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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID LEE :
:
Appellant : No. 2416 EDA 2018
Appeal from the PCRA Order Entered July 11, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0431051-1988
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 16, 2019
David Lee appeals from the order dismissing his petition filed under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, for
untimeliness. We affirm.
In 1987, Lee, with Carl Gooding, shot and killed Tim Lynch. Following a
bench trial, the court convicted Lee of first-degree murder, criminal
conspiracy, and possessing an instrument of crime, and sentenced him to
serve a mandatory term of life imprisonment for first-degree murder.1 This
Court affirmed Lee’s judgment of sentence on January 30, 1991. See
Commonwealth v. Lee, 585 A.2d 1084 (Pa.Super. 1991). Lee did not seek
review in the Supreme Court of Pennsylvania.
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1 The trial court imposed lesser, consecutive sentences for the other
convictions.
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Lee filed the instant PCRA petition, his first, on May 31, 2011. Lee
asserted he was entitled to relief based on the United States Supreme Court’s
decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The
court appointed counsel, who filed an amended petition.2 The PCRA court
issued a Rule 907 notice of its intent to dismiss the petition without a hearing,
and thereafter dismissed the petition as untimely.
Lee appealed, and raises the following:
I. Did the Honorable PCRA Court err in denying relief, without
holding an evidentiary hearing, even though the
Defendant/Appellant pled that he was eligible for PCRA relief, and
is entitled to a new trial, as the result of a change in the law which
impacted his constitutional right of confrontation and which made
his trial constitutionally infirm as trial counsel did not assert this
issue and did not effectively challenge same?
Lee’s Br. at 3.
Our standard of review of an order denying relief under the PCRA “is
limited ‘to whether the PCRA court’s determination is supported by evidence
of record and whether it is free of legal error.’” Commonwealth v. Hart, 199
A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew, 189 A.3d
486, 488 (Pa.Super. 2018)).
The timeliness of a PCRA petition is a jurisdictional prerequisite; if a
petition fails to satisfy the statutory timeliness requirements, a PCRA court
has no jurisdiction to grant relief. Commonwealth v. Rizvi, 166 A.3d 344,
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2The docket reflects that an attorney entered his or her appearance in 2014,
but that the attorney was relieved in 2015. Instant counsel entered his
appearance in 2015, and filed an amended petition in 2017.
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347 (Pa.Super. 2017). A PCRA petition must be filed within one year of the
date the petitioner’s judgement of sentence becomes final, which is at the
conclusion of direct review or the expiration of time for seeking such review.
42 Pa.C.S.A. § 9545(b)(1), (3). In addition, petitioners who were convicted
prior to January 16, 1996 had one year, until January 16, 1997, to file a first
petition. See Commonwealth v Banks, 726 A.2d 374, 376 (Pa. 1999). As
Lee’s judgment of sentence became final in 1991, and he did not file his
petition until 2011, the petition is facially untimely.
A petition filed after the deadline may be deemed timely if one of three
enumerated exceptions applies. Under the third exception, a petition is timely
if “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)(iii). If the exception applies,
the petitioner must prove the petition was filed within 60 days of the earliest
date it might have been filed. Id. at § 9545(b)(2).3
Lee argues that the petition is timely because he filed it within 60 days
of discovering the decision of Melendez-Diaz. Lee’s Br. at 8.4 Lee posits that
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342 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one
year to file a petition. The amendment applies to claims arising on or after
December 24, 2017, and thus does not apply to Lee’s 2011 petition.
4“In Melendez–Diaz, the Court held that lab reports admitted to establish a
defendant’s guilt constituted testimonial statements covered by the
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although Melendez-Diaz does not provide “clear guidance . . . as to whether
the decision should be retroactive or not,” Lee should be provided relief if this
Court finds that Melendez-Diaz announced a new rule of law, implicating his
constitutional rights, that should be given retroactive effect on collateral
review. Id.
Lee’s petition fails to meet the exception to the time-bar. First, the
operative date for the purposes of the after-recognized constitutional right
exception is the date of the decision, not the date of the petitioner’s discovery
of the decision. See Commonwealth v. Brandon, 51 A.3d 231, 236
(Pa.Super. 2012); Commonwealth v. Leggett, 16 A.3d 1144, 1146
(Pa.Super. 2011). Lee’s 2011 petition was not filed within 60 days of the June
25, 2009 Melendez-Diaz decision, and therefore that decision cannot provide
the basis for the timeliness exception.
Furthermore, this exception only applies if the Supreme Court of
Pennsylvania or the United States Supreme Court has already determined
that the newly-recognized constitutional right is to be given retroactive effect
on collateral review. See Leggett, 16 A.3d at 1147 (citing Commonwealth
v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007)). Here, counsel concedes
that the Melendez-Diaz decision does not announce it is applicable
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Confrontation Clause of the United States Constitution and that such reports
were inadmissible unless the defendant had the opportunity to cross-examine
the lab analyst at trial.” Commonwealth v. Barton-Martin, 5 A.3d 363, 365
(Pa.Super. 2010).
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retroactively on collateral review; nor does counsel argue that the
Pennsylvania Supreme Court has tendered such a holding.
Finally, we have established that the United States Supreme Court did
not recognize a new constitutional right in Melendez-Diaz, and again, neither
that court nor the Pennsylvania Supreme Court has held that the Melendez-
Diaz decision applies retroactively to cases on collateral review. See
Brandon, 51 A.3d at 236; Leggett, 16 A.3d at 1147-48.
As Lee has failed to prove he is entitled to an exception to the PCRA’s
timeliness requirements, we affirm the order dismissing his petition as
untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/19
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