J-S82034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTHONY MICHAEL ROSE                     :
                                          :
                   Appellant              :   No. 929 WDA 2017

                 Appeal from the PCRA Order June 19, 2017
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0017880-2008


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTHONY MICHAEL ROSE                     :
                                          :
                   Appellant              :   No. 946 WDA 2017

                 Appeal from the PCRA Order June 22, 2017
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0017880-2008

BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                    FILED MARCH 15, 2018

     Anthony Michael Rose (Appellant) appeals from orders entered on June

19, 2017, and June 22, 2017, denying his petition filed pursuant to the




____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm, albeit

on a different basis from the PCRA court.1

       We begin with the PCRA court’s factual summary adopted by this Court

in Appellant’s appeal from the denial of his first PCRA petition.

              On August 25, 2008, at approximately 5:15 a.m., Doris
       Goldston, who runs a daycare out of her home, answered the bell
       at the back door of her home. She testified that [] Appellant
       identified himself as a police officer. He wore a shirt with the word
       “[s]ecurity” written on the chest and he was wearing a badge.1
       Ms. Goldston was suspicious and asked him his name and where
       his partner was. At that point, Appellant ran out the back door
       from which he had entered.
              ______
              1 Several of these shirts with “[s]ecurity” imprinted upon
              them were subsequently recovered from Appellant’s
              residence. A silver gun clip was also recovered from
              Appellant’s place of residence.

             On August 28, 2008, Appellant again went to the home of
       Ms. Goldston. He was in the same attire and asked her to let him
       in. She denied him entry, and Appellant left when Ms. Goldston
       threatened to call the police.

             Appellant a third time went to Ms. Goldston’s residence, this
       time on October 8, 2008. He wore the same black shirt with
       “security” across it and a badge in the right [corner] of the shirt.
       Appellant forced his way into the house, pointed a gun at Ms.
       Goldston, and said, “somebody is dying today.” He asked her
       “where’s the money?” He dragged her around and held a gun to
       her neck for approximately ten to fifteen minutes. After kicking
       him in the groin, she was eventually able to activate the security
       alarm, causing him to throw her to the floor and run out of the
       building.



____________________________________________


1 This Court may affirm a PCRA court’s decision “if there is any basis to support
it, even if we rely on different grounds to affirm.” Commonwealth v.
Williams, 35 A.3d 44, 47 (Pa. Super. 2011).

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            Wallace Goldston, Ms. Goldston’s fourteen-year-old
      grandson who resides with her, also testified that Appellant was
      in Ms. Goldston’s home on October 8, 2008. He testified that
      Appellant pointed a silver gun in his direction and said, “Don’t look
      at me.” He also said Appellant was wearing a shirt with the word
      “[s]ecurity” on it with a badge on the shirt. Mr. Goldston said he
      was scared and he feared for both his grandmother and for
      himself.

Commonwealth v. Rose, 82 A.3d 1065 (Pa. Super. 2013) (unpublished

memorandum) (citations omitted).

      Based on the incidents described above, a jury convicted Appellant of

one count of burglary and two counts of robbery - serious bodily injury. On

June 24, 2009, Appellant was sentenced to an aggregate term of 140 to 280

months’ imprisonment. This Court affirmed Appellant’s judgment of sentence,

and our Supreme Court denied Appellant’s petition for allowance of appeal on

July 12, 2011. Commonwealth v. Rose, 24 A.3d 445 (Pa. Super. 2011)

(unpublished memorandum), appeal denied, 24 A.3d 362 (Pa. 2011).

      Appellant timely filed his first PCRA petition in 2011. The PCRA court

dismissed the petition without a hearing on July 12, 2012. This Court affirmed

the dismissal on July 15, 2013, and our Supreme Court denied Appellant’s

petition for allowance of appeal on November 19, 2013. Commonwealth v.

Rose, 82 A.3d 1065 (Pa. Super. 2013) (unpublished memorandum), appeal

denied, 80 A.3d 776 (Pa. 2013).

      On December 23, 2014, Appellant filed a habeas corpus petition. The

PCRA court treated the habeas corpus petition as an untimely-filed PCRA

petition, and dismissed it without a hearing on March 27, 2015. Appellant,

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through his privately-retained counsel Eric A. Jobe, Esquire, filed a notice of

appeal on April 27, 2015. The appeal was docketed at 659 WDA 2015. On

January 29, 2016, this Court dismissed the appeal due to Attorney Jobe’s

failure to file a brief.

       On September 27, 2016, Appellant filed pro se the PCRA petition that is

the subject of this appeal. In the petition, inter alia, he averred that Attorney

Jobe was ineffective for failing to file a brief at 659 WDA 2015 and sought,

inter alia, reinstatement of his right to appeal the March 24, 2015 denial of

PCRA relief.     On September 29, 2016, the PCRA court set a deadline for

amendment of Appellant’s petition and appointed counsel on Appellant’s

behalf.

       After obtaining an extension of time to amend Appellant’s petition,

Appellant’s counsel filed an amended petition on December 29, 2016. The

amended petition alleged that Appellant was entitled to a new trial based upon

after-discovered evidence.         Specifically, Appellant claimed that a fellow

inmate, Devele Reid, claimed responsibility for the commission of the offenses

of which Appellant was convicted. PCRA Petition, 12/29/2016, at ¶¶ 14-16.

Appellant acknowledged that on its face his petition was untimely filed,2 but


____________________________________________


2 “For purposes of [the PCRA], a judgment becomes 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). Thus, Appellant’s
judgment of sentence became final on October 10, 2011, and he had one year,
or until October 10, 2012, to file timely a PCRA petition.

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asserted the applicability of the newly-discovered fact time-bar exception. Id.

at ¶ 17. See 42 Pa.C.S. § 9545(b)(1)(ii) (“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 … 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.”).     Appellant   averred    that   he   became   aware   of   Reid’s

acknowledgement of responsibility while his prior PCRA appeal was pending.

PCRA Petition, 12/29/2016, at ¶ 17. He further averred that he did not learn

that this Court had dismissed his appeal at 659 WDA 2015 until on or after

August 3, 2016, because Attorney Jobe had abandoned him. Id.

        Appellant attached two affidavits from Reid to his petition. See id. at

Exhibit A-2, A-15.    In the July 6, 2015 affidavit, Reid stated that he met

Appellant while incarcerated at SCI Fayette in July 2015, and after learning

the details of the crimes for which Appellant was convicted, Reid confessed to

Appellant that Reid was actually the one who committed such crimes. Id. at

Exhibit A-2.    In the September 30, 2016 affidavit, Reid elaborated on his

participation in the crimes for which Appellant was convicted. Id. at Exhibit

A-15.




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       On January 17, 2017, the PCRA court issued an order granting

Appellant’s petition and reinstating his appellate rights.3 Order, 1/17/2017.

On January 25, 2017, Appellant filed a motion for reconsideration, clarifying

that he was no longer seeking reinstatement of appellate rights based upon

Attorney Jobe’s ineffective assistance of counsel because it would prevent his

after-discovered evidence claim from being considered,4 and requesting that

the court review the after-discovered evidence claim on the merits. The next

day, the PCRA court granted Appellant’s motion for reconsideration and

vacated its January 17, 2017 order.5

       The PCRA court conducted a hearing on Appellant’s petition on June 13,

2017. Following the hearing, the PCRA court issued an order on June 19,

2017, indicating that it was dismissing Appellant’s petition as untimely filed


____________________________________________


3 The order also purported to reinstate Appellant’s post-sentence rights, which
Appellant had requested in his pro se petition along with his request for
reinstatement of his appellate rights. It is unclear why the PCRA court granted
this request, as Appellant averred that counsel did not abandon him until after
his appeal was filed.

4 A PCRA claim arising while a PCRA appeal is pending cannot be raised until
the resolution of review of the pending PCRA petition by the highest state
court in which review is sought, or upon the expiration of the time for seeking
such review, and the claim must be raised in a subsequent PCRA proceeding
commended within 60 days after the conclusion of the pending appeal.
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).

5 Appellant had filed a notice of appeal following the reinstatement of his
appellate rights, but withdrew it after the PCRA court vacated its January 17,
2017 order.



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because he did not meet what the court referred to as the “after-discovered

evidence timeliness requirement.”6 Order, 6/19/2017. The PCRA court issued

an amended order three days later, clarifying that it was dismissing

Appellant’s petition because it was untimely filed and Appellant failed to

establish the newly-discovered fact exception to the time bar pursuant to

subsection 9545(b)(1)(ii).

        Appellant timely filed one notice of appeal from the June 19, 2017 and

June 22, 2017 orders, and this Court docketed separate appeals from each

order.      Following Appellant’s application for consolidation, this Court

consolidated both appeals. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

          Appellant sets forth two issues on appeal.

        1. Whether the [PCRA court] erred in determining [Appellant’s]
           PCRA [petition] was untimely [filed] with respect to [his] after-
           discovered evidence claim?

        2. Whether [Appellant] is entitled to a new trial based upon the
           after-discovered evidence of Develle Reid who claims
           responsibility for the commission of the offenses of which
           [Appellant] was convicted in this matter?

Appellant’s Brief at 3 (PCRA court’s answers omitted).

        We begin our review by noting the relevant legal principles.           “This

Court’s standard of review regarding an order dismissing a petition under the

PCRA is whether the determination of the PCRA court is supported by evidence

of record and is free of legal error.” Commonwealth v. Weatherill, 24 A.3d
____________________________________________


6   As discussed infra, this terminology is incorrect.

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435, 438 (Pa. Super. 2011). Before a court may consider the merits of a

petition, the court must determine whether the petition was filed timely, as

the timeliness of a post-conviction petition is jurisdictional. Commonwealth

v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011) (quoting Commonwealth

v. Abu–Jamal, 941 A.2d 1263, 1267–68 (Pa. 2008) (“[O]ur Supreme Court

has stressed that ‘[t]he PCRA’s timeliness requirements are jurisdictional in

nature and must be strictly construed; courts may not address the merits of

the issues raised in a petition if it is not timely filed.’”)).

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming final,

or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b). The

statutory exception relevant to this appeal is the newly-discovered fact

exception which requires proof 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).

Furthermore, the petition “shall be filed within 60 days of the date the claim

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

      There is no dispute that Appellant’s September 27, 2016 PCRA petition

is facially untimely, as he had until October 10, 2012 to file a timely PCRA

petition. Thus, the dispute centers upon whether Appellant established the

newly-discovered fact exception in his petition.




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      Appellant argues he learned that Reid admitted to confessing the crimes

in May 2015, which was a newly-discovered fact he could not have ascertained

any earlier by the exercise of due diligence.      Appellant’s Brief at 17-18.

According to Appellant, he met Reid while the two were incarcerated at SCI

Fayette, and Reid told Appellant that Reid was the one who actually committed

the crimes for which Appellant was convicted. Id.

      Appellant contends he was unable to file his petition within 60 days of

learning about Reid’s admission because the appeal of the denial of his second

PCRA petition still was pending. Id. at 18-19. Appellant directs our attention

to Lark, in which our Supreme Court held that a claim arising while a PCRA

appeal is pending must be raised in a subsequent PCRA proceeding

commenced within 60 days after conclusion of the pending appeal. 746 A.2d

at 588. Although the appeal at 659 WDA 2015 was dismissed in January 2016,

Appellant argues that he was still unable to file the claim within 60 days of the

dismissal because his counsel abandoned him and did not notify him that the

appeal had been dismissed due to counsel’s failure to file a brief. Id. 19-23.

Appellant claims that after he told his counsel about Reid’s confession, his

counsel told him in June 2016 that they were in a “waiting game” for the PCRA

court to issue its opinion and then for the Superior Court to issue a briefing

schedule. Id. After not being able to get in touch with counsel for an extended

period of time, Appellant states that he wrote to this Court in July 2016 to

determine the status of his appeal, and after learning on or about August 1,


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2016, that this Court had dismissed his appeal, he filed a PCRA petition on

September 29, 2016. Id. Thus, Appellant asserts that he filed his claim within

60 days of the date when the claim could have been presented in satisfaction

of subsection 9545(b)(2). Id.

      The PCRA court’s first order dismissing the petition, issued on June 19,

2017, indicated that Appellant failed to establish the “after-discovered

evidence timeliness requirement” because the testimony of Reid was neither

credible nor persuasive and the “evidence was not of such a nature and

character that a different outcome was likely.” Order, 6/19/2017.

      Our Supreme Court has instructed courts to refer to the time-bar

exception at subsection 9545(b)(1)(ii) as the newly-discovered fact exception

to avoid confusing the exception with the after-discovered evidence eligibility-

for-relief provision set forth in subsection 9543(a)(2). Commonwealth v.

Burton, 158 A.3d 618, 628–29 (Pa. 2017). Our Supreme Court has explained

the difference between the two as follows.

      To qualify for an exception to the PCRA’s time limitations under
      subsection 9545(b)(1)(ii), a petitioner need only establish that the
      facts upon which the claim is based were unknown to him and
      could not have been ascertained by the exercise of due diligence.
      However, where a petition is otherwise timely, to prevail on an
      after-discovered evidence claim for relief under subsection
      9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory
      evidence has been discovered after trial and 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.




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Id. at 629. See also Commonwealth v. Brown, 111 A.3d 171, 178 (Pa.

Super. 2015) (“The substantive merits-based analysis [of the after-discovered

evidence claim] is more stringent than the analysis required by the ‘new facts’

exception to establish jurisdiction.”). When determining whether a petitioner

established a newly-discovered fact exception at subsection 9545(b)(1)(ii),

the PCRA court is not required to conduct a merits analysis of an underlying

after-discovered-evidence claim. Id. at 177. Thus, because the two analyses

are distinct, a petition may invoke jurisdiction via the newly-discovered fact

exception but fail on the merits of the underlying after-discovered evidence

claim.

      Here, in addition to using the wrong nomenclature, it is clear that the

PCRA court improperly conflated the analysis for the newly-discovered fact

exception with the analysis for the after-discovered evidence eligibility-for-

relief provision. Specifically, instead of examining whether Appellant pled and

proved facts that were unknown to him and could not have been ascertained

by the exercise of due diligence, the PCRA court incorrectly grafted an

additional requirement of proving that the newly-discovered fact would

change the outcome.

      The PCRA court attempted to rectify its error when it issued its amended

order three days later. This time, the PCRA court stated it was dismissing the

petition because Appellant failed to meet “his evidentiary burden under the

one-year time limitation set forth in § 9545(b)(1)(ii) in order to invoke the


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[PCRA court’s] jurisdiction.” Order, 6/22/2017. The court stated that it did

not find Reid’s testimony to be credible “as to the date that his testimony was

first discovered,” but did not specify why or discuss whether it found

Appellant’s testimony that he learned about Reid’s confession on a different

date to be credible.7 Id. The court also concluded that even if Appellant’s

petition was timely filed, Appellant “failed to raise a cognizable claim under 42

Pa.C.S. § 9543 (a)(2)(vi),” because Reid’s testimony was neither credible nor

persuasive and a different outcome at trial was not likely. Id.

       In its Rule 1925(a) opinion, the PCRA court explained at length why it

did not find Reid’s testimony to be credible. PCRA Court Opinion, 9/28/2017,

at 5-7. However, it again appears that the PCRA court conflated the analysis

for the newly-discovered fact exception with the analysis for the after-

discovered evidence eligibility-for-relief provision. Most of the reasons stated

by the PCRA court relate to the merits of whether Reid’s testimony constitutes

exculpatory evidence that would likely compel a different verdict, not to

whether Appellant pled and proved a newly-discovered fact that was unknown

to him and could not have been ascertained by the exercise of due diligence.

The PCRA court focused on inconsistencies between the details of Reid’s two

affidavits, Reid’s motives for confessing, the inconsistencies between Reid’s


____________________________________________


7 Appellant testified that Reid confessed to him in May 2015, whereas Reid
testified that he confessed to Appellant in June 2015. Reid gave a different
date in his July 5, 2015 affidavit; there, he stated that he confessed to
Appellant in July 2015.

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account of the crimes and the victim’s, and Reid’s inability to identify the

victim at the PCRA hearing. Id. These issues with Reid’s testimony do not

relate to whether Reid’s confession was a newly-discovered fact unknown to

Appellant. Thus, the PCRA court erred by considering the merits of Appellant’s

after-discovered evidence claim for relief in its analysis of whether Appellant’s

petition qualified for a timeliness exception pursuant to the newly-discovered

fact exception set forth at subsection 9545(b)(1)(ii).

      Notwithstanding the PCRA court’s error, we affirm the orders dismissing

Appellant’s petition.    Even if we were to assume arguendo that Appellant

satisfied   the   newly-discovered   fact    time-bar   exception   at   subsection

9545(b)(1)(ii) and the 60-day filing requirement at subsection 9545(b)(2),

Appellant clearly failed to prove the merits of his after-discovered evidence

claim for relief. As the PCRA court points out, the victim identified Appellant

multiple times and had no doubt about his identity as her assailant. PCRA

Court Opinion, 9/28/2017, at 7.             Moreover, the t-shirt matching the

description of the t-shirt worn by the assailant was recovered from Appellant’s

home. Id. Given the multiple inconsistencies between Reid’s statements in

his testimony and his affidavits and the other evidence establishing Appellant’s

identity as the perpetrator, the PCRA court did not err in holding that Appellant

failed to prove that Reid’s confession “would likely compel a different verdict”

as required by subsection 9543(a)(2)(vi).

      Orders affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2018




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