J-S59007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTONIO MOLINA,

                            Appellant                 No. 2602 EDA 2016


              Appeal from the PCRA Order Entered August 1, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005971-2000


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED NOVEMBER 15, 2017

        Appellant, Antonio Molina, appeals from the post-conviction court’s

order denying, as untimely, his fourth petition filed under the Post

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

review, we affirm.

        This Court previously summarized the facts and procedural history of

Molina’s case, as follows:

               In January 1993, Molina, the leader of a small drug ring in
        Philadelphia, hired a “hit man” to murder the victim, whom
        Molina believed had robbed and shot him a few months earlier.
        One of the individuals who had sold drugs for Molina, Mariano De
        Los Santos (“De Los Santos”), testified on behalf of the
        Commonwealth at Molina’s trial. Specifically, De Los Santos
        testified to overhearing Molina’s negotiations with a hit man
        concerning the planned murder. Additionally, Ramon Guaba
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      (“Guaba”), a Commonwealth witness, testified to overhearing a
      similar conversation. The victim was shot to death on January
      21, 1993, and Molina paid the hit man $5,000 after confirming
      that the victim was dead.

             In September 2002, the matter proceeded to a non-jury
      trial, at the close of which the trial court found Molina guilty of
      first-degree murder and criminal conspiracy. The trial court
      sentenced Molina to life in prison. This Court affirmed the
      judgment of sentence, after which the Pennsylvania Supreme
      Court denied allowance of appeal. See Commonwealth v.
      Molina, 847 A.2d 759 (Pa. Super. 2004) (unpublished
      memorandum), appeal denied, 864 A.2d 529 (Pa. 2004).

             In the following years, Molina filed two pro se PCRA
      Petitions, both of which were dismissed, and the dismissals were
      affirmed on appeal. See Commonwealth v. Molina, 932 A.2d
      259 (Pa. Super. 2007) (unpublished memorandum), appeal
      denied, 937 A.2d 444 (Pa. 2007); Commonwealth v. Molina,
      60 A.3d 847 (Pa. Super. 2012) (unpublished memorandum),
      appeal denied, 63 A.3d 775 (Pa. 2013).

Commonwealth v. Molina, No. 2347 EDA 2014, unpublished memorandum

at 1-2 (Pa. Super. filed March 30, 2015).

      On August 16, 2013, Molina filed a third, pro se PCRA petition, which

was subsequently denied by the PCRA court as being untimely filed.          This

Court affirmed on appeal, and our           Supreme Court denied Molina’s

subsequent petition for allowance of appeal.        See Commonwealth v.

Molina, 120 A.3d 1065 (Pa. Super. 2015) (unpublished memorandum),

appeal denied, 120 A.3d 1065 (Pa. 2015).

      On August 31, 2015, Molina filed his fourth, pro se PCRA petition,

which underlies the present appeal. On April 8, 2016, the PCRA court issued

a Pa.R.Crim.P. 907 notice of its intent to dismiss Molina’s petition, to which

Molina filed a timely response. Nevertheless, on August 1, 2016, the PCRA


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court issued an order, and accompanying opinion, dismissing Molina’s

petition as being untimely filed.

      Molina filed a timely, pro se notice of appeal. It does not appear that

the PCRA court ordered him to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.     Herein, Molina raises one issue for our

review:

      The [PCRA] court abused it’s [sic] discretion when it dismissed
      [Molina’s] PCRA petition that presented solid proof that [Molina]
      was convicted as a result of a deal that the “star” witness made
      with the District Attorney [sic] Office to testify against [Molina]
      to alleged facts that were fabricated and manufactured for the
      sole purpose of winning a conviction against the petitioner. The
      solid evidence is attached to the PCRA at issue here. There
      cannot be any excuse for dismissing the PCRA petition in this
      instant matter.

Molina’s Brief at 3A (unnecessary capitalization and emphasis omitted).

      This Court’s 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 must begin by addressing the

timeliness of Molina’s petition, because the PCRA time limitations implicate

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

the merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded to address the merits of the petition). Under

the PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

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sentence becomes final, unless one of the following exceptions set forth in

42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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. § 9545(b)(1)(i)-(iii).   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, Molina does not dispute that his current PCRA petition is facially

untimely. In an effort to overcome the jurisdictional time-bar, Molina argues

that he meets the after-discovered fact exception of section 9545(b)(1)(ii).

His claim is premised on a sworn affidavit from De Los Santos, in which De

Los Santos states, in pertinent part and verbatim, the following:

      I testified on a trial in the commonwealth of the city of
      Pennsylvania, United States of America, in the month of


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     September 2002, against of Mr. Antonio Molina. In said
     testimony I was accompanied by the defendant ROMAN GUABA,
     which has secured ‘me that if we testify against of ANTONIO
     MOLINA, our sentence were going to be reduce and soon we will
     go to our house in our country, the prosecution office in charge
     of the trial promise.

     Today free in my country, I feel in jail because of my conscience,
     because I know that ROMAN GUABA and I LIE just to get out of
     jail. Before the man and before God I certify that I lie. I
     regretted and I swear that the testimony against of Mr.
     ANTONIO MOLINA issue on September 2002, was false,
     therefore I request forgiveness to God, to Molina and to the
     American Justice.

     I am sending this testimony to Antonio Molina….

     In the city of Santo Domingo, Dominican Republic, at the ten
     (10) days of May 2015.

Molina’s PCRA Petition, 8/31/15, at Appendix D (emphasis in original).

     Preliminarily, we conclude that Molina raised his claim regarding De

Los Santos’s affidavit within 60 days of when he could have first presented it

following his receipt of that affidavit. Molina attached to his PCRA petition

mail forms indicating that De Los Santos’s affidavit was mailed from the

Dominican Republic – where De Los Santos resides – on May 26, 2015. See

Molina’s PCRA Petition at Appendix C. In May of 2015, Molina’s appeal from

the denial of his third PCRA petition was still pending; specifically, Molina

was awaiting a decision by our Supreme Court on his petition for allowance

of appeal from this Court’s March 30, 2015 decision. It was not until August

10, 2015, that our Supreme Court denied Molina’s petition for allowance of

appeal.   Molina then filed his current PCRA petition on August 31, 2015,

within 60 days of when he could have first done so. See Commonwealth



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v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding “that when an appellant’s

PCRA petition is pending before a court, a subsequent PCRA petition cannot

be filed until the resolution of review of the pending PCRA petition by the

highest state court in which review is sought, or the expiration of time for

seeking such review”; if the subsequent petition is not filed within one year

of the date that the judgment of sentence became final, it “must also be

filed within 60 days of the date of the order which finally resolves the

previous PCRA petition, because this is the first ‘date the claim could have

been presented’”) (footnote omitted; quoting 42 Pa.C.S. § 9545(b)(2)).1

       Nevertheless, we are compelled to conclude that Molina has not met

the after-discovered fact exception based on De Los Santos’s affidavit. That

exception “has two components, which must be alleged and proved.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

       Namely, the petitioner must establish that: 1) the facts upon
       which the claim was predicated were unknown and 2) could not
       have been ascertained by the exercise of due diligence. If the
       petitioner alleges and proves these two components, then the
       PCRA court has jurisdiction over the claim under this subsection.

____________________________________________


1 We recognize that Molina also attempted to assert his claim based on De
Los Santos’s affidavit before our Supreme Court denied his petition for
allowance of appeal. In particular, Molina attached to his current PCRA
petition evidence that, after he received De Los Santos’s affidavit, he filed
with our Supreme Court a “Petition for Leave of the Court to Allow New
Evidence[,]” asking the Court to consider the affidavit. Our Supreme Court
denied that petition on August 10, 2015, in the same order denying Molina’s
petition for allowance of appeal. See Molina’s PCRA Petition at Appendix G
(Per Curiam order by our Supreme Court).



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Id. at 176-77 (citation omitted).       This Court has declared “that the due

diligence inquiry is fact-sensitive and dependent upon the circumstances

presented.” Commonwealth v. Burton, 121 A3d 1063, 1070 (Pa. Super.

2015) (en banc). The Burton panel further 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 relief. We shall strictly enforce

this requirement.” Id. at 1071 (citations omitted).

      Here, we are constrained to conclude that Molina did not plead

sufficient facts to demonstrate that he acted with due diligence in obtaining

De Los Santos’s affidavit.      In support of this conclusion, we stress that in

Molina’s first PCRA petition filed in October of 2004, he presented an

affidavit from Alfredo Colon, De Los Santos’s former cellmate, in which Colon

stated that, prior to Molina’s trial, De Los Santos told Colon that he (De Los

Santos) planned to falsely implicate Molina in the murder. On appeal from

the PCRA court’s denial of this petition, we concluded that Colon’s statement

was inadmissible hearsay and, thus, we affirmed. See Commonwealth v.

Molina, No. 1365 EDA 2006, unpublished memorandum at 9-11 (Pa. Super.

filed July 17, 2007).

      Then, on August 16, 2013, Molina filed his third PCRA petition, again

alleging   newly   discovered    evidence    involving   De   Los   Santos’s   false

testimony. Specifically, Molina presented a document that he had obtained

from the U.S. Citizenship and Immigration Services (USCIS), which

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ostensibly memorialized statements made by De Los Santos to a USCIS

employee. De Los Santos allegedly told the employee that he knew nothing

about the murder, and that he had only told the police what they wanted to

hear.    De Los Santos also told the USCIS employee that Guaba told him

what to say to the police. The PCRA court denied Molina’s petition, stressing

that he did not submit any affidavit from De Los Santos or Guaba indicating

that they were recanting their testimony. Again, this Court affirmed. See

Commonwealth v. Molina, No. 2347 EDA 2014, unpublished memorandum

(Pa. Super. filed March 30, 2015).

        Now, Molina again asserts that De Los Santos fabricated his trial

testimony, and that he has new evidence to prove this fact – De Los

Santos’s affidavit. The Commonwealth, however, contends that Molina has

        failed to satisfy his burden of establishing that he acted with due
        diligence in obtaining his purported ‘new facts.’ [Molina] has
        been presenting claims that [] De Los Santos recanted for over a
        decade. This provided [Molina with] ample opportunity, and
        motivation, to seek out De Los Santos and request his
        assistance, either on his own, through friends and family, or
        through two attorneys who represented him in litigating his first
        and [third] PCRA petitions. Due diligence does not permit a
        defendant to sit back and wait for evidence to appear; he must
        instead “take reasonable steps to protect his own interests.”
        Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super.
        2010). Yet [Molina] has failed to set forth any specific steps he
        or his representatives took to contact [] De Los Santos.
        [Molina’s] inaction does not reflect reasonable diligence.

Commonwealth’s Brief at 15-16 (emphasis in original; some citations

omitted).




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        We are compelled to agree with the Commonwealth.        Molina clearly

knew, as early as 2004, that De Los Santos admitted that he fabricated his

trial testimony. Additionally, in regard to the alleged deal between De Los

Santos and the Commonwealth, De Los Santos admitted at Molina’s trial that

he hoped his cooperation with the Commonwealth would earn him an early

release from an unrelated prison sentence he was then serving.            See

Commonwealth v. Molina, No. 3188 EDA 2002, unpublished memorandum

at 8.     De Los Santos’s testimony should have at least triggered Molina’s

suspicion that De Los Santos had received a deal from the Commonwealth in

exchange for his testimony. Despite Molina’s knowing about De Los Santos’s

possible deal and recantation as early as 2002 and 2004, respectively,

Molina did not produce an affidavit from De Los Santos until 2015.

        Problematically, Molina did not explain in his PCRA petition, nor does

he discuss on appeal, what specific efforts he took to obtain De Los

Santos’s affidavit during this lengthy time period. For instance, in Molina’s

petition, he made bald assertions that he “diligently tried to have [De Los]

Santos contacted … for the sole purpose of telling the truth. But [De Los]

Santos has consistently refused to engage in ‘any’ conversation or in any

communication with either [Molina] or his representatives.” Molina’s PCRA

Petition, 8/31/15, at 3-4.        Molina did not state when he or his

‘representatives’ attempted to contact De Los Santos, how they tried to do

so, or who specifically attempted to communicate with De Los Santos on his

behalf.

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      Molina’s most developed discussion of his attempts to contact De Los

Santos was set forth in his response to the PCRA court’s Rule 907 notice, in

which Molina stated:

      I was never able to obtain [De Los] Santos’s retraction/affidavit
      from him. I had no contact with him. I am in prison and I can’t
      make phone calls to him.          I took a chance and I kept
      asking/begging people to “try” and contact [De Los] Santos and
      to ask him if he would tell the truth. I had heard a rumor that
      he had turned his life over to JESUS and was a devoted follower
      of JESUS’S teachings and a devout Christian. I kept trying to
      get someone – anyone – to please contact him and ask him to
      tell the truth, about this case. []Finally, I was able to get some
      help. People who believed that I was telling the truth that I am
      actually innocent and was wrongfully convicted. I had nothing to
      do with the murder of the decedent. NOTHING AT ALL!

      Remember, for years I was trying to get someone to help me. I
      was bankrupted because of my arrest and conviction. Since
      coming to prison, I have been a … WARD of the Commonwealth.
      BROKE – and A PAUPER. I had no way of hiring someone to
      travel to the Dominican Republic and contact [De Los] Santos. I
      am in prison. I am alone here and in spite of all that I never
      stopped trying to get someone to help me and for someone to go
      to [De Los] Santos and ask him to “just tell the truth” – nothing
      more and nothing less.

      …

      Finally, I was able to get help and now [De Los] Santos was
      contacted and he provided an affidavit.

Molina’s Response to Rule 907 Notice, 6/20/16, at 3-4 (emphasis in

original).

      Again, Molina at no point clarified, in his Rule 907 response, precisely

when he heard the ‘rumor’ that De Los Santos had become a Christian and

was now willing to recant; who tried to contact De Los Santos on Molina’s

behalf, how they attempted to do so, and when those efforts were made;

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and/or who was finally able to convince De Los Santos to draft the affidavit,

and when that communication occurred.          Molina also does not offer such

information in his brief to this Court.

      Without a more detailed explanation of exactly what efforts Molina

took over the last decade to obtain De Los Santos’s affidavit - and further

specifics about how he was finally able to do so - we simply cannot conclude

that Molina exercised due diligence in obtaining that new evidence.

Therefore, Molina’s claim that he has satisfied the timeliness exception of

section 9545(b)(1)(ii) fails.

      Order affirmed.

      Judge Ott joins this memorandum.

      Justice Fitzgerald notes his dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2017




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