J-S06037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

CHRISTOPHER SWEET

                             Appellant                No. 2431 EDA 2015


                   Appeal from the PCRA Order June 29, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0610014-2001

BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 31, 2017

        Appellant, Christopher Sweet, appeals pro se from the order of the

Philadelphia County Court of Common Pleas denying his second petition for

relief under the Post Conviction Relief Act1 (“PCRA”) without an evidentiary

hearing. Appellant claims that the PCRA court erred in rejecting his claims

of prosecutorial misconduct and after-discovered evidence.       Additionally,

Appellant contends that his sentence is illegal under Alleyne v. United

States, 133 S. Ct. 2151 (2013), and Commonwealth v. Hopkins, 117

A.3d 247 (Pa. 2015). We affirm.

        On March 23, 2001, Appellant and several co-conspirators, including

Jose Medina and Jeffrey Sweet, broke into the Apple Spa in Philadelphia and


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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robbed several spa employees.       The spa’s manager called police as the

robbers forced their way into the building. The police arrived shortly after

the call. Officers observed Appellant emerge from one of the rooms in the

spa holding an elderly Asian female who was tied up with plastic flex cuffs.

Using the woman as a shield, Appellant pushed her in the direction of a

police lieutenant and then fled out the back door.     N.T., 3/18/02, at 18;

N.T., 3/25/02, at 137.    Shortly thereafter, a police officer found Appellant

hiding under a car with an illuminated cell phone in his hand.          Police

recovered a handgun within five to ten feet of Appellant as well as $663.00

on his person.      Appellant was taken into custody, as were the other

conspirators, including Medina and Jeffrey Sweet.        Later that morning,

Appellant and Jeffrey Sweet confessed to participating in the robbery. N.T.,

3/25/02, at 43, 67-70.

        On April 1, 2002, the jury convicted Appellant of burglary,2 robbery,3

aggravated assault,4 conspiracy,5 carrying a firearm without a license,6 and




2
    18 Pa.C.S. § 3502.
3
    18 Pa.C.S. § 3701.
4
    18 Pa.C.S. § 2702.
5
    18 Pa.C.S. § 903.
6
    18 Pa.C.S. § 6106.




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possessing an instrument of crime.7        On May 10, 2002, the trial court

sentenced Appellant to an aggregate term of seventeen to thirty-four years’

imprisonment followed by five years of probation. This Court affirmed the

judgment of sentence on April 26, 2004. Commonwealth v. Sweet, 3296

EDA 2002 (Pa. Super. Apr. 26, 2004) (unpublished memorandum).             The

Pennsylvania Supreme Court denied allowance of appeal on December 29,

2004. Commonwealth v. Sweet, 864 A.2d 1204 (Pa. 2004).

        On November 30, 2005, Appellant filed his first PCRA petition.    The

petition was dismissed, and this Court affirmed on November 27, 2007.

Commonwealth v. Sweet, 3302 EDA 2006 (Pa. Super. Nov. 27, 2007)

(unpublished memorandum).        On December 18, 2007, through retained

counsel, Appellant filed a federal habeas petition. The United States District

Court for the Eastern District of Pennsylvania denied the petition without a

hearing. On July 12, 2010, the United States Court of Appeals for the Third

Circuit affirmed.

        On January 14, 2013, Appellant, acting pro se, filed the present PCRA

petition, his second, claiming that he was entitled to relief based on an

affidavit executed by Medina fifty-one days before Appellant filed his

petition.   Medina’s affidavit stated: (1) Appellant was not involved in the

robbery at the Apple Spa because he was merely a customer at the time of

the incident; and (2) Medina did not come forward earlier with this

7
    18 Pa.C.S. § 907.



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exculpatory evidence because he had pleaded guilty to the robbery, and in

exchange for his guilty plea, he was not permitted to testify that Appellant

did not participate in the robbery.

      Court-appointed     counsel     filed    a    no-merit    letter   pursuant    to

Commonwealth         v.   Turner,      544         A.2d   927    (Pa.    1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

Counsel emphasized that Medina’s affidavit was false, because instead of

pleading guilty, Medina was tried and convicted for the robbery and related

offenses and also appealed his conviction unsuccessfully.8 On May 26, 2015,

the court issued a notice of intent to dismiss the PCRA petition within twenty

days pursuant to Pa.R.Crim.P. 907.            On June 29, 2015, the PCRA court

dismissed the petition as untimely or meritless. This appeal followed.

      Appellant raises the following issues on appeal:

         1. Being that Appellant has a right to be heard, did the
         trial court err[] in denying Appellant’s PCRA petition?

         2. Being that Appellant can prove prosecutorial misconduct
         with after-discovered evidence, did the trial court err[] in
         not giving Appellant a new trial?

         3.    Being   that Appellant  now   has  a[n]   illegal
         unconstitutional mandatory minimum sentence, did the
         trial court err[] in not correcting Appellant’s illegal
         sentence?

Appellant’s Brief at 7.

8
 This Court considered Medina’s direct appeal in Commonwealth v.
Medina, 2298 EDA 2004 (Pa. Super. Sept. 23, 2005) (unpublished
memorandum).



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     We will address Appellant’s first two arguments together, because they

relate to the same argument that Appellant deserves a new trial due to

newly discovered evidence within Medina’s affidavit. Appellant contends that

Medina’s affidavit establishes prosecutorial misconduct that prevented him

from timely raising his underlying claim for relief and contains previously

unknown facts establishing his innocence. No relief is due.

     “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”     Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

     As our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions. We have also held
        that even where the PCRA court does not address the
        applicability of the PCRA timing mandate, th[e] 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.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

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

judgment becomes final . . . .” Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (citation and footnote omitted). The three exceptions

to the general one-year time limitation are:




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         (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. § 9545(b)(1)(i)-(iii).   In addition, to be eligible for relief under

these exceptions, the petitioner must file his claim “within 60 days of the

date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). Our

Supreme Court “has made it clear that the 60–day rule requires a petitioner

to plead and prove that the information on which he relies could not have

been    obtained   earlier,   despite    the   exercise   of   due   diligence.”

Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (citation

omitted).

       Here, Appellant filed his current petition on January 13, 2013, almost

eight years after his judgment of sentence became final. Although Appellant

asserts he discovered new facts regarding governmental interference and

prosecutorial misconduct, the PCRA court rejected that assertion. The court

found that Medina’s allegation that the Commonwealth induced him not to

testify at Appellant’s trial as a condition of an alleged plea agreement was



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patently false. As the court noted, Medina proceeded to trial in his own case

and was convicted after testifying on his own behalf. Thus, we agree with

the PCRA court that Appellant could not establish an exception to the PCRA

time bar under the governmental interference exception in 42 Pa.C.S. §

9545(b)(1)(i).

       Appellant also presented a claim that he satisfied the newly discovered

evidence exception under 42 Pa.C.S. § 9545(b)(1)(ii). However, aside from

the unsupported assertion regarding Medina’s guilty plea, Appellant fails to

establish that he exercised due diligence in discovering this “fact.”     Thus,

Appellant has not established a time-bar exception under 42 Pa.C.S. §

9545(b)(1)(ii).

       In any event, even assuming that Appellant could not have obtained

the exculpatory evidence in Medina’s affidavit before November 24, 2012,

the date Medina signed the affidavit, Appellant still is not entitled to relief.

To obtain PCRA relief, Appellant was required to prove: “ (1) the evidence

has been discovered after trial and it could not have been obtained at or

prior to trial through reasonable diligence;  (2) the evidence is not

cumulative;  (3) it is not being used solely to impeach credibility;  and (4) it

would likely compel a different verdict.”     Commonwealth v. Cox, 146 A.3d

221,   228   (Pa.   2016)   (citation   omitted);   see   also   42   Pa.C.S.   §

9543(a)(2)(vi).




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      We conclude that Medina’s assertions that Appellant was a customer of

the spa and not a robber would not likely compel a different verdict. During

the robbery, a police lieutenant observed Appellant using one of the spa

employees as a human shield and then pushing her toward the officers while

fleeing the spa.     Another officer discovered Appellant shortly thereafter

hiding under a car. A handgun was on the ground five to ten feet away from

Appellant, and $663.00 in cash was on his person.      Appellant and his co-

conspirator, Jeffrey Sweet, gave detailed confessions to the robbery later

that morning.9

      For these reasons, Appellant’s first two arguments on appeal do not

entitle him to relief.

      In his final argument, Appellant contends that he is entitled to relief

from the imposition of a mandatory minimum sentence under Alleyne and

Hopkins. This argument also fails.

      Our review reveals that Appellant filed the instant petition before the

United States Supreme Court’s decided Alleyne and the Pennsylvania

Supreme Court decided Hopkins.          However, while Appellant’s present

appeal was pending, our Supreme Court held that Alleyne does not apply

retroactively to cases pending on collateral review. See Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016). Similarly, this Court has held

9
  Not only was the evidence against Appellant overwhelming, but Medina’s
affidavit was, as discussed above, palpably false, rendering the affidavit
completely unreliable.



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that   Hopkins    does    not   apply   retroactively.   Commonwealth    v.

Whitehawk, 146 A.3d 266, 271 (Pa. Super. 2016).           Thus, Alleyne and

Hopkins do not provide a basis for a timeliness exceptions to the PCRA time

bar. See Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2004)

(noting Section 9545 (b)(1)(iii) has two requirements: (1) a constitutional

right must be recognized by the Supreme Court of the United States or the

Supreme Court of Pennsylvania after the time provided in this section and

(2) “the right has been held by that court to apply retroactively”). In any

event, neither decision warrants relief. See Washington, 142 A.3d at 820;

Whitehawk, 146 A.3d at 271.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/31/2017




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