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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SINORN DIP, : No. 789 EDA 2015
:
Appellant :
Appeal from the PCRA Order, March 17, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-1204602-2004
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 09, 2016
Sinorn Dip appeals from the order of March 17, 2015, dismissing his
second PCRA petition without an evidentiary hearing. Appellant sought to
invoke the after-discovered evidence exception to the one-year time bar,
relying on an affidavit from a key Commonwealth witness, Marcus Harris
(“Marcus”), recanting his trial testimony. After careful review, we affirm.
On direct appeal, this court summarized the underlying facts of this
matter as follows:
The evidence adduced at trial established that
in August 2004, Dip, his co-defendant St. John Pen
(“Pen”), and several of their friends went to confront
13-year-old Marquis Harris (“Harris”) at Harris’s
home because Pen suspected that Harris, his twin
brother Marcus, and their 15-year-old stepbrother,
Terrell Lovelace, Jr., had broken into his car and
stolen his car radio. Harris’s mother answered the
door. Pen stated his accusations and indicated that
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he wanted to fight her sons. She said there would
be no violence over the incident and told Pen that
her husband would go to his house to resolve the
situation. Harris’s stepfather, Terrell Lovelace
(“Lovelace”), went to Pen’s house and asked for an
estimate for the broken window and stolen radio,
telling Pen that he would pay him for his loss. No
estimate was ever given to Lovelace and Lovelace
did not pay Pen any money.
On September 25, 2004, Pen’s girlfriend’s car
was broken into, and Pen assumed that it was Harris
and his brothers who were responsible. Pen, Dip and
an unidentified third male went to confront Harris,
his brother, and three of their friends outside of a
local Chinese restaurant. Brandishing handguns, Dip
and Pen ordered the boys to get on the ground.
When they refused to do so, Pen, Dip and the
unidentified third assailant opened fire on the boys
as they ran away. Wayne Jones (“Jones”) and
Jermaine Myers (“Myers”), two of Harris’s friends,
were shot in the arm and back, respectively, while
Harris was shot twice in the leg, falling to the
ground. Pen stood over Harris and shot him in the
head at close range. Harris died shortly thereafter.
Pen and Dip were arrested, whereas the third
assailant was never apprehended or identified. Pen
gave two statements to police while in their custody,
implicating him and Dip in the events described
above.
Commonwealth v. Dip, No. 198 EDA 2007, unpublished memorandum at
*1-3 (Pa.Super. filed November 24, 2008).
On October 5, 2006, following a jury trial, appellant was convicted of
third-degree murder, 18 Pa.C.S.A. § 2502(c), and two counts of aggravated
assault, 18 Pa.C.S.A. § 2702. He was found not guilty of the remaining
charges including two counts of attempted murder, criminal conspiracy,
possessing instruments of crime, and firearms charges. Id. at *3.
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Appellant was sentenced to an aggregate of 15 to 30 years’ imprisonment.
Id. On November 24, 2008, this court affirmed the judgment of sentence.
On July 29, 2009, appellant filed a timely PCRA petition, and counsel
was appointed. Appellant amended and/or supplemented his petition on
three occasions. On December 13, 2011, his petition was dismissed without
an evidentiary hearing. Appellant filed a timely appeal, raising three claims
of trial counsel ineffectiveness. This court affirmed on December 28, 2012;
and on June 27, 2013, the Pennsylvania Supreme Court denied appellant’s
petition for allowance of appeal. Appellant did not file a petition for writ of
certiorari with the United States Supreme Court.
Appellant filed the instant petition, his second, on September 11,
2013, followed by an amended petition on May 24, 2014. Appellant alleged
that Marcus desired to recant his trial testimony and signed an affidavit to
that effect dated November 11, 2013. On March 17, 2015, appellant’s
petition was dismissed without a hearing, and this timely appeal followed.
Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the
PCRA court has filed a Rule 1925(a) opinion.
Appellant has raised the following issue for this court’s review:
1. Did the PCRA Court err in dismissing
Appellant’s second PCRA Petition without a
hearing and determining that Appellant’s
underlying second PCRA Petition was not
timely filed despite the fact that according to
42 Pa. C.S. §9545(b)(1)(iii) and 42 Pa. C.S.
§9545(b)(2), Appellant’s PCRA Petition was
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timely filed because of newly-discovered
evidence?
Appellant’s brief at 4 (footnote omitted).
“Our standard of review in reviewing an order either granting or
denying post-conviction relief is limited to examining whether the court’s
determination is supported by evidence of record and whether it is free of
legal error.” Commonwealth v. Albrecht, 720 A.2d 693, 698 n.3 (Pa.
1998) (citation omitted).
In 1995, the legislature amended the PCRA to
require that PCRA petitions must be filed within a
certain period of time. These amendments require
that 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 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. § 9545(b)(3). These timeliness
requirements are jurisdictional. Commonwealth v.
Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999). ‘[A]
court has no authority to extend filing periods except
as the statute permits.’ Id. (citation omitted).
Commonwealth v. Howard, 788 A.2d 351, 353 (Pa. 2002).
This court affirmed appellant’s judgment of sentence on November 24,
2008. Appellant did not seek allowance of appeal in the Pennsylvania
Supreme Court. Therefore, appellant’s judgment became final on or about
December 24, 2008, after the time for filing a petition for allowance of
appeal expired. Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 5571(a). Appellant had
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until December 24, 2009, one year later, to file a timely PCRA petition.
Since this petition, his second, was filed nearly five years after the date on
which appellant’s judgment became final, then it was obviously filed beyond
the one-year time limitation.
[T]he 1995 amendments afford three narrow
exceptions to the one-year time limitation for
seeking PCRA relief. One of the exceptions provides
that a party is excused from the general one-year
filing requirement of the PCRA if “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.” 42 Pa.C.S.A.
§ 9545(b)(1)(ii). This exception has come to be
known as the after-discovered evidence exception.
See Commonwealth v. Yarris, 557 Pa. 12, 731
A.2d 581, 592 (1999) (characterizing 42 Pa.C.S.A.
§ 9545(b)(ii) as “the after-discovered evidence
exception to the timeliness requirement”);
Commonwealth v. Peterkin, 554 Pa. 547, 722
A.2d 638, 643 (1998) (stating that “the exceptions
to [PCRA] filing period encompass government
misconduct, after-discovered evidence, and
constitutional changes”). Furthermore, as a
secondary proviso, the amendments mandate that
when a petitioner alleges entitlement to an exception
to the one-year time limitation, the petition will only
be addressed on substantive grounds if it is “filed
within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). Thus, a
petitioner relying on the after-discovered evidence
exception is further required to file his or her PCRA
petition within 60 days of the discovery of the new
evidence proffered in support of relief.
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
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
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those facts earlier by the exercise of due diligence.
Commonwealth v. Bennett, 593 Pa. 382, 395, 930
A.2d 1264, 1271 (2007). Due diligence demands
that the petitioner take reasonable steps to protect
his own interests. Commonwealth v. Carr, 768
A.2d 1164, 1168 (Pa.Super.2001). A petitioner must
explain why he could not have obtained the new
fact(s) earlier with the exercise of due diligence.
Commonwealth v. Breakiron, 566 Pa. 323,
330-31, 781 A.2d 94, 98 (2001); Commonwealth
v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590
(1999). This rule is strictly enforced. See
[Commonwealth v. Vega, 754 A.2d 714, 718
(Pa.Super.2000)].
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010),
appeal denied, 20 A.3d 1210 (Pa. 2011).
The sixty (60) day time limit related to Section
9545(b)(2) runs from the date the petitioner first
learned of the alleged after-discovered facts.
Commonwealth v. Albrecht, 606 Pa. 64, 994 A.2d
1091 (2010). 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. (holding petitioner failed to
demonstrate his PCRA petition was timely where he
did not explain when he first learned of facts
underlying his PCRA petition) (emphasis added). “A
petitioner fails to satisfy the 60-day requirement of
Section 9545(b) if he . . . fails to explain why, with
the exercise of due diligence, the claim could not
have been filed earlier.” Commonwealth v.
Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720
(2008) (emphasis added). All of the time limits set
forth in the PCRA are jurisdictional and must be
strictly construed. Commonwealth v. Fahy, 598
Pa. 584, 589, 959 A.2d 312, 315 (2008).
Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.Super. 2011), appeal
denied, 50 A.3d 121 (Pa. 2012).
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In his petition, appellant alleged that he learned from prior PCRA
counsel, John P. Cotter, Esq., on or about August 8, 2013, that Marcus
recanted his trial testimony and he then filed his petition on September 11,
2013, within 60 days. Appellant stated that, “There is no way that Petitioner
could have known Marcus Harris’ current position sooner because Mr. Harris
testified against Petitioner at trial.” (Amended PCRA petition, 5/24/14 at 6;
Docket #41.) Appellant attaches an affidavit dated November 11, 2013, in
which Marcus disavows his trial testimony and states that he lied when he
testified that he saw appellant shoot his twin brother. (Id., Exhibit A.)
Marcus alleges that he was “young and scared” and his statements were
coerced. (Id.)
However, appellant also attaches an August 2, 2011 letter from
Attorney Cotter to Richard W. Strohm, a private investigator, stating, in
part, that “[Appellant] claims that he is innocent and that Marcus Harris . . .
who testified for the Commonwealth at trial wants to recant his testimony of
9-25-06,” and asking Mr. Strohm to interview Marcus. (Id., Exhibit B.)
Appellant also attaches an October 24, 2011 letter from Attorney Cotter to
Marcus stating, in part, “I have information which leads me to believe that
you wish to recant your testimony in the case which means that what you
told the jury on 9-25-06 was not correct or not truthful.” (Id.) Therefore,
the record indicates that appellant had information as early as 2011 that
Marcus desired to recant his testimony.
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In fact, appellant fails to plead the exact date on which he allegedly
became aware that Marcus wanted to recant. Appellant uses the date of
August 8, 2013, when Attorney Cotter forwarded a letter from Marcus dated
August 5, 2013 indicating that he wanted to recant and requesting of
Attorney Cotter, “So if you [are] still representing this defendant, could you
write me back as soon as possible and let me know what I have to do about
recanting my statement[,] thank you!!!” (Id.) However, by his own
admission, appellant knew in 2011 that Marcus wanted to recant.
Attorney Cotter’s August 2, 2011 letter to Mr. Strohm indicates that
appellant had information to the effect that Marcus wanted to recant his trial
testimony. Appellant fails to explain when or how he obtained this
information. The operative date is not August 5, 2013, when Marcus wrote
to Attorney Cotter, or November 11, 2013, the date of Marcus’s affidavit;
rather, the key date is when appellant first knew, or with the exercise of
reasonable diligence should have known, of this new evidence. Appellant
has failed to plead and prove the applicability of the after-discovered
evidence exception to the one-year time bar; specifically, that he filed his
petition within 60 days.
Appellant also argues that his petition is timely because his first
petition was still pending in 2011 when he first heard of Marcus’ desire to
recant. (Appellant’s brief at 17.) Appellant argues that he could not raise
the issue in a second petition while the first petition was being litigated.
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(Id.) According to appellant, dismissal of appellant’s first petition did not
become final until September 27, 2013, when the time for filing a petition
for writ of certiorari with the United States Supreme Court expired. (Id. at
18.)
A second appeal cannot be taken when another
proceeding of the same type is already pending.
See C.J.S. Appeal and Error § 20 (“As a general rule
a second proceeding to obtain a review by an
appellate court cannot be taken while a prior valid
proceeding for such purpose is still pending, and if it
is attempted, the second proceeding will be
dismissed, unless it has been validated by the
abandonment of the first proceeding, or the first
proceeding is so defective and ineffectual that it
cannot properly be regarded as pending.”) (footnotes
omitted).
We now hold that when an appellant’s PCRA
appeal is pending before a court, a subsequent PCRA
petition cannot be filed until the resolution of review
of the pending PCRA petition by the highest state
court in which review is sought, or upon the
expiration of the time for seeking such
review.[Footnote 2] If the subsequent petition is not
filed within one year of the date when the judgment
became final, then the petitioner must plead and
prove that one of the three exceptions to the time
bar under 42 Pa.C.S. § 9545(b)(1) applies. The
subsequent petition must also be filed within sixty
days of the date of the order which finally resolves
the previous PCRA petition, because this is the first
“date the claim could have been presented.”
42 Pa.C.S. § 9545(b)(2).
[Footnote 2] We note that this holding
will not preclude a trial court from
granting leave to amend a PCRA petition
that is currently pending before that
court.
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Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). Further, the PCRA
court does not have jurisdiction to adjudicate any issues raised in a
subsequent PCRA while an appeal is pending. Id.
From our review of the record, appellant failed to raise this argument
until his brief on appeal. Appellant did not raise it in his pro se PCRA
petition, his counselled amended petition, his response to Rule 907 notice,
or in his Rule 1925(b) statement. In the court below, appellant argued that
the instant petition was filed within 60 days of August 8, 2013, when he
learned from Attorney Cotter that Marcus wanted to recant his eyewitness
testimony. Appellant never argued that his second petition was timely
because it was filed within 60 days of his first petition being finally resolved.
As this argument is being raised for the first time on appeal, it is deemed
waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”);
Pa.R.A.P. 1925(b)(4)(vii) (issues not included in the Rule 1925(b) statement
are waived).
Furthermore, the argument would be unavailing where, as discussed
supra, appellant fails to plead when he first became aware that Marcus
wanted to recant. He obviously knew at least as early as late July/early
August 2011, when Attorney Cotter sought the assistance of a private
investigator to interview Marcus. How much earlier is speculation. His first
petition was filed on July 29, 2009, and dismissed on December 13, 2011.
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At a minimum, appellant could have sought leave to amend his petition to
include a claim of after-discovered evidence in the form of recantation
testimony.
Appellant has failed to show that his untimely petition satisfies the
after-discovered evidence exception to the statutory one-year time bar.
Therefore, the PCRA court was without jurisdiction to consider the merits of
appellant’s petition and did not err in dismissing appellant’s petition without
a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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