J-S82012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NATHANIEL NEGRON

                            Appellant                 No. 11 MDA 2016


                Appeal from the PCRA Order December 1, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001611-2001
                            CP-38-CR-0000329-2002


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                            FILED JANUARY 13, 2017

        Nathaniel Negron appeals pro se1 from the order entered December 1,

2015, in the Court of Common Pleas of Lebanon County, that dismissed, as

untimely, his ostensibly third petition filed pursuant to the Pennsylvania Post

Conviction Act (PCRA),2 following an evidentiary hearing.3 Negron seeks
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*
    Retired Senior Judge assigned to the Superior Court.
1
  On January 12, 2016, the PCRA court granted appointed counsel’s motion
for leave to withdraw from representation, following the filing of a no-merit
letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
    42 Pa.C.S. §§ 9541–9546.
3
  On November 13, 2014, Negron mailed a pro se document to the PCRA
court, which the court treated as a PCRA petition. Appointed counsel filed an
amended petition on March 31, 2015.        Negron has previously filed two
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relief from the judgment of sentence of 40 to 100 years’ imprisonment,

imposed after he pleaded guilty to multiple felonies, including criminal

homicide.4 In this appeal, Negron contends the PCRA judge erred (1) in

determining Negron failed to exercise due diligence, (2) in determining the

witnesses at the PCRA hearing reaffirmed the truth of their statements they

had provided to police, (3) by failing to act as a “Neutral Jurist”5 in deciding

the PCRA petition, (4) in failing to recuse himself from the 2015 PCRA

hearing, (5) in preventing Negron from testifying, (6) by preventing and

disallowing Negron to testify to the following at the PCRA hearing: (a) his

guilty plea, (b) his confession to police, (c) William Diaz’s previous

testimony, (d) Sheena Nunez Garman’s previous testimony, and (e) error of

the 2008 PCRA hearing, and (7) in determining that testimony was

peripheral to the case and would not have been a relevant factor that would
                       _______________________
(Footnote Continued)

unsuccessful PCRA petitions. See Commonwealth v. Negron, 888 A.2d 9
(Pa. Super. 2005) (unpublished memorandum) (affirming denial of first
PCRA petition); see also Commonwealth v. Negron, 976 A.2d 1212 (Pa.
Super. 2009) (unpublished memorandum) (affirming dismissal of second
PCRA petition as untimely). In addition, Negron has filed two motions
labelled as motions for writ of habeas corpus. See Commonwealth v.
Negron, 34 A.3d 217 (Pa. Super. 2011) (affirming denial of motion for writ
of habeas corpus); Trial Court Docket, 4/2/2013 (pro se motion for writ of
habeas corpus) and 4/12/2013 (order denying motion for writ of habeas
corpus).
4
 On appeal, this Court affirmed the judgment of sentence. Commonwealth
v. Negron, 844 A.2d 1286 (Pa. Super. 2003) (unpublished memorandum).
5
    Negron’s Brief at 3 (unnumbered).




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have caused a jury to feel differently about the case.         Based upon the

following, we affirm.

        The PCRA court has aptly set out the facts and procedural history in its

Pa.R.A.P. 1925(a) opinion.         See PCRA Court Opinion, 1/28/2016, at 1–4.

Therefore, we simply add discussion of the testimony presented at the PCRA

hearing.

        Relevant to this appeal, Negron presented the testimony of Kelly and

Elroy Ortiz, wife and husband, who provided Negron with an affidavit in 2014

regarding statements they had given police in connection with Negron’s

case.     See N.T., 12/1/2015, at 4. See also Negron’s Amended PCRA

Petition, 3/31/2015, Exhibit “B.”6 Negron sought to prove after-discovered

evidence that the Ortizes “felt pressured by the police to give a statement

that was essentially pointing at [him].” N.T., 12/1/2015, at 4.

        Kelly Ortiz testified that police came to speak with her about the

incident “regarding Anthony Mingledough … being set on fire,” id. at 8, and

that she gave a statement to police. See id. at 8, 18. She testified she had

known Negron “forever.” Id. at 13. She also testified she saw Negron pour

what she thought was beer into a bottle, explaining that “[w]e were drinking
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6
  The Ortizes’ affidavit was notorized on December 9, 2014. Counsel initially
appointed by the PCRA court failed to file an amended petition on or before
December 31, 2014, as ordered. Subsequently, on February 27, 2015, new
counsel was appointed and filed the amended petition that attached, inter
alia, the Ortizes’ affidavit.




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some beer and that’s what it looked like.” Id. at 11. She gave a statement

to police that she had seen Negron in the area on the night in question. Id.

at 19 (“Well, we were sitting outside together. I did see him that night.”).

      Elroy Ortiz also gave a statement to police.     Id. at 23.   Elroy Ortiz

explained he knew Negron from Negron’s brother, Isaac. Id. at 27. Elroy

Ortiz stated he saw “three people, Nate and some other guy, walk through

an alleyway,” and he saw “some lights flare up.” Id. at 23. Kelly and Elroy

Ortiz both testified that they had not lied to police and that their statements

to police were accurate. See id. at 17, 19–20.

       The Ortizes testified similarly that Negron’s brother, Isaac, had dated

Kelly Ortiz’s sister for over 15 years, id. at 15, 28–29, and Isaac knew

where the Ortizes lived and their phone number. Id. at 16, 29. The Ortizes

saw Isaac “here and there” over the last 15 years. Id. at 15, 29. In 2014,

Isaac approached the Ortizes regarding this case, id. at 16, 25, and they

drafted and signed an affidavit that they had talked to police because

accelerant was found in their trash cans. Id. at 16, 24.

      Negron testified the first time he was aware that the Ortizes had

testimony concerning his case was in 2014, and would not have known

about their testimony before that time. Id. at 36. On cross-examination,

he admitted his brother, Isaac, had dated Kelly Ortiz’s sister. Id. at 38. He

also admitted he and Isaac have known both Kelly and Elroy Ortiz for a long

time, “at least 15 to 20 years,” id. at 38, and that Isaac was still friendly

with the Ortizes and knows where they live and how to get in touch with

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them.     Id. at 39.     Negron testified he and Isaac still talk.     Id.   Negron

admitted he had never asked Isaac to try to talk to the Ortizes about his

case prior to 2014. Id. at 40.        He also admitted “for at least part of the last

15 years [Isaac] was in a relationship with Kelly[ Ortiz’s] sister. Id. at 40.

        The PCRA court concluded, inter alia, that “[t]he PCRA petition was

untimely because it was not pursued in a diligent fashion.”         Id. at 44. See

also Order, 12/1/2015, ¶ 1. This appeal followed.7

        “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”              Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). We will not entertain a

second or subsequent request for PCRA relief unless the petitioner makes a

strong prima facie showing that a miscarriage of justice may have occurred.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267 (Pa. 2008).

Furthermore, “[t]he 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.” Id. at 1267–1268.




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7
  Negron timely complied with the PCRA court’s order to file a Pa.R.A.P.
1925(b) statement.




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     Negron does not dispute that his present PCRA petition is facially

untimely.   However, Negron argues he pleaded and proved a statutory

exception to the PCRA’s time-bar.     See 42 Pa.C.S. § 9454(b)(1)(i)-(iii).

Specifically, Negron maintains he has satisfied the exception set forth at 42

Pa.C.S. § 9545(b)(1)(ii). This exception requires a petitioner to plead and

prove “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[.]” Id. In addition, any petition invoking a PCRA exception must

“be filed within 60 days of the date the claim could have been presented.”

42 Pa.C.S. § 9545(b)(2).

     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. Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d
     1264, 1270-72 (Pa. 2007). We have unequivocally explained
     that “the exception set forth in subsection (b)(1)(ii) does not
     require any merits analysis of the underlying claim.”
     Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263,
     1268 (Pa. 2008). 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.” Bennett,
     930 A.2d at 1270; see also Commonwealth v. Breakiron, 566
     Pa. 323, 781 A.2d 94, 98 (Pa. 2001) (rejecting attempt to invoke
     section 9545(b)(1)(ii) because appellant failed to offer any
     evidence that he exercised due diligence in obtaining facts upon
     which his claim was based).

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016).

     Our review of the record confirms the PCRA court’s determination that

the testimony presented by Negron at the PCRA hearing fails to satisfy 42



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Pa.C.S. § 9545(b)(1)(ii). We agree with the PCRA court “there is no reason

[Negron] could not have presented the evidence years earlier.” PCRA Court

Opinion, 1/28/2016, at 5.

       With regard to Section 9545(b)(1)(ii), “[d]ue diligence demands that

the   petitioner   take    reasonable     steps to   protect his    own interests.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citation

omitted), appeal denied, 125 A.3d 1197 (Pa. 2015).               “A petitioner must

explain why he could not have learned the new fact(s) earlier with the

exercise of due diligence.” Id.          (citations omitted).   “This rule is strictly

enforced.” Id. (citation omitted). Here, Negron offers no explanation as to

what efforts he made, or why he did not ask his brother, Isaac, about the

Ortizes before 2014.          Accordingly, Negron failed to demonstrate due

diligence and, therefore, failed to meet the exception set forth at Section

9545(b)(1)(ii). Cf. Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa.

2007). Because Negron failed to satisfy any statutory exception to the PCRA

timeliness requirement, the PCRA court correctly concluded the petition was

untimely.8
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8
  Because Negron’s PCRA petition was untimely, the PCRA court lacked
jurisdiction to address the merits of Negron’s substantive claim.     See
Brown, supra, 111 A.3d at 178 (“Absent proper jurisdiction, the PCRA court
lacked authority to address the substantive merits of Appellant’s after-
discovered-evidence claim.”).   Therefore, we do not address Negron’s
second issue raised in this appeal, namely, that the PCRA court erred “in
determining the witnesses at the PCRA hearing reaffirmed the
veracity/truthfulness of the information they had provided to police.”
(Footnote Continued Next Page)


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      In the third issue raised in this appeal, Negron claims the PCRA court

failed to act as a “Neutral Jurist.”             Negron’s Brief at 3 (unnumbered).

However, this assertion has no support in the record, and no further

discussion is warranted on this issue. Further, with regard to the fourth

issue, whether Judge Charles erred in failing to recuse himself, “[i]t is well-

settled that a party seeking recusal or disqualification must raise the

objection at the earliest possible moment or that party will suffer the

consequence of being time barred.” Commonwealth v. Pappas, 845 A.2d

829, 846 (Pa. Super. 2004) (citations omitted). There is no indication in the

record that Negron sought recusal before the PCRA court at any point and,

thus, this issue is waived. Id.

      Accordingly, we affirm the PCRA court’s order of dismissal.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2017
                       _______________________
(Footnote Continued)

Negron’s Brief, at 2 (unnumbered). For the same reason, we will not
address the last three issues raised by Negron as those issues also relate to
the substantive merits of his claim.



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