J-S68025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CEASAR TRICE                               :
                                               :
                       Appellant               :   No. 684 WDA 2019

              Appeal from the PCRA Order Entered April 24, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0018839-2006


BEFORE:      GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JANUARY 8, 2020

        Ceasar Trice appeals from the order, entered in the Court of Common

Pleas of Allegheny County, dismissing as untimely his second petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

Upon careful review, we affirm.

        This Court, in assessing Trice’s previous PCRA petition, recounted the

factual basis for Trice’s convictions as follows:

        The factual background of this case arises from a dispute between
        a drug dealer and his customers. Trice, who was a juvenile at the
        time, was a regular supplier of drugs to the residents of a home
        in West Mifflin Borough (“the Cardamone home”). Dominic
        Cardamone resided in a third floor, attic apartment with his
        significant other, Heidi Stipetich. Their son, John Cardamone,
        then 27, lived on the second floor with his girlfriend, Kimmerly
        Messenger. John’s brother, Aaron Cardamone, then 25, lived in a


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     separate room on the same floor, while a friend of the family, Heidi
     Schindler, slept in the living room on the first floor.

     In the early morning of November 25, 2006, Trice made a sales
     call to the Cardamone home. However, instead of consummating
     the transaction, John Cardamone and Kimmerly Messenger took
     him to the second floor and severely beat him, taking $150 in cash
     as well as his narcotics. Trice left the Cardamone home and was
     eventually transported to a nearby hospital to have the wound in
     his head closed with nine staples.

     While Trice was being treated, a colleague, Dejuan Mitchell
     [(Dejuan)], took a gun and shot at the second and third story
     windows of the Cardamone home. No one was injured in the
     shooting, and [Dejuan] left the scene.

     Shortly thereafter, police arrived on the scene, responding to a
     “shots fired” report.     Officers observed bullet holes in the
     Cardamone home, and knocked on the door. None of the
     residents answered immediately, as they were all in the third floor
     apartment, with at least a few getting high on narcotics stolen
     from Trice. Eventually, Stipetich went to the door and told police
     that she had not contacted police because she couldn’t find her
     phone, and furthermore, that she had no idea regarding the
     identity of the shooter.

     The police left the scene, and the residents of the Cardamone
     home eventually fell asleep. However, at some time after 9 a.m.,
     Heidi Schindler, who was sleeping in the first floor living room,
     was woken by three intruders. One of the intruders, Anthony
     Nelson, held a rifle to Schindler’s mouth and ordered her to sit up.
     Another intruder, [Dejuan], told Nelson leave Schindler alone, as
     “she had nothing to do with this.” After [Dejuan] and Nelson went
     upstairs, Schindler heard approximately twelve shots fired, and
     then saw [Dejuan] and Nelson run back down the stairs. She was
     unsure if the third intruder, whom she could not identify, had gone
     upstairs with Nelson and [Dejuan], or whether he had remained
     downstairs.

     [Dejuan] testified that after Trice returned from the hospital, he
     asked Nelson and [Dejuan] to accompany him to the Cardamone
     home to retrieve his property. After the three broke into the
     house and confronted Schindler, Nelson passed the gun to Trice,
     and [Dejuan] and Trice proceeded upstairs. [Dejuan] stated that

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      while he was searching Aaron Cardamone’s room, Trice came in
      and shot Aaron several times. [Dejuan] fled down the stairs,
      hearing more gun shots as he fled.

      Kimmerly Messenger and John Cardamone also suffered
      significant gunshot injuries but survived the assault. Aaron
      Cardamone was pronounced dead at the hospital from the gunshot
      wounds he received.

      Trice was subsequently arrested and charged with one count of
      homicide and various other crimes arising from the incident.

Commonwealth v. Trice, 1321 WDA 2014, 1–3 (Pa. Super. Nov. 2, 2015)

(unpublished memorandum).

      On July 9, 2008, following trial, a jury convicted Trice of one count of

third-degree murder, two counts of aggravated assault, and one count of

criminal trespass. On October 16, 2008, the trial court sentenced Trice to an

aggregate sentence of 32 to 64 years’ imprisonment. Trice failed to file post-

sentence motions, but filed a timely direct appeal. This Court affirmed his

judgment of sentence on July 8, 2011. Commonwealth v. Trice, 1932 WDA

2008 (Pa. Super. July 8, 2011). Trice did not petition our Supreme Court for

allowance of appeal.

      On June 11, 2012, Trice filed a pro se PCRA petition. The PCRA court

appointed counsel, who, on December 6, 2013, filed an amended petition

alleging the ineffectiveness of trial and appellate counsel. Following a hearing,

the PCRA court dismissed the amended petition. Trice timely appealed, and

on   November     15,   2015,   we   affirmed   the   PCRA    court’s   decision.

Commonwealth v. Trice, 1321 WDA 2014 (Pa. Super. Nov. 2, 2015)


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(unpublished memorandum). Our Supreme Court denied Trice’s petition for

allowance of appeal on March 22, 2016. Commonwealth v. Trice, 134 A.3d

56 (Pa. 2016) (Table).

       Trice filed a second pro se petition on January 29, 2018, prompted by

Damile Qui Mitchell (Damile)—Dejuan’s cousin and Trice’s fellow inmate at SCI

Albion1—handing Trice a sworn affidavit, in which Damile took responsibility

for the shooting at the Cardamones’ house. See PCRA Petition, 1/29/18, at 3

(asserting relief based on Dimile’s affadavit); see also Affidavit, 1/11/18, at

1 (“It was I, Damile Qui Mitchell[,] who shot those 3 people in that house in

West[ M]ifflin, not [Trice.]”). The affidavit, however, named Trice as Damile’s

co-conspirator.     See id. (“We went to the back door and Caesar started

knocking and no one answered. He then kicked in the glass that was on the

door to unlock it. Then that’s when we went in.”).

       The PCRA court appointed counsel, who filed an amended PCRA petition

on June 18, 2018. The PCRA court held a hearing on February 26, 2019 at

which Damile was the lone witness.             Damile testified he had not had any

contact with Trice prior to preparing the affidavit. At the hearing, Damile’s

testimony deviated slightly from the version of events in his affidavit.       He

claimed Trice never entered the Cardamones’ house, though he confirmed




____________________________________________


1Damile was sentenced to a lifetime term of incarceration for an unrelated
murder conviction.

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Trice was present. See N.T. PCRA Hearing, 2/26/13, at 19–20 (stating Trice

remained outside Cardamone’s house while Damile and Dejuan entered).

        On April 24, 2019, the PCRA court dismissed the petition as untimely,

concluding Trice failed to plead and prove an exception to the PCRA time bar.

Trice timely appealed. Both Trice and the PCRA court complied with Pa.R.A.P.

1925.

        Trice raises the following claims for our review:

        1)    Whether the PCRA [c]ourt erred in concluding that the PCRA
              [p]etition was untimely and that [the PCRA court] lacked
              jurisdiction, where [Trice] filed his [p]etition within sixty
              days of receiving an exculpatory affidavit from the actual
              shooter establishing [Trice’s] innocence[,] where this
              exculpatory information and testimony was completely
              unavailable until after the affidavit and its exculpatory
              information had been delivered to [Trice] by the affiant[,]
              and where there was no lack of due diligence[?]

        2)    Whether the PCRA [c]ourt erred in concluding that
              [Damile’s] testimony did not constitute after[-]discovered
              evidence where it was discovered after trial and could not
              have been obtained prior to trial by the exercise of
              reasonable diligence[,] it was not merely corroborative or
              cumulative[,] it would not be used solely for impeachment
              purposes, and it is of such an exculpatory nature that a
              different verdict would likely result if a new trial were
              granted[?]

Brief of Appellant, at 6.

        Generally, a petition for relief under the PCRA must be filed within one

year of the date the judgment of sentence becomes final unless the petitioner

alleges, and proves, an exception to the time for filing the petition, set forth




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at 42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).2 A PCRA petition invoking one

of these statutory exceptions must “be filed within 60 days of the date the

claims could have been presented.” See Commonwealth v. Hernandez, 79

A.3d 649, 651-52 (Pa. Super. 2013) (citations omitted); see also 42

Pa.C.S.A. § 9545(b)(2).3

        Trice’s judgment of sentence became final on August 8, 2011 when the

period for seeking review with our Supreme Court ended. See 42 Pa.C.S.A.


____________________________________________


2   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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), (ii), and (iii).

3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. As discussed further supra, Trice’s asserted
grounds for relief, that Damile was the actual shooter, is a claim which could
have been presented at trial in July of 2008; consequently, the 60-day limit
applies.



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§ 9545(b)(3) (“[A] judgment becomes final at the conclusion of direct review,

including discretionary review in . . . the Supreme Court of Pennsylvania, or a

the expiration of time for seeking the review.”); see also Pa.R.A.P. 1113(a)

(allowing 30 days from entry of order to file petition for allowance of appeal

with Pennsylvania Supreme Court); see also 1 Pa.C.S.A. § 1908 (omitting

last day from computation period when it falls on weekend or holiday).

Therefore, Trice had one year, until August 8, 2012, to file a timely PCRA

petition.    Trice’s instant petition, filed on January 29, 2018, is facially

untimely. Unless Trice can plead and prove the application of an enumerated

exception to the PCRA time bar, no court has jurisdiction to address the merits

of his claim. See Hernandez, supra at 651-52.

       Trice asserts his claims fall under the newly-discovered evidence

exception. See Brief of Appellant, at 22 (citing Section 9545(b)(1)(ii)). We

have previously expounded on Section 9545(b)(1)(ii)4 as follows:

____________________________________________


4 We note with disfavor that both the PCRA court and the Commonwealth
mistakenly apply the four-factor test for obtaining PCRA relief on the merits
as dictated by 42 Pa.C.S.A. § 9543(a)(2)(vi), and not the two-factor test for
determining whether the PCRA court has jurisdiction to hear a facially untimely
PCRA petition under Section 9545(b)(1)(ii). See Pa.R.A.P. 1925(a) Opinion,
7/15/19, at 8–9 (citing incorrect four-factor test); see also Brief of Appellee,
at 17 (citing incorrect four-factor test).

Our Supreme Court noted the distinction between the two tests as follows:

       When considering a claim seeking to invoke section
       9545(b)(1)(ii), the petitioner must establish only that (1) the facts
       upon which the claim was predicated were unknown and (2) they



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____________________________________________


       could not have been ascertained by the exercise of due diligence.
       We have unequivocally explained that the exception set forth in
       subsection (b)(1)(ii) does not require any merits analysis of the
       underlying claim. Rather, the exception only requires a petitioner
       to prove that the facts were unknown to him and that he exercised
       due diligence in discovering those facts.

       Once jurisdiction has been properly invoked (by establishing
       either that the petition was filed within one year of the date
       judgment became final or by establishing one of the three
       exceptions to the PCRA’s time bar), the relevant inquiry becomes
       whether the claim is cognizable under the PCRA. Section 9543,
       titled “[e]ligibility for relief,” governs this inquiry. Among other
       requirements not pertinent to this appeal, section 9543 delineates
       seven classes of allegations that are eligible for relief under the
       PCRA. Of relevance here is the “after-discovered evidence”
       provision, which states that a claim alleging “the unavailability at
       the time of trial of exculpatory evidence that has subsequently
       become available and would have changed the outcome of the
       trial if it had been introduced” is cognizable under the PCRA. 42
       Pa.C.S.A. § 9543(a)(2)(vi). To establish such a claim, a petitioner
       must prove that (1) the evidence has been discovered after trial
       and it could not have been obtained at or prior to trial through
       reasonable diligence; (2) the evidence is not cumulative; (3) it is
       not being used solely to impeach credibility; and (4) it would likely
       compel a different verdict.

       A comparison of this four[-]factor test to the two[-]factor section
       9545(b)(1)(ii) timeliness exception test reveals a superficial
       resemblance, as both involve consideration of whether the facts
       or evidence upon which the claim is based were previously
       unknown to the petitioner and whether that information could
       have been discovered earlier, through the exercise of due
       diligence. Indeed, the section 9545(b)(1)(ii) timeliness test
       appears to be encompassed within the first factor of the section
       9543(a)(2)(vi) eligibility test. [We have] cautioned against the
       conclusion that there is an overlap between these provisions and
       reiterated that they remain distinct inquiries.

Commonwealth v. Cox, 146 A.3d 221, 227–30 (Pa. 2016) (some citations
and quotations omitted).

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     The newly[-]discovered facts exception, Section 9545(b)(1)(ii),
     relates to whether a court has jurisdiction to consider an untimely
     petition. It does not require a merits analysis. A petitioner
     satisfies the newly[-]discovered facts exception when the
     petitioner pleads and proves[:] (1) the facts upon which the claim
     is predicated were unknown[;] and (2) could not have been
     ascertained by the exercise of due diligence.

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. Super. 2018) (citations and

quotations omitted).

     Due diligence demands petitioners take reasonable steps to protect their

own interests.   See Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.

Super. 2001). “This rule is strictly enforced.” Commonwealth v. Monaco,

996 A.2d 1076, 1080 (Pa. Super. 2010). “The focus of the exception is on the

newly[-]discovered facts, not on a newly[-]discovered or newly willing source

for previously known facts.” Commonwealth v. Marshall, 947 A.2d 714,

720 (Pa. 2008). This Court will not grant relief under section 9545(b)(1)(ii)

where the ostensible “newly[-]discovered” evidence comes in the form of a

witness offering facts which were previously known to the petitioner at the

time of trial and left unexamined. See Commonwealth v. Johnson, 945

A.2d 185, 190–91 (Pa. Super. 2008) (declining to apply section 9545(b)(1)(ii)

where petitioner offered facts concerning his dealings with co-conspirator

which did not offer new information); and compare Commonwealth v.

Brown, 111 A.3d 171, 178 (Pa. Super. 2015) (finding petitioner failed to

exercise due diligence where he “made no claim that he attempted to contact

[the purported exculpatory witness] at any point since trial to determine


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whether [the witness] had any information regarding the day of the

shooting.”) with Hart, supra at 841 (finding petitioner properly invoked

section 9545(b)(1)(ii) where petitioner did not know of the existence of letters

not disclosed by Commonwealth during discovery and asserted letters could

not have been obtained through due diligence as they were stored in restricted

access files.).

      Whether one credits the facts gleaned from Damile’s affidavit or his

testimony—sources which offer an inconsistent account insofar as whether

Trice entered the Cardamones’ house—Trice’s evidence unequivocally places

him with Damile at the Cardamones’ house during the shootings.             See

Affidavit, 1/11/18, at 1 (“We went to the back door and Caesar started

knocking and no one answered. He then kicked in the glass that was on the

door to unlock it.   Then that’s when we went in.”); see also N.T. PCRA

Hearing, 2/26/13, at 19–20 (stating Trice remained outside the Cardamone’s

house while Damile and Dejuan entered).       Trice’s argument, that Damile’s

role in the shootings was previously unknown to him, is, therefore, on its own

terms, nonsensical. See Brief of Appellant, at 22 (“The exculpatory evidence

was completely unavailable until after the affidavit was made public by

[Damile] handing [the affidavit] to Trice. . . . The affidavit averred new facts

including that it was solely Mitchell who had shot the three victims inside the

house[.]”). As Trice pleaded facts which were previously known to him and

were discoverable with the exercise of due diligence, he cannot circumvent


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the PCRA’s time bar under Section 9545(b)(1)(ii). See Johnson, supra at

190–91; see also Brown, supra at 178.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/2020




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