J-S04019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERNEST H. PRIOVOLOS

                            Appellant                 No. 2162 EDA 2016


                   Appeal from the PCRA Order June 14, 2016
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0000603-1989


BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                            FILED FEBRUARY 22, 2017

        Ernest H. Priovolos appeals pro se from the order entered June 14,

2016, in the Court of Common Pleas of Montgomery County that dismissed

without a hearing his fifth petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.         Priovolos seeks

relief from the judgment of sentence of 12 to 27 years’ imprisonment

imposed on January 28, 1991.1 Priovolos contends the PCRA court erred in

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*
    Former Justice specially assigned to the Superior Court.
1
  Priovolos averred in his 2013 PCRA petition that he was serving a sentence
of parole. Priovolos’s PCRA Petition, 10/29/2013, at ¶ 73. It appears that
the maximum date of Priovolos’s sentence is March 5, 2017.               See
Priovolos v. Dep't of Corr., No. 1:16-CV-01999, 2016 U.S. Dist. LEXIS
175417 (M.D. Pa. Dec. 19, 2016).
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finding that his PCRA petition was untimely.2 Based upon the following, we

affirm.

    The PCRA court summarized the background of this case, as follows:

    1.    On January 19, 1990, [Priovolos] was convicted of third degree
          murder and related offenses arising from the death of Cheryl Succa.

    2.    On January 28, 1991, the trial judge sentenced [Priovolos] to an
          aggregate term of 12-27 years in prison.

    3.    [Priovolos] filed a counseled direct appeal raising trial counsel’s
          ineffectiveness.

    4.    The Superior Court of Pennsylvania affirmed the judgment of
          sentence and the Supreme Court of Pennsylvania denied [Priovolos’s]
          counseled petition for allowance of appeal on November 20, 1992.
          [Commonwealth v. Priovolos, 609 A.2d 585 (Pa. Super. 1992)
          (unpublished memorandum), appeal denied, 617 A.2d 1273 (1992).]


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2
  Specifically, Priovolos asserts the PCRA court erred “in finding that [the]
petition for post conviction relief did not meet the exceptions to the time
bar, and [Priovolos’s] claims of newly discovered DNA evidence which now
proves his innocen[ce].” Priovolos’ Brief at 2. In addition, Priovolos raises
the following claims in his brief:

         Did the [PCRA] court err in failing to hold an evidentiary hearing
         with respect to his continuation [of] DNA hearing on January 27,
         2007, issued by Judge Drayer?

         Did the [PCRA] court err in failing to grant relief on [Priovolos’s]
         claim that his prior counsel was ineffective for failing to move on
         a motion for rehearing after his prior counsel’s demise?

Id. at 1–2. In his reply brief, Priovolos raises the following question: “Did
[the] PCRA court fail to pend subsequent litigation PCRA, when considering
there is pending DNA litigation that was already on file as of October 2003
which has not been resolved to date[.]”          Priovolos’ Reply Brief at 3
(unnumbered).



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  5.   Petitioner did not pursue an appeal to the United States Supreme
       Court, hence his judgment of sentence became final 90 days after
       the Supreme Court denied his petition for allowance of appeal,
       February 20, 1993.

  6.   On October 18, 1993, [Priovolos] filed, pro se, a petition for relief
       under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. The
       PCRA judge denied relief after court-appointed counsel filed a no-
       merit letter and a petition to withdraw from the case, and that
       decision was upheld on appeal to the Supreme Court of Pennsylvania.
       [Commonwealth v. Priovolos, 715 A.2d 420 (Pa. 1998)].

  7.   On March 9, 1999, [Priovolos] filed an application styled as a
       “Petition for Nunc Pro Tunc Re-Hearing of the May 31, 1994 Evidence
       Hearing,” which was deemed to have been his second PCRA petition.
       At that time the case had been reassigned to the Honorable Judge
       Calvin S. Drayer.      Judge Drayer denied the PCRA petition as
       untimely. The Superior Court affirmed the order. [Commonwealth
       v. Priovolos, 746 A.2d 621 (Pa. Super. 2000), appeal denied, 758
       A.2d 1198 (Pa. 2000).]

  8.   On April 9, 2012, [Priovolos], represented by private counsel, Francis
       John Genovese, Esquire, filed another PCRA petition, his third. By
       that time, Judge Drayer had assumed Senior Judge status, so the
       case was reassigned to the Honorable Judge Emmanuel A. Bertin.
       Judge Bertin denied the third PCRA petition and [Priovolos] retained
       Mr. Genovese to appeal that order. That appeal was indexed at
       docket no. 72 EDA 2013. Mr. Genovese perfected the appeal, filing a
       timely appellate brief in the process, but the Superior Court affirmed
       Judge Bertin’s order. [Commonwealth v. Priovolos, 83 A.3d 1069
       (Pa. Super. 2013) (unpublished memorandum)].

  9.   While the appeal regarding the third PCRA petition was still pending
       before the Superior Court, Mr. Genovese acquired a new report from
       an expert witness on the subject of DNA evidence. On March 19,
       2013, Mr. Genovese filed another PCRA petition, [Priovolos’s] fourth,
       based on the new DNA report.

  10. At the time, March 19, 2013, the appeal from the denial of the third
      petition, indexed at docket no. 72 EDA 2013, remained pending. Mr.
      Genovese did not wait for disposition of that appeal before filing the
      fourth PCRA petition because he wanted to file it within sixty days
      after having received the DNA report.


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     11. Judge Bertin denied the fourth PCRA petition on the authority of
         Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (establishing
         earliest time a PCRA petitioner may file a PCRA petition). Mr.
         Genovese appealed the order on behalf of [Priovolos], which appeal
         was indexed at docket no. 1778 EDA 2013. After doing so, Mr.
         Genovese met with [Priovolos] and advised him that he would not file
         a brief or otherwise litigate the appeal. The Superior Court dismissed
         the appeal on October 4, 2013, based on the failure to file a brief.

     12. Mr. Genovese filed a fifth PCRA petition[3] on [Priovolos’s] behalf on
         October 29, 2013, after the Superior Court had disposed of the
         appeals indexed at docket nos. 72 EDA 2013 and 1778 EDA 2013.
         The claim for relief in the fifth petition is based on the same facts and
         legal theory as the fourth. For nearly a year, no activity on the
         record took place in the case.

     13. On September 9, 2014, [Priovolos], acting pro se, filed an application
         for relief that Judge Bertin deemed his sixth PCRA petition. On
         September 19, 2014, [Priovolos] filed another pro se document, in
         the form of a letter dated September 4, 2014, addressed to Judge
         Drayer. The letter was forwarded to Judge Bertin, who deemed it to
         be [Priovolos’s] seventh PCRA petition.

     14. Judge Bertin ordered the Commonwealth to answer the the sixth and
         seventh PCRA petitions, and on the day before he retired he denied
         them. [Priovolos] filed a timely notice of appeal, which was indexed
         at docket no. 243 EDA 2015.

     15. The appeal indexed at docket no. 243 EDA 2015 was rotated to the
         undersigned judge for the filing of an opinion and other ancillary
         matters. The appeal was discontinued August 12, 2015, by leave of
         the Superior Court of Pennsylvania upon application by Andrew F.
         Schneider, Esquire, who had entered his appearance on behalf of
         [Priovolos] while the appeal was pending.

     16. At the time that appeal was discontinued, the sixth and seventh
         PCRA petitions had been disposed of, but the fifth PCRA petition had
         not. When the appeal was discontinued, this court re-acquired
         jurisdiction to inquire into whether it could exercise jurisdiction to
         dispose of the fifth PCRA petition.
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3
    This petition is the petition at issue in the instant appeal.



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PCRA Court Order, 1/16/2016, at 1–4 (footnotes omitted).

       The PCRA court concluded Priovolos’s fifth PCRA petition was untimely,

and advised Priovolos of its intent to dismiss the PCRA petition without a

hearing, pursuant to Rule 907.           See PCRA Court Order, 1/16/2016.     The

PCRA court formally dismissed the petition by order dated June 13, 2016,

and entered June 14, 2016. This pro se4 appeal followed.

       “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether

its conclusions of law are free from legal error.” Commonwealth v. Cox,

146 A.3d 221, 226 n.9 (Pa. 2016) (citation omitted).

       The PCRA’s timeliness requirements are jurisdictional; therefore,
       a court may not address the merits of the issues raised if the
       petition was not timely filed. The timeliness requirements apply
       to all PCRA petitions, regardless of the nature of the individual
       claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citations omitted).

       A PCRA petition must be filed within one year of the date the judgment

of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Priovolos’s

judgment      of   sentence     was     final   on   February   20,   1993.   See




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4
  On May 2, 2016, following a hearing, the PCRA judge granted Andrew F.
Schneider, Esquire, and Francis John Genovese, Esquire, leave to withdraw
as counsel for Priovolos.



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Commonwealth v. Priovolos, supra, 746 A.2d at 625. Therefore, the

present petition, filed over ten years later, is manifestly untimely.

       However, the PCRA provides that an otherwise untimely petition is not

time-barred if a petitioner pleads and proves the applicability of one of three

time-for-filing exceptions: (1) interference by government officials, (2)

newly discovered evidence, or (3) a newly-recognized constitutional right

which had been applied retroactively. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii).

Any petition invoking one of these exceptions must be filed “within 60 days

of the date the claim could have been presented.” Id. at § 9545(b)(2). In

his petition, Priovolos contends his petition falls within the newly discovered

evidence exception.        42 Pa.C.S. § 9545(b)(1)(ii). See Priovolos’s PCRA

Petition, 10/29/2013, at ¶75.5

       “When considering a claim seeking to invoke section 9545(b)(1)(ii),

the petitioner must establish only that (1) the facts upon which the claim

was predicated were unknown and (2) they could not have been ascertained



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5
  In his brief, Priovolos attempts to invoke other PCRA timeliness exceptions.
However, “exceptions to the time bar must be pled in the PCRA petition, and
may not be raised for the first time on appeal.” Commonwealth v.
Burton, 936 A.2d 521, 525 (Pa. Super. 2007). Furthermore, to the extent
that Priovolos seems to suggest in his brief that his claim falls within the
purview of 42 Pa.C.S. § 9543.1 (“Postconviction DNA testing”), which is
subject to a relaxed timeliness standard, we agree with the Commonwealth
that the instant petition did not seek testing. See Commonwealth Brief at 6-
7. Therefore, Priovolos’s reliance on Section 9543.1 is unavailing.



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by the exercise of due diligence.” Commonwealth v. Cox, 146 A.3d 221,

227 (Pa. 2016) (citation omitted).

      In his fifth petition, Priovolos asserted in March, 2003, while he was

still incarcerated, his family had “requested and received copies of the

Laboratory Reports prepared by the FBI in the Cheryl Succa Death

Investigation, pursuant to the Freedom of Information Act.” Priovolos’s PCRA

Petition, 10/29/2013, at ¶23. He further asserted that during the pendency

of his third PCRA petition, he submitted documentation he had obtained

“through discovery, prior PCRA proceedings and requests made pursuant to

the Commonwealth’s Right to Know Law and the Freedom of Information Act

to Dr. Monte Miller, of Forensic DNA Experts, in Riverside, California, for

review.” Id. at ¶47. Priovolos averred Dr. Miller is “an expert in the fields

of DNA testing and analysis.” Id. at ¶48.

      According to Priovolos, “[o]n or about February 20, 2013, Dr. Miller

issued a report to [Priovolos], setting forth his review and analysis of the

information submitted, as well as the conclusions and opinions that he

formed as a result.”   Id. at 49.    Priovolos averred Dr. Miller “focused his

review and analysis on the ‘forensic work’ performed in [Priovolos’s] case,

most specifically, the work performed by the FBI Laboratory and National

Medical Services.” Id. at ¶50. Dr. Miller opined Priovolos “must be excluded

as a contributor” of the blood on Cheryl Succa’s flannel shirt and vest. Id. at

¶59. Dr. Miller further noted “[t]his information was available on [sic] the


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Nov. 20, 1989 FBI Report and would have been obvious to any person

knowledgeable on this subject.” Id. at ¶60. Priovolos concluded that “he

was precluded from presenting [Dr. Miller’s e]xpert [t]estimony at trial that

would have established a defense[.]” Id. at ¶62.

         In dismissing Priovolos’s petition, the PCRA court pointed out that

Priovolos “did not aver that Dr. Miller conducted new testing.       Instead he

averred that Dr. Miller merely reviewed testing that had been done prior to

[Priovolos’s] trial and had been available to [Priovolos] since March, 2003.”

PCRA Order, 1/8/2016, at 5. The PCRA court reasoned:

         [Priovolos] did not plead facts from which a reader may infer
         that the facts supporting the grounds for relief could not have
         been obtained earlier despite the exercise of due diligence.

         To the contrary, the facts averred in the petition support an
         inference that [Priovolos] possessed the evidence supporting his
         new grounds for relief as early as March, 2003.

Id. at 6. We find no basis upon which to disturb the decision of the PCRA

court.

         We agree with the PCRA court that Priovolos’s petition does not satisfy

the Section 9545(b)(1)(ii) exception.        As the PCRA court discussed, Dr.

Miller’s report was a review of the FBI laboratory report Priovolos allegedly

possessed in 2003, and did not involve new testing. The newly discovered

evidence exception is not focused on newly discovered or newly willing

sources for ‘facts’ that were already known.” Commonwealth v. Marshall,

947 A.2d 714, 721-22 (Pa. 2008) (emphasis in original). Priovolos has not


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alleged or proven any newly discovered facts, but has merely offered

another source for facts that were already known to him.

          Furthermore, Priovolos failed to demonstrate due diligence, as he had

the FBI laboratory report in 2003.6 See Cox, supra, 146 A.3d at 230 (“Due

diligence ‘does not require perfect vigilance and punctilious care, but merely

a showing the party has put forth reasonable effort’ to obtain the

information upon which a claim is based.”).

          Accordingly, because the petition is untimely, there is no jurisdiction to

review the claims raised therein.         Therefore, we affirm the denial of PCRA

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2017

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6
  Priovolos asserted in his PCRA petition that “the Commonwealth did not
make [the FBI Laboratory R]eports available to [Priovolos] in discovery.”
Priovolos’s PCRA Petition, 10/29/2013, at ¶24. However, the transcript from
Priovolos’s trial reflects that trial counsel referenced the FBI analysis during
cross examination of Detective Carl Molt. The exchange indicates trial
counsel knew the results of the FBI testing. See N.T., 1/16/1990, at 584–
587. Trial counsel elicited Detective Molt’s testimony that the results were
“inconclusive.” Id. at 587.



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