J-S27017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KYLE DICKERSON

Appellant No. 1120 EDA 2014

Appeal from the PCRA Order entered February 24, 2014

In the Court of Common Pleas of Lehigh County

Criminal Division at No: CP-39-CR-0002659-2010

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,*JJ. 

MEMORANDUM BY STABILE, J.: FILED JULY 20, 2015

Appellant, Kyle Dickerson, appeals pro se from the February 24, 2014 

order entered in the Court of Common Pleas of Lehigh County, denying as 

untimely his petition for collateral relief filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.

On direct appeal, this Court adopted the trial court’s comprehensive 

summary of evidence presented at the trial in this case. Commonwealth v. 

Dickerson, K., 1073 EDA 2011, unpublished memorandum at 1-7 (Pa. 

Super. filed March 16, 2012). For purposes of this appeal, it is sufficient to 

know that on January 21, 2011, a jury found Appellant guilty of first degree 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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murder, robbery, burglary, theft by unlawful taking, receiving stolen 

property, and criminal conspiracy to commit robbery,[1] all stemming from 

events that occurred in the early morning hours of March 15, 2010. On 

February 23, 2011, the trial court sentenced Appellant to a term of life 

imprisonment without possibility of parole for the murder conviction and an 

aggregate consecutive sentence for the remaining convictions. The trial 

court denied Appellant’s post-sentence motions on March 17, 2011. 

Appellant filed a direct appeal to this Court raising sufficiency and 

weight of the evidence issues and alleging error for denying a pre-trial 

motion to exclude expert fingerprint testimony and schedule a Frye

hearing.2 This Court affirmed Appellant’s judgment of sentence on March 

16, 2012. No petition for allowance of appeal was filed and Appellant’s 

judgment of sentence became final on April 15, 2012. 

Appellant filed a pro se PCRA petition on October 18, 2013. The PCRA 

court appointed counsel who filed a Finley3 no-merit letter after reviewing 

the file and corresponding with Appellant. In the no-merit letter, counsel 

explained that Appellant failed to allege or prove any exception to the PCRA 

timeliness requirement. The PCRA court granted counsel’s request to 

____________________________________________

1 18 Pa.C.S.A. §§ 2502(a), 3701, 3502, 3921, 3925 and 903, respectively.

2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 

3 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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withdraw and Appellant proceeded pro se from that point. The PCRA court 

conducted a hearing on February 19, 2014, during which Appellant testified 

as did Steven Mills and Matthew Potts, the two lawyers who represented 

Appellant at trial and on direct appeal. Appellant cross-examined both 

attorneys. On February 24, 2014, the PCRA court dismissed Appellant’s 

petition as untimely, noting Appellant failed to prove a timeliness exception. 

This timely pro se appeal followed.

Appellant presents one issue for our consideration:

Did the PCRA court error [sic] by denying Appellant’s first PCRA 

petition as untimely by unreasonably applying the due diligence 

standard to an incarcerated indigent defendant who was 

abandoned by appellate counsel on direct appeal[?]

Appellant’s Brief at 4.

As this Court recently explained:

In PCRA appeals, our scope of review “is limited to the 

findings of the PCRA court and the evidence on the record of the 

PCRA court’s hearing, viewed in the light most favorable to the 

prevailing party.” Commonwealth v. Sam, 597 Pa. 523, 952 

A.2d 565, 573 (2008) (internal quotation omitted). Because 

most PCRA appeals involve questions of fact and law, we employ 

a mixed standard of review. Commonwealth v. Pitts, 603 Pa. 

1, 981 A.2d 875, 878 (2009). We defer to the PCRA court’s 

factual findings and credibility determinations supported by the 

record. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 

2014) (en banc). In contrast, we review the PCRA court’s legal 

conclusions de novo. Id.

 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 

2015 (en banc).

The PCRA court made the following factual findings:
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[Appellant] presented to this [c]ourt a letter authored by 

his trial counsel on March 23, 2012, informing [Appellant] of the 

Superior Court’s denial of his appeal and advising [Appellant] 

that the only procedural remedy available to him was to file a 

Petition for Allocatur to the Supreme Court of Pennsylvania. 

Trial counsel ended the letter by requesting [Appellant’s] input in 

this matter.[4] Additionally, [Appellant] then presented to this 

[c]ourt an unauthenticated, purported handwritten letter by 

[Appellant] dated March 25, 2012, in which he requests that his 

trial counsel file a Petition for Allocatur with the Supreme Court 

of Pennsylvania.[5] This [c]ourt takes exception to this letter, as 

____________________________________________

4 The text of the March 23, 2012 letter from trial counsel to Appellant reads 

as follows:

Dear Kyle:

Enclosed you will find a copy of the Superior Court Opinion 

denying your Appeal. It was filed with the Superior Court of 

Pennsylvania on March 16, 2012. Also I am in receipt of your 

last correspondence. You said you are in the process of getting 

Affidavits together regarding witnesses who are changing their 

testimony. If that is in fact true, please let me know. The only 

procedural remedy you have now would be to Petition for 

Allocatur to the Supreme Court of Pennsylvania and me [sic] and 

Matt are both in agreement that they would not grant it. Please 

let us know your thoughts on the matter. 

If you have any questions or concerns, please do hesitate 

to write to me.

Very truly yours,

/s/ Steve Mills

Steven R. Mills, Esquire

Notes of Testimony, PCRA Hearing, 2/19/14, Exhibit D-1.

5 The handwritten letter from Appellant bearing the date March 25, 2012, 

reads verbatim as follows:

Mr. Steven R. Mills,

I’m writing in regards to your last correspondence. Like I 

told you in my previous letters I am in possession of a affidaviat 

from a witness who wishes to recant his/her testimony. So 

please inform me of what I should do with this newly discovered 

(Footnote Continued Next Page)
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common sense suggests that it was fabricated by [Appellant] 

solely for the purpose of this hearing. First, this [c]ourt notes 

the dates on the correspondence. This [c]ourt finds it highly

improbable that [Appellant] received at state prison a letter 

dated and mailed on March 23, 2012, and had time to respond 

to same on March 25, 2012. Quite frankly, this is actually 

inconceivable to the [c]ourt. In addition, [Appellant] failed to 

present this [c]ourt with any proof of mailing. Also, defense 

counsel Steven Mills and Matthew Potts both testified that they 

never received [Appellant’s] alleged correspondence of March 

25, 2012. Furthermore, even [Appellant] admitted that Attorney 

Mills always wrote back to [Appellant] upon receipt of any 

correspondence from him. Attorney Mills did not respond to the 

phantom letter. Finally, [Appellant] did not present this letter of 

March 25, 2102, to [PCRA counsel Charles] Banta when he was 

asked to furnish Attorney Banta with evidence of an exception to 

the timeliness requirement. 

Nevertheless, even assuming, arguendo, that the letter is 

legitimate, this [c]ourt finds that [Appellant] did not exercise 

due diligence in pursuing or perfecting his appeal to the 

Supreme Court of Pennsylvania. In fact, [Appellant] did nothing 

for approximately 18 months with regard to his case. A review 

of the file of the Clerk of Courts – Criminal Division reveals three 

(3) letters written by [Appellant] to the Clerk of Courts. The first 

letter was dated February 22, 2012, in which [Appellant] 

(Footnote Continued) _______________________

evidence. Also I’ve been writing you and Mr. Potts about the 

status of my appeals. I still haven’t received my brief from my 

direct let alone the brief for the Superior or the Supreme. In 

your letter you said that the only remedy I have left is Allocatur 

to the Supreme. I don’t know specificaly what that is but please 

file it anyway. I want to exaust any and every remedy at my 

disposal. I don’t know what issues you and or Matt raised on my 

appeal but I have my own findings that I wish to include and so I 

ask that you and or Matt start to contact me so that my appeals 

be done sufficiently and collectively.

Thank you for your time.

Truly,

/s/ Kyle C. Dickerson 

Notes of Testimony, PCRA Hearing, 2/19/14, Exhibit D-2.
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inquired as to the status of his Superior Court appeal. In 

response to his inquiry, the Clerk of Courts sent to [Appellant] a 

copy of the docket for his matter. Then, one year and five 

months later, on August 8, 2013, [Appellant] inquired of the 

Clerk of Courts the status of his appeal to the Supreme Court of 

Pennsylvania. Three weeks later, on August 29, 2013, 

[Appellant] again wrote to the Clerk of Courts inquiring about an 

appeal to the Supreme Court of Pennsylvania. This [c]ourt finds 

that [Appellant’s] lack of action for approximately one year and 

five months belies the fact that he never requested his counsel 

to file a Petition for Allocatur, as well as demonstrates a 

complete lack of due diligence. Consequently, [Appellant] has 

failed to carry his burden.

PCRA Court Opinion, 2/24/14, at 3-4 n.8 (references to exhibits omitted) 

(emphasis in original).

Our review leads us to conclude that the PCRA court’s factual findings 

and credibility determinations are supported by the record. Therefore, we 

defer to them. Reyes-Rodriguez, 111 A.3d at 779 (citing Henkel, 90 A.3d 

at 20). As for the legal determinations, we shall review them de novo. Id.

This Court recently reiterated:

As a prefatory matter, the timeliness of a PCRA petition is 

a jurisdictional requisite. Commonwealth v. Robinson, 12 

A.3d 477 (Pa. Super. 2011). A PCRA petition, including a second 

or subsequent petition, shall be filed within one year of the date 

the underlying judgment becomes final. 42 Pa.C.S.A. 

§ 9545(b)(1). A judgment is deemed 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.A. § 9545(b)(3).

The three statutory exceptions to the timeliness provisions 

in the PCRA allow for very limited circumstances under which the 

late filing of a petition will be excused. 42 Pa.C.S.A. 

§ 9545(b)(1). To invoke an exception, a petition must allege 

and the petitioner must prove:
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(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.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA 

petitioner must present his claimed exception within sixty days 

of the date the claim first could have been presented. 42

Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA petition is not 

filed within one year of the expiration of direct review, or not 

eligible for one of the three limited exceptions, or entitled to one 

of the exceptions, but not filed within 60 days of the date that 

the claim could have been first brought, the [PCRA] court has no 

power to address the substantive merits of a petitioner's PCRA 

claims.” Commonwealth v. Gamboa–Taylor, 562 Pa. 70, 77, 

753 A.2d 780, 783 (2000).

Commonwealth v. Brown, 111 A.3d 171, 175-76 (Pa. Super. 2015) 

(emphasis in original).

Appellant’s judgment became final on April 15, 2012, thirty days after 

this Court affirmed his judgment of sentence and the date on which his time 

expired for seeking discretionary review in our Supreme Court. Therefore, 

Appellant was required to file his PCRA petition on or before April 15, 2013. 

His PCRA petition filed on October 18, 2013 was untimely on its face so we 

must ascertain whether any § 9545(b)(1) exception applies. Appellant has 
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not alleged the applicability of either § 9545(b)(1)(i) or (iii). Therefore, our 

review is focused on whether he can successfully rely on § 9545(b)(1)(ii) to 

overcome the PCRA’s time limitations. 

In Brown, this court considered an appellant’s contention that 

§ 9545(b)(1)(ii) overcame the PCRA’s time limitations. The Court explained: 

The timeliness exception set forth in Section 9545(b)(1)(ii)

requires a petitioner to demonstrate he did not know the facts 

upon which he based his petition and could not have learned 

those facts earlier by the exercise of due diligence. 

Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 

1271 (2007). Due diligence demands that the petitioner take 

reasonable steps to protect his own interests. Commonwealth 

v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner 

must explain why he could not have learned the new fact(s) 

earlier with the exercise of due diligence. Commonwealth v. 

Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001); 

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 

2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). This 

rule is strictly enforced. Id. 

Id. at 176.

Unlike Brown, in which appellant advanced an argument based on 

“after-discovered evidence,” Appellant here argues simply that, despite his 

due diligence, he was unaware his counsel did not petition our Supreme 

Court for allocatur. Appellant suggests “a court should look to the 

circumstances surrounding a defendant[’]s circumstances to inquire whether 

or not more could have been done to discover whatever proffer is being 

presented.” Appellant’s Brief at 8. He explains his own circumstances as 

having been and presently being incarcerated and, as such, “by law an 

indigent litigant.” Id. He contends telephone calls to attorneys are 
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prohibited at SCI Smithfield, where he is incarcerated, and his mother was 

unable to assist him because she was ill. Id. at 10. He asserts he alerted 

the courts when he became aware his counsel abandoned him. Id. 

As explained in Brown, it is incumbent on Appellant to demonstrate 

he took reasonable steps to protect his own interests and to explain why he 

could not have learned sooner, with the exercise of due diligence, that his 

counsel did not file a petition for allocatur. See Brown, 111 A.3d at 176. 

Appellant has not done so. 

The record reflects that Appellant wrote to the clerk of courts in 

February of 2012, inquiring about the status of his direct appeal. The clerk 

responded by sending a copy of the docket sheet to Appellant. As of 

February 2012, Appellant’s direct appeal was still pending before this Court. 

This Court’s decision affirming Appellant’s judgment of sentence was filed on 

March 16, 2012. A week later, Appellant’s counsel wrote to Appellant, 

advising him of this Court’s decision and the sole remaining procedural 

remedy of filing a petition for allocatur, an option counsel predicted to be 

unsuccessful. See n.4, supra. Despite the invitation to share his thoughts 

with counsel, Appellant did not take any action until August 2013 when he 

again wrote to the clerk of courts, inquiring into the status of his appeals.6 

____________________________________________

6 Despite Appellant’s claim at the PCRA hearing that he wrote a letter to 

counsel on March 25, 2012, see n.5, Appellant does not repeat that 

assertion in his brief filed with this Court. We note the PCRA court rejected 

(Footnote Continued Next Page)
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In what can be viewed as a continued show of gamesmanship, Appellant 

concludes the argument section of his brief filed with this Court by asking, 

“After all, did counsel know if Appellant actually received the letter informing 

him of the results of the appeal?” Appellant’s Brief at 12. While perhaps 

intended as a rhetorical question to this Court, Appellant ignores his 

representation under oath to the PCRA court that he wrote his March 25, 

2012 letter in response to counsel’s March 23, 2012 letter. See Notes of 

Testimony, 2/19/14, at 11-12 and Exhibit D-1 (see n.5, supra).

By virtue of his February 2012 inquiry to the clerk of courts, Appellant 

demonstrated his ability to inquire about the status of his appeal. He 

ignored the invitation from counsel to provide his thoughts following this 

Court’s affirmance of his judgment of sentence and failed to produce any 

evidence of a request that they file a petition for allocatur. When appointed 

PCRA counsel asked Appellant for information to support an exception to the 

PCRA’s one-year time bar, Appellant “failed to give [PCRA counsel] any basis 

for pursuing one of the exceptions.” Petition to Withdraw as Counsel, 

12/16/13, Exhibit A at 1-2.

Appellant contends he was abandoned by his trial counsel, counsel 

who represented him from his preliminary hearing through the conclusion of 

his direct appeal, and who invited input from him on proceeding beyond this 

(Footnote Continued) _______________________

the March 25, 2012 letter as fabricated for purposes of the PCRA hearing. 

PCRA Court Opinion, 2/24/14, at n. 8. 
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Court’s ruling. When reviewing this record to determine whether Appellant 

exercised due diligence to excuse an untimely PCRA petition, we conclude it 

was Appellant, not counsel, who abandoned his efforts both to pursue 

allocatur and, more importantly for purposes of this appeal, a timely claim 

for PCRA relief. Because Appellant did not exercise due diligence, he is not 

entitled to an exception to the PCRA’s timeliness requirements.

Appellant’s PCRA petition was untimely on its face and he has failed to 

prove an exception to the PCRA’s time bar. Therefore, we affirm the PCRA 

court’s order dismissing Appellant’s petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015