J-S65028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

PHILIP SCHULTZ

                         Appellant                  No. 455 EDA 2014


                 Appeal from the PCRA Order January 21, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0301021-2004
                           CP-51-CR-0901331-2003
                           CP-51-CR-1015991-2004

BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                 FILED NOVEMBER 18, 2014

      Appellant, Philip Schultz, appeals from the order entered on January

21, 2014 dismissing his second petition filed pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.

      This Court has previously summarized the factual background of this

case as follows:

      Appellant was tried for three separate crimes: the July 6, 1999
      rape of A.M.; the March 24, 2003 kidnapping of A.Q.; and the
      May 14, 2003 rape of L.T.

      A.M.

      On the afternoon of July 6, 1999, Appellant was operating a
      1999 GMC Sport Utility Vehicle on Kensington Avenue in an area
      known for prostitution. The vehicle was registered to Appellant
      and his mother. Appellant stopped the vehicle in order to
      engage in conversation with A.M., a 27-year-old white female.



* Retired Senior Judge assigned to the Superior Court.
J-S65028-14


     She agreed to have vaginal sex with Appellant for $50.00. She
     entered the vehicle, and he drove to a wooded area. Appellant
     told her that his wife had just had a baby and was not giving him
     sex. He also told her that his sister was a Philadelphia police
     officer. A.M. observed a baby seat in the back of the vehicle.

     When they exited the vehicle, Appellant offered additional money
     if A.M. allowed intercourse without a condom; A.M. refused the
     offer. Appellant then became aggressive and forced his penis
     into A.M.’s throat, vagina[,] and anus against her will. After
     Appellant ejaculated, Appellant told A.M. not to report what had
     happened, because Appellant would learn of the report from his
     sister and would retaliate.

     Appellant left A.M. and drove away. A.M. memorized the license
     plate. A.M. reported the incident and was taken to Episcopal
     Hospital where a rape kit was taken for semen samples from her
     vagina, vulva, cervix[,] and throat. After Appellant’s arrest, DNA
     testing showed that the semen was Appellant’s. A.M. refused to
     discuss the incident with police, and the matter was not pursued
     until A.M. was interviewed four years later after Appellant had
     become the suspect in other sexual offenses. By that time, A.M.
     had difficulty remembering some details of the assault.

     M.L.[1]

     [At trial, M.L. testified as follows.2] On the evening of May 20,
     2001, Appellant was operating a dark SUV on Kensington
     Avenue. He pulled up to M.L., a 29-year-old white female, who
     was standing on the highway. M.L. willingly entered Appellant’s
     vehicle and observed two baby seats.

     Appellant drove to a wooded area. After exiting the vehicle,
     Appellant forced M.L. onto her hands and knees, pulled her pants
     down[,] and forced his penis into her vagina against her will.

1
  The most recent evidence of record indicates that M.L. is currently married
and no longer uses her maiden name. For clarity, we refer to her as M.L.
throughout this memorandum.
2
  As discussed in great depth infra, M.L. has since recanted portions of her
trial testimony as evidenced in a hand written statement dated December
27, 2012.



                                    -2-
J-S65028-14


     Appellant did not use a condom. He then drove away and left
     M.L. alone in the woods; she did not observe the license plate
     number.

     M.L. called the police, who took her to Episcopal Hospital where
     she was treated for scratches and bruises. A rape kit was taken
     and semen was recovered from her panties and vagina. DNA
     testing showed that the semen was Appellant’s.

     After Appellant was arrested, his attorney provided the
     Commonwealth with evidence that tended to show that M.L. was
     engaged in prostitution. After M.L. was confronted with the
     evidence, she failed to appear for trial. At that point, the trial
     court granted the Commonwealth’s motion to nolle pros the case
     without prejudice.

     A.Q.

     On the evening of March 24, 2003, Appellant was operating the
     same 1999 GMC SUV which was registered to Appellant and his
     mother. Appellant spoke to A.Q., a 16-year-old white female
     who was walking on Jasper Street near Tioga Street
     (approximately one block from Kensington Avenue). Appellant
     convinced [A.Q.] to enter the vehicle. Appellant spoke with her
     for about ten minutes, during which time he told her that his
     wife had just had a baby and had moved out. He also told A.Q.
     that he was a Philadelphia police officer. Then, suddenly, he
     drove off. A.Q. tried to open the door, but found that it was
     locked. After crossing the Tacony Palmyra Bridge and crossing
     into New Jersey, Appellant stopped the vehicle in a New Jersey
     field or parking lot and told A.Q. to give him oral sex. When she
     refused, Appellant forced her head into his lap and ignored her
     cries until he ejaculated. Appellant did not use a condom.

     After he had ejaculated, Appellant told A.Q. to spit out the
     semen; she did. Appellant then drove back to the middle of the
     Tacony Palmyra Bridge, where he ordered A.Q. out of the
     vehicle. As he drove away, A.Q. memorized the license plate
     number.

     L.T.

     On the evening of May 14, 2003, Appellant was operating an
     SUV in the area of Kensington Avenue and Hilton Street. He


                                   -3-
J-S65028-14


        pulled the vehicle up to L.T., a 23-year-old white female who
        was standing on the sidewalk with two other women. L.T.
        willingly entered the vehicle. Appellant told her that his wife had
        just had a baby. He also told her that he was a Philadelphia
        police officer assigned to the 9th police district. Appellant drove
        to a ditch near a parking lot on Erie Avenue, climbed on top of
        [L.T.], pulled his pants down and forced his penis into her vagina
        even though she told him to stop. Appellant did not use a
        condom. After ejaculating, he drove to Kensington Avenue and
        Ontario Street and left her there. Police took L.T. to Episcopal
        Hospital. DNA testing of the sperm recovered with a rape kit
        showed that it was Appellant’s sperm.

Commonwealth v. Schultz, 46 A.3d 818 (Pa. Super. 2012) (unpublished

memorandum), at 1-4, appeal denied, 50 A.3d 126 (Pa. 2012) (internal

alterations, ellipses, and citation omitted).

        We have previously summarized the procedural history of this case as

follows.

        Appellant was first arrested on July 31, 2001 for the assault on
        M.L.. The nolle pros was granted on May 29, 2002. On June 30,
        2003, Appellant was arrested for the assault on L.T. . . . On
        January 9, 2004, he was held for court for the assault on A.Q.
        On February 19, 2004, Appellant was held for court for the
        assault on A.M. The Commonwealth moved to consolidate the
        trials for the assaults on A.M., A.Q.[,] and L.T. It also filed a
        motion in limine to introduce evidence of Appellant’s assault on
        M.L.     The trial court granted both of the Commonwealth’s
        motions.

        On May 18, 2005, the jury found Appellant guilty of two counts
        of rape,[3] two counts of impersonating a public servant,[4] and
        one count each of kidnapping,[5] unlawful contact with a minor,[6]

3
    18 Pa.C.S.A. § 3121.
4
    18 Pa.C.S.A. § 4912.
5
    18 Pa.C.S.A. § 2901.
(Footnote Continued Next Page)


                                       -4-
J-S65028-14


        and intimidating a witness.[7]    On September 16, 2005, a
        Megan’s Law II hearing was held pursuant to 42 Pa.C.S.A.
        § 9754.4 [(repealed)], and Appellant was determined to be a
        sexually violent predator within the meaning of the Act. On
        January 13, 2006, Appellant was sentenced to serve an
        aggregate term of 20½ to 51 years[’ imprisonment].

        On November 30, 2007, this Court affirmed Appellant’s
        judgment of sentence and, on July 1, 2008, [our] Supreme Court
        denied   Appellant’s  petition   for   allowance   of  appeal.
        Commonwealth v. Schultz, 944 A.2d 804 (Pa. Super. 2007)
        (unpublished memorandum), appeal denied, 951 A.2d 1163 (Pa.
        2008).

        On April 29, 2009, Appellant filed a timely, pro se PCRA petition.
        The PCRA court appointed counsel to represent Appellant. After
        independently reviewing the record, however, appointed counsel
        found Appellant’s petition to be meritless. Therefore, counsel
        filed a no-merit letter and petitioned the court for leave to
        withdraw representation. See Commonwealth v. Turner, 544
        A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213
        (Pa. Super. 1988) (en banc). . . . [O]n August 10, 2010, the
        PCRA court finally dismissed Appellant’s [first] PCRA petition.
        Appellant then filed a timely, pro se notice of appeal.

Commonwealth v. Schultz, 46 A.3d 818 (Pa. Super. 2012) (unpublished

memorandum), at 4-5 (certain internal citations omitted). We affirmed, id.

at 13, and our Supreme Court denied Appellant’s petition for allowance of

appeal.    Commonwealth v. Schultz, 50 A.3d 126 (Pa. 2012).

        Thereafter, on February 22, 2013, Appellant filed a counseled second

PCRA petition. Appellant averred that the PCRA court possessed jurisdiction

over his patently untimely second PCRA petition because he had satisfied the
                       _______________________
(Footnote Continued)

6
    18 Pa.C.S.A. § 6318.
7
    18 Pa.C.S.A. [§ 4952].



                                            -5-
J-S65028-14


after-discovered evidence and government interference exceptions.                    To

establish   his   right   to   substantive   relief,    Appellant   alleged   that   the

Commonwealth violated his right to due process of law by failing to disclose

materials pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Specifically,

he alleged that the Commonwealth failed to inform him that M.L. was

reluctant to testify at trial and that law enforcement responded by

threatening her with legal consequences.               In support of this argument,

Appellant relied upon a handwritten statement allegedly prepared by M.L.

and   dated   December         27,   2012.     Appellant    also    alleged   that   the

Commonwealth violated his right to due process by entering into evidence

M.L.’s testimony pursuant to Pennsylvania Rule of Evidence 404(b). Finally,

he alleged that all of his prior counsel rendered ineffective assistance by

failing to raise and pursue these claims.          After giving notice pursuant to

Pennsylvania Rule of Criminal Procedure 907(1), the PCRA court dismissed

Appellant’s petition on January 21, 2014, finding that Appellant’s petition

was untimely and that he had failed to satisfy any of the PCRA’s timeliness

exceptions. This timely appeal followed.8

      Appellant presents four issues for our review:

      1. Did the [PCRA] court have jurisdiction over Appellant’s PCRA
         [petition] under the after-discovered evidence and/or

8
  The PCRA court did not order a concise statement of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925. On
April 10, 2014, however, the PCRA court issued an opinion setting forth its
rationale for dismissing Appellant’s second PCRA petition.



                                         -6-
J-S65028-14


         government interference exceptions to the requirement that
         the petition be filed within one year of final judgment?

      2. Did the Commonwealth violate Appellant’s due process rights
         by suppressing exculpatory evidence when [M.L.] told law
         enforcement before trial that she did not want to testify and
         law enforcement then told her she would have problems with
         her probation if she did not testify, resulting in her only years
         later disclosing that she invented the forcible rape aspects of
         her testimony?

      3. Did the Commonwealth violate due process of law when it
         introduced evidence of uncharged offenses, which had earlier
         been dismissed because the complainant was determined to
         have lied, thus denying Appellant his opportunity to test the
         uncharged allegations[, and w]ere trial, direct appeal, and
         initial [PCRA] counsel ineffective for failing to litigate this
         claim?

      4. Did the [PCRA] court err when it refused to consider that the
         above three claims were not reviewable because of the
         ineffective assistance of initial [PCRA] counsel?

Appellant’s Brief at 1-2.

      “Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s findings of fact, and whether the PCRA

court’s determination is free of legal error.” Commonwealth v. Wantz, 84

A.3d 324, 331 (Pa. Super. 2014) (citation omitted). “The scope of review is

limited to the findings of the PCRA court and the evidence of record, viewed

in the light most favorable to the prevailing party at the trial level.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

      Furthermore, as this Court has explained:

      [C]ourts will not entertain a second or subsequent request for
      PCRA relief unless the petitioner makes a strong prima facie
      showing that a miscarriage of justice may have occurred.


                                     -7-
J-S65028-14


      Appellant makes a prima facie showing of entitlement to relief
      only if he demonstrates either that the proceedings which
      resulted in his conviction were so unfair that a miscarriage of
      justice occurred which no civilized society could tolerate, or that
      he was innocent of the crimes for which he was charged.

Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014) (en

banc) (internal quotation marks and citations omitted).

      In his first issue on appeal, Appellant argues that the PCRA court

possessed jurisdiction to consider the merits of his second PCRA petition.

The PCRA court determined that it lacked jurisdiction to consider the merits

of Appellant’s second PCRA petition as it was untimely and Appellant had

failed to prove the applicability of an exception to the PCRA’s timeliness

requirement.   A court lacks jurisdiction over the merits an untimely PCRA

petition when the Appellant has failed to plead and prove the applicability of

an exception to the timeliness requirement. Commonwealth v. Callahan,

2014 WL 4696253, *2 (Pa. Super. Sept. 23, 2014).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).           “[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)(3). In this case, there is no dispute that

Appellant’s second PCRA petition was untimely. See Second PCRA Petition,

2/22/13, at 6. Appellant’s judgment of sentence became final on September



                                     -8-
J-S65028-14


29, 2008. Therefore, in order for a PCRA petition to be considered timely, it

should have been filed on or before September 29, 2009.           Appellant’s

second petition was filed in February 2013, and, hence, was patently

untimely.

     An untimely PCRA petition may be considered 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.

42 Pa.C.S.A. § 9545(b)(1)(i-iii).   If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

     Appellant contends that he has satisfied the government interference

and after-discovered evidence exceptions to the PCRA’s one-year timeliness

requirement. We first consider Appellant’s contention that he has satisfied

the after-discovered evidence exception.     In order to satisfy the after-

discovered evidence exception, Appellant must plead and prove “that the

facts upon which the Brady claim is predicated were not previously known


                                    -9-
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to the petitioner and could not have been ascertained through due

diligence.” Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006)

(citation omitted).9

      Appellant has failed to satisfy his burden of pleading and proving the

applicability of the after-discovered evidence exception.    Appellant relies

upon this court’s en banc decision in Medina and a three-judge panel of this

Court’s decision in Commonwealth v. Davis, 86 A.3d 883 (Pa. Super.

2014). We conclude however, that Medina and Davis are distinguishable.

In Medina, the defendant was convicted of murder based in part on the

testimony of two witnesses, the Toro brothers.    Medina, 92 A.3d at 1213

(citation omitted).    Fourteen years after Medina was convicted, and five

years after his judgment of sentence became final, the Toro brothers

recanted their trial testimony.   Id. at 1213-1214.   Within 60 days of the

recantations, Medina filed a PCRA petition and alleged that the Toro

brothers’ recantations satisfied the after-discovered evidence exception to

9
  The PCRA court cited to Commonwealth v. D’Amato, 856 A.2d 806, 823
(Pa. 2004), in support of its application of a four-part analysis of whether
Appellant satisfied the after-discovered evidence exception to the PCRA’s
timeliness requirement.      See PCRA Court Opinion, 4/10/14, at 6-7.
D’Amato, however, addressed a substantive after-discovered evidence
claim.   Id.    “[A]n after-discovered evidence claim and the timeliness
exception based on previously unknown facts are distinct, and the issues are
analyzed differently.” Commonwealth v. Davis, 86 A.3d 883, 891 n.7 (Pa.
Super. 2014) (citation omitted). Specifically, a petitioner is not required to
satisfy the second, third, and fourth elements of the test set forth in
D’Amato in order to satisfy the after-discovered evidence exception and
have his petition considered on the merits.




                                    - 10 -
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the PCRA’s timeliness requirement. See Medina, 92 A.3d at 1217 (citation

omitted). This Court held that that the PCRA court’s conclusion that Medina

had satisfied the after-discovered evidence exception was supported by the

record. Id. at 1218.

     In Davis, the defendant was convicted of first-degree murder based,

in part, on the testimony of Jerome Watson (“Watson”). Davis, 86 A.3d at

885-886. Approximately 34 years after Davis’ judgment of sentence became

final, Watson recanted his trial testimony and stated that he had made a

deal with the prosecution that was not disclosed to Appellant. Id. at 888.

We held that since there was no indication at trial that such a deal had been

made, or that Watson was otherwise lying, it would have been unreasonable

to require that Davis seek out information in publicly available documents.

Id. at 890-891.

     In both Medina and Davis this Court’s focus was on the fact that

neither Medina nor Davis had reason to look further into the testimony of the

Toro brothers or Watson.     In Medina, this Court concluded that Hector

Toro’s testimony was unequivocal and that there was no reason for Medina

to believe that he could elicit exculpatory testimony through a fishing

expedition. Medina, 92 A.3d at 1218-1219. Similarly, in Davis this Court

noted that there was no reason for Davis to look into the public records for

details of a deal between Watson and the Commonwealth. Davis, 86 A.3d

at 890.



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J-S65028-14


        In this case, there were numerous reasons why Appellant should have

sought out information to show M.L.’s testimony was untruthful.               First,

Appellant would have been aware that he had not raped M.L. if, in fact, he

had not.10 More importantly, Appellant knew that M.L. failed to show at trial

in the case relating to Appellant’s alleged assault upon M.L. Appellant also

knew that M.L. had previously lied to police regarding her work as a

prostitute. Appellant knew that M.L. was a probationer. Appellant also knew

of the conversation he had with M.L. in the stairwell of the courthouse. 11

When these facts are considered together, a reasonable person would have

searched for evidence that M.L. had lied at trial.

        Instead, there is nothing in Appellant’s petition that shows Appellant

searched for such evidence prior to the pendency of the appeal regarding

Appellant’s first PCRA petition.       Appellant concedes in his brief that no


10
  As noted in Medina and Davis, this alone is not sufficient to prove that
Appellant failed to act with due diligence. That, however, does not mean
that it is an irrelevant fact.
11
     M.L.’s December 27, 2012 statement provides in relevant part:

           I believe it was before I testified [at Appellant’s trial] I was
           smoking in the courthouse stairwell when [Appellant]
           approached me. [Appellant] wasn’t threatening but I was
           uncomfortable. I was a bit intimidated because we both
           knew I was lying. I didn’t know him, other than the one
           encounter and didn’t know what he was capable of. He
           said he would pay me to tell the truth. I said no and ran
           back to the floor.

M.L. Statement, 12/27/12, at 2.



                                       - 12 -
J-S65028-14


investigator was hired to look for such information until Appellant hired his

current counsel for the filing of a federal habeas corpus petition. Upon the

hiring of an investigator, Appellant was able to quickly locate M.L. and she

recanted her trial testimony and gave the statement relied upon by

Appellant.    This is markedly different than Davis, in which there was

evidence that Davis had hired an individual to search for Watson but was
                                               12
unable to locate him. Davis, 86 A.3d at 891.

      Appellant waited over eight years after the trial in this matter to locate

M.L. and convince her to recant her testimony. The fact that Appellant had

court-appointed counsel during much of this period is irrelevant. The burden

ultimately falls upon the petitioner to exercise due diligence. In this case,

there is simply no evidence that Appellant acted with due diligence until he

hired his current counsel during the pendency of the appeal of his first PCRA

petition. We therefore conclude that Appellant failed to plead and prove that

he filed his second PCRA petition within 60 days of when he could have

received this after-discovered evidence with the exercise of due diligence.


12
   Appellant cites to Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa.
2007) in support of his argument that we should remand for an evidentiary
hearing on due diligence. Bennett, however, is distinguishable from the
case at bar. In Bennett, the petitioner alleged that his prior counsel had
abandoned him.       Id.   He had taken several steps on his own which
constituted due diligence to ascertain whether counsel had abandoned him,
i.e., writing to this Court and the PCRA court. Id. at 1272. Thus, our
Supreme Court determined that he was entitled to an evidentiary hearing on
whether he acted with due diligence. In this case, Appellant did not plead
that he took such actions.



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       Having determined that Appellant has failed to satisfy his burden of

proving the applicability of the after-discovered evidence exception, we next

turn to whether Appellant has satisfied his burden of proving the applicability

of   the   government   interference    exception   to   the   PCRA’s   timeliness

requirement. “Although a Brady violation may fall within the government[]

interference exception, [Appellant] must plead and prove the failure to

previously raise the claim was the result of interference by government

officials[.]”   Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.

2008) (citation omitted).13   In this case, Appellant has failed to plead and

prove that the government interfered with his ability to previously raise his

claims.    To the contrary, Appellant has had full access to the courts

throughout his confinement. He was able to raise and litigate issues during

his first PCRA petition and began his strategy to litigate this second PCRA

petition while his first PCRA petition was still pending.          As such, the

government did not interfere with Appellant’s ability to raise the claims set

forth in his second PCRA petition. Thus, Appellant has failed to plead and

prove that the government interference exception to the PCRA’s timeliness

requirement applies in this case.




13
    Appellant argues that Abu-Jamal makes clear that there is no due
diligence requirement with respect to the government interference
exception. The PCRA and Abu-Jamal, however, make clear that, in order
for the government interference exception to apply, the government must
have prevented Appellant from presenting his claim.



                                       - 14 -
J-S65028-14


      Appellant also contends that the PCRA court possessed jurisdiction to

consider    the    merits      of    his   claims     because    of   his   prior   counsels’

ineffectiveness in failing to raise those claims at trial, on direct appeal,

and/or in his first PCRA petition. However, “a petitioner’s belief that he has

uncovered a colorable claim of ineffectiveness by prior counsel does not

entitle    the    petitioner    to    an    exception     to    the   [PCRA’s]      timeliness

requirements.” Commonwealth v. Crews, 863 A.2d 498, 503 (Pa. 2004)

(citations omitted); see Commonwealth v. Bennett, 930 A.2d 1264, 1272

(Pa. 2007) (citations omitted).              Accordingly, his prior counsels’ alleged

ineffectiveness does not provide an exception to the PCRA’s one-year time-

bar. Therefore, Appellant has failed to plead and prove the applicability of

any of the PCRA’s timeliness exceptions. As such, the PCRA court correctly

held that it lacked jurisdiction to consider the merits of Appellant’s second

PCRA petition.

      Even if the PCRA court had possessed jurisdiction to consider the

merits of Appellant’s second PCRA petition, we conclude that Appellant failed

to plead and prove that his conviction was a miscarriage of justice and/or

that he was actually innocent.14            See Medina, 92 A.3d at 1215 (citations

omitted).15


14
  Appellant’s very able counsel avers that he was originally retained to file a
federal habeas corpus petition. Appellant, through counsel, filed a federal
habeas corpus petition on January 11, 2013. Schultz v. Wenerowicz,
13cv177 (E.D. Pa.). In order to prevail in his federal habeas corpus
(Footnote Continued Next Page)


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J-S65028-14


      “A Brady violation consists of three elements: (1) suppression by the

prosecution (2) of evidence, whether exculpatory or impeaching, favorable

to the defendant, (3) to the prejudice of the defendant.” Commonwealth

v. Tedford, 960 A.2d 1, 30 (Pa. 2008).16 Appellant fails to satisfy both the

first and third elements of a Brady claim.

      As to the first element, M.L. does not aver in her statement that she

told the Commonwealth that her story was false.        M.L. likewise does not

aver in her statement that she told the Commonwealth that she was

reluctant to testify. Instead, M.L. stated that:

      [Appellant saw me in the stairwell and] said he would pay me to
      tell the truth. I said no and ran back to the [courtroom]. The
      lady detective caught me and asked what happened. I told her
      but I didn’t tell her I lied. I knew I could tell the truth but
      was afraid. I didn’t want to testify. The detectives dropped

                       _______________________
(Footnote Continued)
litigation, however, Appellant is required to exhaust his remedies in state
court. See 28 U.S.C. § 2254(b)(1)(A). Thus, Appellant’s counsel filed the
instant PCRA petition in February, 2013. After Appellant’s second PCRA
petition was filed, the United States District Court for the Eastern District of
Pennsylvania stayed and administratively closed Appellant’s federal habeas
corpus case pending the outcome of these proceedings.              Schultz v.
Wenerowicz, 13cv177 (E.D. Pa. Mar. 26, 2013). Out of an abundance of
caution, we proceed to an alternative merits analysis. See Rolan v.
Coleman, 680 F.3d 311, 319–321 (3d Cir. 2012) (deference is owed to
state court’s alternative merits analysis under the Antiterrorism and Effective
Death Penalty Act).
15
  We note that even if this were Appellant’s first PCRA petition, we would
come to the same conclusions regarding the merits of his Brady, Rule
404(b), and ineffectiveness claims.
16
   Courts use the term “prejudice” interchangeably with              the   term
“materiality.” See Banks v. Dretke, 540 U.S. 668, 698 (2004).



                                           - 16 -
J-S65028-14


      hints they knew I was a probationer. It was enough to frighten
      me[.]

M.L.’s Statement, 12/27/12, at 2 (emphasis added).

      Thus, Appellant has failed to plead and prove that the Commonwealth

suppressed evidence that M.L. was lying.     It is axiomatic that in order to

suppress evidence the Commonwealth must possess such evidence (or

should possess such evidence).       In this case the Commonwealth took

reasonable steps to ascertain if M.L. were telling the truth, i.e., the female

detective asked M.L. what had occurred.         Yet, M.L. failed to tell the

detective, or any other officer of the Commonwealth, that she was reluctant

to testify.

      M.L.’s allegation that the detectives dropped hints that they knew she

was on probation does not rise to the level of intimidation or a Brady

violation as is argued by Appellant. M.L. does not allege that the detectives

inferred that if she testified truthfully that her probationary sentence would

be jeopardized. Instead, she states only that they inferred they knew she

was a probationer. Any fear that M.L. may have had based upon these hints

was suspect. Accordingly, Appellant has failed to satisfy the first prong of a

Brady claim.

      Furthermore, Appellant has failed to prove the necessary prejudice

under Brady.     In order to prove prejudice under Brady, Appellant is

required to show that if the evidence had been disclosed prior to trial, there

is a “reasonable probability of a different result.”   Banks v. Dretke, 540


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U.S. 668, 699 (2004) (citation omitted). “A reasonable probability for these

purposes is one which undermines confidence in the outcome of the trial.”

Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013) (internal

quotation marks and citation omitted).17

      M.L.’s testimony was admitted under Pennsylvania Rule of Evidence

404(b) as a prior bad act. Appellant was not charged with the rape of M.L.

The crimes Appellant was charged with related to his assaults of A.M., A.Q.,

and L.T.18 All three of those victims testified convincingly at trial as outlined

above. In contrast, as M.L. notes in her statement, and as Appellant admits

in his brief, defense counsel was able to impeach M.L. at trial. Specifically, it

was noted that M.L. had previously lied to police, that the charges against

Appellant for the rape of M.L. had been dropped after M.L. did not report for

trial, and that M.L. was a probationer.       Thus, when considered in context,

M.L.’s testimony was a very minor portion of the Commonwealth’s case. The

main witnesses against Appellant were A.M., A.Q., and L.T. who have not

recanted their testimony. As such, there is not a reasonable probability that

17
   Appellant focuses on the PCRA court’s use of the term “would not have
been different.” Appellant’s Brief at 17 (emphasis in original), quoting PCRA
Court Opinion, 4/10/14, at 12. It is obvious, however, that if the outcome of
Appellant’s trial would have been the same then there is no reasonable
probability that the outcome would have been different. Thus, we interpret
the PCRA court’s statement as evidencing its belief that Appellant fell short
of proving prejudice under Brady.
18
  Although Appellant was not expressly charged with the sexual assault of
A.Q., the charges involving A.Q. were related to the sexual assault.




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the outcome of the trial would have been different if the Commonwealth

would have informed Appellant prior to trial that M.L. was reluctant to

testify.19

      Appellant argues that statements made by the prosecution during its

closing arguments are evidence that M.L.’s testimony was critical to the

Commonwealth’s case. The test for prejudice under Brady, however, is an

objective one. See In re Sassounian, 887 P.2d 527, 532–533 (Cal. 1995),

citing Strickland v. Washington, 466 U.S. 668, 695 (1984).            Prior to a

conviction, prosecutors believe that every piece of incriminating evidence

against a defendant is critical to their case and argue as such to courts (in

the suppression context) and juries (in the trial context). After a conviction,

prosecutors believe that no piece of incriminating evidence is critical to their

case and argue as such to this Court. It is our duty, however, to determine,

based on objective criteria, if there is a reasonable probability that the

outcome of the proceedings would have been different if the evidence had

been disclosed prior to trial.      We conclude that there is not such a

reasonable probability in this case. Therefore, Appellant has failed to prove

the requisite prejudice for a successful Brady claim.           Accordingly, as

Appellant has failed to plead and prove that his underlying Brady claim has

19
   To be clear, “The test for materiality ‘is not a sufficiency of [the] evidence
test.’” Amado v. Gonzalez, 758 F.3d 1119, 1139 (9th Cir. 2014), quoting
Kyles v. Whitley, 514 U.S. 419, 434 (1995). Nonetheless, the evidence of
Appellant’s guilt was so overwhelming that we conclude that evidence of
M.L.’s reluctance to testify was not material under Brady.



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merit, he would not have been entitled to relief if the PCRA court had

possessed jurisdiction over the claim.

      If the PCRA court had jurisdiction to consider the merits of Appellant’s

Rule 404(b) claim, we would likewise conclude that the PCRA court correctly

dismissed the petition. Appellant contends that the Commonwealth violated

his due process rights by introducing M.L.’s testimony.       Appellant argues

that the Commonwealth’s nolle pros of the charges relating to Appellant’s

alleged sexual assault of M.L., due to M.L.’s originally telling police that she

was not working as a prostitute, precluded introduction of M.L.’s testimony.

He claims that such admission violated his due process rights under the

Fourteenth Amendment.

      As this Court has explained, Pennsylvania Rule of Evidence 404(b) “is

not limited to evidence of crimes that have been proven beyond a

reasonable doubt in court.     It encompasses both prior crimes and prior

wrongs and acts, the latter of which, by their nature, often lack definitive

proof.”   Commonwealth v. Lockcuff, 813 A.2d 857, 861 (Pa. Super.

2002), appeal denied, 825 A.2d 638 (Pa. 2003).

      We first note that Appellant’s argument that the admission of M.L.’s

testimony under Rule 404(b) violated his due process rights is waived for the

purposes of PCRA review. Appellant could have raised such a claim on direct

appeal since all of the facts upon which this argument are predicated were

known at the time of trial. See Commonwealth v. Michaud, 70 A.3d 862,



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869 n.7 (Pa. Super. 2013) (citation omitted).       As such, he may not raise

allegation of error in his second PCRA petition.

      Even if this argument were not waived for PCRA purposes, it is without

merit. Appellant implies that the prosecution knew that M.L. lied about the

alleged rape.    However, as discussed above, the prosecution had no

indication that M.L. was reluctant to testify against Appellant in this trial

because   her   allegations   of   rape   were   untrue.   Instead,   what   the

Commonwealth was aware of was the fact that M.L. initially lied to police

regarding whether she was working as a prostitute on the night she was

allegedly raped by Appellant.20 During the trial in this case, the prosecution

did not misrepresent whether M.L. was working as a prostitute. In fact, it

eventually surfaced during trial that M.L. was indeed working as a prostitute

on the night that she was allegedly raped by Appellant.               Thus, the

prosecution did not intentionally permit M.L. to testify untruthfully in this

matter.

      In the case sub judice, M.L. lied to police during the investigation of

her alleged rape and the charges were dismissed. The Commonwealth still

produced evidence of M.L.’s alleged rape under Pennsylvania Rule of

Evidence 404(b). Defense counsel was then able to impeach M.L. with this


20
   Even if the Commonwealth were aware of M.L.’s status as a working
prostitute, this fact would not, by itself, defeat any contention that she had
been raped by Appellant. Such facts are only relevant to whether any
sexual activity between Appellant and M.L. was consensual.



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J-S65028-14


prior false statement. We see no reason that the fact-finder should not have

been able to determine whether to believe M.L.’s testimony. The jury was

presented with all relevant information that was available at the time and it

could have chosen to disregard M.L.’s testimony because of her prior false

statements to police.

       Finally, we note that “violations of state rules of procedure do not

automatically constitute violations of due process.”        Robinson v. Smyth,

258 F. App’x 469, 471 n.1 (3d Cir. 2007) (citation omitted); see Riccio v.

Cnty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990); see also

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).

Appellant makes almost no attempt to explain how the alleged violation of

Pennsylvania Rule of Evidence 404(b) constituted a violation of his due

process rights.      Instead, he states in a conclusory fashion that it was

fundamentally unfair to admit prior bad acts evidence for which charges had

previously been dismissed.       Appellant’s argument, however, would render

any admission of Rule 404(b) evidence for uncharged crimes a violation of

the Due Process Clause of the Fourteenth Amendment. It is well-settled that

Rule   404(b)     fully   comports   with   due   process   requirements.   See

Richardson v. Lemke, 745 F.3d 258, 266 (7th Cir. 2014) (“Although the

Federal Rules of Evidence do limit the introduction of evidence of uncharged

criminal behavior, see Fed.R.Evid. 404(b), there is no federal constitutional

[] right to a state-court trial free of such evidence, even where that evidence



                                       - 22 -
J-S65028-14


is used to show propensity.”).      Thus, even if the trial court had erred by

admitting M.L.’s testimony under Rule 404(b), Appellant has failed to plead

and prove that such violation constituted a violation of his right to due

process of law.

      For all of these reasons, we conclude that even if Appellant’s second

PCRA petition were timely he would not be eligible for relief with respect to

his Rule 404(b) claim. The Rule 404(b) claim is waived for failure to raise

the issue on direct appeal.       Furthermore, even if the argument were not

waived, the trial court did not err by admitting M.L.’s testimony under

Pennsylvania Rule of Evidence 404(b). Finally, even if the trial court erred

by admitting M.L.’s testimony under Rule 404(b), such error did not rise to

the level of a violation of Appellant’s right to due process of law.

      In his final substantive claim, Appellant alleges that his prior counsel

were ineffective for failing to raise or pursue his other two substantive

arguments.21      As Appellant failed to plead and prove an exception to the

timeliness   requirement,   the    PCRA   court   lacked   jurisdiction   over   his

ineffectiveness claims.   We, however, address the merits of all Appellant’s

ineffectiveness claims.

      A “defendant’s right to counsel guaranteed by the Sixth Amendment to

the United States Constitution and Article I, [Section] 9 of the Pennsylvania

21
   Appellant raises ineffectiveness claims in all three of his substantive
issues. All of Appellant’s ineffectiveness claims are encompassed in his third
substantive issue, thus, we only address the ineffectiveness claims once.



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J-S65028-14


Constitution is violated where counsel’s performance so undermined the

truth-determining process that no reliable adjudication of guilt or innocence

could have taken place.” Commonwealth v. Simpson, 66 A.3d 253, 260

(Pa. 2013) (internal quotation marks and citation omitted).      “[C]ounsel is

presumed to be effective.”     Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014) (citation omitted).

      In order to overcome the presumption that counsel was effective,

Appellant must establish that “(1) the underlying claim is of arguable merit;

(2) the particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his client’s interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the proceedings would have been different.” Commonwealth v. Luster,

71 A.3d 1029, 1039 (Pa. Super. 2013) (en banc), appeal denied, 83 A.3d

414 (Pa. 2013) (internal alterations, quotation marks, and citation omitted).

The petitioner bears the burden of proving his counsel was ineffective. See

Commonwealth v. Williams, 980 A.2d 510, 520 n.12 (2009). “A failure to

satisfy any one of the three prongs of the test for ineffectiveness requires

rejection of the claim.” Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009).

      In this case, Appellant has failed to prove the first and third prongs of

ineffectiveness.   “It is axiomatic that counsel will not be considered

ineffective for failing to pursue meritless claims.” Commonwealth v.

Charleston, 94 A.3d 1012, 1024 (Pa. Super. 2014) (internal alteration and



                                    - 24 -
J-S65028-14


citation omitted).   As noted above, we conclude that both Appellant’s first

and second substantive issues lack arguable merit. As such, his trial, direct

appeal, and PCRA counsel could not be deemed ineffective for failing to raise

or pursue these claims.

      Appellant has also failed to establish the requisite prejudice to prove

ineffective assistance of counsel.      As to ineffectiveness for failing to

previously raise a Rule 404(b) claim, as we described in our analysis of the

prejudice prong of Appellant’s Brady claim, M.L.’s testimony was a minor

part of the Commonwealth’s case against Appellant.        The Commonwealth

offered much more compelling testimony from each of the three victims with

whose assaults Appellant was charged in this case.         In addition to the

testimony of the three victims, DNA testing tied Appellant to the assaults.

Furthermore, all three victims testified to essentially the same course of

conduct by Appellant during their assaults. M.L.’s testimony was, at best,

cumulative of this evidence. Accordingly, Appellant has failed to show that

he was prejudiced by the admission of M.L.’s Rule 404(b) testimony.

      As to ineffectiveness with respect to counsels’ failure to previously

raise a Brady claim, the test for prejudice under Brady is the same as the

third prong of the test for ineffectiveness. See Kyles v. Whitley, 514 U.S.

419, 434 (1995). As we have determined that Appellant has failed to prove

prejudice under Brady, we likewise conclude that he has failed to prove

prejudice with respect to his prior counsels’ failure to raise a Brady claim at



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trial, on direct appeal, and/or in his first PCRA petition.     Accordingly,

Appellant has failed to plead and prove his ineffective assistance of counsel

claims.

     In sum, there is no dispute that Appellant filed his second PCRA

petition more than one year after his judgment of sentence became final.

We conclude that Appellant failed to satisfy his burden of pleading and

proving the applicability of the after-discovered evidence and/or government

interference exceptions to the PCRA’s timeliness requirement. Furthermore,

even if the PCRA court possessed jurisdiction over Appellant’s substantive

claims, those claims are without merit.     Therefore, we affirm the PCRA

court’s order dismissing Appellant’s second PCRA petition.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2014




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