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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTONIO DADE, :
:
Appellant : No. 3453 EDA 2014
Appeal from the PCRA Order October 29, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0212731-1989
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 04, 2015
Antonio Dade (“Dade”) appeals pro se from the October 29, 2014
order entered by the Philadelphia County Court of Common Pleas dismissing
his fourth petition filed pursuant to the Post Conviction Relief Act, 42
Pa.C.S.A. §§ 9541-9546 (“PCRA”), as untimely. After careful review, we
affirm.
The trial court summarized the relevant procedural history of the case
as follows:
On March 5, 1990, following a bench trial before
the Honorable David N. Savitt, [Dade] was found
guilty of [first-degree murder, aggravated assault,
reckless endangerment and possessing an
instrument of crime]. [Dade] was sentenced to an
aggregate term of life imprisonment. [Dade]
appealed, and on August 30, 1991, the Superior
Court affirmed the judgment of sentence. On March
23, 1992, the Pennsylvania Supreme Court denied
allocatur.
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On October 13, 1992, [Dade] filed his first
petition for post-conviction relief pursuant to the
[PCRA]. Counsel was appointed, and on June 6,
1993, an amended petition was filed. On April 9,
1996, the petition was denied. The Superior Court
affirmed the dismissal on January 16, 1997, and the
Pennsylvania Supreme Court subsequently denied
allocatur on August 12, 1997.
On February 21, 2006, [Dade] filed his second
PCRA petition, which was dismissed on July 14,
2006. The Superior Court affirmed the dismissal on
June 4, 2007, and the Pennsylvania Supreme Court
denied allocatur on October 16, 2007.
On November 13, 2007, [Dade] filed his third
PCRA petition, which was dismissed on July 25,
2008. The Superior Court affirmed the dismissal on
August 3, 2009, and no further appeal followed.
[Dade] filed the instant PCRA petition, his fourth,
on April 3, 2014. After conducting an extensive and
exhaustive review of these filings, the record, and
applicable case law, [the PCRA c]ourt determined
that the instant petition was untimely filed and that
none of the timeliness exceptions applied. On August
15, 2014, [the PCRA c]ourt provided [Dade] with a
Pa.R.Crim.P. 907 [n]otice of [i]ntent to dismiss his
petition without a hearing, and [Dade] filed a
[r]esponse on August 28, 2014. [the PCRA c]ourt
subsequently dismissed the PCRA petition on October
29, 2014. [Dade] filed a notice of appeal from that
order.
PCRA Court Opinion, 1/20/15, at 1-2 (pagination added).
On appeal, Dade raises two issues for our review:
I. Did the [PCRA c]ourt err in holding that the proffered
testimony of Craig Jackson did not meet the
statutory timel[iness] exception under Title 42
Pa.C.S. § 9545(b)(1)(ii)?
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II. Does the interest of justice require a remand for the
purpose of taking Craig Jackson’s testimony?
Dade’s Brief at 4.
We review the denial of a PCRA petition on timeliness grounds
according to the following standard:
In reviewing the denial of PCRA relief, we
examine whether the PCRA court’s determination is
supported by the record and free of legal error. The
PCRA timeliness requirement, however, is mandatory
and jurisdictional in nature. The court cannot ignore
a petition’s untimeliness and reach the merits of the
petition. Section 9545(b)(1) requires a petitioner to
file a PCRA petition within one year of the date the
judgment [became] final.
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal
citations and quotations omitted). “[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. § 9545(b)(3).
Section 9545(b)(1) of the PCRA provides three statutory exceptions to
the timeliness provisions that allow for very limited circumstances under
which the late filing of a PCRA petition will be excused:
(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;
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(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). “Any petition invoking an exception provided in
paragraph (1) shall be filed within [sixty] days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). It is the petitioner’s
burden to plead and prove, by a preponderance of the evidence, that his
facially untimely petition falls under one of the three timeliness exceptions;
that he filed it within sixty days of the date it could have been presented;
and that the information could not have been obtained earlier.
Commonwealth v. Williams, 105 A.3d 1234, 1239 (Pa. 2014);
Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014), cert. denied sub
nom., Ali v. Pennsylvania, 135 S. Ct. 707 (U.S. 2014).
Dade acknowledges that his PCRA petition, filed over twenty years
after his judgment of sentence became final, is facially untimely. See
Motion for New Trial Based on After-Discovered Evidence and Consolidated
Memorandum of Law, 4/3/14, ¶ 6; Dade’s Brief at 9. He asserts, however,
that he has satisfied the exception to the timeliness requirements in section
9545(b)(1)(ii) through the presentation of a letter sent to him by Craig
Jackson (“Jackson”), which he received within sixty days of filing his fourth
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PCRA petition. Dade’s Brief at 10. In the letter, Jackson states that he was
present on the night of the shooting, and details what he saw and the
aftermath of the shooting, stating:
I was out there the night that Pliz shot those guys
that night and because of me seeing that I got shot
for it. Maybe you know the story being as though
how close you and Pliz are but just keep this to
yourself, I don’t know, but, anyway, I was coming
from Columbia Ave. going back down my way on
Master Street and I decided to stop at the Chinese
joint. As I was on my way across the street I saw
you and two other guys come out of the store. I saw
one of them pull out a gun and then Pliz come up
shooting out of nowhere. I don’t know if the dude
got off a shot or not cause I ran after the first shot.
A week or so later I see Pliz and ask him about you
and was he looking out for your and he asked me
what I was talking about and told me to mind my
business. I told him that I was there and saw him
shoot them dudes and that’s when he shot me 3
times then he sent threatening messages to me
saying if I brought this up again he would kill me and
my family. So I never said anything else about it
being the old me.
PCRA Petition, 4/3/14, at Exhibit A. Dade states that he did not know that
Jackson was present at the time of the shooting and could not have known
until he received the letter from Jackson, as Jackson never told anyone,
other than Pliz, what he saw that night. Motion for New Trial Based on
After-Discovered Evidence and Consolidated Memorandum of Law, 4/3/14,
¶¶ 8-9, 12; Dade’s Brief at 10-12.
This Court recently explained the petitioner’s burden of proof for the
newly discovered fact exception to the timeliness requirements:
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The timeliness exception set forth in Section
9545(b)(1)(ii) requires a petitioner to 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. Due diligence
demands that the petitioner take reasonable steps to
protect his own interests. A petitioner must explain
why 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) (internal
citations and quotation marks omitted).
Thus, the due diligence required of Dade in the case at bar relates to
his ability to learn the facts disclosed in Jackson’s letter – i.e., that another
person was present on the night of the shooting and actually shot the
victims. However, nowhere in either his PCRA petition or his appellate brief
does Dade claim that he was unaware that his friend, Pliz, was present on
the night of the shooting or that someone other than Dade shot the victims.1
Nor does he explain why he could not have learned that there was another
person present who was actively shooting along with him at the time the
1
The record reflects that Dade testified at trial and admitted that he fired
three shots at the victims from a distance of two to three feet after he
observed one of the victims “reaching into his jacket for something.” N.T.,
3/5/90, at 252-53, 269. Two bullets hit one victim; one bullet hit the other.
Dade raised a claim of imperfect self-defense at trial.
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victims were shot.2 Rather, as stated hereinabove, Dade avers throughout
the memorandum of law accompanying his PCRA petition and his brief on
appeal that he was unaware that Jackson was present on the night of the
shooting and that he could not have discovered Jackson’s presence and
eyewitness account with the exercise of due diligence. See Motion for New
Trial Based on After-Discovered Evidence and Consolidated Memorandum of
Law, 4/3/14, ¶¶ 8-9, 12; Dade’s Brief at 10-12.
As Dade did not plead and prove that he was unaware that there was
another person present on the night of the shooting who actually shot the
victims, he failed to satisfy his burden of proving the timeliness exception
contained in section 9545(b)(1)(ii). See 42 Pa.C.S.A. § 9545(b)(1)(ii);
Brown, 111 A.3d at 176; see also Williams, 105 A.3d at 1239; Ali, 86
A.3d at 178. Therefore, we can find no error or abuse of discretion in the
PCRA court’s decision to dismiss Dade’s fourth PCRA petition as untimely.
Order affirmed.
2
The record reflects that one of the victims, Kenneth Henshaw, testified
that he saw another person standing with Dade at the time of the shooting,
but that Dade was the one who fired the gun. N.T., 3/1/90, at 112. The
eyewitness, Anthony Massey, testified that he saw Dade fire shots at the
victims and then run away with someone else. Id. at 140, 145.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
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