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[U] Commonwealth v. Davis

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TYRONE DAVIS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order December 28, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0229071-1984

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OTT, JJ.

MEMORANDUM

BOWES, J.

Tyrone Davis appeals from the December 28, 2012 order dismissing his PCRA petition as untimely. After review, we affirm.

On September 10, 1986, a jury found Appellant guilty of first-degree murder and possessing an instrument of crime ("PIC"), and the court sentenced him to life imprisonment without the possibility of parole. He filed an appeal to this Court, and we affirmed judgment of sentence on April 28, 1987. Commonwealth v. Davis, 526 A.2d 1231 (Pa.Super. 1987) (unpublished memorandum). The Supreme Court denied allocatur on September 25, 1987, and Appellant did not seek review in the United States Supreme Court. Thus, his sentence became final sixty days later, on or about November 24, 1987.[1]

On March 10, 1988, Appellant filed a timely first PCRA petition and counsel was appointed. Counsel filed a Turner/Finley[2] no-merit letter. The court permitted counsel to withdraw and denied PCRA relief. Appellant's pro se appeal to this Court was dismissed on February 28, 1992, because it was untimely filed. Commonwealth v. Davis, 288 PHL 1992 (unpublished order). Appellant filed a second PCRA petition pro se on December 4, 1996, which was dismissed as untimely on August 20, 1997, and this Court affirmed on November 16, 1999. Commonwealth v. Davis, 748 A.2d 1249 (Pa.Super. 1997) (unpublished memorandum). Appellant did not seek allowance of appeal.

On January 4, 2006, Appellant filed a petition for writ of habeas corpus, which the trial court treated as a third PCRA petition. It was dismissed on November 20, 2006, as untimely filed. Appellant appealed to this Court, and we affirmed. Commonwealth v. Davis, 935 A.2d 8 (Pa.Super. 2007) (unpublished memorandum) (finding petition untimely as it was filed eighteen years too late).

On October 22, 2007, Appellant filed his fourth PCRA petition. He asserted therein that it was timely because it was filed within sixty days of the Supreme Court's August 23, 2007 decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). In Bennett, our High Court held that a PCRA petition alleging that counsel's failure to file an appellate brief constituted abandonment and a timeliness exception under 42 Pa.C.S.§ 9545(b)(1)(ii)). Bennett, Appellant maintained, announced a new constitutional rule that applied retroactively, or alternatively, a watershed procedural rule, or after-discovered evidence. The trial court issued Rule 907 notice of its intent to dismiss the petition in twenty days as untimely and advised Appellant of his right to respond. Appellant filed a response objecting to dismissal, but the petition was dismissed on April 21, 2008. Appellant did not appeal.

Appellant filed the within pro se PCRA petition on June 20, 2012, and a supplemental petition on August 14, 2012.[3] In the petition, he checked the box indicating that, "the facts upon which the claim is predicated were unknown" and "could not have been ascertained by the exercise of reasonable diligence." PCRA Petition, 6/20/12, at 2. He averred therein that he was eligible for relief due to "the improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court." Id. at 3. In his supporting facts, Appellant alleged that he was deprived of his right to appeal the denial of relief on his October 2007 PCRA petition because he only learned on May 4, 2009, that his petition had been dismissed a year earlier. He pled that upon being so apprised, he filed another PCRA petition on May 14, 2009, seeking to reinstate his PCRA appellate rights. On May 9, 2012, when Appellant requested the status of that petition, he learned that this petition, stamped as filed, had not been docketed properly. As he was advised to do, he refiled a copy of the May 14, 2009 petition on May 14, 2012, again seeking restoration of his appellate rights nunc pro tunc, due to a breakdown in the court's administration.

On November 26, 2012, the trial court issued Rule 907 notice of its intent to dismiss Appellant's June 2012 petition in twenty days as untimely. Appellant objected to the dismissal, averring therein that there was a breakdown in the court system and that he exercised reasonable diligence after the filing of his October 22, 2007 PCRA petition. The PCRA court subsequently dismissed the petition by order dated December 28, 2012 as facially untimely and failing to invoke a timeliness exception.

Appellant filed the within appeal on January 22, 2012, raising two issues for our review:

I. Did the trial court err in denying the appellant an evidentiary hearing?
II. Did [the] trial court err in not appointing counsel for appellant in ...

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