J-S52038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID LEE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2416 EDA 2018

Appeal from the PCRA Order Entered July 11, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0431051-1988

BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 16, 2019

David Lee appeals from the order dismissing his petition filed under the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, for 

untimeliness. We affirm.

In 1987, Lee, with Carl Gooding, shot and killed Tim Lynch. Following a 

bench trial, the court convicted Lee of first-degree murder, criminal 

conspiracy, and possessing an instrument of crime, and sentenced him to 

serve a mandatory term of life imprisonment for first-degree murder.

1 This 

Court affirmed Lee’s judgment of sentence on January 30, 1991. See 

Commonwealth v. Lee, 585 A.2d 1084 (Pa.Super. 1991). Lee did not seek 

review in the Supreme Court of Pennsylvania.

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1 The trial court imposed lesser, consecutive sentences for the other 

convictions.
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Lee filed the instant PCRA petition, his first, on May 31, 2011. Lee 

asserted he was entitled to relief based on the United States Supreme Court’s 

decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The 

court appointed counsel, who filed an amended petition.2 The PCRA court 

issued a Rule 907 notice of its intent to dismiss the petition without a hearing, 

and thereafter dismissed the petition as untimely.

Lee appealed, and raises the following:

I. Did the Honorable PCRA Court err in denying relief, without 

holding an evidentiary hearing, even though the 

Defendant/Appellant pled that he was eligible for PCRA relief, and 

is entitled to a new trial, as the result of a change in the law which 

impacted his constitutional right of confrontation and which made 

his trial constitutionally infirm as trial counsel did not assert this 

issue and did not effectively challenge same?

Lee’s Br. at 3.

Our standard of review of an order denying relief under the PCRA “is 

limited ‘to whether the PCRA court’s determination is supported by evidence 

of record and whether it is free of legal error.’” Commonwealth v. Hart, 199 

A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew, 189 A.3d 

486, 488 (Pa.Super. 2018)). 

The timeliness of a PCRA petition is a jurisdictional prerequisite; if a 

petition fails to satisfy the statutory timeliness requirements, a PCRA court 

has no jurisdiction to grant relief. Commonwealth v. Rizvi, 166 A.3d 344, 

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2 The docket reflects that an attorney entered his or her appearance in 2014, 

but that the attorney was relieved in 2015. Instant counsel entered his 

appearance in 2015, and filed an amended petition in 2017.
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347 (Pa.Super. 2017). A PCRA petition must be filed within one year of the 

date the petitioner’s judgement of sentence becomes final, which is at the 

conclusion of direct review or the expiration of time for seeking such review. 

42 Pa.C.S.A. § 9545(b)(1), (3). In addition, petitioners who were convicted 

prior to January 16, 1996 had one year, until January 16, 1997, to file a first 

petition. See Commonwealth v Banks, 726 A.2d 374, 376 (Pa. 1999). As 

Lee’s judgment of sentence became final in 1991, and he did not file his 

petition until 2011, the petition is facially untimely.

A petition filed after the deadline may be deemed timely if one of three 

enumerated exceptions applies. Under the third exception, a petition is timely 

if “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)(iii). If the exception applies, 

the petitioner must prove the petition was filed within 60 days of the earliest 

date it might have been filed. Id. at § 9545(b)(2).3

Lee argues that the petition is timely because he filed it within 60 days 

of discovering the decision of Melendez-Diaz. Lee’s Br. at 8.4 Lee posits that 

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3 42 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one 

year to file a petition. The amendment applies to claims arising on or after 

December 24, 2017, and thus does not apply to Lee’s 2011 petition.

4 “In Melendez–Diaz, the Court held that lab reports admitted to establish a 

defendant’s guilt constituted testimonial statements covered by the 
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although Melendez-Diaz does not provide “clear guidance . . . as to whether 

the decision should be retroactive or not,” Lee should be provided relief if this 

Court finds that Melendez-Diaz announced a new rule of law, implicating his 

constitutional rights, that should be given retroactive effect on collateral 

review. Id.

Lee’s petition fails to meet the exception to the time-bar. First, the 

operative date for the purposes of the after-recognized constitutional right 

exception is the date of the decision, not the date of the petitioner’s discovery 

of the decision. See Commonwealth v. Brandon, 51 A.3d 231, 236 

(Pa.Super. 2012); Commonwealth v. Leggett, 16 A.3d 1144, 1146 

(Pa.Super. 2011). Lee’s 2011 petition was not filed within 60 days of the June 

25, 2009 Melendez-Diaz decision, and therefore that decision cannot provide 

the basis for the timeliness exception.

Furthermore, this exception only applies if the Supreme Court of 

Pennsylvania or the United States Supreme Court has already determined

that the newly-recognized constitutional right is to be given retroactive effect 

on collateral review. See Leggett, 16 A.3d at 1147 (citing Commonwealth 

v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007)). Here, counsel concedes 

that the Melendez-Diaz decision does not announce it is applicable

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Confrontation Clause of the United States Constitution and that such reports 

were inadmissible unless the defendant had the opportunity to cross-examine 

the lab analyst at trial.” Commonwealth v. Barton-Martin, 5 A.3d 363, 365 

(Pa.Super. 2010).
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retroactively on collateral review; nor does counsel argue that the 

Pennsylvania Supreme Court has tendered such a holding.

Finally, we have established that the United States Supreme Court did 

not recognize a new constitutional right in Melendez-Diaz, and again, neither 

that court nor the Pennsylvania Supreme Court has held that the MelendezDiaz decision applies retroactively to cases on collateral review. See 

Brandon, 51 A.3d at 236; Leggett, 16 A.3d at 1147-48.

As Lee has failed to prove he is entitled to an exception to the PCRA’s 

timeliness requirements, we affirm the order dismissing his petition as 

untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/19