J-S26044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    WILLIAM SANTIAGO                           :
                                               :
                      Appellant                :   No. 1294 MDA 2016

                    Appeal from the PCRA Order July 8, 2016
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002738-2004


BEFORE:      BOWES, DUBOW, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.:                              FILED MAY 26, 2017

        Appellant, William Santiago, appeals from the order entered in the

York County Court of Common Pleas dismissing his second Post Conviction

Relief Act1 (“PCRA”) petition.        He argues that his petition was timely filed

pursuant to the new facts exception to the PCRA.                   42 Pa.C.S. §

9545(b)(1)(ii). We affirm.

        A prior panel of this Court summarized the facts and procedural

posture of this case as follows:

               On January 13, 2005, a jury convicted Appellant of first
           degree murder. On the following day, he was sentenced to
           life imprisonment. The conviction stems from the 2004
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S26044-17


         shooting death of sixteen-year-old William Barnes as part
         of an ongoing altercation between rival drug dealers over
         distribution territory in Hanover, Pennsylvania. The victim
         and Appellant’s accomplice, William Riley, were street-level
         drug dealers for Appellant’s rival, Kunta King. Appellant
         enticed Mr. Riley to draw the victim from a motel room,
         whereupon Appellant forced the victim into an automobile
         at gunpoint, drove to an alley in York, Pennsylvania, and
         shot him repeatedly. This Court affirmed the judgment of
         sentence on July 31, 2006, and our Supreme Court denied
         allowance     of    appeal   on    November     28,   2007.
         Commonwealth v. Santiago, 909 A.2d 887 (Pa. Super.
         2006) (unpublished memorandum), appeal denied,
         Commonwealth v. Santiago, 937 A.2d 445 ([Pa.] 2007).
         The United States Supreme Court denied certiorari on April
         28, 2008.        Santiago v. Pennsylvania, 533 U.S.
         1021(2008).

            Thereafter, acting pro se, Appellant filed the underlying
         PCRA petition on December 15, 2008.            Counsel was
         appointed to represent Appellant, and counsel filed an
         amended PCRA petition. After an evidentiary hearing on
         June 29, 2009, the PCRA court denied relief.

Commonwealth v. Santiago, 1346 MDA 2009, (unpublished memorandum

at 1-2) (Pa. Super. Aug. 18, 2010).       Appellant appealed, and this Court

affirmed. See id.

      On October 29, 2015, Appellant filed the instant second PCRA petition.

The Commonwealth filed a motion to dismiss the PCRA petition. The PCRA

court granted the Commonwealth’s motion to dismiss the claims raised in

the petition with the exception of the issue of the affidavit of Shannon Ritter.

See Order, 6/28/16, at 1-2. A hearing was held on June 28, 2016. On July

8, 2016 the PCRA court granted the motion to dismiss. This timely appeal

followed.   Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of


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errors complained of on appeal and the PCRA court filed a Rule 1925(a)

opinion, based upon its opinion in support of the order granting the

Commonwealth’s motion to dismiss the PCRA petition.

      Appellant raises the following issues for our review:

         I. Whether the [PCRA] court erred in denying relief when it
         dismissed as untimely the issue of the newly discovered
         evidence of Johnnie Simmons affidavit of September 2015
         concerning his statements to the police?

         II. Whether the [PCRA] court erred in denying relief when
         it dismissed as untimely the issues that Attorney [William
         H.] Graff [Jr.] did not present a valid subpoena prior to the
         [c]ourt issuing a warrant for Shannon Ritter and that
         Attorney Graff had an ex parte communication with the
         [c]ourt to get the warrant issued for Shannon Ritter?

         III. Whether the [PCRA] court erred in denying relief when
         it dismissed as untimely the issue that the search warrants
         are not part of the case file in the Clerk of Courts Office?

         IV. Whether the [PCRA] court erred in denying relief when
         it dismissed as untimely the issue of Shannon Ritter’s
         recantation in his affidavit in September 2015?

Appellant’s Brief at 4.

      We reproduce Appellant’s argument in support of his first claim

verbatim:

         It is undisputed that the [PCRA] petition was filed well
         after the one year deadline to file a petition. Appellant
         contends that the circumstances in this case meet the
         exception that the after discovered evidence was unknown
         to him, and he would have been unable to have known
         them [sic] through the exercise of due diligence.

            Appellant contends that the testimony of Johnn[ie]
         Simmons would have been able to attack the credibility of
         the investigation of the York City Police Department. Mr.


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         Simmons had presented a written affidavit to Appellant on
         September 23, 2015, stating that he never made any
         statements against Appellant. This testimony if presented
         to a jury would be able to cast doubt on how the
         investigation was conducted by the York City Police
         Department, as well as how the case was prosecuted by
         the York County District Attorney’s Office.

             At the time of Appellant’s trial, he did not have any
         reason to question the investigation and prosecution of his
         case. It was not until Appellant notice [sic] issues with the
         search warrants not being in the York County Clerk of
         Courts office that he began to question these issues.
         Appellant filed his PCRA within 60 days of receiving the
         affidavit from Mr. Simmons.         Given the impact his
         testimony would have had to a jury, Appellant contends
         the [PCRA] Court erred in dismissing his PCRA petition.

Id. at 8-9.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”       Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

      A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”     Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (citations and footnote omitted).

            Jurisdictional time limits go to a court’s right or
         competency to adjudicate a controversy. These limitations
         are mandatory and interpreted literally; thus, a court has
         no authority to extend filing periods except as the statute
         permits. Unlike a statute of limitations, a jurisdictional
         time limitation is not subject to equitable principles such as


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         tolling except as provided by statute. Thus, the filing
         period is only extended as permitted; in the case of the
         PCRA, the time limitations are extended upon satisfaction
         of the exceptions found in § 9545(b)(1)(i)-(iii) and timely
         filing pursuant to (b)(2). As it has been established that
         the PCRA’s time restrictions are jurisdictional, we hold that
         the period for filing a PCRA petition is not subject to the
         doctrine of equitable tolling, save to the extent the
         doctrine is embraced by § 9545(b)(1)(i)-(iii).

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999).

      The three timeliness exceptions are:

            (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. § 9545(b)(1)(i)-(iii).

             The timeliness exception set forth at Section
         9545(b)(1)(ii) has often mistakenly been referred to as the
         “after-discovered evidence” exception. [Commonwealth
         v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007)]. “This
         shorthand reference was a misnomer, since the plain
         language of subsection (b)(1)(ii) does not require the
         petitioner to allege and prove a claim of ‘after-discovered
         evidence.’”    Id.    Rather, as an initial jurisdictional
         threshold, Section 9545(b)(1)(ii) requires a petitioner to
         allege and prove that there were facts unknown to him and
         that he exercised due diligence in discovering those facts.
         Once jurisdiction is established, a PCRA petitioner can

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        present a substantive after-discovered-evidence claim.
        See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
        eligible for relief under PCRA, petitioner must plead and
        prove by preponderance of evidence that conviction or
        sentence resulted from, inter alia, unavailability at time of
        trial of exculpatory evidence that has subsequently
        become available and would have changed outcome of trial
        if it had been introduced). In other words, the “new facts”
        exception at:

           [S]ubsection (b)(1)(ii) has two components, which
           must be alleged and proved. Namely, the petitioner
           must establish that: 1) the facts upon which the
           claim was predicated were unknown and 2) could
           not have been ascertained by the exercise of due
           diligence. If the petitioner alleges and proves these
           two components, then the PCRA court has
           jurisdiction over the claim under this subsection.

        Bennett, [ ] 930 A.2d at 1272 (internal citations omitted)
        (emphasis in original). Thus, the “new facts” exception at
        Section 9545(b)(1)(ii) does not require any merits analysis
        of an underlying after-discovered-evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176–77 (Pa. Super. 2015),

appeal denied, 125 A.3d 1197 (Pa. 2015) (some citations omitted).

           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. Due diligence demands that the petitioner
        take reasonable steps to protect his own interests. A
        petitioner must explain why he could not have
        obtained the new fact(s) earlier with the exercise of
        due diligence. This rule is strictly enforced.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)

(citations omitted and emphasis added).

     The PCRA court opined:



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         [Appellant] essentially claims that a witness who did not
         testify presented after-discovered evidence that that he
         did not make a statement attributed to him by the police.
         No police officer testified during the course of the trial
         about anything that proposed witness said. [See N.T.
         PCRA Hr’g., 6/28/16, at 11-12.]

                                 *     *    *

            Accordingly, we will grant the Commonwealth’s motion
         to dismiss a PCRA claim based on that issue.

Order, 6/28/16, at 1.

      Appellant contends that the testimony of Johnnie Simmons that “he

never made any statements against” him would have had an impact on the

jury. Appellant’s Brief at 8-9. Appellant has not explained why he could not

have obtained the new facts earlier with the exercise of due diligence. See

Brown, 111 A.3d at 176-77; Monaco, 996 A.2d at 1080.           We discern no

error by the PCRA court. See Wilson, 824 A.2d at 333.

      Second, Appellant avers the PCRA “court erred in denying relief when

it dismissed as untimely the issues that Attorney Graff did not present a

valid subpoena prior to the [c]ourt issuing a warrant for Shannon Ritter and

that Attorney Graff had an ex parte communication with the [c]ourt to get

the warrant issued for Shannon Ritter.” Appellant’s Brief at 9. In support of

this claim, Appellant contends that

         [i]t is clear from the record from the trial that when the
         warrant was issued for Shannon Ritter as a material
         witness, no subpoena was shown to the [t]rial [c]ourt, as
         well that the conversation occurred without Appellant’s
         defense counsel present. Appellant contends that since he
         still maintains his innocence and with the level of judicial

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          impropriety that would be clear from the record, it is an
          exception to the one year time bar.

Id. at 9-10.

       A review of the record reveals that this claim does not constitute an

after discovered fact.      Appellant has not presented a claim that satisfies

any timeliness exception pursuant to Section 9545(b)(1)(i)-(iii).2

       Third, Appellant avers the PCRA “court erred in denying relief when it

dismissed as untimely the issue that the search warrants are not part of the

case file in the Clerk of Courts Office.” Appellant’s Brief at 10. His argument

in support of this claim is as follows:

              Appellant’s family in September of 2015, became aware
          that the search warrants in his case were not part of the
          file in the Clerk of Courts Office. Appellant contends
          without the warrants in the file, there is no way to verify
          the legitimacy of the warrants. It is clear that Appellant
          and his attorney were aware of the search warrants,
          including having a suppression hearing.          Appellant
          contends that due to his claim of innocence and it being a
          clear miscarriage of justice he would be able to raise this
          issue past the one year time bar.

Id.

       Appellant’s claim does not satisfy any timeliness exception.     See 42

Pa.C.S. § 9545(b)(1)i)-(iii). Appellant concedes he “and his attorney were
____________________________________________


2
  We note that on direct appeal this Court found the trial court did not abuse
its discretion in permitting Ritter to testify at the time of trial.       See
Commonwealth v. Santiago, 401 MDA 2005, (unpublished memorandum
at 22-23) (Pa. Super. Sept. 25, 2007).




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J-S26044-17


aware of the search warrants, including having a suppression hearing.” 3

Appellant’s Brief at 10.

       Lastly, Appellant contends the PCRA “court erred in denying relief

when it dismissed as untimely the issue of Shannon Ritter’s recantation in

his affidavit in September 2015.”4             Appellant’s Brief at 10.   In support of

this claim, Appellant avers as follows:

             Appellant contends that the [PCRA c]ourt erred in
          finding that Shannon Ritter’s recantation did not meet the
          burden of newly discovered evidence. Appellant believes
          that Shannon Ritter’s recantation more than establishes by
          a preponderance of the evidence that it would have
          changed the outcome of the trial.        While Mr. Ritter’s
          testimony was corroborative of other testimony presented
          by Freddy Goff, Mr. Ritter was a much more credible
          witness. In the closing argument by Attorney Graff, he
          stated that Mr. Ritter was the most credible witness,
          because he did not ask for anything when he provided his
          statement to police. Mr. Ritter had no motive for Appellant
          to be able to attack his testimony, whereas Mr. Goff was
          receiving consideration for his testimony.

             While Mr. Ritter could not be clear during the PCRA
          hearing on which statements would have been hearsay, he
          was clear that he testified to statement that Appellant
          never told him. The standard is only by preponderance of
          evidence that it would have changed the outcome of the
____________________________________________


3
  On direct appeal, this Court addressed the issue of the legitimacy of the
search warrant and determined that it was “validly-issued.” See Santiago,
401 MDA 2005, (unpublished memorandum at 17) (Pa. Super. 2006).
4
  In the affidavit, Mr. Ritter states as follows: “I write this affidavit to let it
be known that the only reason I testified against [Appellant] at his trial on
January 2005 was because it was being done under DURESS by ADA William
H. Graff.” PCRA Petition, 10/29/15, at Ex. “A”.



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J-S26044-17


         trial. When Mr. Ritter’s testimony is put into question it
         does meet that standard, due to the weight that
         Commonwealth relied on it in its argument to the jury.

Appellant’s Brief at 10-11.

      In the case sub judice, the PCRA court granted the Commonwealth’s

motion to dismiss the PCRA petition as to all claims with the exception of Mr.

Ritter’s testimony.     The court stated: “With regard to Shannon Ritter’s

proposed testimony, at this time we’ll deny the Commonwealth’s motion to

dismiss concerning that particular issue and we’ll take testimony on that.”

Order, 6/28/16, at 2.

      The PCRA court opined:

            On June 28, 2016, at the hearing held on the instant
         matter, Ritter testified that he felt like he was under
         pressure from the District Attorney’s Office to testify
         against Appellant. He felt this way because they had
         arrested him and told him, he would not be freed until he
         testified to the statements he herd [sic] Appellant make
         concerning the homicide. Ritter further explained that
         Appellant made incriminating statement to him concerning
         the homicide but that numerous inmates were also talking
         about the crime and he cannot ascertain which statements
         Appellant made from statements other inmates made.
         However, he knows he testified as truthfully as he could
         and to the best of his ability at trial.

             Furthermore,     Ritter’s   testimony     at   trial  was
         corroborative of other testimony presented by [Frederick]
         Goff [Jr.] [Goff]. Goff testified that Appellant confessed to
         killing the victim and told him that “sometimes you got to
         kill the pawn to get to the king.” Goff also testified that
         Appellant used a (.45) handgun and shot the victim (4-
         5)times in the back. At trial, Ritter testified that Appellant
         used a (.45) handgun and shot the victim (4) times in the
         back. Goff and Ritter gave consistent testimony.


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             Here, we agree that the statements Ritter made in
         September 2015 were not available at the time of
         Appellant’s trial and that they have subsequently become
         available. However, we do not believe that the statements
         alleged in Ritter’s affidavit, not [sic] his testimony which
         he offered at the June 28, 2016, PCRA hearing in support
         of his affidavit, would change the outcome of the trial.
         First, Ritter is not able to establish which statements he
         made might have been false. Secondly, he stated that he
         testified as truthfully as he could. Finally, even if Ritter did
         not testify at trial, Appellant would likely have still been
         convicted of the homicide because a second witness, Goff,
         testified to the same statements as Ritter. Therefore,
         Appellant has not established by preponderance of the
         evidence that this new evidence would have changed the
         outcome of the trial. Thus, Appellant is not entitled relief
         to [sic] based on the PCRA’s newly discovered evidence
         exception to the one-year time bar.

Opinion in Support of Order Granting the Commonwealth’s Motion for

Dismissal of Defendant’s Second Petition for Post Conviction Relief at 4

(citations omitted). We agree no relief is due.

      At the PCRA hearing, Mr. Ritter testified, inter alia, as follows:

         [Counsel for Appellant]: Mr. Ritter, do you recall testifying
         in this trial as it relates to Mr. Santiago?

         A: Yes, I do.

         Q: In regards to that, prior to presenting that testimony,
         you had an opportunity to speak with the District
         Attorney’s Office and provide them a statement; correct?

         A: Yes, I provided them a statement.

         Q: And then at some point while the trial was going on you
         were arrested on a bench warrant that was issued?

         A: Yes. . . .




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       I was in Wal-Mart one evening and a family member of
       mine had called me and asked me where I was at. . . .

       Q: And that’s how you got arrested on the warrant?

       A: Yes, sir. . . .

                                *     *      *

       Q: So once you were taken into custody, can you explain
       to the Court as far as what did happen and who you had a
       conversation with?

       A: Once I was taken into custody . . . I was transported to
       York police station, taken downstairs. Attorney Graff was
       there, a few detectives were there, and the people that
       apprehended me were there. They made me aware─Prior
       to my getting there, I didn’t know why I was being
       arrested. But when I got there, you know, it was clear
       that the trial was going on and they wanted me to testify.
       At that time I made it clear that I didn’t want to testify and
       as to why I didn’t want to testify.

       Q: Why didn’t you want to testify?

       A: Honestly, sir, coming forward and giving a statement
       was one of the hardest things I’ve ever done. . . .

          But after the fact of my giving the statement, I realized
       that some of the things that I testified to, well, some of
       the things that I said in the statement weren’t─they were
       told to me, but they weren’t all told to me by [Appellant]. .
       ..

       Q: And did you explain that to Attorney Graff and the other
       members of the law enforcement that were there when
       you were taken into custody?

       A: I did mention that.

       Q: And what was there response as far as to that?

       A: That I should just testify to what I told them.


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                                   *     *      *

       Q: Did they make any statements to you if you didn’t
       testify what would happen?

       A: That I would remain in jail until I did because it was an
       Order of Court that I testify.

                                *       *       *

       Q: At the time that you testified, did you feel pressure
       from the District Attorney’s Office to testify to the
       statement you previously gave?

       A: Absolutely.


                                   *     *      *


       Q: When you testified at trial, did you testify truthfully?

       A: To the best of my knowledge.

       Q: Fair enough. Mr. Ritter, have you talked to [Appellant]
       in the last say five years?

       A: Once.

       Q: What was the nature of that contact?

       A: This was just recently. I went to see him at the prison.

                                   *     *      *

       Q: This was after you filed your affidavit?

       A: Yes, ma’am.

       Q: What did you and he talk about?

       A: I just went to apologize to him.

       Q: For telling the truth?

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J-S26044-17



        A: No, ma’am. For possibly─I’m not going to say not
        telling the truth, but for possibly, you know, prejudicing
        him by saying things that he may not have told me.

        Q: But again you agree that there are things he did tell
        you?

        A: Yes, ma’am.

        Q: And there are things about the crime?

        A: Yes.

        Q: And there were things that implicated his guilt in it?

        A: Yes, ma’am.

                                  *     *      *

        The Court: . . . Did you lie under oath during the trial?

        A: No, sir. I told the truth to what I believed it to be. I
        didn’t lie. I just─I’m not sure what he told me and what
        he didn’t because I was given a lot of information.

        The Court: From various sources?

        A: At the prison at the same time, yes, sir.

        The Court: When you were in prison?

        A: When I was having the conversations with [Appellant],
        there was also other people there in the prison that had
        things to do with the case and people were just talking
        about things. . . .

N.T., 6/28/16, at 22-26, 28, 32-34.

     At trial, however, Goff testified, inter alia, as follows:

        [The Commonwealth]: . . . Did [Appellant] tell you what
        gun he used on Billy Barnes?


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J-S26044-17


        A: Yes, he did.

        Q: What did he tell you he used?

        A: .45.

        Q: Did he tell you how many times he shot him?

        A: Yes. Four or five times.

        Q: Where did he shoot him?

        A: In the back.

        Q: And all this was before the autopsy was done or any
        forensic examinations was [sic] done or anything else?

        A: Yes.

        Q: This was within a day or so of the shooting?

        A: Yes.

N.T., 1/12/05, at 630-31.

     The PCRA court found that, even if Ritter did not testify at trial,

Appellant would likely have still be convicted of the homicide based upon

Goff’s testimony. We find the PCRA court’s determination that Appellant is

not entitled to relief is supported by the record. See 42 Pa.C.S. §

9543(a)(2)(vi); Brown, 111 A.3d at 176-77. We discern no legal error in

the PCRA court’s dismissal of Appellant’s PCRA petition.   See Wilson, 824

A.2d 331.




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J-S26044-17


     Accordingly, we affirm the order of the PCRA court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




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