J-S63025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NGUYEN VU                                  :
                                               :
                       Appellant               :   No. 3326 EDA 2018

             Appeal from the PCRA Order Entered October 15, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009321-2007


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.:                           FILED DECEMBER 10, 2019

        Nguyen Vu (Appellant) appeals pro se from the order denying his second

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        The PCRA court summarized the procedural history of this case:

        On March 7, 2008, following a bench trial, [the trial] court found
        [Appellant] guilty of aggravated assault and related offenses. On
        April 24, 2008, he was sentenced [to] an aggregate term of 10 to
        20 years incarceration. Following the July 29, 2008 denial of his
        post-sentence motion, [Appellant] timely filed a notice of appeal
        on August 1, 2008. On November 10, 2009, the Superior Court
        affirmed the judgment of sentence, and on May 5, 2010, the
        Supreme Court denied his petition for allowance of appeal.
        [Appellant] filed a petition under the Post Conviction Relief Act
        (PCRA) on April 15, 2011. The petition was formally dismissed on
        June 1, 2012. On October 30, 2013, the Superior Court affirmed
        the dismissal of the petition, and on July 28, 2014, the Supreme
        Court denied allowance of appeal. The Supreme Court of the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       United States denied [Appellant’s] petition for writ of certiorari on
       December 15, 2014. [Appellant] filed the instant PCRA petition
       on January 31, 2018. [The PCRA] court issued a notice of intent
       to dismiss the petition pursuant to Pennsylvania Rule of Criminal
       Procedure 907 on September 7, 2018. The petition was formally
       dismissed on October 15, 2018. [Appellant] filed a notice of
       appeal to the Superior Court on November 13, 2018.                On
       December 5, 2018, [Appellant] filed a statement of matters
       complained of on appeal.

PCRA Court Opinion, 1/16/19, at 1.

       On appeal, Appellant raises 12 issues for our review. To summarize,

Appellant raises claims of prosecutorial interference, judicial misconduct and

ineffective assistance of trial and appellate counsel. See Appellant’s Brief at

2-3.

       Preliminarily, in reviewing the denial of a PCRA petition, our review is

limited to examining whether the PCRA court’s findings are supported by the

record and free of legal error. See Commonwealth v. Hanible, 30 A.3d

426, 438 (Pa. 2011). We view the findings of the PCRA court and the evidence

of record in the light most favorable to the prevailing party. Id. “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.” See Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).

       Further, Pennsylvania law makes clear that no court has jurisdiction to

hear an untimely PCRA petition.       Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within

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one year of the date on which the petitioner’s judgment of sentence became

final, unless one of the three statutory exceptions applies:


       (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). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).1 If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”


____________________________________________


1 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
2018, 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. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall
apply only to claims arising one year before the effective date . . . or
thereafter.” Id. This change does not impact Appellant or our analysis.


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Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Appellant’s PCRA petition is facially untimely. “A judgment is deemed

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.’” Monaco, 996 A.2d at

1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)).

      Here, the trial court entered Appellant’s judgment of sentence on April

24, 2008. Appellant filed a post-sentence motion, which the trial court denied,

and an appeal to the Superior Court. This Court affirmed Appellant’s judgment

of sentence on November 10, 2009. See Commonwealth v. Vu, 2307 EDA

2008 (Pa. Super. Nov. 10, 2009) (unpublished memorandum). Appellant filed

a petition for allowance of appeal, which the Pennsylvania Supreme Court

denied on May 5, 2010. Appellant did not seek review with the United States

Supreme Court. Therefore, Appellant’s judgment of sentence became final 90

days from May 5, 2010, or August 3, 2010. See 42 Pa.C.S.A. § 9545(b)(3);

U.S. Sup.Ct.R. 13.

      Under Section 9545(b)(1), Appellant had to file his PCRA petition within

one year of his judgment of sentence becoming final – or August 3, 2011.

Appellant did not file the instant petition, his second, until January 31, 2018.

Accordingly, we are without jurisdiction to decide Appellant’s appeal unless he

pled and proved one of the three timeliness exceptions of Section 9545(b)(1).

See Derrickson, 923 A.2d at 468.

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       Appellant argues that he satisfied the newly-discovered fact exception

under Section 9545(b)(1)(ii),2 and therefore, the PCRA court has jurisdiction

over the merits of his petition.         In order to qualify for this exception, a

petitioner must establish that (1) he did not know the facts upon which he

based his petition, and (2) he could not have learned those facts earlier with

the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). To qualify

as a new fact, “the information may not be part of the public record.”

Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (citation

omitted). In addition, the item must “not merely [be] a newly-discovered or

newly willing source for previously known facts.”          Id.   Furthermore, the

Pennsylvania Supreme Court has explained that “[d]ue diligence does not

require perfect vigilance and punctilious care, but merely a showing the party

has put forth reasonable effort to obtain the information upon which a claim

is based.” Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016).



____________________________________________


2  Appellant also argues that he satisfies the government interference
exception to the time-bar. This argument, however, was not raised in the
PCRA petition; Appellant raised it for the first time in his appellate brief filed
in this Court. The PCRA requires a petitioner to raise an exception in the
petition. Commonwealth v. Wharton, 886 A.2d 1120, 1126 (Pa. 2005)
(stating that the defendant “was required to plead the cognizability of his
petition in the petition itself”); see also 42 Pa.C.S.A. § 9545(b)(1)(i)
(providing that any petition shall be filed within one year of the date the
judgment becomes final “unless the petition alleges and the petition proves
that” one of the enumerated exceptions to the PCRA time-bar applies).
Further, Appellant was not granted leave to amend his petition to include
additional exceptions to the PCRA time-bar. Accordingly, we decline to
address this argument.

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      Appellant avers that “in [h]abeas [c]orpus proceeding at the Federal

District Court, [the district attorney’s office] hid exculpatory evidence to

Appellant. . . and lied in their [r]esponse.” Appellant’s Brief at 8. Appellant’s

argument is based on alleged inconsistencies in the version of the facts the

complainant told authorities during the initial investigation, the testimony at

the preliminary hearing, and the testimony at trial.    Appellant contends that

the district attorney’s office was in possession of documents that would have

shown that the complainant “repeatedly [gave] false statements to the police,

detectives; testified at the preliminary hearing and trial.”     Id. at 9.   The

documents Appellant references in support of his claim include:

      (1) complaint or incident report; (2) [the complainant’s]
      investigation interview record; (3) affidavit of probable cause; (4)
      notes of testimony at the preliminary hearing; (5) motion for
      discovery; (6) color photographs of [complainant’s] vehicle; (7)
      information concerning [complainant’s] 9-mm handgun; (8) copy
      of [complainant’s] Montgomery County gun permit; (9) Defense
      expert’s accident reconstruction report; (10) Commonwealth
      expert’s accident reconstruction report; (11) notes of testimony
      at trial on 3/6/08, on 3/7/08, and at sentencing on 4/24/08; and
      (12) [complainant’s] emailed victim impact statement read into
      the record at sentencing on 4/24/08.

Appellant’s Brief at 8 (citations omitted). Appellant posits that the district

attorney’s office hid these exculpatory documents from Appellant.

      Appellant fails to satisfy the newly-discovered fact exception for two

reasons. First, Appellant raised this same claim on direct appeal challenging

the weight of the evidence for his convictions. See Commonwealth v. Vu,

2307 EDA 2008 (Pa. Super. Nov. 10, 2009) (summarizing Appellant’s weight



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claim as based on inconsistencies in facts the complainant told authorities

during the investigation, trial, and sentencing). We cannot conclude that the

same facts now incorporated in Appellant’s second PCRA petition constitute

“newly discovered facts” qualifying as an exception to the PCRA time-bar.

Second, the information Appellant cites in support of his claim was available

to Appellant and could have been obtained by due diligence.         Appellant

acknowledged that much of the information was testimony from his bench trial

or read into the record during sentencing.     Thus, the alleged exculpatory

evidence Appellant relies upon at this juncture has been available to him and

his prior counsel since 2008, when Appellant was tried, convicted and

sentenced.   Appellant could have obtained the documents and information

relating to any prosecutorial interference by exercising due diligence at that

time. He did not. Accordingly, Appellant has not shown that he acted with

due diligence.

      It is irrelevant that Appellant’s petition for rehearing on his writ of

certiorari was not denied until December 4, 2017, and his PCRA petition was

filed January 31, 2018.   As the PCRA court recognized, “[e]ven assuming,

arguendo, that [Appellant] did discover new evidence during his habeas

proceedings, he received that information in the Commonwealth’s response

filed February 3, 2015, and did not file his petition within 60 days.” PCRA

Court Opinion, 1/16/19, at 3 (citing Commonwealth v. Jones, 54 A.3d 14,

18 (Pa. 2012) (holding that a PCRA petition based on information discovered

during habeas proceedings must be filed within 60 days of receipt of that

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information)).   As a result, Appellant’s petition was untimely and properly

dismissed as such by the PCRA court.

      In sum, the information upon which Appellant relies to qualify for the

newly discovered fact exception was known or knowable well before Appellant

filed his PCRA petition, and does not meet the requirement prescribed in

Section 9545(b)(1)(ii).   Because Appellant’s petition is untimely and not

subject to a statutory exception to the PCRA’s time bar, the PCRA court lacked

jurisdiction. We therefore affirm the order denying relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/19




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