Com. v. Lee, D. ( 2019 )


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  • J-S52038-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
    ____________________________________________
    1 The trial court imposed lesser, consecutive sentences for the other
    convictions.
    J-S52038-19
    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
    ,
    ____________________________________________
    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.
    -2-
    J-S52038-19
    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
    ____________________________________________
    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
    -3-
    J-S52038-19
    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
    ____________________________________________
    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).
    -4-
    J-S52038-19
    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
    -5-