Com. v. Lee, T. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,
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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.
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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.
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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
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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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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
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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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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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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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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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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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