J-S60022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SAMUEL D. HARPER

Appellant No. 3634 EDA 2015

Appeal from the PCRA Order October 30, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1002831-2003

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

MEMORANDUM BY OTT, J.: FILED NOVEMBER 17, 2016

Samuel D. Harper appeals, pro se, from the order entered October 30, 

2015, in the Philadelphia County Court of Common Pleas dismissing, as 

untimely filed, his second petition for collateral relief filed pursuant to the 

Post Conviction Relief Act (“PCRA”).1 Harper seeks relief from the judgment 

of sentence of an aggregate term of life imprisonment imposed on February 

16, 2005, after a jury found him guilty of first-degree murder2and related 

offenses for the shooting death of his wife. On appeal, Harper contends (1) 

the PCRA court erred in dismissing his claim of after-discovered evidence 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 42 Pa.C.S. §§ 9541-9546.

2 See 18 Pa.C.S. § 2502(a)(1). 
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without first conducting an evidentiary hearing; (2) his mandatory sentence 

of life imprisonment is unconstitutional pursuant to Alleyne v. United 

States, 133 S.Ct. 2151 (2013) and its progeny; and (3) trial counsel 

rendered ineffective assistance by advising him to waive his appellate rights, 

post-trial, in exchange for the Commonwealth’s decision not to seek the 

death penalty. For the reasons below, we affirm the order denying PCRA 

relief.3 

The relevant facts and procedural history underlying Harper’s appeal 

are summarized by the PCRA court as follows:

On February 15, 2005, following a jury trial, [Harper] was 

convicted of first-degree murder, possessing an instrument of 

crime and carrying a firearm without a license.2 On February 16, 

2005, [Harper] entered into an agreement with the 

Commonwealth whereby the Commonwealth would not seek the 

death penalty and [Harper] would be sentenced to life 

imprisonment in exchange for his waiver of his direct appeal, 

post-conviction, and habeas corpus rights. After the trial court 

conducted a waiver colloquy, [Harper] was sentenced to life 

imprisonment for the murder conviction and lesser concurrent 

sentences for the remaining charges. In a letter to the trial 

judge dated February 21, 2005, [Harper] sought to withdraw his 

agreement. [He] thereafter filed an untimely notice of appeal 

(dated April 3, 2005) in December 2005.

_________

2 See 18 Pa.C.S.A. §§ 2502(a)(1), 907, 6106.

_________

____________________________________________

3 Although we conclude, infra, that one of Harper’s issues overcomes the 

PCRA’s time-bar, “we may affirm the PCRA court’s order on any basis.” 

Commonwealth v. Reed, 107 A.3d 137, 144 (Pa. Super. 2014).
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On June 1, 2006, [Harper] filed his first PCRA petition. 

Counsel was appointed. On May 24, 2007, counsel filed a 

Turner/Finley3 no-merit letter. The PCRA court dismissed his 

petition as untimely on July 10, 2007, and permitted counsel to 

withdraw. The Superior Court affirmed the dismissal on March 

27, 2009.4 [Harper] did not file a petition for allowance of 

appeal with the Pennsylvania Supreme Court.

__________

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) 

(en banc). 

4 Commonwealth v. Harper, 972 A.2d 553 (Pa. Super. 

2009) (unpublished memorandum).

__________

On August 6, 2012, [Harper] filed the instant pro se PCRA 

petition, his second. Pursuant to Pennsylvania Rule of Criminal 

Procedure 907, [Harper] was served notice of the lower court’s 

intention to dismiss his petition on September 14, 2015. On 

October 30, 2015, the PCRA court dismissed his petition as 

untimely. On December 1, 2015, the instant notice of appeal 

was filed to the Superior Court.

PCRA Court Opinion, 1/5/2016, at 1-2.

Preliminarily, we must address the timeliness of this appeal since the 

PCRA court suggests the notice of appeal may have been untimely filed. 

See id. at 2 n.5. Our review of the record reveals the October 30, 2015, 

order dismissing Harper’s petition was not mailed to the parties until 

November 2, 2015. See Docket Entry, 10/30/2015. Therefore, Harper had 

until December 2, 2015, to file a timely notice of appeal. See Pa.R.A.P. 
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108(a)(1); 903(a). Accordingly, his notice of appeal, which is time-stamped 

December 1, 2015, was timely filed.4

Before we consider the issues Harper raises on appeal, we first 

emphasize that after he was convicted, Harper entered into an agreement 

with the Commonwealth whereby he waived all his appellate rights in order 

to avoid the death penalty. See Written Agreement Colloquy, 2/16/2005. 

The validity of Harper’s waiver was upheld by this Court on appeal from the 

denial of his first PCRA petition. See Harper, supra, 972 A.2d 553 

(unpublished memorandum at 4-5). See also Commonwealth v. Barnes, 

687 A.2d 1163 (Pa. Super. 1996) (finding defendant’s agreement to 

relinquish post-trial review rights was entered into knowingly, voluntarily 

and intelligently; thus, agreement was valid), appeal denied, 693 A.2d 585 

(Pa. 1997). Furthermore, none of the claims raised in his present PCRA 

petition undermine the validity of his agreement. Accordingly, on this basis 

alone, we could find Harper’s PCRA petition fails. 

Nevertheless, we will consider the petition before us, which the PCRA 

court found to be untimely filed.5 Indeed, it is axiomatic that: 

____________________________________________

4

The PCRA court did not direct Harper to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

5 Our review of an order dismissing a PCRA petition is well-established: we 

must determine whether the PCRA court’s findings of fact are supported by 

the record, and whether its legal conclusions are free from error. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference 

(Footnote Continued Next Page)
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The PCRA’s timeliness requirements are jurisdictional; therefore, 

a court may not address the merits of the issues raised if the 

petition was not timely filed. The timeliness requirements apply 

to all PCRA petitions, regardless of the nature of the individual 

claims raised therein. 

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citations omitted).

A PCRA petition must be filed within one year of the date the judgment 

of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Harper’s 

judgment of sentence was final on March 18, 2005, 30 days after sentence 

was imposed, and Harper failed to file a direct appeal. See id. at § 

9545(b)(3). Therefore, he had until March 18, 2006, to file a timely petition, 

and the one before us, filed six years later, was manifestly untimely. See 

Harper, supra, 972 A.2d 553 (unpublished memorandum at 5) (finding 

Harper’s first PCRA petition was untimely). 

However, the PCRA provides that an otherwise untimely petition is not 

time-barred if a petitioner pleads and proves the applicability of one of three 

time-for-filing exceptions: (1) interference by government officials, (2) 

newly discovered evidence, or (3) a newly-recognized constitutional right 

which had been applied retroactively. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii). 

Any petition invoking one of these exceptions must be filed “within 60 days 

of the date the claim could have been presented.” Id. at § 9545(b)(2). 

(Footnote Continued) _______________________

is granted to the findings of the PCRA court, and these findings will not be 

disturbed unless they have no support in the certified record.” 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation 

omitted).
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We note that Harper does not directly address the timeliness of his 

petition in his brief. However, in his PCRA petition, he attempted to invoke 

the newly discovered facts exception, set forth in subsection (b)(1)(ii), by 

attaching to his petition a newspaper article that stated the investigating 

homicide detective assigned to his case, Detective Kenneth Rossiter, was 

dismissed from his position in the Philadelphia Police Department for 

submitting fraudulent overtime hours. See Motion for Post Conviction Relief, 

8/6/2012, at 3. Harper maintained this disciplinary action supported his 

claim that Detective Rossiter tampered with witnesses and withheld 

exculpatory evidence in investigating the murder of his wife. See id. 

Furthermore, he asserted the article was published on June 19, 2012, less 

than 60 days before he filed the instant PCRA petition on August 6, 2012. 

See Motion for Post Conviction Relief, 8/6/2012, attachment. See also 

Amended Petition Under the Post Conviction Collateral Relief Act, 4/9/2013, 

at 10-11. In his brief, Harper contends the PCRA court erred in failing to 

conduct an evidentiary hearing so that he could “establish the relevance of 

Detective Rossiter’s testimony.”6 Harper’s Brief at 8.

____________________________________________

6 Because of our ultimate disposition, we have considered Harper’s pro se

filings very liberally.
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First, we find the newspaper article satisfies the newly discovered 

evidence exception to the time-bar. This Court has explained there are two 

components to the exception:

Namely, the petitioner must establish that: 1) the facts upon 

which the claim was predicated were unknown and 2) could not 

have been ascertained by the exercise of due diligence. If the 

petitioner alleges and proves these two components, then the 

PCRA court has jurisdiction over the claim under this subsection.

Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016) 

(quotation omitted). Here, Harper asserts, albeit unartfully, the fact that 

Detective Rossiter was being investigated for fraud was unknown to him, 

and he could not have discovered that fact by the exercise of due diligence. 

See Objection to the Pa.R.Crim.P. 907 Notice of Dismissal, 10/1/2015, at ¶ 

9 (noting the Commonwealth did not inform Harper during trial that the 

detective was being investigated or that his credibility was “questionable”). 

Nonetheless, “[i]t is possible for a petitioner to plead and prove the 

newly-discovered fact exception, which gives the PCRA court jurisdiction and 

permits it to consider the petition on the merits, and then ultimately fail on 

the merits of an after-discovered evidence claim.” Brown, supra, 141 A.3d 

at 500. That is where Harper’s argument ultimately misses the mark. 

In order to obtain collateral relief based on newly-discovered evidence, 

the petitioner must establish:

(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. 
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Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004). Here, the 

PCRA court found that Detective Rossiter’s dismissal would not have 

changed the outcome of the trial. The court explained:

Even if [Harper] established jurisdiction, his “newly-discovered 

evidence” claim is meritless. Detective Rossiter’s dismissal was 

subsequently determined to have been improper and he was 

reinstated in April 2013. See http://articles.philly.com/2013-04-

06/news/38309790_1_drug-kingpin-alleged-overtime-abusekaboni-savage. Specifically, the arbitrator determined that there 

was insufficient evidence of wrongdoing. Id. [Harper] failed to 

demonstrate that the fact that Detective Rossiter was 

unjustifiably dismissed would have altered the outcome of his 

trial.

PCRA Court Opinion, 1/5/2016, at 5 n.7. We agree. Moreover, we also note 

the detective’s dismissal for overtime fraud would have been used solely to 

impeach his credibility. Accordingly, while these allegations overcome the 

PCRA’s time-bar, they do not support Harper’s claim for relief. 

Next, Harper argues his life sentence, imposed pursuant to 42 Pa.C.S. 

§ 9711, is unconstitutional under the United States Supreme Court’s decision 

in Alleyne, supra.

7

 However, the Alleyne decision does not satisfy any of 

the exceptions to the time-bar. Indeed, this Court has “expressly rejected 

____________________________________________

7

In Alleyne, the United States Supreme Court held “[a]ny fact that, by law, 

increases the penalty for a crime is an ‘element’ that must be submitted to 

the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct. 

at 2155. In interpreting that decision, the courts of this Commonwealth 

have determined that most of our mandatory minimum sentencing statutes 

are unconstitutional. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. 

Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). 
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the notion that judicial decisions can be considered newly-discovered facts 

which would invoke the protections afforded by section 9545(b)(1)(ii).” 

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), appeal 

denied, 81 A.3d 75 (Pa. 2013). Moreover, in Commonwealth v. 

Washington, 142 A.3d 810 (Pa. 2016), the Pennsylvania Supreme Court 

definitively held “Alleyne does not apply retroactively to cases pending on 

collateral review,” so that it also fails to satisfy the “new constitutional right” 

exception. See 42 Pa.C.S. § 9545(b)(1)(iii) (providing exception to oneyear filing requirement when petitioner proves “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.”) 

(emphasis supplied). Because he cannot overcome the PCRA’s time-bar with 

respect to this issue, Harper is, once again, entitled to no relief.8

____________________________________________

8 We note that in various filings, Harper attempted to overcome the time-bar 

by citing to the United States Supreme Court’s decisions in Miller v. 

Alabama, 132 S.Ct. 2455 (U.S. 2012) (mandatory life without parole for 

juvenile offenders violates Eighth Amendment), and Martinez v. Ryan, 132 

S.Ct. 1302 (U.S. 2012) (federal habeas court may excuse procedural default 

of trial counsel ineffectiveness claim where collateral counsel was 

ineffective). See Motion for Post Conviction Relief, 8/6/2012; Amended 

Petition Under the Post Conviction Collateral Relief Act, 4/9/2013; Objection 

to the Pa.R.Crim.P. 907 Notice of Dismissal, 10/1/2015. However, Harper 

does not repeat these claims in his brief on appeal, and accordingly, they are 

waived. 

Moreover, neither decision provides him with a basis for relief. With 

regard to Miller, although the United States Supreme Court held in 

(Footnote Continued Next Page)
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In his third, and final, claim, Harper asserts the ineffective assistance 

of trial counsel. However, since we have concluded Harper’s petition was 

untimely filed, and this claim does not implicate any of the exceptions to the 

time-bar, Harper’s third argument fails. See Commonwealth v. 

Robinson, 139 A.3d 178, 186 (Pa. 2016) (“[I]t is well-settled that couching 

a petitioner's claims in terms of ineffectiveness will not save an otherwise 

untimely filed petition from the application of the time restrictions of the 

PCRA.”).

Order affirmed. 

(Footnote Continued) _______________________

Montgomery v. Louisiana, 136 S.Ct. 718 (U.S. 2016), that it applies 

retroactively, the decision has no relevance here since Harper was over the 

age of 18 at the time he committed murder. See Commonwealth v. 

Furgess, ___ A.3d ___, ___, 2016 WL 5416640, *2 (Pa. Super. 2016) 

(“The Miller decision applies to only those defendants who were ‘under the 

age of 18 at the time of their crimes.’”) (quotation omitted). With respect to 

Martinez, that decision focused on federal habeas claims, and our Supreme 

Court has explained that any potential change in Pennsylvania jurisprudence 

to “account for the concerns of Martinez is one of policy, and it should await 

either the action of the General Assembly...or a case where the issue is 

properly joined.” Commonwealth v. Holmes, 79 A.3d 562, 584 (Pa. 

2013).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016