J-S19042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
           v.                             :
                                          :
STEVEN BLEAU,                             :
                                          :
                 Appellant                :           No. 2337 EDA 2015

                 Appeal from the PCRA Order June 25, 2015
             in the Court of Common Pleas of Chester County,
            Criminal Division, No(s): CP-15-CR-00000443-1988

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 23, 2016

     Steven Bleau (“Bleau”), pro se, appeals from the Order dismissing his

third Petition for relief filed pursuant to the Post Conviction Relief Act

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

     This Court previously set forth the underlying facts as follows:

     On the morning of November 30, 1987, at approximately 10:00
     a.m., the body of Mabel Toledo [“Toledo”] and that of a dying
     George Montgomery [“Montgomery”] were discovered by Arthur
     (Moe) Jackson [“Jackson”] in his home at 165 Glencrest Road,
     Valley Township, Chester County. Both victims had been shot;
     [] Toledo, four times and [] Montgomery, once. Montgomery
     later died at Brandywine Hospital.

                                    ***

     The events which led to this bloody murder scene began
     November 29, 1987, when [] Bleau drove Gregory Ferguson
     [“Ferguson”], [] Toledo and [] Montgomery from New York City,
     New York, to Chester County to meet [] Jackson. Apparently,
     Montgomery had asked Ferguson for the ride, but he did not
     have a car. Bleau, Ferguson’s cousin, had a Buick Somerset and
     agreed to drive. Bleau and Ferguson were paid $250.00 for
     driving Montgomery and Toledo to Chester County. They arrived
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     in Coatesville at approximately 8:00 p.m. at Trina Rooks’[s]
     [“Rooks”] apartment on 102 Victoria Drive, Coatesville.      []
     Jackson, [] Rooks’[s] boyfriend, was alone at the apartment. []
     Rooks arrived later.

     At some point thereafter, Bleau, Ferguson, Montgomery, Toledo,
     [] Jackson and Rooks drove around Chester County and made
     several stops, eventually returning to 103 Glen Crest Avenue. []
     Jackson and [] Rooks then left to go to Rooks’[s] mother’s house
     for a sump pump to remove rain water from Jackson’s
     basement. They returned, installed the sump pump and left at
     approximately 11:30 to 12 midnight. [] Toledo stated that she
     wanted to get up at 5:00 a.m. to return to New York City by
     8:00 a.m. Later, at 1:30 a.m. (November 30) Montgomery
     telephoned his employer, Michael Strobert, in New York City and
     said he would not be at work on November 30, 1987.

     According to [] Ferguson’s testimony, [] Toledo and []
     Montgomery took [a rifle with them] back to the bedroom,
     leaving [another rifle] with Ferguson and Bleau in the living
     room.     Bleau and Ferguson sat around drinking beer and
     smoking cigarettes laced with cocaine. After a while, Bleau
     insisted that he wanted to get his money from Montgomery now;
     he was concerned he would not get paid. Bleau also talked of
     robbing Montgomery and Toledo. Together, Bleau and Ferguson
     went to the bedroom and Ferguson knocked on the door.
     Montgomery came to the door and Ferguson explained that
     Bleau thought he was “getting beat” and asked if they were
     going to be paid. Montgomery assured them they would be paid
     and turned back to walk into the bedroom. At that point, Bleau
     shot Montgomery who fell forward into Ferguson. Ferguson let
     him down to the ground.

     Ferguson ran into the bedroom and Toledo picked up the
     telephone answering machine in one hand and the [rifle] in the
     other. When Ferguson grabbed the point of the gun, Toledo
     struck him in the head with the answering machine. Ferguson
     pushed her away and Bleau ran up and shot Toledo in the cheek
     while she was laying across the bed. During Ferguson’s struggle
     with Toledo, they got tangled up in the telephone cord. After
     Bleau shot her in the cheek, Toledo pleaded for her life. Bleau
     picked up [Toledo’s rifle] and shot [] Toledo in the head.
     Ferguson ran out [of] the door[,] leaving the telephone cord
     trailing behind him. Bleau followed him out carrying one of the


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      rifles, Montgomery’s coat and Toledo’s pocketbook. Bleau threw
      the rifle in the trunk, jumped in the driver's seat and began
      driving.

Commonwealth v. Bleau, 91 A.3d 1288 (Pa. Super. 2013) (unpublished

memorandum at 2-3) (citation omitted).

      On December 9, 1988, following a jury trial, Bleau was convicted of

two counts of first-degree murder, two counts of criminal conspiracy, and

one count of robbery.1 Bleau was subsequently sentenced to an aggregate

sentence of life in prison.   This Court affirmed the judgment of sentence.

See   Commonwealth       v.   Bleau,    631   A.2d   210   (Pa.   Super.   1993)

(unpublished memorandum).

      Bleau’s first PCRA Petition was denied, and this Court affirmed the

denial. See Commonwealth v. Bleau, 785 A.2d 1024 (Pa. Super. 2001)

(unpublished memorandum), appeal denied, 798 A.2d 1286 (Pa. 2002).

Bleau’s second PCRA Petition was dismissed, and this Court affirmed the

dismissal. See Bleau, 91 A.3d 1288.

      On March 23, 2015, Bleau filed the instant PCRA Petition, his third.

The PCRA court issued a Pennsylvania Rule of Criminal Procedure 907

Notice.   Bleau filed a Reply to the Rule 907 Notice.      Thereafter, the PCRA

court dismissed Bleau’s PCRA Petition. Bleau filed a timely Notice of Appeal


1
   Ferguson pled guilty, on September 2, 1988, to the first-degree murder of
Toledo and second-degree murder of Montgomery, as an accomplice of
Bleau. Pursuant to a plea agreement, Ferguson was required to provide
testimony at Bleau’s trial. Ferguson was sentenced to concurrent terms of
life in prison.


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and a court-ordered Pennsylvania Rule of Appellate Procedure 1925(b)

Concise Statement.

        On appeal, Bleau raises the following questions for our review:

        1. Did [Bleau] exercise reasonable diligence in obtaining newly
           discovered recantation evidence from the Commonwealth’[s]
           sole witness (Ferguson), and timely present it with a strong
           prima facie showing of miscarriage of justice [and] innocence
           under the [Commonwealth v.] Lawson[, 549 A.2d 107 (Pa.
           1988)] standard sufficiently to override the waiver and final
           litigation requirements of 42 Pa.C.S.[A.] §§ 9541-9551?

        2. Did the PCRA court abuse [its] discretion by not considering …
           the admissibility of … Ferguson[’s] declaration to [James]
           Ceasar and Ferguson’s unsworn declaration under the excited
           utterance, state of mind and declaration against penal
           interest exceptions to the hearsay rule?

        3. Does newly discovered recantation evidence from the
           Commonwealth’s sole witness (Ferguson) establish [Bleau’s]
           innocence; a violation of his Fourteenth Amendment right to
           due process [and] Eighth Amendment right against cruel and
           unusual punishment under the U.S. Constitution; and Article
           I, Section 9 [and] Article I, Section 13 under the Pennsylvania
           Constitution?

Brief for Appellant at 2 (some capitalization omitted).2

               We review an order dismissing a petition under the PCRA
        in the light most favorable to the prevailing party at the PCRA
        level. This review is limited to the findings of the PCRA court
        and the evidence of record. We will not disturb a PCRA court’s
        ruling if it is supported by evidence of record and is free of legal
        error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).



2
    As all of Bleau’s claims are related, we will address them together.


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      Initially, under the PCRA, any PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Bleau’s judgment of sentence became final in 1993.          Thus,

Bleau’s third PCRA Petition is facially untimely under the PCRA.      See 42

Pa.C.S.A. § 9545(b).

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of the three exceptions set forth

at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).   Any PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

      Bleau contends that he has met the requirements of the “newly

discovered facts” exception. See 42 Pa.C.S.A. § 9545(b)(1)(ii).

      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


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        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.

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

and quotation marks omitted).

        In order to prevail on a motion for new trial based upon newly-

discovered evidence, Bleau must demonstrate that the evidence “(1) could

not have been obtained prior to trial by exercising reasonable diligence; (2)

is not merely corroborative or cumulative; (3) will not be used solely to

impeach a witness’s credibility; and (4) would likely result in a different

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

        Bleau argues that he discovered new evidence in the form of a January

22, 2015 affidavit from Ferguson, and a February 8, 2015 affidavit from

Ceasar, a prison inmate serving with Ferguson, each of which includes

statements by Ferguson indicating that Bleau did not commit the murders.3

Brief for Appellant at 11, 17, 25, 32.    Bleau relies on Ferguson’s statement

that he and Bleau were not responsible for the murders, but that Jamaicans

had committed the murders. Id. at 11, 27, 32. Bleau also contends that he

could not have ascertained this evidence until Ferguson was willing to reveal

the truth, and that he filed the PCRA Petition within sixty days of when the

evidence was discovered. Id. at 11-12, 15, 32; see also id. at 14 (wherein


3
    Ferguson died on February 8, 2015.


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Bleau    asserts    that   he   and   Ferguson    were   separated   during   their

incarceration until 2012, when they were placed in the same prison). Bleau

claims that he would not have been found guilty of the murder if not for

Ferguson’s false testimony, and that the recantation statements were not

cumulative or corroborative of other evidence. Id. at 18, 19, 25, 32, 34-36;

see also id. at 33, 38 (wherein Bleau argues that his due process claims

were violated where the Commonwealth knowingly used false testimony to

convict him).      Bleau additionally argues that this claim was not previously

litigated in his first PCRA Petition, as the prior claim involved Ferguson’s lies

during his plea colloquy and did not involve a recantation or a declaration as

to the guilty parties.     Id. at 13, 18-19.     Bleau asserts that based on the

affidavits, the PCRA court should have held an evidentiary hearing. Id. at

12, 17, 32.

        In its Rule 907 Notice, the PCRA court addressed Bleau’s claims as

follows:

              The first affidavit submitted by [Bleau] [wa]s allegedly
        signed by [] Ferguson on January 22, 2015. However, there is
        no tangible evidence in the record that [Ferguson] actually
        signed this affidavit. …

              Notwithstanding the [PCRA c]ourt’s authenticity concerns
        of the document, [Bleau’s] reliance on [] Ferguson’s affidavit is
        misplaced for other reasons. This affidavit is irrelevant[,] as it
        expands on [] Ferguson’s prior recantation. Specifically, this
        issue was [partially] explored during [Bleau’s] first PCRA
        proceedings.     [] Ferguson’s alleged affidavit is partially
        corroborative or cumulative of his prior recantation. … [A]fter
        conducting three evidentiary hearings on April 6, 1999, June 22,
        1999, and November 23, 1999, [Bleau’s] first PCRA Petition was


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     denied on June 19, 2000. The denial of [Bleau’s] first PCRA
     Petition was affirmed by the Superior Court on [August 14,
     2001].

            [Aside from] the cumulative portion of the affidavit,
     [Bleau] fails to provide any credible evidence as to why he was
     unable to obtain the remaining information earlier through due
     diligence. [Bleau] merely asserts that he had exercised due
     diligence for the past 27 years concerning the case. [Bleau]
     suggests that he exercised due diligence by merely subpoenaing
     [] Ferguson as a witness in his first evidentiary hearing.
     Although [] Ferguson took the witness stand at [Bleau’s] first
     evidentiary hearing, [Bleau] made a conscious choice not to ask
     him any questions concerning the actual facts of the case.
     Clearly, we will not construe [Bleau’s] acquiescence as due
     diligence. Because the information contained in [] Ferguson’s
     alleged affidavit constitutes facts that were, in part, already
     discovered by [Bleau,] and other facts that could have been
     discovered through the exercise of due diligence prior to the
     filing of his March 23, 2015 PCRA Petition[,] it is disingenuous
     for [Bleau] to now assert that he acted with due diligence. …

            … [T]he record reflects that [Bleau] and [] Ferguson have
     been cooperating at least since [Bleau] filed his first PCRA
     Petition.   … [A]t the first evidentiary hearing, [] Ferguson
     claimed that he lied at trial concerning his plea agreement with
     the Commonwealth. …

           The alleged new affidavit from [] Ferguson not only
     reiterates his original recantation concerning his plea
     agreement[,] but also includes an additional recantation
     concerning the involvement of both [Bleau] and himself.
     Specifically, the new affidavit states that Jamaicans committed
     the murders and that both [Bleau] and [] Ferguson were not
     involved with the murders.       Logic dictates that because []
     Ferguson’s alleged affidavit is directly inconsistent and
     contradictory to his trial testimony, both statements cannot be
     true. To say that the second statement contained in the alleged
     new affidavit is more reliable and credible tha[n] his trial
     testimony would be pure speculation, especially when the first
     one was unequivocally given under oath.




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Rule 907 Notice, 5/15/15, at 5 (citations omitted); see also PCRA Court

Opinion, 10/7/15, at 10 (finding that “Ferguson’s incredible recantation

testimony lacks reliability as Ferguson’s original trial testimony was

corroborated in several respects.”). Upon our review of the record, we agree

with the PCRA court’s reasoning and determine that Bleau did not properly

invoke the timeliness exception at section 9545(b)(1)(ii).      See Rule 907

Notice, 5/15/15, at 5; see also Commonwealth v. D’Amato, 856 A.2d

806, 825 (Pa. 2004) (noting that while the PCRA court must assess the

credibility of the recantation in light of the evidence as a whole, recantation

evidence is “notoriously unreliable,” particularly where the witness argues

that he committed perjury).

      Additionally, for similar reasons as stated above, Ceasar’s affidavit

does not properly invoke the exception at section 9545(b)(1)(ii). In point of

fact, Ferguson’s statement to Ceasar, i.e., that Bleau did not kill anyone,

merely corroborates Ferguson’s affidavit.      Bleau cannot avoid the due

diligence requirement by merely providing an affidavit from a person




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(Ceasar) different than the person (Ferguson) recanting their testimony.4

      Based upon the foregoing, the PCRA court did not err in dismissing

Bleau’s third PCRA Petition, without holding a hearing, where Bleau’s claims

were frivolous.5   See Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.

Super. 2006) (stating that “a PCRA court may decline to hold a hearing on

the petition if the PCRA court determines that the petitioner’s claim is

patently frivolous and is without a trace of support in either the record or

from other evidence.”); see also Commonwealth v. Garcia, 23 A.3d


4
  We note that Bleau cites to Lawson for the proposition that he is entitled
to relief on his claims due to a miscarriage of justice. See Lawson, 549
A.2d at 112 (stating that “[a] repetitive or serial petition may be entertained
only for the purpose of avoiding a demonstrated miscarriage of justice[.]”).
However, “courts of Pennsylvania will only entertain a ‘miscarriage of justice’
claim when the initial timeliness requirement is met.” Commonwealth v.
Burton, 936 A.2d 521, 527 (Pa. Super. 2007). Further, “there is no
‘miscarriage of justice’ standard exception to the time requirements of the
PCRA.” Id. (citation omitted); see also Commonwealth v. Brown, 943
A.2d 264, 267 (Pa. 2008) (stating that “it is now well settled that there is no
generalized equitable exception to the jurisdictional one-year time bar
pertaining to post-conviction petitions.”). Because Bleau did not properly
invoke any exceptions to the timeliness requirements, he is not entitled to
relief under Lawson.
5
  Bleau also contends that the declarations are admissible under the excited
utterance, state of mind, and declaration against penal interest exceptions to
the hearsay rule. Brief for Appellant at 20, 21-24, 26-31. However, Bleau’s
failure to include these claims in his PCRA Petition results in waiver. See
Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007) (noting
that “[a]ny claim not raised in the PCRA petition is waived and not
cognizable on appeal.”); see also Pa.R.Crim.P. 902(B) (stating that “[e]ach
ground relied upon in support of the relief requested shall be stated in the
[PCRA] petition. Failure to state such a ground in the petition shall preclude
the defendant from raising that ground in any proceeding for post-conviction
collateral relief.”). In any event, because Bleau did not properly invoke the
exception at section 9545(b)(1)(ii), his claims in this regard would be moot.


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1059, 1066 n.9 (Pa. Super. 2011) (concluding that where the petitioner filed

an untimely PCRA Petition and did not plead and prove an exception to the

timeliness requirement, the PCRA court did not abuse its discretion in

declining to hold an evidentiary hearing).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/23/2016




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