J-S53039-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER A. LATORRE                     :
                                               :
                       Appellant               :   No. 2672 EDA 2018

             Appeal from the PCRA Order Entered August 21, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009532-2007

BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 14, 2019

        Appellant Christopher A. Latorre appeals from the order dismissing his

second Post Conviction Relief Act1 (PCRA) petition as meritless.          Appellant

argues that because he was unaware of the newly-discovered evidence of his

co-defendant’s false testimony, the PCRA court erred by dismissing his

petition.   Appellant also contends that his sentence was unreasonable and

excessive. We affirm.

        We state the facts as set forth by a prior panel of this Court:

        On May 3, 2007, Ms. Carmen Delgado and the victim, Mr. Melvin
        Candaleria, were residing together [in] Philadelphia. Following an
        argument which escalated into a physical altercation, both
        individuals left the residence and went to homes of respective
        family members. Later in the afternoon, Ms. Delgado returned to
        the Linton Street residence along with Mr. Ezequiel Delgado, her
        brother, and Appellant, her stepbrother, to remove the victim’s
____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
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     belongings. Appellant was in possession of an operable firearm.
     Once arriving at her residence, Ms. Delgado and her two siblings
     began packing up the victim’s personal items. Shortly thereafter,
     Ms. Delgado left the house, leaving her two siblings to continue
     packing.

     The victim arrived home in the evening unaware that anyone was
     present inside. Upon entering the house, the victim heard
     footsteps upstairs and called Ms. Delgado’s name twice. The
     victim did not receive a response, and began walking up the stairs
     to investigate. Part-way up the steps, Appellant entered the
     stairway and struck the victim on the left temple with a silver hand
     gun. The victim immediately recognized Appellant and said, “let’s
     talk, it’s not that serious.” Appellant responded by telling the
     victim to leave the premises, while pointing the gun at him. The
     victim lifted his hands, and turned his body around in the leftward
     direction and began to descend the remaining steps. After taking
     two steps, Appellant discharged the weapon a single time. The
     bullet struck the victim, who was unarmed, several inches below
     the neck and one inch from the spinal cord.

     After Appellant shot the victim, he began issuing verbal threats;
     he told the victim, “I will hurt you if you say anything,” and not to
     tell anybody or else there would be problems. Mr. Delgado, who
     heard voices and a gunshot, ran down the stairs and observed the
     victim lying on the ground, and Appellant standing nearby. Mr.
     Delgado asked Appellant where he got the gun, and why did he
     shoot him. Appellant and Mr. Delgado then left the residence,
     while the victim remained lying near the base of the steps.

     The victim crawled to the door, and was able to successfully
     summon a neighbor to call the paramedics. The victim was
     subsequently transported to Einstein Medical Center. As a result
     of the gunshot, victim is paralyzed from the chest down. Mr.
     Delgado has never seen the victim in possession of a firearm, and
     pursuant to [a] police search, no firearms were recovered from
     the Linton Street residence.




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Commonwealth v. Latorre, 456 EDA 2013, 2014 WL 10978551, *1 (Pa.

Super. filed Mar. 11, 2014) (unpublished mem.), appeal denied, 242 EAL 2014

(Pa. filed Sept. 3, 2014).2

       Prior to Appellant’s bench trial, Mr. Delgado pleaded guilty to aggravated

assault and criminal conspiracy for his involvement with the shooting and was

sentenced to a negotiated sentence of four years’ probation. At Appellant’s

trial, Mr. Delgado testified for the Commonwealth.         In relevant part, Mr.

Delgado testified that his plea was not contingent upon him testifying for the

Commonwealth.         N.T. Trial, 4/24/08, at 51.    Furthermore, Mr. Delgado

testified about his initial statement to the police, in which he said that a female

friend drove him to the complainant’s home. Id. at 55. At trial, Mr. Delgado

testified that the female friend did not drive him, contrary to his initial police

statement. Id. at 55-56. Mr. Delgado otherwise testified in accord with his

initial police statement, which inculpated Appellant.          We add that the

complainant also testified that Appellant shot him.        Id. at 19.    The trial

testimony did not explicitly reveal who brought the gun, although Mr. Delgado

denied having the gun. Id. at 64.




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2Appellant’s petition for allowance of appeal from this Court’s decision in 456
EDA 2013 was filed under the caption “Commonwealth v. Latore.”


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      The trial court convicted Appellant of aggravated assault, recklessly

endangering another person (REAP), terroristic threats, possession of an

instrument of crime, conspiracy, and firearms violations. See Latorre, 2014

WL 10978551 at *2.      The trial court ordered a pre-sentence investigation

report. See N.T. Trial at 135.

      On June 11, 2008, the trial court sentenced Appellant to an aggregate

sentence of nineteen and one-half to thirty-nine years’ imprisonment followed

by ten years’ probation. Appellant filed a post-sentence motion, but did not

challenge the trial court’s failure to use a pre-sentence investigation report

and its reliance on the complainant’s impact statement. The trial court denied

Appellant’s post-sentence motion.

      This Court affirmed Appellant’s judgment of sentence.      Our Supreme

Court denied Appellant’s petition for allowance of appeal on August 12, 2010.

      On March 4, 2011, Appellant filed a first pro se PCRA petition.     See

Latorre, 2014 WL 10978551 at *2. The PCRA court appointed counsel, who

filed an amended petition raising several claims of trial counsel’s ineffective

assistance and an illegal sentence claim. Id.

      The PCRA court granted limited relief.      Specifically, it agreed with

Appellant that his REAP conviction “should have merged with aggravated

assault for sentencing purposes.” Id. As a result, the PCRA court resentenced

Appellant to an aggregate sentence of eighteen and one-half years to thirty-




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seven years’ imprisonment. Id. The PCRA court denied Appellant’s petition

in all other respects.

      Appellant appealed, and this Court affirmed on March 11, 2014.

Appellant filed a petition for allowance of appeal, which our Supreme Court

denied on September 3, 2014.

      On November 20, 2017, Appellant, acting pro se, filed a second PCRA

petition. In support, he claimed that on October 17, 2017, he received a letter

from Mr. Delgado regarding his trial testimony. PCRA Pet., 11/20/17, at 3.

Appellant’s brief in support of his petition alleged that Mr. Delgado was

coerced by the Commonwealth to testify falsely and raised a sentencing claim.

Id. at 3(e), 3(t)-3(u).

      Also attached to Appellant’s brief was Mr. Delgado’s notarized affidavit

in which Mr. Delgado averred that he—not Appellant—initially had the gun.

Ex. A to PCRA Pet. The affidavit further stated that Appellant grabbed the gun

out of Mr. Delgado’s hand and hit the complainant after the complainant

“jumped out of nowhere.” Id. According to the affidavit: “[Appellant] told

[complainant] to leave, they were arguing and [complainant] turned to leave

and seemed to be reaching for something and [Appellant] shot [complainant]

in the back. . . .” Id.

      Mr. Delgado further stated that the police arrested him and he gave a

statement that “a girl [he] knew” drove them to Ms. Delgado’s house and that

he did not know “how the gun got there.” Id. He contended that he initially


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accepted a plea that would not require him to testify at Appellant’s trial, but

that the district attorney stated that he would, in fact, have to testify. Id.

      Mr. Delgado, in his affidavit, claimed the following occurred at

Appellant’s trial:

      At [Appellant’s] trial, the D.A. . . . told me that now was the time
      to change my statement if I wanted too [sic], so I told her that
      my sister Fatima Alvalez drove us to my sister’s house, not some
      girl I knew, and that I had brought the gun to the house. [The
      D.A.] said to just stick to the original statement except for how
      we got to the house. When I got on the stand I testified to what
      I said in the original statement like [the D.A.] said, and not about
      what I told [the D.A.] about who drove us or me having the gun.
      [The D.A.] asked me if my deal was for me taking the stand and
      I said no. [The D.A.] made it look like I did it on my own. I was
      young and scared; I thought they were going to take my deal
      away so I told them what I said in my original statement like [the
      D.A.] said to do.

Id.

      The Commonwealth filed a response stating that the petition was

untimely and Appellant did not explain why the information in Mr. Delgado’s

affidavit could not have been obtained earlier. Answer to PCRA Pet., 5/12/18,

at 2-3.   On the merits, the Commonwealth contended that Mr. Delgado’s

affidavit was unreliable and, moreover, Mr. Delgado was one of many

inculpatory witnesses, which included the complainant.         Id. at 4.     The

Commonwealth emphasized that the trial court found the complainant’s

testimony “extremely credible” in inculpating Appellant. Id.

      Appellant retained private counsel, who filed an amended PCRA petition

on July 16, 2018. The counseled petition asserted that Appellant filed his pro


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se petition within sixty days of receiving Mr. Delgado’s affidavit. Am. PCRA

Pet., 7/16/18, at 2 (unpaginated). The amended petition also distinguished

Mr. Delgado’s testimony by asserting that Mr. Delgado was the “only witness

to fully observe” the events in question.     Id. (emphasis in original).    In

Appellant’s view, Mr. Delgado’s proposed testimony would have been

persuasive in exculpating him. Id. The counseled amended petition did not

reiterate Appellant’s sentencing claim.

      On July 17, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s petition as meritless. Appellant filed a counseled

response on August 4, 2018. In the response, Appellant contends that his

PCRA petition was timely filed within sixty days of receiving Mr. Delgado’s

affidavit. Resp. to Rule 907 Notice, 8/4/18, at 1 (unpaginated). The response

also invoked governmental interference; specifically, the Commonwealth

knowingly presented the perjured testimony of Mr. Delgado. Id. at 2. Finally,

the response reiterated Appellant’s position that Mr. Delgado’s affidavit

regarding his trial testimony was evidence that would have impacted the

outcome of Appellant’s trial. Id. at 4.

      On August 21, 2018, the PCRA court dismissed Appellant’s PCRA

petition. Appellant, acting pro se, timely appealed on September 11, 2018.

Counsel for Appellant also filed a timely notice of appeal on September 18,

2018. This Court dismissed Appellant’s earlier appeal as duplicative.




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      Appellant raises one issue on appeal: “Did the trial court err when it

denied Appellant an evidentiary hearing?” Appellant’s Brief at 4. In support,

Appellant argues that he was unaware that Mr. Delgado testified against him

in exchange for a favorable plea bargain. Id. at 14. Appellant asserts that

he did not know that the district attorney suborned perjury by instructing Mr.

Delgado to testify in substantial accord with his original police statement. Id.

Appellant contends that he timely filed the present PCRA petition within sixty

days of receiving Mr. Delgado’s affidavit. Id. at 17.

      Initially, we must address whether Appellant’s PCRA petition was timely

filed. In Commonwealth v. Grayson, 212 A.3d 1047 (Pa. Super. 2019), we

set forth this Court’s standard of review as follows:

      This Court's standard of review regarding an order denying 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. The PCRA court’s findings will not be disturbed unless there
      is no support for the findings in the certified record.

Grayson, 212 A.3d at 1051 (citation omitted).

      “[T]he timeliness of a PCRA petition is a jurisdictional requisite.”

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015). A PCRA

petition, “including a second or subsequent petition, shall be filed within one

year of the date the judgment becomes final” unless the petitioner pleads and

proves one of three statutory exceptions. 42 Pa.C.S. § 9545(b)(1). The three

statutory exceptions include the following:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the

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       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).

       To invoke one of these exceptions, a petitioner must also file his petition

within sixty days of the date the claim could have been presented. See 42

Pa.C.S.    §    9545(b)(2)       (subsequently   amended     eff.   Dec.   2018);3

Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013) (stating, “We

have established that this 60–day rule requires a petitioner to plead and prove

that the information on which his claims are based could not have been

obtained earlier despite the exercise of due diligence.” (citations omitted)). It

is the PCRA petitioner’s “burden to allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa.

2010) (citation omitted and some formatting altered).



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3Section 9545(b)(2) was amended on October 24, 2018, effective December
24, 2018, extending the time for filing from sixty days of the date the claim
could have been first presented to one year. The amendment applies to claims
arising on December 24, 2017, or thereafter. See Act of Oct. 24, 2018, P.L.
894, No. 146, § 3. Because Appellant filed his second PCRA petition on
November 20, 2017, the amended Section (b)(2) does not apply to him.


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      Instantly, Appellant claimed that on October 17, 2017, he received Mr.

Delgado’s affidavit contending that the Commonwealth compelled him to

testify falsely.   Such a claim arguably falls within the governmental

interference or the newly-discovered fact exceptions under subsection

(b)(1)(i) and (ii), respectively. See Commonwealth v. Davis, 86 A.3d 883,

891 (Pa. Super. 2014) (addressing a petitioner’s claims based on the

Commonwealth’s withholding of evidence that it made favorable deals and

newly-discovered fact based a witness’s recantation under subsections

(b)(1)(i) and (ii)). Appellant, however, did not establish that he exercised due

diligence in seeking this information earlier.   See Edmiston, 65 A.3d at 341.

As discussed above, Mr. Delgado stated in his affidavit that he had the gun

initially and Appellant grabbed the gun out of his hand. Ex. A to PCRA Pet.

Although Mr. Delgado denied having the gun at trial, see N.T. at 64, Appellant

has not explained any steps he took in order to discover Mr. Delgado’s

conflicting testimony earlier.

      Moreover, even assuming that Appellant had established that he could

not have discovered the alleged perjured testimony with due diligence, cf.

Davis at 86 A.3d at 890-91, Appellant is due no relief. Appellant contends

that Mr. Delgado’s affidavit was exculpatory, not cumulative, not used solely

to impeach credibility, and would have led to a different verdict. Appellant’s

Brief at 17-18. Appellant reiterates that he could not have known that Mr.

Delgado would falsely testify at the district attorney’s request and deny that


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his plea agreement was contingent upon testifying against Appellant. Id. at

18. Appellant faults the PCRA court for predetermining the credibility of Mr.

Delgado. Id. at 18-19.

      Appellant also challenges the PCRA court’s reasoning that because Mr.

Delgado, during his trial testimony, corrected one portion of his initial

statement, the rest of his testimony should be considered true. Id. at 19. By

way of explanation, the PCRA court observed that Mr. Delgado testified at trial

that he had lied with respect to who drove him to the complainant’s home.

PCRA Ct. Op., 12/13/18, at 6.        Because Mr. Delgado corrected his police

statement at trial, the PCRA court asserted the correction “show[ed] that [Mr.]

Delgado did not fear the Commonwealth,” and the rest of his trial testimony

must have been accurate. Id. In other words, the PCRA court reasoned,

because Mr. Delgado “did not fear the Commonwealth,” he could have easily

corrected other assertions in his trial testimony. Id.

      In Commonwealth v. Pagan, 950 A.2d 270, 293 (Pa. 2008), our

Supreme Court identified four factors that a defendant must establish in order

to obtain a new trial:

      (1) could not have been obtained prior to the conclusion of the
      trial by the exercise of reasonable diligence; (2) is not merely
      corroborative or cumulative; (3) will not be used solely to impeach
      the credibility of a witness; and (4) would likely result in a different
      verdict if a new trial were granted.

Pagan, 950 A.2d at 292 (citations omitted). We add that “an appellate court

may not interfere with the denial or granting of a new trial where the sole


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ground is the alleged recantation of state witnesses unless there has been a

clear abuse of discretion.” Commonwealth v. McCracken, 659 A.2d 541,

549 (Pa. 1995). Specifically, this Court must review the entire record, and

“first determine whether the trial judge’s reasons and factual basis can be

supported. Unless there are facts and inferences of record that disclose a

palpable abuse of discretion, the trial judge’s reasons should prevail.” Id. at

545 (citation omitted).

        Here, the record establishes that that the complainant testified at

Appellant’s trial. See id. Specifically, the complainant testified that Appellant

possessed a gun, struck the complainant’s head with the gun, aimed the gun

at the complainant, and shot the complainant in the back as the complainant

was walking down the stairs. See id.; see also N.T. Trial at 16-19. The PCRA

court    concluded    that   the   complainant’s   testimony   alone   established

Appellant’s guilt. PCRA Ct. Op. at 8. We agree.

        In light of the complainant’s testimony, Appellant has not established

that Mr. Delgado’s conflicting testimony would have resulted in a different

verdict. See Pagan, 950 A.2d at 292. Given that the sole basis for a new

trial is Mr. Delgado’s conflicting testimony in his affidavit, and after our review

of the entire record, we cannot establish that the PCRA court abused its

discretion in denying relief. See McCracken, 659 A.2d at 549.

        Lastly, Appellant contends the trial court erred by not using a previously-

ordered pre-sentence         investigation   report and relying solely on      the


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complainant’s victim impact statement. Appellant’s Brief at 27. Initially, the

issue was raised in Appellant’s pro se PCRA petition. PCRA Pet., 11/20/17, at

3(u)-3(v). Appellant, however, filed an amended PCRA petition which omitted

the issue thereby waiving it. See Pa.R.A.P. 302 (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

In any event, his pro se petition failed to plead any timeliness exception for

his sentencing claim. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). For these reasons,

we affirm the order below.

      Order affirmed.

      Judge Stabile joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/19




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