J-S57035-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                   Appellee                :
                                           :
                     v.                    :
                                           :
    NICHOLAS DEMATTEO,                     :
                                           :
                   Appellant               :    No. 1741 EDA 2017

                   Appeal from the PCRA Order May 5, 2017
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0907481-1990

BEFORE:     PANELLA, J., PLATT, J.* and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED DECEMBER 04, 2018

       Nicholas Dematteo1 (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

       The PCRA court provided the following procedural history.2



1 Appellant is also known as Hernan Cortez. PCRA Court Opinion, 8/8/2017,
at 1.
2 We rely on the PCRA court’s summation of the facts and procedural history
because Appellant failed to include in the certified record any trial or
sentencing transcripts, or any materials pertaining to his first PCRA, two
appeals to our Court, or his petitions for writs of habeas corpus. See
Commonwealth v. Bongiorno, 905 A.2d 998, 1000-01 (Pa. Super. 2006)
(“[T]he ultimate responsibility of ensuring that the transmitted record is
complete rests squarely upon the appellant and not upon the appellate
courts.”). See also Commonwealth v. Kennedy, 151 A.3d 1117, 1127 (Pa.
Super. 2016) (finding claim waived where review of issue raised was
dependent upon materials not included in the certified record). However, the
omission of these materials does not hinder our ultimate review.

*Retired Senior Judge assigned to the Superior Court.
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             [Appellant] and Adam Colon were arrested on July 14, 1990,
      for the murder of Martin Brill. The defendants opted for a bench
      trial and on January 7, 1992, [] both were convicted of second-
      degree murder, robbery, criminal conspiracy, and possessing an
      instrument of crime. [Appellant] was sentenced to life in prison
      on November 16, 1992. Post-verdict motions were filed on
      November 6, 1992, which were subsequently denied. [Appellant]
      filed a direct appeal to the Superior Court of Pennsylvania, who
      affirmed the trial court on July 19, 1993. [Commonwealth v.
      Cortez, 633 A.2d 1220 (Pa. Super. 1993) (unpublished
      memorandum)]. On May 26, 1994, the Pennsylvania Supreme
      Court denied [Appellant’s petition for allowance of appeal].
      [Commonwealth v. Cortez, 644 A.2d 1196 (Pa. 1994).
      Appellant pro se filed his first PCRA petition] on January 14, 1997.
      New counsel was appointed and on December 20, 1997,
      [Appellant] amended his petition. The PCRA court dismissed the
      petition on July 27, 1998. An appeal was filed on October 27,
      1998, and the Superior Court again affirmed the lower court on
      July 27, 1999. [Appellant] filed a motion for permission to file a
      nunc pro tunc [petition for allowance of appeal] to the
      Pennsylvania Supreme Court, which was denied on June 7, 2000.

            [Appellant] filed a state habeas petition on December 18,
      2000, which was dismissed on February 22, 2001. On May 21,
      2001, [Appellant] filed a federal habeas petition, which was
      amended on March 27, 2002, with the aid of counsel. The petition
      was subsequently denied by the Third Circuit Court of Appeals on
      June 4, 2004. [Appellant] then filed a petition for writ of certiorari
      to the Supreme Court of the United States, which was denied on
      December 6, 2004.

PCRA Court Opinion, 8/8/2017, at 1-2.

      On March 23, 2012, Appellant, represented by counsel, filed a second

PCRA petition, which is the petition at issue in this case. Therein, Appellant

asserted his petition was timely filed pursuant to 42 Pa.C.S. § 9545(b)(1)(ii),

which provides that “the facts upon which the claim is predicated were

unknown to the petitioner and could not have been ascertained by the exercise



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of due diligence.” PCRA Petition, 3/23/2012, at 10. Appellant’s purported

newly-discovered fact was that Victor Ruffin, an eyewitness who identified

Appellant as Colon’s accomplice to police and at trial, had lied about

Appellant’s involvement.

      As alleged in Appellant’s PCRA petition, on July 29, 2011, the

Pennsylvania Innocence Project (the Project) interviewed Colon. Colon stated

that Appellant was not present during the shooting, and that Colon committed

the shooting by himself. Colon also relayed that in 1998 or 1999 he spoke to

Ruffin on the telephone. During the phone call, Colon asked Ruffin why he

identified Appellant as being involved in the shooting, and Ruffin responded

that he did so because the police told him that Colon had named Appellant as

the shooter. According to Colon, his wife and an individual with the street

name of “Bronco” were present during this phone call. The Project determined

that “Bronco” was an individual named Ricardo Morales. On January 26, 2012,

the Project interviewed Morales, who stated that Ruffin told him in 1997 that

Appellant had nothing to do with the shooting, and the police and district

attorney made him testify.        Shortly thereafter, Morales set up the

aforementioned phone call between Colon and Ruffin.       See PCRA Petition,

3/23/2012, at 6-7, 11-13.     In support of his petition for relief, Appellant

attached certifications from Colon and Morales. Id. at Exhibit F (Certification

of Ricardo Morales); Exhibit G (Certification of Adam Colon).




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      On March 21, 2017,3 the PCRA court issued notice of its intent to dismiss

Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. The

notice stated that the reasons for dismissal were because: (1) the “petition

was untimely filed and no exceptions to the timeliness requirements

appl[ied;]” (2) the issues raised were “without arguable merit[;]” and (3) the

issues raised “ha[d] been previously litigated.”    Pa.R.Crim.P. 907 Notice,

3/21/2017.    On May 5, 2017, the PCRA court dismissed Appellant’s PCRA

petition by amended order.4

      Appellant timely filed a notice of appeal. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925. On appeal, Appellant presents two issues

for our review.



3 The docket indicates that a judicial reassignment and several continuances
occurred in 2016, but otherwise the record provided offers no explanation for
the five-year delay in reviewing Appellant’s second PCRA petition. This
lengthy delay is unacceptable. Our Supreme Court has made clear that “[t]he
PCRA court [has] the ability and responsibility to manage its docket and
caseload and thus has an essential role in ensuring the timely resolution of
PCRA matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa.
2012) (citing Commonwealth v. Porter, 35 A.3d 4, 24–25 (Pa. 2012)
(“[T]he court, not counsel, controls the scope, timing and pace of the
proceedings below.”)).      Additionally, “post-conviction counsel must ‘act
expeditiously so as to reduce unnecessary delays and ensure the efficient
administration of justice.’” Id. (citing Commonwealth v. Sneed, 45 A.3d
1096, 1104 n.11 (Pa. 2012)).

4The initial dismissal order, dated May 2, 2017, erroneously referenced a “no-
merit” letter and petition to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 297 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1998) (en banc), though no such letter was filed by
Appellant’s counsel. The amended order omitted this reference.


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      [1] Whether the [PCRA c]ourt erred in dismissing [Appellant’s]
      petition without holding an evidentiary hearing where he
      presented issues of material fact as to his diligence in uncovering
      new evidence of a material witness’s recantation?

      [2] Whether [Appellant’s] argument that his credible claim of
      actual innocence acts as a gateway to overcome procedural bars
      allows the [PCRA c]ourt to decide his claims on the merits?

Appellant’s Brief at 4 (introductory headings and trial court answers omitted).

      We begin with our standard of review.

             This Court analyzes PCRA appeals in the light most favorable
      to the prevailing party at the PCRA level. Our review is limited to
      the findings of the PCRA court and the evidence of record and we
      do not disturb a PCRA court’s ruling if it is supported by evidence
      of record and is free of legal error. Similarly, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.
      However, we afford no such deference to its legal conclusions.
      Where the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary. Finally, we
      may affirm a PCRA court’s decision on any grounds if the record
      supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).

      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). “For

purposes of [the PCRA], a judgment [of sentence] 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). When


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pursuing an otherwise untimely PCRA petition based on an exception to the

time-bar, the petition “shall be filed within 60 days of the date the claim could

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

      Recognizing his petition was patently untimely, Appellant attempted to

invoke the newly-discovered facts exception pursuant to 42 Pa.C.S.

§ 9545(b)(1)(ii), as detailed above. See PCRA Petition, 3/23/2012, at 10. On

appeal, Appellant argues that the PCRA court erred in denying his petition

without a hearing because there was a question of material fact as to whether

Appellant acted with due diligence in presenting his newly-discovered facts

exception.5 Appellant’s Brief at 16, 19-25.

      To qualify for the newly-discovered facts exception to the PCRA’s time-

bar, “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.” Burton, 158 A.3d at 629 (some citations omitted).

“Due diligence demands that the petitioner take reasonable steps to protect

his own interests. A petitioner must explain why he could not have obtained




5 In explaining its rationale for finding that Appellant failed to invoke the
newly-discovered facts exception, the PCRA court conflated the distinct
requirements of the newly-discovered facts exception to the time-bar and the
merits-based analysis for after-discovered evidence claims. PCRA Court
Opinion, 8/8/2017, at 6-7. See Commonwealth v. Burton, 158 A.3d 618,
629 (Pa. 2017) (detailing the distinctions between those provisions). Although
the PCRA court erred in this respect, we may affirm on any basis. See
Benner, supra.


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the new fact(s) earlier with the exercise of due diligence.” Commonwealth

v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010) (citations omitted).

      Even assuming that Appellant satisfied the newly-discovered facts

exception, Appellant failed to file his PCRA petition within 60 days of when it

first could have been filed, as required by 42 Pa.C.S. § 9545(b)(2). Appellant

asserts that his petition complied with subsection 9545(b)(2) because it was

filed within 60 days of Morales’s interview. PCRA Petition, 3/23/2012, at 10.

However, based upon our review, Morales’s interview is not the starting date

for when Appellant first could have filed the petition. As detailed supra, prior

to interviewing Morales, the Project interviewed Colon on July 26, 2011.

During that interview, Colon stated that Appellant was not involved in the

shooting and that Ruffin had implicated Appellant because he believed that

Colon had told police that Appellant was the shooter. Thus, on or around July

26, 2011, Appellant became aware that Ruffin had acknowledged that his

identification of Appellant was not truth-based. The subsequent interview of

Morales merely corroborated Colon’s phone call and added another source for

Ruffin’s acknowledgement that he had lied about Appellant’s involvement.

“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. Lambert, 57 A.3d 645, 648–49 (Pa. Super. 2012)

(citation omitted; emphasis in original)




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       Thus, for his petition to have been timely-filed, Appellant had to file his

PCRA petition within 60 days of July 26, 2011, when he first learned of Ruffin’s

potential perjury. He did not. Accordingly, we find that the PCRA court did

not err in dismissing his petition based on its untimeliness.                See

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

omitted) (“[W]hen a PCRA petition is … entitled to one of the [timeliness]

exceptions, but not filed within 60 days of the date that the claim could have

been first brought, the [PCRA] court has no power to address the substantive

merits of a petitioner’s PCRA claims.”)

       Appellant next claims that his assertion of actual innocence should serve

as a “‘gateway’ to present otherwise time-barred claims.” Appellant’s Brief at

25 (citing McQuiggin v. Perkins, 569 U.S. 383 (2013)).            Our Court has

previously rejected a claim that McQuiggin allows petitioners asserting actual

innocence to overcome the PCRA’s timeliness requirements. Specifically, we

held   that   “[w]hile   McQuiggin represents      a   further   development    in

federal habeas corpus law, … this change in federal law is irrelevant to the

time restrictions of our PCRA.” Commonwealth v. Brown, 143 A.3d 418,

421 (Pa Super. 2016). Accordingly, the trial court did not err in rejecting

Appellant’s alternative approach to circumvent the PCRA’s timeliness

requirements.




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     Thus, we conclude that the PCRA court’s dismissal of Appellant’s PCRA

petition was proper and, accordingly, affirm the PCRA court’s May 5, 2017

order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 12/4/18




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