J-S47022-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

TAMIR LEE

Appellant No. 2233 EDA 2016

Appeal from the PCRA Order June 8, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003299-2011

BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.: FILED DECEMBER 01, 2017

Tamir Lee appeals, pro se, from the June 8, 2016 order entered in the 

Philadelphia County Court of Common Pleas dismissing his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. 

We affirm the PCRA court’s order and deny Lee’s motion for special relief.1

The PCRA court summarized the prior history of this matter as follows:

By way of background, [Lee] was arrested and charged with 

homicide and related offenses and on December 11, 2012, 

____________________________________________

1 Lee’s “Motion for Application for Special Relief Pursuant to 

Pa.Crim.P.Rule 123,” requests the dismissal of all charges against him because 

the Commonwealth failed to file its brief in a timely manner. While we 

recognize that the Commonwealth filed its brief more than four months late, 

see Order Granting Second App. For Ext. of Time to File App. Br., 4/23/17,

because we conclude that Lee’s PCRA petition was untimely, we deny Lee’s 

motion.
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after a jury had been selected, he entered an open guilty 

plea to the charges of third-degree murder, possessing 

instruments of crime and criminal conspiracy.2 These 

charges arose out of an incident that occurred on May 31, 

2010, in the area of the 1900 block of South 60th Street in 

Philadelphia during which one Aaron Lewis was shot and 

killed during an alleged drug war. On March 8, 2013, this 

Court imposed an aggregate term of incarceration of 25 to 

50 years upon [Lee]. [Lee] filed an untimely motion for 

reconsideration on March 19, 2013. This Court did not rule 

upon the untimely motion and [Lee] did not file an appeal.

On January 29, 2015, [Lee] filed a document captioned 

“Petition for Writ of Habeas Corpus Traditional and for 

Access to Courts.” In it he alleged that trial counsel was 

ineffective for various reasons, his plea was involuntary 

because it was entered “under duress of mandatory 

sentences,” the sentences imposed upon him are illegal in

that they violate the holding of Alleyne v. United States, 

133 S.Ct. 2151 ([]2013), he was denied a preliminary 

hearing on the charge of conspiracy and was never held for 

trial on the charge of possessing instruments of crime at the 

preliminary hearing, the law prohibits convictions for thirddegree murder and criminal conspiracy, there is newly 

discovered evidence concerning Philadelphia Police 

Detective Ronald Dove, who arrested him, his plea was 

involuntary because of mental health problems, the 

Commonwealth acted illegally by proceeding by filing bills of 

information, and he was entitled to relief pursuant to 

Pa.R.Crim.P. 600. On August 14, 2015, [Lee] filed a 

document entitled “Motion/Petition for Court to Take Judicial 

Notice,” wherein he asserted that his sentence is illegal 

under Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 

2015). He then filed on December 2, 2015, a “Motion for 

Writ of Assistance” which alleged that his sentence was 

illegal and that improper delays and ineffective assistance 

of counsel constituted “governmental interference.”

Counsel was appointed to represent [Lee] and on April 

20, 2016, counsel filed a “No Merit” letter pursuant to 

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

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

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2 18 Pa.C.S. §§ 2502(c), 907(a), and 903(c), respectively.
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1988), and a Motion to Withdraw as Counsel. Upon 

reviewing the letter and the entire record, this Court sent 

[Lee] a Pa.R.Crim.P. 907 Notice of Intent to Dismiss. [Lee]

filed a response thereto on May 11, 2016. On June 8, 2016, 

this Court issued an order dismissing [Lee]’s PCRA petition 

and permitting counsel to withdraw. Subsequent thereto, 

[Lee] filed a timely notice of appeal and a requested 

Pa.R.A.P 1925(b) statement.

Opinion, 8/16/16, at 1-2 (“1925(a) Op.”).

Lee raises the following issues on appeal:

1. Have the Pennsylvania Legislature and Judiciary, created 

a false system of Post Conviction Relief to give the U.S. 

Supreme Court the false impression that they had 

created a constitutionally sound system under 42 

[Pa.C.S.] § 9541 to § 9546 inclusive?

2. Can a first time PCRA petitioner receive fundamentally 

fair hearing and due process under the current system 

and Superior Court informed review without a hearing on 

issues in the lower court?

3. Was [Lee] denied and due process [sic] the effective 

assistance of counsel to his great injury and prejudice?

Lee’s Br. at 4 (full capitalization omitted).3

____________________________________________

3 We agree with the PCRA court’s conclusion that Lee’s “Motion for Writ 

of Habeas Corpus Traditional and for Access to Courts” was properly treated 

as a PCRA petition. See 1925(a) Op. at 3-4; 42 Pa.C.S. § 9542 (“The action 

established in this subchapter shall be the sole means of obtaining collateral 

relief and encompasses all other common law and statutory remedies for the 

same purpose that exist when this subchapter takes effect, including habeas 

corpus and coram nobis.”); Commonwealth v. Hall, 771 A.2d 1232, 1235 

(Pa. 2001) (“The plain language of the statute above demonstrates quite 

clearly that the General Assembly intended that claims that could be brought 

under the PCRA must be brought under that Act. No other statutory or 

common law remedy ‘for the same purpose’ is intended to be available; 

instead, such remedies are explicitly ‘encompassed’ within the PCRA.”) 

(emphasis omitted); Commonwealth v. Fowler, 930 A.2d 586, 592 

(Pa.Super. 2007) (“[L]egality of sentence [claims are] always subject to 
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Our standard of review from the denial of a PCRA petition “is limited to 

examining whether the PCRA court’s determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

Before we reach the merits of Lee’s petition, we must determine whether 

it was timely filed. A PCRA 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). 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).

The trial court sentenced Lee on March 8, 2013. Lee did not file a direct 

appeal. Therefore, his sentence became final on April 8, 2013, when the 

period to timely file a notice of appeal expired. See Pa.R.A.P. 903(a); see 

also 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on 

Saturday or Sunday, or on any day made a legal holiday by the laws of this 

Commonwealth or of the United States, such day shall be omitted from the 

____________________________________________

review within the PCRA, [but] claims must still first satisfy the PCRA’s time 

limits or one of the exceptions thereto.”) (quoting Commonwealth v. Beck, 

848 A.2d 987, 989 (Pa.Super. 2007)); Commonwealth v. Holmes, 79 A.3d 

562, 576 (Pa. 2013) (holding that absent certain circumstances, “claims of 

ineffective assistance of counsel are to be deferred to PCRA review”).
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computation.”). Therefore, Lee’s current petition, filed on January 29, 2015, 

is facially untimely. 

To overcome the time bar, Lee was required to plead and prove one of 

the following exceptions: (i) unconstitutional interference by government 

officials; (ii) newly discovered facts that could not have been previously 

ascertained with due diligence; or (iii) a newly recognized constitutional right 

that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). To invoke one of these exceptions, Lee must have filed his petition within 

60 days of the date the claim could have been presented. See 42 Pa.C.S. § 

9545(b)(2).

Lee’s PCRA petition failed to plead or prove any exception to the oneyear time bar. The PCRA court found:

Here, because [Lee] filed for post-conviction relief more 

than one year after April [8], 2013, the date his conviction 

became final, which was thirty days after he was sentenced, 

his request for PCRA relief was properly denied because 

none of the above exceptions to the one-year filing 

requirement applies.1 [Lee] attempted to overcome the 

time bar by claiming in his December 2, 2015, filing that 

there was governmental interference caused by the 

appointment of counsel and subsequent ineffective 

representation by court-appointed [counsel]. These 

exceptions clearly do [not] fit under the government 

exception because by its very wording, the PCRA states that 

“government officials” do not include defense counsel. 42 

Pa. C.S. §9545(b)(4).2 And as far as the attack on the 

current court appointment system is concerned, [Lee] has 

not articulated how the current system prejudiced him. 

Consequently, all of the issues raising trial error and the 

ineffectiveness of trial counsel were properly determined to 

be time-barred. 
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1 The PCRA provides that a conviction becomes 

final at the conclusion of direct review, including 

discretionary review by the United States and 

the Pennsylvania Supreme Courts or the time

limit for seeking such review. See 

Commonwealth v. Crews, 863 A.2d 498, 501, 

n.1 (Pa. 2004) (citation omitted) (“A judgment 

of sentence becomes final at the conclusion of 

direct review, including review by the United 

States and Pennsylvania Supreme Courts, or 

when the time for seeking such review expires. 

. . . The time for seeking certiorari with the 

United States Supreme Court is 90 days.”). 

Because [Lee] did not file an appeal from the 

judgment of sentence, his conviction became 

final thirty days after sentence was imposed 

upon him.

2 A review of [Lee]’s 1925(b) statement failed 

to discern this particular issue. For the sake of 

judicial economy and to provide a complete 

record, this Court has addressed the claim.

To the extent that defendant contends that PCRA counsel 

provided him with ineffective assistance, for purposes of 

appeal any such claims are limited to the claims raised in 

his Rule 907 response. See Commonwealth v. Smith, 

121 A.3d 1049 (Pa. Super. 2015). In his Rule 907 response, 

other than claiming that he never accepted appointed PCRA 

counsel as his attorney and asserting generally that PCRA 

counsel was ineffective, [Lee] raised no specific claim of 

ineffectiveness. Therefore, it is suggested that any claim 

predicated upon the ineffectiveness of PCRA counsel be 

deemed waived.3

3

It is noted that a review of PCRA counsel’s 

representation failed to discern any wrongdoing 

by counsel. [Lee]’s disaffection with his 

representation cannot serve as a basis for relief.

Although not specifically raised in his 1925(b) statement, 

it is submitted that [Lee] was properly denied relief on his 

newly discovered evidence claim. In that claim, [Lee] baldly 

contended that allegations raised against Detective Dove in 

an unrelated matter entitle him to relief.4 Other than setting 
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forth the claim in general terms, [Lee] has provided no other 

evidence to support a finding that he is entitled to a new 

trial based on this evidence. In Commonwealth v. Castro, 

93 A.3d 818 (Pa. 2014), our Supreme Court recently held 

that newspaper articles were not evidence and could not

form the basis for the grant of relief on a newly discovered 

evidence claim. Based on the holding of Castro, it is clear 

that no error occurred in denying relief on this claim because 

[Lee] is essentially solely relying on the report of the 

detective's arrest as a basis for relief.

5

4 Recently, Detective Dove was fired by the 

Philadelphia Police Department for allegedly 

covering up evidence in an unrelated homicide 

matter involving a girlfriend.

5 Even had [Lee] presented argument in support 

of this claim, relief still would have not been

forthcoming because the outcome of the case 

likely would not have been different because 

there is no evidence that Detective Dove did 

anything inappropriate in the instant matter and 

the evidence of defendant’s guilt was 

overwhelming. Moreover, [Lee] pleaded guilty 

herein and averred that the factual recitation of 

the facts during his plea hearing was essential 

correct. Our Supreme Court stated in 

Commonwealth v. Lyons, 79 A.3d 1053, 1068 

(Pa. 2013), that a court 

should grant a motion for new trial

on the ground of after discovered 

evidence where producible and 

admissible evidence discovered 

after trial (1) could not have been 

obtained prior to the end of trial 

with the exercise of reasonable 

diligence; (2) is not merely 

corroborative or cumulative 

evidence; (3) is not merely 

impeachment evidence; and (4) is 

of such a nature that its use will 

likely result in a different verdict on 

retrial. 
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Commonwealth v. Chamberlain, 612 Pa. 

107, 163-64, 30[] A.3d 381, 414 (2011).

Finally, to the extent that [Lee] challenges the legality of 

his sentence, as noted above, said claims are time-barred. 

Before concluding, it is noted that it appears that this Court 

did not impose any mandatory minimum sentences on 

[Lee]. Therefore, Alleyne does not even apply here.

1925(a) Op. at 5-7. To the extent that Lee’s PCRA petition raised the 

governmental interference or newly-discovered facts exception to the PCRA 

time-bar, we agree with the trial court that Lee has failed to plead and prove 

either exception. Thus, because Lee’s petition was untimely, and there was 

no genuine issue of material fact regarding the timeliness of Lee’s petition, 

the PCRA court properly dismissed the petition without a hearing. See 

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super. 2008). (“[I]f 

the PCRA court can determine from the record that no genuine issues of 

material fact exist, then a hearing is not necessary.”). 

Order affirmed. Motion for special relief denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2017