J-S60037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DEVIN RYAK

                            Appellant               No. 1222 EDA 2014


                   Appeal from the PCRA Order March 17, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0910761-2003


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                           FILED OCTOBER 30, 2015

       Devin Ryak appeals from the order entered on March 17, 2014, in the

Court of Philadelphia County, that denied, after an evidentiary hearing, his

second petition filed pursuant to Pennsylvania’s Post Conviction Relief Act,

42 Pa.C.S. §§ 9451–9546. Ryak argues the PCRA court erred in (1) denying

him PCRA relief where he presented a claim of after-discovered evidence,

and (2) finding that his claims raised on appeal were waived pursuant to

Pa.R.A.P. 1925(b). Based upon the following, we affirm, albeit on the basis

that the petition is untimely.1

____________________________________________


1
  We may affirm the decision of the PCRA court if there is any basis on the
record to support the PCRA court’s action, even if the appellate court relies
on a different basis in its decision. See Commonwealth v. Fisher, 870
A.2d 864, 870 n.11 (Pa. 2005).
J-S60037-15



        Ryak was convicted at a jury trial of first-degree murder, criminal

conspiracy, and possessing an instrument of crime,2 in connection with the

shooting death of Hakim Williams.3 The trial court sentenced Ryak to life in

prison without parole on the first-degree murder charge, a consecutive

sentence of 10 to 20 years’ imprisonment on the conspiracy charge, and no

further penalty on the possession of an instrument of crime charge.           On

direct appeal, this Court affirmed the judgment of sentence and, on March

26, 2008, the Pennsylvania Supreme Court denied allowance of appeal.

Commonwealth v. Ryak, 943 A.2d 321 (Pa. Super. 2007) (unpublished

memorandum), appeal denied, 945 A.2d 169 (Pa. 2008).

        Ryak filed a timely PCRA petition on May 8, 2008.         Following the

appointment of counsel, an amended petition was filed on his behalf.

Private counsel then entered her appearance and filed a new amended

petition, raising multiple claims of ineffectiveness of counsel and claims of

newly discovered evidence from three witnesses. Specifically, Ryak claimed

that Nael Reddy would testify that a person known as “Black” fought with

the victim the day before his death and that the victim was shot as a direct
____________________________________________


2
    18 Pa.C.S. §§ 2502, 903, and 907, respectively.
3
 A full account of the underlying facts of this case is set forth in this Court’s
opinion issued in connection with Ryak’s direct appeal.                     See
Commonwealth v. Ryak, 943 A.2d 321 [2458 EDA 2006] (Pa. Super.
2007) (unpublished memorandum, at 1–3, quoting Trial Court Opinion,
11/8/2006, at 2–5). See also PCRA Court Opinion, 7/14/2014, at 5–6,
quoting Ryak, supra.



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result of a fight between the victim and “Black.” Ryak claimed that Rashena

Carter witnessed the shooting incident and, according to her affidavit, she

was confident that the shooter was not Ryak. Ryak claimed the third

witness, Desjanava Kinslow also witnessed the shooting incident, and that

she saw someone who was not Ryak shoot the victim.          This petition was

followed by a supplemental petition raising another claim of trial counsel’s

ineffectiveness. On April 16, 2012, the PCRA court denied relief without a

hearing. On appeal, this Court affirmed the dismissal of Ryak’s first PCRA

petition.    Commonwealth v. Ryak, 2013 Pa. Super. LEXIS 1480 (Pa.

Super. Mar. 19, 2013) (unpublished memorandum).4

       On April 12, 2013, Ryak filed the present, counseled, PCRA petition —

his second.      Ryak claimed he had new after-discovered evidence, and

attached the affidavits of two witnesses, Brian Rivers and Rakiem Smith. In

____________________________________________


4
  This Court affirmed the denial of PCRA relief on the basis of the PCRA
court’s opinion, which rejected Ryak’s newly-discovered evidence claim, as
follows:

       Appellant did not exercise reasonable diligence in discovering
       witnesses Nael Reddy, Rashena Carter, and Desjanava Kinslow;
       several years have passed since trial and Appellant’s explanation
       that witnesses “did not want to get involved, were scared, or
       feared retaliation” is insufficient reason to excuse lack of
       reasonable diligence; additionally, testimony would have only
       limited impeachment value[.]

Commonwealth v. Ryak, 2013 Pa. Super. LEXIS 1480 (Pa. Super. Mar. 19,
2013) (unpublished memorandum, at 3–4), citing PCRA Court Opinion,
9/23/2012.



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Rivers’ affidavit, dated March 24, 2013, he states that he saw “Black”

shooting at the victim, and that Ryak was not the shooter.           In Smith’s

affidavit, dated March 22, 2013, Smith states he knew the victim and Ryak

prior to the victim’s murder, and that he introduced Ryak and Rivers while

the three men were together in prison. According to Smith, he told Rivers

that Ryak was charged with the shooting of the victim and pointed Ryak out

to Rivers. Rivers told him Ryak was not the shooter because he (Rivers) had

witnessed the shooting. Smith then told Ryak about Rivers, and Ryak asked

to meet Rivers.

       The Commonwealth stipulated to an evidentiary hearing, which was

conducted on March 17, 2014.             Ryak was represented at the hearing by

private counsel, Teri Himebaugh, Esquire, who had filed Ryak’s second PCRA

petition.    At the conclusion of the hearing, the PCRA court denied the

petition, finding the witnesses’ testimony lacked credibility.      This appeal

followed.5
____________________________________________


5
    Following the filing of notice of appeal, Ryak’s private counsel, Teri
Himebaugh, Esquire, filed in this Court, on June 14, 2014, an application to
withdraw as counsel. On July 9, 2014, by per curiam order this Court
granted the application, and directed the PCRA court to determine Rybak’s
eligibility for court-appointed counsel. By order dated July 11, 2014, and
filed in this Court on July 16, 2014, PCRA court appointed Peter Levin,
Esquire, as counsel for Ryak. On August 4, 2014, Lee Mandell, Esquire, was
appointed to represent Ryak. Thereafter, as a result of a petition for remand
filed by Mandell on behalf of Ryak, this Court remanded to the PCRA court
to conduct an on-the-record determination as to whether Ryak’s request for
waiver of counsel was knowing, intelligent and voluntary, pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), and retained
(Footnote Continued Next Page)


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      The standards governing our review of the denial of a request for post

conviction relief are well settled:

      [T]he standard of review of an order denying a PCRA petition is
      whether the determination of the PCRA court is supported by the
      evidence of record and is free of legal error. The PCRA court’s
      findings will not be disturbed unless there is no support for the
      findings in the certified record.

Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012)

(citations omitted).

      At the outset, we note that, although the PCRA court addressed Ryak’s

petition, we must consider the issue of timeliness of the petition.

      The timeliness requirements of the PCRA are jurisdictional in nature.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S.Ct. 2695 (2014). As this Court has explained:

      A PCRA petition, including a second or subsequent petition, must
      be filed within one year of the date the underlying judgment
      becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
      Bretz, 2003 PA Super 298, 830 A.2d 1273 (Pa. Super. 2003);
      Commonwealth v. Vega, 2000 PA Super 174, 754 A.2d 714
                       _______________________
(Footnote Continued)

jurisdiction. On February 10, 2015, following a Grazier hearing, the PCRA
court granted Ryak’s request to waive his right to counsel.

       On March 9, 2015, this Court granted Ryak’s application for an
extension of time to file his brief until May 26, 2015. On March 12, 2015,
this Court denied Ryak’s application to stay briefing schedule, “in light of the
fact that this appeal appears to involve the denial of a serial untimely PCRA
petition, and therefore, the only issue to be considered in this appeal is the
timeliness of the PCRA petition.” Per Curiam Order, 3/12/2015. On May 4,
2015, Ryak filed his appellate brief pro se. The Commonwealth filed its brief
late on September 21, 2015.



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     (Pa. Super. 2000). A judgment is deemed 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 review.” 42
     Pa.C.S.A. § 9545(b)(3).

     The three statutory exceptions to the timeliness requirements of
     the PCRA provide very limited circumstances to excuse the late
     filing of a petition. 42 Pa.C.S.A. § 9545(b)(1). To invoke an
     exception, a petition must allege and the petitioner must prove:

        (i)      the failure to raise a 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;

        (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). “As such, when a PCRA
     petition is not filed within one year of the expiration of direct
     review, or not eligible for one of the three limited exceptions, or
     entitled to one of the exceptions, but not filed within 60 days of
     the date that the claim could have been first brought, the trial
     court has no power to address the substantive merits of a
     petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor,
     562 Pa. 70, 77, 753 A.2d 780, 783 (2000); 42 Pa.C.S.A. §
     9545(b)(2).

Commonwealth v. Robinson, 12 A.3d 477, 479–480 (Pa. Super. 2011)

(footnote omitted).


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      Ryak’s judgment of sentence became final on June 24, 2008, after the

Pennsylvania Supreme Court denied his petition for allowance of appeal on

March 26, 2008, and the 90-day period for filing a petition for writ of

certiorari with the United States Supreme Court expired. See U.S.Sup.Ct.R.

13 (stating that a writ of certiorari is timely if filed within ninety days of the

entry of judgment by a state court of last resort or a federal court of

appeals). Therefore, the petition filed by Ryak on April 12, 2013, is untimely

on its face, as it was filed nearly five years after his judgment of sentence

became final. However, in his petition, Ryak invoked a statutory exception

to the PCRA one-year time bar, 42 Pa.C.S. § 9545(b)(1)(ii).

      Our Court recently explained this exception, as follows:

      The timeliness exception set forth at Section 9545(b)(1)(ii) has
      often mistakenly been referred to as the “after-discovered
      evidence” exception. [Commonwealth v.] Bennett, [593 Pa.]
      at 393, 930 A.2d at 1270. “This shorthand reference was a
      misnomer, since the plain language of subsection (b)(1)(ii) does
      not require the petitioner to allege and prove a claim of ‘after-
      discovered evidence.’” Id. Rather, as an initial jurisdictional
      threshold, Section 9545(b)(1)(ii) requires a petitioner to allege
      and prove that there were facts unknown to him and that he
      exercised due diligence in discovering those facts. See 42
      Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra. Once jurisdiction is
      established, a PCRA petitioner can present a substantive after-
      discovered-evidence claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi)
      (explaining that to be eligible for relief under PCRA, petitioner
      must plead and prove by preponderance of evidence that
      conviction or sentence resulted from, inter alia, unavailability at
      time of trial of exculpatory evidence that has subsequently
      become available and would have changed outcome of trial if it
      had been introduced). In other words, the “new facts” exception
      at:




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         [S]ubsection (b)(1)(ii) 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.

     Bennett, supra at 395, 930 A.2d at 1272 (internal citations
     omitted) (emphasis in original). Thus, the “new facts” exception
     at Section 9545(b)(1)(ii) does not require any merits analysis of
     an underlying after-discovered-evidence claim. Id. at 395, 930
     A.2d at 1271.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015)

(footnote omitted), appeal denied, ___ A.3d ___ (Pa. September 30, 2015).

     In this case, Ryak’s petition alleges previously unknown facts based

upon the discovery of witnesses Brian Rivers and Rakiem Smith, who

provided affidavits to support his claim that “Black” murdered the victim and

that Ryak was not the shooter.       However, the focus of the previously

unknown facts exception “is on [the] newly discovered facts, not on a newly

discovered or newly willing source for previously known facts.”          See

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). While Ryak

attempts to focus on the discovery of his new witnesses, the underlying fact

that Ryak did not shoot Williams, if true, was information available to Ryak

and cannot be considered to be previously unknown.        In fact, in Ryak’s

previous PCRA petition, he proffered affidavits of three other witnesses who

would claim the shooter was not Ryak.




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       Furthermore, Ryak simply states in his petition that “he did not even

know Brian Rivers before he was introduced to him while incarcerated by

Rakeim Smith.”       Ryak’s PCRA Petition, 4/12/2013, at 6.              However, both

Rivers and Smith were lifelong residents of Ryak’s neighborhood where the

shooting occurred, and Ryak offers no explanation to demonstrate that these

facts could not have been ascertained by the exercise of due diligence.

       Accordingly, we conclude Ryak has failed to demonstrate the existence

of a previously unknown fact that could not have been ascertained by the

exercise    of   due    diligence,    as       required   by   Section   9545(b)(1)(ii).

Consequently, since Ryak failed to satisfy the requirements of this exception,

neither this Court, nor the PCRA court, has jurisdiction to consider Ryak’s

substantive claim for relief.

       In any event, even if the petition were timely filed, no relief would be

due.6 In the PCRA context, regarding newly discovered evidence, a

“petitioner must plead and prove by a preponderance of the evidence ‘[t]he

unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the
____________________________________________


6
  We agree with the PCRA court that Ryak’s Pa.R.A.P. 1925(b) statement is
vague in its allusions to the United States Constitution, and therefore his
arguments may be deemed waived.             See Pa.R.A.P. 1925(b)(4)(vii).
Nonetheless, the PCRA court meaningfully addressed the argument raised by
Ryak in this appeal, enabling this Court to review the merits.           See
Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) (en banc)
(holding where the trial court is capable of filing a meaningful opinion, our
appellate review could proceed).



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trial if it had been introduced.’” Commonwealth v. Foreman, 55 A.3d 532,

537 (Pa. Super. 2012), citing 42 Pa.C.S. § 9543(a)(2)(vi). Specifically, in

order to obtain relief under the PCRA based upon newly-discovered

evidence, the petitioner must establish 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. See [Commonwealth v.] D'Amato, 856
        A.2d [806, 823 (Pa. 2004)]; Commonwealth v. Abu-Jamal,
        553 Pa. 485, 720 A.2d 79, 94 (Pa. 1998).

Commonwealth v. Washington, 927 A.2d 586, 595–596 (Pa. Super.

2007).

        Here, the PCRA court conducted an evidentiary hearing after which it

denied relief, finding that the testimony of Ryak’s witnesses, besides being

cumulative     and    offered    solely   for   impeachment   purposes,7   was   so


____________________________________________


7
    The PCRA court noted that on direct appeal, this Court stated:

        Ryak’s arguments are utterly unpersuasive: he was identified as
        the shooter by three witnesses, each of whom observed Ryak for
        several minutes just prior to the shooting, and each of whom
        testified that they knew him from the neighborhood before the
        shooting.

PCRA Court Opinion, 7/14/2014, at 13, quoting Commonwealth v. Ryak,
943 A.2d 321 (Pa. Super. 2007) (unpublished memorandum, at 5–6), appeal
denied, 945 A.2d 169 (Pa. 2008). The PCRA court concluded, “New evidence
to support a claim of innocence in the face of this direct evidence is
cumulative.” PCRA Court Opinion, supra, at 14.
(Footnote Continued Next Page)


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inconsistent and incredible that it would not have compelled a different

verdict.    See PCRA Court Opinion, 7/14/2014, at 12–15.

      When the PCRA court makes a credibility determination regarding

newly discovered evidence, the PCRA court must determine “whether the

nature and quality of the evidence is such that there is a reasonable

probability that the jury would have credited it and rendered a more

favorable verdict.” Commonwealth v. Johnson, 966 A.2d 523, 542 (Pa.

2009).      In its opinion, the PCRA court thoroughly reviewed the witnesses’

testimony and discussed, inter alia, the witnesses’ sudden and suspicious

timing, the many inconsistencies in their testimony, and their evasiveness in

testifying, which led the court to conclude that the witnesses were not

credible.    See PCRA Court Opinion, 7/14/2014, at 9–11. The PCRA court

concluded “Ryak failed to meet his burden of proof, showing that more likely

than not the jury verdict would have been different if this ‘new’ evidence

                       _______________________
(Footnote Continued)

      The PCRA court further found that “Ryak failed to show that the
testimonies of Smith and Rivers are not being offered solely for
impeachment purposes.” Id. at 14. The court explained:

      Three witnesses testified that they observed Ryak for several
      minutes prior to the shooting, knew Ryak from the neighborhood
      before that night, and identified Ryak as the shooter. … Rivers’
      testimony only contradicts the Commonwealth’s testimony by
      stating that he was there that night also and he saw someone
      else shoot [the victim].

Id. at 14.




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were introduced, to warrant relief.” Id. at 11. See also id. at 15.       The

record supports the PCRA court’s determination and we would not disturb it.8

See Commonwealth v. Spotz, 896 A.2d 1191, 1227 (Pa. 2006) (“Because

the PCRA court was afforded the opportunity to assess and weigh the

credibility of [the witness] at the PCRA hearing, we should refrain from

disturbing its credibility determinations.”).

       Accordingly, even if this second PCRA petition were timely, which it is

not, Ryak’s substantive newly discovered evidence claim would fail to

warrant PCRA relief. Therefore, we affirm.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2015




____________________________________________


8
  In light of our discussion of the PCRA court’s credibility determination,
there is no need to discuss the PCRA court’s findings that the proffered
newly discovered evidence was cumulative and offered solely for
impeachment purposes.



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