Com. v. Bass, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TYREE BASS :
:
Appellant : No. 2375 EDA 2019
Appeal from the PCRA Order Entered May 2, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005903-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYREE BASS :
:
Appellant : No. 2376 EDA 2019
Appeal from the PCRA Order Entered May 2, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005904-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYREE BASS :
:
Appellant : No. 2813 EDA 2019
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Appeal from the PCRA Order Entered May 2, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005905-2008
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED AUGUST 14, 2020
Appellant, Tyree Bass, appeals pro se and nunc pro tunc from the order
entered in the Philadelphia County Court of Common Pleas, which dismissed
his second petition filed under the Post Conviction Relief Act (“PCRA”). 1 We
affirm.
The relevant facts and procedural history of this case are as follows. A
jury convicted Appellant of attempted murder, second degree murder, and
related offenses. On April 22, 2010, the court sentenced Appellant to an
aggregate term of life imprisonment without parole, plus 35½ to 75 years’
imprisonment. This Court affirmed the judgment of sentence on June 7, 2011,
and our Supreme Court denied Appellant’s petition for allowance of appeal on
November 14, 2011. See Commonwealth v. Bass, 31 A.3d 736 (Pa.Super.
2011), appeal denied, 613 Pa. 641, 32 A.3d 1274 (2011).
Appellant timely filed a pro se PCRA petition on August 21, 2012,
alleging trial counsel was ineffective for failing to object to certain evidence
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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and failing to call witnesses on Appellant’s behalf. The PCRA court appointed
counsel, who filed a motion to withdraw and a “no-merit” letter on February
11, 2014. On April 14, 2014, the court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition without a hearing. Appellant filed a pro
se response to the Rule 907 notice on August 28, 2014. On September 12,
2014, the court dismissed the PCRA petition and allowed counsel to withdraw.
This Court affirmed the dismissal on October 20, 2015, and our Supreme Court
denied Appellant’s petition for allowance of appeal on April 20, 2016. See
Commonwealth v. Bass, 134 A.3d 102 (Pa.Super. 2015), appeal denied,
635 Pa. 768, 138 A.3d 1 (2016).
On November 6, 2018, Appellant filed the current pro se PCRA petition.
In the petition, Appellant claimed he qualified for the newly recognized
constitutional right exception to the PCRA time-bar. Specifically, Appellant
relied on Carpenter v. U.S., ___U.S.___, 138 S.Ct. 2206, 201 L.Ed.2d 507(2018), for the proposition that law enforcement improperly seized his cell
phone records. The court issued Rule 907 notice on February 15, 2019.
Appellant filed a pro se response on March 22, 2019. On May 2, 2019, the
court dismissed the current PCRA petition as untimely filed.
On June 12, 2019, Appellant filed a pro se petition, requesting an
extension of time for filing a notice of appeal. The court treated the petition
as a request for PCRA relief and reinstated Appellant’s appellate rights nunc
pro tunc on June 27, 2019. That same day, Appellant timely filed pro se
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notices of appeal nunc pro tunc.2 On July 1, 2019, the court ordered Appellant
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Appellant timely filed his pro se Rule 1925(b) statement on July 15,
2019.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including second or subsequent petitions, must be filed within
one year of the date the underlying 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 review.” 42 Pa.C.S.A. § 9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than
one year after the judgment of sentence became final, the petitioner must
plead and prove at least one of the three timeliness exceptions:
(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
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2 We note the Commonwealth charged Appellant with offenses at three
separate docket numbers, and Appellant proceeded to a consolidated jury trial
for all three criminal informations. When Appellant filed the current PCRA
petition, he included the three docket numbers in the caption. Thereafter,
Appellant filed separate notices of appeal nunc pro tunc at each docket.
Although Appellant also filed separate appellate briefs with this Court, he
raises identical issues in each brief.
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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)(i)-(iii). “Any petition invoking an exception
provided in paragraph (1) shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).3
The newly recognized constitutional right exception has two
requirements:
First, it provides that the right asserted is a constitutional
right that was recognized by the Supreme Court of the
United States or [the Pennsylvania Supreme C]ourt after the
time provided in [Section 9545]. Second, it provides that
the right “has been held” by “that [C]ourt” to apply
retroactively. Thus, a petitioner must prove that there is a
“new” constitutional right and that the right “has been held”
by that [C]ourt to apply retroactively. The language “has
been held” is in the past tense. These words mean that the
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3 Previously, the PCRA required that a petition invoking a timeliness exception
be filed within sixty (60) days of the date the claim first could have been
raised. See Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780(2000). As of December 24, 2018, PCRA petitions invoking timeliness
exceptions must be filed within one year of the date the claim first could have
been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective 60
days [Dec. 24, 2018]. This amendment applies to claims arising on or after
December 24, 2017. Appellant filed the instant PCRA petition on November
6, 2018, so the amendment applies to him.
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action has already occurred, i.e., “that [C]ourt” has already
held the new constitutional right to be retroactive to cases
on collateral review. By employing the past tense in writing
this provision, the legislature clearly intended that the right
was already recognized at the time the petition was filed.
Commonwealth v. Ross, 140 A.3d 55, 58 (Pa.Super. 2016), appeal denied,
641 Pa. 90, 165 A.3d 908 (2017) (quoting Commonwealth v. Copenhefer,
596 Pa. 104, 109-10, 941 A.2d 646, 649-50 (2007)).
Instantly, Appellant’s judgment of sentence became final on or about
February 12, 2012, ninety days after our Supreme Court denied Appellant’s
petition for allowance of appeal. See U.S.Sup.Ct.R. 13 (stating appellant must
file petition for writ of certiorari with United States Supreme Court within
ninety (90) days after entry of judgment by state court of last resort).
Appellant timely filed a first PCRA petition on August 21, 2012, which the court
dismissed on September 12, 2014.
Appellant filed the instant PCRA petition on November 6, 2018, and it is
untimely on its face. See 42 Pa.C.S.A. § 9545(b)(1). Appellant now argues
he is entitled to PCRA relief, relying on Carpenter for the proposition that the
“government’s acquisition from wireless carriers of [Appellant’s] historical cell-
site location information [was] a search … and a ‘truthful’ warrant was
generally required….” (Appellant’s Brief at 4). Appellant insists Carpenter
created a newly recognized constitutional right, and the PCRA court should
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have conducted an evidentiary hearing to evaluate his claims on the merits. 4
Appellant, however, has failed to prove an exception to the PCRA
timeliness requirements. Even if Carpenter established a “new constitutional
right,” no subsequent cases from the United States or Pennsylvania Supreme
Courts have held that Carpenter applies retroactively to cases on collateral
review. See Ross, supra. Thus, Appellant’s petition remains time-barred.5
Accordingly, we affirm the order dismissing Appellant’s current PCRA petition.
Order affirmed.
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4 In addition to the arguments raised in his appellate brief, this Court granted
Appellant’s application to file a supplemental brief. (See Order, filed 4/8/20,
at 1). In his supplemental brief, Appellant contends “governmental
interference was established under 42 Pa.C.S.A. § 9545(b)(1)(i), where the
PCRA court erroneously did not order [Appellant] to be provided with the full
copy of trial transcripts before issuing” Rule 907 notice for Appellant’s first
PCRA petition. (Appellant’s Supplemental Brief at 17). Here, Appellant did
not raise his governmental interference argument in the current petition or in
response to the issuance of Rule 907 notice. Under these circumstances,
Appellant failed to preserve his claim regarding governmental interference.
See Commonwealth v. Colavita, 606 Pa. 1, 28, 993 A.2d 874, 891 (2010)
(reiterating principle that that appellate courts should not reach claims that
were not raised in PCRA court).
5 Appellant also asserts the PCRA court should have allowed him to amend the
current PCRA petition. (See Appellant’s Brief at 5-9). Because Appellant did
not actually move for leave to amend in the PCRA court, he is not entitled to
relief on his claim. See Commonwealth v. Baumhammers, 625 Pa. 354,
391, 92 A.3d 708, 730 (2014) (stating PCRA petitioners must seek and obtain
leave to amend petitions, and amendments are not self-authorizing). Further,
Appellant contends the PCRA court should have appointed counsel to assist
with the filing of the current petition. Nevertheless, counsel need not be
appointed under these circumstances. See Pa.R.Crim.P. 904(D) (requiring
appointment of counsel to assist with second or subsequent petition only when
petitioner establishes that evidentiary hearing is required).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/20
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