J-S02040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DAMIEN PHILLIPS

                        Appellant                  No. 1048 EDA 2014


             Appeal from the PCRA Order of December 7, 2010
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-1100411-1994


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED MARCH 02, 2015

     Damien Phillips appeals pro se from the December 7, 2010 order

denying his fourth petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.

     On February 28, 1994, Phillips and his accomplice, Antonio Hudson,

entered the San Jan Chinese Restaurant on East Adams Avenue in

Philadelphia with the intent to commit a robbery. Once inside, Phillips ran

behind the counter and pushed an employee, Xia Gan Lin, to the floor.

Hudson then pointed his gun at Lin while Phillips went into the kitchen.

While in the kitchen, Phillips forced Xiaohuang Wang and Kim Wing Lam to

the floor, and shot each man in the head at close range.        Phillips then

returned to the front of the store, grabbed Lin, and ordered him to open the

cash register at gunpoint.   Hudson grabbed the money out of each cash
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register, and as he fled, Phillips shot Lin. Wang and Lam were found dead in

the kitchen with bullet wounds to their heads, and Lin died ten days later.

Trial Court Opinion (“T.C.O.”), 5/30/1996, at 1-2.

       On July 26, 1995, a jury convicted Phillips of three counts each of first-

degree murder and robbery, and one count each of criminal conspiracy and

possessing instruments of a crime.1              On July 27, 1995, the trial court

sentenced Phillips to three consecutive terms of life imprisonment for the

murder convictions, plus a consecutive term of thirty-seven and one-half to

seventy-five years’ imprisonment for the remaining offenses.            This Court

affirmed the judgment of sentence on May 30, 1996, and our Supreme Court

denied Phillips’ petition for allowance of appeal on November 1, 1996.

Phillips did not seek further review with the United States Supreme Court.

Consequently, Phillips’ judgment of sentence became final on January 31,

1997, pursuant to 42 Pa.C.S. § 9545(b)(3) (“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”).

       On October 31, 1997, Phillips timely filed a pro se PCRA petition. The

PCRA court appointed counsel, who filed a “no-merit” letter.2 On December
____________________________________________


1
       18 Pa.C.S §§ 2502(a), 3701, 903, and 907, respectively.
2
    See Commonwealth v. Turner, 544 A.2d 927                          (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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3, 1998, the court denied PCRA relief and permitted counsel to withdraw.

On March 9, 2000, this Court affirmed the order denying PCRA relief, and, on

September 19, 2000, our Supreme Court denied Phillips’ petition for

allowance of appeal.

      On March 18, 2004, Phillips filed his second pro se PCRA petition. On

June 8, 2004, the PCRA court denied PCRA relief. On June 14, 2005, this

Court affirmed the order denying PCRA relief, and, on December 21, 2005,

our Supreme Court denied Phillips’ petition for allowance of appeal.

      On February 3, 2006, Phillips filed a third pro se PCRA petition,

claiming to have obtained after-discovered evidence of ineffective assistance

of counsel.   Phillips argued that his counsel failed to make use of a letter

that he received from a fellow inmate, which included information that

Phillips’ accomplice, Hudson, had told that inmate that he wanted to make

sure that Phillips was convicted for the shooting in revenge for Phillips

“crossing his people.” PCRA Court Opinion (“P.C.O”), 5/13/2014, at 3. On

July 25, 2007, the court denied PCRA relief. On March 11, 2009, this Court

affirmed the order denying PCRA relief. Phillips did not seek further review

with our Supreme Court.

      On April 14, 2009, Phillips filed a fourth pro se PCRA petition. In it,

Phillips alleged an “unspecified violation of the constitution and laws and the

discovery of previously unavailable exculpatory evidence.”       P.C.O. at 3.

Specifically, Phillips received an affidavit from his co-defendant, Hudson, in

which Hudson recanted certain trial testimony, and stated that he falsely

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testified at trial in order to avoid the death penalty. P.C.O. at 3. Therein,

Hudson maintained that Phillips was the only shooter, but, unlike his trial

testimony, stated that he and Phillips did not plan to rob the restaurant

when they first arrived.       Hudson explained that Phillips became infuriated

when the employees took too long to serve Phillips his food, and that

Hudson only took money from the cash register after Phillips shot the first

two victims. P.C.O. at 5.

      On November 9, 2010, the PCRA court provided notice of its intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P 907.          On

November 29, 2010, Phillips filed a pro se response to the Rule 907 notice,

and on December 7, 2010, the PCRA court denied PCRA relief. Phillips did

not file a notice of appeal.

      On March 10, 2011, Phillips filed a fifth pro se PCRA petition. Therein,

Phillips argued that the PCRA court did not provide Phillips with notice of the

order dismissing his fourth PCRA petition, which denied him the opportunity

to pursue an appeal. On April 27, 2011, Phillips filed a pro se supplemental

petition and memorandum of law.         On July 5, 2012, Phillips filed a pro se

amended petition, in where he raises additional claims relating to the United

States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455

(U.S. 2012). On July 8, 2012, the PCRA court issued a Rule 907 notice; the

PCRA court denied PCRA relief on May 8, 2013.

      On December 13, 2013, this Court vacated the order dismissing

Phillips’ fifth PCRA petition, and remanded to the PCRA court with

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instructions to reinstate Phillips’ right to file a notice of appeal nunc pro tunc

from the December 7, 2010 order dismissing his fourth PCRA petition. On

February 21, 2014, the PCRA court reinstated Phillips’ right to file an appeal

nunc pro tunc. On March 14, 2014, Phillips filed a notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).     On May 14, 2014, the PCRA court filed its Pa.R.A.P. 1925(a)

opinion. On January 5, 2014, Phillips filed a supplemental brief requesting

that this Court take judicial notice of a generally known “medical” fact.3

       Phillips raises four questions for this Court’s consideration:

              I.     Whether the [PCRA] [c]ourt erred in dismissing
              [Phillips’] petition as untimely, without a hearing, where a
              court order of separation barred [Phillips’] access and
              rendered any exercise of due diligence fruitless and
              unreasonable?

              II.    Whether the [PCRA] court erred in dismissing
              [Phillips’] claim of after-discovered evidence without
              hearing testimony from a critical cooperating co-
              conspirator who recanted his trial testimony, where, said
              testimony was perjured and the primary basis upon which
              [Phillips’] guilt was predicated?

              III. Whether the [PCRA] court erred and denied [Phillips]
              the right to due process of law under the State and Federal
              Constitution, and his right to a proper legal evaluation of
              the reliability and effect of his claim of a Napue v.
____________________________________________


3
      In his supplemental brief, Phillips argues that the medical evidence
presented by the Commonwealth fails to show that he shot the victims at
close range, due to a lack of gunpowder residue around their wounds.
Supplemental Brief for Phillips at 2. However, because his fourth petition is
untimely, this irrelevant contention is moot, and we need not address it.




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              Illinois[3] violation, by dismissing [Phillips’] petition as
              untimely?

              IV.   Whether the [PCRA] court committed an error of law
              in dismissing [Phillips’] claim of a [n]ew [r]ule of
              Constitutional Law as untimely?

Brief for Phillips at 4-5.

       Our standard of review from an order denying a PCRA petition is

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error. See Commonwealth v. Ragan, 923 A.2d

1169, 1170 (Pa. 2007).          The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.                See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

       As a preliminary matter, we must determine whether Phillips’ fourth

PCRA petition was timely. It is well established that the PCRA time limits are

jurisdictional, and are meant to be both mandatory and applied literally by

the courts to all PCRA petitions, regardless of the potential merit of the

claims asserted. Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa.

2000); Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.

2011).      “[N]o    court    may    properly    disregard   or   alter   [these   filing

requirements] in order to reach the merits of the claims raised in a PCRA

petition that is filed in an untimely manner.” Murray, 753 A.2d at 203; see

also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

____________________________________________


[3]
       Napue v. Illinois, 360 U.S. 264 (1959).



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Section 9545(b) sets forth the time limitations for filing a PCRA petition as

follows:

      (1) 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 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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b).

      When an appellant files a facially untimely petition under the PCRA,

and fails expressly to invoke any of the exceptions to the PCRA’s one-year

jurisdictional time limit, the petition is untimely and we must deny the

appellant relief. See, e.g., Commonwealth v. Wilson, 824 A.2d 331, 336

(Pa. Super. 2003) (“Appellant’s failure to timely file his PCRA petition, and

his failure to invoke any of the exceptions to the timeliness requirements of

the PCRA, results in an untimely PCRA petition under any analysis.”).



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       On January 31, 1997, Phillips’ judgment of sentence became final.

See 42 Pa.C.S.A. § 9545(b)(3). Phillips had until February 2, 1998 to file a

timely petition.4 On April 14, 2009, he filed the instant petition, over eleven

years after the expiration of the applicable one-year period. Therefore, the

petition is untimely on its face. 42 Pa.C.S. § 9545(b)(1).

       Phillips relies upon the newly discovered fact exception in his attempt

to overcome the PCRA’s applicable time bar.        42 Pa.C.S. § 9545(b)(1)(ii).

This exception requires a petitioner to demonstrate that he did not know the

facts upon which he based his petition.          Moreover, the petitioner must

demonstrate that he could not have learned of these facts earlier through

the exercise of due diligence. Commonwealth v. Bennett, 930 A.2d 1264,

1271 (Pa. 2007).          Due diligence requires a PCRA petitioner to take

reasonable steps to protect his own interests.       Commonwealth v. Carr,

768 A.2d 1164, 1168 (Pa. Super. 2001). Notably, “[t]he newly discovered

evidence exception . . . does not require a merits analysis of the claim in

order for it to qualify as timely and warranting merits review. The exception

merely requires that the ‘facts’ upon which such a claim is predicated must

not have been known to appellant, nor could they have been ascertained by

due diligence.”      Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa.

2005).


____________________________________________


4
       January 31, 1998 fell on a Saturday.



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      Specifically, Phillips argues that the PCRA court erred in denying his

petition because he demonstrated the existence of newly discovered,

exculpatory facts, revealed in an affidavit by his co-defendant, Hudson.

P.C.O. at 4. We disagree. First, Hudson’s affidavit confirms Phillips’ guilt, as

Hudson once again maintains that Phillips was the only shooter. The only

deviation from Hudson’s trial testimony is his claim that he and Phillips did

not originally plan to rob the restaurant before they arrived, and that Phillips

only began to shoot the victims after he became irritated when the victims

took too long to serve his food. P.C.O. at 5. However, this evidence is not

“new,” and Phillips, as the shooter, failed to explain why he could not have

learned of Hudson’s alleged false statements at trial at any point in the past

eleven years.

      Hudson’s affidavit cannot be used as a basis for relief under section

9545(b)(1)(ii), because it is simply a new source for previously known facts.

See Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008);

Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa. 2004) (“The focus of

the exception is on [the] newly discovered facts, not on a newly discovered

or newly willing source for previously known facts.”).     His affidavit not only

confirms Phillips’ guilt as the lone shooter, but it fails to offer any new facts

that Phillips was unaware of at trial. Even if any of the events recounted in

Hudson’s testimony were false, Phillips would have clearly been aware of

those falsities at trial, as he was party to those events.     Moreover, in his

untimely third PCRA petition, Phillips already claimed to have had new

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evidence of Hudson’s false testimony, offered in a letter that he received

from a fellow inmate, which stated that Hudson told the inmate he gave

false testimony to ensure that Phillips was convicted. P.C.O. at 3.

      Therefore, Hudson’s affidavit offers no newly discovered facts, and

Phillips failed to demonstrate why he could not have obtained these facts

earlier with the exercise of due diligence. As a result, Phillips has failed to

plead or prove a statutory exception to the time bar.

      Accordingly, the PCRA court correctly determined that it was without

jurisdiction to address the merits of the issues raised by Phillips’ untimely

PCRA petition.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2015




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