demonstrate that he “could not have learned the new fact(s) earlier with the

exercise of due diligence.” Brown, 111 A.3d at 176.

       We do not accept Starks’ contention that he is entitled to PCRA relief

simply because he filed his petition within sixty days after receiving Harper’s

letter.   As noted above, the sixty day filing requirement is separate and

distinct from the requirement to satisfy an exception within section

9545(b)(1)(i)-(iii). See Green, supra. Thus, to obtain relief on the basis of

newly acquired evidence, the petitioner must file his PCRA petition within

sixty days after learning new facts and demonstrate that he exercised due

diligence in learning these facts. Starks fulfilled the sixty day filing requisite,

but he failed the due diligence requisite.2




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2
   We also note that Starks cannot obtain relief under the government
interference exception (section 9545(b)(1)(i)) or the retroactive
constitutional right exception (section 9545(b)(1)(iii)), because he does not
plead or prove either of these exceptions.



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     For these reasons, the PCRA properly dismissed Starks’ PCRA petition

as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




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