J-S70027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MICHAEL STERLING                         :
                                          :
                    Appellant             :   No. 4069 EDA 2017

          Appeal from the PCRA Order Entered November 17, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0000094-2008


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED FEBRUARY 05, 2019

      Michael Sterling appeals from the order entered November 17, 2017,

denying as untimely his petition for collateral relief filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In December 2007, Sterling and others committed an armed robbery of

Michael Samuels, stealing cash and a digital camera from him at gunpoint. In

January 2008, following another altercation, the victim fled from his assailants

by car because they started shooting at him. While driving, Samuels called

911 for emergency assistance. A police chase ensued, during which gunfire

was exchanged between police and Sterling and his companions.

      Sterling was arrested, and Samuels identified him as one of his

assailants. Thereafter, in October 2008, Sterling entered a negotiated guilty
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plea to aggravated assault, conspiracy, and a firearms offense.1 The plea court

sentenced Sterling to an aggregate term of 13½ to 29 years’ incarceration.

After sentencing, Sterling sought to withdraw his plea, but the court denied

his motion. Sterling did not seek appellate review of his judgment of sentence.

        In October 2015, Sterling pro se filed a PCRA petition, asserting inter

alia after-discovered evidence and ineffective assistance of plea counsel.

Sterling attached to his petition a letter written by the victim, Michael

Samuels, in which he recanted prior statements to the police identifying

Sterling as one of his assailants. According to Sterling, Samuels provided the

letter to his family in August 2015.

        PCRA counsel was appointed and thereafter filed an amended petition.

In November 2017, the PCRA court held an evidentiary hearing. Sterling was

prepared to call Samuels. However, at the advice of counsel, Samuels asserted

his Fifth Amendment privilege against self-incrimination and declined to

testify. Following in camera proceedings, the PCRA court determined that

Samuels had grounds to invoke his Fifth Amendment privilege. See Notes of

Testimony (N.T.), 11/16/2017, at 4. Without testimony from Samuels, the

PCRA court found the recantation letter to be inadmissible hearsay. Id. at 5-

8. Accordingly, the court dismissed Sterling’s petition, as he could not

establish the new facts exception to the timeliness requirements of the PCRA.

Id.; PCRA Court Order, 11/17/2017.

____________________________________________


1   18 Pa.C.S.A. §§ 2702(a)(1), 903(a)(1), and 6106(a)(1), respectively.

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      Sterling timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The PCRA court issued a responsive opinion.

      Sterling raises the following issues on appeal:

      1. Whether the PCRA [c]ourt erred in denying [Sterling’s] PCRA
      petition as untimely where the record clearly showed it was timely
      pursuant to 42 Pa.C.S. § 9545(b)(1)(ii) and § 9545(b)(2) because
      it was filed within 60 days of the time that [Sterling] learned that
      Michael Samuels recanted his statement and this fact could not
      have been ascertained by the exercise of due diligence[; and]

      2. Whether the PCRA [c]ourt erred in denying [Sterling’s] PCRA
      petition where the record clearly showed that [Sterling’s] guilty
      pleas … were unlawfully induced, were not voluntary, and were
      the result of manifest [i]njustice[.]

Sterling’s Br. at 4.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

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

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual findings

deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa.Super. 2010)).

      We address the timeliness of Sterling’s petition, as it implicates our

jurisdiction and may not be altered or disregarded in order to address the

merits of his claims. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007). Under the PCRA, any petition for relief, including second and




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subsequent petitions, must be filed within one year of the date on which the

judgment of sentence becomes final. Id. There are three statutory 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Sterling’s petition is untimely.2 Accordingly, Sterling must establish

jurisdiction by pleading and proving an exception to the timeliness

requirement. See Bennett, 930 A.2d at 1267.

       Sterling asserts that he is entitled to rely on the newly discovered facts

exception under section 9545(b)(1)(ii). Sterling’s Br. at 10. According to


____________________________________________


2 Sterling’s petition is patently untimely. His judgment of sentence became
final on November 19, 2008, thirty days after the plea court denied his motion
to withdraw guilty plea. See 42 Pa.C.S. § 9545(b)(3) (a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking review); Pa.R.A.P. 1113(a). Sterling’s PCRA petition, filed October
19, 2015, was filed nearly six years late.

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Sterling, he filed his PCRA petition within 60 days of learning of Samuels’

recantation in August 2015. Id. at 11-12, 14-15. Moreover, according to

Sterling, he could not have learned of Samuels’ recantation earlier with the

exercise of due diligence. Id. Therefore, Sterling concludes, the PCRA court

erred in concluding that it was without jurisdiction to hear his substantive

claims. See id. at 12.

       As noted by the PCRA court, Samuels’ recantation letter is inadmissible

hearsay. PCRA Court Op., filed July 31, 2018, at 6-7 (citing in support

Commonwealth v. Brown, 141 A.3d 491 (Pa.Super. 2016)); PCRA Court

Order; N.T. at 5-8. Absent this or other relevant evidence, Sterling cannot

prove the newly discovered facts exception under section 9545(b)(1)(ii). See

Brown, 141 A.3d at 501-02. Accordingly, the PCRA court did not err in

concluding that it was without jurisdiction. Bennett, 930 A.2d at 1267;

Ragan, 923 A.2d at 1170.3

       Order affirmed.




____________________________________________


3 Sterling does not attempt to establish an exception to the rule against
hearsay. See Pa.R.E. 802 (“Hearsay is not admissible”); see also, e.g.,
Pa.R.E. 804 (providing exceptions where declarant is unavailable). In light of
Samuels’ invocation of his Fifth Amendment privilege, arguably the exception
defined at Rule 804(b)(3) (Statement Against Interest) is relevant. However,
here, Sterling has not provided “corroborating circumstances that clearly
indicate [the] trustworthiness” of Samuels’ recantation letter. Pa.R.E.
804(b)(3)(B). Accordingly, the exception does not apply.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/19




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