J-S21020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

AARON WASHINGTON

                            Appellant                 No. 2991 EDA 2014


                Appeal from the PCRA Order September 17, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0908521-1999


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

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 30, 2016

        Aaron Washington appeals from the order of the Court of Common

Pleas of Philadelphia County dismissing his petition pursuant to the Post

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

review, we affirm.

        The PCRA court stated the facts and procedural history of this case as

follows:

        On August 1, 1999, [Washington] was arrested and charged with
        first-degree murder, possession with intent to deliver a
        controlled substance (PWID), and the possession of an
        instrument of crime (PIC). In April 2002, a trial was held in the
        presence of a jury. On April 15, 2002, [Washington] was found
        guilty on all charges and sentenced by the Honorable Judge
        Pamela Pryor Dembe to a mandatory sentence of life in prison
        without the possibility of parole on the murder charge, 2-6 years’
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S21020-16


       incarceration on the PWID charge, and 2 to 5 years’
       incarceration on the PIC charge.          On April 25, 2002,
       [Washington] filed a Notice of Appeal to the Superior Court,
       which affirmed the judgment of sentence on April 21, 2003. On
       May 12, 2004, [Washington] filed a petition for relief pursuant to
       the PCRA.     On May 27, 2005, [Washington’s] petition was
       dismissed as untimely.     On June 24, 2005, [Washington]
       appealed the dismissal of his PCRA petition to the Superior
       Court. On November 21, 2006, the Superior Court affirmed the
       dismissal of [Washington’s] PCRA petition. On December 21,
       2006, [Washington] filed a Petition for Allowance of Appeal to
       the Pennsylvania Supreme Court, which denied the petition on
       June 14, 2007.

       On April 12, 2013, [Washington’s] aunt, Veronica Nelson
       (“Nelson”) visited him in prison for the first time since he was
       incarcerated. According to [Washington], Nelson told him that
       her brother, who was a Commonwealth witness against
       [Washington], recanted his testimony while on his deathbed in
       2005.    According to [Washington], Nelson was told by her
       brother, [Washington’s] uncle, that [Washington] was not
       present when the victim in this case was killed and that he “felt
       bad for lying on [Washington].” [Washington] further claimed
       that his uncle told Nelson the identity of the person who shot
       and killed the victim.      On the basis of this information,
       [Washington] filed a second petition for relief pursuant to 42
       Pa.C.S.A. § 9545(b)(1)(ii) on May 28, 2013.

       On February 20, 2014, James Lammendola, Esquire, was
       appointed PCRA counsel. On July 7, 2014, Mr. Lammendola filed
       a Finley[1] letter stating that the issues raised in [Washington’s]
       PCRA petition were without merit. On August 5, 2014, this
       [c]ourt sent [Washington] a notice pursuant to [Pa.R.Crim.P.]
       907, indicating that his petition would be dismissed due to a lack
       of merit. On August 21, 2014, [Washington] filed a response to
       the [Rule] 907 notice. On September 17, 2014, after review of
       [Washington’s] pro se petition, PCRA counsel’s Finley letter, and
       [Washington’s] reply to the [Rule] 907 notice, this [c]ourt
       dismissed [Washington’s] petition without a hearing as being


____________________________________________


1
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).



                                           -2-
J-S21020-16


      without merit. On October 10, 2014, [Washington] appealed
      this dismissal to the Superior Court.

PCRA Court Opinion, 12/8/14, at 1-3.

      On appeal, Washington raises the following issues for our review,

verbatim:

      1. Whether the PCRA court erred when it dismissed
      [Washington’s] claim of AFTER DISCOVERED “FACT,” pursuant to
      42 Pa.C.S. § 9545[(b)](1)(ii), based on a hearsay statement of
      recantation where the PCRA petition was dismissed without an
      evidentiary hearing to assess the credibility of [Washington’s]
      witness?

      2. Whether the hearsay statement of recantation has the indicia
      of reliability sufficient enough to be presented at a new trial for
      purposes beyond merely impeachment, considering the
      circumstances surrounding the case?

Brief of Appellant, at 4.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our 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. Id.

      All petitions under the PCRA, including second or subsequent petitions,

must be filed within one year of the date the judgment becomes final, unless

the petitioner alleges, and the petitioner proves, an exception to the one-

year time bar.    Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa.




                                     -3-
J-S21020-16



2008). The exceptions apply where the petitioner successfully alleges and

proves one or more of the following:

      (i) the failure to raise this claim previously was the result of
      interference by government officials with 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.A. §§ 9545(b)(1)(i)-(iii).

      A petition invoking one of these exceptions must be filed within 60

days of the date the claim could first have been presented. 42 Pa.C.S.A. §

9545(b)(2).    The petitioner must plead and prove specific facts that

demonstrate    his   claim   was   raised   within   the   60   day   time   frame.

Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (2013).

      Here, Washington’s judgment of sentence became final on or about

May 21, 2003, when the time within which to file a petition for allowance of

appeal with the Pennsylvania Supreme Court expired. See 42 Pa.C.S.A. §

9545(b)(3). The instant petition was filed on May 28, 2013, more than ten

years after Washington’s judgment of sentence became final. Accordingly,

the PCRA court lacked jurisdiction to consider Washington’s petition unless

he pled and proved one of the exceptions to the time bar.



                                       -4-
J-S21020-16



      Here, Washington invokes the newly-discovered-fact exception to the

time bar pursuant to section 9545(b)(1)(ii). Specifically, Washington claims

that, on April 12, 2013, his aunt, Veronica Nelson, informed him that her

brother, a Commonwealth witness at Washington’s trial, had recanted his

testimony to her on his death bed. The witness allegedly told Nelson that he

had not actually been present at the time the victim was killed and also told

her the identity of the actual killer. Washington claims this information was

unknown to him at the time of trial and could not have been ascertained by

the exercise of due diligence. Because he filed his petition within 60 days of

obtaining the information, Washington asserts his petition should be treated

as timely filed.

      To obtain relief of after-discovered evidence, the defendant must

demonstrate that the evidence:

      (1) could not have been obtained prior to the conclusion of the
      trial by the exercise of reasonable diligence; (2) is not merely
      corroborative or cumulative; (3) will not be used solely to
      impeach the credibility of a witness; and (4) would likely result
      in a different verdict if a new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008).                The test is

conjunctive; the defendant must show by a preponderance of the evidence

that each of these factors has been met in order for a new trial to be

warranted.     Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super.

2010). As a general matter, recantation evidence is, “notoriously unreliable,

particularly   where   the   witness   claims   to   have   committed   perjury.”



                                       -5-
J-S21020-16



Commonwealth v. D’Amato, 856 A.2d 806, 835 (Pa. 2004), quoting

Commonwealth v. Dennis, 715 A.2d 404, 416 (Pa. 1998).

       Here, Washington asserts that the after-discovered evidence, although

hearsay, is admissible as a statement against penal interest2 pursuant to

Pa.R.E. 804(b)(3). A statement against penal interest is one that:

       (A) a reasonable person in the declarant’s position would have
       made only if the person believed it to be true because, when
       made, it was so contrary to the declarant’s proprietary or
       pecuniary interest or had so great a tendency to invalidate the
       declarant’s claim against someone else or to expose the
       declarant to civil or criminal liability; and

       (B) is supported by corroborating circumstances that clearly
       indicate its trustworthiness, if it is offered in a criminal case as
       one that tends to expose the declarant to criminal liability.

Pa.R.E. 804(b)(3).



____________________________________________


2
   In the PCRA court, Washington also asserted that the statement was
admissible as a dying declaration, a claim which the PCRA court properly
concluded was meritless.         “A statement may be considered a dying
declaration, and hence admissible notwithstanding its hearsay attributes, if
the declarant identifies his attacker, the declarant believes he is going to die,
that death is imminent, and death actually results.” Commonwealth v.
Griffin, 684 A.2d 589, 592 (Pa. Super. 1996). Dying declarations are
statements made by the deceased concerning the circumstances of his
injuries and are admissible in the trial of a person accused of killing him.
Commonwealth v. Knable, 85 A.2d 114, 116 (Pa. 1952). Here, the
declarant’s statements did not concern the circumstances of his own death.
As such, the dying declaration exception to the hearsay rule is inapplicable.
Indeed, Washington acknowledged this fact by abandoning this claim on
appeal. See Brief of Appellant, at 15 (“[A]ppellant concede[s] that his
previous claim of the statement being a ‘Dying Declaration’ was
misplaced[.]”).



                                           -6-
J-S21020-16



      Declarations against penal interest are admissible as an exception to

the hearsay rule only where there are existing circumstances that provide

clear assurances that such declarations are trustworthy and reliable.

Commonwealth v. Yarris, 731 A.2d 581, 591 (Pa. 1999).                        A statement

made by a defendant’s relative must be closely scrutinized for motive to

fabricate the confession. Padillas, 997 A.2d at 366.

      Here, the    circumstances          surrounding     the    statement     made     by

Washington’s     uncle    do   not        provide   the   indicia   of   reliability   and

trustworthiness necessary to permit its admission as a statement against

penal interest. First, the alleged declarant and the witness to the declarant’s

statement were both Washington’s relatives, which provided them with a

clear motive to fabricate an exculpatory statement. Second, the declarant

allegedly made the statement on his deathbed. As such, he would have had

little, if any, concern that he would ever be prosecuted for perjury as a

result of his recantation.         In short, the evidence Washington sought to

present   does    not    satisfy    the     trustworthiness     requirements     of    Rule

804(b)(3)(B) and is, therefore, inadmissible hearsay. Because a claim based

on inadmissible hearsay does not implicate the exception to the time bar

under section 9545(b)(1)(ii), see Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1269 (Pa. 2008), Washington’s petition is untimely. Accordingly, the




                                            -7-
J-S21020-16



PCRA court lacked jurisdiction to consider his claims3 and properly dismissed

it.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016




____________________________________________


3
  Although the PCRA court dismissed Washington’s petition as “without
merit,” we may affirm the court’s order on any basis. Commonwealth v.
Reed, 107 A.3d 137, 144 (Pa. Super. 2014).



                                           -8-
