J-A15038-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

JAMES GRAHAM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2781 EDA 2019

Appeal from the PCRA Order Entered September 5, 2019

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010428-2007

BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.: FILED JULY 08, 2020

Appellant, James Graham, appeals pro se from the order entered in the 

Philadelphia County Court of Common Pleas, which dismissed his third petition 

filed under the Post Conviction Relief Act (“PCRA”).1 We affirm. 

The PCRA court set forth the underlying facts of this case as follows:

On March 12, 2007, at approximately two o’clock p.m., a 

group of basketball players arrived at Dickinson Square 

Park, a neighborhood park with a basketball court, a 

recreation center, and a playground, surrounded by 3rd

Street, 4th Street, Morris Street, and Tasker Street. George 

Ocasio (“Ocasio”) and Justin Davis (“Davis”) arrived in 

Ocasio’s white Mercury Sable and parked on Morris Street. 

Mark Wilson (“Wilson”), David Stokes (“Stokes”), Terrell 

Drummond (“Drummond”), and Hughes arrived together in 

Wilson’s silver Oldsmobile Intrigue. They parked directly 

behind Ocasio’s car on Morris Street. William Duncan 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. 
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(“Duncan”) parked his blue Grand Marquis directly behind 

Wilson’s car.

Duncan, Ocasio, and Davis were from 5th Street and played 

for one team. Stokes, Drummond, and Wilson were from 

7

th Street and played for the other team. Most of the players 

had known each other for years. Each team bet $300 on 

the game.

Markel White (“White”), [Appellant], and [Appellant’s] 

brother, Kareem Graham (“Kareem”), all from 5th Street, sat 

next to the basketball court and watched the game, along 

with Hughes from 7th Street. There were many other people 

in the park at that time as well—some watching the game, 

others playing on the playground.

The game went on for approximately twenty minutes until a 

foul call started an argument between the two teams. 

Stokes and [Appellant] were verbally arguing when Stokes 

asked Hughes to pass him his gun. When Hughes passed 

Stokes a gun, people began to leave the basketball court. 

Stokes, Hughes, and Drummond walked back to Wilson’s 

Oldsmobile. Stokes entered the passenger seat, while the 

other two men sat in the backseat, Hughes behind the driver 

seat, and Drummond behind the passenger seat.

From approximately 50-55 yards away from the car, on a 

pathway in Dickinson Square Park, [Appellant] pulled out a 

gun, aimed it with two hands at the Oldsmobile and fired 

twice at the car. Two fired cartridge casings were found on 

the pathway where witnesses placed [Appellant].

One of the shots went through the glass window of the 

Oldsmobile and hit Hughes in his head. He was taken to the 

hospital and on March 13, 2007, he was pronounced dead 

as a result of this gunshot wound. The Medical Examiner 

did find stippling on Hughes’ face which he testified could be 

a result of a close range shot or due to the shattered car 

window glass.

On March 13, 2007, March 15, 2007, and March 19, 2007, 

respectively, Duncan, White, and Davis gave statements to 

detectives identifying [Appellant] as the shooter.
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On March 16, 2007, an arrest warrant was issued for 

[Appellant] and the Fugitive Squad went to his house that 

morning at 6 a.m. When the police saw a man fitting 

[Appellant’s] description, he showed them identification 

with the name “Malik Lamore Graham” and claimed that he 

was [Appellant’s] brother. However, when police 

investigated further, this man was in fact [Appellant] 

himself. He was arrested at this time. On May 17, 2007, 

Kareem, [Appellant’s] brother, told a social worker at his 

juvenile detention facility that he had witnessed his brother 

murder someone. The social worker called Homicide 

Headquarters and Kareem gave a statement identifying 

[Appellant] as the shooter on March 12.

(PCRA Court Opinion, filed September 5, 2019, at 2-3) (citations omitted). 

Appellant initially proceeded to a jury trial in 2008, which resulted in a 

hung jury. Following a second trial, a jury convicted Appellant on May 11, 

2009, of third-degree murder and possessing instruments of crime. This Court 

affirmed Appellant’s judgment of sentence on October 8, 2010 (see 

Commonwealth v. Graham, 15 A.3d 520 (Pa.Super. 2010) (unpublished 

memorandum)), and our Supreme Court denied allowance of appeal on March 

8, 2011. 

Between 2011 and 2018, Appellant unsuccessfully litigated two PCRA 

petitions. On July 2, 2019, Appellant filed the current pro se third PCRA 

petition. In his petition, Appellant alleged that on June 27, 2019, he became 

aware of a newspaper article in the Philadelphia Daily News, dated May 7, 

2019, titled: “Tour De Fourth!” The article discusses how a defendant in a 

separate, unrelated case was acquitted after a fourth trial. The article details 

how that defendant’s case was helped by “the mounting credibility problems 
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of a former Philadelphia homicide detective, James Pitts, who worked the case 

and has since been accused in lawsuits, court filings, and Internal Affairs 

reports of forcibly coercing statements from suspects and witnesses.” 

(Philadelphia Daily News Article, attached as Exhibit A to Appellant’s PCRA 

petition). The article further explains how that defendant presented evidence 

that Detective Pitts had coerced incriminating statements from two of the 

Commonwealth’s witnesses.

Appellant asserted in his PCRA petition that the newspaper article 

substantiated testimony from Commonwealth witness Markel White, who 

recanted his statement to police at Appellant’s trial, and testified that 

Detective Pitts had coerced his statement incriminating Appellant.2 On July 

23, 2019, the court issued notice of its intent to dismiss the petition without 

a hearing, per Pa.R.Crim.P. 907. Appellant filed a pro se response on August 

1, 2019, arguing the newspaper article constituted a “new fact” for purposes 

of the PCRA time-bar exception at 42 Pa.C.S.A. § 9545(b)(1)(ii). Appellant 

claimed he filed his PCRA petition within 30 days of his discovery of the Daily 

News article. 

The court denied PCRA relief on September 5, 2019. Appellant timely 

filed a pro se notice of appeal on September 25, 2019, along with a voluntary 

concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b). 

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2 Appellant cited to the notes of testimony from his 2008 trial, which resulted 

in a hung jury, rather than his 2009 trial, which resulted in his convictions.
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Appellant raises the following issue for our review:

DID THE [PCRA] COURT ERR[] WHEN IT DISMISSED 

APPELLANT’S PCRA PETITION AS UNTIMELY[?] APPELLANT 

ATTEMPTED TO INVOKE THE TIMELINESS EXCEPTION 

UNDER SUBSECTION 42 PA.C.S.A. § 9545(B)(1)(II), WHICH 

REQUIRES APPELLANT TO PLEAD AND PROVE “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?”

(Appellant’s Brief at 4).

Appellant argues Detective Pitts used illegal interview tactics in his case 

to force false statements from witnesses. Appellant asserts he discovered the 

Daily News article discussing Detective Pitts in the law library on June 27, 

2019. Appellant maintains he timely filed his PCRA petition after discovery of 

the article. Appellant emphasizes that Detective Pitts was the lead detective 

in Appellant’s case and witnesses at Appellant’s trial testified that Detective 

Pitts used forcible tactics to coerce their statements implicating Appellant. 

Appellant concludes the newspaper article describing Detective Pitts’ improper 

conduct constitutes “new facts” for purposes of the PCRA time-bar, and this 

Court should vacate the order denying PCRA relief and remand for an 

evidentiary hearing or new trial. We disagree. 

As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional 

requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), 

cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). 

Pennsylvania law makes clear that no court has jurisdiction to hear an 

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 
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A.2d 1157 (2003). The PCRA requires a petition, including a second or 

subsequent petition, to be filed within one year of the date the underlying 

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 

is 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 review.” 42 Pa.C.S.A. § 

9545(b)(3). 

Generally, to obtain merits review of a PCRA petition filed more than 

one year after the judgment of sentence became final, the petitioner must 

allege and prove at least one of the three timeliness exceptions: 

(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 file his 

petition within one year of the date the claim could have first been presented.

See 42 Pa.C.S.A. § 9545(b)(2) (as amended, effective December 24, 2018; 

providing one year statutory window in which to invoke time-bar exception for 
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claims arising on or after December 24, 2017).

To meet the “newly discovered facts” timeliness exception set forth in 

Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the 

facts upon which he based his petition and could not have learned those facts 

earlier by the exercise of due diligence.” Commonwealth v. Brown, 111 

A.3d 171, 176 (Pa.Super. 2015). “The focus of the exception is on [the] newly 

discovered facts, not on a newly discovered or newly willing source for 

previously known facts.” Commonwealth v. Burton, 638 Pa. 687, 704, 158 

A.3d 618, 629 (2017) (internal citation and quotation marks omitted). In 

other words, the fact that a petitioner has “discovered yet another conduit” 

for the same claim previously presented “does not transform his latest source 

into evidence falling within the ambit of section 9545(b)(1)(ii).” 

Commonwealth v. Maxwell, 2020 PA Super 108, 2020 WL 2079168, at *5 

(Pa.Super. filed April 30, 2020) (en banc) (quoting Commonwealth v. 

Marshall, 596 Pa. 587, 597, 947 A.2d 714, 720 (2008)). As well, a claim 

based on inadmissible hearsay does not satisfy the “newly-discovered facts” 

exception.3 Commonwealth v. Abu-Jamal, 596 Pa. 219, 230, 941 A.2d 

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3 The substantive claim of after-discovered evidence and the newly-discovered 

facts exception to the PCRA timeliness requirements are often conflated and 

referred to as the same theory of relief. These concepts, however, are not 

interchangeable and require different proofs. Under the newly-discovered 

facts exception to an untimely PCRA petition, a petitioner must establish “the 

facts upon which the claim was predicated were unknown and...could not 

have been ascertained by the exercise of due diligence. If the petitioner 
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1263, 1269 (2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 

201 (2008). 

Instantly, Appellant’s judgment of sentence became final on or around 

June 6, 2011, upon expiration of the time to file a petition for writ of certiorari

in the U.S. Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13 

(allowing 90 days to file petition for writ of certiorari with United States 

Supreme Court). Appellant filed the current PCRA petition on July 2, 2019, 

which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). 

Appellant now attempts to invoke the “newly-discovered facts” 

exception to the PCRA time-bar, relying on the Daily News article discussing 

Detective Pitts’ improper interview tactics. Nevertheless, Appellant cannot 

demonstrate any new facts that were unknown and could not have been 

ascertained through the exercise of due diligence. 

Significantly, Appellant admits he was aware of Detective Pitts’ allegedly 

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alleges and proves these two components, then the PCRA court has 

jurisdiction over the claim under this subsection.” Commonwealth v. 

Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1272 (2007) (emphasis in 

original). Only if a petitioner meets the statutory jurisdictional requirements 

by satisfying this exception to the PCRA time-bar, can he then argue for relief 

on a substantive after-discovered-evidence claim, which requires the

petitioner to demonstrate: (1) the evidence has been discovered after trial 

and it could not have been obtained at or prior to trial through reasonable 

diligence; (2) the evidence is not cumulative; (3) it is not being used solely to 

impeach credibility; and (4) it would likely compel a different verdict. See, 

e.g., Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586 (2007); 

Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806 (2004). 
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improper interview methods at the time of his 2008 and 2009 trials. Appellant 

attached as exhibits to his PCRA petition notes of testimony from his 2008 

trial (which resulted in the hung jury) in which Markel White recanted his prior 

statement implicating Appellant and described Detective Pitts’ coercive ways. 

Indeed, Appellant raised the issue of Detective Pitts’ allegedly forcible tactics 

on direct appeal in the context of a challenge to the weight of the evidence.4 

See Graham, supra. Thus, Detective Pitts’ allegedly coercive tactics were 

not “previously unknown” to Appellant, as required to satisfy the time-bar 

exception. See Brown, supra. 

Further, Appellant’s claim is based on inadmissible hearsay that cannot 

satisfy the “newly-discovered facts” exception.5 See Commonwealth v. 

Castro, 625 Pa. 582, 93 A.3d 818 (2014) (explaining newspaper articles 

contain allegations which suggest evidence might exist, but are no more than 

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4 This Court deemed the issue waived for failure to preserve it in a timely-filed 

post-sentence motion. See id. 

5 Even if we could reach the substantive after-discovered-evidence claim, we 

would agree with the PCRA court that Appellant’s claim would not merit relief. 

(See PCRA Court Opinion at 6-7) (explaining that jury heard evidence of 

Detective Pitts’ alleged improper behavior at 2009 trial and chose to disregard 

it; Appellant presented no additional affidavits or evidence concerning White’s 

testimony and presents only Daily News article with respect to Detective Pitts; 

newspaper article does not describe Appellant’s case, but concerns 

exoneration of unrelated individual; in Appellant’s case, two additional 

witnesses besides Markel White identified Appellant as shooter—William 

Duncan and Appellant’s brother, Kareem Graham; Detective Pitts did not 

interview Duncan or Kareem; Appellant’s presentation of newspaper article 

concerning Detective Pitts, without more, is insufficient to overturn jury’s 

verdict). See also Washington, supra; D’Amato, supra. 
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allegations in any other out-of-court situation; thus, newspaper articles 

generally constitute inadmissible hearsay); Abu-Jamal, supra. Accordingly, 

we affirm the order dismissing Appellant’s current PCRA petition as untimely. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2020