J-S25042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FREDERICK ALAN VANTASSEL,

                            Appellant                No. 2026 WDA 2014


                  Appeal from the PCRA Order August 19, 2014
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0011256-1999


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 06, 2015

        Appellant, Frederick Alan Vantassel, appeals pro se from the order1

dismissing his fifth petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        We take the relevant procedural and factual history of this case from

the PCRA court’s January 9, 2015 opinion and our independent review of the

record.    On January 13, 2000, following a three-day trial, a jury found

Appellant guilty of first-degree murder and criminal conspiracy.2         The

conviction stemmed from Appellant’s stabbing to death of the victim,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The order appealed from is dated August 18, 2014, but was filed on August
19, 2014. We have amended the caption accordingly.
2
    18 Pa.C.S.A. §§ 2502(a) and 903(a)(1), respectively.
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Leonard Kindsvater, using a machete and butcher knife.       On February 15,

2000, the trial court sentenced Appellant to a term of life imprisonment.

This Court affirmed the judgment of sentence on July 6, 2001, and our

Supreme Court denied Appellant’s petition for allowance of appeal on

December 31, 2001. (See Commonwealth v. Vantassel, 782 A.2d 1060

(Pa. Super. 2001) (unpublished memorandum), appeal denied, 792 A.2d

1253 (Pa. 2001)).

        On September 6, 2002, Appellant, acting pro se, filed his first PCRA

petition.   Appointed counsel filed an amended petition on December 17,

2002.     The PCRA court dismissed the petition on April 9, 2003, and this

Court affirmed the court’s order on July 1, 2004. Our Supreme Court denied

Appellant’s petition for allowance of appeal on January 11, 2005.         (See

Commonwealth        v.   Vantassel,   858   A.2d   1284   (Pa.   Super.   2004)

(unpublished memorandum), appeal denied, 867 A.2d 523 (Pa. 2005)).

        On August 4, 2008, Appellant filed his second pro se PCRA petition,

which the court dismissed on November 19, 2008. Appellant did not file an

appeal.

        On February 25, 2009, Appellant filed a pro se “Motion in Support of

Mandamus Action,” which the court treated as a third PCRA petition.        The

PCRA court dismissed the petition on March 25, 2009, and this Court

affirmed the court’s order on August 25, 2010. Our Supreme Court denied

Appellant’s petition for allowance of appeal on March 30, 2011.           (See




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Commonwealth           v.   Vantassel,         11   A.3d   1038   (Pa.   Super.   2010)

(unpublished memorandum), appeal denied, 20 A.3d 487 (Pa. 2011)).

          On January 26, 2011, Appellant filed a fourth pro se PCRA petition.

The PCRA court noted that Appellant’s appeal of his third petition was still

pending, and it dismissed the fourth petition on February 17, 2011.

          On May 20, 2011, Appellant filed the instant pro se PCRA petition, his

fifth. Appellant’s claims in the petition relate to the allegedly lenient terms

of the January 2000 guilty plea agreement entered by his co-defendant and

former girlfriend Diana Wilson, in exchange for her testimony at Appellant’s

trial.3    The PCRA court issued notice of its intent to dismiss the petition

without a hearing on July 23, 2014, see Pa.R.Crim.P. 907(1), and filed its

order dismissing the petition on August 19, 2014.                  This timely appeal

followed.4
____________________________________________


3
  Ms. Wilson is also referred to by her maiden name, Diana Workman, in the
record. (See N.T. Trial, 1/12/00, at 161; PCRA Court Opinion, 1/09/15, at
4).
4
   Appellant did not file a Rule 1925(b) statement as ordered by the PCRA
court. See Pa.R.A.P 1925(b); (see also PCRA Ct. Op., at 3 n.4). On
January 9, 2015, the PCRA court entered an opinion, see Pa.R.A.P 1925(a),
and appended to it a document apparently forwarded to it by Appellant,
titled “Petition for Permission to Amend 1925(b) Statement.” (See PCRA Ct.
Op., attachment). This document is not listed on the criminal docket as a
separate docket entry; it is included only as an attachment to the PCRA
court’s opinion. (See Criminal Docket, at 20). The document does not
resemble a proper Rule 1925(b) statement; is nearly unintelligible, and
lodges various allegations against the PCRA court. (See PCRA Ct. Op.,
attachment at unnumbered page 1) (claiming, inter alia, that the PCRA court
judge “had committed fraud upon the court[.]”).



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      Appellant raises the following issue for our review:

      1. Whether failure to grant a[n] evidentiary hearing on the
      merits of after-discovered evidence under the PCRA filed against
      the 2000 opinion of the Hon Daniel [sic] which documents found
      by [A]ppellant the court’s [sic] violated his right under the Fifth
      and Fourteenth Amendment to the U.S. Constitution and Art. 1,
      sec 9&10 of the Pennsylvania Constitution pursuant to the
      withholding of pleas arrangement taken a day before witness
      was called that wasn’t turned over to defense of his co[-
      ]defendant plea negotiation in exchange for several years the
      Hon. Jo Daniel [sic] defend the prosecution never existed, as
      well as trying to dismiss the claim as newly discovered[?]

(Appellant’s Brief, at 3).

      Our standard of review of a trial court order granting or denying
      relief under the PCRA calls upon us to determine 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. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations and quotation marks omitted).

      “[W]e must first consider the timeliness of Appellant’s PCRA petition

because it implicates the jurisdiction of this Court and the PCRA court.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.          42 Pa.C.S.[A.] §
      9545(b)(3).      The   PCRA’s    timeliness  requirements     are
      jurisdictional; therefore, a court may not address the merits of

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       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. The PCRA
       squarely places upon the petitioner the burden of proving an
       untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

       In the instant case, Appellant’s judgment of sentence became final on

April 1, 2002, when his time to file a petition for writ of certiorari with the

United States Supreme Court expired.5            See U.S. Sup.Ct. R. 13; 42

Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date to file a

petition for collateral relief, specifically, until April 1, 2003.      See 42

Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on May

20, 2011, it is untimely on its face, and the PCRA court lacked jurisdiction to

review it unless he pleaded and proved one of the statutory exceptions to

the time-bar. See id. at § 9545(b)(1)(i)-(iii).

       Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

       (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;



____________________________________________


5
  The last day of the ninety-day period, March 31, 2002, fell on a Sunday.
Accordingly, Appellant had until that Monday to file a petition for writ of
certiorari. See 1 Pa.C.S.A. § 1908.



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      (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.A. § 9545(b)(1)(i)-(iii). In addition, a PCRA petition invoking one

of these statutory exceptions must “be filed within 60 days of the date the

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

      Here, Appellant contends that two of the exceptions to the PCRA’s

timeliness   requirement   are   applicable   to   his   case,   specifically,    the

governmental interference and after-discovered facts exceptions.                 (See

Appellant’s Brief, at 8-12; PCRA Petition, 5/20/11, at 2-3); see also 42

Pa.C.S.A. § 9545(b)(1)(i)-(ii). In support of these claims, he points to the

guilty plea agreement entered by his co-defendant, Diana Wilson, and

asserts that the trial court and the Commonwealth withheld from him the

terms agreed to in exchange for her testimony at his trial. (See Appellant’s

Brief, at 9; PCRA Petition, 5/20/11, at 7-8). He claims he first learned of the

terms of the plea agreement on January 23, 2011, and that he is entitled to

an evidentiary hearing on this issue. (See Appellant’s Brief, at 8, 12). We

disagree.

      Preliminarily, we “note that a PCRA petitioner is not automatically

entitled to an evidentiary hearing.” Miller, supra at 992 (citation omitted).

“It is within the PCRA court’s discretion to decline to hold a hearing if the


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petitioner’s claim is patently frivolous and has no support either in the record

or other evidence.” Id. (citation omitted).

      To fall within the governmental interference exception, a PCRA

“petitioner must plead and prove the failure to previously raise the claim was

the result of interference by government officials, and the information could

not have been obtained earlier with the exercise of due diligence.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert.

denied, 555 U.S. 916 (2008) (citation omitted). The after-discovered facts

exception requires the facts upon which the claim is predicated “were not

previously known to the petitioner and could not have been ascertained

through due diligence.” Id. (citation omitted). The PCRA creates a three-

part test for the after-discovered facts exception: “1) the discovery of an

unknown fact; 2) the fact could not have been learned by the exercise of

due diligence; and 3) the petition for relief was filed within 60 days of the

date that the claim could have been presented.”           Commonwealth v.

Smith, 35 A.3d 766, 771 (Pa. Super. 2011), appeal denied, 53 A.3d 757

(Pa. 2012) (emphasis omitted).

      Here, although Appellant claims that he first learned of the “after-

discovered evidence” of the terms of Wilson’s plea agreement on January

23, 2011, and that his failure to raise the claim previously was the result of

governmental interference, (Appellant’s Brief, at 8; see id. at 8-9), a review

of the record belies these claims.      Specifically, the record reflects that

Appellant previously discussed this same issue related to Wilson’s allegedly

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lenient plea agreement in exchange for her testimony at his trial during his

second PCRA proceeding in 2008. (See PCRA Petition, 8/04/08, at 3; see

also Commonwealth’s Brief, at 18).      Appended to Appellant’s 2008 PCRA

petition is an affidavit signed by Wilson dated January 23, 2001 averring

that “[i]n return for my testimony in this matter the Commonwealth of

Pennsylvania agreed to reduce my charges[.]”         (PCRA Petition, 8/04/08,

Appendix A).    Thus, the record shows that Appellant’s alleged date of

discovery of this issue, January 23, 2011, is not credible.

      Furthermore, our Supreme Court has held that “matters of public

record are not unknown.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013), cert. denied, 134 S.Ct. 2695 (2014) (citations omitted); see

also Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013), cert.

denied, 134 S. Ct. 639 (2013) (“[T]o constitute facts which were unknown to

a petitioner and could not have been ascertained by the exercise of due

diligence, the information must not be of public record[.] . . . ”). Wilson’s

guilty plea proceeding is a matter of public record and was accessible to

Appellant in 2000 when she entered the plea.

      Finally, as the PCRA court noted, even accepting as accurate

Appellant’s claimed date of discovery, January 23, 2011, the instant petition

dated May 17, 2011 and filed on May 20, 2011 is still untimely for his failure




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to file it within sixty days, by March 24, 2011.                  See 42 Pa.C.S.A.

§ 9545(b)(2); (see also PCRA Ct. Op., at 5).6

       After review, we conclude that Appellant has not met his burden of

proving his untimely petition fits within one of the three exceptions to the

PCRA’s time-bar. See Jones, supra at 17. Because Appellant presented no

genuine issue of material fact concerning the timeliness of his petition, the

PCRA    court    properly    dismissed     it   without   a   hearing   based   on   its

determination that it was untimely with no exception to the time-bar pleaded

or proven. See Miller, supra at 992. Accordingly, we affirm the order of

the PCRA court.7
____________________________________________


6
  Appellant’s reliance on Commonwealth v. Davis, 86 A.3d 883 (Pa. Super.
2014), is misplaced. (See Appellant’s Brief, at 10). In Davis, this Court
determined that the appellant proved the applicability of the governmental
interference and after-discovered facts exceptions. See Davis, supra at
891. In that case, the appellant received new evidence in the form of an
affidavit signed by a Commonwealth witness averring that he had fabricated
his testimony that the appellant had confessed to shooting the victim. See
id. at 888. The appellant filed his PCRA petition within sixty days of
receiving the affidavit, and while the petition was pending, he learned that
the witness perjured himself by denying having made any deals with the
Commonwealth in exchange for his testimony. See id. at 888-91. This
Court determined that, although the witness’s sentencing hearing was a
matter of public record, under the specific facts of the case, Davis exercised
due diligence in discovering the evidence at issue. See id. at 890-91. The
facts of the instant case are inapposite to those in Davis, where the record
reflects Appellant was aware of the terms of Wilson’s plea agreement well
before January 23, 2011, and he failed to file his petition within sixty days of
his alleged date of discovery.
7
 We note that, even if we had jurisdiction to review the merits of Appellant’s
PCRA petition, he waived all issues on appeal for failure to file a Rule
1925(b) statement as ordered by the PCRA court.               See Pa.R.A.P.
(Footnote Continued Next Page)


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      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




                       _______________________
(Footnote Continued)

1925(b)(3)(iv), (4)(vii); see also Greater Erie Indus. Dev. Corp. v.
Presque Isle Downs, Inc., 88 A.3d 222, 224-25 (Pa. Super. 2014) (en
banc); Commonwealth v. Hill, 16 A.3d 484, 493 (Pa. 2011) (“[T]here can
be no question that all of appellant’s issues are waived due to [his] failure to
file and serve a Rule 1925(b) statement, as ordered.”).



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