J-A25032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 NELSON LUGO,                             :
                                          :
                    Appellant.            :   No. 396 EDA 2018

               Appeal from the PCRA Order, January 5, 2018,
             in the Court of Common Pleas of Chester County,
           Criminal Division at No(s): CP-15-CR-0002638-2004.


BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                      FILED JANUARY 16, 2019

      Nelson Lugo appeals from the order denying his seventh petition for

relief filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-

46. After careful review, we affirm.

      The PCRA court summarized the procedural history relevant to the

instant appeal as follows:

             [Lugo] pled guilty to one count of Possession with Intent
         to Deliver a Controlled Substance, two counts of Delivery of
         a Controlled Substance, and one count of Corrupt
         Organizations.    On direct appeal, the Superior Court
         affirmed [Lugo’s] conviction and his judgment of sentence
         became final on June 25, 2007. [Lugo’s] first PCRA petition
         was filed on October 29, 2007 and, after a hearing on the
         merits, was dismissed on February 29, 2008. [Lugo] filed a
         second PCRA petition on April 21, 2009, and it was
         dismissed on May 21, 2009.

         [Lugo] filed a third PCRA petition on May 3, 2010. On May
         19, 2011, the Superior Court affirmed the PCRA court’s
         dismissal of the petition as untimely, i.e. the petition was
         not filed within one year of the judgment becoming final and
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        did not properly invoke any of the enumerated exceptions
        to the one-year limitation. In the petition, [Lugo] raised the
        issue of newly discovered evidence. He presented for the
        court’s review a sworn affidavit by Geraldo Colon in which
        Colon recants a number of statements he allegedly made to
        law enforcement prior to [Lugo’s] arrest. Upon review, the
        [Superior Court] determined that the record belied [Lugo’s]
        claim and that [Lugo] was aware in 2008 of the existence of
        the facts contained in Colon’s 2010 affidavit.

           While the third petition was pending, [Lugo] filed a fourth
        PCRA petition. On February 1, 2011, this fourth petition was
        dismissed. On April 9, 2014, [Lugo] then filed a fifth PCRA
        petition. The petition was dismissed by order of September
        26, 2015. [Lugo] appealed the decision to dismiss the fifth
        petition. On July 9, 2015, the Superior Court affirmed and,
        on December 29, 2015, the Pennsylvania Supreme Court
        also affirmed.

           On July 30, 2016, [Lugo] filed a sixth PCRA petition which
        was denied.     [Lugo] appealed, but subsequently was
        granted leave to withdraw the appeal due to the
        Pennsylvania’s Supreme Court’s determination that the case
        law holding mandatory minimum sentences unconstitutional
        was not retroactive to collateral review.

           The instant petition was filed on November 17, 2017,
        which was within sixty days of the Superior Court’s October
        4, 2017 order granting leave to withdraw the appeal.

PCRA Court Opinion, 1/28/18, at 2-3.

     Following proper notice, the PCRA court dismissed Lugo’s petition as

untimely on January 5, 2018. The court did not hold an evidentiary hearing.

Lugo filed a notice of appeal on January 29, 2018. Both Lugo and the PCRA

court have complied with Pa.R.A.P. 1925.

     Lugo presents two questions for our review:

        1. Whether the PCRA court erred in ruling that the PCRA
           petition was not timely when [Lugo] was entitled to the


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              timeliness exception for knowing use of          perjured
              testimony and governmental interference?

           2. Whether the PCRA court erred in finding that [Lugo] did
              not make out a prima facie showing that the proceedings
              which resulted in his conviction were so unfair that a
              miscarriage of justice occurred or that he is innocent of
              the crimes charged?

        We first determine whether the PCRA court correctly concluded that

Lugo’s serial petition for post-conviction relief was untimely filed. This Court’s

standard of review regarding an order dismissing a petition under the PCRA is

to determine whether the PCRA court’s conclusion is supported by the

evidence of record and is free of legal error. The PCRA court’s factual findings

will not be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations omitted).

        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 the petitioner proves, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition


____________________________________________


1   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.




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invoking one of these statutory exceptions must “be filed within 60 days of

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

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Asserted

exceptions to the time restrictions for a PCRA petition must be included in the

petition, and may not be raised for the first time on appeal. Commonwealth

v. Furgess, 149 A.3d 90, 93 (Pa. Super. 2016).

       Because he did not seek further review following the denial of his

petition for allowance of appeal by our Supreme Court on March 27, 2007,

Lugo’s judgment of sentence became final on June 25, 2007, when the ninety-

day time period for filing a writ of certiorari with the United States Supreme

Court expired. See 42 Pa.C.S.A. § 95454(b)(3). Thus, Lugo had until June

25, 2008, to file a timely PCRA petition. As Lugo filed the instant petition in

2017, it is patently untimely unless he satisfies his burden of pleading and

proving that one of the enumerated exceptions applies.          See Hernandez,

supra.



____________________________________________


       (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), (ii), and (iii).


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      Although Lugo’s petition is untimely, he asserts that he meets two

exceptions to the PCRA timeliness requirement, set forth in 42 Pa.C.S.A. §§

9545(b)(1)(i) and (ii).      Lugo argues during his brother/codefendant’s

resentencing hearing, new facts were revealed to him through recantation

testimony. Geraldo Colon testified during the resentencing that he was

“coached” by police to lie and exaggerate during the trial of Lugo’s

brother/codefendant, Oscar. Lugo contends that he had known that Colon

would lie during Oscar’s trial, but he did not know until the resentencing that

the police were allegedly involved in facilitating these lies.

      In support of his contention that his PCRA meets the timeliness

requirement exceptions for government interference and newly discovered

facts, Lugo argues:

         On July 17, 2017, Geraldo Colon testified about the behavior
         of Troopers Cruz and Lohman. His testimony corroborated
         the recantation testimony of Luis Colon at Oscar Lugo’s
         PCRA hearing wherein Luis Colon testified that the assistant
         district attorney, Lohman and Cruz coached, invented and
         coerced false testimony. Nelson Lugo’s 7th PCRA petition
         was filed within 60 days of October 4, 2017, the date on
         which this Court granted leave to withdraw his appeal in
         Commonwealth v. Lugo, 252 EDA 2017. Mr. Lugo could
         not file the 7th PCRA petition while the 6th PCRA petition
         was pending.

            The instant petition is based on new information
         developed at Oscar Lugo’s PCRA hearing and at Oscar Lugo’s
         resentencing.

            Until those hearings were held, Nelson Lugo had no
         reason to believe that the Government induced Luis Colon
         and Felix Reyes to commit perjury. [Lugo] assumed the
         witnesses would lie but he did not assume the Government
         would sponsor the lies.

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Lugo’s Brief at 16.

      As such, Lugo’s petition hinges on the testimony that took place during

his codefendant’s PCRA proceedings and resentencing hearing.               Lugo

embraces the recantation testimony of these witnesses as if the courts

presiding   over   his   brother’s   hearings   accepted   such   testimony    as

unquestioned truth. Lugo never addresses the fact that these courts deemed

that the recantation testimony lacked credibility, and, instead, accepted the

witnesses’ original testimony as factual. Lugo now argues that the recantation

testimony, which was already found to be incredible, should be the grounds

for his PCRA relief. We disagree.

      Although reviewing Pennsylvania courts have granted new trials and

evidentiary hearings when a PCRA petition presented recantation testimony,

they have done so when the recantation was found to be credible or when

there was no credibility determination of the newly discovered facts.         See

Commonwealth v. D’Amato, 856 A.2d 806 (Pa. 2004); see also

Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014).

      Our Supreme Court has stated the following in regards to recantation

evidence:

            We have held that, as a general matter, after-discovered
         evidence of this nature is notoriously unreliable, particularly
         where the witness claims to have committed perjury, and
         that post-verdict accomplice testimony must be viewed with
         a jaundiced eye. We have also said, however, even as to
         recantations that might otherwise appear dubious, the PCRA
         court must, in the first instance, assess the credibility and
         significance of the recantation in light of the evidence as a
         whole. In Commonwealth v. Williams, 732 A.2d 1167

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           (Pa. 2004), we were faced with the PCRA court's failure to
           make any independent determination as to the believability
           of the recanting person, where the PCRA court adopted the
           Commonwealth's argument on the matter wholesale. We
           remanded for a hearing at which the subject could be heard,
           noting that the PCRA court as fact finder is the appropriate
           entity to assess the credibility of the prospective testimony
           as reflected in the post-trial declaration. In D'Amato, the
           PCRA court did not mention the recantation in its opinion.
           We reiterated that the PCRA court, by failing to address the
           recantation in its opinion, had defaulted in its duty to assess
           the credibility of that statement and its significance in light
           of the trial record, and therefore remanded for the limited
           purpose of making such determination.

Commonwealth v. Washington, 927 A.2d 586, 597 (Pa. 2007) (citations

and quotations omitted).

      In its opinion dismissing Lugo's petition, the PCRA court discussed

Colon’s recantation, and considered the evidence presented by Lugo.              The

PCRA court did not merely adopt the Commonwealth’s version of events, but

instead, scrutinized the evidence of record, and noted that all of the evidence

that Lugo relied on in support of his seventh PCRA petition, had at some point

previously been found not credible by other courts.

      Here, the PCRA court, unlike those in Williams and D'Amato, analyzed

Colon's statements and noted that Lugo “[conveniently] came forward with

his claims after the expiration of his probation in 2013 (during which he was

required    to   cooperate   with   the   Commonwealth)     and   now    faces   no

repercussions for such claims.” Trial Court Opinion, 2/28/18, at 7-8. Further,

the trial court recognized that Lugo presented no additional evidence that

would bring into question the resentencing court’s credibility assessment of



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Colon’s recantation testimony. The PCRA court concluded that the evidence

presented was not persuasive and found Colon’s testimony was not

credible. Thus, the PCRA court, as fact-finder, assessed the credibility of

Colon's recantation testimony and its significance in light of the history of the

record, and properly denied Lugo relief.

      In sum, Lugo has not established his claim falls within either the newly-

discovered evidence exception or the governmental interference exception to

the PCRA's timeliness requirements.        Therefore, the PCRA court correctly

concluded that it lacked jurisdiction to consider the merits of the untimely

petition. We therefore affirm its order denying post-conviction relief.

      Order affirmed.

      Judge Panella concurs in the result.

      Judge Dubow concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/19




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