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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
THOMAS LEWIS TERRY
Appellant No. 547 WDA 2016
Appeal from the PCRA Order March 31, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015702-1991
BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED APRIL 17, 2017
Thomas Lewis Terry appeals, pro se, from the March 31, 2016 order of
the Allegheny County Court of Common Pleas dismissing as untimely his
eighth petition filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46. We affirm.
This Court summarized the procedural history of this case in a prior
PCRA appeal as follows:
On July 9, 1993, a jury convicted Terry of burglary,
aggravated assault,1 and spousal sexual assault.2 After
sentencing and post-sentencing proceedings, Terry
appealed and this Court affirmed his judgment of sentence
on January 19, 1995. Terry filed a petition for allowance
of appeal to our Supreme Court, which was denied on July
17, 1995. Terry did not file a petition for a writ of
certiorari to the United States Supreme Court within the
ninety days allowed by Supreme Court Rule 13.1.
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*
Retired Senior Judge assigned to the Superior Court.
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Consequently, Terry’s judgment of sentence became final
on October 16, 1995[]3 . . . .
1
See 18 Pa.C.S. §[§] 3502 and 2702, respectively.
2
See 18 Pa.C.S. § 3128, repealed by Act of March 31,
1995, P.L. 985, No. 10, § 10.
3
The ninetieth day fell on October 15, 1995, but that
date fell on a Sunday. Consequently, Terry’s last day to
file a timely certiorari petition was Monday[,] October
16, 1995. See Sup. Ct. R. 30.1.
Commonwealth v. Terry, No. 368 WDA 2014, unpublished mem. at 1-2
(Pa.Super. filed Dec. 18, 2014).
Terry filed the instant pro se PCRA petition, his eighth, on March 10,
2016. On March 15, 2016, the PCRA court issued a notice of intent to
dismiss the petition as untimely under Pennsylvania Rule of Criminal
Procedure 907, to which Terry filed a pro se response. On March 31, 2016,
the PCRA court dismissed Terry’s petition. On April 14, 2016, Terry filed a
timely notice appeal and Pennsylvania Rule of Appellate Procedure 1925(b)
statement with the PCRA court. He then filed an amended Rule 1925(b)
statement on May 5, 2016.
On appeal, Terry raises the following issues:
Issue I: Whether United States Supreme Court has
established that the deception of the court and jury by the
knowing presentation [of] false evidence violates the due
process guarantees of the Fourteenth Amendment. The
Court explained that due process is a requirement that
c[a]nnot be deemed to be satisfied by mere notice and
hearing if a state has contrived a conviction through the
pretense of a trial which in truth is but used as means of
depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of
testimony known to be perjured. Such a contrivance by a
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state to procure the conviction and imprisonment of a
defendant is as inconsistent with the rudimentary demands
of justice as is the obtaining of a like result by intimidation.
Issue II: Whether prosecutor misconduct would violate a
defendant’s due process rights . . . when the State,
although not soliciting false evidence, allows it to go
uncorrected when it appears. A prosecutorial misconduct
claim may arise when the undisclosed evidence
demonstrates that the prosecution’s case includes perjured
testimony and the prosecution knew, or should have
known, of the perjury?
Issue III: Whether the Government Interference Exception
to the timeliness requirement is applicable, petitioner
alleged that his PCRA petition was not untimely, as he
claimed that there was certain after-discovered evidence
which would have changed the outcome of his trial had the
information been available?
Issue IV: Whether petitioner is entitled to circumvent the
timeliness requirement [for] filing a PCRA petition because
he has after-discovered evidence that would change the
outcome of his case had it been available at the time of
trial?
Issue V: Whether the Opinion failed to address the
recantation of the witnesses perjured testimony that is
presented in the PCRA petition along with the offering of
the witnesses compensation in exchange for false
testimony that recantation is new evidence after-
discovered evidence after trial [and] the court abuse[d] its
discretion [by] not reviewing the perjured testimony which
would require[] [an] evidentiary hearing to the truth-
determining process of the witnesses credibility.
Issue VI: Whether Newly discovered evidence of
recantation which related specifically to the very evidence
supporting defendant’s conviction qualified as more than
impeaching, even if it was subsequently repudiated.
Furthermore the recantation was certainly material to the
issues involved, []going to the very heart of defendant’s
guilt or innocence. The witness’s recantation of his key
testimony, even if subsequently repudiated or not qualified
as the type of newly discovered evidence for which relief
was available?
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Terry’s Br. at 4 (citations omitted).
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Melendez-Negron,
123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s
factual findings “unless there is no support for [those] findings in the
certified record.” Id.
We must first address the timeliness of Terry’s PCRA petition, which is
a jurisdictional requisite. See Commonwealth v. Brown, 111 A.3d 171,
175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A petitioner must
file a PCRA petition, including a second or subsequent petition, within one
year of the date his or her judgment of sentence becomes final. 42 Pa.C.S.
§ 9545(b)(1). Here, the Pennsylvania Supreme Court denied Terry’s petition
for allowance of appeal on July 14, 1995. Terry did not seek review with the
United States Supreme Court, so his judgment of sentence became final 90
days later, on October 16, 1995.1 See 42 Pa.C.S. § 9545(b)(3); U.S. S. Ct.
R. 13. Thus, the instant PCRA petition, filed on March 10, 2016, was facially
untimely.
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1
Where a petitioner’s judgment of sentence became final on or before
January 16, 1996, the effective date of the 1995 amendments to the PCRA,
a grace proviso allowed the petitioner to file a timely first PCRA petition by
January 16, 1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-
57 (Pa.Super. 1997). Terry filed his first PCRA petition on January 22, 1996.
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To overcome the time bar, Terry was required to plead and prove one
of the following exceptions: (i) unconstitutional interference by government
officials; (ii) newly discovered facts that could not have been previously
ascertained with due diligence; or (iii) a newly recognized constitutional right
that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-
(iii). To invoke one of these exceptions, Terry must have filed his petition
within 60 days of the date the claim could have been presented. See 42
Pa.C.S. § 9545(b)(2).
In the instant PCRA petition, Terry attempted to assert the
governmental interference and “new facts” exceptions to the one-year time
bar. Both claims are based on Terry’s alleged discovery of prosecutorial
misconduct. However, as the PCRA court correctly determined:
[Terry] claims that either the District Attorney actively
encouraged witnesses to lie during his trial by offering
them compensation in exchange for false testimony, or
was aware that witnesses provided false testimony and did
nothing about it. [Terry] asserts that he learned of a
“reward fund.” [He] did not clearly state, but insinuated[,]
that he learned of the reward fund through recanted
witness testimony. However, [Terry] did not provide any
details about the alleged reward fund or any information
that confirms that the reward fund is anything more than
mere speculation on [his] part. [Terry] also failed to
provide the date on which he became aware of the reward
fund.
PCRA Ct. Op., 8/1/16, at 4. Terry failed to establish that he filed his petition
within 60 days of discovering this allegedly new information. See 42 Pa.C.S.
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§ 9545(b)(2).2 Therefore, the PCRA court lacked jurisdiction over Terry’s
petition.
Accordingly, because Terry’s eighth PCRA petition was untimely filed
and he failed to prove an exception to the one-year time bar, we conclude
that the PCRA court properly dismissed the petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2017
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2
In his initial Rule 1925(b) statement, Terry also asserted a claim of
an illegal sentence under Alleyne v. United States, 133 S. Ct. 2151
(2013), but he has abandoned that claim on appeal.
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