J-S21018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JACOB MATTHEW CHRISTINE                   :
                                           :
                    Appellant              :   No. 3555 EDA 2018

         Appeal from the PCRA Order Entered November 19, 2018
  In the Court of Common Pleas of Northampton County Criminal Division
                    at No(s): CP-48-CR-0003344-2009

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                              FILED APRIL 26, 2019

      Jacob Matthew Christine (Appellant) appeals pro se from the dismissal

of his third petition seeking relief under the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

      The PCRA court detailed the relevant facts and procedural history as

follows:

            [Appellant] was convicted of Aggravated Assault and
      Recklessly Endangering Another Person by a jury on October 7,
      2010. The conviction resulted from an incident that occurred in
      Northampton County Prison (NCP) on June 8, 2009. The trial
      record established that on June 8, 2009, [Appellant] and his
      victim, Thomas Misero (Misero), were inmates in NCP when a
      confrontation between the two men occurred in [Appellant’s] cell
      in Unit B-2. The cell housed 8 inmates in four rows of bunk beds.
      While in [Appellant’s] cell, [Appellant] was alleged to have slashed
      Misero’s neck and ear with a razor blade. Misero testified that
      [Appellant’s] assault was unprovoked.           Another inmate in
      Northampton County Prison, Daniel Rice, was called by the
      Commonwealth. Rice testified that he witnessed Misero go into
      [Appellant’s] cell, heard a fight occur and came into the cell as
      [Appellant] and Misero were being separated. Rice witnessed
J-S21018-19


     Misero’s wounds, but did not witness the fight. Rice also testified
     that [Appellant] told him the fight was over twenty dollars that
     Misero owed [Appellant]. During his direct and cross, Rice was
     asked about any deal or consideration that the Commonwealth
     was giving him in return for his testimony. Rice testified that he
     was not promised anything in return for his testimony.

                                     ***

           [Appellant] pursued post-sentence motions and an appeal
     through the appellate courts. The Pennsylvania Supreme Court
     issued an Order affirming [Appellant’s] conviction on [October]
     27, 2015.

           [Appellant’s] first PCRA was filed on February 22, 2016. In
     the first PCRA, [Appellant] raised a series of claims, including
     ineffective assistance of counsel and the existence of “new
     evidence” consisting of prosecutorial misconduct alleging that the
     Assistant District Attorney (ADA) intimidated Rice and suborned
     Rice’s perjured testimony by promising Rice a hidden deal on his
     criminal charges in exchange for his perjured testimony.

            We held our first hearing on the PCRA on July 11, 2016.
     [Appellant] was represented by PCRA counsel. At the hearing, we
     heard from Rice’s guilty plea counsel, Rice’s PCRA counsel, and
     [Appellant]. We learned that on September 15, 2010, shortly
     after [Appellant’s] trial, Rice was given a 4-8 year sentence as
     part of a negotiated plea with a sentence bargain for a bank
     robbery in which he was the getaway driver. At sentencing, Rice
     acknowledged that he got the benefit of his negotiated bargain.
     Apparently, Rice’s co-defendant was later given a 3 to 6 year
     sentence. Upon finding that his co-defendant (who actually
     entered the bank to commit the robbery) got a lesser sentence,
     Rice filed for PCRA relief asking for reconsideration and/or for the
     same sentence his co-defendant received. Rice also claimed in his
     PCRA that he was promised a sentence reduction by the ADA.
     During the PCRA hearing, both of Rice’s attorneys testified that
     they were not aware that any prior promises were made to Rice
     for his testimony against [Appellant]. Rice’s PCRA attorney
     testified that he did raise the inequitable sentencing situation with
     the ADA. Thereafter, the ADA (the same ADA who prosecuted
     [Appellant]) agreed with his proposal that a fair resolution would
     be to give Rice the same sentence as the actual robber. Rice
     agreed to accept the new resolution. On September 30, 2011, as

                                     -2-
J-S21018-19


     part of the resolution of Rice’s PCRA, the Judge modified Rice’s
     sentence to 3-6 years, with the agreement of the ADA.

           [Appellant] also testified at his PCRA hearing. [Appellant]
     presented the report of a private investigator, John Stahr, a
     retired Detective from the Bethlehem Police Department who was
     apparently sent to interview Rice by [Appellant’s] Public Defender,
     prior to [Appellant’s] trial. The entirety of Stahr’s report as it
     relates to his hearsay summary of his interview with Rice is as
     follows:

           I asked Rice if he saw Misero approach [Appellant’s]
           cell and he told me that he had. Rice said that Misero
           had a cup in his hand and that he saw him walk into
           [Appellant’s] cell. Rice said that he saw a scuffle start
           and then someone yelled that they were fighting. Rice
           told me that he went to the cell but the fight was over.
           [Appellant] and Misero were arguing about a dispute
           on the street but he did not know what it involved.
           Rice had nothing further to add and the interview was
           terminated.

     Report of John Stahr, April 12, 2010.

           [Appellant] argued that Rice’s PCRA filing and the Stahr
     report establish both the secret sentencing deal Rice reached with
     the ADA and that the ADA suborned perjured testimony from Rice.
     PCRA Counsel asked to recess the hearing as he considered calling
     additional witnesses. No other hearings were held, even though
     we recessed the hearing to allow PCRA Counsel to call possible
     additional witnesses.

           On December 30, 2016, we entered our Order denying
     [Appellant’s] first Petition. Our December 30, 2016 Order was
     appealed. On January 3, 2018, the Superior Court affirmed our
     Order denying post-conviction relief. In the Superior Court’s
     decision, the Court discussed the alleged improper “secret deal”
     between the ADA and Rice in which the ADA allegedly influenced
     Rice to change his testimony and/or the ADA knowingly proffered
     perjured testimony of Rice at trial, before concluding that there
     was no credible evidence of a “secret deal” or that the ADA
     misrepresented facts or proffered perjured testimony.         The
     Superior Court’s detailed analysis can be found in its January 3,
     2018 Opinion (pp. 4-12), where the Superior Court finally stated:

                                     -3-
J-S21018-19


         “We conclude, therefore, that the record supports the PCRA
         court’s finding that [Appellant], who had the burden of proof,
         presented no competent or credible evidence in support of his bald
         theory that the ADA lied during the trial.” See Superior Court
         Opinion, No. 337 EDA 2017, January 3, 2018 at page 12.

                                         ***

               On May 7, 2018, [Appellant] filed his second PCRA Petition
         advancing the same theory and based upon the same factual
         predicate, with additional evidence consisting of a written
         statement (an affidavit) from Rice which [Appellant] argued
         constituted “newly discovered evidence” under the PCRA. The
         Affidavit signed by Rice alleges that the ADA offered Rice reduced
         time in exchange for his testimony, and that his original statement
         to the “initial investigator” who visited him in prison was his true
         statement.

PCRA Court Opinion, 11/19/18, at 1-6.

         On May 15, 2018, the PCRA court issued notice of intent to dismiss

Appellant’s second PCRA petition without a hearing pursuant to Pennsylvania

Rule of Criminal Procedure 907. The PCRA court dismissed the petition on

June 11, 2018. Appellant did not file an appeal.

         On September 24, 2018, Appellant filed the instant PCRA petition, his

third.     Again, Appellant has claimed that a sworn affidavit from Rice

constituted after-discovered evidence which entitles Appellant to a new trial.

On October 11, 2018, the PCRA court issued notice of its intent to dismiss

Appellant’s PCRA petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907. The court dismissed the petition on November 19,

2018 on the basis that it lacked jurisdiction because the petition was untimely.

Appellant filed this appeal.


                                        -4-
J-S21018-19


       On appeal, Appellant presents a single issue:

               1) DID THE LOWER COURT ERR IN FAILING TO GRANT A
                  PCRA EVIDENTIARY HEARING WHERE [APPELLANT]
                  PRESENTED    A   SWORN     AFFIDAVIT    FROM   A
                  COMMONWEALTH WITNESS THAT “ALL [HIS] TRIAL
                  TESTIMONY WAS FALSE,” THAT “[APPELLANT] WAS
                  DEFENDING [HIM]SELF FROM [THE VICTIM],” AND THAT
                  THE ONLY REASON [THE WITNESS] TESTIFIED AGAINST
                  [APPELLANT] WAS BECAUSE THE ADA MADE A SECRET
                  DEAL WITH [THE WITNESS] PRIOR TO TRIAL TO CHANGE
                  HIS TESTIMONY FROM EXCULPATORY TO INCULPATORY
                  IN EXCHANGE FOR A SENTENCE REDUCTION ON HIS
                  BANK ROBBERY CONVICTION THAT WAS HIDDEN FROM
                  [THE] JURY.

Appellant’s Brief at 4 (underline in original).

       “On appeal from the denial of PCRA relief, our standard of review calls

for us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error.” Commonwealth v. Williams, 196 A.3d 1021,

1026-27 (Pa. 2018) (quoting Commonwealth v. Washington, 927 A.2d

586, 593 (Pa. 2007)).      “The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we apply a de

novo    standard    of   review    to   the   PCRA   court’s   legal   conclusions.”

Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).

       Instantly, we must first address the timeliness of Appellant’s petition,

because the PCRA’s time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address a petition’s merits; a petitioner

seeking post-conviction relief must file a petition within one year of the

petitioner’s    judgment   of     sentence     becoming   final.        See,   e.g.,


                                         -5-
J-S21018-19


Commonwealth v. Smith, 194 A.3d 126, 132 (Pa. Super. 2018); see also

42 Pa.C.S.A. § 9545(b)(1). Section 9545 of the PCRA requires that “[a]ny

petition under this subchapter, including a second or subsequent petition, shall

be filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1).    The timeliness requirement of the PCRA is “mandatory and

jurisdictional in nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-

85 (Pa. Super. 2008). Therefore, “no court may disregard, alter, or create

equitable exceptions to the timeliness requirement in order to reach the

substance of a petitioner’s arguments.” Id. at 785.

        Appellant’s third PCRA petition is patently untimely. The Pennsylvania

Supreme Court affirmed Appellant’s judgment of sentence on October 27,

2015.     Appellant sought reargument with the Supreme Court, which was

denied on January 26, 2016. Under U.S. Sup. Ct. R. 13, Appellant had 90

days to petition for a writ of certiorari with the United States Supreme Court,

but did not do so. A judgment of sentence becomes final “at the conclusion

of direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.”       42 Pa.C.S.A. § 9545(b)(3).        Therefore,

Appellant’s judgment of sentence became final on April 25, 2016, and he had

to file his PCRA petition by April 25, 2017 to meet the PCRA’s time restrictions.

The underlying petition was not filed until September 24, 2018.




                                      -6-
J-S21018-19


      It is well-settled that a court does not have jurisdiction to entertain a

petition filed after the one-year time-bar unless the petitioner pleads and

proves one of the time-bar exceptions. The exceptions include:

      (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.A. § 9545(b)(1)(i)-(iii).

      Until recently, a petition invoking an exception had to be filed within 60

days of the date the claim could have been presented. However, effective

December 2017, Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), and

now provides that a PCRA petition invoking a timeliness exception must be

filed within one year of the date the claim could have been presented. See

Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Although we note the change

in the law from 60 days to one year, and its application to Appellant, the

change does not impact our analysis.

      Appellant argues that the PCRA court should have held a hearing on his

third PCRA petition and vacated his conviction because he presented sworn


                                      -7-
J-S21018-19


affidavits from Rice documenting Rice’s “secret deal” with the Commonwealth.

See Appellant’s Brief at 17 (stating that the PCRA court erred by failing to

conduct a hearing where the witness, Rice, “confesses” that “all his trial

testimony was false,” and Appellant “was defending himself from Misero.”).

Although Appellant recognizes the PCRA’s time-bar and asserts that he has

presented newly discovered evidence to circumvent the time requirement, this

assertion is belied by the record. As noted by the Commonwealth, Appellant

“has failed to prove [the newly discovered evidence] exception to the

timeliness requirement because he has not shown that these facts were

unknown to him and that he exercised due diligence.” Commonwealth Brief

at 10. Moreover, as the PCRA court recognizes, Appellant may not re-raise

issues that were previously litigated. PCRA Court Opinion, 11/19/18, at 17

(citing 42 Pa.C.S.A. § 9544, providing that an issue has been previously

litigated where, inter alia, “it has been raised and decided in a proceeding

collaterally attacking the conviction or sentence.”).        The PCRA court

thoroughly analyzed Appellant’s third claim for post-conviction relief, stating:

      [Appellant’s] third PCRA alleging new evidence . . . is actually a
      reiteration of [Appellant’s] previous assertions addressing
      whether or not Misero was holding anything in his hand when he
      entered [Appellant’s] cell and claiming that the District Attorney
      promised Rice some undefined sentencing benefit in return for
      falsifying his testimony.

PCRA Court Opinion, 11/19/18, at 18.

      The PCRA court observed that “rather than constituting new evidence,

Rice’s affidavits merely regurgitate stale evidence,” and thus, Appellant’s

                                     -8-
J-S21018-19


evidence “is both repetitive and cumulative.” Id. at 21. The court accurately

explained:

             [Appellant’s] claim does not qualify as after-discovered
      evidence under the PCRA, as the claim about the truthfulness or
      accuracy of Rice’s testimony was known (and addressed) at the
      original trial, nearly ten years ago. Frankly, if anything, Rice
      continues to be consistent with his uncertain memory in each
      affidavit. Further, after the expiration of ten years after this issue
      was first addressed at his trial, [Appellant] cannot meet the due
      diligence requirement of the PCRA.

Id. at 20. See also 42 Pa.C.S.A. § 9545(b)(1)(ii).

      For the above reasons, we agree that Appellant has failed to plead and

prove an exception to the PCRA’s time-bar, and is not entitled to relief.

Because the he PCRA court did not abuse its discretion, we affirm its order

dismissing Appellant’s petition for lack of jurisdiction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/19




                                       -9-
J-S21018-19




              - 10 -
