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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
ANTONIO MOLINA,                          :
                                         :
                 Appellant               :           No. 2347 EDA 2014

          Appeal from the PCRA Order entered on August 1, 2014
           in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No. CP-51-CR-1005971-2000

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 30, 2015

     Antonio Molina (“Molina”), pro se, appeals from the Order dismissing

his third Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     In January 1993, Molina, the leader of a small drug ring in

Philadelphia, hired a “hit man” to murder the victim, whom Molina believed

had robbed and shot him a few months earlier. One of the individuals who

had sold drugs for Molina, Mariano De Los Santos (“De Los Santos”),

testified on behalf of the Commonwealth at Molina’s trial.   Specifically, De

Los Santos testified to overhearing Molina’s negotiations with a hit man

concerning the planned murder.     Additionally, Ramon Guaba (“Guaba”), a

Commonwealth witness, testified to overhearing a similar conversation. The

victim was shot to death on January 21, 1993, and Molina paid the hit man

$5,000 after confirming that the victim was dead.
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         In September 2002, the matter proceeded to a non-jury trial, at the

close of which the trial court found Molina guilty of first-degree murder and

criminal conspiracy. The trial court sentenced Molina to life in prison. This

Court affirmed the judgment of sentence, after which the Pennsylvania

Supreme Court denied allowance of appeal.            See Commonwealth v.

Molina, 847 A.2d 759 (Pa. Super. 2004) (unpublished memorandum),

appeal denied, 864 A.2d 529 (Pa. 2004).

         In the following years, Molina filed two pro se PCRA Petitions, both of

which were dismissed, and the dismissals were affirmed on appeal.           See

Commonwealth v. Molina, 932 A.2d 259 (Pa. Super. 2007) (unpublished

memorandum), appeal denied, 937 A.2d 444 (Pa. 2007); Commonwealth

v. Molina, 60 A.3d 847 (Pa. Super. 2012) (unpublished memorandum),

appeal denied, 63 A.3d 775 (Pa. 2013).

         On August 16, 2013, Molina filed the instant pro se PCRA Petition, his

third.    The PCRA court subsequently gave Molina Notice of its intention to

dismiss his Petition without a hearing, pursuant to Pa.R.Crim.P. 907.       The

PCRA court opined that Molina was not entitled to collateral relief because

his PCRA Petition was untimely and he did not plead or prove any of the

three exceptions to the PCRA’s jurisdictional time bar.1

         Molina filed a Response to the Rule 907 Notice (hereinafter “Rule 907

Response”). Therein, he asserted that although his PCRA Petition is facially

untimely, he had discovered new evidence that met the PCRA’s “after-

1
    See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

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discovered facts” timeliness exception.2 Specifically, Molina attached as an

exhibit to the Rule 907 Response a document that he had obtained from the

U.S. Citizenship and Immigration Services (“USCIS”), dated December 8,

2003, memorializing statements made by De Los Santos to a USCIS

employee.3    The relevant portion of this two-page document (hereinafter

“the Statement”) provides as follows:

     [De Los] Santos was a witness for Pennsylvania in a murder.
     When asked about the murder[, De Los] Santos said that he
     knew nothing about the murder[,] but told the police what they
     wanted him to tell them. [De Los Santos] again said he did not
     know anything about the murder first hand[,] but [] Guaba did
     tell him what to tell the police. [] Guaba gave the story to [De
     Los Santos] ….

Rule 907 Response, 7/17/14, Exhibit A at p. 1 (unnumbered, capitalization

omitted).    Notably, Molina’s name is not mentioned anywhere in the

Statement, nor is the name of the murder victim. Moreover, the Statement

does not identify who prepared it or conducted the interview of De Los

Santos.

     On August 1, 2014, the PCRA court entered an Order dismissing

Molina’s PCRA Petition as untimely.     On the same date, the PCRA court

2
 See 42 Pa.C.S.A. § 9545(b)(1)(ii) (providing that “[a]ny petition under this
subchapter, including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final, unless the petition alleges
and the petitioner proves that[] … 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[.]”).
3
  De Los Santos was interviewed by the USCIS because he was being
deported to his home country, the Dominican Republic. Molina had obtained
a copy of this document from the USCIS in July 2014, in response to a
Freedom of Information Act request.

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issued a Memorandum rejecting Molina’s claim of after-discovered facts

concerning the Statement, finding as follows:

      [De Los Santos’s] alleged false statements concern the witnesses
      who testified at trial[,] and who also allegedly gave false
      testimony that [Molina] was involved in the murder …. There
      are no affidavits from anyone recanting testimony or coming
      forth with new evidence. This convoluted argument is not a
      viable proposition for overcoming the issue of timeliness[,] and
      has been raised by [Molina] in previous [PCRA P]etitions[.]

PCRA Court Memorandum, 8/1/14, at 4 n.5. Molina timely filed a Notice of

Appeal.

      On appeal, Molina presents the following issue for our review:     “Did

the [PCRA] court abuse its discretion by denying … the relief as set forth in

the [PCRA] Petition when the Petition … clearly spelled out the wrongful

conviction and the actual innocence of [Molina?]”    Brief for Appellant at 4

(emphasis and capitalization omitted).

      Molina devotes the majority of his Argument section to his allegation

that the PCRA court erred in treating his Petition for relief (claiming actual

innocence) as a PCRA petition, rather than a habeas corpus petition. See

id. at 7-8, 12-19. This claim lacks merit, as Molina can gain relief for his

claim under the PCRA.     This Court has “repeatedly held that any 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 ellipses omitted); see also Commonwealth v. Turner,

80 A.3d 754, 770 (Pa. 2013) (pointing out that the PCRA subsumes the

remedy of habeas corpus where the PCRA provides a remedy for the claim);

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42 Pa.C.S.A. § 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[.]”).

      Molina argues in the alternative that even if the PCRA court properly

treated his Petition as falling under the PCRA, the court erred in failing to

find that he had met the after-discovered facts exception set forth in section

9545(b)(1)(ii), based upon the Statement. Brief for Appellant at 19.

      In reviewing a challenge to an order dismissing a PCRA petition, our

standard of review 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.” Commonwealth v. Gandy, 38 A.3d 899,

902 (Pa. Super. 2012) (citations omitted).

      Molina does not dispute that his third PCRA Petition is facially

untimely. Though Molina did not raise any of the exceptions to the PCRA’s

time bar in his third PCRA Petition, he invoked the after-discovered facts

exception in his Rule 907 Response. Accordingly, Molina’s claim on appeal

regarding this exception is properly preserved for our review.           See

Commonwealth v. Collins, 957 A.2d 237, 247-48 (Pa. 2008) (holding that

the PCRA petitioner had properly preserved his claim where he raised it

before the PCRA court).

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      Initially, we observe that, in connection with Molina’s first PCRA

Petition, he raised a claim asserting after-discovered facts in the form of an

Affidavit from De Los Santos’s former cellmate, Alfredo Colon (“Colon”),

maintaining that, prior to Molina’s trial, De Los Santos had stated to Colon

that he planned to testify falsely concerning Molina’s involvement in the

murder.   On appeal from the dismissal of Molina’s first PCRA Petition, this

Court rejected Molina’s claim, offering the following reasoning, which is also

pertinent to the instant appeal:

              In general, a petitioner may be eligible for post-conviction
      relief if he pleads and proves by a preponderance of the
      evidence that the conviction resulted from “[t]he unavailability at
      the time of trial of exculpatory evidence that has subsequently
      become available and would have changed the outcome of the
      trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi).
      In order to obtain relief on the basis of after-discovered
      evidence, the petitioner must show that the evidence could not
      have been discovered before or at trial through the exercise of
      reasonable diligence; was exculpatory and not merely
      cumulative or corroborative; would not be used only to impeach
      the credibility of a witness; and was of such a nature and
      character that it would have compelled a different result.
      Commonwealth v. D’Amato, 579 Pa. 490, 519, 856 A.2d 806,
      823 (2004).

            In order to have been capable of compelling a different
      result, evidence must first be admissible. Both Colon’s affidavit
      and his proposed testimony regarding De Los Santos’s out-of-
      court statement constitute hearsay evidence[,] in that each “is a
      statement, other than one made by the declarant while testifying
      at the trial or hearing, offered in evidence to prove the truth of
      the matter asserted.” Pa.R.E. 801(c). Such hearsay testimony
      is inadmissible.     Pa.R.E. 802.     “This type of out-of-court
      statement is traditionally excluded because the statements lack
      the conventional indicia of reliability.”    Commonwealth v.
      Williams, 537 Pa. 1, 26 n.8, 640 A.2d 1251, 1263 n.8 (1994).




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           Further, [Molina] does not argue that the statement fits
     within any of the exceptions to the hearsay rule as delineated in
     Pa.R.E. 803. While the alleged statement of De Los Santos
     implicates him in perjury and arguably could be considered a
     declaration against penal interest, “the necessary circumstances
     that would provide clear assurance that such a declaration is
     trustworthy and reliable are not present.” See, e.g., Williams,
     supra[,] at 26 n.10, 640 A.2d at 1264 n.10.

           Moreover, as the PCRA court, stated:

         [E]ven if [the evidence was] admissible, [] Colon’s
         testimony would not have altered the verdict. As this
         court pointed out in its October 29, 2002 Opinion:

            Although the credibility of the Commonwealth’s
            witnesses, [] De Los Santos and [] Guaba, were
            attacked by [Molina] both at trial and in his post-
            sentence [M]otion, this court found the testimony
            of these witnesses worthy of credibility.

                              ***

     (PCRA Court Opinion[, 4/20/06,] at 4).

Molina, 932 A.2d 259 (unpublished memorandum at 9-11).

     Likewise, in the instant case, the Statement is hearsay that does not

fall under any of the exceptions to the rule against hearsay, in that it was

prepared by an unidentified USCIS employee, concerning out-of-court

statements allegedly made by De Los Santos. Moreover, the Statement is

not relevant. Pennsylvania Rule of Evidence 401 defines relevant evidence

as “evidence having any tendency to make the existence of a fact that is of

consequence to the determination of the action more probable or less

probable than it would be without the evidence.”     Pa.R.E. 401.   Rule of

Evidence 402 provides that “[e]vidence that is not relevant is not



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admissible.”     Pa.R.E. 402.   The Statement is irrelevant because it neither

identifies the name of the murder victim, nor mentions Molina’s name.

Finally, it is clear that the Statement does not constitute “exculpatory

evidence that has subsequently become available and would have changed

the outcome of the trial if it had been introduced.”             42 Pa.C.S.A.

§ 9543(a)(2)(vi).     As mentioned supra, the trial court credited the trial

testimony of De Los Santos, and he has not submitted an affidavit recanting

his testimony.

     Accordingly, we conclude that the PCRA court neither abused its

discretion nor committed an error of law by dismissing Molina’s third PCRA

Petition as untimely, and by determining that Molina failed to establish the

after-discovered facts exception. Therefore, we affirm the Order on appeal.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2015




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