J-S38016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA                  :    IN THE SUPERIOR COURT OF
                                                  :         PENNSYLVANIA
                                                  :
                 v.                               :
                                                  :
                                                  :
    GARY CALHOUN                                  :
                                                  :
                          Appellant               :    No. 1303 WDA 2017

                   Appeal from the PCRA Order August 4, 2017
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0000449-2012


BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY NICHOLS, J.:                                        FILED JULY 18, 2018

        Appellant Gary Calhoun appeals from the order dismissing his third Post

Conviction Relief Act (PCRA)1 petition as untimely filed. Appellant contends

that his petition is timely because he became aware of contradictory trial

testimony—a       trial    at   which   he     testified   in   his   defense—when   the

Commonwealth quoted the testimony in its response to his federal petition for

a writ of habeas corpus. We affirm.

        We state the facts and procedural history as set forth by a prior decision

of this Court:

        Appellant was charged with one count of corruption of minors and
        two counts each of indecent assault and endangering the welfare
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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.
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       of children after his daughter, H.C., disclosed that Appellant
       repeatedly had her remove her pants and underwear, ostensibly
       so that Appellant could check to see if she was wiping properly,
       and touched her vaginal area, rubbing his fingers in a circular
       motion. A jury convicted Appellant of one count of corruption of
       minors and, on December 17, 2013, the trial court sentenced him
       to a mandatory term of twenty-five years in prison pursuant to 42
       Pa.C.S.A. § 97[18].2.

Commonwealth v. Calhoun, 848 WDA 2015, 2016 WL 4965111, *1 (Pa.

Super. July 11, 2016) (unpublished mem.) (footnotes and alterations

omitted). We add that Appellant testified in his own defense and stated he

was present for the entire trial, including the testimony of Dr. Jeanne Spencer

and Emily Rogers. N.T. Trial, 10/9/13, at 14-37. Appellant timely appealed,

and this Court affirmed on November 12, 2014. Calhoun, 2016 WL 4965111

at *1.    Appellant did not file a petition for allowance of appeal with the

Pennsylvania Supreme Court.

       Appellant timely filed a first PCRA petition on January 1, 2015, id., and

the court appointed Devon Casti, Esq., as his counsel. The PCRA court denied

the petition, and this Court affirmed on July 11, 2016. Id. at *5. Appellant,

pro se, filed an untimely second PCRA petition. The PCRA court dismissed the

petition, and Appellant did not appeal to this Court.

       The PCRA court docketed pro se Appellant’s third petition on July 5,

2017.2    His petition asserted that his claim was based on facts previously


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2The PCRA court included the envelope that contained the third petition, but
punched a hole in it that obliterated the postmarked date.


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unknown to him.        Appellant’s Third PCRA Pet. at 3.       Appellant, by way of

background, argues that he was primarily convicted based on a telephone

conversation between Ms. Rogers and Dr. Spencer. Id. Appellant contends

that he received the trial transcripts on May 9, 2017, which is when he first

learned Ms. Rogers had allegedly perjured herself. Id. Specifically, Appellant

claims that the transcript establishes that Dr. Spencer testified at trial that

she had denied conversing with Ms. Rogers about the victim. Id.

        The PCRA court issued a Pa.R.Crim.P. 907 notice on July 20, 2017. The

court docketed Appellant’s pro se response on August 4, 2017, at 11:18 a.m.

At that exact same time, the court filed its opinion formally dismissing

Appellant’s third PCRA petition.          Appellant timely appealed on Tuesday,

September 5, 2017.3 Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)

statement on Tuesday, October 10, 2017.4

        The PCRA court appointed Timothy S. Burns., Esq., as counsel for

Appellant on November 9, 2017.5                Counsel’s App. to Withdraw, 5/18/18.

____________________________________________


3The thirtieth day from August 4, 2017, was Sunday, September 3, 2017.
Monday, September 4, 2017 was a legal holiday. See generally 1 Pa.C.S. §
1908.
4   Monday, October 9, 2017 was a legal holiday.
5 The PCRA court docket reflects a November 9, 2017 entry of an order
granting a motion to withdraw as counsel filed by “Atty. Malloy & appointing
Atty T. Burns to represent [Appellant].” Although it was not in the certified
record transmitted to this Court, the order appointing Attorney Burns as
counsel was attached to his entry of appearance with this Court. Neither the



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Attorney Burns entered his appearance with this Court on December 8, 2017,

and he filed an appellate brief on February 2, 2018.        On May 21, 2018,

Attorney Burns filed an application to withdraw as counsel. Attorney Burns

stated that Appellant, in a letter dated May 11, 2018, wished to proceed pro

se. Id. at 3. On May 29, 2018, this Court ordered that counsel’s application

would be considered by this panel.

       We initially address counsel’s application to withdraw. It is well settled

that “once the [appellate] brief has been filed, any right to insist upon self-

representation has expired.” Commonwealth v. Jette, 23 A.3d 1032, 1044

(Pa. 2011).     Here, counsel filed the appellate brief on February 2, 2018,

several months before Appellant wrote his May 11, 2018 letter request to

proceed pro se. Appellant’s right to proceed pro se has expired.        See id.

Motion to withdraw as counsel is therefore denied. We therefore address the

merits of Appellant’s appeal.

       Appellant raises one issue: “whether the trial court erred in finding that

. . . Appellant’s third PCRA petition was not timely filed[.]” Appellant’s Brief

at 4 (some capitalization omitted). In support, Appellant contends that he

first discovered the purported perjured testimony when the Commonwealth



____________________________________________


record nor PCRA court docket, however, substantiates Attorney Malloy’s
appointment. The PCRA court docket further indicates that on November 7,
2017, Attorney Casti filed a motion for leave of court to withdraw as court-
appointed counsel.


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quoted from the trial transcripts in its response to his petition for a writ of

habeas corpus, filed in federal court. Id. at 13. He contends he never had

access to the trial transcripts prior to receiving the Commonwealth’s response.

Id. Appellant also claims he lacked funds to purchase the trial transcripts.

Id. For these reasons, Appellant concludes his third PCRA petition was timely

filed.

         “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).

         Our Supreme Court has required this Court to examine whether we have

jurisdiction to entertain the underlying PCRA petition. See Commonwealth

v. Fahy, 737 A.2d 214, 223 (Pa. 1999). A PCRA petition “must normally be

filed within one year of the date the judgment becomes final . . . unless one

of the exceptions in § 9545(b)(1)(i)-(iii) applies.”        Commonwealth v.

Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations and footnote omitted).

A petitioner must plead and prove that:

         (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




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       (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). “The PCRA’s timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not address

the merits of the issues raised in a petition if it is not timely filed. It is the

petitioner’s burden to allege and prove that one of the [three] timeliness

exceptions applies.” Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1267–

68 (Pa. 2008) (citations omitted).

       In Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016), the Pennsylvania

Supreme Court highlighted the distinctions between the timeliness exception

of Section 9545(b)(1)(ii), and eligibility for relief based on after-discovered

evidence under Section 9543(a)(2)(vi).6

       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 by the exercise of due diligence.
       We have unequivocally explained that the exception set forth in
       subsection (b)(1)(ii) does not require any merits analysis of the
       underlying claim. Rather, the exception only requires a petitioner
       to prove that the facts were unknown to him and that he exercised
       due diligence in discovering those facts.




____________________________________________


6 Section 9543(a)(2)(vi) provides as follows: “The 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. § 9543(a)(2)(vi).


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Cox, 146 A.3d at 227 (citations and internal quotation marks omitted);

accord Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007).

      In Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017), the

Pennsylvania Supreme Court explained the term “fact” as used under

subsection (b)(1)(ii):

      This exception requires that the facts upon which such a claim is
      predicated must not have been known to appellant, nor could they
      have been ascertained by due diligence. [T]o fall within this
      exception, the factual predicate of the claim must not be of public
      record and must not be facts that were previously known but are
      now presented through a newly discovered source.

Id. at 625 (citations and internal quotation marks omitted). Trial transcripts

are in the public domain and do not constitute new sources for previously

known information. See id.

      Here, Appellant’s third PCRA petition—docketed on July 5, 2017—is

patently untimely, given that his judgment of sentence became final on

December 12, 2014, thirty days after this Court affirmed the judgment of

sentence. Thus, Appellant had until Monday, December 14, 2015, to file his

first PCRA petition.     Appellant, however, has not pleaded and proved an

exception under subsection (b)(1)(ii), because a trial transcript is merely a

new source for previously known information. See Chmiel, 173 A.3d at 625.

      As set forth above, Appellant was present at trial, including during the

testimony of Dr. Spencer and Ms. Rogers.         He therefore had first-hand

knowledge of their testimony on October 9, 2013, and thus was aware of any

alleged perjury well before 2017. Thus, Appellant has failed to establish the

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purported perjured testimony was an “unknown fact” that could not have been

discovered with due diligence. See Cox, 146 A.3d at 227.

     In sum, we hold that the PCRA court’s determination that it lacked

jurisdiction is free from legal error. See Wilson, 824 A.2d at 333; see also

Fahy, 737 A.2d at 223.

     Counsel’s application to withdraw denied. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2018




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