J-S65042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LOUIS SESSA, III

                            Appellant               No. 1137 EDA 2015


                   Appeal from the PCRA Order March 3, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0005943-1992


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 24, 2015

        Appellant Louis Sessa appeals from the March 3, 2015 order of the

Bucks County Court of Common Pleas denying his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. as

untimely. We affirm.

        On March 10, 1993, Appellant pled guilty to murder, eight counts of

robbery, two counts of possession of instrument of a crime, two counts of

theft by unlawful taking or disposition, two counts of receiving stolen

property, and eight counts of conspiracy.1 The trial court held a degree of

guilt hearing and found Appellant guilty of second-degree murder. The trial

court imposed concurrent sentences of life imprisonment for the murder

____________________________________________


1
    18 Pa.C.S. §§ 2502, 3701, 907, 3921, 3925, and 903, respectively.
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conviction and 10 to 20 years’ imprisonment for the conspiracy conviction.

Appellant did not file a direct appeal.

      The PCRA court previously described the post-conviction procedural

history as follows:

            On July 18, 1994, [Appellant] filed his first [PCRA
            petition]. Thereafter, on December 22, 1994, an
            evidentiary hearing was held and at the conclusion of
            the hearing Judge Garb denied [Appellant’s] request
            for PCRA relief. . . . [O]n August 2, 1995, the
            Superior Court of Pennsylvania affirmed the denial of
            post-conviction relief and on December 28, 1995 the
            Pennsylvania Supreme Court denied [Appellant’s]
            petition for allowance of appeal. Commonwealth v.
            Sessa, 668 A.2d 1197 (Pa. Super. 1995) (table),
            appeal denied, 670 A.2d 141 (Pa. 1995).

            On March 7, 2002, [Appellant] filed his second PCRA
            petition. On May 3, 2002 [the Court of Common
            Pleas of Bucks County] dismissed [Appellant’s]
            petition without a hearing on the basis of
            untimeliness. [Appellant] appealed, and on February
            21, 2003, the Superior Court of Pennsylvania
            vacated the order and remanded . . . . On February
            10, 2005, [the PCRA court] ultimately dismissed
            [Appellant’s] second PCRA petition and [Appellant]
            appealed. The Superior Court of Pennsylvania
            quashed [Appellant’s] appeal as untimely . . . and
            [opined] that the PCRA court did not have
            jurisdiction to entertain its merits. The Pennsylvania
            Supreme Court denied [Appellant’s] petition for
            allowance of appeal. Commonwealth v. Sessa, 903
            A.2d 1233 (Pa. 2006) (per curiam).

                                     ****

            [O]n March 25, 2008, [Appellant] filed a Petition for
            Writ of Habeas Corpus ad Subjiciendum in [the trial
            court] . . . . On May 28, 2008, [the trial court]
            denied the petition without a hearing for failure to
            state a claim . . . .      The Superior Court of


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           Pennsylvania affirmed [the trial court’s] decision on
           March 3, 2009 and the Pennsylvania Supreme Court
           denied [Appellant’s] petition for allowance of appeal.
           Commonwealth v. Sessa, 972 A.2d 561 (Pa.
           Super.)

           (table), 980 A.2d 607 (Pa. 2009) (per curiam) (some
           citations omitted).

        [Trial Court Opinion, 7/30/2010 (unpaginated)]

                                    ****

        On May 1, 2012, [Appellant] filed [a] “Motion for Post
        Conviction Collateral Relief” and [a] “Supplemental Post
        Conviction Collateral Relief Petition this Courts [sic]
        Jurisdiction Pursuant to 42 Pa.C.S. § 9543 et. seq.,” his
        fifth PCRA petition. On June 6, 2012, [the PCRA court]
        issued an Order for Answer on the Commonwealth. On
        June 14, 2012, the Commonwealth filed an Answer. On
        June 27, 2012, [Appellant] filed “Petitioner’s Objections to
        Commonwealth [sic] Motion to Dismiss P.C.R.A. Petition
        Without a Hearing.”

        On July 9, 2012, [the PCRA court] issued a Notice of Intent
        to Dismiss. On July 19, 2012, [Appellant] filed “Motion for
        Extension of Time for Production of Record to Support
        Response of Intent to Dismiss Petition without Hearing,”
        which [the PCRA court] granted on July 23, 2012 and
        extended [Appellant’s] filing period until August 17, 2012.
        On July 27, 2012, [Appellant] filed “Petitioner’s Response
        to Courts [sic] intent to Dismiss Petition without a
        Hearing.”     On August 24, 2012, [the PCRA court]
        dismissed [Appellant’s] petition. On August 31, 2012,
        [Appellant] filed “Motion for Reconsideration of This Courts
        [sic] Order of 8/31/2012, Denying P.C.R.A. Petition,” which
        [PCRA court] denied on September 24, 2012. On
        September 24, 2012, [Appellant] filed a Notice of Appeal
        and a “Concise Statement of Matters Complained of on
        Appeal.”

PCRA Court Opinion (“P.C.O.”), 12/19/2012, at 1-7 (citations modified). The

PCRA court denied Appellant’s PCRA Petition as untimely under 42 Pa.C.S. §

9545(b), and this Court affirmed.

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     On December 1, 2014, Appellant filed another PCRA petition.          On

January 28, 2015, the PCRA court issued a notice of its intent to dismiss the

petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907. Appellant filed a response on February 11, 2015. On March

3, 2015, the PCRA court denied the petition. Appellant filed a timely notice

of appeal.   Both Appellant and the trial court complied with Pennsylvania

Rule of Appellate Procedure 1925.

     Appellant raises the following issues on appeal:

        1. Did the [PCRA] court err, and commit reversible error
        when it dismissed [A]ppellant’s petition without the benefit
        of [a] properly conducted evidentiary hearing to determine
        the credibility of the presented statement(s) that led to
        filing of the said petition, and therefore being able to
        render a fully informed legal opinion?

        2. Did the [PCRA] court err, and commit reversible error
        when it failed to recognize a timely presented motion to
        the court that was pertinent to the due process of the law
        with[] regards to final disposition of [PCRA] petition?

        3. Did the Commonwealth’s attorney perpetrate a knowing
        fraud upon the court when [he] failed to disclose
        discoverable material to the defense, that it presented to
        the court at suppression and at trial, and knew was
        inherently false in nature?

        4. Did the Commonwealth’s prosecuting attorney err, and
        commit reversible error, when it permitted knowing false
        testimony to remain on the record uncorrected, when it
        was presented at a criminal suppression hearing and trial,
        as well as, during appellate post collateral proceedings,
        impeding justice and perpetrating a knowing fraud upon
        the judiciary?

        5. Did the [PCRA] court err, and commit reversible error
        when it omitted facts of record upon which appellant’s
        claims are predicated and completely failed to address

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          claims of appellant that are properly preserved and
          presented to the court for review?

Appellant’s Brief at iii.

      Before reaching the merits of Appellant’s claims, we must determine

whether he timely filed this PCRA petition.       Pursuant to Pennsylvania law,

“no   court    has    jurisdiction   to   hear   an   untimely   PCRA   petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.2003)). The PCRA

provides that a petition, “including a second or subsequent petition, shall be

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

9545(b)(1); accord Monaco, 996 A.2d at 1079; Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa.Super.2003).              A judgment is 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. § 9545(b)(3).

      Three exceptions to the PCRA’s statute of limitations exist.            The

exceptions allow for limited circumstances under which a court may excuse

the late filing of a PCRA petition. Monaco, 996 A.2d at 1079; 42 Pa.C.S. §

9545(b)(1). The late filing of a petition will be excused if a petitioner alleges

and proves:

              (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;



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             (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).      When invoking an exception outlined

above, the petition must “be filed within 60 days of the date the claim could

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

      Appellant was sentenced in 1993.           As Appellant concedes, his

December 1, 2014 PCRA petition is facially untimely.       Appellant claims he

has satisfied two exceptions to the PCRA time-bar – the newly-discovered

evidence exception and the government interference exception.              See

Appellant’s Brief at v.   He alleges that in October of 2014, he obtained a

copy of his co-defendant’s guilty plea transcript and maintains this transcript

constitutes newly-discovered evidence.      Id. at 2.   He further alleges the

Commonwealth failed to produce the transcript, as it allegedly was required

to do. Id.    The co-defendant’s guilty plea proceedings occurred on March

10, 1993, the day before Appellant’s suppression hearing.        PCRA Petition,

10/2/2014, at 6-7; Docket at 4 of 30, Commonwealth v. Sessa, CP-09-

0005943-1992 (C.P.Bucks); Docket at 4 of 27, Commonwealth v. Dyson,

CP-09-CR-0005936-1992 (C.P.Bucks) [“Dyson Docket”].           The transcript of

his co-defendant’s guilty plea hearing was made public on March 31, 1994.

See Dyson Docket at 6 of 27 (notes of testimony filed 3/31/1994).


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      To establish the newly-discovered evidence exception to the PCRA

time-bar, the petition must allege and prove that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).

       The Supreme Court of Pennsylvania has found that information is not

“unknown” for purposes of the newly-discovered evidence exception to the

PCRA time-bar where the information was a “matter of public record.”

Commonwealth v. Chester, 895 A.2d 520, 522-23 (Pa.2006).                   This

presumption of access, however, does not apply where the petitioner is a

pro se prisoner at the time the information became public. Commonwealth

v. Burton, 121 A.3d 1063, 1071 (Pa.Super.2015) (en banc). Further, this

Court has recently held that “due diligence requires neither perfect vigilance

nor punctilious care, but rather it requires reasonable efforts by a petitioner,

based on the particular circumstances, to uncover facts that may support a

claim for collateral relief.”   Commonwealth v. Burton, 121 A.3d 1063,

1071 (Pa.Super.2015) (en banc).

      Appellant relies on Burton, to support his claim that his PCRA petition

is timely.   Reply Brief at 1-3.   He argues that as an incarcerated pro se

petitioner, he is not presumed to have access to public records, including the

transcript. Id. at 2. In Burton, this Court found the appellant was entitled

to an evidentiary hearing where he filed his PCRA petition within 60 days of

receiving information that his co-defendant had filed a motion to expunge

his criminal record. The motion to expunge averred that the co-defendant

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killed the victim in self-defense and that Appellant was innocent. 121 A.3d

at 1066. We found that the appellant in Burton may have acted diligently

and found the presumption of access to public records did not apply to

incarcerated     pro    se     petitioners   without     evidence    demonstrating     the

petitioner had access to the information.                Id. at 1073.     We noted the

appellant’s co-defendant filed the motion to expunge 10 years after the

appellant’s conviction became final and “it would not be reasonable to expect

Appellant to investigate public records with sufficient regularity to ascertain

quickly   whether       [the    co-defendant]      may    have      disclosed   potentially

exculpatory information.” Id. We further noted the co-defendant’s silence

at trial “eliminated any reasonable expectation that he would, thereafter,

publicly acknowledge his guilt.” Id.

      Here, Appellant maintains the testimony of the arresting officer

regarding the officer’s interview of Appellant changed between his co-

defendant’s plea proceeding and Appellant’s suppression hearing the

following day.         Appellant’s Brief at 1-2.       Appellant was represented by

counsel in March 1993, at the time of his co-defendant’s guilty plea.

Although it appears he did not have counsel in March 1994, when the

transcript of the co-defendant’s proceeding was docketed, the court

appointed counsel on July 22, 1994 to represent Appellant in PCRA

proceedings. Appellant’s counsel would have had access to co-defendant’s

guilty plea transcript, which was a public document. Because Appellant did

not file his PCRA petition within 60 days of March 1993 or within 60 days of

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appointment of counsel in July 1994,2 he fails to establish he acted with

reasonable diligence.3      Therefore, the newly-discovered evidence exception

to the PCRA time-bar does not provide relief.

        Appellant also maintains his petition qualifies under the government

interference exception to the PCRA time-bar.        Appellant Brief at v.    To

establish the government-interference exception a petitioner must allege

and prove:     “(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.”       42 Pa.C.S. § 9545(b)(1)(i).

“Although a Brady4 violation may fall within the governmental interference

exception, the petitioner must plead and prove the failure to previously raise

the claim was the result of interference by government officials, and the

information could not have been obtained earlier with the exercise of due


____________________________________________


2
 Appellant also failed to raise any claim related to the transcript at the
December 22, 1994 evidentiary hearing and his counsel did not file an
amended PCRA petition.
3
  Further, from review of the portion of co-defendant’s   guilty plea transcript
attached to Appellant’s PCRA petition and attached        to Appellant’s brief,
Appellant has not established that any police officer     testimony materially
differed from the police officer testimony provided        at the suppression
hearing.
4
    Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).




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diligence.”5     Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa.2008). As discussed above, Appellant could have discovered the

transcript of his co-defendant’s guilty plea with reasonable diligence in July

1994, at the latest.       Because he failed to raise any claim based on the

transcript within 60 days of July 1994, Appellant fails to establish the

government interference exception to the PCRA time-bar.

       The PCRA court did not err in denying Appellant’s PCRA petition as

untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2015




____________________________________________


5
   Appellant also bases his Brady claim on an allegation that the
Commonwealth did not produce notes from a police interview and that the
PCRA court did not investigate whether his co-defendant received favorable
treatment in exchange for waiving his right to a jury trial for the penalty
phase. Appellant’s Brief at 2. Appellant, however, fails to establish when he
discovered the notes and fails to establish the Commonwealth failed to
produce the notes.




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