The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
VINCENT THOMAS
Appellant No. 497 EDA 2015
Appeal from the PCRA Order January 14, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP--23-CR-0006924-1981
CP-23-CR-0006925-1981
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 09, 2015
Vincent Thomas appeals pro se from the order entered in the Court of
Common Pleas of Delaware County, on January 14, 2015, denying him relief
on his serial petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. § 9541 et seq. The PCRA court determined it had no jurisdiction
to address the merits of Thomas’ claim as his petition was untimely and
none of the statutory exceptions applied. Thomas argues the PCRA court
erred in failing to grant him an evidentiary hearing as he had presented a
prima facie claim he was entitled to the after discovered evidence exception.
Following a thorough review of the submissions by the parties, relevant law,
and the certified record, we affirm.
In 1982, Thomas was convicted on multiple counts of rape, involuntary
deviate sexual intercourse, and related charges. Thomas received an
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aggregate sentence of 18 to 60 years’ incarceration. Prior to sentencing,
Thomas received a mental health evaluation from Dr. John K. Fong, D.O.
Dr. Fong’s report indicated he believed Thomas would benefit from
psychiatric treatment and posed a risk to reoffend.
Thomas obtained no relief in his direct appeal or in any of his several
prior PCRA petitions. On February 4, 2014, Thomas filed the instant PCRA
petition claiming he had recently discovered that Dr. Fong was not a licensed
psychologist and, therefore, was unqualified to render an opinion about his
mental state. The PCRA court considered this argument but concluded that
Thomas had not explained why this previously unknown fact, which was in
the public record, could not have been discovered at any time in Thomas’
prior 30 plus years of incarceration. Accordingly, the PCRA court denied
Thomas’ petition as untimely.
As a prefatory matter, the timeliness of a PCRA petition is a
jurisdictional requisite. Commonwealth v. Robinson, 12 A.3d
477 (Pa. Super. 2011). A PCRA petition, including a second or
subsequent petition, shall be filed within one year of the date the
underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1).
A judgment is deemed 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. §
9545(b)(3).
The three statutory exceptions to the timeliness provisions in the
PCRA allow for very limited circumstances under which the late
filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To
invoke an exception, a petition must allege and the petitioner
must prove:
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(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.
42 Pa.C.S.A § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner
must present his claimed exception within sixty days of the date
the claim first could have been presented. 42 Pa.C.S.A. §
9545(b)(2). “As such, when a PCRA petition is not filed within
one year of the expiration of direct review, or not eligible for one
of the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date that the
claim could have been first brought, the [PCRA] court has no
power to address the substantive merits of a petitioner's PCRA
claims.” Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77,
753 A.2d 780, 783 (2000).
Commonwealth v. Brown, 111 A.3d 171, 175-76 (Pa. Super. 2015).
Further,
Our standard of review for an order denying post-conviction
relief is whether the record supports the PCRA court's
determination and whether the PCRA court's determination is
free of legal error. The PCRA court's findings will not be
disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Perzel, 116 A.3d 670, 671 (Pa. Super. 2015) (citation
omitted).
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There is no dispute that Thomas was originally convicted and
sentenced in 1982 and that his judgment of sentence became final in June,
1984, when time expired for Thomas to seek review by the Pennsylvania
Supreme Court. Accordingly, Thomas had until June 1985 to file a timely
PCRA petition. Therefore, this petition is facially untimely by more than 29
years. However, as noted, Thomas claims that he is entitled to the
application of the timeliness exception found at section 9454(b)(1)(ii),
regarding newly discovered facts. Thomas claims that by letter dated
December 6, 2013, the State Board of Psychiatry informed him that John K.
Fong, D.O., was not a licensed psychologist, but was a licensed osteopathic
physician (D.O.). Prior to sentencing in 1982, Dr. Fong had conducted the
mental health evaluation for Thomas’ pre-sentence report.
The PCRA court rejected Thomas’ assertion, noting that Thomas had
not explained,
why he could not have obtained this purported newly discovered
evidence in the many years that followed his sentence … The
information regarding Dr. Fong’s credentials that [Thomas’]
claims are “newly discovered facts” were of public record and
could have been discovered by [Thomas] through the exercise of
due diligence prior to the filing of his current PCRA [petition].
PCRA Court Opinion, 5/15/2015, at 4-5.
Our review of this matter confirms the certified record supports this
determination. The information from the State Board of Psychiatry was
available upon request. Accordingly, the PCRA court’s legal conclusion that
Thomas’ petition is untimely is free from error.
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Additionally, we note that in reviewing Dr. Fong’s letter-report, he
never claimed to have been a licensed psychologist. The letter-report is
signed by “John K. Fong, D.O., Psychiatric Consultant”. See Letter-Report,
July 30, 1982. The alleged newly discovered fact that Dr. Fong was an
osteopathic physician and not a licensed psychologist is evident from the
1982 Letter Report itself. Accordingly, the 2013 letter to Thomas from the
State Board of Psychology is nothing more than a reiteration of a fact made
known to Thomas and his counsel in 1982.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2015
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