J-S59026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 RASHEEM GRIFFIN                         :
                                         :   No. 2688 EDA 2016
                    Appellant

                 Appeal from the PCRA Order June 10, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1200131-2003


BEFORE:    BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                               FILED OCTOBER 10, 2017

      Rasheem Griffin appeals from the order entered June 10, 2016, in the

Court of Common Pleas of Pleas of Philadelphia County, that dismissed as

untimely his first petition filed pursuant to the Pennsylvania Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. Griffin contends the PCRA court

erred in rejecting his claim of newly discovered evidence. Based upon the

following, we affirm, albeit on different grounds.

      The PCRA court summarized the procedural and factual history of this

case, as follows:

      On the morning of February 8, 2003, Rasheem Griffin
      (“defendant”) and several other men robbed a family — including
      two children — in their Philadelphia home at gunpoint, and then
      threatened to return if anyone called the police. After a jury trial
      before the Honorable Chris R. Wogan, defendant was found guilty
      on January 10, 2005 of burglary,1 carrying a firearm without a
      license,2 theft by unlawful taking,3 criminal conspiracy,4 and three

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S59026-17


       counts of robbery.5 Judge Wogan sentenced defendant on March
       8, 2005, to an aggregate term of twenty-six to seventy-eight
       years in prison. The Superior Court affirmed defendant’s
       judgments of sentence on January 24, 2006, and the Pennsylvania
       Supreme Court denied his petition for allowance of appeal on
       August 9, 2006.

       _____________________________________

           1   18   Pa.C.S.   §   3502.
           2   18   Pa.C.S.   §   6106.
           3   18   Pa.C.S.   §   3921(a).
           4   18   Pa.C.S.   §   903(c).
           5   18   Pa.C.S.   §   3701.

       _____________________________________

       On July 8, 2014, defendant filed a pro se petition for collateral
       relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et
       seq. (“PCRA”) and filed an amended pro se petition on December
       8, 2014. Counsel filed an amended petition on January 9, 2015,
       and the Commonwealth filed a motion to dismiss defendant’s
       PCRA petition on November 3, 2015. After issuing a Rule 907
       notice on May 10, 2016, this court formally dismissed defendant’s
       petition as untimely on June 10, 2016.6 This appeal followed.
       _______________________________________

       6 Judge Wogan, who had presided over defendant’s trial, had since
       retired, and defendant’s PCRA petition was administratively
       reassigned to this court.
       _______________________________________

PCRA Court Opinion, 1/19/2017, at 1–2.1

       Our standard of review is well settled: “In reviewing an order denying

post-conviction relief, we examine whether the trial court’s determination is

supported by evidence of record and whether it is free of legal error.”

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).
____________________________________________


1Griffin filed a Pa.R.A.P. 1925(b) statement with his notice of appeal. See
Griffin’s Statement of Errors Complained of on Appeal, 7/7/2016.

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      Here, Griffin claims, “[t]he [PCRA] court erred in holding that the

testimony of former Police Detective Ronald Dove under oath at Rasheem

Griffin’s criminal trial misrepresenting facts regarding evidence seized at the

time of Griffin’s arrest and a Daily News article reporting Dove’s termination

from employment and a pending Grand Jury investigation into Dove’s

wrongdoing did not constitute newly discovered evidence.” Griffin’s Brief at

2.

      Preliminarily, we must address the jurisdiction of this Court to review

Griffin’s claim.   It is well-settled that the PCRA’s time restrictions are

jurisdictional in nature. Robinson, supra, 139 A.3d at 185.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

became final, unless the petition alleges and the petitioner proves one of the

three exceptions to the time limitations for filing the petition. See 42 Pa.C.S.

§ 9545(b)(1). 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).

      Here, the Pennsylvania Supreme Court denied Griffin’s petition for

allowance of appeal on August 9, 2006. Therefore, his judgment of sentence

became final 90 days later, on November 7, 2006, at the expiration of the

time for filing a petition for writ of certiorari in the United States Supreme

Court. See U.S.Sup.Ct.R. 13.1. Thereafter, Griffin had one year to file a timely

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petition, that is, by November 7, 2007. He filed the present petition on July 8,

2014, more than six and one-half years later.2 Griffin does not dispute that

the present petition is patently untimely; he relies on the PCRA’s newly

discovered fact exception, 42 Pa.C.S. § 9545(b)(1)(ii), to overcome the

timeliness issue,3 and argues his substantive after-discovered evidence claim

has merit.

        The PCRA provides an exception to the one year time bar where “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). The exception must be pled within 60 days of

the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2). Our

Supreme Court has explained “the newly-discovered facts exception to the

time limitations of the PCRA, as set forth in subsection 9545(b)(1)(ii), is

distinct from the after-discovered evidence basis for relief delineated in 42

Pa.C.S. § 9543(a)(2).” Commonwealth v. Burton, 158 A.3d 618, 629 (Pa.

2017).

        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
____________________________________________


2 The July 8, 2014 petition is reflected on the docket but is not part of the
certified record. An “amended” pro se petition was filed on December 8, 2014,
and is contained in the certified record.

3   See Griffin’s Brief at 4.


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     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. Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d
     806, 823 (Pa. 2004); see Cox, 146 A.3d at 227-28 (“Once
     jurisdiction has been properly invoked (by establishing either that
     the petition was filed within one year of the date judgment became
     final or by establishing one of the three exceptions to the PCRA’s
     time-bar), the relevant inquiry becomes whether the claim is
     cognizable under [Section 9543] of the PCRA.”).

Burton, id.

     Here, the PCRA court concluded Griffin failed to satisfy the newly

discovered facts exception, and therefore dismissed the petition as untimely.

The PCRA court reasoned:

     [Griffin] attempted to rely on the newly discovered fact exception
     to the time–bar (Amended PCRA Petition, Jan. 9, 2015, ¶ 7). The
     “facts” on which he relied were as follows:

         In November 2013, Detective [Ronald] Dove [who testified
         at defendant’s trial], a 16 year veteran of the Philadelphia
         Police Department was terminated from employment for
         failing to cooperate with detectives who were investigating
         his involvement in three homicide cases. Specifically, it
         was determined that Detective Dove’s girlfriend was
         implicated in the murders of three individuals and
         Detective Dove assisted her in fleeing after the
         investigation targeted her. In addition, Detective Dove
         refused to cooperate with fellow investigators into the
         murders involving his girlfriend.

     Id. at ¶ 5.

     [Griffin] purportedly based these allegations on a November 28,
     2014 article in the Daily News, which he attached as an exhibit to
     his petition.8 [Griffin] made no offer to prove the facts that were
     alleged in his petition or in the article, which were themselves


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      nothing more than hearsay. See Commonwealth v. Castro, 93
      A.3d 818, 825 (Pa. 2014) (although a newspaper article may
      “suggest” that evidence exists, the article itself is not evidence;
      “allegations in the media, whether true or false, are no more
      evidence than allegations in any Other out-of-court situation”).
      The Pennsylvania Supreme and Superior Courts have found that
      “[a] claim which rests exclusively upon inadmissible hearsay is not
      of a type that would implicate the [newly discovered fact]
      exception to the timeliness requirement...” Commonwealth v.
      Brown, 141 A.3d 491, 501-02 (Pa. Super. 2016) (quoting
      Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999)).

      _____________________________________

         8 The article refers to three homicide cases, between seven
         and one-half and ten and one-half years after the home
         invasion robberies of which defendant was convicted
         (“Exhibit 1” to Amended PCRA Petition, Jan. 9, 2015). The
         article reports that Detective Dove’s girlfriend was arrested
         in relation to a 2013 murder. Contrary to defendant’s
         summary, the article did not report that Detective Dove
         helped his girlfriend flee.
      _________________________________________

      Because the article was not itself a fact, and instead only
      referenced “information which could lead [defendant] to discover
      facts,” Brown, 141 A.3d at 503, defendant failed to establish the
      applicability of the newly discovered fact exception to the time-
      bar, and this court did not have jurisdiction to consider the merits
      of his petition.

PCRA Court Opinion, 1/19/2017, at 3–4.

      We agree with the PCRA court’s analysis and determination that the

newspaper articles regarding allegations of Detective Dove’s misconduct fail

to bring Griffin’s claim within the ambit of Section 9545(b)(ii).

      However, while this appeal was pending, Detective Dove “was arrested

and charged with:    obstructing justice, unsworn falsification to authorities,

tamp[er]ing with/fabricating evidence, hindering prosecution, flight, and

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conspiracy.”     Griffin’s    Brief    at      11,   citing   CP-51-CR-0001382-2015,

Commonwealth v. Ronald Dove. The Commonwealth acknowledges “the

charges against former Detective Dove have since resulted in judgments of

sentence   by   virtue   of   his     guilty    pleas   entered   in   April   of   2017.”

Commonwealth Brief at 17. See also Commonwealth’s Brief at 7 n.2. (noting

Dove “entered negotiated guilty pleas … to hindering apprehension or

prosecution (18 Pa.C.S. § 5105(a)(1)), flight to avoid apprehension, trial, or

punishment (id. § 5126), and criminal conspiracy, (id. § 903), all felonies of

the third degree [and t]he court imposed sentence[.]”).                   Consequently,

additional analysis of Griffin’s claim is warranted.

      We take judicial notice of the criminal docket at CP-51-CR-0001382-

2015, Commonwealth v. Ronald S. Dove, and the convictions reflected on

thereon.   However, even accepting that Griffin’s claim satisfies the newly

discovered facts exception, 42 Pa.C.S. § 9545(b)(1)(ii), we conclude Griffin

has not raised a genuine issue of material fact that would entitle him to PCRA

relief on the basis of after-discovered evidence. We analyze Griffin’s claim, as

follows:

      Once jurisdiction has been properly invoked (by establishing
      either that the petition was filed within one year of the date
      judgment became final or by establishing one of the three
      exceptions to the PCRA’s time-bar), the relevant inquiry becomes
      whether the claim is cognizable under the PCRA. Section 9543,
      titled “Eligibility for relief,” governs this inquiry. Among other
      requirements not pertinent to this appeal, section 9543 delineates
      seven classes of allegations that are eligible for relief under the
      PCRA. See 42 Pa.C.S.A. § 9543(a)(2). Of relevance here is the
      “after-discovered evidence” provision, which states that a claim

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        alleging “the unavailability at the time of trial of exculpatory
        evidence that has subsequently become available and would have
        changed the outcome of the trial if it had been introduced” is
        cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vi). To
        establish such a claim, a petitioner must prove that “(1) the
        evidence has been discovered after trial and it 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.” Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d
        806, 823 (Pa. 2004).

Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016)

        Here, Detective Dove’s convictions would only serve to impeach his

credibility and, as such, do not meet the third prong of the after discovered

evidence test.4 See Commonwealth v. Alphonso Griffin, 137 A.3d 605,

610 (Pa. Super. 2016), appeal denied, 157 A.3d 476 (Pa. 2016) (“A defendant

seeking a new trial must demonstrate he will not use the alleged after-

discovered     evidence      ‘solely   to      impeach   a   witness’s   credibility.’”);

Commonwealth v. Foreman, 55 A.3d 532 (Pa. Super. 2012) (filing of

____________________________________________


4   Griffin’s amended PCRA petition alleges, inter alia:

        [Detective Dove’s convictions] could have been utilized to support
        a Motion to Suppress and/or could have been utilized to
        undermine Detective Dove’s reliability by demonstrating that he
        had, for example, lied about … evidence seized in this case and in
        other cases which [were] used in this case to implicate Mr. Griffin
        in a crime he did not commit and supported the basis of his
        conviction.

Griffin’s Amended Motion for New Trial Based on After Discovered Evidence;
Alternatively, for Post Conviction Collateral Relief; or Alternatively, for a Writ
of Habeas Corpus, 1/9/2015, at ¶10.



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criminal charges against detective in an unrelated matter does not meet the

after-discovered evidence test since such evidence would be used solely to

impeach the credibility of the detective). Griffin also argues that “the evidence

… may also be used to file a motion to suppress the evidence obtained from

the search of the house where [Griffin] was arrested or to file a request for

Brady[5] material.”6 However, Griffins overlooks the fact that “the hearing is

for the presentation of evidence, not the potential discovery of evidence.”

Commonwealth v. Castro, 93 A.3d 818, 827-28 (2014). “An evidentiary

hearing ... is not meant to function as a fishing expedition for any possible

evidence that may support some speculative claim.” Id. at 828 (quotations

and citation omitted). “The relevant motion is not to serve as a preemptive

means of securing a hearing that will itself comprise the investigation.” Id.

        Finally, Detective Dove’s criminal misconduct in protecting his girlfriend,

which occurred long after Griffin’s convictions, has no nexus to Griffin’s case.

Therefore, Griffin cannot show that the proffered “evidence” of Detective



____________________________________________



5 Griffin is referring to a claim brought under Brady v. Maryland, 373 U.S.
83 (1963), that challenges the Commonwealth’s failure to produce material
evidence. “Specifically, a Brady claim requires a petitioner to show, “(1) the
prosecutor has suppressed evidence; (2) the evidence, whether exculpatory
or impeaching, is helpful to the defendant; and (3) the suppression prejudiced
the defendant.” Commonwealth v. Bennett, 930 A.2d 1264, 1270 n.9
(2007) (quotations and citations omitted).

6   Griffin’s Brief at 10.


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Dove’s convictions would lead to a different result. See Foreman, supra, 55

A.3d at 537-538 (appellant failed to satisfy fourth prong of after-discovered

evidence test where appellant filed to show any nexus between his case and

criminal charges filed against case officer on unrelated matter).

      Accordingly, we affirm the order dismissing Griffin’s petition, albeit for

different reasons. See Commonwealth v. Doty, 48 A.3d 451, 456 (Pa.

Super. 2012) (holding that this Court is not bound by the rationale of the PCRA

court and may affirm on any basis).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




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