J-S71029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JAMES SAMPLE

Appellant No. 1745 EDA 2015

Appeal from the PCRA Order August 30, 2012

in the Court of Common Pleas of Philadelphia County

Criminal Division, at No(s): CP-51-CR-0517451-1991

BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 16, 2016

James Sample (“Appellant”) filed this pro se appeal from the order 

dismissing as untimely his serial petition filed pursuant to the Post 

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The pertinent facts and procedural history are as follows. In 1992, a 

jury convicted Appellant of first-degree murder and related charges. The trial 

court immediately sentenced him to life in prison without the possibility of 

parole for the murder conviction, as well as concurrent terms for the 

remaining convictions. Following the denial of post-sentence motions, 

Appellant filed a timely appeal to this Court. In an unpublished 

memorandum decision, we affirmed Appellant’s judgment of sentence. See 

____________________________________________



Former Justice specially assigned to the Superior Court.
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Commonwealth v. Sample, 3655 Philadelphia 1992 (Pa. Super., filed June 

6, 1994). On April 11, 1995, our Supreme Court denied Appellant’s allocatur

petition. See Commonwealth v. Sample, 658 A.2d 794 (Pa. 1995) 

(Table). Appellant did not file a petition for a writ of certiorari to the United 

States Supreme Court.

Appellant filed a timely pro se PCRA petition. The PCRA court 

appointed counsel who later filed a motion to withdraw and a “no-merit” 

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), 

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

After providing notice of its intent to dismiss without a hearing, the PCRA 

court entered an order on January, 9, 1998, dismissing Appellant’s petition 

and permitting counsel to withdraw. Appellant filed a timely appeal. In an 

unpublished memorandum decision, we affirmed the order denying Appellant 

post-conviction relief. See Commonwealth v. Sample, 595 Philadelphia 

1998 (Pa. Super., filed September 9, 1999). On February 4, 2000, our 

Supreme Court denied Appellant’s allocatur petition. See Commonwealth 

v. Sample, 751 A.2d 189 (Pa. 2000) (Table).

On May 5, 2006, Appellant filed a second pro se PCRA petition, in 

which he asserted a newly-discovered evidence claim in the form of a 

statement from Raymond Curry. In this statement, Curry asserted that he 

had witnessed a shooting in the Abbottsford housing project in September 

1990. Although he stated that he saw the face of perpetrator, Curry did not 

identify the shooter or even claim that the shooting involved the victim. 
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Further, as established in the Commonwealth’s motion to dismiss, despite 

Curry’s statement that he could be reached at a Philadelphia residence, 2006 

prison records established that Curry was a fellow inmate in the same 

correctional institution in which Appellant as incarcerated. See Motion to 

Dismiss, 2/16/07, at 8.

The PCRA court dismissed Appellant’s second PCRA petition on 

November 26, 2007. Appellant filed a timely appeal. In an unpublished 

memorandum decision, we affirmed the denial of post-conviction relief. See 

Commonwealth v. Sample, 3213 EDA 2007 (Pa. Super., filed May 29, 

2009). In addressing Appellant’s claim of newly discovered evidence based 

on Curry’s statement, we concluded that “the PCRA court ably summarized 

the applicable law, thoroughly addressed [Appellant’s] claim . . . and 

correctly determined that it lacked merit.” Id., at 7. This Court, therefore, 

adopted the “sound reasoning of the PCRA court” as our own in denying 

relief. Id. On October 6, 2009, our Supreme Court denied Appellant’s 

allocatur petition. See Commonwealth v. Sample, 981 A.2d 219 (Pa. 

2009) (Table).

On August 3, 2010, Appellant filed the pro se PCRA petition at issue. 

Within this petition, he asserted that he had hired a private investigator who 

located and interviewed Curry on July 2, 2010. Appellant then attached to 

his petition a new statement from Curry, in which Curry claimed that he 

recognized the victim’s identity and that the shooter was not Appellant. 

After providing proper notice, the PCRA court dismissed the petition on 
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August 30, 2012. Although Appellant did not file a timely appeal, the PCRA 

court granted a subsequent PCRA petition, and reinstated Appellant’s 

appellate rights nunc pro tunc on May 12, 2015. This timely appeal follows. 

Appellant states his sole issue raised on appeal as follows:

The [PCRA] court abused [its] when it denied the PCRA 

petition filed, *on August 3, 2010, [sic] in which the 

private investigator Mr. Mark H. Shaffer’s interview 

statement of Raymond Curry, proved that the shooter who 

Curry saw shoot and kill [the victim], was not [Appellant].

The [PCRA] court was responsible for the monumental 

delay in having this PCRA petition litigated in a timely 

manner causing Appellant serious prejudice, as to 

Appellant’s actual innocence.

Appellant’s Brief at 2.1

 This Court’s standard of review regarding an order dismissing a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. See Commonwealth v. 

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not 

be disturbed unless there is no support for the findings in the certified 

record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001). Moreover, “[a] PCRA court may decline to hold a hearing if the 

petitioner's claim is patently frivolous and is without a trace of support in 

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1 The “monumental delay” to which Appellant refers involves his claim that 

he never received a copy of the PCRA court’s notice of intent to dismiss his 

third petition, and his need to twice petition our Supreme Court to direct the 

PCRA court to adjudicate the claim.
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either the record or from other evidence.” Commonwealth v. Jordan, 772 

A.2d 1011, 1104 (Pa. Super. 2001) (citation omitted).

To be eligible for post-conviction relief, a petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from an enumerated error or defect, see § 9543(a)(2), and that the 

issues he raises have not been previously litigated, see § 9543(a)(3). “An 

issue has been previously litigated if ... the issue has been raised and 

decided in a proceeding collaterally attacking the conviction or sentence.” 

Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa. 1999) (citations 

omitted). 

In addition, because this is Appellant’s third petition for post-conviction 

relief, he must meet a more stringent standard. “A second or any 

subsequent post-conviction request for relief will not be entertained unless a 

strong prime facie showing is offered to demonstrate that a miscarriage of 

justice may have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 

236 (Pa. Super. 2003) (en banc) (citations and internal quotation marks 

omitted). “A petitioner makes a prime facie showing if he demonstrates that 

either the proceedings which resulted in his conviction were so unfair that a 

miscarriage of justice occurred which no civilized society could tolerate, or 

that he was innocent of the crimes for which he was charged.” Id. (citations 

and internal quotation marks omitted).
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The timeliness of a post-conviction petition is jurisdictional. See 

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

is final, unless the petition alleges and proves an exception to the time for 

filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition 

invoking one of these statutory exceptions must “be filed within sixty days of 

the date the claims could have been presented.” Hernandez, 79 A.3d at 

651-52 (citing 42 Pa.C.S.A. § 9545(b)(2)).

Appellant’s judgment of sentence became final on July 10, 1995 when 

the applicable period for filing a writ of certiorari to the United States 

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

July 10, 1996, was the one-year cut off for a timely PCRA petition. Appellant 

filed the petition at issue in 2010; it is patently untimely unless he has 

satisfied his burden of pleading and proving that one of the enumerated 

exceptions applies. 

Within his brief, Appellant claims that he filed his 2010 PCRA petition 

within sixty days of receiving Curry’s 2010 statement. According to 

Appellant, because Curry did not identify the shooter in his prior statement, 

this later statement, which exculpates him, establishes an exception to the 

PCRA’s time bar. We disagree.
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When considering a PCRA’s petitioner’s claim that he has established 

an exception to the PCRA’s time bar under section 9545(b)(1)(ii), the 

petitioner must establish only that the facts upon which the claim are 

predicated were unknown to him, and that he could not have ascertained the 

facts earlier despite the exercise of due diligence. See Commonwealth v. 

Bennett, 930 A.2d 1264, 1272 (Pa. 2007). The determination of timeliness 

does not require a merits analysis. See Commonwealth v. Abu-Jamal, 

941 A.2d 1263, 1268 (Pa. 2008).

Appellant does not demonstrate the exercise of due diligence. 

Although he asserts he filed his latest PCRA petition within sixty days of the 

discovery of Curry’s 2010 statement, he offers no explanation as to why, 

with the exercise of due diligence, this information could not have been 

discovered earlier. This is especially true given the fact that, at the time 

Curry made his statement in 2006, he was housed in the same correctional 

institution as Appellant.2

Even if Appellant could demonstrate due diligence issue regarding the 

purported identification testimony possessed by Curry was previously 

litigated in Appellant’s 2006 petition. As explained by the PCRA court:

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2 This fact is further confirmed by the investigator’s report that when Curry 

was interviewed in 2010 he remained incarcerated, albeit in a different 

correctional facility, and that his prisoner number matched that identified by 

the Commonwealth in its 2006 motion to dismiss. Compare Motion to 

Dismiss, 2/16/07; PCRA Petition, 8/3/10, Exhibit C.
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Appellant has utilized [the reinstatement of his appellate rights] 

to merely reinstate the same claims that . . . have been 

previously decided. . . . [He] asserts the same claim of error in 

the form of “after discovered evidence.” Appellant claims that an 

affidavit by Raymond Curry, which he argues defeats the 

untimeliness requirement, would prove his innocence. [He] has 

asserted this same issue in his previous petitions, which had 

been reviewed by the Superior Court in post-conviction appeals. 

PCRA Court Opinion, 12/31/15, at 5 (unnumbered). See also 

Commonwealth v. Sample, 3213 EDA 2007, at 5-7 (Pa. Super., filed May 

29, 2009).

Our review of the record supports this conclusion. Thus, for all of the 

above reasons, the PCRA court correctly determined that Appellant was 

ineligible for post-conviction relief. We therefore affirm the PCRA court’s 

order denying Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2016