J-S01019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DERRICK Y. THOMAS
Appellant No. 541 EDA 2015
Appeal from the PCRA Order January 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1126921-1991
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 03, 2016
Appellant, Derrick Y. Thomas, appeals pro se from the January 22,
2015 order, dismissing as untimely his fifth petition for relief filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we affirm.
A prior panel of this Court has summarized the relevant factual and
procedural background of this case as follows.
On February 7, 1990 Appellant and co-defendants
lured the victim to one of co-defendant’s homes.
The victim had been a witness to a murder and
planned to testify against Appellant’s and co-
defendants’ friend. A short time after arriving at the
home, Appellant and co-defendant’s hit the victim in
the head with a baseball bat, tied his hands behind
his back, and repeatedly sliced the victim’s neck with
a machete. A jury trial was held from February 25,
1993 to March 16, 1993. The jury convicted
Appellant of first-degree murder, retaliation against
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a witness, criminal conspiracy, and possessing an
instrument of crime [PIC]. … On April 20, 1994, the
court sentenced Appellant to life imprisonment for
the murder conviction, and a concurrent sentence of
four (4) to fourteen (14) years’ imprisonment for the
remaining convictions. Appellant did not file a direct
appeal. On April 28, 1995, Appellant filed a PCRA
petition to reinstate his direct appeal rights nunc pro
tunc. The [PCRA] court granted Appellant’s petition
on June 19, 1996. On June 12, 1997, this Court
reversed Appellant’s judgment of sentence for [PIC]
and affirmed the remaining judgments of sentence.
Appellant filed a petition for allowance of appeal,
which the Supreme Court denied on December 9,
1997.
Appellant timely filed pro se his first PCRA
petition on April 21, 1998. The [PCRA] court
appointed counsel, who filed a “no-merit” letter
pursuant to Commonwealth v. Turner, 544 A.2d
927 ([Pa.] 1988) and Commonwealth v. Finley,
550 A. 2d 213 (Pa. Super. 1988) (en banc). On April
7, 1999, the [PCRA] court issued notice of its intent
to dismiss Appellant’s petition pursuant to
[Pennsylvania Rule of Criminal Procedure] 907. …
[T]he [PCRA] court dismissed the petition on May 20,
1999. On April 27, 2000, this Court determined
counsel’s “no-merit” letter was defective and vacated
the order dismissing Appellant’s petition and
remanded for appointment of new counsel. The
PCRA court appointed new counsel, who also filed a
“no-merit” letter. The [PCRA] court once again
dismissed Appellant’s petition, and this Court
affirmed the dismissal on January 22, 2003. On
October 3, 2003, Appellant filed a second PCRA
petition. The PCRA court dismissed the petition as
untimely on November 17, 2003, and this Court
affirmed the dismissal on December 10, 2004.
Appellant filed a third PCRA petition on January 10,
2008, which the [PCRA] court dismissed as untimely
on December 4, 2009. Appellant appealed the
dismissal but filed a praecipe for discontinuance on
March 10, 2010.
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Commonwealth v. Thomas, 102 A.3d 523, (Pa. Super. 2014)
(unpublished memorandum at 1-3) (parallel citation omitted). Appellant
filed his fourth PCRA petition, and the PCRA court denied said petition as
untimely on April 8, 2014. See id. Appellant filed the instant, fifth petition
for PCRA relief on June 30, 2014. On August 8, 2014, the PCRA court issued
a Rule 907 notice of its intent to dismiss the petition without a hearing, and
Appellant filed a response on August 28, 2014. On January 22, 2015, the
PCRA court dismissed Appellant’s petition. Appellant filed a timely notice of
appeal on February 13, 2015.1
On appeal, Appellant raises the following issues for our consideration.
[I]. Whether the [PCRA] court committed an
injustice and manifest abuse of discretion and
committed an error in dismissing Appellant’s PCRA
[petition] as untimely, when Appellant is showing
due diligence regarding exculpatory evidence, to
prove he is a [sic] actual innocent person[?]
[II.] Whether trial counsel was ineffective for failing
to investigate and interview alibi witness[?]
[III.] Whether [the] prosecutor used perjured and
false testimony to obtain a tainted conviction[?]
Appellant’s Brief at 3.
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1
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court issued a Rule 1925(a) opinion on March
13, 2015, explaining the reasons for its dismissal.
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We begin by noting our well-settled standard of review. “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.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Before we may address the merits of Appellant’s arguments, we must
first consider the timeliness of Appellant’s PCRA petition because it
implicates the jurisdiction of this Court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation
omitted). Pennsylvania law makes clear that when “a PCRA petition is
untimely, neither this Court nor the trial court has jurisdiction over the
petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)
(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for
filing a PCRA petition is not subject to the doctrine of equitable tolling;
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instead, the time for filing a PCRA petition can be extended only if the PCRA
permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.
2014) (internal quotation marks and citation omitted), cert. denied, Ali v.
Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord finality to the
collateral review process.” Commonwealth v. Watts, 23 A.3d 980, 983
(Pa. 2011) (citation omitted). “However, an untimely petition may be
received when the petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition, set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.” Commonwealth v.
Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted). The PCRA
provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
…
(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
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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.A. § 9545(b).
In the instant case, as the previous panel noted, “Appellant’s judgment
of sentence became final on or about March 8, 1998[.]” Thomas, supra at
5. Appellant’s petition fifth petition was filed on June 30, 2014, and is
therefore patently untimely. See generally 42 Pa.C.S.A. § 9545(b)(1).
However, Appellant avers that the newly discovered fact exception applies.
Appellant’s Brief at 6.
Our Supreme Court has previously described a petitioner’s burden
under the newly-discovered evidence exception as follows.
[S]ubsection (b)(1)(ii) has two components, which
must be alleged and proved. Namely, the petitioner
must establish that: 1) “the facts upon which the
claim was predicated were unknown” and 2) “could
not have been ascertained by the exercise of due
diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
added).
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Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in
original). “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.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.
Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012).
Additionally, as this Court has often explained, all of the time-bar
exceptions are subject to a separate deadline.
The statutory exceptions to the timeliness
requirements of the PCRA are also subject to a
separate time limitation and must be filed within
sixty (60) days of the time the claim could first have
been presented. See 42 Pa.C.S.A. § 9545(b)(2).
The sixty (60) day time limit … runs from the date
the petitioner first learned of the alleged after-
discovered facts. A petitioner must explain when he
first learned of the facts underlying his PCRA claims
and show that he brought his claim within sixty (60)
days thereafter.
Id. (some citations omitted). Our Supreme Court has held that Section
9545(b)(2) also requires a showing of due diligence insofar that a petitioner
must file the petition within 60 days that the claim could have first been
presented. Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),
cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).
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Instantly, Appellant avers that his sister’s affidavit stating she told trial
counsel that Appellant was asleep at home at the time of the crimes, is a
newly-discovered fact for the purposes of Section 9545(b)(1)(ii).2
Appellant’s Brief at 6; PCRA Court Opinion, 3/13/15, at 4; Appellant’s PCRA
Petition 6/30/14, at 3. Appellant’s petition alleges that he “recently learned
[from] his sister that she told his trial attorney that [Appellant] was home
[a]sleep during the time that the assault and killing took place.” Appellant’s
PCRA Petition 6/30/14, at 3. Appellant further argued that he and “his sister
[have] been separated in their relationship for many years due to
irreconcilable differences.” Id. Appellant continues, “[h]owever, [he]
brought up his case and surprisingly he learned that his sister was home
while he was [a]sleep.” Id. Appellant further argues that he exercised due
diligence because “[e]ven had [Appellant] been in contact with his sister, he
would not have known to ask her about the night of the crime, because
[Appellant] could not clearly remember where he was the night of the
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2
Appellant does not set forth any other time bar exceptions regarding his
remaining issues asserting claims of actual innocence and ineffective
assistance of counsel. Therefore, the PCRA court and this Court lack
jurisdiction to consider the merits of these issues and we do not address
them. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa.
2000) (stating, “a claim for ineffective assistance of counsel does not save
an otherwise untimely petition for review on the merits[]”);
Commonwealth v. Fahy, 737 A.2d 214, 223, (Pa. 1999) (explaining that a
claim of actual innocence pertains to the merits of a timely second or
subsequent PCRA petition, but does not amount to an exception to the PCRA
time-bar).
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crime.” Appellant’s Brief at 7. Appellant further alleges that at the time, he
frequently spent nights with a female friend, so he assumed the night of the
crime he was at her residence. Id.
The PCRA court concluded that Appellant had not satisfied the newly-
discovered fact exception to the time-bar based on the following cogent
analysis.
Here, [Appellant]’s claim entitled to him to
neither an evidentiary hearing nor relief because he
failed to establish that the information contained in
his filings could not have been discovered previously.
Nearly twenty-five years after he was convicted,
[Appellant] claims [he] only recently learned that his
sister offered his trial counsel alibi evidence asserting
that [Appellant] was “home [a]sleep during the time
that the assault and killing took place.” Despite the
fact that [Appellant] surely knew where he asserts
he was and knew that his sister could support his
alibi he raised this claim for the first time in his fifth
PCRA petition. Clearly, [Appellant] did not exercise
due diligence with respect to this claim.
It is further noted that relief was properly
denied because he has not shown that he exercised
due diligence to obtain this evidence or why it could
not have been discovered sooner. “A petitioner must
explain why he could not have obtained the new
fact(s) earlier with the exercise of due diligence.
This rule is strictly enforced.” Commonwealth v.
Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)
(citations omitted). Thus, [Appellant] failed to
establish that he was duly diligent and his failure to
do so precluded review on this issue by this Court
because [Appellant] failed to overcome the time bar.
PCRA Court Opinion, 3/13/15, at 4-5.
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After careful review, we conclude Appellant has not met his burden
under Section 9545(b)(1)(ii). As the PCRA court noted, Appellant first raised
this claim in his fifth PCRA petition, filed more than 24 years since the
crimes took place. Although Appellant and his sister may have been
estranged, the due diligence requirement demanded that in those 24 years,
Appellant attempt to reach out to his sister to see if she had any information
that could help him. Therefore, we agree with the PCRA court that Appellant
has not shown that his petition was timely under Section 9545(b)(1)(ii).
See Bennett, supra; Williams, supra.
Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s PCRA petition as untimely. Accordingly, the PCRA
court’s January 22, 2015 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2016
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