Com. v. Thompson, D.

J. S03006/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID THOMPSON, : No. 637 EDA 2015
:
Appellant :
Appeal from the PCRA Order, February 10, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0308212-1995
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2016
David Thompson appeals, pro se, from the February 10, 2015 order
dismissing his fourth petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, following his convictions of
first-degree murder, conspiracy, and possessing an instrument of crime. We
affirm.
The trial court provided the following procedural history:
On October 26, 1995, following a jury trial
before Judge Jane Cutler Greenspan, [appellant] was
found guilty of murder of the first degree, possessing
an instrument of crime, and criminal conspiracy.
[Appellant] was sentenced to mandatory life
imprisonment for murder of the first degree. No
further penalty was imposed on the charges of
possessing an instrument of crime and criminal
conspiracy. At trial, [appellant] was represented by
Charles P. Mirarchi III.
J. S03006/16
[Appellant] failed to file a timely direct appeal.
His appellate rights were reinstated nunc pro tunc
by the trial court. On June 18, 1997, the
Pennsylvania Superior Court affirmed the judgments
of sentence. On October 28, 1997, the Pennsylvania
Supreme Court denied [appellant’s] petition for
allowance of appeal. [Appellant’s] judgments of
sentence became final on January 27, 1998, ninety
days after the Pennsylvania Supreme Court denied
allowance of appeal on his direct appeal and the time
period for seeking discretionary review by the U.S.
Supreme Court had expired.
Less than one year later, on April 14, 1998,
[appellant] filed his first PCRA petition pro se.
Counsel was appointed; that counsel subsequently
filed a “no merit” letter pursuant to Commonwealth
v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213(Pa.Super. 1988). On October 1, 1998, this court
dismissed [appellant’s] petition without an
evidentiary hearing. On appeal, the Superior Court
affirmed the denial of [appellant’s] PCRA Petition.
According to the criminal docket, on December
15, 2004, [appellant] filed his second PCRA petition
pro se. Counsel was subsequently appointed and
filed a Finley letter. On September 23, 2005,
[appellant’s] petition was dismissed as frivolous. On
or around February 2, 2006, [appellant] filed pro se
his third PCRA petition, and on April 24, 2006, he
filed a Memorandum of Law in support thereof. On
August 31, 2007, Judge Greenspan issued a Notice
Pursuant to Pennsylvania Rule of Criminal Procedure
907 advising [appellant] of this court’s intent to
dismiss the petition for failure to demonstrate an
exception to the statutory time-bar provided in the
PCRA statute. On October 2, 2007, [appellant] filed
a Response to this court’s Notice under Rule 907.
On November 13, 2007, Judge Cutler Greenspan
filed an Opinion and Order dismissing [appellant’s]
Petition for Post Conviction Relief as untimely. On
December 3, 2007, [appellant] filed a Notice of
Appeal to the Superior Court. On September 5,
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J. S03006/16
2008, the Superior Court affirmed the denial of
[appellant’s] PCRA petition. [Appellant’s] petition for
allowance of appeal was denied by the Supreme
Court of Pennsylvania on January 20, 2009.
On or about May 6, 2013, [appellant] filed a
pro se Motion for Post Conviction Collateral Relief
and a Memorandum of Law in support thereof. On
May 31, 2013, [appellant] filed a Motion to Amend
Petition for Post Conviction Relief Pursuant to the
Post Conviction Relief Act. Thereafter, Attorney
Steven T. O’Hanlon was appointed to represent him.
On October 4, 2014, Attorney O’Hanlon filed a
Finley letter and Motion to Withdraw as Counsel.
On January 20, 2015, this court issued a Notice
Pursuant to Pennsylvania Rule of Criminal Procedure
907 advising [appellant] of this court’s intent to
dismiss the petition. On February 10, 2015, this
court dismissed [appellant’s] PCRA petition for lack
of merit. On March 2, 2015, [appellant] filed a
timely Notice of Appeal.
Trial court opinion, 8/3/15 at 1-3 (footnotes omitted).
Appellant raises the following issues for our review:
1. Did the PCRA court error [sic] by dismissing
the petitioner’s new[ly] discovered evidence
claim as no merit[?]
2. [Was] the probable cause of petitioner[’s]
arrest sufficient, base[d] on an absent
Commonwealth’s witness, who did not testified
[sic] at preliminary, suppression hearing, nor
trial, violated petitioner’s U.S. Const., 6th
Amendment right and PA Const. Article I, []
Section 9[?]
3. [Was] the Commonwealth evidence sufficient
to convict petitioner’s [sic] of first degree
murder[?]
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J. S03006/16
4. [Was] petitioner’s trial counsel ineffective for
failure to call defense witness “Nicole Peter” to
show petitioner’s innocence[?]
Appellant’s brief at iii (capitalization omitted).
Having determined, after careful review, that the Honorable Steven R.
Geroff, in his Pa.R.A.P. 1925(a) opinion of August 3, 2015, ably and
comprehensively disposes of appellant’s issues on appeal, with appropriate
references to the record and without legal error, we will affirm on the basis
of that opinion dismissing his serial PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2016
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Circulated 02/25/2016 02:31 PM
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IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF CP- 51-CR-0308212-1995
PENNSYLVANIA
vs. FILED
DAVID THOMPSON AUG O 3}0l5
Crimtmai! ``s l:Jn'iti SUPERIOR COURT
First .Jlllm!ocall li)l``' of P)\ NO. 637 EDA 2015
OPINION
GEROFF,J. AUGUST 3, 2015
Petitioner, David Thompson, has filed an appeal of this court's order denying his petition
pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq ..
I. PROCEDURAL IDSTORY
On October 26, 1995, following a Jury trial before Judge Jane Cutler Greenspan,
Petitioner was found guilty of murder of the first degree, possessing an instrument of crime, and
criminal conspiracy. Petitioner was sentenced to mandatory life imprisonment for murder of the
first degree. No further penalty was imposed on the charges of possessing an instrument of
crime and criminal conspiracy. At trial, Petitioner was represented by Charles P Mirarchi UT.
Petitioner failed to file a timely direct appeal. His appellate rights were reinstated nunc
pro tune by the trial court. On June 18, 1997. the Pennsylvania Superior Court affirmed the
judgments of sentence.1 On October 28, 1997, the Pennsylvania Supreme Court, denied
Petitioner's petition for aJlowance of appeal.' Petitioner's judgments of sentence became final
on January 27, 1998, ninety days after the Pennsylvania Supreme Court denied allowance of
appeal on his direct appeal and the time period for seeking discretionary review by the U.S.
Supreme Court had expired.3
Less than one year later, on April 14, 1998, Petitioner filed his first PCRA petition prose.
Counsel was appointed; that counsel subsequently filed a "no merit" letter pursuant to
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988).4 On October l, 1998, this court dismissed Petitioner's petition
without an evidentiary hearing. On appeal, the Superior Court affirmed the denial of Petitioner's
PCRA Petition.5
According to the criminal docket, on December 15, 2004, Petitioner filed his second
PCRA petition pro se. Counsel was subsequently appointed and filed a Finley letter. On
September 23, 2005, Petitioner's petition was dismissed as frivolous. On or around February 2,
I
Commonwealth v. Thompson, 700 A.2d 1029 (Pa. Super. 1997) (unpublished memorandum).
2
Commonwealth v, Thompson, 550 Pa. 682, 704 A.2d 637 (1997).
J See U.S. Sup. Ct. R. I 3.
4
In Commonwealth v. Turner, 5 l 8 Pa. 491, 544 A.2d 927( 1988), our Supreme Court held:
When, in the exercise of his professional judgment, counsel determines that the issues raised under the
PCHA [Post Conviction Hearing Act] are meritless, and when the PCHA court concurs, counsel will be
permitted co withdraw and the petitioner may proceed prose, or by privately retained counsel, or not at all.
Id at 928-29.
In Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988), the Superior Court explained:
(T}he "independent review" necessary to assure a withdrawal request by PCHA counsel require[s) proof of:
I) A "no-merit" letter by PCHA counsel detailing the nature and extent of his review;
2) The "no merit" letter by PCHA counsel listing each issue the petitioner wished to have reviewed;
3) The PCHA counsel's "explanation," in the "no-merit" letter, of why the petitioner's issues were
mentless;
I) The PCHA court conducting its own independent review of the record, and
5) The PCHA court agreeing with counsel that the petltion was rneritless.
Id. at 215
' Commonwealth v Thompson, 742 A 1d 21 :! (Pa. Super. t 999).
2
2006, Petitioner filed pro se his third PCRA petition, and on April 24. ~006, he filed a
Memorandum of Law in support thereof. On August J 1, 2007, Judge Greenspan issued a
Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907 advising Petitioner of this
court's intent to dismiss the petition for failure to demonstrate an exception to the statutory time-
bar provided in the PCRA statute. On October 2, 2007, Petitioner filed a Response to this court's
Notice under Rule 907. On November 13, 2007, Judge Cutler Greenspan filed an Opinion and
Order dismissing the Petitioner's Petition for Post Conviction Relief as untimely. On December
3, 2007, Petitioner filed a Notice of Appeal to the Superior Court. On September 5, 2008, the
Superior Court affirmed the denial of Petitioner's PCRA petition." Petitioner's petition for
allowance of appeal was denied by the Supreme Court of Pennsylvania on January 20, 2009. 7
On or about May 6, 2013, Petitioner filed a pro se Motion for Post Conviction Collateral
Relief and a Memorandum of Law in support thereof'! On May 31, 2013, Petitioner filed a
Motion to Amend Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act.
Thereafter, Attorney Steven T. O'Hanlon was appointed to represent him. On October 4, 2014,
Attorney O'Hanlon filed a Finley Jetter and a Motion to Withdraw as Counsel. On January 20,
2015, this court issued a Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907
advising Petitioner of this court's intent to dismiss the petition. On February 10, 2015, this court
dismissed Petitioner's PCRA petition for lack of merit. On March 2, 2015, Petitioner filed a
timely Notice of Appeal
11. STANDARD OF REVIEW
The Post Conviction Relief Act requires that a post-convicuon petition be filed within
6
Commonwealth v. Thompson, 963 A.2d 575 (Pa. Super 2008).
7
Commonwealth v Thompson; 600 Pa 745, 964 A.2d 89"i {2009).
I
On August 6, 2012. Petitioner filed a subsequent Post Conviction Relief Act Petition On October 18,
2012. the following criminal docket entry was made. Return Case from Collection Agency Court Request/Order'
J
one year of the date the judgment becomes final. 42 Pa.C.S. § 9545 (b)(l). A judgment
becomes final at the conclusion of direct review, including time to seek discretionary review
before the Pennsylvania Supreme Court and the United States Supreme Court. 42 Pa.C.S. §
9545 (b)(3). The one-year limitation is exempted if a petitioner pleads and proves that:
(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;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could
not have been ascertained by the exercise of du.e 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)(l)(i)-(iii).
Any petition invoking an exception to the one-year limitation must be filed within sixty
days of the date the claim could be presented. 42 Pa.C.S. § 9545 (b)(2).
The Pennsylvania Supreme Court has ruled that Pennsylvania courts have no Jurisdiction
to hear untimely Post Conviction Relief Act petitions. Commonwealth v. Hall. 565 Pa. 92, 95,
771 A.2d 1232, 1234 (2001 ). Where the Post Conviction Relief Act petition is untimely, a
petitioner must plead and prove that a one-year filing exception applies. See Commonwealth. v.
Yarris, 557 Pa. 12, 24, 731 A.2d 581, 587 (1999) (stating that all PCRA petitions, "including
second and subsequent ones, must be filed within one year of the date on which the judgment
became final, unless one of the three statutory exceptions ... applies").
III. DISCUSSION
As a preliminary matter, the Petitioner's petition is untimely. Petitioner's judgment of
sentence became final on January 27, 1998, the date on which the time period for seeking
discretionary review by the U.S. Supreme Court had expired. Petitioner's current PCRA petition
was filed on May 6, 2013, over fifteen years after his judgment of sentence had become final; it
is, therefore, time-barred under§ 9545(b), unless one of the enumerated exceptions is satisfied.
Petitioner claims that he is eligible for rehef pursuant to 42 Pa.C.S. § 9545(b)(l)(ii),
under the after-discovered evidence exception. He also alleges that his petition is timely because
he filed it within 60 days of obtaining an affidavit by Michael Woolfolk. Memorandum of Law
in Support of Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act,
05/06/2013, p. 2. He explains that Michael Woolfolk was not known to him and that he could
not have discovered him "as a witness through due diligence because Petitioner did not know
Mr. Woolfolk "9 Id at 16 Petitioner also claims that District Attorney Gail Fairman violated
his right to a fair trial "due to her misconception and misconduct behaviors; which fa turn
violated his right to due process of law." Id. at l. In addition, Petitioner alleges ineffective
assistance of all prior counset.10 Id.
Petitioner argues that had the alleged newly-discovered evidence been introduced, it
would have changed the outcome of the trial. He claims that the proposed testimony of Michael
Woolfolk would warrant granting a new trial because, in Petitioner's view, the affidavit
demonstrates that the Petitioner and co-defendant did not share specific intent. Petitioner insists
that the affidavit shows "the innocence and state of mind of Petitioner during the time Charles
Byrd was killed." Memorandum of Law, 05/06/2013, p. 2. Petitioner explained that "Mr.
Woolfolk as a witness would of [src] convince(d] a jury that Petitioner did not have 'Shared
9
Petitioner states that he met with Mr Woolfolk while incarcerated. Memorandum of Law in Support of
Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act, 05/06/2013, p. 2. It follows from Mr.
Woolfolk's Affidavit that he and Petitioner had known each other in the past: Mr. Woolfolk states that he ran into
Petitioner (whom he refers to as "Dink") in the "chow hall" in prison and that he had not seen Petitioner for about 20
years prior to that meeting. Memorandum of Law, 05/06/201J, Exhibit "A," p. L[unnumbered].
10
See also Motion to Amend Petition for Post Conviction Relief, 05/31/20LJ, pp. l-4 in which Petitioner
discusses ineffective assistance of his trial counsel for failure to call a defense witness "Nicole Peter" to show
Petitioner's "state of mind of innocence."
5
Specific Intent' that is required by law to be guilty of murder of first degree." Id. at 6.
In his Affidavit, Mr. Woolfolk states that he saw Petitioner ("Oink'') and his co-defendant
("Bop") arguing "about some mess Bop got Dink into" the same day the decedent in this case
was shot and killed by Petitioner's co-defendant. Id., Exhibit A.1 t
This court finds that m his Finley letter, Attorney O'Hanlon correctly concluded that the
alleged newly-discovered evidence did not make a strong prima facie showing that Petitioner is
innocent and that a miscarriage of justice occurred. This court agrees with the attorney's
conclusion that the newly-discovered evidence neither illustrates Petitioner's innocence nor
12
negates the evidence presented at trial and that his petition is meritless. This court, therefore,
allowed Attorney O'Hanlon to wtthdraw as Petitioner's counsel.
Furthermore, Petitioner's claim of ineffective assistance of counsel does not place his
petition within any of the enumerated exceptions to the one-year limitation. "[AJ claim of
ineffective assistance of counsel does not save an otherwise untimely petition for review on the
merits." Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 2l4, 223 (1999). See also
Commonwealth v Breakiron, 566 Pa. 323, 334, 781 A.2d 94, too (2001) ("[O]ur Court has
expressly rejected attempts to utilize ineffective assistance of counsel claims as a means of
II
ln his Affidavit, Mr. Woolfolk states, inter alia, "Dink drove Bop to the market, not knowing that Bop
had this argument [with the decedent] earlier that day. I know because [ was there during the early argument and
after the shooting. .. . Earlier that day, me, Cindy, and Bop was trying to get a ride and rt escalated into something
else causing Bop to shot [sic) the guy. Dink not knowing this drove Sop to the market. Oink just pop up at the
wrong time." Memorandum of Law, 0.S/06(.!013, Exhibit "A," p. 2[unnumbered]. Attorney O'Hanlon notes that
Petitioner uses the Affidavit for the purpose of showing that he would not have been angry with his co-defendant rf
he had entered mro a conspiracy with co-defendant to kill the decedent. Commonwealth v David Thompson, CP-51 ·
CR-0308212-1995, Finley Letter of No Merit, 10/04/2014, p. 2
11
As Attorney O' Hanlon ably demonstrated in his Finley letter, Petitioner admitted to the police that his
co-defendant used Petitioner's gun to kill decedent; Petruoner also admitted to the police that he told his co-
defendant to "bust" the decedent, which was followed by the co-defendant's shooting and killing the decedent, there
was an independent witness corroboration of this statement (that witness testified that Petitioner tolJ his co-
defendant to "slump" the decedent and get it over with); and Petitioner tled the crime scene with his co-defendant
Commonwealth v. David Thompson, CP-51-CR-0308212-1995, Finley Letter of No Ment, I 0/04/2014, pp. 2·)
6
escaping the Jurisdictional time requirements for filing a PCRA Petition.") Petitioner cannot
escape the Jurisdictional time requirements for filing a PCRA Petition by raising an ineffective-
assistance-of-counsel claim.
The instant petition was filed over fifteen years after the judgment of sentence in this case
became final. It was time-barred from review, and the Petitioner has not demonstrated that one
of the statutory exceptions applied.
IV. CONCLUSION
Petitioner has failed to demonstrate any basis for relief. In the absence of any meritorious
challenge that can be found in the reviewable record, Petitioner has failed to articulate his
allegations in -aecordanee-with the requisites of a claim predicated upon newly-discovered - ---··· -
evidence which could not have been ascertained by the exercise of due diligence as well as
ineffective assistance of counsel. No relief is due.
For the foregoing reasons, Petitioner's petition for post-conviction collateral relief was
properly dismissed.
BY THE COURT:
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