J-S84025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JACOB MATTHEW CHRISTINE                    :
                                               :
                       Appellant               :   No. 2283 EDA 2018

               Appeal from the PCRA Order Entered July 5, 2018
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002002-2007


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

MEMORANDUM BY OTT, J.:                                    FILED MAY 07, 2019

        Jacob Matthew Christine appeals, pro se, from the order entered July 5,

2018, in the Lehigh County Court of Common Pleas, dismissing his serial

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1     Christine seeks relief from the judgment of sentence of an

aggregate term of 4½ to 9 years’ imprisonment, to be followed by 5 years’

probation, imposed on June 6, 2008, following his negotiated guilty plea to

two counts of aggravated assault, one count of carrying a firearm without a

license, and two counts of possession of a controlled substance with intent to

deliver.2 On appeal, he asserts the PCRA court erred in dismissing the petition

____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2 18 Pa.C.S.A. §§ 2702(a)(4) and 6106, respectively, and 35 P.S. § 780-
113(a)(30).
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as untimely because he has newly discovered evidence.           For the reasons

discussed below, we affirm.

        The parties know the facts and procedural history underlying this

appeal, so we need not recite them herein. In summary, on February 22,

2007, Christine fired an automatic weapon at two individuals outside a motel

in Allentown, Lehigh County, Pennsylvania.       Police apprehended Christine

outside the motel and, pursuant to a valid search warrant, searched his room

discovering    an   unlicensed   automatic   weapon,   cash,   bullets,   cocaine,

marijuana, and drug paraphernalia.

        On November 2, 2007, Christine entered a nolo contedere plea to the

aforementioned charges. Prior to sentencing, however, Christine withdrew his

plea.    Counsel petitioned to withdraw and the trial court subsequently

appointed new counsel.

        On June 6, 2008, Christine entered a negotiated guilty plea to the same

charges and the trial court immediately sentenced him in accordance with the

terms of the plea agreement. Christine appealed and, on May 17, 2010, this

Court affirmed the judgment of sentence. Commonwealth v. Christine, 4

A.3d 194 (Pa. Super. 2010) (unpublished memorandum). On June 28, 2011,

the Pennsylvania Supreme Court denied leave to appeal. Commonwealth v.

Christine, 23 A.3d 1054 (Pa. 2011).

        Christine, acting pro se, filed a timely PCRA petition on February 2,

2012, alleging ineffective assistance of pretrial and trial counsels. The PCRA


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court subsequently appointed counsel. Ultimately, after multiple amendments

to the petition and three evidentiary hearings, the PCRA court denied the

petition on December 2, 2015. This Court affirmed the dismissal of the PCRA

petition on March 1, 2017. Commonwealth v. Christine, 2017 WL 816521

(Pa. Super. Mar. 1, 2017) (unpublished memorandum). Christine did not seek

leave to appeal to the Pennsylvania Supreme Court.

       On May 30, 2018, Christine filed a second, pro se PCRA petition. On

June 20, 2018, the PCRA court issued notice of its intent to dismiss the petition

pursuant to Pennsylvania Rule of Criminal Procedure 907(1). Christine filed a

response on July 2, 2018. On July 5, 2018, the PCRA court dismissed the

petition as untimely filed. This timely appeal follows.3

       “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). Here, the PCRA court determined,

inter alia, that Christine’s petition was untimely. We agree. A petitioner must

file a PCRA within one year of the date the underlying judgment becomes final.

See 42 Pa.C.S.A. § 9545(b)(1).



____________________________________________


3 The PCRA court did not order Christine to file a concise statement of errors
complained of on appeal. On July 30, 2018, the court filed an order
incorporating its earlier Rue 907 notice as its Pennsylvania Rule of Appellate
Procedure 1925(a) opinion.


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      The PCRA timeliness requirement, however, 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.

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

572 U.S. 1151 (2014).

      Christine’s judgment of sentence was final on October 26, 2011, 90 days

after the Pennsylvania Supreme Court denied his petition for allowance of

appeal and the time for filing a petition for writ of certiorari before the United

States Supreme Court expired.       See U.S.Sup.Ct. Rule 13; 42 Pa.C.S.A. §

9545(b)(3). Therefore, he had until October 26, 2012, to file a timely PCRA

petition. His second petition, filed May 30, 2018, is patently untimely.

      Nevertheless, we may still consider an untimely PCRA petition if one of

the following three exceptions applies:

       (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.




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42 Pa.C.S.A. § 9545(b)(1)(i-iii). Additionally, all of the time-bar exceptions

are subject to a separate deadline.

      Here, Christine attempts to invoke the previously unknown facts

exception set forth in Subsection 9545(b)(1)(ii). Moreover, since Christine

filed his petition after December 24, 2017, he had one year from the date he

could have presented the claim to file his petition. 42 Pa.C.S.A. § 9545(b)(2),

      This Court has previously explained the interplay between the newly

discovered facts exception to the timeliness requirements and a substantive

collateral claim of after-discovered evidence as follows:

      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. Due diligence
      demands that the petitioner take reasonable steps to protect his
      own interests. A petitioner must explain why he could not have
      learned the new fact(s) earlier with the exercise of due diligence.
      This rule is strictly enforced. Additionally, the focus of this
      exception is on the newly discovered facts, not on a newly
      discovered or newly willing source for previously known facts.

      The timeliness exception set forth at Section 9545(b)(1)(ii) has
      often mistakenly been referred to as the “after-discovered
      evidence” exception. 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.” 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. 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

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      changed outcome of trial if it had been introduced).     In other
      words, the “new facts” exception at:

            [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.

      Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
      require any merits analysis of an underlying after-discovered-
      evidence claim.

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

citations and quotation marks omitted, emphases in original), appeal denied,

125 A.3d 1197 (Pa. 2015).     Accordingly, before we may consider whether

Christine’s substantive claim of after-discovered evidence merits relief, we

must first determine whether he has established “there were facts unknown

to him and that he exercised due diligence in discovering those facts.” Id. at

176. Here, Christine has failed to do so.

      In the instant matter, Christine argues that he meets the newly

discovered facts exception because his family hired a private detective in

2017. He states that the detective located one of the victims of the crime,

Cameron Fodero, who initially refused to speak with her, but eventually signed

a certification, on May 10, 2018, stating he and the other victim attempted to




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rob Christine who shot at them in self-defense.4 PCRA Petition, 5/30/2018, at

4, Exhibits A and B.

       The PCRA court, however, found Christine failed to establish that: (1)

he had not previously known about the facts in the certification; and (2) he

could not have ascertained the facts earlier “through reasonable diligence.”

PCRA Court Order, 6/20/2018, at 5. The court explained Christine was present

at the scene of the crime, and, therefore, “if he believed he fired the gun in

self-defense, then he presumably knew or should have known that the witness

statement was untrue.” Id. Furthermore, the court found Christine failed to

establish why he could not have investigated his self-defense claim earlier if

he had acted with due diligence. See id. at 5-6. In particular, the court noted

the five-month delay between arraignment and Christine’s initial entry of a

nolo contendere plea, as well as the six-month delay between the time

Christine withdrew his nolo plea and his subsequent guilty plea. See id. at 6.

Furthermore, Christine did not allege he took any steps between the time his

judgment of sentence became final and until his family hired a private

detective in 2017, to investigate his claim of self-defense. See Christine’s

Brief, at 19-20.     Finding no genuine issue of material fact, the PCRA court

declined to hold an evidentiary hearing.



____________________________________________


4We note, briefly, that Christine’s “newly discovered fact” only applies to his
conviction of aggravated assault; it does not affect his conviction of an
unlicensed firearm or possession with intent to deliver.

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      Our review of the record, the parties’ briefs, and the relevant statutory

and case law, reveals no basis to disturb the PCRA court’s ruling. Given that

he argued in his first PCRA petition that plea counsel was ineffective for

allowing him to plead guilty when he had a valid self-defense claim, Christine

does not, and cannot deny he was aware of this argument before he entered

his guilty plea. Rather, the crux of his complaint is that the only evidence

supporting a self-defense claim at the time of his plea would have been his

own, self-serving testimony, and, now, one of the victims has recanted. See

id.

      We find his argument misplaced. Even assuming, arguendo, that Fodero

made a false statement in 2007, Christine still cannot establish he was

unaware of the facts contained in the new certification until 2017. See N.T.

Plea Colloquy, 6/06/2008, at 31-33 (discussing Christine’s version of the

incident). Furthermore, we agree with the PCRA court’s finding that Christine

failed to demonstrate he could not have previously located additional evidence

supporting his claim of self-defense, if he had exercised reasonable diligence.

      Most significantly, in the present case, Christine entered a guilty plea

before trial. Our Court, while finding that Christine had waived any challenge

to his guilty plea on appeal by failing to file a motion to withdraw it, also

reviewed the merits of his claim and found his plea was voluntary.

Commonwealth v. Christine, 2039 EDA 2008 (Pa. Super. Mar. 17, 2010)

(unpublished memorandum, at 5-6 and n.7).


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      This Court has stated:

      . . . [w]here the record clearly demonstrates that a guilty plea
      colloquy was conducted, during which it became evident that the
      defendant understood the nature of the charges against him, the
      voluntariness of the plea is established. A defendant is bound by
      the statements he makes during his plea colloquy, and may not
      assert grounds for withdrawing the plea that contradict
      statements made when he pled.

Commonwealth v. Stork, 737 A.2d 789, 790-791 (Pa. Super. 1999), appeal

denied, 764 A.2d 1068 (Pa. 2000) (citation omitted).

      Here, Christine acknowledged at his plea colloquy that he understood

the crime of aggravated assault and had committed it. N.T. Plea Colloquy,

6/06/2008, at 10, 40. He stated he understood that by pleading guilty he was

forfeiting the right to raise any defense to his crime. Id. at 17-19. Thus, if

he had indeed committed the crime in self-defense, Christine was aware of

that fact at the time he entered the plea. He is entitled to no relief now.

      Accordingly, because we agree with the ruling to the PCRA court that

Christine did not timely file his PCRA petition and he failed to establish the

applicability of any of the time-for-filing exceptions, we affirm the order

dismissing his petition without first conducting an evidentiary hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/19




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