J-S67023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GEORGE PAGE                                :
                                               :
                       Appellant               :   No. 3863 EDA 2017

                 Appeal from the PCRA Order November 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0138781-1990


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

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 16, 2019

        Appellant George Page appeals pro se from the order dismissing as

untimely his second petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. Appellant claims that he properly raised the newly

discovered facts and governmental interference exceptions to the PCRA time

bar. See 42 Pa.C.S. § 9545(b)(1)(ii)-(iii). We affirm.

        The relevant procedural history of this case is as follows. On October

25, 1990, following a bench trial, Appellant was convicted of second-degree

murder and related offenses.            The trial court sentenced Appellant to a

mandatory sentence of life imprisonment.

        Appellant filed a post-verdict motion alleging, in relevant part, that the

Commonwealth’s primary witness, Harold Jackson, had recanted his testimony

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*   Retired Senior Judge assigned to the Superior Court.
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after trial. See Post-Sentence Mot., 11/1/90; see also Supp. Post Verdict

Mot., 9/16/93. At the hearing on February 28, 1994, Jackson testified for the

defense. At the conclusion of the hearing, the trial court denied Appellant’s

motions.

        Appellant filed a direct appeal, and this Court affirmed Appellant’s

judgment of sentence on April 24, 1995. See Commonwealth v. Page, 664

A.2d 1058 (Pa. Super. 1995) (unpublished mem.). The Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal on December 4,

1995.

        On December 15, 1997, Appellant filed his first pro se PCRA petition.

Appointed counsel subsequently filed an amended petition alleging, in relevant

part, that direct appeal counsel was ineffective for failing to raise the issue of

Jackson’s recantation and the allegation of bribery on direct appeal. See Am.

PCRA Pet., 9/18/98, at 8. The PCRA court ultimately dismissed the petition

as untimely on January 27, 1999.        This Court affirmed the PCRA court’s

dismissal on May 30, 2000. See Commonwealth v. Page, 691 EDA 1999

(Pa. Super. filed May 30, 2000) (unpublished mem.).

        Appellant filed the instant pro se PCRA petition, his second, on May 11,

2016.     Appellant attempted to invoke the governmental interference and

newly discovered evidence exceptions to the PCRA time bar.           In support,

Appellant attached a sworn affidavit from Jackson, who again stated that he

lied at trial, and that he did so because he was threatened by detectives and

offered money in exchange for his testimony. See Pro Se PCRA Pet., 5/9/16,

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Ex. A. Jackson also indicated that he “did try to explain this truth . . . some

time ago[.]” Id.

      On July 14, 2017, the PCRA court filed a notice of intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907, stating

that the petition was untimely and that Appellant failed to establish a time-

bar exception.     See Pa.R.Crim.P. 907 Not., 7/14/17.       Appellant’s pro se

response was docketed on July 24, 2017.

      On November 3, 2017, the PCRA court formally dismissed Appellant’s

petition.   Appellant timely appealed.     Both the PCRA court and Appellant

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      1. Whether (in) reviewing the (proeprty) [sic] of the [PCRA]
         court’s dismissal of [A]ppellant’s [PCRA] filing, it was an abuse
         of discretion for the [PCRA] court to determine that it was
         untimely . . . where the petition was timely filed under title [42
         Pa.C.S.[] § 9545(b)(1)(ii) and 9545(b)(2), because [A]ppellant
         established and invoked the newly discovered facts
         exception[.]

      2. Whether the PCRA court erred and denied [A]ppellant his
         federal and state constitutional rights to due process of law by
         dismissing [A]ppellant’s [PCRA] petition without an evidentiary
         hearing and appointment of counsel . . . where [A]ppellant
         raised questions of disputed facts regarding t[h]e timeliness of
         his [PCRA] petition[.]

Appellant’s Brief at 4 (full capitalization omitted).

      Our standard of review from the dismissal of a PCRA petition “is limited

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




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evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

      It is well settled that “the timeliness of a PCRA petition is a jurisdictional

[pre-]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super.

2015) (citation omitted). A PCRA petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final.”

42 Pa.C.S. § 9545(b)(1).      A judgment is final “at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following 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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii).1

       In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), the

Pennsylvania Supreme Court emphasized that the Section 9545(b)(1)(ii)

exception “requires petitioner to allege and prove that there were ‘facts’ that

were ‘unknown’ to him and that he could not have ascertained those facts by

the exercise of ‘due diligence.’” Id. at 720 (citation omitted). This Court has

explained that “[d]ue diligence demands that the petitioner take reasonable

steps to protect his own interests. A petitioner must explain why he could not

have learned [of] the new fact(s) earlier with the exercise of due diligence.

This rule is strictly enforced.” Commonwealth v. Medina, 92 A.3d 1210,

1216 (Pa. Super. 2014) (en banc) (citation omitted).

       Further, the Pennsylvania Supreme Court has noted that

       [a]lthough a Brady violation may fall within the governmental
       interference exception, the 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. Section
       9545(b)(1)(ii)’s exception requires the facts upon which the
       Brady claim is predicated were not previously known to the
       petitioner and could not have been ascertained through due
       diligence. In [Commonwealth v. Bennett, 930 A.2d 1264, 1271
       (Pa. 2007)], we clarified that § 9454(b)(1)(ii)’s exception does not
       contain the same requirements as a Brady claim, noting “we
       made clear the exception set forth in subsection (b)(1)(ii) does
       not require any merits analysis of the underlying claim. Rather,
       the exception merely requires that the ‘facts’ upon which such a
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1Moreover, to invoke one of these exceptions, a petitioner must also file the
petition “within 60 days of the date the claim could have been presented.” 42
Pa.C.S. § 9545(b)(2).


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      claim is predicated must not have been known to appellant, nor
      could they have been ascertained by due diligence.”

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

omitted).

      Instantly, there is no dispute that Appellant’s conviction became final in

1996, and that Appellant’s instant PCRA petition is facially untimely. Because

Appellant failed to file the instant PCRA petition within one year of the date

his sentence became final, he must satisfy one of the exceptions to the PCRA

time bar.   Appellant raises the newly discovered facts and governmental

interference exceptions.

      First, Appellant alleges that he initially became aware of the fact that

Jackson received a monetary reward in exchange for his testimony no earlier

than March 15, 2016, sixty days before his petition was filed. Appellant’s Brief

at 12. He asserts that “although Harold Jackson sent a letter to Appellant’s

[p]ost-sentence counsel Rita M. Eichman recanting his trial testimony over

twenty years ago on the date of October 4, 1993, the letter merely indicated

that he lied at Appellant’s [t]rial.” Id. at 16. Appellant therefore concludes

that Jackson’s new affidavit, which states that “he received a monetary reward

and preferential treatment on open cases” constitutes a new fact. Id. at 19.

      Next, Appellant argues that the Commonwealth’s failure to disclose that

Jackson was given money in exchange for his testimony was a Brady violation

and constituted governmental interference. Id. at 20. He argues that he was

unable to contact Jackson to obtain a sworn affidavit and confirm the specific



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details of his perjury.     Id. at 18.     Therefore, Appellant concludes that his

petition was timely, as it was filed within sixty days of the date he received

Jackson’s sworn affidavit. Id. at 19.

       In its Rule 1925(a) opinion, the PCRA court concluded that Appellant did

not meet the newly discovered facts or governmental interference exceptions

because the fact of Jackson’s recantation was not unknown to Appellant. See

PCRA Ct. Op., 5/24/18, at 4-5. Specifically, the PCRA court explained that

       [n]otably, in his affidavit, Jackson indicated that he tried to
       “explain this truth” during the direct appeals of [Appellant] and
       his co-defendant. Despite this statement and [Appellant’s] prior
       filings, [Appellant] persisted that he first discovered this “fact” no
       earlier than March 15, 2016.

       Moreover, the affidavit signed by Jackson appeared consistent
       with what was presented at [Appellant’s] post-sentence motions
       over twenty years ago.         [Appellant’s] counsel during post-
       sentence motions, Rita M. Eichman, was sent a letter from Jackson
       dated October 4, 1993. This letter indicated that he wanted to
       speak to [Appellant’s] counsel because he lied at trial when he
       implicated [Appellant].     On February 28, 1994, post-verdict
       motions were heard during which [Appellant’s] new counsel
       presented Jackson as a witness. During the hearing, Jackson
       testified that he was around the corner and did not witness the
       incident.[2] The post-sentence motions were denied and counsel
       did not raise this issue on direct appeal. Based upon these facts,
       [Appellant] knew about the recantation by February 28, 1994 and


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2 The transcript from the post-sentence motions hearing is not included in the
certified record. However, Appellant’s counseled PCRA petition, filed in 1997,
references portions of Jackson’s testimony from the hearing, including that
(1) his original witness statement was coerced by the police; (2) the
prosecution threatened him and stated that he would be implicated for the
shooting if he did not testify against Appellant and his co-defendant; and (3)
the prosecutor gave him $350 in exchange for his testimony. See Am. PCRA
Pet., 9/18/98, at 7.

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     likely knew shortly after counsel received the letter dated October
     4, 1993.

     On December 15, 1997, [Appellant] filed his first pro se PCRA
     petition. [Appellant] attached as “Exhibit A” the aforementioned
     letter dated October 4, 1993 in which Jackson indicated to
     [Appellant]’s counsel that he was recanting his testimony.
     Counsel was appointed and subsequently filed an Amended PCRA
     Petition, in which he raised the issue of the recantation. Notably,
     his Amended Petition indicated that the issue was raised on behalf
     of [Appellant] during post-verdict motions and instead argued
     counsel was ineffective for abandoning this issue on direct appeal.
     The court dismissed the petition as untimely. Therefore, even if
     this court disregarded both the October 4, 1993 letter to counsel
     and the post-sentence motions, [Appellant] definitively knew by
     December 15, 1997.

     Based upon the foregoing, this court lacked jurisdiction to hear
     this claim involving Jackson’s recantation. [Appellant] has failed
     to demonstrate that these statements were previously unknown
     and could not have been obtained earlier through the exercise of
     due diligence. To the contrary, these “facts” were known to
     [Appellant], more than sixty days prior to the filing of the present
     petition. The PCRA requires a petition invoking one of these
     exceptions, including those relating to both newly discovered
     evidence and government interference, “be filed within 60 days of
     the date the claim could have been presented.” 42 Pa.[C.S.] §
     9545(b)(2). Even treating this as a “newly discovered fact,” it
     would have been discovered no later than December 15, 1997.
     The present PCRA petition was filed well outside of the 60 day
     grace period afforded by 42 Pa.[C.S.] § 9545(b)(2). Further,
     [Appellant] has failed to demonstrate that he acted with due
     diligence during . . . more than twenty-five years between his
     conviction and the filing of the instant petition. This failed to
     satisfy his burden.

     . . . [Appellant] claimed that Jackson’s allegations in his
     recantation constitute governmental interference because he
     received preferential treatment on any open cases. Contrary to
     [Appellant’s] assertions in his pro se [p]etition, the affidavit
     provided by Jackson does not indicate that he received any
     preferential treatment on any open cases. Moreover, as stated
     above, this alleged misconduct by the Commonwealth was known
     to [Appellant] no later than December 15, 1997. Once again, the
     petition must “be filed within 60 days of the date the claim could

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      have been presented” in accord with 42 Pa.[C.S.] § 9545(b)(2).
      This claim was not raised within 60 days of the date it could have
      first been presented. As a result, this claim does not satisfy an
      exception pursuant to 42 Pa.[C.S.] §9545 (b)(1)(i). Even if this
      alleged misconduct constituted government interference, it could
      have been presented by December 15, 1997, if not earlier.
      [Appellant’s] failure to raise the claim for over eighteen years after
      discovering the alleged conduct was fatal to his claim.

Id. at 4-5.

      Therefore, we agree with the PCRA court that Appellant has not

established why he could not have raised these exceptions earlier with the

exercise of due diligence. See Marshall, 947 A.2d at 720; Abu-Jamal, 941

A.2d at 1268. Accordingly, the PCRA court properly concluded that it lacked

jurisdiction to consider the merits of Appellant’s claims.     See Brown, 111

A.3d at 175.

      Finally, Appellant’s claim that the PCRA court erred in not granting him

a hearing is also meritless. This Court has held that “[a] petitioner is not

entitled to a PCRA hearing as a matter of right.” Commonwealth v. Smith,

121 A.3d 1049, 1052 (Pa. Super. 2015) (citation omitted). “It is within the

PCRA court’s discretion to decline to hold a hearing.”      Commonwealth v.

Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (citation omitted). “[T]he

PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact and the petitioner is not entitled to post-

conviction collateral relief, and no purpose would be served by any further

proceedings.” Smith, 121 A.3d at 1052 (citation omitted); see Pa.R.Crim.P.

907(2) & cmt. On appeal, we “examine each of the issues raised in the PCRA


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petition in light of the record in order to determine whether the PCRA court

erred in concluding that there were no genuine issues of material fact and in

denying relief without an evidentiary hearing.”     Smith, 121 A.3d at 1052

(citation omitted).

      As stated above, the PCRA court held that the evidence presented by

Appellant was not previously unknown to Appellant, and therefore he did not

meet the section 9545(b)(1)(i) or (ii) timeliness exceptions to the PCRA time

bar. Because we agree with the court’s holding that Appellant’s petition was

not timely filed, Appellant’s claim did not warrant a hearing under Pa.R.Crim.P.

907. See Pa.R.Crim.P. 907; Smith, 121 A.3d at 1052. Therefore, the PCRA

court did not err in dismissing the petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/19




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