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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

PEDRO J. REYMOSEO A/K/A PEDRO J.
REYNOSO,

                          Appellant                   No. 2657 EDA 2014


                 Appeal from the PCRA Order August 21, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0500301-1994


BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 16, 2015

       Pedro J. Reymoseo a/k/a Pedro J. Reynoso appeals from the order

denying his petition under the Post-Conviction Relief Act.     For the reasons

set forth herein, we affirm.

       On July 9, 1996, a jury found Appellant guilty of two counts of first-

degree murder and one count of possessing an instrument of a crime in

connection with the 1991 shooting deaths of Carlos Torres and Charles

Rivera, who were sitting in a parked car.         Two eyewitnesses identified

Appellant as the shooter. The court sentenced Appellant to two consecutive

terms of life imprisonment for the murder convictions and a concurrent term

of eleven and one-half months to sixty months for the possession conviction.

Appellant appealed to this Court, which affirmed.         Commonwealth v.

*
    Former Justice specially assigned to the Superior Court.
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Reynoso, 726 A.2d 1082 (Pa.Super. 1998) (unpublished memorandum),

appeal denied, 738 A.2d 456 (Pa. 1999).

      Appellant filed his first PCRA petition, which was initially pro se, on

March 7, 2000.    After then-appointed counsel filed a petition to withdraw

and brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), the PCRA

court dismissed Appellant’s petition as meritless.   This Court affirmed the

PCRA court’s dismissal.    Commonwealth v. Reynoso, 816 A.2d 333

(Pa.Super. 2002) (unpublished memorandum).           Appellant did not seek

allowance of appeal.

      In his second PCRA petition, termed a habeas corpus petition, filed

with the assistance of counsel on November 22, 2010, Appellant claimed

that newly-discovered facts rendered the merits of his petition reviewable

under the PCRA’s second time-bar exception.       42 Pa.C.S. § 9545(b)(ii).

Specifically, he sought to present the testimony of Sarah Robinson, a

Commonwealth witness whom he claimed recanted her previous testimony

against Appellant. The PCRA court determined that the testimony was not

newly-discovered and denied his petition as untimely.      Appellant did not

appeal that ruling.

      Appellant instead filed a third PCRA petition on November 22, 2011.

In his petition, Appellant brought forward additional newly-discovered facts

in the recantation by another of the initial eyewitnesses, Samuel Wilkerson.

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Appellant filed a supplement to that petition on March 2, 2012, which

included an affidavit from Wilkerson. In another subsequent August 2, 2012

supplemental filing, Appellant further sought to introduce the testimony of

Robinson,   Marisol   Colon-Torres,    and   Jose   Ayoso   Colon   to   “bolster”

Wilkerson’s testimony.     Though the Commonwealth did not object to an

evidentiary hearing to evaluate Wilkerson’s recantation, it did object to the

testimony of Robinson, Colon-Torres, and Colon, as their identities and

eventual proffers were known to Appellant for more than 60 days prior to

the August 2012 supplemental filing. Accordingly, the Commonwealth filed a

motion to preclude the testimony of the three witnesses at the evidentiary

hearing. The PCRA court granted that motion, and the parties proceeded to

an evidentiary hearing on August 13, 2013, where Appellant presented only

Wilkerson. The hearing was continued on October 7 and December 9, 2013,

where the Commonwealth presented Detective Charles Bentham, one of the

initial investigators, as a witness.

      Shortly thereafter, on December 18, 2013, Appellant filed another

supplement to his most recent petition and requested to testify.              The

Commonwealth objected and filed a motion to preclude the testimony due to

timeliness, which was granted on January 31, 2014.             The PCRA court

dismissed Appellant’s third PCRA petition and related supplements on

September 8, 2014. Appellant filed this appeal.




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      Pursuant to the PCRA court’s directive, Appellant submitted his

1925(b) statement of errors complained of on appeal.                   The court

subsequently filed a 1925(a) opinion. This matter is now ripe for our review.

On appeal, Appellant presents one question:

      Whether the PCRA court erred in its ruling prohibiting Appellant
      from testifying and from presenting testimony from witnesses in
      support of his Second Successive Post-Conviction Relief Act
      Petition on the grounds that admission of the proposed
      testimony would be in violation of the provisions in 42 Pa.C.S. §
      9545(b)(1) and (2) regarding timeliness and the court’s
      jurisdiction.

Appellant’s brief at 2.

      Before reaching the merits of Appellant’s claim, we must first examine

whether we have jurisdiction to review this PCRA petition.         “Crucial to the

determination of any PCRA appeal is the timeliness of the underlying

petition. Thus, we must first determine whether the instant PCRA petition

was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 768 (Pa. Super.

2011). Indeed, the timeliness requirement of the PCRA is both “mandatory

and jurisdictional in nature,” and this Court “cannot ignore a petition’s

untimeliness and reach the merits of the petition.”         Commonwealth v.

Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (citations omitted).

      In order to be considered timely, a PCRA petition, “including a second

or subsequent petition, shall be filed within one year of the date the

judgment becomes final[.]”      42 Pa.C.S. § 9545(b)(1).      Though Appellant’s

petition is indisputably untimely, we may still reach its merits if it falls within

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one of three exceptions to the statute’s jurisdictional time-bar. In order for

this Court to have jurisdiction to review a petition, an appellant must plead

and prove that: 1) failure to raise a claim is the result of governmental

interference; 2) the recent discovery of unknown facts that could not have

been ascertained by the petitioner with due diligence; or 3) the existence of

a new constitutional right recognized by either the Supreme Court of the

United States or the Supreme Court of Pennsylvania and that court applied

such right retroactively. 42 Pa.C.S. § 9545(b). A petition invoking one of

these exceptions must be filed within 60 days of the date the claim could

have been presented, 42 Pa.C.S. § 9545(b)(2), and a facially untimely

petition that does not plead and prove any of the three exceptions to the

time-bar is to be dismissed.

     Further, as Appellant’s arguments each discuss the PCRA court’s

treatment of his purported newly-discovered facts under the PCRA, we

recognize that, as it relates to the initial jurisdictional question, the

corresponding exception “requires a petitioner to allege and prove that there

were facts unknown to him and that he exercised due diligence in

discovering those facts.”   Commonwealth v. Brown, 111 A.3d 171, 177

(Pa.Super. 2015).    If an appellant successfully alleges and proves both

elements, “then the PCRA court has jurisdiction over the claim under this

subsection” and may proceed to the merits of his substantive after-




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discovered-evidence claim.        Commonwealth v. Bennett, 930 A.2d 1264,

1272 (Pa. 2007).

        Appellant bases his arguments upon the characterization of the various

testimony he seeks to offer.         Specifically, he urges that the testimony of

Robinson, Torres-Colon, and Colon relating to Wilkerson’s recantation will

“bolster” Wilkerson’s testimony and not substantively add to it. Appellant’s

brief at 25. Thus, he claims that the testimony was admissible as relevant

testimony under Pa.R.E. 4011 and not barred by the PCRA’s 60-day

limitation for newly-discovered facts. Appellant further argues that his own

testimony “in support of his claim of innocence” is admissible because an

individual “has the right to present exculpatory evidence in a proceeding in

which his guilt or innocence will be determined[.]” Appellant’s brief at 26-

27.

        Importantly, Appellant acknowledges that the proffered testimony

from Robinson, Torres-Colon, and Colon is inadmissible as substantive,

after-discovered evidence. Appellant’s brief at 22. He instead argues that

the testimony is admissible for the limited purpose of bolstering Wilkerson’s

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1
    Evidence is relevant if:

        (a) it has any tendency to make a fact more or less probable
        than it would be without the evidence; and

        (b) the fact is of consequence in determining the action.



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testimony. Appellant does not address on appeal the propriety of Robinson’s

testimony as it relates to her own recantation.

      The Commonwealth counters by arguing that Appellant did not plead

and cannot prove that his own testimony constitutes newly-discovered facts,

that Robinson’s testimony is both untimely and prohibited for being “merely

corroborative,” and that the proffered testimony of all three “corroborative”

witnesses is time-barred, as Appellant knew of their identities and proposed

testimonies more than sixty days before he moved for their presentation.

Commonwealth’s brief at 12-15. Regarding timeliness, the Commonwealth

maintains that the general admissibility of the three “corroborative”

witnesses is irrelevant, as the PCRA court lacked jurisdiction due to

Appellant’s violation of the PCRA’s sixty-day provision.     Id.; 42 Pa.C.S. §

9545(b)(2). We agree with the Commonwealth.

      As a preliminary matter, we emphasize that Wilkerson’s testimony was

unopposed by the Commonwealth. After Appellant supplied the PCRA court

with an affidavit from Wilkerson, the Commonwealth agreed to hold an

evidentiary hearing, though the purpose, either to determine whether

Wilkerson’s   recantation   was   truly   newly-discovered   or    whether   that

recantation was credible, is unclear. The propriety of Wilkerson’s testimony

is not challenged herein, and we will not address it.             At issue is the

admissibility of testimony of the three “bolstering” witnesses, Robinson,

Colon-Torres, and Colon.

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       Appellant cannot satisfy the second timeliness exception to the PCRA

with respect to these three witnesses and, therefore, the trial court properly

dismissed his petition.       We initially note that no statement given in any

affidavit or offered by Appellant indicates how any of the three witnesses

may    “bolster”    Wilkerson’s     testimony    without   acting   as   a    separate,

substantive witness merely by another name.

       Regardless     of   Appellant’s    apparent   disingenuousness        about   the

purpose of the proposed testimony, we affirm the PCRA court’s dismissal of

Appellant’s petition as untimely. The three witnesses’ affidavits reveal that

Appellant did or should have known about the substance of their respective

testimony, at the very latest, on October 1, 2010 (Robinson); July 4, 2011

(Colon-Torres); and July 1, 2011 (Colon). Notwithstanding the fact that it

was not until August 2, 2012, that he first mentioned the “bolstering”

witnesses, none of the three witnesses was known for fewer than 60 days

prior to the filing of Appellant’s November 22, 2011 petition.2

       The PCRA instructs that “any petition invoking an exception” to the

timeliness requirement “shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. 9434 (b)(2) (emphasis added). As

Appellant filed his petition more than 60 days after he did or should have
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2
  We need not reach the application of this Court’s settled law regarding the
due diligence in the discovery of relevant facts, as even the most generous
view of Appellant’s argument renders it unreviewable as untimely.



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learned of the witnesses’ testimony, the PCRA is clear that this Court is

without jurisdiction to review the merits of Appellant’s petition with respect

to the testimony of Robinson, Colon-Torres, and Colon.

      Finally, Appellant argues that the PCRA court violated the fundamental

principle that an accused “has the right to present exculpatory evidence in a

proceeding in which his guilt or innocence will be determined under the due

process clauses of the United States and Pennsylvania Constitutions[.]”

Appellant’s brief at 27. What Appellant disregards, however, is that he was

afforded the opportunity to present evidence, including his own testimony,

at his trial. It was there that his guilt was determined, not in subsequent

PCRA proceedings, and his own testimony satisfies none of the PCRA’s

timeliness exceptions.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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