J. S16045/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
                  v.                      :
                                          :
DAVID L. SPARKS,                          :
                                          :
                        Appellant         :     No. 900 EDA 2015

                 Appeal from the PCRA Order March 18, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001327-2007

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                             Filed March 21, 2016

      Appellant, David Sparks, appeals from the order entered in the

Philadelphia Court of Common Pleas dismissing his second petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as

untimely. We affirm on the basis of the trial court’s opinion.

      On May 1, 2008, following a bench trial, the Honorable Sheila Woods-

Skipper found Appellant guilty of First Degree Murder, Firearms Not to be

Carried Without a License, Possession of a Firearm by a Minor and

Possession of an Instrument of Crime in connection with a crime committed

when he was 16 years old.      On May 23, 2008, Appellant was sentenced,

inter alia, to a mandatory term of life imprisonment without parole on the

murder conviction.
J. S16045/16


      On June 2, 2008, Appellant filed a timely Post-Sentence Motion. The

trial court took no action on the Post-Sentence Motion, and Appellant’s

motion was deemed denied by operation of law on September 30, 2008.

Appellant did not file a direct appeal.

      Appellant filed a timely pro se PCRA petition on June 2, 2009, which

was amended after the appointment of counsel. The PCRA court filed a

notice of its intent to dismiss the petition without a hearing, and on May 4,

2012, dismissed the petition.    On appeal, we affirmed the dismissal.   See

Commonwealth v. Sparks, No. 1368 EDA 2012 (Pa. Super. filed February

20, 2014) (unpublished memorandum). Our Supreme Court denied allocator

on September 30, 2014.

      On November 10, 2014, Appellant filed the instant second PCRA

petition claiming he met the newly discovered evidence exception to

timeliness with his “discovery” of additional witnesses.     Trial Court Op.,

dated 5/13/15, at 2. On February 25, 2015, the PCRA court filed a notice of

intent to dismiss without a hearing and on March 18, 2015, dismissed the

Petition as untimely.

      Appellant timely appealed, raising the following two issues:

      a. Whether the PCRA court erred by determining that the
      defendant’s Post Conviction Relief Act petition was untimely
      because the defendant’s PCRA petition falls within the “after-
      discovered evidence” exception to the timeliness requirement
      pursuant to 42 Pa.C.S. § 9545(b)(1)(ii).

      b. The PCRA court erred by failing to grant the defendant a PCRA
      evidentiary hearing because the unavailable witness’ testimony


                                      -2-
J. S16045/16


      directly contradicted the testimony of the       Commonwealth
      witnesses Markita Reddy and Kalisha Reddy.

Appellant’s Brief at 2 (capitalization removed).

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”     Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa.Super. 2003) (en banc). Before addressing

the merits of Appellant’s claims, we must first determine whether we have

jurisdiction to entertain the underlying PCRA petition. See Commonwealth

v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that the timeliness of

a PCRA petition is a jurisdictional requisite).

      Under the PCRA, any PCRA 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). A judgment of sentence 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 the expiration of time for seeking the review.” 42 Pa.C.S. §9545(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court

may not address the merits of the issues raised if the PCRA petition was not

timely filed. Commonwealth. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, because Appellant filed the instant petition five years after his

judgments of sentence became final, it is facially untimely under the PCRA.




                                       -3-
J. S16045/16


      Pennsylvania courts may consider an untimely PCRA petition if the

appellant can explicitly plead and prove one of the three exceptions set forth

in 42 Pa.C.S. § 9545(b), which provides the following:

      (b) Time for filing petition.

      (1) 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 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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).     See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (applying sixty-day timeframe after reviewing

specific facts that demonstrated the claim was timely raised).

      Here, Appellant attempts to invoke the timeliness exception under

Section 9545(b)(1)(ii), presenting three witnesses as after discovered

evidence.


                                      -4-
J. S16045/16


     The Honorable Sheila Woods-Skipper has authored a comprehensive,

thorough, and well-reasoned opinion, citing to the record and relevant case

law in addressing Appellant’s claims on appeal. After a careful review of the

parties’ arguments, and the record, we affirm on the basis of that Opinion.

See PCRA Court Opinion, filed 5/13/15, at 2-7 (holding that Appellant failed

to timely file the instant petition and failed to invoke an exception to PCRA

time-bar for any of the three “newly discovered” witnesses).1

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/21/2016




1
  On February 4, 2016, Appellant filed an Application for Post Submission
Communication with this Court and submitted a copy of the recent United
States Supreme Court decision, Montgomery v. Louisiana, 2016 WL
280758 (U.S. Jan. 25, 2016). Because Appellant had not raised an illegal
sentence claim in the instant PCRA petition, we denied the Application
without prejudice to raise the claim in a timely PCRA petition. See Order,
dated 2/11/16.



                                    -5-
                                                                                         Circulated 03/04/2016 01:34 PM




                     PHILADELPHIA COURT OF COMMON PLEAS                                           FILED
                            CRIMINAL TRIAL DMSION
                                                                                             HAY 13 2015
COMMONWEAL TH OF PENNSYLVANIA
                             CP-51-CR-«>01327-2007 Comm v Sparu o.v.d L                     PostTrial Unit
                   vs.                        Opnon



                                                                          CP-51-CR-0001327-2007
David Sparks                        II I Ill 111111111111111
                                 II I
                                         7294079431
DOCKET NO.: 900 EDA 2015

                                                   Opinion


       Appellant, David Sparks, seeks relief pursuant to the Post Conviction Relief Act, 42

P.a.C.S. §§9541 et seq. (PCRA). Following a thorough review of the submissions of counsel, the

record and the applicable case law, the Court dismisses the petition as untimely. The relevant

factual and procedural history follows.

       On May 1, 2008, Appellant was convicted of First Degree Murder, Firearms Not to be

Carried Without a License, Possession of a Firearm by a Minor and Possession of an Instrument

of Crime at a waiver trial before the Court.1 On May 23, 2008, Appellant was sentenced to an

aggregate sentence oflife in prison. Appellant filed a timely post-sentence motion on June 2,

2008. Appellant did not file a direct appeal and Appellant's sentence became final on October

30, 2008.

       On June 2, 2009, Appellant submitted a timely Pro Se PCRA petition. PCRA counsel

was appointed on September 10, 2009 and filed an amended petition on February 8, 2011. On

May 30, 2011, the Commonwealth tiled a motion to dismiss. On March 23, 2012, the Court

gave notice of its intent to dismiss and dismissed the petition on May 4, 2012. Appellant then

filed a Notice of Appeal on May 9, 2012 and the Superior Court affirmed the dismissal on


1 18 § 2502, 18 § 6106 §§ Al, 18 § 6110.1 §§ C and 18 § 907 §§ A.

                                                      EXHIBIT HA"
February 20, 2014. The Supreme Court denied allocatur on September 30, 2014.

        On November 10, 2014, Appellant filed an untimely second PCRA petition claiming that

he met the newly discovered evidence exception to timeliness through the discovery of an

additional witness, Terrell Hood, who was not called at trial. Alternatively, Appellant argued

that he should be granted a habeas petition because the PCRA is unconstitutional.     Appellant

sought an evidentiary hearing and a new trial. Attached to the petition was a certification from

Nick Kato, an investigator for the Pennsylvania Innocence Project, stating that a person

identifying himself as Terrell Hood called Mr. Kato and reported that Appellant was standing

next to him during the murder and Appellant did not shoot the decedent.

       On December 3, 2014, the Court filed a notice of intent to dismiss reasoning that the

Appellant failed to make a prima facie showing that he was entitled to relief because his claims

were only supported by inadmissible hearsay. On December 17, 2014, Appellant responded to

the notice of intent to dismiss asserting that be substantially complied with the applicable rules

and that he met his burden of proof. Appellant also requested a time extension to file

supplements to his petition. On January 5, 2015, the Court granted Appellant's request for a

time extension which allowed Appellant until February 10, 2015 to file supplements.

       On January 6, 2015, a supplement was submitted which identified Mr. Nael Reddy and

Ms. Shania McPherson as witnesses who had exculpatory evidence that allegedly met the newly

discovered evidence exception. Attached to this supplement were certifications from Mr. Kato.

The first certification stated that Mr. Kato called a person identifying herself as Ms. McPherson

and she stated she did not see the shooting, but she knew that two Commonwealth witnesses

could not have seen the shooting due to their location inside a store near the crime scene and the

condition of the store windows. The second certification contained an interview by Mr. Kato

                                                 2
with Mr. Reddy at SCI Graterford. Mr. Reddy's proposed testimony contained only hearsay

concerning an alleged conspiracy between the decedent's mother and the mother of two

Commonwealth     witnesses.   On February 9, 2015, Appellant submitted a final amended petition

which consolidated the arguments previously raised and also filed a motion to compel discovery.

Appellant attached three witness certifications from Mr. Kato and one from Mr. Reddy and a

memorandum of law in support of the final amended petition. On February 25, 2015, after

reviewing all of the submissions of counsel, materials and applicable case law, the Court filed a

notice of intent to dismiss. On March 13, 2015, Appellant filed a response in support of his

claims which asserted that he complied with the applicable rules and also requested an additional

ninety days to investigate the claims. On March 18, 2015, the Court denied the ninety day time

extension and dismissed the petition as untimely. This appeal followed.

       As a threshold matter, the Court must determine if the Appellant's claims are timely.

"Pennsylvania courts lack jurisdiction to entertain untimely PCRA petitions." Commonwealth v.

Hall. 771 A.2d 1232, 1234 (Pa. 2001). The PCRA states that, "[a]ny 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 [falls within an enumerated exception.]" 42

P.aC.S. § 9545(b)(l).

       This petition is facially untimely. Appellant's sentence became final on October 30,

2008 and this second petition was filed on November 10, 2014. To overcome this, Appellant

asserts that his claims meet the newly discovered evidence exception to the timeliness

requirement. See 42 Pa.C.S. § 9545(b)(l )(ii). The exception, "'requires [appellant] to allege and

prove that there were 'facts' that were 'unknown' to him' and that he could not have ascertained

those facts by the exercise of 'due diligence."' Commonwealth v. Marshall, 947 A.2d 714, 720

                                                 3
(Pa 2008) (citation omitted). "Due diligence demands that the [appellant] take reasonable steps

to protect his own interests. (An appellant] must explain why be could not have learned the new

fact(s) earlier with the exercise of due diligence. This rule is strictly enforced . ., Commonwealth

v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (citation omitted); see also Commonwealth v.

Brown, 111 A.3d 171 (Pa. Super. 2015) (denying relief when Appellant failed to make a

showing of diligence). In addition to these requirements, the claims must be filed within sixty

days of when they could first be filed. Marshall, 947 A.2d at 719-20; 42 Pa.C.S.A. § 9545(b)(2).

Finally, hearsay does not meet the requirements of the newly discovered evidence exception.

Commonwealth v. Abu-Jamal. 941 A.2d 1263, 1269-70 (Pa. 2008).

       Instantly, Appellant asserts that the testimony of three witnesses would have helped

exonerate him at trial, but Appellant fails to meet the requirements of the exception. Appellant,

in his amended petition, makes the bald assertion that he was diligent and could not procure the

three witnesses' testimony unless they came forward. Appellant's first witness, Terrell Hood,

proposed to testify that he was standing next to the Appel1ant during the shooting. Assuming

arguendo that this is true, it follows that the Appellant was on notice that the person standing

next to him during the crime existed prior to trial. No explanation is given as to why he was not

found earlier. The second witness, Shania McPherson, proposed to testify that she was inside a

store along with two Commonwealth witnesses during the shooting. Appellant acknowledges

that Ms. McPherson was interviewed by police around the time of the shooting, but Appellant

offers no explanation as to why her testimony could not be obtained earlier if he had been

diligent. Finally, Nael Reddy, who is apparently a cousin of the two Commonwealth witnesses,

proposed to testify that his aunt, cousins, and the decedent's mother framed the Appellant.

Again, there is no explanation as to why his testimony could not have been procured earlier.

                                                 4
Furthermore, Mr. Reddy's proposed testimony was hearsay which did not meet the requirements

of the new]y discovered evidence exception.

        Appellant's only attempt at explaining his lack of diligence was that he has been

continually incarcerated since his arrest which has put restrictions on his ability to communicate

or conduct research. However, the Court notes that Appellant has been represented by counsel

throughout the length of this case and has had a prior counseled PCRA petition. It should also be

noted that, at trial, the Court colloquied the Appellant as to whether he wanted to introduce

additional witnesses. N.T. 5/1/08 at 72. Appellant stated that there were no other witnesses he

wanted to introduce. Id. at 73. Therefore, for the previously stated reasons, Appellant failed to

meet the requirements of the newly discovered evidence exception and the Court lacks

jurisdiction to hear his claims.

        Additionally, the Court notes that Appellant has not complied with the rules regarding

witness certifications when requesting an evidentiary bearing. In order to request an evidentiary

hearing, AppelJant must submit signed certifications containing witnesses' names, addresses and

dates of birth along with a description of the intended testimony. Commonwealth v. Pander, 100

A.3d 626, 639-42 (Pa. Super. 2014); 42 Pa.C.S. § 9545(d)(l). At a minimum, either the

Appellant or his attorney must sign the certification. Pander, 100 A.3d at 639-42. "Failure to

substantially comply with the requirements ... shall render the proposed witness's testimony

inadmissible." 42 Pa.C.S. § 9545(d)(l).

        From his response to the notice of intent to dismiss, it appears that despite citing the

correct statute and case law, Appellant is confused about what information the witness

certification must contain. The certifications for Mr. Hood and Ms. McPherson contain the

proposed witnesses' names, but do not contain their addresses or dates of birth. Instead, the

                                                  5
certifications contain the name, address and date of birth of Nick Kato, the investigator.

Furthermore, the certifications are signed by Mr. Kato instead of the witnesses, Appellant or

PCRA counsel. ft appears that Appellant labors under the assumption that Mr. Kato is the

witness for the purposes of the certification. This presents a problem because he cannot testify in

place of Mr. Hood and Ms. McPherson due to the rules against hearsay. Therefore, Appellant

bas failed to comport with the applicable requirements for two oftbe three proposed witnesses

even after citing the requirements. Thus, the testimony of Mr. Hood and Ms. McPherson is

inadmissible under 42 P.a.C.S. § 9545(d)(l).

       Finally, Appellant's alternative argument has no merit. Appellant cites Commonwealth

ex rel. Dadario v. Goldberg. 773 A.2d 126, 131, fn. 5 (Pa. 2001) for the proposition that the

PCRA unconstitutionally abrogates habeas corpus rights for claims cognizable under the PCRA.

Appellant essentially argues that he should be granted a habeas petition because his claims are

untimely under the PCRA. It is well settled that the timeliness requirements of the PCRA are

constitutional. Commonwealth v. Bro~ 943 A.2d 264, 267-68 (Pa. 2008) (citing

Commonwealth v. Peterkin, 722 A.2d 638, 642 (Pa. 1998)) (noting that the Court has held the

time limits of the PCRA are constitutional). It is also settled that habeas petitions are onJy

available where the PCRA does not provide a remedy. Commonwealth v. Taylor, 65 A.3d 462,

465-66 (Pa. Super. 2013)

       Appellant's untimely claims are clearly cognizable under the PCRA because he alleges in

bis petition that his claims meet the after-discovered evidence exception. A habeas petition is

not a method to bypass the PCRA timeliness requirements. See Commonwealth v. Kutny~

781 A.2d 1259, 1261 (Pa. Super. 2001)(citing Commonwealth v. Fahy, 737 A.2d 214, 223-224

(Pa. 1999)) ("Simply because the merits of the PCRA petition cannot be considered due to

                                                 6
                                                   -------



previous litigation, waiver, or an untimely filing, there is no alternative basis for relief outside

the framework of the PCRA"). Because the claims are untimely, but cognizable under the

PCRA, Appellant's alternative argument is meritless.

       Because Appellant's PCRA petition is untimely and does not meet any exception, the

Court has no jurisdiction. Therefore, the Court properly dismissed Appellant's PCRA petition.


                                                        BY THE COURT:

                                                       ~tM,~-
                                                        SHEILA WOODS-S~




                                                   7
