J-S36008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

LANIER E. RILEY

                         Appellant                     No. 134 EDA 2016


               Appeal from the PCRA Order December 4, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0510931-2004


BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 04, 2018

      The trial court, sitting as fact-finder, convicted Appellant, Lanier Riley,

of possession with intent to deliver cocaine and several related charges.

After the court dismissed his first petition pursuant to the Post Conviction

Relief Act (“PCRA”), he learned that the federal government had indicted

several of the officers who participated in his prosecution for, among other

things, planting evidence on suspects. He therefore filed a second petition.

      In this pro se appeal, Riley asserts his second petition was improperly

dismissed. After reviewing the record, we conclude Riley failed to establish

his right to relief based upon after-discovered evidence, and therefore

affirm.

      On September 10, 2014, Michael Pileggi, Esquire, filed a petition

seeking PCRA relief based upon Riley’s discovery of allegations that, among
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other things, Philadelphia police officers Thomas Liciardello and Brian

Reynolds had planted evidence on criminal defendants in other cases. Both

officers testified against Riley at his trial. Riley asserted this evidence

necessitated a new trial.

      The PCRA court reviewed Riley’s petition and gave Riley notice of its

intent to dismiss the petition. Riley filed a response, which the PCRA court

reviewed. However, the court found Riley’s response did not affect its

reasoning, and dismissed Riley’s petition as untimely.

      Riley filed this appeal, and was later permitted to proceed pro se. He

contends the PCRA court erred in dismissing his petition as untimely. We

review an order dismissing a petition under the PCRA by examining whether

the court’s determination is supported by the evidence of record and is free

of legal error. See Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa.

2005). We will not disturb the court’s factual findings unless there is no

support for them in the certified record. See Commonwealth v. Carr, 768

A.2d 1164, 1166 (Pa. Super. 2001). Moreover, a court may decline to hold a

hearing on a petition if it determines the petitioner’s claim is patently

frivolous and is without a trace of support either in the record or from other

evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001).

      Because this is Riley’s second petition for post-conviction relief, he

must meet a more stringent standard. “A second or any subsequent post-


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conviction request for relief will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.

Super. 2003) (en banc) (citations and internal quotation marks omitted). “A

petitioner makes a prima facie showing if he demonstrates that either the

proceedings which resulted in his conviction were so unfair that a

miscarriage of justice occurred which no civilized society could tolerate, or

that he was innocent of the crimes for which he was charged.” Id. (citations

and internal quotation marks omitted).

      The timeliness of a post-conviction petition is jurisdictional. See

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, an exception to

the timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA

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

days of the date the claims could have been presented.” 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. See Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See also Pa.R.A.P. 302(a).




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       Here, Riley argues the indictments and allegations of corruption

against officers Thomas Liciardello, Jeffrey Walker, and Brian Reynolds

constitute after-discovered evidence under 42 Pa.C.S.A. § 9545(b)(1)(ii). In

order to establish entitlement to this exception, Riley must establish only

that the facts upon which the claim are predicated were unknown to him,

and he could not have ascertained the facts earlier despite the exercise of

due diligence. See Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa.

2007). The determination of timeliness does not require a merits analysis.

See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

       In his petition, Riley asserted he filed it within 60 days of the

indictments of officers Liciardello and Reynolds. He furthermore asserted he

could not have discovered the indictments earlier. We cannot discern any

way     Riley   could   have   discovered     the   indictments      prior   to   their

announcement.

       Our review of the docket reveals Riley filed the petition within 60 days

of    the   indictments   of   Liciardello   and    Reynolds.   In    contrast,    the

announcement of charges against Walker occurred approximately one year

prior to Riley’s filing of the petition at issue. Furthermore, Riley entirely

failed to allege any efforts he had made to discover the indictment of Walker

in a timely manner. Thus, while Riley appears to have met the minimal

requirements for the after-discovered evidence exception to the time-bar for




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the indictments of Liciardello and Reynolds, he did not meet them for the

indictment of Walker.

      However, this is just Riley’s first step in obtaining relief on his after-

discovered evidence claim based upon the indictments of Liciardello and

Reynolds. He has merely established our jurisdiction to entertain these

claims. He still must establish his right to relief on the merits of his claim

based upon Liciardello and Reynolds.

      To obtain relief on this claim, Riley must prove each of four separate

elements. See Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). A

failure to establish any of these elements is fatal to Riley’s claim. See id. Of

particular relevance to this appeal is the requirement that Riley establish

that evidence of these indictments would be used for a purpose other than

mere impeachment. See Commonwealth v. D’Amato, 856 A.2d 806, 823

(Pa. 2004). In his brief, Riley argues

      [t]he evidence establishing that these officers were corrupt and
      were committing countless acts of police misconduct could have
      been utilized to support a CI motion, a [m]otion to [s]uppress
      and/or could have been utilized to undermine Officers Liciardello,
      Reynolds and Walker’s credibility by demonstrating they had, for
      example, lied about drugs or the actions of the CI in this case
      and in other cases.

Appellant’s Brief, at 16.

      All of Riley’s potential uses for the indictments constitute a form of

impeachment. Presumably, Riley’s “CI motion” is a motion to learn the

identity of the confidential informant used by the prosecution. The only


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relevance the indictments of Liciardello and Reynolds would have to such a

motion would be to impeach the eyewitness testimony offered by the

officers. Thus, this would not constitute a use outside of impeachment.

      Similarly, the only relevance the indictments would have to a motion

to suppress would be to impeach the testimony of the officers involved. This

would not constitute a use apart from impeachment.

      Riley’s final argument is clearly impeachment. He seeks to “undermine

the credibility” of the officers and establish they “lied about drugs or the

actions of the CI in this case[.]” This is pure impeachment. Thus, this would

not constitute a use outside of impeachment.

      Riley’s claim based upon the indictment of Walker is time-barred. His

claims based upon the indictments of Liciardello Reynolds are not time-

barred, but he failed to establish that he would have used the indictments

for any purpose outside of impeachment. Therefore, he is not entitled to

relief on these claims. We therefore affirm the PCRA court’s order dismissing

his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/4/2018

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