J-S71029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES SAMPLE
Appellant No. 1745 EDA 2015
Appeal from the PCRA Order August 30, 2012
in the Court of Common Pleas of Philadelphia County
Criminal Division, at No(s): CP-51-CR-0517451-1991
BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 16, 2016
James Sample (“Appellant”) filed this pro se appeal from the order
dismissing as untimely his serial petition filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The pertinent facts and procedural history are as follows. In 1992, a
jury convicted Appellant of first-degree murder and related charges. The trial
court immediately sentenced him to life in prison without the possibility of
parole for the murder conviction, as well as concurrent terms for the
remaining convictions. Following the denial of post-sentence motions,
Appellant filed a timely appeal to this Court. In an unpublished
memorandum decision, we affirmed Appellant’s judgment of sentence. See
____________________________________________
Former Justice specially assigned to the Superior Court.
J-S71029-16
Commonwealth v. Sample, 3655 Philadelphia 1992 (Pa. Super., filed June
6, 1994). On April 11, 1995, our Supreme Court denied Appellant’s allocatur
petition. See Commonwealth v. Sample, 658 A.2d 794 (Pa. 1995)
(Table). Appellant did not file a petition for a writ of certiorari to the United
States Supreme Court.
Appellant filed a timely pro se PCRA petition. The PCRA court
appointed counsel who later filed a motion to withdraw and 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).
After providing notice of its intent to dismiss without a hearing, the PCRA
court entered an order on January, 9, 1998, dismissing Appellant’s petition
and permitting counsel to withdraw. Appellant filed a timely appeal. In an
unpublished memorandum decision, we affirmed the order denying Appellant
post-conviction relief. See Commonwealth v. Sample, 595 Philadelphia
1998 (Pa. Super., filed September 9, 1999). On February 4, 2000, our
Supreme Court denied Appellant’s allocatur petition. See Commonwealth
v. Sample, 751 A.2d 189 (Pa. 2000) (Table).
On May 5, 2006, Appellant filed a second pro se PCRA petition, in
which he asserted a newly-discovered evidence claim in the form of a
statement from Raymond Curry. In this statement, Curry asserted that he
had witnessed a shooting in the Abbottsford housing project in September
1990. Although he stated that he saw the face of perpetrator, Curry did not
identify the shooter or even claim that the shooting involved the victim.
-2-
J-S71029-16
Further, as established in the Commonwealth’s motion to dismiss, despite
Curry’s statement that he could be reached at a Philadelphia residence, 2006
prison records established that Curry was a fellow inmate in the same
correctional institution in which Appellant as incarcerated. See Motion to
Dismiss, 2/16/07, at 8.
The PCRA court dismissed Appellant’s second PCRA petition on
November 26, 2007. Appellant filed a timely appeal. In an unpublished
memorandum decision, we affirmed the denial of post-conviction relief. See
Commonwealth v. Sample, 3213 EDA 2007 (Pa. Super., filed May 29,
2009). In addressing Appellant’s claim of newly discovered evidence based
on Curry’s statement, we concluded that “the PCRA court ably summarized
the applicable law, thoroughly addressed [Appellant’s] claim . . . and
correctly determined that it lacked merit.” Id., at 7. This Court, therefore,
adopted the “sound reasoning of the PCRA court” as our own in denying
relief. Id. On October 6, 2009, our Supreme Court denied Appellant’s
allocatur petition. See Commonwealth v. Sample, 981 A.2d 219 (Pa.
2009) (Table).
On August 3, 2010, Appellant filed the pro se PCRA petition at issue.
Within this petition, he asserted that he had hired a private investigator who
located and interviewed Curry on July 2, 2010. Appellant then attached to
his petition a new statement from Curry, in which Curry claimed that he
recognized the victim’s identity and that the shooter was not Appellant.
After providing proper notice, the PCRA court dismissed the petition on
-3-
J-S71029-16
August 30, 2012. Although Appellant did not file a timely appeal, the PCRA
court granted a subsequent PCRA petition, and reinstated Appellant’s
appellate rights nunc pro tunc on May 12, 2015. This timely appeal follows.
Appellant states his sole issue raised on appeal as follows:
The [PCRA] court abused [its] when it denied the PCRA
petition filed, *on August 3, 2010, [sic] in which the
private investigator Mr. Mark H. Shaffer’s interview
statement of Raymond Curry, proved that the shooter who
Curry saw shoot and kill [the victim], was not [Appellant].
The [PCRA] court was responsible for the monumental
delay in having this PCRA petition litigated in a timely
manner causing Appellant serious prejudice, as to
Appellant’s actual innocence.
Appellant’s Brief at 2.1
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. See Commonwealth v.
Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified
record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001). Moreover, “[a] PCRA court may decline to hold a hearing if the
petitioner's claim is patently frivolous and is without a trace of support in
____________________________________________
1
The “monumental delay” to which Appellant refers involves his claim that
he never received a copy of the PCRA court’s notice of intent to dismiss his
third petition, and his need to twice petition our Supreme Court to direct the
PCRA court to adjudicate the claim.
-4-
J-S71029-16
either the record or from other evidence.” Commonwealth v. Jordan, 772
A.2d 1011, 1104 (Pa. Super. 2001) (citation omitted).
To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from an enumerated error or defect, see § 9543(a)(2), and that the
issues he raises have not been previously litigated, see § 9543(a)(3). “An
issue has been previously litigated if … the issue has been raised and
decided in a proceeding collaterally attacking the conviction or sentence.”
Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa. 1999) (citations
omitted).
In addition, because this is Appellant’s third petition for post-conviction
relief, he must meet a more stringent standard. “A second or any
subsequent post-conviction request for relief will not be entertained unless a
strong prime facie showing is offered to demonstrate that a miscarriage of
justice may have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233,
236 (Pa. Super. 2003) (en banc) (citations and internal quotation marks
omitted). “A petitioner makes a prime facie showing if he demonstrates that
either the proceedings which resulted in his conviction were so unfair that a
miscarriage of justice occurred which no civilized society could tolerate, or
that he was innocent of the crimes for which he was charged.” Id. (citations
and internal quotation marks omitted).
-5-
J-S71029-16
The timeliness of a post-conviction petition is jurisdictional. See
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final, unless the petition alleges and proves an exception to the time for
filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claims could have been presented.” Hernandez, 79 A.3d at
651-52 (citing 42 Pa.C.S.A. § 9545(b)(2)).
Appellant’s judgment of sentence became final on July 10, 1995 when
the applicable period for filing a writ of certiorari to the United States
Supreme Court expired. See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. § 9545(b)(3).
July 10, 1996, was the one-year cut off for a timely PCRA petition. Appellant
filed the petition at issue in 2010; it is patently untimely unless he has
satisfied his burden of pleading and proving that one of the enumerated
exceptions applies.
Within his brief, Appellant claims that he filed his 2010 PCRA petition
within sixty days of receiving Curry’s 2010 statement. According to
Appellant, because Curry did not identify the shooter in his prior statement,
this later statement, which exculpates him, establishes an exception to the
PCRA’s time bar. We disagree.
-6-
J-S71029-16
When considering a PCRA’s petitioner’s claim that he has established
an exception to the PCRA’s time bar under section 9545(b)(1)(ii), the
petitioner must establish only that the facts upon which the claim are
predicated were unknown to him, and that he could not have ascertained the
facts earlier despite the exercise of due diligence. See Commonwealth v.
Bennett, 930 A.2d 1264, 1272 (Pa. 2007). The determination of timeliness
does not require a merits analysis. See Commonwealth v. Abu-Jamal,
941 A.2d 1263, 1268 (Pa. 2008).
Appellant does not demonstrate the exercise of due diligence.
Although he asserts he filed his latest PCRA petition within sixty days of the
discovery of Curry’s 2010 statement, he offers no explanation as to why,
with the exercise of due diligence, this information could not have been
discovered earlier. This is especially true given the fact that, at the time
Curry made his statement in 2006, he was housed in the same correctional
institution as Appellant.2
Even if Appellant could demonstrate due diligence issue regarding the
purported identification testimony possessed by Curry was previously
litigated in Appellant’s 2006 petition. As explained by the PCRA court:
____________________________________________
2
This fact is further confirmed by the investigator’s report that when Curry
was interviewed in 2010 he remained incarcerated, albeit in a different
correctional facility, and that his prisoner number matched that identified by
the Commonwealth in its 2006 motion to dismiss. Compare Motion to
Dismiss, 2/16/07; PCRA Petition, 8/3/10, Exhibit C.
-7-
J-S71029-16
Appellant has utilized [the reinstatement of his appellate rights]
to merely reinstate the same claims that . . . have been
previously decided. . . . [He] asserts the same claim of error in
the form of “after discovered evidence.” Appellant claims that an
affidavit by Raymond Curry, which he argues defeats the
untimeliness requirement, would prove his innocence. [He] has
asserted this same issue in his previous petitions, which had
been reviewed by the Superior Court in post-conviction appeals.
PCRA Court Opinion, 12/31/15, at 5 (unnumbered). See also
Commonwealth v. Sample, 3213 EDA 2007, at 5-7 (Pa. Super., filed May
29, 2009).
Our review of the record supports this conclusion. Thus, for all of the
above reasons, the PCRA court correctly determined that Appellant was
ineligible for post-conviction relief. We therefore affirm the PCRA court’s
order denying Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2016
-8-
Com. v. Sample, J.
Combined Opinion