J-S38031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MAHEIM STARKS

Appellant No. 1104 EDA 2015

Appeal from the PCRA Order March 30, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1205752-2005

BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED MAY 06, 2016

Maheim Starks appeals from an order dismissing his second petition 

for relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., as 

untimely. We affirm.

The factual and procedural history of this case is as follows. A jury 

found Starks guilty of first degree murder1and related offenses for 

firebombing a house, killing three children inside and seriously injuring two 

others. This Court accurately summarized the evidence in its memorandum 

decision on direct appeal:

On the evening of May 13, 2005, [Starks] and co-defendant 

Zakeeyah Harper (‘Harper’) were sitting in a bar commiserating 

over their mutual dislike of the adult victim, Jameeka Clark. 

Clark was the third member of a love triangle consisting of 

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1 18 Pa.C.S. § 2502.
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Harper and one Thomas ‘TJ’ Dale, the father of Harper’s two 

children. [Starks] purportedly disliked Clark because she recently 

had rebuffed his advances.

[Starks] and Harper agreed to firebomb the victims’ home later 

that evening, knowing that Clark lived there with her six 

children. Shortly after midnight, on May 14, 2005, Harper and 

her cousin, Tysheea Harper (‘Tysheea’), who agreed to act as 

the lookout, met [Starks] at a gas station. There, Harper 

purchased two bottles of juice and $5.00 worth of gasoline. The 

trio emptied the bottles and [Starks] filled them with the gas. As 

the three individuals walked toward the victims’ home, one of 

them found a t-shirt, ripped it into pieces, and placed the pieces 

into the bottles, creating a makeshift bomb. As Tysheea 

watched, [Starks] and Harper lit their ‘bombs’ and threw them at 

the house. [Starks]’s bottle crashed through a window, and 

Harper’s bottle landed near the house. A fire erupted, killing 

three children and seriously injuring two others. A sixth child 

was thrown from a window to safety. Clark also suffered burns 

and smoke inhalation.

Commonwealth v. Starks, 2125 EDA 2007, at 1-2 (Pa.Super., 1/8/09). 

On May 23, 2007, a jury found Starks guilty of three counts of first 

degree murder and multiple other felonies. On July 25, 2007, the court 

sentenced defendant to three consecutive life sentences for murder with 

concurrent terms of imprisonment on the remaining offenses. On January 8, 

2009, this Court affirmed Starks’ judgment of sentence on direct appeal. 

Starks did not file a petition for allowance of appeal. 

On July 10, 2009, Starks filed his first petition for PCRA relief. The 

court appointed counsel, who filed an amended petition. On August 3, 2010,

the PCRA court dismissed defendant’s petition. On August 9, 2010, the PCRA 

court vacated its order dismissing defendant’s petition and granted leave to 

file an amended petition raising additional claims. On November 5, 2010, 
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counsel filed a letter explaining that there were no meritorious issues to 

raise and requested leave to withdraw pursuant to Commonwealth v. 

Finley, 550 A.2d 213 (Pa.Super.1998) (en banc). On January 28, 2011, the 

PCRA court granted counsel leave to withdraw and once again dismissed 

Starks’ petition. On March 6, 2012, this Court affirmed the order of 

dismissal. 

On August 7, 2013, Starks filed a second PCRA petition, the petition 

presently under review. Starks requested a new trial based on alleged 

newly-discovered evidence: a letter dated June 27, 2013 to Starks from 

Tysheea Harper, the “lookout” during the bombing and one of the 

Commonwealth’s witnesses during trial. The letter stated in full:

Listen Mar, I don’t know how to explain this, you getting all that 

time for something you didn’t do, got me feeling guilty[.] Mar, 

you got to understand, at the time I was pregnant, and the way 

those cops were talking, they made it seem like I was the one 

who did it, so I wasn’t thinking straight at the time[.] I tried to 

tell the cops the truth, but they didn’t want to hear that, they 

wanted to hear that you and Za[keeyah] did the shit[.] Now me 

being pregnant and stressed out, I just started saying whatever 

they wanted to hear, because I wanted to go home. Now 

Za[keeyah] did what she did because she wanted to do it. Now I 

don’t know how you feeling, because of all the years that 

passed, but I’m willing to help you out and do whatever I got to 

do.

PCRA Petition, exhibit “A” (letter dated June 27, 2013).

On December 23, 2014, the PCRA court filed a notice of intent to 

dismiss Starks’ petition without an evidentiary hearing pursuant to 
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Pa.R.Crim.P. 907. On March 30, 2015, the PCRA court dismissed Starks’ 

petition as untimely. On April 8, 2015, Starks appealed to this Court.

On April 28, 2015, after filing his notice of appeal, Starks filed an 

amended PCRA petition through counsel, raising claims of ineffective 

assistance of trial counsel. On July 31, 2015, counsel filed a letter 

requesting permission to withdraw the present appeal on the ground that 

Starks’ amended PCRA petition “has not been ruled upon as of yet.” On 

August 24, 2015, this Court denied counsel’s request without prejudice for 

Starks to raise the issue in his brief. 

Counsel has filed a brief on behalf of Starks in this appeal. The brief 

does not ask that this Court permit Starks to withdraw this appeal. 

Accordingly, we deem the request in counsel’s July 31, 2015 letter moot.

Starks raises a single issue in this appeal: “Did the [PCRA] court err in 

denying an evidentiary hearing and then denying PCRA relief because the 

court assumed [that] Starks could lawfully have convinced Tysheea Harper 

to recant earlier than she did recant?” Stated differently, Starks contends 

that the court erred in dismissing his PCRA petition as untimely, because (1) 

Tysheea Harper’s letter satisfied the “newly discovered evidence” exception 

to the PCRA’s statute of limitations, and (2) Starks filed his PCRA petition 

within sixty days after receiving Harper’s letter.

No court has jurisdiction to hear an untimely PCRA petition. 

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing 
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Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.2003)). The PCRA 

provides that a petition, “including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final.” 42 Pa.C.S. § 

9545(b)(1); accord Monaco, 996 A.2d at 1079; Commonwealth v. Bretz, 

830 A.2d 1273, 1275 (Pa.Super.2003). A judgment 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 the review.” 42 Pa.C.S. § 9545(b)(3).

There are three statutory exceptions to the PCRA’s time bar under 

which a court may excuse the late filing of a PCRA petition. 42 Pa.C.S. § 

9545(b)(1); Monaco, 996 A.2d at 1079. The late filing of a petition will be 

excused if a petitioner alleges and proves any of the following:

(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. § 9545(b)(1)(i)-(iii). A petition which invokes any or all of these 

exceptions must “be filed within 60 days of the date the claim could have 

been presented.” 42 Pa.C.S. § 9545(b)(2). This is a separate requirement 
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over and above the requirements within section 9545 (b)(1)(i)-(iii). See 

Commonwealth v. Green, 14 A.3d 114, 118 (Pa.Super.2012) (defendant 

failed to qualify for government interference exception within section 

9545(b)(1)(i), based on allegation that Commonwealth failed to reveal 

source of magazine article which supported defendant's Batson claim, 

where he filed PCRA petition more than 60 days after source of magazine 

article was revealed).

Here, the Superior Court affirmed Starks’ judgment of sentence on 

January 8, 2009. Starks did not file a petition for allowance of appeal. 

Therefore, his judgment of sentence became final for purposes of the PCRA 

on Monday, February 9, 2009, when the period for seeking review in the 

Pennsylvania Supreme Court expired. The statute of limitations for filing a 

PCRA petition expired on February 9, 2010. Thus, his present PCRA petition, 

filed in August 2013, is untimely on its face. 

Starks fails to satisfy any of the three exceptions to the statute of 

limitations. Starks argues that Tysheea Harper’s June 27, 2013 letter 

constitutes newly acquired evidence that entitles him to relief. We disagree. 

To overcome the PCRA’s statute of limitations on the basis of newly acquired 

evidence, the petitioner must prove that the evidence was unknown to him 

and could not have been ascertained by the exercise of due diligence. 42 

Pa.C.S. § 9545(b)(1)(ii)). Due diligence 

demands that the petitioner take reasonable steps to 

protect his own interests. A petitioner must explain why 
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he could not have learned the new fact(s) earlier with the 

exercise of due diligence. This rule is strictly enforced. 

Additionally, the focus of this exception ‘is on the newly 

discovered facts, not on a newly discovered or newly 

willing source for previously known facts.’

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.2015). 

Assuming that Harper’s letter provided new facts, Starks totally fails to 

explain why he was unable to obtain these facts until June 2013, over three 

years after expiration of the statute of limitations. Thus, he fails to 

demonstrate that he “could not have learned the new fact(s) earlier with the 

exercise of due diligence.” Brown, 111 A.3d at 176.

We do not accept Starks’ contention that he is entitled to PCRA relief 

simply because he filed his petition within sixty days after receiving Harper’s 

letter. As noted above, the sixty day filing requirement is separate and 

distinct from the requirement to satisfy an exception within section 

9545(b)(1)(i)-(iii). See Green, supra. Thus, to obtain relief on the basis of 

newly acquired evidence, the petitioner must file his PCRA petition within 

sixty days after learning new facts and demonstrate that he exercised due 

diligence in learning these facts. Starks fulfilled the sixty day filing requisite, 

but he failed the due diligence requisite.2

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2 We also note that Starks cannot obtain relief under the government 

interference exception (section 9545(b)(1)(i)) or the retroactive 

constitutional right exception (section 9545(b)(1)(iii)), because he does not 

plead or prove either of these exceptions.
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For these reasons, the PCRA properly dismissed Starks’ PCRA petition 

as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/6/2016