J-S30004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT KENNEDY                             :
                                               :
                       Appellant               :   No. 1490 WDA 2019

            Appeal from the PCRA Order Entered September 11, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0003178-2007


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 17, 2020

        Robert Kennedy (Appellant) appeals from the order dismissing his third

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546.

        The Honorable John A. Zottola presided at Appellant’s non-jury trial in

2008, and dismissed Appellant’s prior two PCRA petitions. In dismissing the

third petition, Judge Zottola chronicled the case history as follows:

              On August 27, 2008, following a non-jury trial, [Appellant]
        was convicted of Count 1—Rape of an Unconscious Victim (18 Pa.
        C.S. § 3121(a)(3)), Count 2—Rape—Forcible Compulsion (18 Pa.
        C.S. § 3121(a)(1)), Count 3—Sexual Assault (Pa. C.S. § 3124.1),
        Count 4—Indecent Assault of an Unconscious Person (Pa. C.S. §
        3126(a)(4), and Count 5—Indecent Assault—without consent (Pa.
        C.S. § 3126(a)(1)). [Appellant] was sentenced to 60 to 120
        months for Count 1 and 66 to 132 months for Count 2, to run
        consecutively for an aggregate sentence of 126-252 months [of]

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     incarceration. No further penalty was issued for the remaining
     counts: [Appellant] filed several different Post-Conviction Relief
     Act (“PCRA”) petitions. [Appellant] filed a new PCRA petition on
     May 17, 2019 and [Appellant] filed an Appeal to the Superior Court
     following the denial of his latest PCRA petition.

           Pursuant to Rule Pa.R.A.P. 1925(b), [Appellant] filed a
     Concise Statement of Errors Complained of on Appeal on
     November 1, 2019 from which the following is taken verbatim:

          Claim #1: The PCRA court erred by rejecting
          [Appellant’s] newly discovered fact claim. The new
          facts from [two witnesses’] statements would likely
          compel a different outcome at retrial. The
          Commonwealth’s case hinged on the credibility of [the
          victim]’s sexual assault narrative as well as her claim
          the markings in the photographs she took of her neck
          and arms were caused by [Appellant’s] sexual assault
          and not fabricated by her to bolster a false rape claim.

          Claim #2: The PCRA court erred by not granting an
          evidentiary hearing where [the two witnesses]
          could’ve testified regarding [the victim’s] reputation
          for dishonesty as well as specific instances of her
          dishonesty under Pa.R.Evid.405(a) and Pa.R.Evid.
          405(b)(2).

          Claim #3: The Court dismissed [Appellant’s] PCRA
          petition because it was “patently frivolous and without
          support on the record[.]” This language is vague and
          broad, meaning it could be based on any number of
          findings, including an untimeliness finding. If the
          Court’s “patently frivolous and without support on the
          record” finding encompasses an untimeliness finding,
          the Court’s finding is wrong as a matter of law.

           [Appellant] and the victim met through Match.com, an
     internet dating site, and made plans to meet in person. (TT1 16,
     51). Although the victim lived in Greensburg, PA, [Appellant]
     pressured the victim to meet at his favorite bar, Todd’s by the
     Bridge Tavern, in McKeesport, Allegheny County on December 15,
     2006. (TT1 21, 51). The victim was unfamiliar with the Pittsburgh
     area, but managed to find Todd’s by the Bridge Tavern and met
     him in its parking lot around 10:00 PM. (TT1 21-2). The victim

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     testified that [Appellant] did not resemble his Match.com profile
     pictures and she did not feel sexually attracted to him. However,
     she decided to stay at Todd’s with [Appellant] because she had
     traveled over forty minutes for the date. (TT1 23).

            At Todd’s, the victim consumed three alcoholic drinks, which
     were given to her by [Appellant]. (TT1 25, TT3 56). [Appellant]
     purchased one of the drinks while the victim was in the restroom,
     which she consumed once she returned. (TT3 44). The victim
     testified that she began to feel that “something wasn’t right” after
     she consumed her third and final drink. (TT1 26). [Appellant]
     suggested that they get something to eat, so he drove the victim
     to Denny’s around 1:30 AM and stayed for approximately 90
     minutes. However, the victim testified that she had no memory of
     what she ate at Denny’s. (TT1 26-7). When leaving the diner,
     [Appellant] told the victim that it was safe to sleep at his house if
     she felt that she could not drive home. The victim testified that
     she still felt ill and unable to drive all the way home, so she agreed
     to go to [Appellant’s] house around 3:00 AM. (TT1 27-8). Once
     inside [Appellant’s] house, she sat on the couch and lost
     consciousness. (TT1 29).

           The victim regained consciousness due to intense pain in her
     vagina and saw that [Appellant] was on top of her and penetrating
     her vagina with his penis. (TT1 30). She asked [him] to stop, but
     he grabbed her arms and held them above her head. The victim
     kicked [Appellant] off of her and ran into his bathroom, where she
     noticed that she was bleeding from her vagina and that she had
     pain when she urinated. (TT1 30-1). When the victim left the
     bathroom, [Appellant] was asleep on the floor, so she grabbed her
     clothes, left the house, and drove away in her car. (TT1 37).

           Once on the road, the victim called her friends, the
     Seighmans, for help. Mr. Seighman testified that the victim was
     crying and panic-stricken, so he called the police on the victim’s
     behalf. Once the victim found her way home, she fell asleep until
     she was awakened by a phone call from Lieutenant Doug Marcos
     of the Greensburg Police. (TT1 40, 117-18). Lt. Marcos asked the
     victim to come to Jeanette Hospital, where medical professionals
     conducted a rape test kit. (TT1 40). Dr. Alhashimi, the Emergency
     Room physician, testified that the victim had vaginal trauma, such
     as bleeding and mild labial swelling, as well as bruising and several
     abrasions on her body. (TT2 48). A blood test revealed that the
     victim had diphenhydramine in her system, despite never

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     knowingly ingesting the drug during the timeframe in question.
     (TT3 16). The Commonwealth’s expert witness, Jennifer Janssen,
     a certified toxicologist, testified that even a small amount of
     diphenhydramine can cause drowsiness and confusion, especially
     when paired with alcohol. (TT2 30).

            A non-jury trial occurred on this matter on May 20-21, 2007
     and August 25 and 27, 2007, where [Appellant] was found guilty
     at the previously mentioned counts and was sentenced on
     November 24, 2008. [Appellant] filed a post-sentence motion on
     December 3, 2008, to which the Commonwealth responded on
     April 15, 2009. On April 17, 2009, [Appellant] filed a Second
     Amended Post-Sentence Motion. A hearing was held on April 30,
     2009, after which [Appellant’s] Motion was denied. [He] filed his
     first Notice of Appeal to the Superior Court on June 3, 2009 and
     was directed to file a Concise Statement of Matters Complained of
     on Appeal, pursuant to Pa.R.A.P. 1925(b), which he filed on July
     1, 2009. The Superior Court affirmed the judgment on June 15,
     2010.

          [Appellant] filed a pro se PCRA petition on September 27,
     2010. Counsel was appointed on October 14, 2010, and appointed
     counsel filed a “No Merit” Letter and Motion to Withdraw on
     November 30, 2010. The Motion to Withdraw was granted and the
     PCRA petition was dismissed on January 5, 2011. On July 9, 2014,
     [Appellant] filed another PCRA petition, which was dismissed on
     September 25, 2014.

            The PCRA petition at hand was filed on May 17, 2019, to
     which the Commonwealth responded on June 18, 2019. The
     petition was dismissed on September 11, 2019, and [Appellant]
     filed an Appeal to the Superior Court following the denial of his
     latest PCRA petition . . . [Appellant] was ordered to write a Concise
     Statement of Errors Complained of on Appeal, which was filed on
     November 1, 2019.

PCRA Court Opinion, 12/3/19, at 1-5 (footnotes omitted).

     On appeal, Appellant presents the three claims, which we reproduce

verbatim:

     Claim #1: [Appellant’s] PCRA petition is timely.



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      Claim #2:      [Appellant’s]   newly-discovered      fact   claim   is
      meritorious.

      Claim #3: The PCRA court erred by not granting a PCRA hearing.

Appellant’s Brief at 2.

      It is well settled that we review the denial of PCRA relief to determine

whether the record supports the PCRA court’s findings and whether its decision

is free of legal error. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa.

2018).

      We begin with our analysis with Appellant’s first claim concerning

timeliness. This Court recently commented:

      [T]he timeliness of any PCRA petition is a jurisdictional requisite.
      No court has jurisdiction to review an untimely PCRA petition.
      Whether a court has subject matter jurisdiction is a question of
      law.... It is not waivable, even by consent, and may be raised by
      any party or by the court, sua sponte, at any stage of the
      proceeding. [E]ven where the PCRA court does not address the
      applicability of the PCRA timing mandate, this Court will consider
      the issue sua sponte, as it is a threshold question implicating our
      subject matter jurisdiction and ability to grant the requested relief.
      Significantly,

            [A] jurisdictional time limitation is not subject to
            equitable principles such as tolling except as provided
            by statute. Thus, the filing period is only extended as
            permitted; in the case of the PCRA, the time
            limitations are extended upon satisfaction of the
            exceptions found in § 9545(b)(1)(i)–(iii) and timely
            filing pursuant to (b)(2). As it has been established
            that the PCRA’s time restrictions are jurisdictional, we
            hold that the period for filing a PCRA petition is not
            subject to the doctrine of equitable tolling, save to the
            extent the doctrine is embraced by § 9545(b)(1)(i)–
            (iii).
      Commonwealth v. Fahy, 558 Pa. 313, 329, 737 A.2d 214, 222
      (1999). In other words, “The PCRA’s time limitations ‘are

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      mandatory and interpreted literally; thus, a court has no authority
      to extend filing periods except as the statute permits.’”
      Commonwealth v. Lee, 206 A.3d 1, 11, 2019 PA Super 64 *8
      (2019) (en banc).

Commonwealth v. Beatty, 207 A.3d 957, 961–62, appeal denied, 218

A.3d 850 (Pa. 2019) (some citations omitted). In sum, the PCRA’s time bar

“implicate[s] our jurisdiction and may not be altered or disregarded in order

to address the underlying merits of a claim.” Commonwealth v. Greco, 203

A.3d 1120, 1124 (Pa. Super. 2019).

      It’s well settled that 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). A PCRA petition may be filed

beyond the one-year period only if the petitioner alleges and proves one of

the following three exceptions:


      (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.

Id.



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      Any petition attempting to invoke an exception “shall be filed within one

year of the date the claim could have been presented.” 42 Pa.C.S.A. §

9545(b)(2). To satisfy the newly discovered fact exception, a petitioner must

allege and prove 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.” Commonwealth v. Brensinger, 218 A.3d 440, 448 (Pa. Super.

2019) (en banc) (citation omitted). “Due diligence requires the petitioner take

reasonable steps to protect his own interests.” Id.

      Appellant concedes that his petition is facially untimely. See Appellant’s

Brief at 36.     However, Appellant argues that he has demonstrated an

exception to the time bar because “the facts comprising [Appellant’s] newly-

discovered fact claim weren’t ‘ascertainable’ or ‘obtainable’ before trial, even

with the exercise of due diligence.”    Id. at 37.    Appellant asserts that he

learned of the “new facts” on November 7, 2018, after communicating with

the   victim’s   ex-husband;   Appellant’s   third   PCRA   petition   was   filed

approximately six months later, on May 17, 2019.            The facts to which

Appellant refers consist of testimony from: (1) the victim’s ex-husband, who

divorced the victim in 2006 and “is cognizant of [the victim’s] reputation for

dishonesty, particularly at the time when she made her allegations against

[Appellant] in December 2006”; and (2) the victim’s former employer, who

“agreed to testify at a PCRA hearing to discuss specific instances of how [the




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victim] lied to her and her staff,” and “hoodwinked” and embezzled from her

employer “in the late 1990s.” See Appellant’s Brief at 30-33.

      Appellant concedes that “no one from [his] defense team contacted” the

victim’s ex-husband prior to trial. See Appellant’s Brief at 32. However, he

maintains that the failure to interview the ex-husband or attempt to interview

the ex-husband would not have been successful because the ex-husband

indicated he would not have cooperated at the time. Id. Thus, Appellant

maintains that the testimony of the victim’s ex-husband (which led him to the

former employer and her testimony) were not ascertainable prior to

Appellant’s trial “even with the exercise of due diligence.” Id. at 37. Again,

Appellant concedes that he did not contact the victim’s ex-husband and former

employer prior to trial. Id. at 32-33. He emphasizes, “even if trial, appellate,

and initial-review PCRA counsel had contacted [the ex-husband], he would not

have spoken to them, meaning none of them would have learned about [the

victim’s] embezzlement, credit card fraud, and pathological tendency to lie,

cheat and con people.”     Id. at 40.   Appellant states that without the ex-

husband’s statements, “no prior counsel would have known to interview [the

prior employer] to verify the embezzlement.” Id. at 40-41. Appellant claims

the statements of the victim’s ex-husband and former employer would have

compelled a different verdict in Appellant’s rape case. Id. at 41. We are not

persuaded by Appellant’s argument.




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      Our Supreme Court has “emphasize[d] that it is the petitioner who bears

the burden to allege and prove that one of the timeliness exceptions applies.”

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008). With regard to

an assertion of newly discovered facts, the Court continued:

      Exception (b)(1)(ii) requires [a] petitioner to allege and prove that
      there were ‘facts' that were ‘unknown’ to him and that he could
      not have ascertained those facts by the exercise of due diligence.
      The focus of the exception is on [the] newly discovered facts, not
      on a newly discovered or newly willing source for previously known
      facts. [T]his Court [has] rejected the petitioner’s argument that
      a witness’s subsequent admission of alleged facts brought a claim
      within the scope of exception (b)(1)(ii) even though the facts had
      been available to the petitioner beforehand.

Id. at 720 (emphasis in original, citations and footnote omitted).

      Appellant focuses on the identities of the victim’s ex-husband and

former employer relative to the victim’s acts of dishonesty and theft, and the

details of which he learned when he communicated with the ex-husband, and

consequently the former employer, a decade later.              However, section

9545(b)(1)(ii) requires that Appellant allege and prove facts that were

unknown to him and could not have ascertained by the exercise of due

diligence. Significantly, in his prior appeal to this Court, Appellant raised facts

attendant to the victim’s credibility and crimen falsi. See Commonwealth

v. Kennedy, 934 WDA 2009 (June 15, 2010) (unpublished memorandum), at

*7-11.   In affirming Appellant’s judgment of sentence, we found that the

credibility of the victim and her crimen falsi convictions “would not have

resulted in a different verdict.” Id. at 10-11.



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     Additionally, and independent of the merits, the PCRA court rejected

Appellant’s claim of newly discovered evidence, stating:

     [Appellant] cites to several “new” pieces of evidence, including
     testimony from . . . the victim’s ex-husband, that the victim has
     a reputation for dishonesty and has committed embezzlement and
     credit card fraud. [Appellant] also proffers testimony from [the]
     owner of [the victim’s employer], who alleges that the victim
     embezzled a large amount of money from her company in the late
     1990s. [Appellant] also references a criminal case against the
     victim which occurred in Westmoreland County in 2006, shortly
     before these crimes [of which Appellant was convicted] occurred.

     [Appellant] states that he was not aware of these facts until
     November 7, 2018 and that these facts could not have been
     discovered because [the ex-husband] was not contacted by
     [Appellant] or his attorney until recently. [The ex-husband]
     connected [Appellant] to [the victim’s former employer], so
     [Appellant] also alleges that her testimony was not obtainable
     prior to the conclusion of his trial in 2007. He also claims that even
     if [the ex-husband] had been contacted [prior to trial], his
     testimony would still unobtainable because [the ex-husband]
     would have refused to testify because he feared retaliation by the
     victim.

     These arguments fail for several reasons. [Appellant] knew that
     the victim had a previous husband because she told [Appellant]
     that she was going through a divorce in an email they exchanged
     on Match.com. (TT1 20-1). Yet, [Appellant] admits that no one
     from his defense team in 2007 to now even attempted to contact
     [the ex-husband]. Therefore, [the ex-husband] was an obvious,
     available source of information in 2007 that was ignored. Because
     [the victim’s ex-husband] was never approached by [Appellant],
     it is irrelevant that he claims that he would not have testified in
     2007. [The ex-husband’s] testimony regarding the criminal
     charge against the victim in 2006 could easily have been
     discovered without his testimony because criminal charges are
     public record. Likewise, [the employer’s] testimony could have
     been uncovered through reasonable diligence by [Appellant]
     before the conclusion of trial because it is not unreasonable to
     investigate a key witness’ employment history. Just because
     [Appellant] was not told directly of [the witness’s] testimony does
     not mean that it was unobtainable in 2007.

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PCRA Court Opinion, 12/3/19, at 6-7 (footnote and citations omitted).

       Although the PCRA court noted that “even if [Appellant’s alleged new]

evidence was truly unobtainable until after [Appellant’s] trial, it is purely

impeachment testimony,” id. at 7, a lack of jurisdiction precludes a merits

analysis.1 Upon review, we conclude that Appellant’s third PCRA petition is

untimely because Appellant failed to demonstrate the existence of facts that

were unknown to him and his exercise of due diligence in discovering those

facts. Accordingly, we affirm the denial of relief by the PCRA court.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2020




____________________________________________


1 The PCRA court stated that it viewed Appellant’ third petition as timely “so
as to address the petition’s merits.” PCRA Court Opinion, 12/3/19, at 5.
However, an appellate court may affirm on any basis. See Commonwealth
v. Lee, 947 A.2d 199 (Pa. Super. 2008).

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