J-S46038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 CRAIG SAUNDERS,                           :
                                           :
                     Appellant.            :   No. 2469 EDA 2017


                  Appeal from the PCRA Order, June 30, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0512141-2002.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                       FILED OCTOBER 17, 2018

        Craig Saunders appeals from the order denying his third petition for

post-conviction relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

42 Pa.C.S.A. §§ 9541-46. We affirm.

        The pertinent facts and lengthy procedural history are as follows:

Saunders was first brought to trial in February 2003. After the jury was unable

to reach a verdict, a mistrial was called, and a second trial was held in January

2004.     At the conclusion of this trial, the jury found Saunders guilty of

burglary, conspiracy, rape as an accomplice, five counts each of robbery and

kidnapping, and multiple firearms violations.       Thereafter, the trial court

imposed an aggregate sentence of 48 ½ to 97 years of imprisonment.

Saunders filed a timely appeal to this Court, and we affirmed his judgment of

sentence on December 1, 2006.       See Commonwealth v. Saunders, 918
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A.2d 791 (Pa. Super. 2006) (unpublished memorandum).               We denied

Saunders’ petition for re-argument on January 25, 2007. Saunders did not

seek further review.

       On February 26, 2007, Saunders filed a pro se PCRA petition. Although

the PCRA court appointed counsel, Saunders expressed his dissatisfaction with

his representation and applied to the court for leave to proceed pro se.

Following a Grazier1 hearing, the PCRA court granted the request. Saunders

filed an amended petition on November 26, 2008, and a supplemental petition

on October 19, 2009.           The Commonwealth filed a motion to dismiss.

Thereafter, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to

dismiss the petition without a hearing. Saunders filed a response. By order

entered April 23, 2010, the PCRA Court dismissed Saunders’ petition.

       Saunders filed an appeal to this Court, in which he raised nine issues.

In one issue, Saunders argued that “the court reporter knowingly and

substantially altered the testimony of defense witness Cynthia Hedgeman.”

Commonwealth v. Saunders, 32 A.3d 826 (Pa. Super. 2011), unpublished

memorandum at 9. In rejecting this claim, we explained that Saunders offered

no evidence of any “corrupt intention,” and that it was actually Saunders’

reliance upon “a Gordian knot of inferences drawn from circumstances that,

without additional evidence, show only the court reporter’s failure to comply

with the Rules of Court. Although regrettable, that omission does not establish

____________________________________________


1   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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the intent Saunders claims.” Saunders, unpublished memorandum at 11-12

(citation omitted). In addition, we noted that Saunders did not explain “how

the absence of certain portions of the transcript on appeal ‘undermined the

truth-determining process’ before a jury when its members viewed Cynthia

Hedgeman in the courtroom and heard live testimony.”       Id. at 13.   Finding

no merit to any of Saunders’ other claims, we affirmed the PCRA Court’s order

denying post-conviction relief. Id. at 43. On August 15, 2012, our Supreme

Court denied Saunders’ petition for allowance of appeal.

      On September 20, 2012, Saunders filed a second pro se PCRA petition,

in which he raised three claims of ineffective assistance of counsel.       On

November 20, 2012, Saunders filed a supplemental petition in which he

claimed that his due process rights were violated by the admission of the

identification evidence presented by the Commonwealth. On August 28, 2013,

the PCRA court filed a Pa.R.Crim.P. 907 notice to dismiss the petition without

a hearing. Appellant filed a response. By order entered January 7, 2014, the

PCRA court formally dismissed Saunders’ second PCRA petition as untimely.

      Saunders appealed to this Court. Although Saunders conceded that his

second petition was filed untimely, he asserted that he met an exception to

the PCRA’s time bar because, pursuant to the decision in Commonwealth v.

Walker, 92 A.3d 766 (Pa. 2014), expert testimony may be admitted to aid

the trier of fact in understanding the        characteristics of eyewitness

identification. Saunders then argued that, in light of Walker, he could now

demonstrate that either the identification evidence at his second trial was

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inadmissible or, if admitted, he could have presented expert witness testimony

to help the jury understand the fallibility of identification testimony. This court

agreed that Saunders’ second petition was untimely, but disagreed that the

Walker decision provided an exception to the PCRA’s time bar. Concluding

that Saunders failed to establish any time-bar exception, we agreed with the

PCRA court that it lacked jurisdiction to address Saunders’ ineffective

assistance of counsel claims.      We therefore affirmed the order denying

Saunders post-conviction relief.     See Commonwealth v. Saunders, 131

A.3d 83 (Pa. Super. 2015).

      On April 12, 2016, Saunders filed a petition for writ of habeas corpus.

Within this petition, Saunders reiterated his due process claims from his first

trial, as well as the claim that the court reporter improperly altered the

transcripts of his second trial.   Treating this filing as a third pro se PCRA

petition, the PCRA court, on March 6, 2017, issued Pa.R.Crim.P. 907 notice of

intent to dismiss the petition without a hearing because it was untimely, and

because Saunders failed to plead and/or prove an exception to the PCRA’s

time bar. Saunders filed several responses. In his initial response, Saunders

asserted that he had discovered new facts regarding his trial transcripts, and,

since the claim was previously litigated under the PCRA, he could now seek a

remedy outside the statute, i.e., via habeas review.          In a supplemental

response, Saunders asked to amend his petition to include a claim regarding

expert testimony on the reliability of eyewitness identification. In his final

supplemental response, Saunders attached a report from an expert he had

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contacted regarding the reliability of the eyewitness identifications made at

his trial.    He claimed this constituted newly-discovered evidence and thus

satisfied Subsection 9545(b)(1)(ii).

      By order entered June 30, 2017, the PCRA court formally dismissed

Saunders’ third petition as untimely. This appeal follows. The PCRA court did

not require Pa.R.A.P. 1925 compliance.

      Saunders raises the following issues:

             1. Whether [Saunders] had a right to file a petition for a
                writ of habeas corpus, independent of the PCRA
                framework?

             2. Whether [Saunders] should have been granted leave to
                file an amended petition, once the [PCRA] court decided
                it was subject to the strictures of the PCRA?

             3. Whether [Saunders] sufficiently pled an exception to the
                time-bar to excuse the filing of a PCRA petition after the
                date his judgment [of sentence] became final?

Saunders’ Brief at 4.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

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

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover,

a PCRA court may decline to hold a hearing on the petition if the PCRA court

determines that the petitioner’s claim is patently frivolous and is without a



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trace of support in either the record or from other evidence. Commonwealth

v. Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).

      In his first issue, Saunders asserts that because his present claim

regarding the trial transcripts was previously litigated under the PCRA, he may

seek relief outside the PCRA’s framework.       We disagree.     The PCRA court

properly treated Saunders’ habeas petition as a serial PCRA.                   See

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)

(explaining that a habeas corpus petition must be treated as a PCRA petition

when the issues raised therein are cognizable under the PCRA).         Other than

his own reading of the PCRA, Saunders offers no precedent for his proposition.

As his claim regarding the transcripts presents an issue of due process, it

remains cognizable only under the PCRA.

      Before addressing the remaining two issues raised by Saunders, we

must first determine whether the PCRA court correctly concluded that

Saunders’ PCRA petition is untimely.

      The   timeliness   of   a   post-conviction    petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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




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9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A. § 9545. A PCRA petition

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).             Finally,

exceptions to the PCRA’s time bar must be pled in the petition, and may not

be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues

not raised before the lower court are waived and cannot be raised for the first

time on appeal).

        Here, because Saunders did not seek further review after we affirmed

his judgment of sentence on December 1, 2006, and denied his petition for


____________________________________________


2   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.

        (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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re-argument on January 25, 2007, his judgment of sentence became final

thirty days thereafter, or on February 26, 2007.3 Thus, for purposes of the

PCRA’s time bar, Saunders had to file his first PCRA petition by February 26,

2008. Saunders filed his third petition on April 12, 2016. Thus, the petition is

untimely, unless Saunders satisfied his burden of pleading and proving that

one of the enumerated exceptions applies. See Hernandez, supra.

       Saunders has failed to establish any exception to the PCRA’s time bar.

He argues that he has satisfied an exception to the PCRA’s time bar of “newly-

discovered” evidence “based on an Expert Report of Dr. Margaret Reardon, an

expert on the psychology of eyewitness identifications.” Saunders’ Brief at

11. According to Saunders, the PCRA court erred in concluding that this report

did not constitute newly-discovered facts. We disagree.4

       The PCRA court found no merit to this claim. It explained:

             The facts that Dr. Reardon relied on to formulate the
          expert report were compiled from trial transcripts. There
          were no new or unknown facts on which her report was
____________________________________________


3 Because the thirtieth day fell on a Saturday, the deadline was extended to
the following Monday. See 1 Pa.C.S.A. § 1908.

4 Within his argument, Saunders also asserts that he qualifies under this time
bar exception because he had recently discovered new facts about the
omissions and variance in the versions of his trial transcripts. As noted above,
a due process claim regarding his trial transcripts was previously litigated in
his first PCRA. Although Saunders claims that a private investigator he hired
has recently uncovered “new facts” after speaking with court reporter
personnel, this time bar exception does not apply to new sources of previously
known facts. See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1269 (Pa.
2008) (citation omitted).


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         predicated on. “The fact appellant discovered yet another
         conduit for the same claim of perjury does not transform his
         latest source into evidence falling within the ambit of §
         9545(b)(1)(ii).” See Commonwealth v. Abu-Jamal, 941
         A.2d 1263, 1269 (Pa. 2008) (citation omitted). Therefore,
         the report did not qualify as an unknown fact for [purposes
         of] Section 9545(b)(1)(ii).

PCRA Court Opinion, 9/14/17, at 5 (citations to notes of testimony omitted).

In addition, the PCRA court noted that in denying his second post-conviction

petition, we held that Saunders “was not entitled to relief where [Saunders]

claimed that he should be permitted to present expert witness testimony to

aid the trier of fact in understanding the fallibility of eyewitness identification.”

Id. (citing Commonwealth v. Saunders, 131 A.3d 83 (Pa. Super. 2015)

(unpublished memorandum).

      Our review of the record supports the PCRA court’s conclusions. Three

years ago we rejected Saunders’ attempt to establish the “newly-discovered

evidence” exception to the PCRA’s time bar based on Walker. At that time,

we explained that the Walker decision is not “evidence.” See Saunders,

unpublished memorandum at 11.

      The expert report Saunders now proffers as newly-discovered evidence

was clearly not admissible at the time of his trial. See e.g. Commonwealth

v. Bormack, 827 A.2d 503, 509 (Pa. Super. 2003) (concluding that trial

counsel was not ineffective for failing to present expert testimony; expert

testimony regarding the reliability of eyewitness identifications is inadmissible

per se in Pennsylvania because it intrudes on the jury’s exclusive role as the

arbiter of credibility).     Although Saunders does not argue the “new

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constitutional right” exception to the PCRA’s time bar, our Supreme Court in

Walker did not specifically identify a new constitutional right that applied

retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(iii). Because we have already

held that the Walker decision itself did not establish a “newly discovered fact,”

Saunders attempt to introduce an expert report based upon Walker, years

after his judgment of sentence became final, likewise fails.

      In sum, Saunders’ third PCRA is untimely, and he has not established

any statutory exception. Thus, the PCRA court correctly concluded it lacked

jurisdiction to consider Saunders’ underlying claims, and we affirm the order

denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/18




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