J-S88041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
         Appellee                            :
                                             :
          v.                                 :
                                             :
RICHARD SMITH,                               :
                                             :
         Appellant                           :     No. 815 EDA 2016


                Appeal from the PCRA Order February 8, 2016
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003531-2009

BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED FEBRUARY 10, 2017

      Richard Smith (Appellant) appeals from the order entered on February

8, 2016, which denied his petition filed pursuant to the Post Conviction Relief

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

      As this Court explained, previously,

      The facts giving rise to the charges herein involved Appellant
      and numerous other individuals who, from June 2004 through
      May 2008, engaged in the fraudulent transfer of real property.
      Participants in the criminal enterprise forged documents that
      purported to allow the holders of those documents to enter
      vacant houses. The documents could cost the holders anywhere
      from $100 to $1,000. The individuals then could select and
      “purchase” a home at various amounts and would be issued a
      notarized transfer deed, which could be recorded. Unfortunately
      for the victims, the deeds were fake and the properties’ lawful
      owners did not authorize any of the sales. [Appellant’s trial was
      joined with that of two-co-defendants; however, because he
      absconded after the jury was selected, Appellant was tried in
      absentia. Twelve other coconspirators pled guilty.]




*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Quiles, 48 A.3d 468 (Pa. Super. 2012) (unpublished

memorandum at 1-2) (footnote omitted).

     The PCRA court summarized the relevant background underlying this

matter as follows.

           On February 12, 2010, [Appellant] was found guilty after a
     jury trial, presided over by Honorable Rose Marie DeFino-
     Nastasi, of corrupt organizations, 18 Pa.C.S. § 911, [graded] as
     a felony of the first degree; forty-two (42) counts of theft by
     deception, 18 Pa.C.S. § 3922, each [graded] as a felony of the
     third degree; criminal conspiracy, 18 Pa.C.S. § 903, [graded] as
     a felony of the third degree; twenty-three (23) counts of forgery,
     18 Pa.C.S. § 4101, each [graded] as a felony of the third
     degree; and twenty-six (26) counts of tampering with public
     records, 18 Pa.C.S. § 4911, each [graded] as a felony of the
     third degree.

           On April 30, 2010, [Appellant] was sentenced to ten (10)
     to twenty (20) years for the corrupt organizations conviction;
     seven (7) years [of] probation for each count of theft by
     deception, to run concurrently to each other and consecutive to
     the corrupt organizations conviction; seven (7) years [of]
     probation for the conspiracy conviction, to run consecutively;
     [and] no further penalty for the forgery and tampering with
     public records convictions. [Appellant] received an aggregate
     sentence of ten (10) to twenty (20) years plus fourteen (14)
     years [of] probation.

          [Appellant] did not appeal. The judgment of sentence
     became final on May 30, 2010.

           On July 31, 2014, privately retained counsel, Cheryl
     Sturm, Esq., filed a petition under the Post[-]Conviction Relief
     Act (PCRA).

            On August 8, 2014, Attorney Sturm filed a supplemental
     petition.

         On November         16,   2014,   Attorney   Sturm    filed   a
     memorandum of law.



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              On December 12, 2014, Attorney Sturm filed a Motion to
        Impose Sentence in Open Court, which was denied without a
        hearing on January 20, 2015.

              On August 26, 2015, the Commonwealth filed a motion to
        dismiss.

              On September 24, 2015, Attorney Sturm filed a response
        to the Commonwealth’s motion.

             On January 6, 2016, the [c]ourt issued a [Pa.R.Crim.P.]
        907 notice [indicating its intention to dismiss Appellant’s petition
        without a hearing].

              On January 26, 2016, Attorney Sturm filed a response to
        the 907 notice.

             On February 8, 2016, the [c]ourt formally dismissed
        [Appellant’s] PCRA petition.

              On February 16, 2016, [Appellant] filed the instant appeal
        to the Superior Court.

PCRA     Court   Opinion,   4/12/2016,    at   1-2   (unnecessary    capitalization

omitted).1

        In his brief to this Court, Appellant raises two issues for our review.

        I. Whether the PCRA court has jurisdiction to impose a sentence
        that is void ab initio and whether it has inherent jurisdiction to
        correct a patently illegal sentence?

        II. Whether a PCRA court erred when it ruled the PCRA petition
        untimely where [Appellant] discovered new evidence in the
        public record establishing the conviction was obtained based on
        the perjured testimony of a crucial witness which is a species of
        Brady[2] violation and the PCRA petition was filed within 60 days


1
 Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.
2
    Brady v. Maryland, 373 U.S. 83 (1963).


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      of the date the vital facts were discovered with the exercise of
      due diligence?

Appellant’s Brief at 1-2 (unnecessary capitalization omitted).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.   Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010). Under the PCRA, all petitions must be filed

within one year of the date that the petitioner’s judgment became final,

unless one of three statutory exceptions applies. 42 Pa.C.S. § 9545(b)(1);

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). For purposes

of the PCRA, a judgment becomes final at the conclusion of direct review.

42 Pa.C.S. § 9545(b)(3).

      Appellant was sentenced on April 30, 2010 and had 30 days to file a

direct appeal with this Court. Pa.R.A.P. 903(a). He did not do so. Thus, for

purposes of the PCRA, Appellant’s judgment of sentence became final on

May 30, 2010, when the time for filing a direct appeal expired. He therefore

had until May 30, 2011, in order to file timely a PCRA petition. 42 Pa.C.S.

§ 9545(b)(1).

      Because Appellant untimely filed his PCRA petition in July of 2014, he

had the burden of pleading and offering to prove one of the following

exceptions:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the



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      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).     Moreover, “[a]ny petition invoking an exception

provided in [42 Pa.C.S. § 9545(b)(1)] shall be filed within 60 days of the

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

      With respect to his first issue, Appellant does not invoke a timeliness

exception.   Instead, he claims that his challenge to the restitution order

implicates the legality of sentence and argues that, because such claims are

not subject to waiver, the issue should have been addressed by the PCRA

court. Appellant’s Brief at 8-12.

      The mandates of the PCRA are clear. “The PCRA’s timeliness

requirements are jurisdictional; therefore, a court may not address the

merits of 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.” Commonwealth v. Jones, 54 A.3d 14, 17

(Pa. 2012) (citations omitted). As our Supreme Court has indicated with

regard to a legality of sentencing claim specifically, “[a]lthough [the] legality

of [a] sentence is always subject to review within the PCRA, [legality of


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sentencing] claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999). Accordingly, Appellant’s first claim fails.

      In his second issue, Appellant claims that a key witness at trial

committed perjury, which Appellant only learned of after he received copies

of his trial transcripts.3 Appellant’s Brief at 7, 13-21. Appellant couches this

issue as a Brady claim and claims he presented this claim within 60 days of

discovery, in satisfaction of both the the governmental interference and

newly-discovered evidence exceptions to the PCRA time-bar. Id. at 14-15.

      The PCRA Court addressed these assertions as follows.

             A Brady claim challenges the Commonwealth’s failure to
      produce material evidence. To prevail on a Brady claim, the
      petitioner must show that the evidence was suppressed by the
      prosecution, either willfully or inadvertently; the evidence was
      favorable to the petitioner, either because it is exculpatory or
      because it impeaches; and prejudice ensued. [Commonwealth]
      v. Nero, 58 A.3d 802, 809 (Pa. Super. 2012) (citing
      [Commonwealth] v. Busanet, 54 A.3d 35, 48 (Pa. 2012)). The
      burden rests with the petitioner to “prove, by reference to the
      record, that evidence was withheld or suppressed by the
      prosecution.” [Commonwealth] v. Haskins, 60 A.3d 538, 547
      (Pa. Super. 2012) (citing [Commonwealth] v. Paddy, 15 A.3d
      431, 451 (Pa. 2011)). There is no Brady violation when the
      petitioner knew or, with reasonable diligence, could have
      uncovered the evidence in question, or when the evidence was
      available to the defense from nongovernmental sources.
      [Commonwealth] v. Chamberlain, 30 A.3d 381, 409-410 (Pa.
      2011) (citations omitted)[].


3
  As noted above, Appellant absconded and was tried in absentia with two of
his co-defendants. Thus, he was not present at trial to hear the allegedly
perjured testimony, although his court-appointed attorney, Richard Hark,
Esquire, was.


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            Although a Brady violation may fall within the
     governmental interference exception, the merits of a Brady
     claim need not be addressed until it is established that the
     instant petition was timely filed. [Commonwealth] v.
     Williams, 105 A.3d 1234, 1240 (Pa. 2014). In order to meet
     the statutory requirements of the “governmental interference”
     exception to the PCRA’s one year jurisdictional time-bar, the
     petitioner must plead and prove that the failure to previously
     raise these claims was the result of interference by government
     officials, and that 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);
     [Commonwealth] v. Hawkins, 953 A.2d 1248, 1253 (Pa.
     2006) (citation omitted).

            Veronica Smith testified at [Appellant’s] trial on January
     20, 2010. [Appellant] claims that Ms. Smith’s testimony was
     perjured and that he was unaware of her testimony because he
     absconded from trial and did not know who testified against him
     until he obtained the trial transcripts, sometime after he was
     taken into custody on August 13, 2011. After reading the
     transcripts, he then called his girlfriend, Alma Cook, to find out
     why her niece, Ms. Smith, testified against him at trial.
     [Appellant] alleges that during that conversation, Ms. Cook told
     him that Ms. Smith was not an heir of Elizabeth Allen as she had
     testified. He claims that an investigator searched the public
     record on July 7, 2014, and confirmed this.

             This is not a case of governmental interference.
     [Appellant] is unable to demonstrate that the government
     prevented him from raising this claim. Clearly [Appellant] could
     have obtained the trial transcript—a court, and not a
     Commonwealth document, long before the instant petition was
     filed. Furthermore, even before he chose to absent himself from
     trial, he had complete discovery. [Appellant] and his attorney
     were provided with a witness list prior to him absconding post
     jury selection, a list that included Ms. Smith, [Appellant’s] ex-
     girlfriend’s niece. The only interference in this matter came from
     [Appellant’s] failure to be present for his trial and sentencing,
     and his failure to perfect an appeal. [Appellant] cannot now
     claim interference or ignorance regarding a witness called at trial
     who[m] he knew about.

           Nor is this a case of newly-discovered evidence.


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           Under section 9545(b)(1)(ii), a petitioner must plead and
     prove that “the facts upon which the claim is predicated were
     unknown to [him] and could not have been ascertained by the
     exercise of due diligence[.]” 42 Pa.C.S. § 9545(b)(1)(ii);
     [Commonwealth] v. Brown, 111 A.3d 171, 176 (Pa. Super.),
     app. denied, 125 A.3d 1197 (Pa. 2015). Due diligence demands
     that the petitioner take reasonable steps to protect his own
     interests. Brown, 111 A.3d at 176 (citing [Commonwealth] v.
     Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001)). A petitioner
     must explain why he could not have learned the new facts earlier
     with the exercise of due diligence. Id. (citations omitted).
     Additionally, the focus of this exception “is on the newly
     discovered facts, not on a newly discovered or newly willing
     source     for   previously  known      facts.”   Id    (quoting
     [Commonwealth] v. Marshall, 947 A.2d 714, 720 (Pa. 2008)).

            The Pennsylvania Superior Court recently clarified the
     distinction between a newly-discovered evidence exception
     under the PCRA and an after-discovered evidence claim:

          The timeliness exception set forth at Section
          9545(b)(1)(ii) has often mistakenly been referred to
          as the “after-discovered evidence” exception. This
          shorthand reference was a misnomer, since the plain
          language of subsection (b)(1)(ii) does not require
          the petitioner to allege and prove a claim of “after-
          discovered     evidence.”   Rather,  as   an    initial
          jurisdictional   threshold,  Section   9545(b)(1)(ii)
          requires a petitioner to allege and prove that there
          were facts unknown to him and that he exercised
          due diligence in discovering those facts. Once
          jurisdiction is established, a PCRA petitioner can
          present a substantive after-discovered evidence
          claim. Thus, the “new facts” exception at Section
          9545(b)(1)(ii) does not require any merits analysis
          of an underlying after-discovered-evidence claim.

     Brown, 111 A.3d at 176 -77 (quotation marks and citations
     omitted). “[D]ue diligence requires neither perfect vigilance nor
     punctilious care, but rather it requires reasonable efforts by a
     petitioner, based on the particular circumstances, to uncover
     facts that may support a claim for collateral relief.”
     [Commonwealth] v. Burton, 121 A.3d 1063, 1071 (Pa. Super.
     2015).


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            To obtain relief on a substantive after-discovered-evidence
      claim under the PCRA, a petitioner must demonstrate: (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. Brown, 111 A.3d at 178 (citing [Commonwealth] v.
      Washington, 927 A.2d 586 (Pa. 2007)). The substantive
      merits-based analysis is more stringent than the analysis
      required by the “new facts” exception to establish jurisdiction.
      Id. A petitioner who fails to question or investigate an obvious,
      available source of information, cannot later claim evidence from
      that    source    constitutes    newly     discovered    evidence.
      [Commonwealth] v. Padillas, 997 A.2d 356, 363-64 (Pa.
      Super. 2010).

              A petitioner who absented himself from trial after jury
      selection cannot reasonably claim that a witness’s testimony at
      that trial is newly-discovered. [Appellant] makes no attempt to
      explain why the information that he allegedly learned after
      reading the transcripts from his own trial and speaking to his ex-
      girlfriend, Alma Cook, and his private investigator could not, with
      the exercise of due diligence, have been obtained much earlier.
      [Appellant’s] claim is jurisdictionally barred under the PCRA.
      Therefore, the [c]ourt need not consider its merits.

PCRA Court Opinion, 4/12/2016, at 6-9 (some citations omitted).

      We find no error in the court’s analysis and conclude that Appellant

has failed to establish the applicability of a timeliness exception. Thus, the

PCRA court properly dismissed the petition for lack of jurisdiction.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2017




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