Com. v. Dixon, T.

J-S22026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERREL DARNELL DIXON
Appellant No. 1606 WDA 2014
Appeal from the PCRA Order September 16, 2014
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001027-2010
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 19, 2015
Terrel Darnell Dixon appeals from the order of the Court of Common
Pleas of Beaver County that dismissed his petition filed pursuant to the Post
Conviction Relief Act.1 After careful review, we affirm.
Dixon entered an open guilty plea to one count of third-degree murder
on August 5, 2011, and one week later, the trial court sentenced him to 12
to 30 years’ imprisonment. Dixon filed a pro se PCRA petition on June 27,
2012. The court appointed counsel, who filed an amended petition on
August 16, 2012. Following a hearing, the court denied the petition on
November 16, 2012. Dixon appealed to this Court, which denied relief on
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
J-S22026-15
August 20, 2013. Commonwealth v. Dixon, 83 A.3d 1069 (Pa. Super.
2013) (unpublished memorandum). We denied reargument on October 23,
2013, and Dixon filed a petition for allowance of appeal on November 21,
2013, which our Supreme Court denied on May 6, 2014. Commonwealth
v. Dixon, 91 A.3d 161 (Pa. 2014).2
On August 18, 2014, Dixon filed the instant PCRA petition, which the
court dismissed by opinion and order dated September 16, 2014. Prior to
dismissing the petition, the court did not provide a notice of intent to dismiss
pursuant to Pa.R.Crim.P. 907. On October 3, 2014, Dixon filed a pro se
response to the opinion and order setting forth the reasons why the court
should not have dismissed the petition without a hearing. On the same day,
he filed a notice of appeal to this Court.
In response to an order from the trial court, Dixon filed a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and on
November 5, 2014, the trial court issued an opinion that incorporated its
opinion of September 16, 2014.
On appeal, Dixon raises the following issues verbatim for our review:
____________________________________________
2
While the petition for allowance of appeal was pending, Dixon filed a
motion with the trial court to compel the clerk of courts to file a second
PCRA petition that he alleged to have filed. The trial court denied relief, and
Dixon filed an appeal in this Court, which was denied by judgment order on
February 5, 2015. Commonwealth v. Dixon, 930 WDA 2014 (Pa. Super.
2015).
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1. Whether Judge Tesla should have recused from [Dixon’s] case
for his (Judge[’s]) bias du[e] to [the] fact that said judge
refused to hear grounds for plea withdrawal at any time prior
to sentencing necessitating recusal in the instant matter and
said judge’s dismissal affirm said refusal or whether [Dixon] is
“judge shopping[.]”
2. Whether Judge Tesla was bias[ed] and incompetent in issuing
an order of dismissal, which was in effect, a final order,
before [Dixon] was given an opportunity to respond pursuant
to Pa.R.Crim.P. 907(1) necessitating recusal in the instant
matter or whether [Dixon] was “judge shopping[.]”
3. Whether Judge Tesla committed further procedural error as a
result of incompetence and bias in issuing an order dismissing
the petition prior to [Dixon’s] response pursuant to Pa.R.A.P.
907(a) necessitating recusal in the instant matter[.]
4. Whether a ruling by Judge Tesla being the subject matter of
the petition which gives rise to the instant appeal shows
impropriety and/or the appearance of impropriety
necessitating recusal in the instant mater [sic] or whether
[Dixon] is “judge shopping[.]”
5. Whether Judge Tesla’s examination of the merits of the
petition which effectively exercises jurisdiction over the
petition which gives rise to the instant appeal requires the
Court to examine[e] all merits[.]
6. Whether an exception to the timeliness requirement under 42
Pa.C.S.A. § 9545(b)(1) is applicable to the petition which
gives rise to the instant appeal in that the petition contains
facts unknown to [Dixon] in this matter and said facts could
not have been obtained by any exercise of due diligence due
to the fact that the Affiant clearly states that she “only
recently” remembered the facts as having occurred as
described in the affidavit[.]
7. Whether an exception to the timeliness requirement under 42
Pa.C.S.A. § 9545(b)(1) is applicable to the petition which
gives rise to the instant appeal in that a request for a
subpoena made by the Commonwealth was granted resulting
in governmental interference[.]
8. Whether due diligence could have been exercised to obtain
the information contained in the affidavit which gave rise to
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the filing of the petition due to the fact that the Affiant clearly
states that “only recently” has she gained proper recollection
of the contents of the affidavit[.]
9. Whether [Dixon] demonstrated that due diligence was
exercised in contacting the Affiant as a result of subpoenas on
his mail and Affiant’s contact information being withheld by
his (Appellant[’]s) appellate counsel[.]
10. Whether the affidavit contains facts unknown to [Dixon] in
this matter, thus invoking an exception to 42 Pa.C.S.A. §
9545(b)(1), and whether Judge Tesla made an unreasonable
inference in assuming what [Dixon] knew[.]
11. Whether an evidentiary hearing is necessary to clarify the
contents of the affidavit that is the newly-discovered evidence
on the basis that Judge Tesla admits that he “did no[t] share
[Dixon’s] understanding of the affidavit” and whether the
statements in the affidavit need to be elaborated upon by way
of an evidentiary hearing[.]
12. Whether the court proceeded further in determining
whether the newly-discovered evidence was exculpatory and
other issues were previously litigated, thus exercising
jurisdiction over the petition or whether “the court expressly
limited its review to the timeliness of [Dixon’s] PCRA
Petition[.]
13. Whether [Dixon] in this matter cited Judge Tesla’s
procedural error in dismissing the PCRA Petition by way of
final order to demonstrate Judge Tesla’s bias and
incompetence and whether Judge Tesla is holding [Dixon] to
the same standards as an attorney due to [Dixon’s] failure to
file a motion to vacate or whether [Dixon] was just citing the
Court’s procedural error to show prejudice?
Appellant’s Brief, at iv-v.
The PCRA court summarized the underlying facts of this case as
follows:
On May 17, 2010 at approximately 9:26 p.m., police officers
were dispatched to 286 Sixth Street, Ambridge, Pennsylvania in
response to a report of a shooting at that location. Upon arrival
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J-S22026-15
at the scene, officers discovered the victim, Kevin Johnson, lying
on the sidewalk with multiple gunshot wounds to his face and
torso. The deputy coroner later pronounced Mr. Johnson dead at
the scene.
While investigating the incident, Officer Alan Shaffer of the
Ambridge Police Department interviewed Tammy Sgro, the
individual who resided at the apartment located at 286 Sixth
Street. Ms. Sgro informed Officer Shaffer that, earlier that night,
[Dixon] was at her apartment repairing her door when Mr.
Johnson arrived and asked to be let into the apartment. Ms.
Sgro yelled from her upstairs window that Mr. Johnson would not
be permitted to enter the apartment. Shortly thereafter, she
heard loud banging at her apartment door followed by several
gunshots. Ms. Sgro then ran down the stairs, looked outside,
and observed that [Dixon] was gone and that a black male was
lying on the sidewalk bleeding. Ms. Sgro stated that she
subsequently returned to her apartment and dialed 911 to report
the incident. In addition to Ms. Sgro, the responding officers
interviewed several other witnesses who indicated that a man
matching [Dixon’s] description was seen running from the scene
of the shooting, and, ultimately, he agreed to turn himself in to
the Ambridge Police Department.
Opinion and Order, 9/16/14, at 1-2.
At a hearing on Dixon’s first PCRA petition, Sgro testified that she and
Johnson had been in a brief relationship. N.T. PCRA Hearing, 11/16/12, at
12. She further testified that “[Dixon] . . . showed up [the night of the
shooting] to try to help [her] fix the lock [on her front door] because [she]
was in fear of [Johnson] showing up drunk and wanting to start a fight with
[her].” Id. at 12-13.
In an affidavit attached to the instant PCRA petition, Sgro makes the
following statements: (1) when Dixon arrived at her house, he was
accompanied by another man; (2) shortly after Dixon arrived, they went
upstairs where they “became intimate,” and in the process she disrobed him
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J-S22026-15
but “never was aware of any firearms,” (3) when she and Dixon were
interrupted by loud banging on the door, she “heard two other male voices
plus” Johnson’s; and (4) shortly before Dixon’s trial, his counsel told her that
she should convince Dixon to plead guilty. Affidavit of Tamara Sgro,
6/18/14, at 1-2. These averments are the basis for his claims of newly
discovered evidence.
We agree with the Honorable Kim Tesla that the facts averred in the
PCRA petition and supporting affidavit were known to the petitioner or could
have been ascertained by the exercise of due diligence. Accordingly, they
do not serve as a basis for seeking relief more than one year after Dixon’s
judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1)(ii).
After a review of Dixon’s brief,3 the relevant case law, and record on
appeal, we affirm the trial court’s order dismissing Dixon’s PCRA petition as
untimely filed based upon Judge Tesla’s Pa.R.A.P. 1925(a) opinion. We
instruct the parties to attach a copy of Judge Tesla’s decision in the event of
further proceeding in the matter.
Order affirmed.
____________________________________________
3
The Commonwealth did not file an appellee’s brief.
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J-S22026-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2015
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lN THE COURT OF COMMON PLEAS OF BEAVER COUNTY
PENNSYLVANIA
CRrMfNAL DIVISION - LAW
COMMONWEALTH OF PENNSYLVANIA,
vs.
No. 1027 of2010
TEREL DIXON,
Defendant.
Tesla, J. November§____, 2014
RULE 1925(a) OPINION
Before this Court for disposition is the petition for post-conviction collateral relief under
the Post Conviction Relief Act (hereinafter, "PCRA") filed on behalf of Defendant Terel Dixon.
For the reasons stated below, Defendant's Petition is denied.
FACTS AND PROCEDURAL HISTORY
On September 17, 2014, this Court signed an Opinion and Order of Dismissal in this
case. That Order, which further specifies the prior facts and procedural history, as well as the
Court's rationale for the dismissal of Defendant's Petition, is attached to this 1925(a) opinion as
Appendix "A" and incorporated as if fully set forth herein. On October 3, 2014, Defendant filed
a notice of appeal of the Court's Opinion and Order of Dismissal, and also filed a Response to
Opinion and Order of Dismissal (hereinafter, "Pro Se Response.") On October 24, 2014,
Defendant then also filed a Concise Statement of Matters Complained of on Appeal (hereinafter,
"Concise Statement").
ANALYSIS
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1. Judge Tesla should be disqualified from Defendant's case. '<: c:.,
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2. The Court erred in refusing to address the merits of the case.
3. The Court erred in finding that Defendant's PCRA Petition was not timely filed because
the evidence qualifies as newly discovered evidence and Defendant has exercised due
diligence.
4. The Court erred in finding that Defendant's PCRA Petition was not timely filed because
the affidavit Defendant proffers is exculpatory.
5. The Court erred in filing an Opinion and Order of Dismissal without giving the required
Notice of Intent under Rule 907.
6. The Court erred in dismissing Defendant's PCRA Petition because his ineffective
assistance of counsel arguments have not been waived or previously litigated.
The Court will proceed to address each of Defendant's arguments in turn.
1. Recusal of Judge Tesla
Defendant argues that Judge Tesla should be disqualified from the case. Defendant has
already previously made a motion to recuse Judge Tesla on April 1, 2013. That Motion was
denied by the Court on April 4, 2014. Defendant did not appeal that decision.
When a trial court judge is presented by a defendant with a motion to recuse himself from
the case,
'"the judge makes an independent, self-analysis of the ability to be impartial. If
content with that inner examination, the judge must then decide 'whether his or
her continued involvement in the case creates an appearance of impropriety
and/or would tend to undermine public confidence in the judiciary.' This
assessment is a 'personal and unreviewable decision that only the jurist can
make.' 'Once the decision is made, it is final....'
"'This Court presumes judges of this Commonwealth are 'honorable, fair and
competent,' and, when confronted with a recusal demand, have the ability to
determine whether they can rule impartially and without prejudice. The party who
asserts a trial judge must be disqualified bears the burden of producing evidence
establishing bias, prejudice, or unfairness necessitating recusal, and the 'decision
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by a judge against whom a plea of prejudice is made will not be disturbed except
for an abuse of discretion."?
Com. v. Thomas, 615 Pa. 477, 498-99, 44 A.3d 12, 24 (2012) (quoting Com v. Druce. 577 Pa.
581, 848 A.2d 104, 108 (2004)).
"The mere participation by the presiding judge in an earlier stage of the proceeding
neither suggests the existence of actual impropriety nor provides a basis for a finding of the
appearance of impropriety." Com. v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252 (1982) (citing
U.S. v. Lowrey, 77 F. Supp. 301 (E.D.Pa.1948) affirmed 172 F.2d 226 (1949)). "In addition, we
have concluded that, in general, it is preferable for the judge who presided at trial to preside over
any post-conviction proceedings because his or her familiarity with the case will likely assist the
proper administration of justice." Com. v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 319 (2011).
This Court does not believe recusal is either necessary or appropriate in this case, and
Defendant has failed to meet his burden to prove bias, prejudice, or unfairness necessitating
recusal. Defendant's argument for recusal is based solely on Judge Tesla's familiarity with the
case from having presided over it, and Defendant's dissatisfaction with the results of his guilty
plea. In essence, Defendant seeks to begin a process in which he can obtain a more favorable
outcome from a judge less acquainted with the case.
"Judge shopping has been universally condemned, and will not be tolerated at any stage
of the proceedings. Thus, where fabricated, frivolous or scunilous charges are raised against the
presiding judge during the course of the proceeding, the court may summarily dismiss those
objections without hearing where the judge is satisfied that the complaint is wholly without
foundation." Mun. Publications. Inc. v. Court of Common Pleas of Philadelphia Cnty., 507 Pa.
194, 202, 489 A.2d 1286, 1289-90 (1985) (external citations omitted).
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Because Defendant has failed to meet his burden of proof, because the law favors that the
previously presiding judge continue to preside over post-conviction proceedings, and because
Defendant's arguments are a frivolous attempt at "judge-shopping," his first argument is denied.
2. Merits of the Case
Defendant argues that because the Court addressed some of the merits in its Opinion and
Order of Dismissal that the Court must then hear all of the merits. This argument plainly
misapprehends the Court's Opinion and Order, which clearly stated in the final paragraph and
second footnote that the merits of the case were not, and indeed could not, be reached due to the
untimeliness of the Petition and the absence of jurisdiction. For the reasons stated in the Court's
Opinion and Order of Dismissal, Defendant's second argument is denied.
3. Timeliness of Defendant's PCRA Petition
In his Pro Se Response and Concise Statement of Matters Complained of on Appeal,
Defendant's argues that a key fact in Ms. Sgro's Affidavit was unaddressed by the Court in
considering the after-discovered evidence exception under 42 Pa.C.S.A. § 9545(b)(l )(ii).
Defendant refers specifically to Ms. Sgro's statement regarding the presence of a second lighter-
skinned male. Defendant asserts, "There is nothing in Sgro's affidavit nor any other evidence in
possession of the court that even suggests that Appellant was aware of the presence of a second
male." As with his previous arguments, the Court believes that Defendant mistakes Ms. Sgro's
affidavit. What she states is that "Mr. Dixon did arrive at the residence with another male" and
that she "allowed both men to enter" her home. If Ms. Sgro's affidavit upon which Defendant
relies is to be believed, then Defendant also at that time would have known of the existence and
presence of this other male, because he came to her residence with him and both were allowed
inside. See, e.g., Com. v. Johnson, 2008 Pa.Super. 26, 945 A.2d 185, 190-91 (2008) (proffer of
4
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testimony of new witnesses to facts which were already known to Defendant does not satisfy
requirements of exception under section 9545(b )(1 )(ii)). Therefore these facts, if true, would not
have been unknown to Defendant or unascertainable by him by the exercise of due diligence. Id.
In relation to this argument, Defendant appears to claim that his mail was under subpoena
by the District Attorney's office, and that this somehow interfered with his ability to exercise due
diligence in his learning of the facts contained in Ms. Sgro's affidavit. It is unclear to the Court
precisely what Defendant is arguing with regard to his mail. He provides no evidence on this
alleged matter and his argument in this respect is not well developed. Regardless, the facts in Ms.
Sgro's affidavit upon which Defendant relies would, as previously explained, already have been
known to Defendant because he would have been present when the alleged facts occurred.
Further, as Defendant himself recognizes in his Pro Se Response, Ms. Sgro was available and
testified at Defendant's earlier PCRA evidentiary hearing in 2012. Thus Defendant has plainly
had the opportunity to not only contact Ms. Sgro, but to even examine her under oath.
Although omitted from his Concise Statement, in his Pro Se Response Defendant also
attempted to further clarify his position by arguing that the exception for timeliness under 42
Pa.C.S.A. § 9545(b)(l)(i) applies to his case because his PCRA counsel, Dirk Goodwald, did not
provide him with Ms. Sgro's contact information.
(b) Time for filing petition.--
(]) Any petition under this subchapter, including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final, unless the
petition alleges and the petitioner 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 Jaws of the
United States;
(4) For purposes of this subchapter, "government officials" shall not include
defense counsel, whether appointed or retained.
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42 Pa.C.S.A. § 9545(b) (emphasis added).
Because Dirk Goodwald was Defendant's counsel, the exception to the timeliness
requirement under 42 Pa.C.S.A. § 9545(b)(l)(i) does not apply. ld.; Com. v. Crews, 581 Pa. 45,
53, 863 A.2d 498, 503 (2004) ("[I]t is well settled that the alleged ineffectiveness of all prior
counsel, including first PCRA counsel, does not fall within the governmental interference
exception."). Therefore, Defendant's Petition is not timely under 42 Pa.C.S.A. § 9545(b)(l)(i).
For these reasons and those stated in the Court's Opinion and Order of Dismissal, the
Court remains unconvinced, and finds that the Defendant, even by his further clarification and
additional arguments, has failed to prove that the facts upon which he rests his Petition were
either unknown to him, or that they could not have been ascertained by exercising due diligence.
See 42 Pa.C.S.A. § 9545(b)(l )(ii). The Court further finds no evidence of any interference by
government officials with the presentation of his claim. See 42 Pa.C.S.A. § 9545(b)(1 )(i).
Defendant's third argument is therefore denied.
4. WhetherAffidavit Profferedby Defendant is Exculpatory
Defendant next argues that the Court denied his PCRA Petition on the basis that the
evidence he presented was not exculpatory. Again, Defendant misapprehends the Court's
opinion. In its Opinion and Order of Dismissal, the Court noted Defendant's confusion over the
difference between after-discovered evidence and exculpatory evidence, and stated in its first
footnote that "for purposes of whether this Petition is timely or not, the question is not whether
the proffered evidence is exculpatory, but whether the facts were unknown and could not have
been ascertained by the exercise of due diligence."
Defendant argued in his PCRA Petition that the affidavit of Ms. Sgro was exculpatory
and thus provided new evidence. In addressing this argument, the Court simply noted that it did
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not share Defendant's understanding of the affidavit or find that it was evidence meeting the
requirements of section 9545(b )(1 )(ii). As stated previously, due to jurisdictional limitations, the
Court expressly limited its review to the timeliness of Defendant's PCRA Petition and, finding it
untimely, proceeded no further.
For these reasons and those stated m the Court's Opinion and Order of Dismissal,
Defendant's fourth argument is denied.
5. The Court Failed to File a Notice of Intention to Dismiss Without a Hearing.
Defendant argues that the Court failed to follow correct criminal procedure in dismissing
his PCRA Petition without first filing a Notice of Intent to Dismiss. The Court dismissed the
instant PCRA Petition for lack of jurisdiction because of the evident timeliness bar discussed
therein. Defendant takes issue in his Pro Se Response and Concise Statement that the PCRA
Petition was dismissed without first filing a Notice of Intention to Dismiss, citing Pa.R.Crim.P.
907.
Nevertheless, Defendant has proceeded to file his fro Se Response and Notice of Appeal
of the Court's order. In his Pro Se Response, Defendant argues that the Court's Opinion and
Order of Dismissal should be treated as the Notice oflntention to Dismiss required by Rule 907,
and that his Pro Se Response must be considered by the Court. The Court notes its procedural
error. It also notes Defendant's decision to proceed by filing his Pro Se Response, Notice of
Appeal, and Concise Statement, rather than filing a Motion to Vacate due to the proper Notice of
Intention to Dismiss not being filed.
Although the language of the rule appears mandatory, strict compliance with Rule 907
may not be necessary where the Defendant has not been prejudiced. Compare Com. v. Bond, 428
Pa.Super. 344, 349, 630 A.2d 128 I, 1283 (1993) (strict compliance unnecessary where defendant
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has not been prejudiced), with Com. v. Feighery, 443 Pa.Super. 327, 330, 661 A.2d 437, 439
(1995) ( distinguishing Bond and requiring strict compliance where Defendant has been
prejudiced). See also Com. v. Pursell, 561 Pa. 214, 225, 749 A.2d 911, 917, n.7 (2000) (no relief
available where PCRA petition dismissed without hearing or filing of a Notice of Intention to
Dismiss because PCRA Petition was untimely and trial court therefore had no jurisdiction).
In this case, rather than vacating its prior Opinion and Order and then filing the required
Notice of Intention to Dismiss, which would serve no purpose other than to further delay
Defendant's petition as he has already filed his Notice of Appeal of the Court's prior Order and
submitted his Pro Se Response and Concise Statement, the Court instead believes it best to
proceed as Defendant has requested in his Pro Se Response, addressing his additional arguments
stated therein within this 1925(a) Opinion. The chief reason for Rule 907 is to allow the
defendant a chance to respond to the court. See Pa.R.Crim.P. 907 ("The defendant may respond
to the proposed dismissal within 20 days of the date of the notice."); Com. v. Hopfer, 2009
Pa.Super. 16, 965 A.2d 270, 275 (2009) (vacating dismissal of PCRA Petition and remanding to
PCRA court to allow defendant to file response where defendant was deprived of opportunity to
respond to Notice of Intent to Dismiss). That purpose is fulfilled in this case by proceeding in
this manner.
Although the Notice of Intent required by Rule 907 was not filed in this case prior to
dismissing the PCRA Petition without a hearing, Defendant has suffered no prejudice as he has
in fact responded and his response is now considered by the Court. See Bond, 428 Pa.Super. at
349, 630 A.2d at 1283; Pursell, 561 Pa. at 225, 749 A.2d at 917, n.7. By recognizing the error
and considering Defendant's responses, the Court has sought to apply the remedy employed in
Hopfer at this earlier stage in the proceedings, thus protecting Defendant's right to respond and
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be heard by the Court, preventing any other potential prejudice or future delay that might occur
by proceeding otherwise under these circumstances, and also fulfilling the purpose of Rule 907.
See Hopfer, 2009 Pa.Super. 16, 965 A.2d at 275.
Finally, it appears to the Court that Defendant, through his Pro Se Response which
requests on the first page under the third numbered paragraph that the Court's Opinion and Order
of Dismissal be treated as a Notice oflntent to Dismiss, has waived the requirements of Rule 907
on the condition that his Pro Se Response is considered by the Court. Defendant's Pro Se
Response, Notice of Appeal, and Concise Statement have all been taken into account by the
Court in this opinion. Therefore, the Court also finds that Defendant has waived the procedural
error.
Because Defendant has suffered no prejudice, because the Court has applied the proper
remedy by addressing Defendant's Pro Se Response and Concise Statement within this opinion,
and because Defendant has waived the Rule 907 requirements in his Pro Se Response,
Defendant's fifth argument is denied.
6. Ineffective Assistance of Counsel
Defendant's final argument is that he should be allowed to present additional arguments
for ineffective assistance of counsel. As stated before in its Opinion and Order of Dismissal, the
timeliness bar cannot be circumvented simply by presenting issues in terms of ineffective
assistance of counsel. See, e.g., Com. v. Edmiston, 619 Pa. 549, 565-66, 65 A.3d 339, 349 (2013)
cert. denied, 134 S. Ct. 639, 187 L. Ed. 2d 423 (U.S. 2013) ("[W]e note that we have previously
rejected attempts to circumvent the timeliness requirements of the PCRA by asserting prior
counsel's ineffectiveness for failing timely to raise a claim. As we have explained, the nature of
the constitutional violations alleged has no effect on the application of the PCRA time bar.
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Rather, the only cognizable exceptions are set forth at Section 9545(b )(1 ). ") ( citations omitted).
Because Defendant's PCRA petition is untimely, the Court has no jurisdiction to consider
Defendant's arguments relating to ineffective assistance of counsel. Defendant's sixth argument
is therefore denied.
CONCLUSION
For the aforementioned reasons, Defendant's appeal should be denied.
BY THE COURT
J.
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APPENDIX "A"
Opinion and Order of Dismissal
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IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY
PENNSYLVANIA
CRIMINAL DIVISION - LAW
COMMONWEALTH OF PENNSYLVANIA,
vs.
No. 1027 of2010
TEREL DIXON,
Defendant.
Tesla, J. September/~ 2014
OPINION AND ORDER OF DISMISSAL
Bei>re this Court for disposition is the Petition for Post-Conviction Collateral Relief
under the Post Conviction Relief Act (hereinafter, "PCRA") filed on behalf of Defendant Terel
Dixon. For the reasons stated below, Defendant's Petition is dismissed.
FACTS AND PROCEDURAL HISTORY
On May 17, 2010 at approximately 9:26 p.m., police officers were dispatched to 286
Sixth Street, Ambridge, Pennsylvania in response to a report of a shooting at that location. Upon
arrival at the scene, officers discovered the victim, Kevin Johnson, lying on the sidewalk with
multiple gunshot wounds to his face and torso. The deputy coroner later pronounced Mr. Johnson
dead at the scene.
While investigating the incident, Officer Alan Shaffer of the Ambridge Police
Department interviewed Tammy Sgro, the individual who resided in the apartment located at 286
Sixth Street. Ms. Sgro informed Officer Shaffer that, earlier that night, Defendant was at her
apartment repairing her door when Mr. Johnson arrived and asked to be let into the apartment.
Ms. Sgro yelled from her upstairs window to Mr. Johnson that be would not be permitted to enter
the apartment. Shortly thereafter, she beard loud banging at her apartment door followed by
several gun shots. Ms. Sgro then ran down the stairs, looked outside, and observed that
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Defendant was gone and that a black male was lying on the sidewalk bleeding. Ms. Sgro stated
that she subsequently returned to her apartment and dialed 911 to report the incident. In addition
to Ms. Sgro, the responding officers interviewed several other witnesses who indicated that a
man matching Defendant's description was seen running from the scene of the shooting. Based
on this information, Defendant was identified as a suspect in the shooting, and, ultimately, he
agreed to turn himself into the Ambridge Police Department.
On May 18, 2010, a CriminaJ Complaint was filed against Defendant, charging him with
one count of criminal homicide under 18 Pa.C.S.A. § 250l(a), one count of firearms not to be
carried without a license under 18 Pa.C.S.A. § 6106(a), and two counts of recklessly endangering
another person under 18 Pa.C.S.A. § 2705. On August 5, 2011, Defendant pled guilty to third
degree murder and was sentenced on August 12, 2011 to a term of imprisonment of twelve to
thirty years. On February 9, 2012, Defendant filed a Motion to Modify and Reduce Sentence. On
February 21, 2012, this Court entered a Memorandum Opinion and Order dismissing
Defendant's Motion to Modify and Reduce Sentence, denying his Request for Transcripts, and
granting Defendant's Application for Assignment of Counsel by appointing the Public
Defender's Office to represent Defendant.
On June 27, 2012, Defendant filed a prose Motion for Post Conviction Collateral Relief.
On August 16, 2012, the Deputy Public Defender filed an Amended Petition for Post Conviction
Relief on behalf of Defendant. Following a hearing on November 16, 2012, the Court entered an
Order denying Defendant's Petitions. On December 17, 2012, Defendant filed an Appeal with
the Superior Court. Defendant was directed to file a Rule 1925(b) Statement, which be submitted
on January 8, 2013. On August 20, 2013, the Superior Court affirmed this Court's denial of
Defendant's Petitions. On November 21, 2013, Defendant filed a Petition for Allowance of
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Appeal to the Supreme Court of Pennsylvania. On May 6, 2014, Defendant's Petition for
Allowance of Appeal was denied.
In addition to his Petition for Allowance of Appeal, on November 18, 2013, Defendant
also filed an Application for Leave to File Original Process and a Writ of Mandamus with the
Supreme Court of Pennsylvania in Terel Dixon v. Nicholas Corsetti, Hon. Mary Bowes, Hon.
Sally Mundy, Hon. Robert E. Colville, No. 82 WM 2013. On February 5, 2014, the Supreme
Court entered an order denying Defendant's Writ, and also directing the Prothoootary to strike
the names of the jurists from the caption.
On December 18, 2013, before his Petition for AJlowance of Appeal to the Supreme
Court had been resolved, Defendant mailed a second pro se PCRA Petition to the District
Attorney's office. On May 13, 2014, after his Petition for Allowance of Appeal had been denied,
Defendant filed a Motion with this Court to compel District Attorney Anthony Berosh to submit
the mailed PCRA Petition on his behalf. On May 22, 2014, this Motion was denied because it
was not filed with the Clerk of the Court and could not have been pursued anyway while
Defendant's Petition for Allowance of Appeal with the Supreme Court for his first PCRA
Petition was pending. On June 4, 2014, Defendant filed a Notice of Appeal with the Superior
Court regarding this Court's denial of his Motioo to Compel, in which Defendant also sought the
recusal of Judge Tesla. On August 13, 2014, Defendant filed a 1925(b) Concise Statement. On
August 15, 2014, this Court filed its I925(a) Opinion and Order. On August 18, 2014, Defendant
then filed this instant third PCRA Petition with this Court.
ANALYSIS
Before proceeding to any of the potential merits of Defendant's argument, this Court
must first detennine whether Defendant's instant PCRA Petition is timely filed. If it is not, then
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this Court does not have jurisdiction to consider Defendant's Petition, and the Petition must be
dismissed. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (citing Commonwealth v. Fahy.
558 Pa. 313, 737 A.2d 214 (1999)) ("PCRA time limits are jurisdictional in nature, implicating a
court's very power to adjudicate a controversy.").
Any petition for PCRA relief, "including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final," unless the Defendant alleges and proves
that one of three enumerated exceptions applies. 42 Pa.C.S.A. § 954S(bXl) ... A judgment
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 the review." 42 Pa.C.S.A. § 9S45(b)(2). A notice of appeal must be filed within 30
days, after which an appeUate court no longer has jurisdiction to hear the case. Commonwealth v.
Bey, 437 Pa. 134, 136, 262 A.2d 144, 145 (1970); PaR.A.P. 903.
In this case, Defendant was sentenced on August 12, 201 I. Defendant never filed a direct
appeal and did not file a post-sentence motion within ten days of the date of his sentence, but
rather filed a post-sentence motion to modify his sentence on February 9, 2012, almost six
months later. This motion was dismissed as untimely. The Court's order therefore became final
for PCRA purposes thirty days after the August 12, 2011 sentencing date. See. e.g..
Commonwealth v. Concordi~ 2014 Pa. Super. 155 (2014) ("Appellee's sentence became final
for purposes of the PCRA statute thirty days after the entry of his sentence since he did not file a
direct appeal.").
Because this date would have fallen on a Sunday, September 11, 2011, the actual final
day would have been Monday, September 12, 2011. See id.; l PaC.S.A. § 1908. Defendant
therefore had until Wednesday, September 12, 2012 in which to file all PCRA petitions, unless
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one of the statutory exceptions applies. 41 PaC.S.A. § 9545(b). Defendant did previously file a
timely PCRA petition on June 27, 2012, making the present petition a subsequent PCRA petition
for purposes of 42 PaC.S.A. § 9545(b). See Commonwealth v. DiVentura, 1999 Pa. Super. 124,
734 A.2d 397, 399 (1999). Because the present Petition was filed on August 18, 2014, almost
two years after the September 12, 2011 deadline, the Petition is untimely and this Court has no
jurisdiction to consider the Petition unless one of the enumerated exceptions under 41 Pa.C.S.A.
§ 9545(b) is satisfied. See id., 1999 Pa. Super. 124, 734 A.2d at 399-400.
Defendant argues that his Petition is timely under 42 Pa.C.S.A. § 9545(b)(ii),1 alleging
ineffective assistance of counsel in relation to facts previously unknown to him in the fonn of a
new affidavit by Ms. Tamara Sgro. In order to invoke this exception to the general one year
timeliness requirement, Defendant must raise the issue within 60 sixty days of the date the claim
could have been presented. 42 Pa.C.S.A. § 9545(b)(2). The affidavit to which Defendant refers is
dated June 18, 2014, a Saturday. The Petition with the attached affidavit was filed with the Court
on August 18, 2014, and thus satisfies the 60 day requirement, if Defendant can satisfy his
burden of proof that his "claim is predicated on facts [that] were unknown to the petitioner and
could not have been ascertained by the exercise of due diligence .... " 42 Pa.C.S.A. §
9545(b)(l)(ii); Commonwealth v. Beasly, 559 Pa 604, 741 A.2d 1268, 1261·21 (1999). "Due
diligence demands that the petitioner talce reasonable steps to protect bis own interests. A
petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of
I After COITCCtly citing in his first paragraph this section as being the one relevant to whether his Petition is timely
filed, at later points throughout his pro se Petition Defendant appears to conflate 42 Pa.C.S.A. § 9S4S(b)(l)(ii),
which requires that "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 .... " with 42 Pa.C.S.A. § 9S43(a)(2)(vi), which concerns the
unavailability of excu1patory evidence at the time of triaJ and which is relevant not to timeliness but to whether a
petitioner bas plead and proved an issue for which relief may be granted under the PCRA. Thus, for purposes of
whether this Petition is timely or not, the question is not whether the proffered evidence is exculpatory, but whether
the facts were unknown and could not have been asccnained by the exercise of due diligcncc. l!L at § 9S4S(b)( I )(ii).
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due diligence. This rule is strictly enforced." Commonwealth v. Medin!!, 2014 Pa. Super. 108, 92
A.3d 1210, 1216 (2014) (citing Commonwealth y. William§. 35 A.3d44, 53 (Pa. Super. 2011)).
Defendant states, "All prior evidence corroborates Sgro's affidavit as Sgro bas never
claimed to have seen the actual shooting of Mr. Johnson nor has Sgro testified at any pre-trial
proceeding or the trial itself." In this Defendant is correct. The Affidavit of Ms. Sgro which he
presents is consistent with her prior statements to the police as evidenced in the Affidavit of
Probable cause contained within the Criminal Complaint, which was filed and docketed with the
Beaver County Clerk of Courts, and was thus a public record. See Commonwealth v. Taylor, 620
Pa. 429, 435, 67 A.3d 1245, 1248 (2013) cert. denied, T~lor v. Pennsylvania. 134 S. Ct. 2695
(2014) ("This Court has found matters of public record are not unknown.").
In both her prior statement to police and her present affidavit, Ms. Sgro claims that
Defendant came to her apartment to fix her door; that the victim, Mr. Johnson, came banging on
the door, that she instructed Mr. Johnson to leave; that Defendant had then gone; that she then
came down the steps; and that when she came downstairs, and found the body of Mr. Johnson on
the ground, she then proceeded to call 911. Although it is unclear to this Court exactly what Ms.
Sgro believes she is now remembering differently, it is clear that the facts she averred to on June
18, 2014 in her affidavit appear no different from those which she provided to the police on May
17, 2010 as contained within the Affidavit of Probable Cause. Thus, Defendant presents no
relevant new or unknown facts.
Nevertheless, Defendant argues that "[t]he unknown fact upon which this petition is
predicated is Sgro's awareness of Mr. Dixon's innocence." In this, Defendant is mistaken. At no
place in Ms. Sgro's affidavit does she exonerate Defendant, nor is her affidavit particularly
exculpatory. In fact, as she did in 2010, she consistently places Defendant at the time and place
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of the murder, and as having fled the scene. Ms. Sgro does aver to becoming intimate with
Defendant, completely disrobing him, and not being aware of any fireanns. Whether Ms. Sgro
did or did not remove aJI of Defendant's clothes, and whether Defendant did or did not have a
firearm in his immediate possession at that precise moment, these would surely have been facts
that Defendant would not have been unaware of. Given their averred intimate relationship, there
aJso appears to be no reason why Defendant himself could not have previously contacted Ms.
Sgro to learn what she knew. Therefore, even if Defendant was actually unaware of what Ms.
Sgro knew, he has not met his burden of proof to show that he bas exercised due diligence to
learn. See Medina. 2014 Pa. Super. 108, 92 A.3d at 1216.
Ultimately, Defendant has not met his burden of proof that any of the facts in Ms. Sgro's
affidavit were either unknown to him or that they could not have been ascertained by exercising
due diligence. Nor does Defendant's framing of the issue in terms of ineffective assistance of
counsel alter the analysis. See Commonwealth v. Lesko, 609 Pa. 128, 165, 15 A.3d 345, 367
(2011) ("[IJt is well established that the fact that a petitioner's claims are couched in tenns of
ineffectiveness will not save an otherwise untimely petition from the application of the time
restrictions of the PCRA.").
Because the facts alleged in the affidavit are essentially no different than those contained
in the Affidavit of Probable Cause from the original Criminal Complaint, and because there are
no facts alleged and proven in Defendant's Petition which were unknown to him or which he
could not have discovered by exercising due diligence, Defendant has not met his burden of
proof under 41 Pa.C.S.A. § 9545(b)(l)(ii). Finally, Defendant does not allege, nor does this
Court find, that his Petition is timely under either of the other two exceptions under 41 Pa.C.S.A.
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§ 954S(b)(l). Therefore; Defendant's Petition has not been timely filed and this Court has no
jurisdiction to otherwise consider Defendant's Pctition.2
CONCLUSION
AND NOW, to wit, this / "1', day of September, 2014, upon considering Defendant's
Post-Conviction Relief Act Petition, it is hereby ordered for the aforementioned reasons that
Defendant's Petition is hereby DISMISSED. Defendant has the right to appeal this Order to the
Superior Court of Pennsylvania within thirty (30) days of the date of this Order in accordance
with Rule 908(E) of the Pennsylvania Rules of Criminal Procedure.
BY THE COURT,
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2 Although not reaching the merits of Defendant's Petition because of the absence of jurisdiction, to the extent
Defendant in his Petition argues that counsel was ineffective for not presenting alternative theories, for failing to file
post-sentence motions, or that his guilty plea was involuntary, these issues have already been previously litigated
and resolved against him on appeal in Case No. 1987 WDA 2012, and so cannot be relitigated. 42 Pa.C.S.A. §
9S43(a}. To the extent Defendant in bis Petition argues that the evidence against him was not sufficient, Defendant
also waived this ar&UJDCDt by entering a ·knowing, intelligent, and voluntary guilty plea. See Commonwealth v.
Rounsley, 717 A.2d 537, 538-39 (Pa. Super. 1998} (..It is well established that any issue n:laling to sufficiency of
the evidence is waived by entry of a guilty plea and is not subjut to anack in a post conviction proceeding."}.
8