J-S77011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

RAYMOND FOGEL

                            Appellant                      No. 2921 EDA 2013


               Appeal from the Order dated September 18, 2013
               In the Court of Common Pleas of Delaware County
               Criminal Division at No: CP-23-CR-0001304-2010


BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED FEBRUARY 09, 2015

        Appellant Raymond Fogel appeals from an order of the Court of

Common Pleas of Delaware County (PCRA court), which dismissed without a

hearing his request for collateral relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46.               For the reasons set forth below, we

affirm.

        The facts underlying this appeal are uncontested. As summarized by

the PCRA court:
             On October 2, 2009, [Appellant] was stopped by the
        Upland Police Department for a traffic violation. [Appellant] was
        subsequently arrested for failure to yield at a stop sign, driving
        under the influence, and endangering the welfare of children.
        On March 25, 2010, Andrew Goldberg, Esquire, filed his
        appearance on behalf of [Appellant].

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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               On April 26, 2010, [Appellant] entered into a negotiated
        plea to endangering the welfare of children [(18 Pa.C.S.A.
        § 4304(a)(1))] and driving under the influence [(75 Pa.C.S.A.
        § 3802(a)(1))]. [Appellant] was sentenced to two years and six
        months of probation along with specific conditions.            The
        remaining charges were dismissed pursuant to the negotiated
        plea. On May 27, 2010, [Appellant’s] judgment of sentence
        became final. [Appellant] did not file a direct appeal or a post-
        sentence motion.
               On April 13, 2012, a bench warrant was issued for
        [Appellant] due to his failure to comply with several
        requirements of his probation, including failing to complete
        alcohol safe driving classes, failure to pay outstanding court
        fines, and failure to report on several occasions to Parole Officer
        James Page of the Upper Darby Office of Adult Probation and
        Parole. On April 29, 2013, [Appellant], through Terry Pugh,
        Esquire, filed a [PCRA] [p]etition asking for a new evidentiary
        hearing. [(The petition contained only one attachment, the
        affidavit of Bonita Watkins, the mother of [Appellant’s] children.
        The affidavit stated that Ms. Watkins and [Appellant] had a
        disagreement on October 5, 2009, that ended with her calling
        the police, detailing the argument, and telling the police that
        [Appellant] was driving a particular vehicle with her children
        inside. [The PCRA court] notes that [Appellant’s] arrest took
        place on October 2, 2009, not October 5, 2009 as Ms. Watkin’s
        affidavit states.)] The Commonwealth filed its answer on June
        14, 2013.
               On August 13, 2013, [Appellant] was arrested on his
        outstanding bench warrant and a Gagnon II[1] hearing was held
        in front of the Honorable Judge Mary Alice Brennan, at which
        time [Appellant] was sentenced to an additional term of one year
        probation.
               On September 5, 2013, minutes before the scheduled
        PCRA hearing, [Appellant] filed an amended [PCRA] [p]etition
        which added a claim for ineffective assistance of counsel. [The
        PCRA court] held a hearing but [Appellant] presented no
        witnesses, just argument. After review of the [p]etition and the
        argument, [the PCRA court] wrote an [o]rder denying the
        [PCRA] [p]etition on September 18, 2013.
               On October 17, 2013, [Appellant] filed a timely notice of
        appeal and on October 21, 2013, [the PCRA court] issued an
        [o]rder requiring Appellant to file a [Pa.R.A.P.] 1925(b)
        statement. Appellant filed his 1925(b) statement on November
        12, 2013, raising three issues: (1) the [PCRA] court erred by not
        granting [Appellant] a new trial after his guilty plea was not
        knowing, voluntary and intelligent; (2) trial counsel was
____________________________________________


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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        ineffective for failing to advise [Appellant] that a guilty plea
        would adversely impact his employment; and (3) that
        after[-]discovered evidence reveals that a guilty plea was
        unknowingly, involuntarily, and unintelligently entered into by
        [Appellant].

PCRA Court Opinion, 11/25/13, at 1-3 (footnotes moved to text).             In

response, the PCRA court issued a Pa.R.A.P. 1925(a) opinion, concluding,

inter alia, that Appellant’s PCRA petition was facially untimely, and that he

failed to prove the after-discovered evidence exception to the one-year time

bar set forth in Section 9545(b)(1)(ii) of the PCRA. Specifically, the PCRA

court found Appellant failed to establish that he exercised due diligence in

discovering the after-discovered evidence at the time of his negotiated guilty

plea. See id. at 5.

        On appeal,2 Appellant raises three issues for our review:
        1. Whether the PCRA court erred when it failed to grant an
        evidentiary hearing or a new trial, and in its determination that
        Appellant failed to show due diligence in presenting his newly
        discovered testimony claim where the Commonwealth failed to
        disclose this evidence in violation of Brady[3]?
        2. Whether the PCRA court erred by not granting Appellant’s
        motion to withdraw his guilty plea and proceed to trial where he
        was induced by trial counsel to enter an unknowing,
        unintelligent, and involuntary guilty plea?
        3. Whether the PCRA court erred in failing to hold an evidentiary
        hearing to determine whether a violation of Appellant’s 6th
        Amendment right to counsel under the U.S. Constitution, and
        Article 1, § 9 of the Pennsylvania Constitution occurred where
        trial counsel was ineffective for advising Appellant to enter a
        guilty plea based on insufficient evidence which was further
____________________________________________


2
  “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. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
3
    Brady v. Maryland, 373 U.S. 83 (1963).



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       exacerbated where the Commonwealth failed to provide
       exculpatory Brady material constituting no representation or
       abandonment at trial?

Appellant’s Brief at 5.4

       As a threshold matter, we must determine whether the PCRA court

erred in dismissing as untimely Appellant’s PCRA petition.              The PCRA

contains the following restrictions governing the timeliness of any PCRA

petition.
       (b) Time for filing petition.--
       (1) Any petition under this subchapter, including a second or
       subsequent petition, shall be filed within one year of the date the
       judgment becomes final, unless the petition alleges and the
       petitioner proves that:
              (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
              (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.
____________________________________________


4
  To the extent Appellant raises a Brady claim, we must reject such claim as
waived. As the Commonwealth notes, Appellant raises the Brady claim for
the first time on appeal before us. Because Appellant failed to preserve this
claim below, it is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).

We disapprove of Appellant’s suggestion that the PCRA court failed to hold a
hearing on his PCRA petition. Our review of the docket indicates that the
PCRA court indeed held a hearing on the petition on September 5, 2013,
where, as the PCRA court noted, “[Appellant] presented no witnesses, just
argument.” PCRA Court Opinion, 11/25/13, at 2.



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      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.
      (3) For purposes of this subchapter, a judgment becomes 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 the
      review.

42 Pa.C.S.A. § 9545(b) (emphasis added).             Section 9545’s timeliness

provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014).

      Here, the record reflects the judgment of sentence became final on

May 27, 2010, i.e., at the expiration of the time for filing a direct appeal in

this Court.    See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).          Because

Appellant had one year from May 27, 2010 to file his PCRA petition, the

current filing is untimely on its face given it was filed on April 29, 2013.

      The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the exceptions set forth in Section 9545(b)(1)(i)-

(iii) of the PCRA. Instantly, Appellant alleges the after-discovered evidence

exception under Section 9545(b)(1)(ii). As mentioned earlier, he attached

to his PCRA petition the affidavit of Ms. Watkins, his children’s mother and

former wife.    In the petition, Appellant argued that Ms. Watkins’ affidavit

qualifies as after-discovered evidence of why police pulled him over on the

day in question. Based on the affidavit, Appellant argued Ms. Watkins’ 911

call was the reason the police pulled him over and not because he failed to

yield at a stop sign. See Amended PCRA Petition, 9/5/13, at 2.




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       It is settled that the timeliness exception set forth in Section

9545(b)(1)(ii) requires a petitioner to demonstrate he did not know the facts

upon which he based his petition and could not have learned those facts

earlier by the exercise of due diligence. See Commonwealth v. Bennett,

930 A.2d 1264, 1271 (Pa. 2007). Due diligence demands that the petitioner

take reasonable steps to protect his own interests.     Commonwealth v.

Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001).      A petitioner must explain

why he could not have learned the new fact(s) earlier with the exercise of

due diligence.     See Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.

2001).

       Here, based on our review of the entire record, we discern no basis

upon which to disagree with the PCRA court’s conclusion that Appellant failed

to prove that he acted with due diligence in discovering the after-discovered

evidence, i.e., his former wife’s 911 call resulted in his arrest.       See

Bennett, 930 A.2d at 1271 n.10 (citing Commonwealth v. Yarris, 731

A.2d 581, 590 (Pa. 1999) and stating: “Yarris correctly analyzes subsection

(b)(1)(ii) and concludes that the claim fails because the appellant did not

make a sufficient proffer of why it took so long to present the claims, and

therefore, did not show that he acted with due diligence.”).5 As the PCRA

court found, Appellant failed to offer any evidence at the hearing to “show

____________________________________________


5
  Based on the outcome in this case, we need not address Appellant’s
remaining arguments.



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why he could not have obtained the new evidence earlier with the use of due

diligence.” PCRA Court Opinion, 11/25/13, at 5.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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