J-S63024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARLOS CRUZ,

                            Appellant                 No. 1149 EDA 2015


                   Appeal from the PCRA Order March 27, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1204731-1994


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 03, 2016

       Appellant, Carlos Cruz, appeals from the March 27, 2015 order

denying his second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we reverse and

remand with instructions.

       The relevant facts and procedural history of this matter were set forth

by the PCRA court as follows:

             [Appellant] was initially arrested on November 4, 1994 and
       charged with a range of offenses. On December 21, 1995,
       appearing before a jury presided over by the Honorable John J.
       Poserina, Jr., now retired, [Appellant] was convicted of second
       degree murder, two counts of robbery, aggravated assault,
       conspiracy, carrying a firearm on public streets or public
       property in Philadelphia and possession of an instrument of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     crime (PIC). On March 11, 1996, he was sentenced by Judge
     Poserina to life imprisonment without the possibility of parole
     followed by a consecutive aggregate twenty-four and a half [to
     forty-nine] years of incarceration on the remaining charges.
     [Appellant] did not file a Notice of Appeal.

            On June 17, 1996 [Appellant] timely filed his first PCRA
     petition pro se which was later amended by appointed counsel.
     Judge Poserina dismissed the petition on January 7, 1999.
     [Appellant] filed a pro se Motion for Reconsideration that was
     denied on January 28, 1999. On March 2, 1999 [Appellant] filed
     a timely pro se Notice of Appeal. Judge Poserina did not file an
     opinion in this PCRA case. The court’s dismissal of the first PCRA
     petition was affirmed by the Superior Court on July 5, 2000.
     [Commonwealth v. Cruz, 652 EDA 1999, 761 A.2d 1231 (Pa.
     Super. filed July 5, 2000) (unpublished judgment order)]. On
     July 12, 2000 [Appellant] submitted an application for
     reconsideration to the Superior Court, which was denied on
     September 6, 2000. On October 5, 2000 [Appellant] timely
     petitioned the Supreme Court for allowance of appeal and the
     petition was denied on January 30, 2001. [Commonwealth v.
     Cruz, 615 EAL 2000, 771 A.2d 1278 (Pa. filed January 30,
     2001)].

            On October 18, 2001 [Appellant] filed a writ of habeas
     corpus in the United States District Court for the Eastern District
     of Pennsylvania. On May 22, 2002 the District Court dismissed
     [Appellant’s] writ and denied relief, finding no basis for the
     issuance of a certificate of appealability. On June 24, 2002
     [Appellant] filed a Notice of Appeal to the Third Circuit Court of
     Appeals. On July 19, 2002 [Appellant] filed a Motion for a
     Certificate of Appealability, said motion was denied December
     16, 2002. According to the docket entries, two subsequent writs
     of habeas corpus were filed on March 19, 2010 and October 5,
     2011. See Quarter Session File.

           On September 4, 2012 [Appellant] filed this second pro se
     PCRA petition. On April 10, 2013 PCRA counsel entered their
     appearance and later amended the petition on December 3,
     2013. [Appellant] filed a pro se amended petition on March 3,
     2014. Commonwealth filed a motion to dismiss the PCRA petition
     on September 19, 2014. On December 9, 2014 this court was
     then assigned the case because Judge Pos[]erina assumed
     senior status. On February 27, 2015 this court gave [Appellant]

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      notice of intent to dismiss. On March 17, 2015 [Appellant] filed a
      pro se objection to this court’s issuance. Thereafter, on March
      27, 2015 this court granted Commonwealth’s Motion to Dismiss
      and formally dismissed the petition. On April 21, 2015
      [Appellant], through his attorney, filed a Notice of Appeal to the
      Superior Court.

PCRA Court Opinion, 7/9/15, at 1-3 (internal footnotes omitted).

      On appeal, Appellant presents the following issue for this Court’s

consideration:

      I. Did the PCRA Court err when it dismissed [Appellant’s]
      Amended PCRA Petition without a Hearing and all where
      [Appellant] properly pled and would have been able to prove
      that he was entitled to PCRA relief?

Appellant’s Brief at 3.     Specifically, Appellant avers that he submitted

evidence of after-discovered facts in the form of affidavits to the PCRA court

supporting his claim that he was not the shooter; therefore, he was entitled

to a PCRA hearing. Id. at 7-9.

      When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).    “The PCRA court may dismiss a petition without a hearing

when the court is satisfied ‘that there are no genuine issues concerning any

material fact, the defendant is not entitled to post-conviction collateral relief,


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and no legitimate purpose would be served by any further proceedings.’

Pa.R.Crim.P. 909(B)(2).”    Commonwealth v. Johnson, 139 A.3d 1257,

1273 (Pa. 2016).

      Additionally, a PCRA petition must be filed within one year of the date

that the judgment of sentence becomes final.       42 Pa.C.S. § 9545(b)(1).

This time requirement is mandatory and jurisdictional in nature, and the

court may not ignore it in order to reach the merits of the petition.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).              A

judgment of sentence “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. § 9545(b)(3).

      In the case sub judice, Appellant was sentenced on March 11, 1996.

Appellant did not pursue a direct appeal in this Court. Thus, his judgment of

sentence became final thirty days later on April 10, 1996, and Appellant had

until April 10, 1997, to file a timely PCRA petition. 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 903. Appellant filed a timely first PCRA petition that was denied on

January 7, 1999.    This Court affirmed the order denying relief on July 5,

2000, and the Supreme Court denied allowance of appeal. Commonwealth

v. Cruz, 652 EDA 1999, 761 A.2d 1231 (Pa. Super. filed July 5, 2000)

(unpublished memorandum), appeal denied, 615 E.D.ALLOC. 2000, 771




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A.2d 1278 (Pa. filed January 30, 2001).          Accordingly, Appellant’s second

PCRA petition filed on September 4, 2012, is patently untimely.

       Nevertheless, an untimely petition may be received when the petition

alleges and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.1 “However, the PCRA limits the reach of the exceptions by

providing that a petition invoking any of the exceptions must be filed within

60    days of the       date   the   claim first could have   been presented.”

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citing

Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa. Super. 2011), and

42 Pa.C.S. § 9545(b)(2)). Moreover:


____________________________________________


1
    The exceptions to the timeliness requirement are:

       (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. § 9545(b)(1)(i), (ii), and (iii).




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      To obtain relief based on after-discovered evidence, appellant
      must demonstrate that the evidence: (1) could not have been
      obtained prior to the conclusion of the trial by the exercise of
      reasonable diligence; (2) is not merely corroborative or
      cumulative; (3) will not be used solely to impeach the credibility
      of a witness; and (4) would likely result in a different verdict if a
      new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008).

      Appellant asserts on appeal that the “after-discovered facts” exception

to the PCRA’s timing requirements applies. Appellant’s Brief at 8. Appellant

attached several documents to his September 4, 2012 PCRA petition, which

are described as follows: Affidavit of Juan Agosto, notarized and dated

January 9, 2006; Affidavit of David Flores, notarized and dated July 10,

2012; and Affidavit of Appellant, notarized and dated August 28, 2012.

PCRA Petition, 9/4/12. In an amended PCRA petition, filed pro se on March

3, 2014, Appellant appends an affidavit of Jay Diaz, dated February 26,

2014, which is not notarized.

      The PCRA court addressed Appellant’s petition and “after-discovered

facts,” as purportedly raised in these affidavits, as follows:

            Here, [Appellant] is claiming that his second petition falls
      under the after-discovered evidence exception to the PCRA time-
      bar. [Appellant] is however not entitled to relief under this
      exception.

                                     * * *

            Instantly, [Appellant’s] after-discovered evidence claim,
      and basis for a new trial, rests on four purported affidavits, one
      from himself and one each from alleged witnesses, Juan Agosto
      and David Flores. In a later pro se amended petition, he also
      proffered an affidavit from Jay Diaz, a fellow inmate allegedly in

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     possession of information that [Appellant] did not possess at the
     time of his trial. [Appellant] has, however, failed to satisfy the
     requirements for exception to the time-bar; therefore his after-
     discovered evidence claim is meritless. Each purported after-
     discovered evidence document will be analyzed below.

            The first affidavit was submitted by Juan Agosto and dated
     January 9, 2006, more than six years before the petition was
     filed. Thus, the instant PCRA petition was not filled within 60
     days of the date [Appellant] became aware of this alleged
     evidence as required under subsection 9545(b)(1)(ii) [and
     (b)(2)].   Therefore,      [Appellant]  has   not   satisfied the
     requirements for the after-discovered evidence exception to the
     time bar. Thus, this court properly dismissed his petition.

            The second affidavit was submitted by David Flores and is
     dated July 10, 2012. Although submitted within the 60 day filing
     period, Mr. Flores’s affidavit also fails to provide a basis for a
     new trial. In his affidavit, Mr. Flores claims that he was in close
     proximity to the scene of the homicide, and that [Appellant] was
     not the shooter. His affidavit also states that he gave a prior
     statement in 1997. Given Mr. Flores’s prior statement and
     [Appellant’s] familiarity with him from the neighborhood,
     [Appellant] has not plead or proven that he could not have
     discovered the contents of Mr. Flores’s affidavit prior to the
     conclusion of the trial by the exercise of reasonable diligence.
     Furthermore, Mr. Flores states in his affidavit that he will not
     testify at a new trial. Thus, this alleged after-discovered
     evidence does not meet the “producible” requirement of the
     PCRA. Accordingly, this court properly found this claim
     insufficient to overcome the PCRA time-bar.

            In the third document, [Appellant] in his own affidavit,
     dated August 28, 2012, states that he recently obtained and
     became aware of the aforementioned evidence, and that he now
     remembers Mr. Flores being in the proximity of the shooting
     some eighteen (18) years ago. Clearly this claim, on its face,
     fails the reasonable diligence requirement of the time-bar
     exception. Hence, [Appellant’s] claims cannot be entertained by
     this court.

           Finally, the fourth document is an affidavit submitted by
     SCI Graterford inmate Jay Diaz dated February 26, 2014. This
     affidavit was submitted within 60 days of its discovery on March

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     3, 2014 in an amended pro se PCRA petition. In his affidavit, Mr.
     Diaz claims he had been living with the secret that he witnessed
     a shooting incident which resulted in someone’s death nearly
     eighteen (18) years ago. Coincidentally, while both Mr. Diaz and
     [Appellant] were serving sentences at SCI Graterford, Mr. Diaz
     allegedly overheard [Appellant] proclaiming his innocence to
     another inmate, recognized the referenced location, instantly
     knew that [Appellant] was not the man he witnessed commit the
     shooting and felt obligated to come forward and offer [Appellant]
     assistance. Even, assuming arguendo, that this affidavit contains
     unknown facts that could not have been obtained prior to the
     conclusion of the trial by the exercise of reasonable diligence, it
     still fails to satisfy the after-discovered evidence exception.
     [Appellant] has not plead, presented or proven that Mr. Diaz’s
     affidavit is of such a nature and character that a different verdict
     will likely result if a new trial is granted.

            In this case, [Appellant] has proffered affidavits
     exculpating himself as the shooter in a nearly two decades old
     murder case to ultimately show that someone else committed
     the crime for which he was convicted. As indicated above,
     [Appellant] has failed to plead and prove that the allegedly after-
     discovered evidence contained in the submitted affidavits could
     not have been obtained by the exercise of reasonable diligence
     prior to the conclusion of the trial. Moreover, in assessing the
     content of the evidence as a whole, [Appellant] has not provided
     sufficient proof that the affidavits are not merely corroborative
     or cumulative of evidence previously submitted in prior PCRA
     petitions.

            As the trial record aptly demonstrates, the evidence
     presented against [Appellant] was overwhelming. Inasmuch as
     the record still contains [Appellant’s] confession to the murder
     for which he was convicted, and discrete facts from that
     confession that were documented by independent evidence,
     [Appellant] has failed to establish that the allegedly after-
     discovered evidence would compel a different verdict. Thus,
     where [Appellant] only offers as after-discovered evidence time
     barred affidavits, he is improperly attempting to tailor the nature
     and character of his alleged evidence to circumvent the PCRA
     filing deadline.

PCRA Court Opinion, 7/9/15, at 5-9.


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       We agree with the PCRA court’s conclusions that the affidavits filed by

Juan Agosto, David Flores, and Appellant either failed to satisfy the

requirement that after-discovered facts be presented within sixty days of

their discovery, 42 Pa.C.S. § 9545(b)(1)(ii) and (2), or failed to establish

any likelihood that, if this “after-discovered evidence” were produced, the

result of the proceedings would have been different.     Pagan, 950 A.2d at

292.

       However, with respect to the affidavit filed by Jay Diaz, we are

constrained to disagree with the PCRA court. First, we point out that, after

Appellant learned of Mr. Diaz, he prepared the amended PCRA petition and

informed counsel of both the after-discovered facts and the need to plead

and prove that these after-discovered facts may establish an exception to

the PCRA time bar.     Amended PCRA Petition, 3/3/14, at 2 and proof-of-

service page; Objections to Notice of Intent to Dismiss Pursuant to

Pa.R.Crim.P. 907, 3/17/15, at 2-4. The PCRA court considered the amended

pro se petition, and the record does not reflect that Appellant’s petition was

forwarded to counsel for consideration pursuant to Commonwealth v.

Jette, 23 A.3d 1032, 1044 (Pa. 2011), and Pa.R.Crim.P. 576(A)(4) (stating

that when criminal defendant, who is represented by counsel, submits a pro

se filing, the clerk of courts shall accept the document for filing and forward

a copy to counsel).     Under these circumstances, we decline to consider

Appellant's pro se amended petition as a legal nullity, despite the prohibition


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against hybrid representation announced in Commonwealth v. Ellis, 626

A.2d 1137 (Pa. 1993). Moreover, Mr. Diaz’s affidavit was submitted within

sixty days of its discovery in Appellant’s amended pro se PCRA petition.

Within the affidavit, it is averred that Appellant was innocent and another

individual was the perpetrator. Further, Appellant claims that because Mr.

Diaz was unknown to Appellant at the time of trial, these facts could not

have been discovered. We conclude that this affidavit and the information

contained within is not merely cumulative or being used solely to impeach

the credibility of a witness, and it could have resulted in a different outcome

at trial. Pagan, 950 A.2d at 292.

      Accordingly, we conclude that the PCRA court erred in dismissing

Appellant’s PCRA petition without a hearing. We hereby reverse the order of

the PCRA court and remand this matter to the PCRA court for a hearing on

Appellant’s petition.

      Order     reversed.   Case   remanded   for   a   hearing.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2016




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