J-S18043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER HANSON

                            Appellant                No. 2275 EDA 2014


                   Appeal from the PCRA Order June 3, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000421-1984
                                          CP-39-CR-0001582-1983


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                             FILED APRIL 17, 2015

        Appellant, Christopher Hanson, appeals pro se from the June 3, 2014

order dismissing, as untimely, his serial petition for relief filed pursuant to

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

careful review, we affirm.

        A previous panel of this Court summarized the relevant procedural

history of this case as follows.

              On July 14, 1984, a jury found Appellant guilty of
              second-degree      murder,    rape   and    criminal
              conspiracy.1 On January 30, 1986, the trial court
              sentenced Appellant to life imprisonment. This Court
              affirmed Appellant’s judgment of sentence on August
              31, 1987, and our Supreme Court denied Appellant’s
              petition for allowance of appeal on March 23, 1988.
____________________________________________
1
    18 Pa.C.S.A. §§ 2502(b), 3121(a) and 903(a), respectively.
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          See Commonwealth v. Hanson, 534 A.2d 130 (Pa.
          Super. 1987) (unpublished memorandum), appeal
          denied, 544 A.2d 1341 (Pa. 1988). Appellant has
          since filed numerous PCRA petitions as well as
          federal habeas corpus petitions, none of which have
          garnered him relief.

                 Appellant filed [a previous] pro se PCRA
          petition on February 9, 2010. Therein, Appellant
          alleged an exception to the PCRA time-bar based on
          newly discovered evidence.          See 42 Pa.C.S.A.
          § 9545(b)(1)(ii).      Appellant offered as newly
          discovered evidence a December 7, 2009 written
          statement by Colie B. Chappelle, Esquire (Attorney
          Chappelle) stating that Appellant’s co-conspirator,
          Timothy Seip entered into a secret plea agreement
          with the Commonwealth in exchange for Seip’s
          testimony at Appellant’s trial. On March 31, 2010,
          the PCRA court entered an order notifying Appellant
          of its intent to dismiss Appellant’s PCRA petition
          without a hearing pursuant to Pennsylvania Rule of
          Criminal Procedure 907. The PCRA court ultimately
          dismissed the petition on July 6, 2010 and Appellant
          filed a timely notice of appeal to this Court.

                On June 8, 2011, this Court vacated and
          remanded for further proceedings. Commonwealth
          v. Hanson, 31 A.3d 737 (Pa. Super. 2011)
          (unpublished memorandum at 3).          The panel
          concluded   that   Attorney   Chappelle’s  written
          statement could support an exception to the PCRA
          time-bar.

               Although the agreement, much like Appellant’s
               guilt, was determined in an earlier proceeding
               based upon evidence therein presented, new
               evidence may be presented to challenge a prior
               determination.    Here, the affidavit and its
               contents constitute the previously unknown
               facts upon which Appellant’s claim is based.
               The PCRA court erred in determining these
               facts could not support application of the time-
               bar exception.


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              Id. (unpublished memorandum at 2-3).

                     On remand, the PCRA court held a hearing on
              Appellant’s petition. On June 11, 2012, the PCRA
              court entered an order dismissing Appellant’s PCRA
              petition on the merits.

Commonwealth v. Hanson, 82 A.3d 472 (Pa. Super. 2013) (unpublished

memorandum at 1-3), appeal denied, 83 A.3d 414 (Pa. 2013).         Appellant

filed a notice of appeal, and this Court affirmed the PCRA court’s order on

June 27, 2013, concluding that his PCRA petition was untimely and the PCRA

court was without jurisdiction to entertain Appellant’s claims.    Id.   Our

Supreme Court denied Appellant’s petition for allocatur on December 31,

2013. Id.

       On April 8, 2014, Appellant filed the instant PCRA petition. On April

15, 2014, the PCRA court issued its Rule 907 notice. Appellant filed two pro

se responses on May 19, 2014. The PCRA court entered its order dismissing

Appellant’s PCRA petition as untimely on June 3, 2014.     On July 2, 2014,

Appellant filed a timely notice of appeal.2


____________________________________________
2
  Although Appellant’s notice of appeal was docketed on July 28, 2014,
Appellant has provided a copy of the cash slip used by the Department of
Corrections to mail his notice of appeal to the PCRA court. The cash slip
bears a date of July 2, 2014. Under the prisoner mailbox rule, “a pro se
prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011) (citation omitted), appeal denied, 46 A.3d 715 (Pa. 2012).
As a result, we deem Appellant’s notice of appeal filed on July 2, 2014, and
therefore timely. We further note that Appellant and the PCRA court have
complied with Pennsylvania Rule of Appellate Procedure 1925.



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      On appeal, Appellant raises the following issue for our review.

               Should Appellant be granted PCRA relief based on
               new evidence in the form of an affidavit signed by
               Timothy Mark Seip, dated March 28, 2014[?] In that
               affidavit, attached to Appellant’s 907 notice, Exhibit
               “A”, Seip claimed that he was coerced to testify
               against Appellant [], and was assured of an
               undisclosed plea agreement with [A]ttorney Makoul
               and [P]rosecutor Tomsho, and would receive the
               death sentence if he, (Seip), rejected this plea
               agreement[.]

Appellant’s Brief at 3.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”         Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”            Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Before we may address the merits of Appellant’s arguments, we must

first consider the timeliness of Appellant’s PCRA petition because it

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implicates   the    jurisdiction   of    this   Court   and   the   PCRA    court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation

omitted).    Pennsylvania law makes clear that when “a PCRA petition is

untimely, neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)

(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for

filing a PCRA petition is not subject to the doctrine of equitable tolling;

instead, the time for filing a PCRA petition can be extended only if the PCRA

permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014) (internal quotation marks and citation omitted), cert. denied, Ali v.

Pennsylvania, 135 S. Ct. 707 (2014).            This is to “accord finality to the

collateral review process.”    Commonwealth v. Watts, 23 A.3d 980, 983

(Pa. 2011) (citation omitted).          “However, an untimely petition may be

received when the petition alleges, and the petitioner proves, that any of the

three limited exceptions to the time for filing the petition, set forth at 42

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.”         Commonwealth v.

Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).             The PCRA

provides, in relevant part, as follows.


             § 9545. Jurisdiction and proceedings

                                          …

             (b) Time for filing petition.—




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                   (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.

                   (2) Any petition invoking an exception
                   provided in paragraph (1) shall be filed within
                   60 days of the date the claim could have been
                   presented.

                                       …

42 Pa.C.S.A. § 9545(b).

        In the case sub judice, Appellant was sentenced on January 30, 1986,

this Court affirmed Appellant’s judgment of sentence on August 31, 1987,

and our Supreme Court denied Appellant’s petition for allocatur on March 23,

1988.     See Hanson, supra at 1.       As a result, Appellant’s judgment of

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sentence became final on June 21, 1988, when the time for Appellant to file

a petition for a writ of certiorari in the United States Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3) (stating, “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[]”); U.S. S. Ct. R. 13(1) (stating “a

petition for a writ of certiorari to review a judgment in any case … is timely

when it is filed with the Clerk of this Court within 90 days after entry of the

judgment[]”). Appellant’s instant April 8, 2014 petition was filed almost 26

years after his judgment of sentence became final and more than 17 years

after the PCRA’s grace period ended, so it was therefore patently untimely.3

However, Appellant argues that two time-bar exceptions apply in this case.

Specifically, Appellant raises the governmental interference and the newly-

discovered fact exceptions to the time-bar. Appellant’s Brief at 7-8.


____________________________________________
3
  The 1995 amendments to the PCRA initiated the current one-year time-
bar. The 1995 amendments also granted prisoners whose judgment of
sentence had become final more than one year before the implementation of
the time-bar, one year from the effective date of the amendments to file
their first PCRA petition. Act of November 17, 1995, P.L. 1118, No. 32
(Spec. Sess. No. 1), § 3(1). Under this provision “a petitioner’s first PCRA
petition, that would otherwise be considered untimely because it was filed
more than one year after the judgment of sentence became final, would be
deemed timely if it was filed by January 16, 1997.” Commonwealth v.
Thomas, 718 A.2d 326, 329 (Pa. Super. 1998) (en banc). However, our
Supreme Court has noted this grace period does not apply to second or
subsequent PCRA petitions. Commonwealth v. Crews, 863 A.2d 498, 501
(Pa. 2004).



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      In order to meet the statutory requirements of the governmental

interference exception, “[the a]ppellant was required to plead and prove that

his failure to raise the claim previously was the result of interference by

government officials with the presentation of the claim [or claims] in

violation of the Constitution or laws of this Commonwealth or the

Constitution or laws of the United States….” Commonwealth v. Chester,

895 A.2d 520, 523 (Pa. 2006) (internal quotation marks and citation

omitted; emphasis in original).   A defendant claiming this exception must

also show that “the information could not have been obtained earlier with

the exercise of due diligence.”    Commonwealth v. Hawkins, 953 A.2d

1248, 1253 (Pa. 2006) (citation omitted).

      Likewise, our Supreme Court has previously described a petitioner’s

burden under the newly-discovered evidence exception as follows.

            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. 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.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
            added).

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in

original). “Due diligence demands that the petitioner take reasonable steps

to protect his own interests.   A petitioner must explain why he could not

have learned the new fact(s) earlier with the exercise of due diligence.   This




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rule is strictly enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.

Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012).

      Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

                     The statutory exceptions to the timeliness
             requirements of the PCRA are also subject to a
             separate time limitation and must be filed within
             sixty (60) days of the time the claim could first have
             been presented. See 42 Pa.C.S.A. § 9545(b)(2).
             The sixty (60) day time limit … runs from the date
             the petitioner first learned of the alleged after-
             discovered facts. A petitioner must explain when he
             first learned of the facts underlying his PCRA claims
             and show that he brought his claim within sixty (60)
             days thereafter.

Id. (some citations omitted).      Our Supreme Court has held that Section

9545(b)(2) also requires a showing of due diligence insofar that a petitioner

must file the petition within 60 days that the claim could have first been

presented.   Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),

cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).

      As noted above, Appellant has consistently averred in previous PCRA

petitions that the Commonwealth offered Seip a secret plea deal in exchange

for his testimony against Appellant. See Hanson, supra at 2. In his latest

PCRA petition, Appellant argues that he has discovered, through an affidavit

from Seip, that the Commonwealth threatened to seek the death penalty

against Seip, if Seip did not accept its plea offer. Appellant’s Brief at 7.




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      As to the governmental interference exception, Appellant avers the

following.

                    After receiving Seip’s affidavit indicating that
             Seip had been in discussions for a lenient sentence in
             exchange for his testimony, Appellant filed the PCRA
             informing of such actions. Appellant also acquired
             transcripts of Seip’s guilty plea, and had learned of
             these discussions by [ADA] Tomsho and [Attorney]
             Chappelle, after the Hughes affidavit in 2006.
             Appellant acted diligently in suspecting that the
             Commonwealth may have allso [sic] concealed
             threats to Seip, now evidenced by Seip’s affidavit
             wherein he states he would get the death penallty
             [sic] if he rejected the plea agreement. Appellant
             had proven the applicability of the governmental
             interference exception under [S]ection 9545(b)(1)(i).

Id. In addition, Appellant avers that Seip’s affidavit constitutes previously

unknown      facts   so   as   to   satisfy   the   time-bar   exception   at   Section

9545(b)(1)(ii). Id. at 8 n.2; Appellant’s Reply Brief at 3.

      As this Court explained in our 2013 memorandum disposing of

Appellant’s last PCRA petition, Seip actually testified at Appellant’s February

19, 2008 PCRA hearing, during which he discussed his plea negotiations

with the Commonwealth. Hanson, supra at 8-9, quoting N.T., 2/19/08, at

27-28. Specifically, at said hearing, Seip was called to testify as Appellant’s

own witness, about Seip’s plea negotiations with the Commonwealth.

Appellant repeatedly asked Seip whether he received a promise of a five to

ten year sentence from the Commonwealth in exchange for testifying

against Appellant, to which Seip responded in the negative. N.T., 2/19/08,

at 15-16, 18-20, 22-25.

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      As noted above, Appellant has had knowledge of a purported plea

bargain between Seip and the Commonwealth since 2008.          See Hanson,

supra at 2. Whether Seip was cooperating with the Commonwealth to gain

a favorable sentence, or whether his cooperation was induced through the

threat of a negative consequence, such as the imposition of the death

penalty, is immaterial. Because Appellant had knowledge of the alleged plea

agreement in 2008, Appellant possessed sufficient information to form the

underlying basis for the time-bar exception he now alleges in 2015.

Therefore, Appellant has failed to prove that he filed the instant PCRA

petition within 60 days that the claim could have first been presented. See

Edmiston, supra; 42 Pa.C.S.A. § 9545(b)(2). As a result, the PCRA court

correctly concluded that it lacked jurisdiction to consider the merits of

Appellant’s claims. See id.

      Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s serial PCRA petition as untimely filed. Accordingly, the

PCRA court’s June 3, 2014 order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015

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