Com. v. Sims, R. ( 2021 )

J-A07024-21
2021 PA Super 79COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
RODERICK SIMS :
: No. 1065 MDA 2020
Appellant
Appeal from the Order Entered August 4, 2020
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000385-2008
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY DUBOW, J.: FILED APRIL 23, 2021
Appellant Roderick Sims appeals pro se from the August 4, 2020 Order
denying his “Motion for DNA Testing.”1 After review, we affirm.2
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* Former Justice specially assigned to the Superior Court.
1 Appellant’s Notice of Appeal references two separate Orders, each entered
August 4, 2020, one of which denied his “Motion for DNA Testing” and the
other denied his “Amendment for Motion for DNA Testing.”
2 Since filing his appellate Brief and three amendments, Appellant has filed six
additional “Motions to Amend.” The proposed amendments are duplicative of
each other and of the arguments raised in his Brief and its permitted
amendments. See Motion to Amend (AA), filed 3/10/21; Motion to Amend
(AA-2), filed 3/24/21; Motion to Amend (AA-3), filed 3/24/21, Motion to
Amend (AA-4), filed 3/24/21; Motion to Amend (AA2-1), filed 3/30/21; and
Motion to Amend (B), filed 4/21/21. These duplicative Motions are, thus,
frivolous and we, therefore, deny the Motions to Amend.
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On September 27, 2008, Appellant shot and killed Charity Sprickler and
threatened two other individuals who were in the residence with Ms. Sprickler.
A jury convicted him of Burglary, Second-Degree Murder, and Terroristic
Threats. The Court sentenced him to life imprisonment on November 2, 2012.
This Court affirmed the Judgment of Sentence, and the Pennsylvania Supreme
Court denied allowance of appeal on September 22, 2014. Commonwealth
v. Sims, No. 15 MDA 2013 (Pa. Super. Sept. 11, 2013), appeal denied, 105
A.3d 736 (Pa. 2014). Appellant’s Judgment of Sentence, thus, became final
on December 21, 2014.
Appellant subsequently filed three PCRA Petitions, two of which he
voluntarily withdrew. In his third PCRA Petition, Appellant raised a claim that
the Commonwealth committed a Brady3 violation by destroying his blood
samples that would have exonerated him by proving he was so intoxicated at
the time of the burglary and fatal shooting that he lacked the ability to form
criminal intent. This Court affirmed the PCRA court’s denial of Appellant’s
third Petition as untimely, observing that Appellant failed to act with diligence
in raising a claim that he was aware of three years before his trial.
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Additionally, Appellant filed an Application for Relief, which raises issues
already set forth in his Brief and requests that we “vacate the
Commonwealth’s case.” See Application for Relief, filed 2/26/21 (docketed
3/2/21). We likewise deny this Application for Relief as duplicative and
frivolous.
3 Brady v. Maryland, 373 U.S. 83 (1963).
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Commonwealth v. Sims, No. 371 MDA 2017, at 10-11 (Pa. Super. Dec. 21,
2017).
On July 30, 2020, Appellant filed a “Motion for DNA Testing,” seeking
“DNA testing of blood samples from the defendant as all prior appointed
counsel were ineffective on issues related to DNA evidence as the Petitioner
stated to Counsel the blood samples tested [by Lab Corp. of America before
trial] were not his own[.]” On August 3, 2020, Appellant filed an “Amendment
for Motion for DNA Testing,” contradicting his July 30th Motion for DNA Testing
by asserting that he “did not receive a fair trial due to the suppression of his
blood samples this [sic] exculpatory evidence destroyed by the
Commonwealth was done in bad-faith.” Appellant did not request a hearing.
The trial court summarily denied both “Motions” on August 4, 2020.
Appellant timely appealed.4 In his Brief and its Amendments, Appellant
sets forth nine issues. Appellant’s Br. at 4; Amendments 1 and 2. For the
reasons below, we are unable to address his issues.
Preliminarily, we note that Appellant attempts to assert that his “Motion
for DNA Testing” was filed pursuant to Section 9543.1 of the PCRA, pertaining
to Post-Conviction DNA testing, and avers that it is “wholly separate from
litigation of a PCRA petition.” See Original Brief at 7 (unpaginated). Although
titled as a “Motion for DNA Testing,” Appellant’s Motion and its Amendment
accepted by the trial court is comprised of an allegation of ineffective
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4The court did not order a Pa.R.A.P. 1925(b) Statement and did not file a Rule
1925(a) Opinion.
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assistance of counsel and an allegation that the Commonwealth improperly
destroyed his blood samples before trial which resulted in an unfair trial.
Neither of these allegations support a request for DNA Testing as
contemplated by Section 9543.1. See, e.g., 42 Pa.C.S. § 9543.1(a)(1)
(requiring a request for forensic testing); (a)(2) (requiring that the evidence
for testing is available); and (a)(4) (permitting request for DNA testing to
prove actual innocence). Accordingly, we deem Appellant’s “Motion” and its
“Amendment” to be his fourth PCRA Petition and refer to it as such throughout
this Opinion.
Before this Court may address the merits of the issues raised in this
appeal, we must determine whether Appellant timely filed this fourth PCRA
Petition because the PCRA’s time limitations implicate our Court’s jurisdiction.
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or subsequent
one, must be filed within one year of the date the judgment of sentence
becomes final, unless a petitioner alleges and proves a statutory timeliness
exception. 42 Pa.C.S. § 9545(a), (b)(1).5
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5 The PCRA provides the following exceptions to its one-year time bar:
(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;
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Here, Appellant’s fourth Petition, filed over five years after his Judgment
of Sentence became final, is untimely. After a thorough review of Appellant’s
prolix filings, even a generous reading fails to reveal any attempt by Appellant
to plead and prove the applicability of one of the timeliness exceptions to the
PCRA’s one-year time bar. Accordingly, this Court is without jurisdiction to
review the merits of the issues raised.
Moreover, Appellant’s claims are duplicative of those raised and
addressed in the appeal of his third PCRA Petition, which this Court also
dismissed as untimely. First, we noted that a claim of ineffective assistance
of counsel does not provide an exception to the PCRA time bar. See Sims,
371 MDA 2017 at 9 (citing Commonwealth v. Wharton, 886 A.2d 1120,
1127 (Pa. 2005)). Next, we concluded that Appellant could not establish that
the facts upon which his Brady claim was predicated were not previously
known to him or that the facts could not have been ascertained through due
diligence. Sims, 371 MDA 2017 at 10 (citing Commonwealth v. Abu-Jamal,
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(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. §9545(b)(1)(i)-(iii).
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941 A.2d 1263, 1268 (Pa. 2008)). We note further that Appellant has not
alleged or proven here that the failure to raise his claim in a timely manner
was due to governmental interference.
Because this fourth PCRA Petition, titled “Motion for DNA Testing,” is
untimely, and Appellant has not pleaded the applicability of any timeliness
exception, this Court is without jurisdiction to provide further review.
Order affirmed. Six Motions to Amend, filed on 3/10/21, 3/24/21, and
3/30/21, and 4/21/21, denied. Application for Relief, filed 2/26/21, denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/23/2021
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