J-S21045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DONALD TROUTMAN,                        :
                                         :
                   Appellant             :       No. 1830 WDA 2019

          Appeal from the PCRA Order Entered December 5, 2019
            in the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0004416-2007

BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED JUNE 26, 2020

      Donald Troutman (“Troutman”) appeals from the Order dismissing his

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

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

      In its Opinion, the PCRA court summarized the relevant factual history

as follows:

      [Troutman] lived in a one bedroom apartment in East Liberty[,
      Pittsburgh, Pennsylvania,] with his two biological children,
      including the Victim, and his then-girlfriend, Angela Sykes
      [(“Sykes”)], and her children. The Victim testified at trial that
      when she was seven, [Troutman] raped her on three separate
      occasions while they were living together. The Victim moved in
      with her biological mother and did not have contact with
      [Troutman] again until she was thirteen[]years old. Shortly after
      [Troutman] and the Victim were reunited, the Victim began to
      have seizures several times a week, which were attributed to her
      psychological trauma. The Victim texted her sister and told her
      about [Troutman] raping her when she was younger. The Victim’s
      sister then told their mother, who alerted the police.

PCRA Court Opinion, 1/22/20, at 2.
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        On October 5, 2009, following a bench trial, Troutman was convicted of

two counts each of incest, rape by forcible compulsion, statutory sexual

assault, sexual assault, endangering the welfare of children, and corruption of

minors.1 The trial court sentenced Troutman to an aggregate term of 7½ to

15 years in prison.        Troutman was also subject to lifetime registration

requirements under Megan’s Law.                Troutman filed post-sentence Motions,

which the trial court denied.        This Court affirmed Troutman’s judgment of

sentence on June 14, 2011. See Commonwealth v. Troutman, 31 A.3d

744 (Pa. Super. 2011) (unpublished memorandum).

        Following his direct appeal, Troutman filed several pro se filings, which

were treated as PCRA Petitions,2 and each of which was dismissed.

        Troutman, pro se, filed the instant PCRA Petition on July 31, 2018,

claiming that he received an Affidavit from Sykes (which he attached to his

Petition) on June 6, 2018, stating her belief that Troutman did not assault the

Victim in their home or their neighbors’ residence.3 The PCRA court appointed

Troutman counsel, who filed an Amended PCRA Petition on Troutman’s behalf.


____________________________________________


1 See 18 Pa.C.S.A. §§ 4302, 3121(a)(1), 3122.1, 3124.1, 4304(b),
6301(a)(1).

2 “[A]ny petition filed after the judgment of sentence becomes final will be
treated as a PCRA petition.” Commonwealth v. Jackson, 30 A.3d 516, 521
(Pa. Super. 2011) (citation and quotation marks omitted).

3   The Affidavit was signed and notarized on April 17, 2018.



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Counsel attached thereto a “Summary of proposed witness testimony” of

Sykes (the “witness certification”).4 The Commonwealth filed an Answer. On

November 13, 2019, the PCRA court issued Pa.R.Crim.P. 907 Notice of Intent

to dismiss Troutman’s Petition without a hearing. The PCRA court dismissed

the Petition on December 5, 2019.

       Troutman filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of errors complained of on appeal.

       Troutman now raises the following questions for our review:

       1. Did the PCRA court err and abuse its discretion by denying
       [Troutman’s] Amended PCRA Petition without first conducting an
       evidentiary hearing?

       2. Did the PCRA court err [by] determining that the witness
       certification statement contained in the pro[]se and Amended
       PCRA Petition did not substantially comply with 42 Pa.C.S.[A.]
       § 9545(D)(1)(ii) regarding witness certification?

Brief for Appellant at 4-5 (some capitalization omitted; issues numbered).

             Our standard of review regarding a PCRA court’s order is
       whether the determination of the PCRA court is supported by the
       evidence of record and is free of legal error. The PCRA court’s
       findings will not be disturbed unless there is no support for the
       findings in the certified record.




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4 The PCRA court noted in its Opinion that the Sykes’s Affidavit “was edited
into a witness certification[,] and the original [A]ffidavit was not attached.”
PCRA Court Opinion, 1/22/20, at 5. Additionally, as the Commonwealth points
out in its appellate brief, “the witness certification appears to quote a different
written statement [than the Affidavit], also apparently from Sykes.”
Commonwealth’s Brief at 13.

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Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citations

omitted). Further, there is no absolute right to an evidentiary hearing, and

the PCRA court has discretion to deny a petition without a hearing “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.”

Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006).

      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 the United States and 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, Troutman’s judgment of sentence became final in July 2011, when

the time for filing a petition for allowance of appeal with the Pennsylvania

Supreme Court expired. See Pa.R.A.P. 1113(a). Because Troutman did not

file the instant PCRA Petition until July 2018, it is facially untimely.

      However, Pennsylvania courts may consider an untimely petition if the

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


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

exceptions “shall be filed within one year of the date the claim could have

been presented.” Id. § 9545(b)(2).

       We will address Troutman’s claims together, as they are related. In his

first claim, Troutman asserts that the PCRA court erred in denying his Petition

without an evidentiary hearing. See Brief for Appellant at 16-20. Troutman

claims that the PCRA court should have permitted him to introduce the

testimony of Sykes, which, he claims, would raise “a genuine issue of fact

specifically regarding the time and place the Victim was attacked as well as

the identity of the attacker.” Id. at 17.5 According to Troutman, Sykes would

have testified that “there was never an evening during the school week when

[Troutman] and [] Sykes were separate and apart.”             Id. at 18.   Further,

Troutman contends that Sykes was homeless and living in Las Vegas at the



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5 In his first argument, Troutman improperly refers to Sykes’s proposed
testimony as “after-discovered evidence,” cites to 42 Pa.C.S.A.
§ 9543(a)(2)(vi), and discusses the requirements for establishing an after-
discovered evidence claim.        The PCRA court also incorrectly cited and
discussed the requirements for an “after-discovered evidence claim.” See
PCRA Court Opinion, 1/22/20, at 5-6. Because Troutman’s PCRA Petition was
untimely filed, the proper claim is the newly-discovered facts exception to the
PCRA’s timeliness requirements set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii).
See Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (reiterating
that “the newly-discovered facts exception to the time limitations of the PCRA,
as set forth in subsection 9545(b)(1)(ii), is distinct from the after-discovered
evidence basis for relief delineated in 42 Pa.C.S.[A.] § 9543(a)(2).”). Because
Troutman properly references the newly-discovered facts exception in his
second argument, and this error has not impeded our review, we will address
Troutman’s claim.

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time of his trial, and therefore, “no amount of diligence would make contacting

her as a witness for trial a possibility.”    Id. at 18.   Troutman claims that

Sykes’s proposed testimony warrants an evidentiary hearing. Id. at 19-20.

      In his second claim, Troutman contends that the PCRA court incorrectly

determined that the witness certification statement attached to his Petition

failed to comply with 42 Pa.C.S.A. § 9545(d)(1)(ii). Brief for Appellant at 20.

Troutman states that the witness certification attached to his original pro se

Petition was signed by Sykes and notarized, and he “augmented” the witness

certification by including Sykes’s address in the Amended PCRA Petition. Id.

      To prove the newly-discovered facts exception at section 9545(b)(1)(ii),

“the petitioner must establish that the facts upon which the claim was

predicated were unknown and could not have been ascertained by the exercise

of due diligence.” Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super.

2016) (citation omitted).   “Due diligence demands that the petitioner take

reasonable steps to protect his own interests. A petitioner must explain why

he could not have obtained the new fact(s) earlier with the exercise of due

diligence. This rule is strictly enforced.” Commonwealth v. Monaco, 996

A.2d 1076, 1080 (Pa. Super. 2010) (citations omitted).

      Despite Troutman’s assertion that he received Sykes’s Affidavit in June

2018, Troutman fails to identify any “fact” set forth in the Affidavit that was

unknown to him prior to that time.           In both the Affidavit and witness

certification, Sykes essentially states that Troutman could not have assaulted


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the Victim, because Sykes was at home in their one-bedroom apartment,

where she and Troutman slept in the same bed, and she was awake much of

the night caring for an infant. See Affidavit, 4/17/18, at 1; Amended PCRA

Petition, 3/13/19, at 8-9. Presumably, these facts would have been known to

Troutman prior to trial. See PCRA Court Opinion, 1/22/20, at 6 (stating that

“if [Troutman] now claims that [] Sykes was in the apartment during the time

of the rapes, he certainly knew that at the time of trial.”); see also

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

that “the focus of this exception is on the newly discovered facts, not on a

newly discovered or newly willing source for previously known facts.” (citation

and quotation marks omitted)).      Moreover, beyond a bald allegation that

Sykes was homeless and living in Las Vegas without a cell phone or landline,

Troutman does not explain why he was unable to uncover Sykes’s proposed

testimony sooner. Indeed, Troutman does not allege that he or his counsel

made any attempts to contact Sykes prior to trial.        See Amended PCRA

Petition, 3/13/19, at 8-9 (in the witness certification, citing Sykes’s statement

that no one contacted her about Troutman’s trial or asked her to testify on his

behalf). Therefore, Troutman failed to plead and prove the newly-discovered




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fact exception to the PCRA’s timeliness requirements.6 Accordingly, we affirm

the PCRA court’s Order dismissing Troutman’s Petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2020




____________________________________________


6The PCRA court’s Opinion and Troutman’s appellate brief primarily focus on
Troutman’s compliance with witness certification requirements. However,
even assuming the witness certification contained in Troutman’s Amended
PCRA Petition complied with the requirements set forth at section 9545(d),
Troutman failed to invoke the PCRA court’s jurisdiction by pleading and
proving an exception to the PCRA’s time bar. See Commonwealth v.
Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (stating that “we may affirm a
PCRA court’s decision on any grounds if the record supports it.” (citation
omitted)).

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