J-S31022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALFONSO DORSEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 905 EDA 2017

Appeal from the PCRA Order February 24, 2017

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

No(s): CP-51-CR-0421771-1988

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 13, 2018

Alfonso Dorsey appeals from the order, entered in the Court of Common 

Pleas of Philadelphia County, dismissing as untimely his second petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. 

After careful review, we affirm.

The PCRA court summarized the procedural history as follows:

On March 31, 1989, [Dorsey] was convicted by a jury of murder 

of the first degree, 18 Pa.C.S. § 2502, criminal conspiracy, 18 

Pa.C.S. § 903, and possession of an instrument of crime, 18 

Pa.C.S. § 907. [Dorsey] received an aggregate sentence of life 

imprisonment. On January 7, 1991, [the] Superior Court affirmed 

[his] judgment of sentence[.] [Commonwealth v. Dorsey,] 589 

A.2d 1173 (Pa. Super. 1991) (table). On January 9, 1992, the 

Supreme Court denied [Dorsey’s] petition for allowance of 

appeal[.] [Commonwealth v. Dorsey,] 602 A.2d 856 (Pa. 

1992) (table). On January 14, 1997, [Dorsey] filed his first PCRA 

Petition. The PCRA Petition was dismissed on May 20, 1998. The 

Superior Court affirmed the dismissal on February 4, 2000[.] 

[2000 WL 709526 (Pa. Super. Feb. 4, 2000)]. Thereafter, 

[Dorsey] sought relief in the Federal Courts; his efforts were 
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unsuccessful. On July 3, 2013, [Dorsey] filed the instant PCRA 

Petition. On February 24, 2017, this Court dismissed the PCRA 

Petition as untimely and without merit.

Trial Court Opinion, filed 8/7/17, at 1-2.

At the PCRA hearing, Dorsey presented six witnesses: Reginald Jones, 

Larry Thomas, Wayne Humphrey, Ricky Burns, Lamar Jones (“Lamont”; no 

relation to Reginald), and himself. Reginald Jones allegedly contacted Dorsey 

in 2013, while the latter was serving his prison sentence, and told him that he 

was gathering witnesses with possible exculpatory evidence. The four 

witnesses found by Jones were supposedly at the scene the night of the 

murder, and testified that they did not see Dorsey at the scene. The PCRA 

court found the witnesses were not credible and dismissed Dorsey’s petition.

On November 8, 2017, Dorsey filed the present appeal, averring that 

the PCRA court erred in determining that his petition was not timely filed.

Dorsey also asserted that the court erred in denying him relief because he 

presented sufficient evidence during the PCRA hearing to warrant a new trial. 

The standard of review this Court uses to analyze a PCRA court’s order 

is, “whether the determination of the PCRA court is supported by the evidence 

of the record and is free of legal error.” Commonwealth v. Carter, 21 A.3d 

680, 682 (Pa. Super. 2011). If the record supports the PCRA court’s findings, 

then this Court will grant substantial deference to the PCRA court. See 

Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (“A PCRA court 

passes on witness credibility at PCRA hearings, and its credibility 

determinations should be provided great deference by reviewing courts.”). 
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See also Commonwealth v. Abu-Jamal, 720 A.2d 79, 97 (Pa. 1998) 

(“[W]here the record supports the PCRA court’s credibility determinations, 

those determinations are binding on this [C]ourt”). “Indeed, one of the 

primary reasons PCRA hearings are held in the first place is so that credibility 

determinations can be made[.]” Johnson, 966 A.2d at 539.

The PCRA court does not have jurisdiction to consider the merits of 

Dorsey’s PCRA petition unless his petition was timely filed. 42 Pa.C.S. § 

9545(b)(1). PCRA petitions, unless they meet some exception, must be filed 

within one year of the date of a final judgment. 42 Pa.C.S. § 9545(b)(1). 

Dorsey’s judgment became final on April 8, 1992, ninety days after the 

Pennsylvania Supreme Court denied his petition for allowance of appeal. 42 

Pa.C.S. § 9545(b)(3); U.S.Sup.Ct. R. 13. Thus, Dorsey’s deadline to file a 

PCRA petition was April 8, 1993. Dorsey filed his PCRA petition more than 

twenty years after the date of his final judgment, and therefore, his petition 

is facially untimely. 

Dorsey asserts that under 42 Pa.C.S. § 9545(b)(1)(ii), his case presents 

an exception to the one-year jurisdictional time bar because he is raising 

newly-discovered facts. Section 9545(b)(1)(ii) provides as follows:

(b) Time for filing petition.

(1) Any petition under this subchapter, including a second 

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

the judgment becomes final, unless the petition alleges and the 

petitioner proves that:

. . . 
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(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[.]

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the claim 

could have been presented.

42 Pa.C.S. § 9545(b)(1)(ii), (2).

To determine whether the PCRA court erred in holding that the petition 

was time-barred, we must analyze whether Dorsey’s witnesses could have 

been discovered at trial through the exercise of due diligence. 42 Pa.C.S. § 

9545(b)(1). Due diligence is not a bright-line rule, and is to be determined 

on a case-by-case basis. Commonwealth v. Bradford, 2 A.3d 628 (Pa. 

Super. 2010). While due diligence does not require perfection, the petitioner 

must “put forth a reasonable effort.” Id. “Due diligence demands that the 

petitioner take reasonable steps to protect his own interests.” 

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011).

Dorsey argues that he meets the due diligence standard because, due 

to his prison sentence, he had no way of knowing the existence of the new 

witnesses or the allegedly exculpatory information they possessed. According 

to Dorsey, due diligence is thus satisfied because he was incapable of 

discovering new exculpatory evidence while in prison.

However, as the Commonwealth points out, and as Dorsey concedes, 

he failed to take initiative to investigate his case. Dorsey did not contact

friends or family throughout the entire span of his incarceration leading up to 

the instant petition, even though he had more than twenty-five years to do 
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so. Dorsey was aware that Larry Thomas allegedly was inside a nearby store 

the night of the shooting, but he never made an effort to contact Thomas, 

either during his trial or during his lengthy prison sentence. Dorsey also knew 

witness Wayne Humphrey, and he knew that Humphrey could possibly testify

at his trial, but Humphrey was never contacted before or during Dorsey’s trial. 

Finally, Lamar Jones allegedly told Dorsey’s family his account of the incident

more than twenty years prior to the petition’s filing, so Dorsey might have 

discovered Jones had he simply contacted his own family. Such gross inaction 

cannot meet the due diligence standard for the newly-discovered facts 

exception to the PCRA.

With regard to the fourth witness, Ricky Burns, Dorsey did not know of 

his existence or of his potential to be a witness until 2013 when Reginald Jones 

contacted Dorsey in prison, and therefore would not have been able to 

discover Burns through due diligence. Burns was allegedly a bystander who 

happened to witness the crime being committed, and had no relation to 

Dorsey. Therefore, Dorsey’s petition is not time-barred with regard to Burns’ 

testimony.

Burns’ testimony, or the “newly-discovered facts,” only provides a basis 

for PCRA relief if Dorsey complied with section 9545(b)(2) and can show “[t]he 

unavailability at the time of trial of exculpatory evidence that has subsequently 

become available and would have changed the outcome of the trial if it had 

been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi).
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With regard to section 9545(b)(2), Dorsey’s petition must be submitted 

within sixty days of the date the claim could have been presented. 42 Pa.C.S. 

§ 9545(b)(2). Dorsey allegedly learned of the possible exculpatory evidence 

when Reginald Jones visited him in prison, on June 23, 2013. Dorsey’s petition 

was filed on July 3, 2013. Therefore, Dorsey’s petition was timely filed 

pursuant to section 9545(b)(2).

The Pennsylvania Supreme Court in Commonwealth v. D’Amato, 856 

A.2d 806 (Pa. 2004), clarified section 9543(a)(2)(vi) into a four-prong test. 

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.” Id. at 

823 (emphasis added). If witness testimony is deemed incredible, then it 

likely will not compel a different verdict and is not sufficient to afford the 

plaintiff relief. See Abu-Jamal, 720 A.2d at 97 (holding incredible testimony 

will not likely change outcome of case).

Here, the PCRA court found Burns lacking in credibility. The record

reveals that Burns signed a sworn affidavit recounting the events the night of 

the murder, but at the PCRA hearing he spontaneously changed his story and 

recounted different facts. The record thus supports the credibility findings of 

the PCRA court that Burns’ testimony is unreliable. See Commonwealth v. 

Santiago, 855 A.2d 682, 694 (Pa. 2004) (“[W]e are bound by the PCRA 

court’s credibility determinations where there is record support for those 
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determinations”). Accordingly, we find that Burns’ testimony does not meet 

the requirements of the newly-discovered facts exception because it would 

not change the outcome of the case.

As the facts indicate, Dorsey’s PCRA petition does not overcome any

exceptions to the PCRA’s time-bar, and, except for Burns’ testimony, remains 

time-barred. However, the record supports the PCRA court’s findings that the 

new witnesses, including Burns, were not credible and would not afford Dorsey 

relief under the newly-discovered facts exception.

Therefore, we affirm the PCRA court’s order dismissing Dorsey’s

petition.

Order Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/18