Opinion
J. S03006/16 No. 637 EDA 2015
03-16-2016
COMMONWEALTH OF PENNSYLVANIA v. DAVID THOMPSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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.
[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,
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.Trial court opinion, 8/3/15 at 1-3 (footnotes omitted).
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.
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[?]
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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/16/2016
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