J-S80019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 BENJAMIN VELASQUEZ                       :
                                          :
                    Appellant             :   No. 2067 EDA 2017

                  Appeal from the PCRA Order May 19, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0418641-1974


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 24, 2019

      Benjamin Velasquez appeals from the order denying as untimely his

serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We

affirm.

      In 1975, a jury convicted Appellant of first-degree murder, burglary,

and robbery. The PCRA court summarized the facts underlying Appellant’s

convictions as follows:

      [O]n February 7, 1974, Appellant and a[n unidentified] female
      accomplice gained entrance to two homes in Philadelphia by
      subterfuge. At the second home, the owners Efrain and Francisca
      Irrazarry were present. After a brief conversation, the accomplice
      grabbed Ms. Irrazarry by the neck and put a knife to her throat.
      Appellant pointed a gun at Mr. Irrazarry, demanded money and
      shot him in the side. Appellant repeatedly demanded money.
      When the wounded Mr. Irrazarry did not respond quickly enough
      to satisfy Appellant, he put a gun behind . . . Mr. Irrazarry’s ear
      and shot him execution style, causing the victim’s death. The
      criminals then tied up and bound the female victim and ransacked
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      the home. The sum total of their booty was $30 and two wedding
      rings.

PCRA Court Opinion, 6/28/18, at 1-2 (footnote omitted). The foregoing events

were described by Mrs. Irrazarry, who survived the break-in.

      Appellant was sentenced to life in prison for murder, and to two

consecutive terms of ten to twenty years imprisonment for burglary and

robbery. On June, 3, 1977, the Supreme Court of Pennsylvania affirmed the

judgment of sentence. See Commonwealth v. Velasquez, 373 A.2d 455

(Pa. 1977). Appellant did not file a petition for writ of certiorari in the Supreme

Court of the United States.

      In 1986, Deborah Chavis, the unidentified accomplice to the break-in,

turned herself into police and confessed her role in the crime. She provided

statements to police in 1986 and 1987, wherein she described a struggle with

Mr. Irrazarry during which he was accidentally shot.        In those statements,

Chavis indicated that she had the gun, suggesting that she was the shooter.

In 1988, Appellant, who was incarcerated, provided a statement to police

wherein he confirmed that he had the gun when a struggle ensued with Mr.

Irrazarry, and that the gun accidentally discharged into his stomach.

Appellant further stated that Chavis thereafter grabbed the gun, and that,

when she did so, it discharged, hitting Mr. Irrazarry in the head. In 1989,

Chavis testified at her guilty plea hearing that the gun was in Appellant’s hand

when it went off.




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       Appellant sought collateral relief by petitions filed in 1977, 1983, 1993,

1996, 2008, and 2012, all of which were unsuccessful.1 During the same time

frame, Appellant filed several petitions for writ of habeas corpus in federal

court, which were also denied. On May 18, 2015, Appellant filed the instant

PCRA petition, his seventh. After complying with Pa.R.Crim.P. 907, the PCRA

court denied the petition as untimely on May 19, 2017. Appellant filed a timely

notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of

errors claimed of on appeal.

       Appellant raises the following issues for our review:

       I.     Did the court below err by dismissing [Appellant’s] PCRA
              petition as untimely despite his invocation of 42 Pa.C.S.
              § 9545(b)(1)(ii), based on previously unknown facts
              attested by alleged co-conspirator . . . Chavis, and despite
              his diligence in attempting to acquire the necessary
              documentation?

       II.    Did the court below err by dismissing [Appellant’s] PCRA
              petition as untimely despite his invocation of 42 Pa.C.S.
              § 9545(b)(1)(i) for governmental interference, due to the
              court system’s and the Commonwealth’s repeated failure,
              upon request and otherwise, to provide [Appellant] with
              . . . Chavis’s testimony and statements?

       III.   Since the PCRA court’s timeliness analysis was in error,
              should the case be remanded for a decision on the merits?
____________________________________________


1 Appellant’s petitions filed in 1977 and 1983 were filed pursuant to the then-
applicable Post Conviction Hearing Act (“PCHA”), which was the predecessor
to the PCRA. Additionally, certain of Appellant’s filings were not styled as
PCRA petitions, but were treated as such by the PCRA court. See 42 Pa.C.S.
§ 9542 (providing that “[t]he action established in this subchapter shall be the
sole means of obtaining collateral relief and encompasses all other common
law and statutory remedies for the same purpose that exist when this
subchapter takes effect, including habeas corpus and coram nobis.”).

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Appellant’s brief at 3 (unnecessary capitalization omitted).

      In reviewing the denial of a PCRA petition, we examine whether the

PCRA court’s determination “is supported by the record and free of legal

error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007) (citations

omitted).

      Under the PCRA, any petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S. § 9545(b)(1).        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, Appellant’s judgment of sentence became final on September 1,

1977, when the period of time to file an appeal with the Supreme Court of the

United States expired. See U.S.Sup.Ct.Rule 22, effective July 1, 1970 to June

29, 1980; see also 42 Pa.C.S. § 9545(b)(3). Appellant’s initial PCHA petition

was denied in 1980; thus, Appellant did not qualify for the one-year tolling

provision   contained   in   the   1995   amendments    to     the   PCRA.   See

Commonwealth v. Fahy, 737 A.2d 214, 218 (Pa. 1999) (providing that

where a judgment of sentence becomes final on or before the effective date

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of the amendments to the PCRA, a petition will be deemed timely if the

petitioner’s first petition is filed within one year of the effective date of the

amendments). Appellant filed his seventh/current petition on May 18, 2015,

almost thirty-eight years after his judgment of sentence became final; thus,

it is patently untimely. See 42 Pa.C.S. § 9545(b)(1).

       Pennsylvania courts may consider an untimely PCRA petition if the

appellant pleads and proves one of three exceptions set forth under 42 Pa.C.S.

§ 9545(b)(1). The three narrow exceptions to the one-year time bar are as

follows: “(1) interference by government officials in the presentation of the

claim; (2) newly-discovered facts; and (3) an after-recognized constitutional

right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012);

see also 42 Pa.C.S. § 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); see also Albrecht, supra at 1094.

       Appellant argues that he satisfied the timeliness exceptions for newly-

discovered facts and interference by government officials. With respect to the

newly-discovered facts exception,2 he claims that the instant petition was filed

within sixty days of April 1, 2015, the date on which his counsel obtained


____________________________________________

2
 The newly-discovered fact exception has two components, which must be
alleged and proved. Namely, the petitioner must establish that: (1) the facts
upon which the claim was predicated were unknown; and (2) could not have
been ascertained by the exercise of due diligence. See Commonwealth. v.
Bennett, 930 A.2d 1264, 1272 (Pa. 2007).


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Chavis’s 1987 statement to police and her guilty plea colloquy, wherein she

purportedly stated that Mr. Irrazarry’s murder was the accidental result of a

struggle with Appellant. Appellant concedes that he was aware of Chavis’s

statement as early as the summer of 2009, when a fellow prisoner, George

Jones, told Appellant about Chavis’s statement and guilty plea, and that he

raised the issue in prior PCRA and habeas corpus petitions.               Nevertheless,

Appellant contends that, until his family provided him with funds in early 2015

to retain private counsel, who thereafter obtained the actual documents, he

“had no way of successfully presenting the instant claim, because his

information up to that point consisted of nothing beyond prison-house rumor

and did not establish the true contents of . . . Chavis’[s] statements and

testimony.” Appellant’s brief at 29, 31.

       Appellant    further    argues    that    he   satisfied   the   interference   by

government officials exception to the PCRA timeliness bar.3 He asserts that

there was direct governmental interference because “there was a consistent

refusal by both the Commonwealth and the courts to which [his] pleadings

were addressed to provide the requested [Chavis] statements and notes of


____________________________________________


3 To establish the government-interference exception, a petitioner must allege
and prove: “(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.” 42 Pa.C.S. § 9545(b)(1)(i).




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testimony.”     Appellant’s brief at 36-37.      Appellant further claims that the

Commonwealth’s failure to disclose the Chavis documents constitutes

“suppression of evidence within the meaning of Brady.”4                Id. at 37.5

Appellant reasons that “until [he] was able to afford counsel to actually obtain

the court records required, [he] was prevented, through governmental

interference, from bringing his instant claims.” Id. at 38.

        The PCRA court determined that it lacked jurisdiction to address

Appellant’s claims       because     the   instant petition and   exhibits   thereto

established that he was aware of Chavis’s statement in 1988, “[y]et, he did

not obtain . . . Chavis’s statement until it was ‘discovered’ by counsel in 2015.”

PCRA Court Opinion, 6/28/18, at 4. The PCRA court further reasoned that

Appellant had failed to demonstrate that he acted with due diligence between

1988 and 2015, in order to avoid a bar of waiver to his petition. Id. at 5; see

also Commonwealth v. Stokes, 959 A.2d 306, 309 (Pa. 2008) (noting that

the due diligence requirement must be satisfied “in order to invoke either [the


____________________________________________


4   Brady v. Maryland, 373 U.S. 83 (1963).

5 “Although a Brady violation may fall within the governmental interference
exception, the petitioner must plead and prove the failure to previously raise
the claim was the result of interference by government officials, and the
information could not have been obtained earlier with the exercise of due
diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
This Court previously determined that the Chavis documents were not Brady
material because they did not become available until ten years after
Appellant’s trial. Commonwealth v. Velasquez, 22 A.3d 1055 (Pa.Super.
2010) (unpublished memorandum at 10 fn. 6).


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unknown facts] exception [or the governmental interference exception] to the

[PCRA’s] timeliness provision”).

      Appellant concedes that knew of and was questioned regarding Chavis’s

statements in 1988; therefore, he could have discovered them, as well as the

transcript of her guilty plea hearing, with reasonable diligence in 1988, at the

latest. Further, given Appellant’s 1988 statement to the police, wherein he

described the struggle with Mr. Irrazarry, and claimed that the shooting was

accidental, Chavis’s statement appears to be a new source for a previously

known fact, rather than a newly-discovered fact. See Commonwealth v.

Marshall, 947 A.2d 714, 720 (Pa. 2008) (holding that the focus of section

9545(b)(1)(ii) “is on the newly discovered facts, not on a newly discovered or

newly willing source for previously known facts”) (emphasis in original).

Accordingly, we conclude that the PCRA court’s determination that it lacked

jurisdiction to address Appellant’s claims due to his lack of due diligence is

supported by the record.

      Moreover, to be eligible for relief under the PCRA, the petition must

plead and prove, inter alia, “[t]hat the allegation of error has not been

previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). An issue has been

previously litigated if it has been raised and decided in a proceeding

collaterally   attacking   the   conviction   or   sentence.   See   42   Pa.C.S.

§ 9545(a)(3). “[A]n issue is waived if the petitioner could have raised it but

failed to do so . . . in a prior state postconviction proceeding.” Id. § 9544(b).


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      Appellant’s claims herein were raised in his fifth PCRA petition, filed in

2008. This Court affirmed the dismissal of that petition, noting

      Appellant alleges that he has discovered new evidence which acts
      to overcome the [PCRA’s] time bar pursuant to 42 Pa.C.S.
      § 9545(b)(1)(ii).      Specifically, Appellant avers that his co-
      [conspirator], . . . Chavis, who testified on her own behalf during
      her trial, has told the [trial] court that the murder of Mr. Irrizarry
      [sic] was accidental, the result of a fight, thus being the reason
      why she was given a lesser sentence. Appellant claims that this
      statement by Chavis constitutes after discovered evidence,
      previously unknown to him despite due diligence on his part,
      because he only recently learned his co-[conspirator]’s real name
      and, therefore, was deprived of his right to have her testify on his
      behalf at trial. Appellant couches this argument in a claim that
      the Commonwealth failed to turn over his co-[conspirator]’s
      statement in violation of Brady . . ..[fn]

      ___________________________________________________
           [fn] . . . Appellant’s Brady argument fails as the

           information Appellant claims was withheld from him
           did not become available until 10 years after his trial,
           specifically when . . . Chavis was found and tried in
           connection with her participation in the robbery
           assault upon Efrain and Francisca Irrazarry.

      ....

      Although Chavis’s trial, at which she offered the aforementioned
      statement upon which Appellant’s argument relies was conducted
      in 1987, Appellant claims he only recently discovered through a
      fellow inmate, George Jones, his co-[conspirator]’s full name and
      that she testified at trial that the murder was an accident.
      Appellant does not indicate, however, when Jones advised him of
      her name or purported testimony by Appellant’s unknown co-
      [conspirator], or why, through the exercise of due diligence,
      Appellant was unable to obtain this information sooner. We are
      not convinced that Appellant was previously unaware of the
      identity of his co- [conspirator], nor do we find credible that such
      information was unavailable to Appellant for the more than 20
      years since Chavis’s trial. As such, we conclude the time bar
      exception [for newly-discovered facts] failed relative to both


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      Appellant’s [issues relating to the alleged Brady violation and the
      Chavis documents].

Commonwealth v. Velasquez, 22 A.3d 1055 (Pa.Super. 2010) (unpublished

memorandum at 9-11) (quotation marks and references to the record

omitted).

      As Appellant’s newly-discovered fact argument regarding Chavis’s

statement was previously litigated in a prior post conviction proceeding

addressing his fifth PCRA petition, see id., he was not eligible for relief on that

claim.   See 42 Pa.C.S. § 9543(a)(3).          With respect to his governmental

interference claim premised upon the non-disclosure of the Chavis documents,

Appellant raised the same claim in his fifth PCRA petition, albeit premised as

a newly-discovered fact. To the extent that Appellant presents the same claim

under a different exception (i.e., the governmental interference exception),

his claim is waived, as he “could have raised it but failed to do so . . . in a

prior state postconviction proceeding.” Id. at § 9544(b).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/19




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