J-S21036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

JAMES DANIEL SPORISH,

                          Appellant                 No. 2059 EDA 2015


                    Appeal from the Order June 11, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0003043-2006

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED FEBRUARY 26, 2016

      Appellant James Daniel Sporish appeals from the order entered by the

Court of Common Pleas of Delaware County dismissing his second petition

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

without a hearing.    In his view, the PCRA court erroneously deemed his

patently untimely second petition time-barred where he had pled and proven

the existence of two “newly-discovered facts” exceptions.      Discerning no

merit to his argument, we affirm.

      The PCRA court aptly summarizes the pertinent case history as

follows:

      Following a jury trial, Appellant was found guilty of rape, sexual
      assault, indecent assault without consent, aggravated assault,
      and terroristic threats[ in connection with acts committed
      against his girlfriend while staying at the apartment of one
      James Hamlin.] Appellant was sentenced to an aggregate term
      of 210 to 540 months’ incarceration. A post-sentence motion


*Former Justice specially assigned to the Superior Court.
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      was filed and a hearing was held on May 27, 2007. The motion
      was denied on June 6, 2007.

      Petitioner filed a timely counseled direct appeal raising eleven
      issues. The Pennsylvania Superior Court affirmed the judgment
      of sentence and on May 17, 2009, the Pennsylvania Supreme
      Court denied Petitioner’s petition for allowance of appeal.

      [On December 16, 2009], Petitioner filed his first PCRA petition
      raising fifteen claims of ineffective assistance of counsel. PCRA
      counsel was appointed and filed an application to withdraw and a
      “no merit” letter. The petition was dismissed without a hearing
      on February 3, 2011. The denial of PCRA relief was affirmed by
      the Pennsylvania Superior Court and on July 16, 2012, the
      Pennsylvania Supreme Court denied Petitioner’s petition for
      allowance of appeal.

      On April 4, 2015, Petitioner filed this untimely second PCRA
      Petition. [The PCRA court] issued its notice of intent to dismiss
      the petition without a hearing on May 6, 2015. Appellant filed
      his response on June 1, 2015. The petition was dismissed on
      June 11, 2015. Appellant filed an appeal on July 2, 2015 and his
      1925(b) statement of matters complained of on appeal on
      August 3, 2015.

PCRA Court Opinion, filed August 18, 2015.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.

      [A]n appellate court reviews the PCRA court's findings of fact to
      determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d. 768, 775 (Pa.Super. 2014).

      In his pro se appellate brief, Appellant initially addresses the

jurisdictional question of whether he pled and proved an exception to the



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statutory time-bar that would otherwise apply to require dismissal of his

facially untimely appeal. In order for a collateral petition to be timely under

the PCRA, it must be filed within one year of the date when the petitioner's

judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(1). Appellant's

petition, filed almost six years after his judgment of sentence became final,

is patently untimely.

      However, there are three exceptions to the time-bar of the PCRA.

Those exceptions include interference by government officials, newly-

discovered facts that were unknown to the petitioner and which could not

have been ascertained with due diligence, or a new constitutional right held

to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any claim based on

an exception to the time-bar must be filed within sixty days of the date it

could have first been presented.

      Appellant contends that his second PCRA petition contained two

sufficiently-pled section 9545(b)(1)(ii) “newly-discovered facts” exceptions.

The first alleged, newly-discovered fact consisted of his private investigator’s

interview of James Hamlin in which Hamlin answered prepared questions

regarding his recollection of events, dates, and times pertinent to the alleged

rape that occurred in the bedroom of his apartment.        Specifically, Hamlin

remembered no dates, claimed not to know what Appellant and the victim

did in the bedroom, and confirmed only some of the more general facts in

the leading questions that Appellant himself had prepared.         The second

alleged fact consisted of a newspaper television guide establishing the days

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and times on which “The Sopranos” television show aired on the week in

question.    At trial, the victim referenced the television show they were

watching to set the time of the rape at around 9:00 or 10:00 p.m. of

Monday, March 14, 2006. The guide would have impeached the victim on

this critical point, Appellant maintains, as the hours she cited belonged to

the Sunday, March 13, 2006, airing, not the Monday airing, which ran from

10:00 to 11:00 p.m.

     This Court has stated as follows concerning the newly discovered facts

exception:

     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 learned the new fact(s) earlier with the exercise
     of due diligence. This rule is strictly enforced. Additionally, the
     focus of this exception is on the newly discovered facts, not on a
     newly discovered or newly willing source for previously known
     facts.

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

and quotation marks omitted).     See also Commonwealth v. Frey, 517

A.2d 1265, 1268 (Pa. 1986) (rejecting claim that fellow conspirator's

statement was newly-discovered evidence: “If the events recounted . . .

actually occurred, [the] appellant was obviously aware of them since [the]

appellant was a party to those events”).




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      Viewed in light of governing authority, neither of Appellant’s proffers

amounts to a newly-discovered fact in satisfaction of section 9545(b)(1)(ii).

Plainly, Appellant knew what happened between himself and the victim in

Hamlin’s apartment while Hamlin was there.         Indeed, he prepared an

interview of Hamlin by setting forth questions containing all the facts and

statements he sought to elicit from Hamlin. As such, Hamlin was merely a

new source of facts previously known to Appellant, and, therefore, his

statement does not come under the section 9545(b)(1)(ii) exception.

      As for the television guide listing, Appellant cannot explain why such a

readily available source of information could not have been obtained earlier

with the exercise of due diligence. To the extent he places blame on prior

counsel for having failed to secure such evidence, it is well-settled that “a

claim for ineffective assistance of counsel does not save an otherwise

untimely petition for review on the merits.” Commonwealth v. Gamboa–

Taylor, 753 A.2d 780, 785 (Pa. 2000). Accordingly, we conclude that the

lower court properly ruled that it did not have jurisdiction to entertain

petitioner's time-barred petition.

      Order is AFFIRMED.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2016




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