J-S91020-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                      1   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                       v.

SECUNDINO GROSELLA

                             Appellant                       No. 823 MDA 2016


                    Appeal from the PCRA Order April 20, 2016
                   in the Court of Common Pleas of York County
               Criminal Division at No(s): CP- 67 -CR- 0002384 -2003


BEFORE:      FORD ELLIOTT, P.J.E., RANSOM, J., and JENKINS, J.

MEMORANDUM BY RANSOM, J.:                                 FILED JANUARY 17, 2017

         Appellant, Secundino Grosella, appeals from the April 20, 2016 order

denying his petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541 -9546. We affirm.

         We adopt the following          statement of facts from the PCRA court

opinion, which in turn      is   supported by the record. See PCRA Court Opinion

(PCO), 6/23/16, at      1 -7.    On September 15, 2003, Appellant was convicted

by   a   jury of two counts of aggravated assault and one count of carrying              a

firearm without    a   license, in connection with    a   shooting at   a   local tavern.'

On October 23, 2003, Appellant was sentenced to an aggregate of                 twenty to
forty years of incarceration.



'   18 Pa.C.S. §§ 2702(a)(1) and 6106(a), respectively.
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      On September 13, 2004, this court affirmed Appellant's           judgment of
sentence.    See Commonwealth v. Grosella, 863 A.2d 1223 (Pa. Super.

2004) (unpublished memorandum). Appellant did not petition for allocatur.

      Counsel was appointed to represent Appellant during his first PCRA

filing, during which the lower court erroneously attempted to reinstate

Appellant's direct appeal rights, but         a   panel of this Court reversed and

remanded for consideration of Appellant's ineffective assistance of counsel

claims as   a PCRA     petition.   See Commonwealth v. Grosella, 902 A.2d

1290 (Pa. Super. 2006).          Eventually, the PCRA court dismissed Appellant's

petition, and this dismissal was affirmed by another panel of this Court. See

Commonwealth v. Grosella, 932 A.2d 253               (Pa. Super. 2007) (unpublished

memorandum), appeal denied, 937 A.2d 443 (Pa. 2007).

      Appellant filed     a   second PCRA petition, which was dismissed as

untimely. A panel of this Court affirmed the dismissal, and the Pennsylvania

Supreme Court denied allocatur.           See Commonwealth v. Grosella, 48

A.3d 471 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 53

A.3d 50 (Pa. 2012).

      Appellant pro se filed the instant PCRA petition, his third, on January

15, 2016.     On April 21, 2016, the PCRA court dismissed the petition as

untimely, or    in   the alternative, as    waived.2     Although the PCRA court



2 From a review of the record, it does not appear that the PCRA court sent

Appellant notice pursuant to Pa.R.Crim.P. 907 that his petition would be
(Footnote Continued Next Page)


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references Appellant's supplemental petition, no such petition appears in the

record. Further, Appellant never petitioned for leave to amend his petition.

      Appellant timely filed an appeal and court -ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.       The PCRA court issued       a

responsive opinion.

      Herein, Appellant presents   a   single issue for our review, which we

have restated for clarity:

      Did the PCRA court err in denying Appellant's petition based
      upon newly discovered evidence of innocence, namely, a police
      report prepared by York police detectives, a video surveillance
      tape of the shooting, and a ballistics report, that were allegedly
      withheld by the Commonwealth in violation of Brady v.
      Maryland?3

Appellant's Brief at vi.4


(Footnote Continued)

dismissed without a hearing. See Pa.R.Crim.P. 907. The docket reflects
that case correspondence was mailed to Appellant on February 11, 2016, but
said correspondence was not contained within the record. However, the
failure to issue a Rule 907 notice does not automatically warrant reversal,
especially where Appellant's petition is patently untimely.                See
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013); see also
Commonwealth v. PurseII, 749 A.2d 911, 917 n.7 (Pa. 2000) (declining to
provide appellant with relief despite PCRA court's failure to send required
notice, where appellant failed to invoke jurisdiction of the trial court by
pleading and proving the applicability of PCRA timeliness exceptions).
Accordingly Appellant's claim that he is warranted relief by the PCRA court's
failure to send notice pursuant to Pa.R.Crim.P. 907 is meritless.
3 Brady v. Maryland, 83 S. Ct. 1194 (1963).

4 Appellant also attempts to raise numerous other issues in the arguments
section of his brief, which are not included in his Statement of Questions. As
most of these issues do not implicate a time bar exception to the PCRA, per
42 Pa.C.S. § 9545(b)(1)(i)- (iii), we decline to address them.


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       This Court's standard of review regarding an order denying               a   petition

under the PCRA      is   whether the determination of the PCRA court       is   supported

by the evidence of record and is free of legal error. See         Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

       In this case, the PCRA court dismissed Appellant's petition without                 a


hearing. See PCRA Court Order, 4/21/16, at 1. There is no absolute right

to an evidentiary hearing.         See Commonwealth v. Springer, 961 A.2d

1262, 1264 (Pa. Super. 2008).         On appeal, we examine the issues raised in

light of the record "to determine whether the PCRA court erred in concluding

that there were no genuine issues of material fact and denying relief without

an evidentiary hearing."       Springer, 961 A.2d at 1264.
       We begin by addressing the timeliness of Appellant's petition, as the

PCRA   time limitations implicate our jurisdiction and may not be altered or

disregarded    in    order    to   address    the   merits   of   his   claims.        See

Commonwealth v. Bennett, 930 A.2d 1264, 1267                  (Pa. 2007).       Under the

PCRA, any     petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final.      Id. There   are three exceptions:

       (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

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       (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.   §   9545(b)(1)(i)- (iii).       Any petition attempting to invoke these

exceptions "shall be filed within 60 days of the date the claim could have

been    presented." 42 Pa.C.S.           §    9545(b)(2); see Commonwealth v.

Gamboa- Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant's petition    is untimely.5       Accordingly, in order to reach the

merits of his issues, he must plead and prove one of the exceptions to the

time bar.    See Bennett, 930 A.2d at 1267.              Essentially, Appellant claims

that despite the untimeliness of his petition, he           is   entitled to PCRA relief

based upon newly- discovered facts and government interference, namely,

that the Commonwealth withheld evidence and committed                a   Brady violation.
See Appellant's Brief at      1 -3.   Appellant admits his attorney was provided

with discovery, but he asserts that counsel did not furnish Appellant with his

own copy.    Id. at   1.

       The newly- discovered facts exception


5 Appellant's petition is patently untimely. Appellant's judgment of sentence
became final on October 13, 2004, at the expiration of his thirty days to
petition for allowance of appeal to the Pennsylvania Supreme Court. See 42
Pa.C.S. § 9545(b)(3) (a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review). Accordingly, he had until October 13, 2005, to timely file a PCRA
petition.


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       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. If the
       petitioner alleges and proves these two components, then the
       PCRA court has jurisdiction over the claim under this subsection.

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

quotation marks and citations omitted; emphasis removed).

       To establish the applicability of the government interference exception,

"the petitioner must plead and prove the failure to previously raise the claim

was the result of interference by government officials, and the information

could not have been obtained earlier with the exercise of due diligence."

Commonwealth v. Abu -Jamal, 941 A.2d 1263, 1268              (Pa. 2008).

       Although   a   Brady violation may fall within this exception, the
petitioner must still plead and prove the statutory time bar exception. See

Commonwealth v.           Hawkins,      953   A.2d   1248,   1253    (Pa.   2008).

Specifically, an Appellant still must plead and prove that the facts upon

which the Brady claim        is   predicated were not previously known to the

petitioner and could not have been ascertained through due diligence.          Id.
at 1253; see also Commonwealth v. Lambert, 884 A.2d 848, 852

(2005).6




6   Brady requires that the prosecution disclose evidence favorable to the
accused, including impeachment and directly exculpatory evidence, whether
or not a request has been made for such evidence. See Lambert, 884 A.2d
at 853. Evidence is material per Brady if there is a reasonable probability
(Footnote Continued Next Page)


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      With regard to the surveillance video, Appellant has not pleaded and

proved   a   time bar exception either by newly- discovered fact or by

governmental interference.    First, the video was raised at trial and marked

as Commonwealth Exhibit Four, despite never being introduced as evidence.

See Notes of Testimony (N. T.), PCRA Hearing, 10/6/06, at 4.                Further,

during an evidentiary hearing in the course of Appellant's second PCRA

proceeding, Appellant was provided an opportunity to view the video.             Id.
Thus, Appellant was aware of the video as of the time of his 2003 trial, and

at the very latest, as of the time of the 2006 hearing. See Appellant's Brief

at 8 (discussing Appellant's viewing of the video).         Accordingly, Appellant

has failed to establish that the evidence was either newly discovered, or

withheld by the prosecution in violation of Brady.' See Lambert, 884 A.2d

at 853; Bennett, 930 A.2d at 1272.

      Similarly, the police report does not constitute         a   newly- discovered

fact, nor does the alleged lack of disclosure amount to governmental

interference.   Appellant admits that discovery was provided to his attorney

prior to trial, but claims he did not receive   a   copy of said discovery from his

attorney.    See Lambert, 884 A.2d at 853; Bennett, 930 A.2d at 1272.


(Footnote Continued)

that if the evidence had been disclosed to the defense, the outcome of the
proceedings would have been different. Id. at 854.
' Further, the video was not exculpatory: the video was blurry, and
impossible to discern the identity of any of the shooters. PCO at 11.


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Moreover, Appellant admits he has been litigating the issue of discovery for

years.

         Finally, Appellant argues that the Commonwealth committed                      a   Brady
violation by refusing to disclose             a   ballistics report.   See Appellant's Brief at

9.   It   is   unclear from Appellant's pleadings whether this report actually

exists.     However, Appellant's pleadings also establish that the issue of                     a


ballistics report was raised at the time of trial.                See Appellant's Brief at 9.

Accordingly,      this   is   not        a   newly- discovered fact,       nor   has   Appellant

established government interference.                     See Lambert, 884 A.2d at 853;

Bennett, 930 A.2d at 1272.
         Appellant's petition       is   untimely, and he has not satisfied        a   timeliness

exception to the requirements of the PCRA.                     Consequently, the PCRA court

was without jurisdiction to review the merits of Appellant's claim, and

properly dismissed his petition. See Ragan, 932 A.2d at 1170.

         Order affirmed.


Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 1/17/2017




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