J-S20036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
JOHN LIEBEL                             :
                                        :
                  Appellant             :   No. 3454 EDA 2016

            Appeal from the PCRA Order September 19, 2016
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0002466-1997


BEFORE:    BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                               FILED JUNE 06, 2017

     John Liebel appeals, pro se, from the order entered September 19,

2016, dismissing as untimely his eighth petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Liebel seeks relief

from the judgment of sentence of a mandatory term of life imprisonment

imposed on October 10, 1997, following his conviction of first-degree murder

for the February 1997 death of his father.    On appeal, Liebel argues the

PCRA court erred in (1) finding he failed to qualify for the newly discovered

fact exception to the PCRA timing requirements, and (2) failing to grant his

request to withdraw his guilty plea based upon counsel’s ineffectiveness.

For the reasons below, we affirm.

     The facts and procedural history underlying Liebel’s conviction are

summarized by the PCRA court as follows:
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     [O]n February 22, 1997, [Liebel’s] father fired him from the
     family business and ordered him to move out of his parents’
     home. [Liebel] decided to burn the family bible and family
     portrait. When his father entered the room while he was still in
     front of the stove, he shoved [Liebel] to the side and took the
     items out of the fire. [Liebel] then tackled his father from behind
     and placed his arm around his father’s neck and choked him.
     Once his father was unresponsive, he then tied a camera strap
     around his neck and continued to choke him. [Liebel] eventually
     turned himself into police.

           On September 15, 1997, [Liebel] entered a guilty plea to
     Criminal Homicide and a degree of guilt hearing was immediately
     held. On September 17, 1997, after a two day hearing, the trial
     court found [Liebel] guilty of First Degree Murder. Sentencing
     was deferred until October 10, 1997. On September 23, 1997,
     [Liebel] filed a pro se letter requesting to withdraw his guilty
     plea and his counsel filed a memorandum of law in support of
     [Liebel’s] request to withdraw his plea. On October 10, 1997,
     the trial court denied the motion and the court sentenced
     [Liebel] to the mandatory sentence of life imprisonment.

           [Liebel] filed a post-sentence motion … and a supplemental
     post-sentence motion[. He] challenged the sufficiency of the
     evidence for the First Degree Murder charge, the voluntariness of
     his plea, alleged that the trial court erred in not permitting him
     to withdraw his plea, and alleged ineffective assistance of trial
     counsel for failing to present evidence of physical, sexual, and
     emotional abuse of [Liebel] by his father. An evidentiary hearing
     was held … and the motion was thereafter denied on February
     20, 1998. [Liebel] then filed a direct appeal to the Superior
     Court of Pennsylvania, which was denied on March 5, 1999.
     [See Commonwealth v. Liebel, 737 A.2d 1275 (Pa. Super.
     1999) (unpublished memorandum).]

            On February 18, 2000, [Liebel] filed his first pro se PCRA
     petition and was appointed counsel. [C]ounsel filed an amended
     petition raising claims that [Liebel’s] plea was involuntary and/or
     his guilty plea colloquy was ineffective, and ineffective assistance
     of counsel claims involving trial counsel’s failure to investigate
     and/or produce evidence of abuse. After an evidentiary hearing
     was held, the PCRA Court dismissed the petition on July 21,
     2000.




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            [Liebel] appealed to the Superior Court and was denied
     relief on June 13, 2001. The Pennsylvania Supreme Court
     granted [Liebel’s] allowance of appeal on the issue of whether
     appellate counsel’s failure to file a petition for allowance of
     appeal on direct appeal after [Liebel] requested the petition be
     filed was cognizable under the PCRA. On June 9, 2013, the
     Supreme Court held that the claim was cognizable under the
     PCRA and remanded the case back to the PCRA Court for further
     proceedings. [See Commonwealth v. Liebel, 825 A.2d 630
     (Pa. 2003).]

           The PCRA Court appointed new counsel and on January 16,
     2004, granted [Liebel] leave to file a petition for allowance of
     appeal nunc pro tunc. [Liebel] filed a petition and on August 27,
     2004, the Supreme Court denied the petition.                [See
     Commonwealth v. Liebel, 875 A.2d 1074 (Pa. 2004).] On
     October 4, 2004, the Supreme Court denied [Liebel’s] application
     for reconsideration.

          [Liebel] filed six additional PCRA petitions on July 17,
     2006, October 10, 2007, February 28, 2008, July 23, 2008,
     September 2, 2009 and May 18, 2012. The July 2006, October
     2007, September 2009 and May 2012 petitions were denied on
     the basis that his claims were previously litigated and waived,
     without merit, and/or time barred. The February 2008 and July
     2008 petitions were withdrawn after the PCRA Court issued a
     907 Notice of Intent to Dismiss the petitions.

           On July 19, 2016, [Liebel] filed his eighth PCRA petition,
     challenging the voluntariness of his guilty plea and alleging
     ineffective assistance of counsel for failing to investigate [his]
     claims of alleged abuse[] by his father. [Liebel’s] Petition was
     filed over ten and one-half years past the one year filing
     deadline. [Liebel] asserts that he qualifies for an exception
     pursuant to newly-discovered evidence under 42 Pa.C.S.A. §
     9545(b)(1)(ii)(2). [Liebel] alleges that the newly-discovered
     evidence consists of a letter he received on June 22, 2016 from
     Father Donald of Saint Vincent Archabbey in Latrobe,
     Pennsylvania. The letter stated that [Liebel’s] father was at a
     monastery in New York for seven years as “a permanent oblate”
     and that he “could be volatile at times.”

           On August 4, 2016, the Commonwealth filed a motion to
     dismiss [Liebel’s] Petition. On August 22, 2016, [the PCRA]
     Court issued a 907 Notice of Intent to Dismiss, noting that the


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       Petition was time-barred and [Liebel’s] arguments were
       meritless. On September 2, 2016, [Liebel] responded to the
       Notice. On September 21, 2016, this Court entered an order
       denying the Petition.

PCRA Court Opinion, 11/21/2016, at unnumbered 1-4.                This timely appeal

followed.1

       On appeal, Liebel first contends the PCRA court applied an incorrect

standard when it found his petition was untimely filed.           “In reviewing the

denial of PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.”            Commonwealth v.

Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) (internal punctuation and

citation omitted). Further, a PCRA court may dismiss a petition “without an

evidentiary hearing if there are no genuine issues of material fact and the

petitioner is not entitled to relief.” Id. (citations omitted).

       Here, the PCRA court determined Liebel’s eighth PCRA petition was

untimely filed. See PCRA Court Opinion, 11/21/2016, at unnumbered 6-10.

       The PCRA timeliness requirement … is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
       1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
       petition’s untimeliness and reach the merits of the petition. Id.

____________________________________________


1
  On October 14, 2016, the PCRA court ordered Liebel to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Liebel complied with this directive, and filed a concise statement on
November 7, 2016.




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

134 S.Ct. 2695 (U.S. 2014).

       A PCRA petition must be filed within one year of the date the

underlying judgment becomes final.             42 Pa.C.S. § 9545(b)(1).    Liebel’s

judgment of sentence was final on November 26, 2004, 90 days after the

Pennsylvania Supreme Court denied his petition for allowance of appeal from

his direct appeal, and he failed to petition for a writ of certiorari in the United

States Supreme Court.2         See id. at § 9545(b)(3); United States Supreme

Court Rule 13. Therefore, he had until November 26, 2005, to file a timely

petition, and the one before us, filed nearly 11 years later, is patently

untimely.

       Nevertheless, an untimely PCRA petition may still be considered if one

of the    three time-for-filing exceptions applies.          See 42    Pa.C.S. §

9545(b)(1)(i)-(iii).    A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim

could have first been brought. See 42 Pa.C.S. § 9545(b)(2).

       In the present case, Liebel asserts his petition meets the timeliness

exception for newly discovered facts found in Section 9545(b)(1)(ii).         See

Liebel’s Brief at 1. This exception requires the petitioner to allege and prove

that “the facts upon which the claim is predicated were unknown to the
____________________________________________


2
 We note the 90th day, November 25, 2004, was Thanksgiving Day, a legal
holiday. See 1 Pa.C.S. § 1908.



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petitioner and could not have been ascertained by the exercise of due

diligence[.]”     42 Pa.C.S. § 9545(b)(1)(ii).   See also Commonwealth v.

Burton, ___ A.3d ___, ___, 2017 WL 1149203, at *8 (Pa. Mar. 28, 2017).

       Here, Liebel asserts the 2016 letter3 from Father Donald contains two

facts which were previously unknown to him: (1) his father (the victim) was

never a monk, but rather, only an oblate;4 and (2) his father was “volatile

on more than one occasion during his time as an oblate” when he lived in an

abbey in New York from 1962 to 1969. Liebel’s Brief at 2. He insists these

new “facts” are “contrary to the previous evidence in this case[.]” Liebel’s

Brief at 2. Specifically,

       [t]he fact that [his] father was not a monk means that his
       parents’ cover-story for abusing him was false, and the fact that
       [Liebel’s] father was volatile at the monastery means that his
       volatility cannot be blamed on children.

Id. With regard to the “due diligence” requirement, Liebel contends he had

no reason to “seek information about his father’s time at the monastery ‘30




____________________________________________


3
  We note the letter is dated June 18, 2016, less than 60 days before he filed
his PCRA petition on July 19, 2016. See 42 Pa.C.S. § 9545(b)(2).
4
  The letter Liebel received from Father Donald explained that Liebel’s father
“became a permanent oblate rather than make solemn vows.” Pro Se
Petition Under the Post Conviction Relief Act, 7/20/2016, Exhibit 3 (Letter
from Father Donald to Liebel). An Oblate of St. Benedict is a person who
has “associated [himself] with a Benedictine community in order to enrich
[his] Christian way of life.” http://www.osb.org/obl/intro.html.




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years prior to the murder’ because it was ‘too remote in time’ to have any

bearing on [his] case.”5 Id. at 8.

       First, we agree with Liebel that the “facts” his father was never a monk

and “could be volatile at times” while living in a monastery 30 years before

his murder, were unknown to him before he received the 2016 letter from

Father Donald.        Nevertheless, our review of the record reveals ample

support for the PCRA court’s determination that Liebel failed to demonstrate

these facts “could not have been ascertained by the exercise of due

diligence.” 42 Pa.C.S. § 9545(b)(1)(ii).

       When considering the due diligence requirement,

       [t]his Court has held “that due diligence requires neither perfect
       vigilance nor punctilious care, but rather it requires reasonable
       efforts by a petitioner, based on the particular circumstances, to
       uncover facts that may support a claim for collateral relief.”

Commonwealth v. Brown, 141 A.3d 491, 506 (Pa. Super. 2016)

(quotation omitted).

       The PCRA court addressed the issue of Liebel’s due diligence in

uncovering these “new facts” as follows:

              In dismissing [Liebel’s] Petition, this Court reasoned that
       [Liebel’s] “new fact” involving evidence that his father could be
       volatile has been previously offered … through other witnesses
       during his post-sentence motions and in his first PCRA Petition.
____________________________________________


5
   Interestingly, he now claims this “remote” information regarding his
father’s time in the monastery is relevant and supports his allegations of
abuse.




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       Additionally, [Liebel] failed to demonstrate that he exercised due
       diligence in obtaining the information or that the information
       could not have been obtained earlier. [Liebel] did not seek to
       obtain information about his father’s time at the monastery until
       2014 when two clergy men happened to visit the state
       correctional facility where [Liebel] is an inmate.

PCRA Court Opinion, 11/21/2016, at 8. The court further explained:

       [Liebel] previously stated in his Petition that he knew that his
       father spent time at a monastery in upstate New York. [Liebel,]
       therefore, could have contacted monasteries in upstate New York
       inquiring about his father prior to 2014.         [He] failed to
       demonstrate any effort to do so.

Id. at 10.

       Liebel counters the court’s finding with his assertion that, before

receiving Father Donald’s letter, he had no reason “to locate and contact the

monastery his father had lived at in the 1960’s[.]” Liebel’s Brief at 8. We

disagree.    A consistent theme in Liebel’s prior appeals was his contention

that counsel was ineffective for failing to investigate, and present evidence

of, the purported physical, sexual and emotional abuse his father inflicted

upon him.     See PCRA Court Opinion, 11/21/2016, at unnumbered 11-12.6

The “new facts” that Liebel’s father was never a monk (as he had claimed to

be), and had been “volatile at times” when he lived in a monastery, were

related to Liebel’s abuse charges.             If, as he now contends, this new

information is relevant to his father’s character (or lack thereof), Liebel could

have inquired about this period in his father’s life at any time before or after
____________________________________________


6
   See also Leibel’s PCRA Petitions filed 7/17/2006, 9/2/2009, and
5/18/2012.



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trial in 1997. Indeed, he failed to make any inquiry until 2014, when, by

happenstance, two clergy visited the prison. We agree with the PCRA court’s

determination that this demonstrates a lack of due diligence.

       Therefore, we conclude the PCRA court properly dismissed Liebel’s

petition as time-barred.7        Accordingly, we need not address his additional

argument concerning prior counsel’s ineffectiveness. See Taylor, supra.
____________________________________________


7
  We note Liebel correctly asserts the PCRA court, in its opinion, blended the
standards for a newly discovered fact timeliness exception and a substantive
claim of after-discovered evidence. The Pennsylvania Supreme Court has
explained the interplay between the newly discovered facts exception to the
timeliness requirements and a substantive collateral claim of after-
discovered evidence as follows:

       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 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 (2004); see [Commonwealth v.] Cox, 146
       A.3d [221,] 227–28 [(Pa. 2016)] (“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.”).

Commonwealth v. Burton, ___ A.3d ___, ___, 2017 WL 1149203, at *8
(Pa. Mar. 28, 2017).

(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




                       _______________________
(Footnote Continued)

       Here, although the PCRA court determined Liebel had not met the due
diligence requirement, it also found the “new facts” Liebel relied upon
consisted “exclusively of multiple layers of hearsay,” which would not entitle
Liebel to relief under Section 9543. See PCRA Court Opinion, 11/21/2016,
at unnumbered 8. We agree with Liebel that the exculpatory nature of his
new facts, and/or the admissibility of the evidence supporting those facts, is
irrelevant to our time-bar analysis. See Commonwealth v. Brown, 111
A.3d 171, 177 (Pa. Super. 2015), appeal denied, 125 A.3d 1197 (Pa. 2015).
(“[T]he ‘new facts’ exception at Section 9545(b)(1)(ii) does not require any
merits analysis of an underlying after-discovered-evidence claim.”).

      Nevertheless, it is well-settled that we “may affirm [the] PCRA court's
decision on any grounds if the record supports it.” Commonwealth v.
Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (quotation omitted). Because
our review of Liebel’s claim and the PCRA court’s opinion reveals ample basis
to conclude the petition is time-barred, we affirm the order on appeal.




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