J-S11021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellee

                  v.

FRANCISCO PEREZ

                       Appellant                 No. 1394 MDA 2014


               Appeal from the PCRA Order July 25, 2014
             In the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0003313-2000
_____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellee

                  v.

FRANCISCO PEREZ

                       Appellant                 No. 1395 MDA 2014


                Appeal from the PCRA Order July 25, 2014
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0003314-2000

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                             FILED JUNE 02, 2015

     Francisco Perez appeals pro se from the consolidated order entered in

the Berks County Court of Common Pleas, dated July 25, 2014, dismissing
J-S11021-15


his serial petition filed under the Post-Conviction Relief Act (“PCRA”)1 as

untimely.2 Perez seeks relief from the judgment of sentence of an aggregate

34½ to 73 years’ imprisonment imposed on March 15, 2001, following his

jury conviction for numerous crimes, including attempted first-degree

murder and four counts of aggravated assault.3          Because we agree the

petition is untimely, we affirm.

       Perez’s convictions for attempted murder and related offenses arose

from the shooting of a man who had stolen from him a large sum of cash

that was intended for purchasing drugs.          The PCRA court set forth the

relevant procedural history as follows:

             Following a jury trial held March 13, 2001, through March
       15, 2001, [Perez] was found guilty under Docket No. 3313-2000
       of one (1) count of Attempted First Degree Murder,1 four (4)
       counts of Aggravated Assault,2 one (1) count of Firearms Not to
       be Carried Without a License,3 two (2) counts of Recklessly
       Endangering Another Person,4 four (4) counts of Simple Assault,5
       and one (1) count of Possession of a Weapon.6 The Court also
       found [Perez] guilty of one (1) count of Persons Not to Possess
       or Use Firearms.7 Under Docket No. 3314-2000,8 the Court
       found [Perez] guilty of one (1) count [of] Terroristic Threats9 and
       one (1) count of Flight to Avoid Apprehension, Trial or
       Punishment.10
          1
              18 [PA.C.S.] § 901(a), 2502(a).
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
  As will be discussed in more detail in the factual history, we note the two
matters were tried together, and the PCRA court disposed of them in one
order.
3
    18 Pa.C.S. §§ 901(a), 2502(a), 2702(a)(1), (4), respectively.



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       2
            18 [PA.C.S.] § 2702(a)(1), (4)[.]
       3
            18 [PA.C.S.] § 6106(a).
       4
            18 [PA.C.S.] § 2705.
       5
            18 [PA.C.S.] § 2701(a)(1), (3).
       6
            18 [PA.C.S.] § 907(b).
       7
         18 [PA.C.S.] § 6105(a). This count was severed prior to
       the start of the jury trial and decided by the Court after
       [Perez] waived his right to a jury trial on this charge.
       8
         The Court also found [Perez] guilty of one (1) count of
       Possession with Intent to Deliver a Controlled Substance,
       35 P.S. § 780-113(a)(30), and one (1) count of Possession
       of a Controlled Substance, 35 P.S. § 780-113(a)(16).
       However, these charges were later nolle prossed by the
       Commonwealth on February 18, 2004.
       9
            18 [PA.C.S.] § 2706(a).
       10
            18 [PA.C.S.] § 5126(a).

           [Perez] was sentenced to an aggregate term of thirty-four
     and a half (34½) to seventy-three (73) years of incarceration.
     Specifically, [Perez] was sentenced to serve no less than twenty
     (20) to no more than forty (40) years on the Attempted First
     Degree Murder count. [Perez] was also ordered to serve a
     consecutive term of no less than seven and a half (7½) to no
     more than fifteen (15) years on one of the Aggravated Assault
     counts. Additionally, [Perez] was sentenced to serve no less
     than one (1) to no more than three (3) years on the Firearms
     Not to be Carried Without a License and Possession of a Weapon
     counts. These sentences were ordered to be served concurrently
     with the sentence imposed on the Aggravated Assault count.
     [Perez] was sentenced to an additional five (5) to ten (10) years
     on the Persons Not to Possess or Use Firearms count. Under
     Docket No. 3314-2000, [Perez] was ordered to serve no less
     than one (1) to no more than five (5) years on the Terroristic
     Threats count.      This sentence is to be completed at the
     expiration of the sentence imposed on the Persons Not to

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J-S11021-15


       Possess or Use Firearms conviction.       Lastly, [Perez] was
       sentenced to serve a consecutive one (1) to three (3) years on
       the Flight to Avoid Apprehension, Trial or Punishment count.
       [Perez] was represented at trial and sentencing by William
       Bispels, Esquire.

            On April 12, 2001, [Perez] filed a pro se Notice of Appeal,
       and the Court appointed Gail Chiodo, Esquire, on May 1, 2001,
       to represent [Perez] in the pursuit of a direct appeal. The
       Pennsylvania Superior Court affirmed [Perez]’s judgment of
       sentence by Memorandum dated October 3, 2002.11
          11
                The Superior Court vacated [Perez]’s drug-related
          convictions on jurisdictional grounds. The Commonwealth
          filed [a] Petition for Allowance of Appeal (“PAA”) in the
          Pennsylvania Supreme Court on November 1, 2002. The
          Supreme Court granted the Commonwealth’s PAA on
          December 2, 2003, and reversed the Superior Court’s
          order as it related to the drug-related convictions.
          Because the Commonwealth later decided to nolle pross
          [Perez]’s drug-related charges, this has no bearing on the
          present PCRA petition. [Perez also filed a PAA, which the
          Supreme Court denied on December 2, 2003].

PCRA Court Opinion, 6/26/2014, at 1-3.

       Since then, Perez has filed five petitions under the PCRA. 4     None of

these petitions has provided Perez any relief.5 Perez filed the present pro se

PCRA petition, his sixth, on April 28, 2014.       After determining that the

petition was untimely, the PCRA court notified Perez of its intent to dismiss
____________________________________________


4
    See PCRA Court Opinion, 6/26/2014, at 3 (chart).
5
   In his most recent appeal, a panel of this Court affirmed the dismissal of
Perez’s fifth petition for relief because it was untimely and he failed to allege
any exception to the time limitation of the PCRA. See Commonwealth v.
Perez, 55 A.3d 124 [34 MDA 2012] (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 57 A.3d 69 (Pa. 2012), cert. denied, 133 S.
Ct. 1728 (U.S. 2013).



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the petition without a hearing on June 26, 2014.      See Pa.R.Crim.P. 907.

Perez filed a response to the Rule 907 notice on July 21, 2014. On July 25,

2014, after considering Perez’s response, the PCRA court dismissed his

petition. This pro se appeal followed.6

       “Crucial to the determination of any PCRA appeal is the timeliness of

the underlying petition. Thus, we must first determine whether the instant

PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

       The PCRA timeliness requirement … is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
       1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
       petition’s untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013).               A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S. § 9545(b)(1). 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 review.” 42 Pa.C.S. § 9545(b)(3). Here, our

review of the record reveals the Pennsylvania Supreme Court denied Perez’s
____________________________________________


6
    On August 21, 2014, the PCRA court ordered Perez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Perez filed a concise statement on September 8, 2014. The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 11, 2014,
adopting its June 26, 2014, opinion.



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PAA on December 2, 2003. See Commonwealth v. Perez, 839 A.2d 351

(Pa. 2003) (per curiam). Therefore, Perez’s judgment of sentence became

final on March 2, 2004, 90 days after the Pennsylvania Supreme Court

denied his petition for allowance of appeal and the time for filing a petition

for review with the United States Supreme Court expired. See 42 Pa.C.S. §

9545(b)(3); U.S.Sup.Ct.R. 13. As such, any PCRA petition had to be filed by

March 2, 2005. Perez did not file the present PCRA petition until April 28,

2013. Accordingly, Perez’s petition is patently untimely.

      Nevertheless, an untimely PCRA petition may be considered if one of

the following three 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. § 9545(b)(1)(i-iii). Furthermore, a PCRA petition alleging any of

the exceptions under Section 9545(b)(1) must be filed within 60 days of

when the PCRA claim could have first been brought. 42 Pa.C.S. §

9545(b)(2).




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J-S11021-15


      The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned
      those facts earlier by the exercise of due diligence.
      Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
      1271 (2007). Due diligence demands that the petitioner take
      reasonable steps to protect his own interests. Commonwealth
      v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner
      must explain why he could not have learned the new fact(s)
      earlier with the exercise of due diligence. Commonwealth v.
      Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001);
      Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super.
      2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). This
      rule is strictly enforced. Id. Additionally, the focus of this
      exception “is on the newly discovered facts, not on a newly
      discovered or newly willing source for previously known facts.”
      Commonwealth v. Marshall, 596 Pa. 587, 596, 947 A.2d 714,
      720 (2008) (emphasis in original).

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

      In his sole issue on appeal, Perez argues the PCRA court erred in

dismissing his petition without conducting a hearing because his argument

meets the exception found in Section 9545(b)(1)(ii) regarding newly-

discovered facts.. Specifically, Perez contends that in February 2014, he re-

established contact with Ivette Cepeda, his girlfriend at the time of trial, and

she informed him that, while in the courtroom prior to the commencement of

his 2001 trial, one of the victims, Herbert Deibert, admitted to Cepeda that

he did not recognize Perez and then left the courtroom with the prosecuting

officers. See Perez’s Brief at 8-11. Perez avers “Cepeda’s affidavit raises a

genuine issue of material fact with respect to whether Herbert Diebert’s

identification of [Perez] was the result of police misconduct, i.e., Michael

Gombar and Christopher Santoro of the Reading Police Department, who

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influenced Diebert’s testimony in favor of guilt by directly identifying [Perez]

for Diebert.”   Id. at 11.     Perez alleges that although Cepeda was his

girlfriend at the time, she did not convey this information to him, and that as

soon as he was convicted, Cepeda disappeared and it took him over a

decade to find her. Id. at 8. Moreover, he states he had no knowledge that

she knew such information and he was only trying to locate her because of

the child that they shared. Id.

      Here, the PCRA court found the following:

      Without addressing the credibility of Ms. Cepeda’s new
      statement, the Court believes that these facts could have been
      ascertained earlier by the exercise of due diligence. Since the
      time that Ms. Cepeda allegedly spoke with the victim in the
      courtroom, [Perez] has previously been represented by trial
      counsel, appellate counsel and PCRA counsel. If this claim had
      previously been presented, counsel could have searched for Ms.
      Cepeda on [Perez]’s behalf. Furthermore, as Ms. Cepeda was
      [Perez]’s girlfriend at the time of trial, [Perez] probably knew
      how to get into contact with her.           It is not a reasonable
      assumption that Ms. Cep[e]da would attend [Perez]’s trial, while
      she was still his girlfriend, learn that the victim could not identify
      him, and not share this information with [Perez] or his counsel.
      It has been more than thirteen (13) years since [Perez]’s trial.
      While the Court recognizes that [Perez] has been incarcerated
      since that time, [Perez] has not shown that he took any actions
      to learn these facts earlier than 2014.             This inaction is
      particularly concerning based on the fact that [Perez] has
      previously contested his identification. [Perez] has not shown
      that he could not have ascertained these facts earlier by the
      exercise of due diligence. Therefore, the Court does not believe
      that the § 9545(b)(1)(ii) exception excuses the untimely filing of
      [Perez]’s PCRA petition.

PCRA Court Opinion, 6/26/2014, at 7-8.




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       We agree with the court’s analysis. Moreover, of significance, we are

guided by the following: “[A] claim based on inadmissible hearsay does not

implicate” the Section 9545(b)(1)(ii) exception.   Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1269 (Pa. 2008), cert. denied, 555 U.S. 916 (2008).

       In Abu-Jamal, the defendant filed an untimely PCRA petition, in which

he attempted to invoke the Section 9545(b)(1)(ii) exception. In his petition,

the defendant asserted he received new evidence that a vital Commonwealth

witness, Priscilla Durham, had recanted her trial testimony implicating him in

the criminal acts.        To meet this burden, the defendant presented a

declaration by his fellow inmate, Kenneth Pate, who stated he had a phone

conversation with Durham, during which she admitted police had directed

her to falsely testify she heard the defendant confess to the crimes.     The

PCRA court dismissed the petition as untimely, and the defendant then

appealed directly to the Pennsylvania Supreme Court because he had been

sentenced to death.7

       In concluding the PCRA court properly found the defendant’s petition

was untimely and did not fall under the Section 9545(b)(1)(ii) exception, the

Supreme Court opined, in pertinent part:

       [The defendant] offers no explanation as to why Pate, who
       asserted he was aware of Durham’s alleged perjury in 1984, did
       not come forward with this information until nearly 20 years
       later. Thus, we cannot say [the defendant] raised his issues
____________________________________________


7
    See 42 Pa.C.S. § 9546(d).



                                           -9-
J-S11021-15


       regarding the applicability of [Section 9545(b)(1)(ii)] in a timely
       manner[.]

                                               …

       Because Pate’s testimony concerned an out-of-court statement
       by Durham relied upon for its truth, it was hearsay. See Pa.R.E.
       801(c) (hearsay is statement, other than one made by declarant
       while testifying at trial, offered in evidence to prove truth of
       matter asserted).        [The defendant] contends Durham’s
       statement to Pate was a statement against interest and is
       admissible under the hearsay exception in Pa.R.E. 804(b)(3).
       However, for this exception to apply, the declarant must be
       unavailable as a witness, see Pa.R.E. 804(b), and [the
       defendant] offers no proof Durham is not available. Therefore,
       Pate’s declaration was inadmissible hearsay and does not fall
       under § 9545(b)(1)(ii)’s timeliness exception.

Abu-Jamal, 941 A.2d at 1269-1270.

       Turning to the present matter, we find that Abu-Jamal is substantially

similar to this case. Perez attempts to invoke the “new facts” exceptions by

claiming that Deibert gave a statement to Cepeda prior to Perez’s trial, in

which he apparently admitted that he did not recognize Perez,8 and since

Cepeda disappeared directly after his trial, Perez avers he was not aware of

and he could not have discovered this information earlier with the exercise

of due diligence.       Because Cepeda’s affidavit concerned an out-of-court

statement by Deibert relied upon for its truth, it is hearsay. However, Perez

only presents Cepeda’s statements, without any proof that Deibert (the

declarant) is not available. See Pa.R.E. 804(b)(3). Likewise, he does not

____________________________________________


8
    See Affidavit of Ivette Cepeda, 2/28/2014.



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offer any corroborating evidence to indicate the trustworthiness of Deibert’s

statement.    See Pa.R.E. 804(b)(3)(B).      Furthermore, as indicated by the

PCRA court, Perez does not explain why Cepeda, who was apparently aware

of this falsification in 2001, did not come forward with this information until

over 13 years later. As such, Cepeda’s affidavit fails to satisfy the hearsay

exception set forth in Rule 804(b)(3).       Accordingly, Perez’s present PCRA

petition is based on inadmissible hearsay that cannot satisfy the “new facts”

timeliness exception pursuant to Section 9545(b)(1)(ii).     See Abu-Jamal,

supra.   Therefore, the PCRA court properly denied his petition, and we

affirm its July 25, 2014, order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




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