J-S92019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THOMAS LEWIS TERRY

Appellant No. 547 WDA 2016

Appeal from the PCRA Order March 31, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0015702-1991

BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.: FILED APRIL 17, 2017

Thomas Lewis Terry appeals, pro se, from the March 31, 2016 order of 

the Allegheny County Court of Common Pleas dismissing as untimely his 

eighth petition filed under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-46. We affirm.

This Court summarized the procedural history of this case in a prior 

PCRA appeal as follows:

On July 9, 1993, a jury convicted Terry of burglary, 

aggravated assault,1and spousal sexual assault.2 After 

sentencing and post-sentencing proceedings, Terry 

appealed and this Court affirmed his judgment of sentence 

on January 19, 1995. Terry filed a petition for allowance 

of appeal to our Supreme Court, which was denied on July 

17, 1995. Terry did not file a petition for a writ of 

certiorari to the United States Supreme Court within the 

ninety days allowed by Supreme Court Rule 13.1. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Consequently, Terry’s judgment of sentence became final 

on October 16, 1995[]3. . . . 

1 See 18 Pa.C.S. §[§] 3502 and 2702, respectively.

2 See 18 Pa.C.S. § 3128, repealed by Act of March 31, 

1995, P.L. 985, No. 10, § 10.

3 The ninetieth day fell on October 15, 1995, but that 

date fell on a Sunday. Consequently, Terry’s last day to 

file a timely certiorari petition was Monday[,] October 

16, 1995. See Sup. Ct. R. 30.1.

Commonwealth v. Terry, No. 368 WDA 2014, unpublished mem. at 1-2 

(Pa.Super. filed Dec. 18, 2014).

Terry filed the instant pro se PCRA petition, his eighth, on March 10, 

2016. On March 15, 2016, the PCRA court issued a notice of intent to 

dismiss the petition as untimely under Pennsylvania Rule of Criminal 

Procedure 907, to which Terry filed a pro se response. On March 31, 2016, 

the PCRA court dismissed Terry’s petition. On April 14, 2016, Terry filed a 

timely notice appeal and Pennsylvania Rule of Appellate Procedure 1925(b) 

statement with the PCRA court. He then filed an amended Rule 1925(b) 

statement on May 5, 2016.

On appeal, Terry raises the following issues:

Issue I: Whether United States Supreme Court has 

established that the deception of the court and jury by the 

knowing presentation [of] false evidence violates the due 

process guarantees of the Fourteenth Amendment. The 

Court explained that due process is a requirement that 

c[a]nnot be deemed to be satisfied by mere notice and 

hearing if a state has contrived a conviction through the 

pretense of a trial which in truth is but used as means of 

depriving a defendant of liberty through a deliberate 

deception of court and jury by the presentation of 

testimony known to be perjured. Such a contrivance by a 
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state to procure the conviction and imprisonment of a 

defendant is as inconsistent with the rudimentary demands 

of justice as is the obtaining of a like result by intimidation.

Issue II: Whether prosecutor misconduct would violate a 

defendant’s due process rights . . . when the State, 

although not soliciting false evidence, allows it to go 

uncorrected when it appears. A prosecutorial misconduct 

claim may arise when the undisclosed evidence 

demonstrates that the prosecution’s case includes perjured 

testimony and the prosecution knew, or should have 

known, of the perjury?

Issue III: Whether the Government Interference Exception 

to the timeliness requirement is applicable, petitioner 

alleged that his PCRA petition was not untimely, as he 

claimed that there was certain after-discovered evidence 

which would have changed the outcome of his trial had the 

information been available?

Issue IV: Whether petitioner is entitled to circumvent the 

timeliness requirement [for] filing a PCRA petition because 

he has after-discovered evidence that would change the 

outcome of his case had it been available at the time of 

trial?

Issue V: Whether the Opinion failed to address the 

recantation of the witnesses perjured testimony that is 

presented in the PCRA petition along with the offering of 

the witnesses compensation in exchange for false 

testimony that recantation is new evidence afterdiscovered evidence after trial [and] the court abuse[d] its 

discretion [by] not reviewing the perjured testimony which 

would require[] [an] evidentiary hearing to the truthdetermining process of the witnesses credibility.

Issue VI: Whether Newly discovered evidence of 

recantation which related specifically to the very evidence 

supporting defendant’s conviction qualified as more than 

impeaching, even if it was subsequently repudiated. 

Furthermore the recantation was certainly material to the 

issues involved, []going to the very heart of defendant’s 

guilt or innocence. The witness’s recantation of his key 

testimony, even if subsequently repudiated or not qualified 

as the type of newly discovered evidence for which relief 

was available?
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Terry’s Br. at 4 (citations omitted).

Our review of an order denying PCRA relief is limited to determining 

“whether the decision of the PCRA court is supported by the evidence of 

record and is free of legal error.” Commonwealth v. Melendez-Negron, 

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s 

factual findings “unless there is no support for [those] findings in the 

certified record.” Id.

We must first address the timeliness of Terry’s PCRA petition, which is 

a jurisdictional requisite. See Commonwealth v. Brown, 111 A.3d 171, 

175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A petitioner must 

file a PCRA petition, including a second or subsequent petition, within one 

year of the date his or her judgment of sentence becomes final. 42 Pa.C.S. 

§ 9545(b)(1). Here, the Pennsylvania Supreme Court denied Terry’s petition 

for allowance of appeal on July 14, 1995. Terry did not seek review with the 

United States Supreme Court, so his judgment of sentence became final 90 

days later, on October 16, 1995.1 See 42 Pa.C.S. § 9545(b)(3); U.S. S. Ct. 

R. 13. Thus, the instant PCRA petition, filed on March 10, 2016, was facially 

untimely.

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1

 Where a petitioner’s judgment of sentence became final on or before 

January 16, 1996, the effective date of the 1995 amendments to the PCRA, 

a grace proviso allowed the petitioner to file a timely first PCRA petition by 

January 16, 1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-

57 (Pa.Super. 1997). Terry filed his first PCRA petition on January 22, 1996.
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To overcome the time bar, Terry was required to plead and prove one 

of the following exceptions: (i) unconstitutional interference by government 

officials; (ii) newly discovered facts that could not have been previously 

ascertained with due diligence; or (iii) a newly recognized constitutional right 

that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). To invoke one of these exceptions, Terry must have filed his petition 

within 60 days of the date the claim could have been presented. See 42 

Pa.C.S. § 9545(b)(2).

In the instant PCRA petition, Terry attempted to assert the 

governmental interference and “new facts” exceptions to the one-year time 

bar. Both claims are based on Terry’s alleged discovery of prosecutorial 

misconduct. However, as the PCRA court correctly determined:

[Terry] claims that either the District Attorney actively 

encouraged witnesses to lie during his trial by offering 

them compensation in exchange for false testimony, or 

was aware that witnesses provided false testimony and did 

nothing about it. [Terry] asserts that he learned of a 

“reward fund.” [He] did not clearly state, but insinuated[,] 

that he learned of the reward fund through recanted 

witness testimony. However, [Terry] did not provide any 

details about the alleged reward fund or any information 

that confirms that the reward fund is anything more than 

mere speculation on [his] part. [Terry] also failed to 

provide the date on which he became aware of the reward 

fund.

PCRA Ct. Op., 8/1/16, at 4. Terry failed to establish that he filed his petition 

within 60 days of discovering this allegedly new information. See 42 Pa.C.S. 
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§ 9545(b)(2).2 Therefore, the PCRA court lacked jurisdiction over Terry’s 

petition.

Accordingly, because Terry’s eighth PCRA petition was untimely filed 

and he failed to prove an exception to the one-year time bar, we conclude 

that the PCRA court properly dismissed the petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2017

____________________________________________

2

In his initial Rule 1925(b) statement, Terry also asserted a claim of 

an illegal sentence under Alleyne v. United States, 133 S. Ct. 2151 

(2013), but he has abandoned that claim on appeal.