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[U] Commonwealth v. Cooper

Superior Court of Pennsylvania

February 4, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DARNELL COOPER Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of December 14, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0319052-1992

BEFORE: BOWES, J., LAZARUS, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Darnell Cooper appeals the December 14, 2012 order denying his fifth petition for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. We adopt the well-reasoned opinion of the PCRA court, and we affirm.

In a prior memorandum, we set forth the initial procedural history of this case as follows:

Having been convicted by a jury for murder and other offenses in connection with a shooting, [Cooper] was sentenced in 1994.[1] On direct appeal, this Court affirmed his judgment of sentence in April 1995. Commonwealth v. Cooper, 663 A.2d 246 (Pa.Super. 1995) [(table)]. [Cooper] did not seek discretionary review in the Pennsylvania Supreme Court.
He filed his first PCRA petition in 1996, and counsel was appointed to represent him. The PCRA court denied relief and, on appeal, this Court affirmed the denial. Commonwealth v. Cooper, 747 A.2d 410 (Pa.Super. 1999) [(table)]. [Cooper] did not seek allowance of appeal in the Pennsylvania Supreme Court.
[Cooper] filed his second PCRA petition in 2004. The PCRA court denied the petition as being untimely in August 2005. [Cooper] appealed that denial. On or about March 16, 2007, while [Cooper's] second PCRA petition was on collateral appeal with this Court, he filed a third PCRA request. [Cooper's] third petition alleged the discovery of an eyewitness, Suliman Perkins, whose testimony would essentially indicate, inter alia, that [Cooper] was not present during the shooting in this case. The petition included an affidavit from Suliman as to testimony he would provide if called to testify. The PCRA court dismissed the petition because the collateral appeal of [Cooper's] second PCRA petition was pending. [Cooper] did not appeal the dismissal of his third PCRA petition.
In April 2007, we affirmed the PCRA court's denial of [Cooper's] second PCRA petition. Commonwealth v. Cooper, 928 A.2d 1120 (Pa.Super. 2007) [(table)]. The Pennsylvania Supreme Court denied [Cooper's] petition for allowance of appeal on November 15, 2007. Commonwealth v. Cooper, 936 A.2d 39 (Pa. 2007) [(per curiam)].
In January 2008, [Cooper] filed [his fourth PCRA petition], pro se. The clerk of courts received the petition on or about January 11, 2008. It is not apparent whether [Cooper] mailed his petition from prison and, if so, when he mailed it, or whether he had someone hand file the petition for him.
In his fourth PCRA petition, [Cooper] made largely the same claims he had made in his third. That is, he asserted he first learned on January 27, 2007, that Suliman had witnessed the shooting in question. [Cooper's] petition, along with a detailed affidavit from Suliman, indicated the latter would testify that he saw the crime in question and that [Cooper] was not one of the perpetrators. The affidavit also explained that, although Suliman had seen the shooting, he initially believed no one had been killed because the van at which one or more of the perpetrators shot had driven away. According to the affidavit, Suliman told no one other than his sister about what he saw because she told him to mind his own business. Also according to the affidavit and petition, it was not until January 27, 2007, that Suliman learned [Cooper] had been convicted in connection with the shooting, that Suliman approached [Cooper] in prison in order to relate his (Suliman's) information, and that Suliman revealed he had been a witness to the incident. In his PCRA petition, [Cooper] claimed the foregoing facts constituted after-discovered evidence entitling him to a new trial. He also claimed these facts entitled him to a time-bar exception under 42 Pa.C.S.A. § 9545(b)(1)(ii) (newly discovered facts).
Proceeding under Pa.R.Crim.P. 907, the PCRA court issued a notice of intent to dismiss [Cooper's] petition. The 907 notice indicated only one basis for the intended dismissal, specifically the petition was untimely. [Cooper's] appointed counsel filed a response to the 907 notice wherein counsel contended, inter alia, that the court should grant an ...

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