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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCUS DEANS,                              :
                                               :
                       Appellant               :   No. 1263 EDA 2018

                    Appeal from the PCRA Order April 3, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0016655-2008


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED NOVEMBER 20, 2019

        Appellant Marcus Deans appeals from the Order entered in the Court of

Common Pleas of Philadelphia County on April 3, 2018, denying as untimely

his second petition filed pursuant to the Post-Conviction relief Act (“PCRA).1

We affirm.

        Following a jury trial, on December 18, 2009, Appellant was convicted

of attempted murder2 and related offenses. On April 29, 2010, Appellant was

sentenced to an aggregate term of fifteen (15) years to thirty (30) years in

prison. Appellant timely appealed, and this Court affirmed his convictions but

vacated a portion of his sentence on March 2, 2012.          Commonwealth v.




____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S.A. §§ 9541-9546.
2   18 Pa.C.S.A. § 2502.
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Deans, 47 A.3d 1233 (Pa.Super. 2012) (unpublished memorandum).             That

vacatur did not impact Appellant’s aggregate sentence.

        On June 7, 2012, Appellant filed his first PCRA petition pro se. Counsel

was appointed and filed an amended petition. Following an evidentiary hearing

held on October 8, 2015, the PCRA court denied Appellant’s petition. Finding

no merit to Appellant’s claims on appeal, this Court affirmed the PCRA court’s

Order. Commonwealth v. Deans, 2017 WL 2628945 (Pa.Super. filed June

19, 2017).

        Appellant filed the instant PCRA petition pro se on April 14, 2017,

wherein he alleged he had obtained newly discovered evidence, namely the

recantation of the identification testimony of the complaining witness, Richard

Bell.   Specifically, Appellant claimed that on February 22, 2017, Bell had

contacted Appellant’s counsel and indicated he wished to recant his trial

testimony. Appellant further indicated that on April 11, 2017, Bell provided

Appellant’s investigator the affidavit attached to his PCRA petition and on

which it was based and that the recantation testimony qualifies as newly

discovered evidence.

        On June 9, 2017, the PCRA court provided Appellant with notice of its

intention to dismiss the petition pursuant to Pa.R.A.P. 907.          However,

following this Court’s June 19, 2017, decision finding no merit to the issues

Appellant presented in his first PCRA petition, the PCRA court permitted

Appellant to proceed with the instant petition.




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      By agreement of counsel, the PCRA court scheduled an evidentiary

hearing for November 30, 2017.        Upon Bell’s failure to appear despite

counsel’s alleged best efforts, the hearing was rescheduled to February 23,

2018. N.T., 11/30/17, at 5-6. After granting this first continuance, the PCRA

court advised counsel that it would not grant an additional one. Id. at 10-11.

      On February 23, 2018, neither PCRA counsel nor Bell appeared. Unable

to contact PCRA counsel, the PCRA court continued the matter pending the

issuance of its Rule 907 Notice, which it issued on March 5, 2018. Appellant

did not respond to the PCRA court’s Notice of its intent to dismiss the PCRA

petition.

       Following a brief hearing on April 3, 2018, the PCRA court dismissed

Appellant’s PCRA petition. At that hearing, for the first time, PCRA counsel

stated the following:

      He [Bell] recanted his trial testimony, wanted to come to testify,
      but was visited by the [sic] two of the D.A.’s detectives who told
      him that if you didn’t believe him on the stand that he’d get
      charged with perjury. So his response was I’m not going to come
      and tell the truth and go to jail. So we tried every which way we
      could to try to convince him that he needed to come to tell the
      truth, and he is afraid to do so.

N.T., 4/3/18, at 3. Counsel did not present any evidence to the trial court in

support of these claims.

      Instead, citing Appellant’s alleged violation of “a primary rule counsel

had which was designed to protect attorney/client privilege and to prevent

violation of DOC regulations,” PCRA counsel later filed a motion to withdraw


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as counsel on June 12, 2018.           Counsel stated that because of Appellant’s

actions she “is no longer able or willing to continue to represent [Appellant].”

See Motion to Withdraw as Counsel, filed 6/12/18, at ¶¶ 4, 6. 3 On November

19, 2018, the trial court granted counsel’s motion to withdraw.

       Prior to that time, Appellant had filed a timely notice of appeal, and on

May 9, 2018, the PCRA court directed him to file a concise statement of errors

complained of on appeal. Appellant filed multiple, pro se concise statements

wherein he raised numerous allegations that the PCRA court had erred in

failing to grant him a new trial in light of Bell’s alleged recantation of his

identification testimony.

       In his brief, Appellant presents the following question for our review:


       In all criminal prosecutions, the accused has the right to
       compulsory process for obtaining witnesses in his favor, and
       witnesses shall be free to testify without fear of prosecutorial
       retaliation.   At an evidentiary hearing, [Appellant’s] counsel
       asserted that the prosecution threatened Mr. Bell (the victim who
       recanted) with perjury charges. Is [Appellant] entitled to a new
       trial, dismissal of charges, or a remand for an evidentiary hearing
       to determine whether the prosecution distorted the fact-finding
       process?

Brief of Appellant at iv.
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3 It is noteworthy that this Court previously explained that after observing
Appellant testify at his initial PCRA hearing in 2015, the PCRA court found his
testimony to be incredible. This Court further stated that “[i]n addition to
witnessing Appellant’s demeanor on the stand, a letter Appellant sent to trial
counsel severely hurt his credibility. A reasonable inference from that letter
was that Appellant attempted to convince his trial counsel to lie in order to
obtain PCRA relief.” Commonwealth v. Deans, 2017 WL 2628945, at *7.
(Pa.Super. June 19, 2017).

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      It is axiomatic that 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). Therefore, Appellant's judgment of

sentence became final on April 2, 2012, the last day on which he could have

filed an appeal with the Pennsylvania Supreme Court. See Commonwealth

v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014). Appellant's instant PCRA

petition was filed over five years later on April 14, 2017; thus, the petition

was patently untimely.

      Nevertheless, we may consider an untimely PCRA petition 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).




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       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).4 “The petitioner bears the burden to plead and prove

an applicable statutory exception.” Commonwealth v. Hudson, 156 A.3d

1194, 1197 (Pa.Super. 2017), appeal denied, 170 A.3d 1007 (Pa. 2017).

Importantly, asserted exceptions to the time restrictions for a PCRA petition

must be included in the petition and may not be raised for the first time on

appeal. Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa.Super. 2016).

       Herein, Appellant averred in his PCRA petition that Bell had revealed in

2017 that the district attorney and police officers coerced and/or threatened

him into providing false testimony at trial. However, Appellant revealed for

the first time in his third concise statement that Bell was prevented from

recanting that trial testimony at a PCRA hearing due to governmental

interference, namely the threat of being charged with perjury, by detectives

sent to his home by the district attorney after trial. As such, we deem this




____________________________________________


4 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.




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issue Appellant develops in his appellate brief to be waived. See Furgess,

supra.5

       Notwithstanding, to the extent Appellant may be deemed to have

preserved a claim that the district attorney and police pressured him to

provide false trial testimony, in considering and rejecting this theory of

Appellant’s newly discovered evidence claim, the PCRA court reasoned as

follows:

              The statutory intent of the PCRA Act is to function as an
       extraordinary proceeding designed to provide relief to "persons
       convicted of crimes they did not commit and serving illegal
       sentences" (42 Pa.C.S.A. 9542) It is not meant to function as a
       substitute for or a continuation of direct appellate rights.
       Therefore, in pursuing PCRA relief, applicants must establish
       through their pleading, sufficient grounds to justify the granting
       of relief.
              "[A]s a general matter, recantation evidence is notoriously
       unreliable, particularly where the witness claims to have
       committed perjury. This Court has also emphasized, however,
       that, even as to recantations that might otherwise appear
       dubious, the PCRA court must, in the first instance, assess the
       credibility and significance of the recantation in light of the
       evidence as a whole.[”] Commonwealth v. D’Amato, 856 A.2d
       806, 825 (Pa. 2004) (Internal citations and quotations omitted)
       As noted above, it is [Appellant’s] burden to not only plead, but
       to prove, that Mr. Bell had, in fact, recanted.
              When Mr. Bell failed to appear at the initial evidentiary
       hearing, this [c]ourt continued the matter; affording counsel
       another opportunity to secure his appearance. When both counsel
       and Mr. Bell failed to appear at the second hearing, it was clear
____________________________________________


5 Appellant also alleges Bell exonerated him on a “flash drive/video” obtained
by his counsel. Brief of Appellant at vii; however, he has failed to ensure that
a copy of the referenced interview appeared in the certified record. As such,
we are unable to review the same. Moreover, as previously stated, counsel
provided the trial court with no physical evidence to support her argument at
the April 3, 2018, PCRA hearing.

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      that Mr. Bell was not only uncooperative, but unwilling to recant.
      [Appellant’s] reliance on Mr. Bell's affidavit in which he states that,
      as he attempted to leave this [c]ourt on the day of trial, “officers”
      walked him back and the “DA” threatened him with jail if he did
      not testify, cannot stand alone without Mr. Bell's testimony.
             [Appellant’s] latest claim that Mr. Bell was intimidated by
      the threat of a charge of perjury is, again, wholly unsupported and
      stands alone. Although counsel's assertion implies that she is in
      communication with Mr. Bell, [Appellant], at the barest minimum,
      failed to produce an affidavit to this effect.

Trial Court Opinion, filed 4/23/19, at 8-9.

      Upon our review, we find the PCRA court’s determinations are free of

legal error and supported by the record. Accordingly, for all the foregoing

reasons, we find the PCRA court properly dismissed Appellant’s PCRA petition

as untimely, and no relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/19




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