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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DILEEF HASSA STRICKLAND,
Appellant No. 1897 MDA 2016
Appeal from the PCRA Order October 17, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005342-2007
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 08, 2017
Appellant, Dileef Hassa Strickland, appeals pro se from the October
17, 2016 order dismissing his third petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously set forth the factual background of this case as
follows:
On the afternoon of May 7, 2007, Appellant, and another man,
Michael Scott [(“Scott”)], were driving around when Appellant
spotted Donte Hammond [(“Hammond”)] on a street corner.
Having been robbed by Hammond previously, Appellant decided
to confront Hammond to get his money back. Before doing so,
he drove back to his home to retrieve a gun and then returned
to where Hammond was previously seen. Appellant asked
Hammond for his money, and when Hammond indicated he did
not have it, Appellant suggested a fist fight to settle the debt.
As Hammond turned and walked away, Appellant started
shooting Hammond. Hammond was shot in the back four times
and was pronounced dead shortly after being taken to the
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hospital. [A three-year-old child] also suffered a gunshot wound
to her forearm as a result of the shooting.
After the shooting, Appellant and Scott fled the scene. A pursuit
ensued, and once police managed to block the suspects’ vehicle,
the suspects fled on foot. Police were able to apprehend Scott,
but Appellant got away. After months of searching for Appellant,
authorities finally apprehended him on September 20, 2007.
Commonwealth v. Strickland, 996 A.2d 557 (Pa. Super. 2010)
(unpublished memorandum), at 1-2, appeal denied, 4 A.3d 1053 (Pa. 2010)
(internal alterations omitted).
The relevant procedural history of this case is as follows. On February
12, 2009, Appellant was convicted of third-degree murder,1 aggravated
assault,2 carrying a firearm without a license,3 and recklessly endangering
another person.4 On May 22, 2009, the trial court sentenced Appellant to an
aggregate term of 21 to 42 years’ imprisonment. On direct appeal, this
Court affirmed his judgment of sentence and our Supreme Court denied
allowance of appeal. See generally id.
On April 4, 2011, Appellant filed a pro se PCRA petition. Counsel was
appointed and filed an amended petition. On March 6, 2012, the PCRA court
denied the petition. This Court affirmed and our Supreme Court denied
allowance of appeal. Commonwealth v. Strickland, 60 A.3d 585 (Pa.
1
18 Pa.C.S.A. § 2502(c).
2
18 Pa.C.S.A. § 2702(a)(1).
3
18 Pa.C.S.A. § 6106(a)(1).
4
18 Pa.C.S.A. § 2705.
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Super. 2012) (unpublished memorandum), appeal denied, 63 A.3d 777 (Pa.
2013). On March 21, 2013, Appellant filed a second pro se PCRA petition.
On April 24, 2013, the PCRA court dismissed the petition. This Court
affirmed and our Supreme Court denied allowance of appeal.
Commonwealth v. Strickland, 100 A.3d 319 (Pa. Super. 2014)
(unpublished memorandum), appeal denied, 99 A.3d 925 (Pa. 2014).
On August 31, 2016, Appellant filed this, his third, pro se PCRA
petition. On September 20, 2016, the PCRA court issued notice of its intent
to dismiss the petition without an evidentiary hearing. See Pa.R.Crim.P.
907(A). On October 17, 2016, the PCRA court dismissed the petition without
an evidentiary hearing. This timely appeal followed.5
Appellant presents four issues for our review:
1. Did the [PCRA] court err in denying Appellant’s third [PCRA
petition] as untimely filed within the [newly-discovered fact]
timeliness exception on the basis that [Appellant] has not
provided any new facts only a newly discovered or newly
willing source for previously known facts?
2. Did the [PCRA] court err when it said that [Appellant’s]
allegedly newly discovered evidence would have not altered
the outcome of [trial] and would have been for mere
cumulative purposes?
3. Did the [PCRA] court err when it stated that [A]ppellant’s new
evidence of a witness seeing Jermaine Sabb [(“Sabb”)] with a
gun and hearing him conspire[] with Hammond to shoot
Appellant was the same evidence Appellant testif[ied] to and
presented in [] Scott’s letter?
5
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). Nonetheless, the PCRA
court issued an opinion on November 21, 2016.
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4. Did the [PCRA] court err by not addressing if Appellant would
or would not have the right to challenge [S]abb’s testimony
base[d] on Appellant’s new evidence of a witness seeing
[S]abb with a gun and hearing him conspire with Hammond
to shoot Appellant?
Appellant’s Brief at 3.
Although framed as four discrete issues, Appellant only challenges the
PCRA court’s determination that he failed to plead and prove the applicability
of the newly-discovered fact timeliness exception to the PCRA’s one-year
time bar. The timeliness requirement for PCRA petitions “is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
merits of the petition.” Commonwealth v. Ward-Green, 141 A.3d 527,
531 (Pa. Super. 2016), appeal granted on other grounds, 2016 WL 7386799
(Pa. Dec. 21, 2016) (citation omitted). “The question of whether a petition
is timely raises a question of law. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review plenary.”
Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017)
(citation omitted).
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[A]
judgment [of sentence] 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.A. § 9545(b)(3). Appellant’s judgment of sentence
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became final on November 24, 2010, at the expiration of the time for
seeking review by the Supreme Court of the United States. See U.S. Sup.
Ct. R. 13. Appellant’s instant petition, his third, was filed on or about August
31, 2016. Thus, the petition was patently untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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 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.
42 Pa.C.S.A. § 9545(b)(1). If an exception applies, a PCRA petition may be
considered if it is filed “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).
Appellant argues that he satisfied the newly-discovered fact timeliness
exception. As this Court explained:
The newly-discovered fact exception 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. If the petitioner alleges and proves
these two components, then the PCRA court has jurisdiction over
the claim under this subsection.
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Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (citation
omitted).
Appellant contends that Rafiq Vanhook’s (“Vanhook’s”) statement,
which he attached to his PCRA petition, shows that Sabb attempted to give
Hammond a gun during the confrontation so Hammond could shoot
Appellant. In a closely related argument, Appellant contends that Vanhook’s
statement shows that Sabb had a gun during the confrontation. This
argument fails because Vanhook’s statement is only a “newly willing source
for previously known facts.” Ward-Green, 141 A.3d at 533 (citation
omitted). Such a source does not qualify as a fact unknown to the
petitioner. Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.
2015), appeal denied, 125 A.3d 1197 (Pa. 2015).
At trial, Appellant testified that Hammond threated him during the
confrontation and that he turned to Sabb to get a gun. N.T., 2/11/09, at
492-494.6 Furthermore, Scott testified that he previously stated that
Hammond threated Appellant with a gun during the confrontation. Id. at
404. Therefore, at the time of trial Appellant was fully aware that Sabb
attempted to give Hammond a gun during the confrontation so Hammond
could shoot Appellant (and therefore that Sabb had a gun during the
confrontation).
6
The notes of testimony for the entire trial are consecutively numbered. We
cite to the correct date and the page number as reflected on the notes of
testimony.
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Appellant nonetheless argues that Vanhook’s statement was a newly
discovered fact because he was unaware why Hammond attempted to
retrieve the gun from Sabb during the confrontation. At trial, however,
Appellant testified that Hammond “was going to shoot me or try to shoot me
or whatever.” N.T., 2/11/09, at 493. Moreover, the only reasonable
explanation for Hammond attempting to retrieve a gun during the
confrontation was so he could shoot Appellant. Accordingly, we conclude
that Appellant failed to plead and prove the applicability of the newly-
discovered fact exception to the PCRA’s one-year time bar. As such, the
PCRA court properly dismissed Appellant’s third PCRA petition for lack of
jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2017
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Com. v. Strickland, D.
Combined Opinion