J-S74038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

JESSE J. FAUST

                            Appellant                  No. 1351 EDA 2015


                   Appeal from the PCRA Order April 15, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000733-1975


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                            FILED OCTOBER 28, 2016

        Jesse J. Faust appeals pro se from the order entered April 15, 2015,

dismissing as untimely his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        We adopt the following statement of facts:

        On January 7, 1975, an attendant was shot during an armed
        robbery of an ARCO station in the City of Chester. He died four
        days later. The Commonwealth’s evidence showed that Jesse
        Faust and Bobby Brightwell had entered the service station and
        committed the robbery while Milton Johnson and Donald Hunt
        waited in an automobile parked in a nearby alley. Faust was
        tried before a jury with Brightwell and was found guilty of second
        degree murder, robbery, theft, and conspiracy.

Commonwealth v. Faust, 464 A.2d 540, at *1 (Pa. Super. 1983)

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*
    Former Justice specially assigned to the Superior Court.
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       In January 1980, following his conviction, Appellant was sentenced to

life imprisonment. This Court affirmed the judgment of sentence on direct

appeal.     Commonwealth v. Faust, 464 A.2d 540 (Pa. Super. 1983)

(unpublished memorandum).

       In November 1991, Appellant filed his first PCRA petition, 1 which was

denied.    Appellant filed a second PCRA petition in October of 1996, which

was dismissed as untimely. This Court affirmed, and the Supreme Court of

Pennsylvania       denied    Appellant’s       petition   for   allowance   of   appeal.

Commonwealth v. Faust, 718 A.2d 856 (Pa. Super 1998) (unpublished

memorandum), appeal denied, 727 A.2d 1117 (Pa. 1998).

       In November 2010, Appellant pro se filed the instant PCRA petition, his

third. According to Appellant, in October 2010, he received an anonymous

letter, stating:

       Tried to hang – himself (6-6-78); On Thorazine 75 mg (6-14-
       78); Suicidal June 22, 1978; taking medication Azene 3.25 mg
       [unintelligible writing]; Transferred to Fairview State Hospital
       Sept 19, 1978; AM1707’ P5086K.

Appellant’s Brief, Exhibit B.       Appellant asserts that the information in this

letter establishes that Commonwealth witness Donald Hunt was not credible,

and therefore, Appellant is entitled to a new trial.



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1
 This first petition was filed under the Post-Conviction Hearing Act, which
was later amended and renamed the Post-Conviction Relief Act.



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       PCRA counsel was appointed, but in April 2013, counsel submitted a

no merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988). In May 2013, Appellant filed a pro se response to counsel’s

Finley letter. In December 2013, Appellant pro se filed a Motion to Stay the

Pending    Motion     to   Dismiss    PCRA     Petition   and   Counsel’s   Motion   to

Withdrawal. In May 2014, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition and granted counsel’s request to

withdraw. Appellant responded to the court’s 907 notice, and in April 2015,

the PCRA court dismissed Appellant’s petition.

       Appellant pro se appealed. The PCRA court did not direct Appellant to

file a Pa.R.A.P. 1925(b) statement but issued a memorandum opinion

explaining its decision.

       Appellant raises the following issues:

       1. Whether the PCRA court erred by dismissing Appellant’s newly
          discovered Brady[2] claims as untimely, since the petition
          expressly invoked section 9545(b)(1)(i) and (ii), and was filed
          within sixty days of the date that Appellant in the exercise of
          due diligence, uncovered those claims.

       2. Whether a new trial should be granted or the matter
          remanded for further proceedings on the merits, because of
          the unavailability at the time of trial of exculpatory evidence
          that has subsequently become available, demonstrating that
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2
  See Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United
States Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Id. at 87.



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         the Commonwealth failed to correct false testimony and to
         disclose material impeachment evidence in violation of Brady
         v. Maryland.

Appellant’s Brief at 2.

      The 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.   Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007).      We afford the court’s factual findings

deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      Initially, we address the timeliness of Appellant’s petition, as it

implicates our jurisdiction and may not be altered or disregarded in order to

address the merits of his claim.   Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).     Under the PCRA, all petitions seeking collateral

relief must be filed within one year of the date the judgment of sentence

becomes final. Id. There are three statutory exceptions:

      (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 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



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       this section and has been held by that court to                 apply
       retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).         Additionally, any petition attempting to

invoke one of these exceptions “shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Here, Appellant does not dispute that his petition is untimely; rather,

Appellant acknowledges that he must avail himself of one of the exceptions

set forth in section 6545(b)(1)(i)-(iii) in order for this Court to have

jurisdiction to reach the merits of his claims.3        Appellant asserts that his

petition meets the timeliness exceptions found in 42 Pa.C.S. § 9545(b)(1)(i)

and 42 Pa.C.S. § 9545(b)(1)(ii).

       Regarding 42 Pa.C.S. § 9545(b)(1)(i), Appellant contends that the

Commonwealth failed to disclose certain exculpatory evidence, specifically

that Commonwealth witness Donald Hunt was at one time hospitalized in a

mental facility. Appellant alleges that the Commonwealth had knowledge of

Hunt’s commitment and failed to provide this information to defense

counsel, in violation of Brady.

       We disagree.        A Brady claim may fall within the governmental

interference exception.       Commonwealth v. Abu-Jamal, 941 A.2d 1263,

1268 (Pa. 2008). However:


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3
 Appellant’s current petition is patently untimely. His judgment of sentence
became final in the 1980s, more than thirty years ago.



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      The petitioner must plead and prove [1] the failure to previously
      raise the claim was the result of interference by government
      officials, and [2] the information could not have been obtained
      earlier with the exercise of due diligence.

Id.; see also Commonwealth v. Chester, 895 A.2d 520, 523-24 (Pa.

2006). Appellant offers no evidence that the Commonwealth even knew of

Mr. Hunt’s hospitalization let alone concealed that information from

Appellant.    Additionally, Appellant had prior knowledge of potential issues

regarding Mr. Hunt’s competency as there was a competency hearing prior

to trial.   Appellant offered no evidence that the Commonwealth interfered

with his ability to raise this instant claim.   Accordingly, the governmental

interference exception set forth in Section 9545(b)(1)(i) is inapplicable.

      Appellant    also   asserts   the   “newly-discovered   fact”   timeliness

exception. Under 42 Pa.C.S. § 9545(b)(1)(ii), Appellant must prove that (1)

this fact was unknown to him and (2) that he could not have ascertained this

fact previously by the exercise of due diligence.         Commonwealth v.

Bennett, 930 A.2d 1264, 1270-72 (Pa. Super 2007). Due diligence requires

that the petitioner make reasonable steps to protect his own interest.

Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001).

      As previously stated, Appellant’s “newly discovered fact” is an

anonymous, handwritten note, which he asserts refers to a Commonwealth




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witness who was hospitalized in a mental health facility.4 While Mr. Hunt’s

hospitalization may have been unknown to Appellant at the time of the trial,

his competency to testify was evaluated prior to trial.            The letter is

essentially a “new” aspect of an old issue regarding Mr. Hunt’s competency.

The fact that Appellant discovered additional information regarding Mr.

Hunt’s competency does not create                a newly-discovered fact.    See

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (The fact that

the petitioner “discovered yet another conduit for the same claim of perjury

does not transform his latest source into evidence falling within the ambit of

Section 9545(b)(1)(ii)”.)

       Appellant also fails to meet the second prong of Section 9545(b)(1)(ii),

as he does not explain why he could not have ascertained this information

with the exercise of due diligence. See Commonwealth v. Breakiron, 781

A.2d 94, 98 (Pa. 2001) (A petitioner must explain why he could not have

learned the new fact(s) earlier with the exercise of due diligence).        Thus,

Appellate fails to meet the requirements of 9545(b)(1)(ii).

       In summary, Appellant’s petition was patently untimely, and he has

failed to establish an exception to the timeliness requirements of the PCRA.

Accordingly, the PCRA court did not have jurisdiction to review the merits of

Appellant’s claims and properly dismissed his petition.

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4
 Notably absent from this letter is any reference to Commonwealth witness
Donald Hunt.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2016




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