J-S22039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    BENJAMIN VILLANUEVA III                     :
                                                :
                       Appellant                :   No. 173 MDA 2020

             Appeal from the PCRA Order Entered January 15, 2020
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001712-2012


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                      FILED: JUNE 22, 2020

        Appellant, Benjamin Villanueva III, appeals from the order denying his

first petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We

affirm.

        Shortly after 5:00 a.m. on October 11, 2009, two masked individuals

entered a Sunoco A-Plus store in South Williamsport, assaulted the clerk, and

stole approximately $150 in cash and numerous packs of cigarettes. The two

individuals left the store on foot, and were later traced by a police dog as

having traveled to a nearby alley whereupon the dog lost the scent.

        The police obtained a description of the two individuals from the clerk

and by viewing surveillance video from the store. The first individual was an

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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.
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approximately 5’8” tall white male, wearing a light skin-colored Halloween

mask, a gray hoodie sweatshirt, and gloves. The other was a significantly

taller male wearing a green coat, dark gloves, and a dark-colored ski mask.

The video revealed that the ski mask had oddly cut eye holes, and it appeared

that there was some other light-colored material underneath the ski mask,

rather than merely exposed skin. The taller individual was carrying a bright

blue tote bag with white letters or symbols on the side of it.

      Two days later, the South Williamsport police were dispatched to the

700 block of Matthews Boulevard to investigate reports of several suspicious

persons lingering near a bank in the early morning hours. The police stopped

a gold sedan that was mentioned in the reports and found one occupant inside,

Stephen Moore. The police ran the license plate and discovered that the plate

was associated with another car owned by the mother of Philip Hall. Hall was

an acquaintance of Stephen Moore and Appellant. Other officers who were

searching the area located Appellant several blocks away. Upon questioning,

Appellant asked whether “Stephen got locked up” and stated that he had been

with Moore. N.T., 10/21/14, at 98.

      Officers searching in the vicinity of the gold car discovered a light skin-

colored Halloween mask with no hair, gloves, and a white Halloween mask

with reddish synthetic hair.    It was apparent that these items had been

recently deposited on the ground because the items were dry even though the

ground was covered with dew.         Wrapped inside the white mask was a

loaded .22 caliber handgun. The mask with no hair matched the one worn by

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the shorter of the two individuals who robbed the Sunoco. The gold car was

impounded, and a search warrant was obtained. Inside the vehicle, police

discovered a black ski mask, a blue insulated tote bag with white lettering,

and a green coat. The ski mask and coat were consistent with items worn by

the taller of the two individuals who perpetrated the Sunoco robbery, and the

blue bag matched the one carried by that individual. A reddish strand of hair

was discovered inside the ski mask, which was later determined by forensic

analysis to match the hair from the white Halloween mask found near the gold

vehicle.

       DNA testing was performed on several of the items recovered in the

vicinity of the gold vehicle.      Genetic material from several individuals was

found on the white mask; however, it was determined with a high degree of

certainty that Appellant’s DNA matched the DNA of the main contributor to

that mixture. DNA found on the light flesh-toned mask matched Philip Hall.

       Appellant was arrested and charged with robbery, theft by unlawful

taking or disposition, receiving stolen property, simple assault, criminal

conspiracy to commit each of these offenses, and recklessly endangering

another person.2 Following a non-jury trial, the trial court found Appellant

guilty of all charges. Philip Hall was charged as Appellant’s co-defendant in

the Sunoco robbery, and he pleaded guilty to offenses related to the incident

in 2015.
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218 Pa.C.S. §§ 3701(a)(1)(ii), (iv), 3921(a), 3925(a), 2701(a)(3), 903(c),
and 2705, respectively.

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      On December 23, 2014, the trial court sentenced Appellant to an

aggregate term of 5 to 12 years of incarceration.      Appellant filed a timely

motion for reconsideration of the sentence, which the trial court denied.

Appellant appealed, and on April 4, 2016, this Court affirmed the judgment of

sentence. Commonwealth v. Villanueva, No. 246 MDA 2015 (Pa. Super.

filed April 4, 2016) (unpublished memorandum). Appellant filed a petition for

allowance of appeal, which the Pennsylvania Supreme Court denied on July

27, 2016. Commonwealth v. Villanueva, 145 A.3d 165 (Pa. 2016) (table).

      On March 1, 2019, Appellant filed, pro se, his first PCRA petition in which

he claimed to have discovered new evidence that demonstrated his innocence

with respect to the Sunoco robbery. Specifically, Appellant attached to the

petition a letter written by Thomas Moore in February 2019 in which Moore

stated that he committed the October 11, 2009 robbery with Philip Hall, who

pleaded guilty to the robbery in 2015.      PCRA Petition, 3/1/19, Exhibit B.

Following the appointment of counsel, Appellant filed an amended PCRA

petition on April 4, 2019.

      A PCRA hearing was conducted on July 22, 2019, at which Thomas

Moore and Philip Hall testified on behalf of Appellant. Moore – who is not

related to Stephen Moore, the individual with whom Appellant was found with

two days after the robbery – testified consistently with his letter that he was

the individual who perpetrated the Sunoco robbery with Hall. N.T., 7/22/19,

at 2-38. Hall likewise recounted the events of the Sunoco robbery with Moore

as his partner in that crime; he further stated during his testimony that he

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had told the court during his 2015 guilty plea colloquy that Appellant was not

the individual who participated in the robbery with him but he did not name

who that individual was. Id. at 40-63. The Commonwealth called Sergeant

James Taylor to testify regarding the evidence collected and presented at trial

implicating Appellant as perpetrating the October 11, 2009 robbery. Id. at

65-77.

      On January 15, 2020, the PCRA court, the Honorable Marc F. Lovecchio

presiding, filed an order and accompanying opinion denying the PCRA petition.

In its opinion, the PCRA court first determined that Appellant’s PCRA petition

was untimely because it was not filed within one year of the date his judgment

became final.   PCRA Court Opinion, 1/15/20, at 10-11.      Nevertheless, the

PCRA court concluded that Appellant satisfied the newly discovered fact

exception to the PCRA’s one-year time bar because he was unaware of the

facts upon which the petition was based until Appellant’s receipt of Thomas

Moore’s February 15, 2019 letter.      Id. at 11-12.    The court found that

Appellant satisfied the PCRA exception because he filed his PCRA petition

within one month of Moore’s letter and he could not have previously

discovered Moore’s admission with the exercise of due diligence. Id. at 12.

      The PCRA court concluded, however, that Appellant was not entitled to

PCRA relief on his after-discovered evidence claim, finding that the evidence

was not of such a strong nature or character that it would likely result in a

different verdict upon retrial. Id. at 13. The PCRA court found that Moore’s

testimony lacked credibility because it was internally inconsistent and

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contradicted the evidence at trial and Hall’s account of the Sunoco robbery.

Id. at 13-16. Among these contradictions, the PCRA court noted that Moore

stated that he drove the pair to and from the robbery in his red Dodge vehicle

and he parked across the street in a grassy lot while Hall testified that they

were picked up afterward in an alley by a get-away driver in a gold vehicle.

PCRA Court Opinion, 1/15/20, at 14; see also N.T., 7/22/19, at 16-17, 47,

49-51. In addition, Moore testified that Hall was carrying a fire extinguisher

during the robbery that went off inadvertently in the car afterward, while Hall

stated that he attempted to discharge the fire extinguisher as a distraction

during the robbery but discovered it was empty.           PCRA Court Opinion,

1/15/20, at 13-14; see also N.T., 7/22/19, at 15-16, 47-48.

      The court further noted Moore’s testimony that the robbery occurred at

night but “wasn’t past midnight,” while the evidence at trial, including the

time-stamped surveillance footage, clearly indicated that it occurred just after

5:00 a.m. PCRA Court Opinion, 1/15/20, at 14-15; see also N.T., 7/22/19,

at 13, 37-38. Moore testified that he was wearing the white Halloween mask

with red hair during the robbery but did not mention the black ski mask that

was clearly visible in the video. PCRA Court Opinion, 1/15/20, at 15; see also

N.T., 7/22/19, at 14, 24. Moore testified that he recalled having the green

jacket he wore during the incident when he went to jail in 2011, which

contradicts the fact that it was discovered by police two days after the robbery.

PCRA Court Opinion, 1/15/20, at 14; see also N.T., 7/22/19, at 13, 27, 31.

The PCRA court also found it implausible that Moore was the taller individual

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who participated in the robbery as the video shows a substantial height

difference between the two individuals; Moore, who is 5’10” or 5’11”, was only

two to three inches taller than Hall, while Appellant was approximately eight

inches taller than Hall. PCRA Court Opinion, 1/15/20, at 14. In addition, the

court observed that Moore faced no jeopardy from his testimony as the statute

of limitations had run on the robbery and he was already serving a life

sentence. Id. at 15. Finally, the court found that Hall’s testimony also lacked

credibility because it conflicted with trial evidence from a wide range of

sources implicating Appellant, rather than Thomas Moore, as Hall’s partner in

the robbery. Id. at 13, 15-16.

      Appellant filed a timely appeal of the PCRA court’s order. He argues on

appeal that the after-discovered evidence he presented at the PCRA hearing

undermined his conviction to the degree that the PCRA court was required to

vacate his conviction and order a new trial. Appellant frames his appellate

issue as follows:

      Thomas Moore’s written statement and confirming testimony
      along with Codefendant Philip Hall’s collaborative testimony on the
      day of his guilty plea and during the evidentiary hearing establish
      [Appellant] was not involved in the robbery of the Sunoco A-Plus
      on October 11, 2009 and require this Court to grant a new trial to
      permit the fact finder to consider evidence that is not merely
      corroborative or cumulative in nature, will not be admitted solely
      to impeach and which will likely result in a different verdict
      because said evidence is of a higher grade and of greater
      character than any evidence presented by either Party during
      [Appellant’s] first trial.

Appellant’s Brief at 4.



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      We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its decision is free of legal

error. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018).

      When supported by the record, the PCRA court’s credibility
      determinations are binding on this Court, but we apply a de novo
      standard of review to the PCRA court’s legal conclusions. We must
      review the PCRA court’s findings and the evidence of record in a
      light most favorable to the Commonwealth as the winner at the
      trial level.

Id. (internal citation omitted).

      We first must address the timeliness of Appellant’s petition. The PCRA

provides that “[a]ny petition under this subchapter, 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). Appellant alleged that his petition

fell within the newly discovered fact exception to the PCRA’s one-year time

bar. This exception provides that a petitioner may file a PCRA claim beyond

the one-year period if the petitioner alleges and proves that “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). Any petition attempting to invoke this exception “shall be filed

within one year of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2). “The PCRA’s time limitations implicate our jurisdiction and may

not be altered or disregarded in order to address the underlying merits of a

claim.” Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019).




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      In this case, our Supreme Court denied Appellant’s petition for

allowance of appeal on July 27, 2016, and therefore his judgment of sentence

became final 90 days later on October 25, 2016, which was the last date upon

which Appellant could have filed a petition for writ of certiorari with the United

States Supreme Court. 42 Pa.C.S. § 9545(b)(3); Commonwealth v. Reed,

107 A.3d 137, 141 (Pa. Super. 2014). Appellant was thus required to file his

PCRA petition by October 25, 2017. 42 Pa.C.S. § 9545(b)(1). Appellant’s

petition filed on March 1, 2019 was therefore untimely.

      We agree, however, with the PCRA court’s determination that Appellant

satisfied the newly discovered fact exception to the one-year time bar.

Appellant became aware of the facts upon which his petition was based –

Thomas Moore’s admission that he participated in the Sunoco robbery – when

he received Moore’s February 15, 2019 letter.        Appellant filed his petition

approximately two weeks later, well within the one-year period allowed under

the PCRA.    Moreover, Appellant could not have ascertained the new facts

underlying his petition earlier with the exercise of due diligence because Moore

had not previously publicly stated that he participated in the Sunoco robbery.

      Because Appellant’s petition satisfies the PCRA timeliness exception, we

must address whether his after-discovered evidence claim warrants relief. To

prevail on a PCRA claim based upon after-discovered evidence, the petitioner

must show that the evidence (1) has been discovered after the trial and could

not have been obtained earlier by the exercise of reasonable diligence; (2) is

not merely corroborative or cumulative; (3) will not be used solely for

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impeachment purposes; and (4) would likely result in a different verdict if a

new trial were granted. Commonwealth v. Williams, 215 A.3d 1019, 1024

(Pa. Super. 2019).      The petitioner is required to prove each of these four

elements by a preponderance of the evidence. Id.

      As the PCRA court comprehensively explained in its January 15, 2020

opinion, the account Thomas Moore offered of his participation in the October

11, 2009 Sunoco A-Plus robbery materially conflicts with Philip Hall’s account

of the robbery as well as the physical, demonstrative, and testimonial

evidence at trial.   The inconsistencies that the PCRA court highlighted in

Moore’s testimony relate not to fading memories of events ten years prior;

instead, nearly all of the specific details Moore recounted of the robbery were

at odds with the trial evidence and Hall’s testimony. The PCRA court’s findings

of fact and its determination that Moore’s and Hall’s testimony lacked

credibility find ample support in the record. The PCRA court therefore properly

concluded that Appellant’s after-discovered evidence was not “of such a strong

nature and character that a different verdict will likely result at a retrial.”

Williams, 215 A.3d at 1028. Accordingly, we affirm the PCRA court’s denial

of Appellant’s petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/22/2020




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