Com. v. Lee, T. ( 2017 )


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  • J-S47022-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    Appellee
    v.
    TAMIR LEE
    Appellant              No. 2233 EDA 2016
    Appeal from the PCRA Order June 8, 2016
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0003299-2011
    BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY MOULTON, J.:                     FILED DECEMBER 01, 2017
    Tamir Lee appeals, pro se, from the June 8, 2016 order entered in the
    Philadelphia County Court of Common Pleas dismissing his petition filed
    pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.
    We affirm the PCRA court’s order and deny Lee’s motion for special relief.1
    The PCRA court summarized the prior history of this matter as follows:
    By way of background, [Lee] was arrested and charged with
    homicide and related offenses and on December 11, 2012,
    ____________________________________________
    1Lee’s “Motion for Application for Special Relief Pursuant to
    Pa.Crim.P.Rule 123,” requests the dismissal of all charges against him because
    the Commonwealth failed to file its brief in a timely manner. While we
    recognize that the Commonwealth filed its brief more than four months late,
    see Order Granting Second App. For Ext. of Time to File App. Br., 4/23/17,
    because we conclude that Lee’s PCRA petition was untimely, we deny Lee’s
    motion.
    J-S47022-17
    after a jury had been selected, he entered an open guilty
    plea to the charges of third-degree murder, possessing
    instruments of crime and criminal conspiracy.2 These
    charges arose out of an incident that occurred on May 31,
    2010, in the area of the 1900 block of South 60th Street in
    Philadelphia during which one Aaron Lewis was shot and
    killed during an alleged drug war. On March 8, 2013, this
    Court imposed an aggregate term of incarceration of 25 to
    50 years upon [Lee]. [Lee] filed an untimely motion for
    reconsideration on March 19, 2013. This Court did not rule
    upon the untimely motion and [Lee] did not file an appeal.
    On January 29, 2015, [Lee] filed a document captioned
    “Petition for Writ of Habeas Corpus Traditional and for
    Access to Courts.” In it he alleged that trial counsel was
    ineffective for various reasons, his plea was involuntary
    because it was entered “under duress of mandatory
    sentences,” the sentences imposed upon him are illegal in
    that they violate the holding of Alleyne v. United States,
    
    133 S. Ct. 2151
    ([]2013), he was denied a preliminary
    hearing on the charge of conspiracy and was never held for
    trial on the charge of possessing instruments of crime at the
    preliminary hearing, the law prohibits convictions for third-
    degree murder and criminal conspiracy, there is newly
    discovered evidence concerning Philadelphia Police
    Detective Ronald Dove, who arrested him, his plea was
    involuntary because of mental health problems, the
    Commonwealth acted illegally by proceeding by filing bills of
    information, and he was entitled to relief pursuant to
    Pa.R.Crim.P. 600. On August 14, 2015, [Lee] filed a
    document entitled “Motion/Petition for Court to Take Judicial
    Notice,” wherein he asserted that his sentence is illegal
    under Commonwealth v. Hopkins, 
    117 A.3d 247
    (Pa.
    2015). He then filed on December 2, 2015, a “Motion for
    Writ of Assistance” which alleged that his sentence was
    illegal and that improper delays and ineffective assistance
    of counsel constituted “governmental interference.”
    Counsel was appointed to represent [Lee] and on April
    20, 2016, counsel filed a “No Merit” letter pursuant to
    Commonwealth v. Finley, 
    550 A.2d 213
    (Pa. Super.
    1988); Commonwealth v. Turner, 
    544 A.2d 927
    (Pa.
    ____________________________________________
    2   18 Pa.C.S. §§ 2502(c), 907(a), and 903(c), respectively.
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    1988), and a Motion to Withdraw as Counsel. Upon
    reviewing the letter and the entire record, this Court sent
    [Lee] a Pa.R.Crim.P. 907 Notice of Intent to Dismiss. [Lee]
    filed a response thereto on May 11, 2016. On June 8, 2016,
    this Court issued an order dismissing [Lee]’s PCRA petition
    and permitting counsel to withdraw. Subsequent thereto,
    [Lee] filed a timely notice of appeal and a requested
    Pa.R.A.P 1925(b) statement.
    Opinion, 8/16/16, at 1-2 (“1925(a) Op.”).
    Lee raises the following issues on appeal:
    1. Have the Pennsylvania Legislature and Judiciary, created
    a false system of Post Conviction Relief to give the U.S.
    Supreme Court the false impression that they had
    created a constitutionally sound system under 42
    [Pa.C.S.] § 9541 to § 9546 inclusive?
    2. Can a first time PCRA petitioner receive fundamentally
    fair hearing and due process under the current system
    and Superior Court informed review without a hearing on
    issues in the lower court?
    3. Was [Lee] denied and due process [sic] the effective
    assistance of counsel to his great injury and prejudice?
    Lee’s Br. at 4 (full capitalization omitted).3
    ____________________________________________
    3We agree with the PCRA court’s conclusion that Lee’s “Motion for Writ
    of Habeas Corpus Traditional and for Access to Courts” was properly treated
    as a PCRA petition. See 1925(a) Op. at 3-4; 42 Pa.C.S. § 9542 (“The action
    established in this subchapter shall be the sole means of obtaining collateral
    relief and encompasses all other common law and statutory remedies for the
    same purpose that exist when this subchapter takes effect, including habeas
    corpus and coram nobis.”); Commonwealth v. Hall, 
    771 A.2d 1232
    , 1235
    (Pa. 2001) (“The plain language of the statute above demonstrates quite
    clearly that the General Assembly intended that claims that could be brought
    under the PCRA must be brought under that Act. No other statutory or
    common law remedy ‘for the same purpose’ is intended to be available;
    instead, such remedies are explicitly ‘encompassed’ within the PCRA.”)
    (emphasis omitted); Commonwealth v. Fowler, 
    930 A.2d 586
    , 592
    (Pa.Super. 2007) (“[L]egality of sentence [claims are] always subject to
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    J-S47022-17
    Our standard of review from the denial of a PCRA petition “is limited to
    examining whether the PCRA court’s determination is supported by the
    evidence of record and whether it is free of legal error.” Commonwealth v.
    Ousley, 
    21 A.3d 1238
    , 1242 (Pa.Super. 2011).
    Before we reach the merits of Lee’s petition, we must determine whether
    it was timely filed. A PCRA petition “including a second or subsequent petition,
    shall be filed within one year of the date the judgment becomes final.” 42
    Pa.C.S. § 9545(b)(1). A judgment is 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. § 9545(b)(3).
    The trial court sentenced Lee on March 8, 2013. Lee did not file a direct
    appeal.    Therefore, his sentence became final on April 8, 2013, when the
    period to timely file a notice of appeal expired. See Pa.R.A.P. 903(a); see
    also 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on
    Saturday or Sunday, or on any day made a legal holiday by the laws of this
    Commonwealth or of the United States, such day shall be omitted from the
    ____________________________________________
    review within the PCRA, [but] claims must still first satisfy the PCRA’s time
    limits or one of the exceptions thereto.”) (quoting Commonwealth v. Beck,
    
    848 A.2d 987
    , 989 (Pa.Super. 2007)); Commonwealth v. Holmes, 
    79 A.3d 562
    , 576 (Pa. 2013) (holding that absent certain circumstances, “claims of
    ineffective assistance of counsel are to be deferred to PCRA review”).
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    J-S47022-17
    computation.”). Therefore, Lee’s current petition, filed on January 29, 2015,
    is facially untimely.
    To overcome the time bar, Lee was required to plead and prove one of
    the following exceptions: (i) unconstitutional interference by government
    officials; (ii) newly discovered facts that could not have been previously
    ascertained with due diligence; or (iii) a newly recognized constitutional right
    that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-
    (iii). To invoke one of these exceptions, Lee must have filed his petition within
    60 days of the date the claim could have been presented. See 42 Pa.C.S. §
    9545(b)(2).
    Lee’s PCRA petition failed to plead or prove any exception to the one-
    year time bar. The PCRA court found:
    Here, because [Lee] filed for post-conviction relief more
    than one year after April [8], 2013, the date his conviction
    became final, which was thirty days after he was sentenced,
    his request for PCRA relief was properly denied because
    none of the above exceptions to the one-year filing
    requirement applies.1 [Lee] attempted to overcome the
    time bar by claiming in his December 2, 2015, filing that
    there was governmental interference caused by the
    appointment of counsel and subsequent ineffective
    representation by court-appointed [counsel].           These
    exceptions clearly do [not] fit under the government
    exception because by its very wording, the PCRA states that
    “government officials” do not include defense counsel. 42
    Pa. C.S. §9545(b)(4).2 And as far as the attack on the
    current court appointment system is concerned, [Lee] has
    not articulated how the current system prejudiced him.
    Consequently, all of the issues raising trial error and the
    ineffectiveness of trial counsel were properly determined to
    be time-barred.
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    J-S47022-17
    1 The PCRA provides that a conviction becomes
    final at the conclusion of direct review, including
    discretionary review by the United States and
    the Pennsylvania Supreme Courts or the time
    limit    for   seeking     such     review.    See
    Commonwealth v. Crews, 
    863 A.2d 498
    , 501,
    n.1 (Pa. 2004) (citation omitted) (“A judgment
    of sentence becomes final at the conclusion of
    direct review, including review by the United
    States and Pennsylvania Supreme Courts, or
    when the time for seeking such review expires.
    . . . The time for seeking certiorari with the
    United States Supreme Court is 90 days.”).
    Because [Lee] did not file an appeal from the
    judgment of sentence, his conviction became
    final thirty days after sentence was imposed
    upon him.
    2 A review of [Lee]’s 1925(b) statement failed
    to discern this particular issue. For the sake of
    judicial economy and to provide a complete
    record, this Court has addressed the claim.
    To the extent that defendant contends that PCRA counsel
    provided him with ineffective assistance, for purposes of
    appeal any such claims are limited to the claims raised in
    his Rule 907 response. See Commonwealth v. Smith,
    
    121 A.3d 1049
    (Pa. Super. 2015). In his Rule 907 response,
    other than claiming that he never accepted appointed PCRA
    counsel as his attorney and asserting generally that PCRA
    counsel was ineffective, [Lee] raised no specific claim of
    ineffectiveness. Therefore, it is suggested that any claim
    predicated upon the ineffectiveness of PCRA counsel be
    deemed waived.3
    3 It is noted that a review of PCRA counsel’s
    representation failed to discern any wrongdoing
    by counsel.      [Lee]’s disaffection with his
    representation cannot serve as a basis for relief.
    Although not specifically raised in his 1925(b) statement,
    it is submitted that [Lee] was properly denied relief on his
    newly discovered evidence claim. In that claim, [Lee] baldly
    contended that allegations raised against Detective Dove in
    an unrelated matter entitle him to relief.4 Other than setting
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    J-S47022-17
    forth the claim in general terms, [Lee] has provided no other
    evidence to support a finding that he is entitled to a new
    trial based on this evidence. In Commonwealth v. Castro,
    
    93 A.3d 818
    (Pa. 2014), our Supreme Court recently held
    that newspaper articles were not evidence and could not
    form the basis for the grant of relief on a newly discovered
    evidence claim. Based on the holding of Castro, it is clear
    that no error occurred in denying relief on this claim because
    [Lee] is essentially solely relying on the report of the
    detective's arrest as a basis for relief.5
    4 Recently, Detective Dove was fired by the
    Philadelphia Police Department for allegedly
    covering up evidence in an unrelated homicide
    matter involving a girlfriend.
    5 Even had [Lee] presented argument in support
    of this claim, relief still would have not been
    forthcoming because the outcome of the case
    likely would not have been different because
    there is no evidence that Detective Dove did
    anything inappropriate in the instant matter and
    the evidence of defendant’s guilt was
    overwhelming. Moreover, [Lee] pleaded guilty
    herein and averred that the factual recitation of
    the facts during his plea hearing was essential
    correct. Our Supreme Court stated in
    Commonwealth v. Lyons, 
    79 A.3d 1053
    , 1068
    (Pa. 2013), that a court
    should grant a motion for new trial
    on the ground of after discovered
    evidence where producible and
    admissible evidence discovered
    after trial (1) could not have been
    obtained prior to the end of trial
    with the exercise of reasonable
    diligence; (2) is not merely
    corroborative       or      cumulative
    evidence; (3) is not merely
    impeachment evidence; and (4) is
    of such a nature that its use will
    likely result in a different verdict on
    retrial.
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    J-S47022-17
    Commonwealth v. Chamberlain, 
    612 Pa. 107
    , 163-64, 30[] A.3d 381, 414 (2011).
    Finally, to the extent that [Lee] challenges the legality of
    his sentence, as noted above, said claims are time-barred.
    Before concluding, it is noted that it appears that this Court
    did not impose any mandatory minimum sentences on
    [Lee]. Therefore, Alleyne does not even apply here.
    1925(a) Op. at 5-7.       To the extent that Lee’s PCRA petition raised the
    governmental interference or newly-discovered facts exception to the PCRA
    time-bar, we agree with the trial court that Lee has failed to plead and prove
    either exception. Thus, because Lee’s petition was untimely, and there was
    no genuine issue of material fact regarding the timeliness of Lee’s petition,
    the PCRA court properly dismissed the petition without a hearing.          See
    Commonwealth v. Springer, 
    961 A.2d 1262
    , 1264 (Pa.Super. 2008). (“[I]f
    the PCRA court can determine from the record that no genuine issues of
    material fact exist, then a hearing is not necessary.”).
    Order affirmed. Motion for special relief denied.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/1/2017
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