J-S08011-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
PRESTON PIAZZA,                          :
                                         :
                  Appellant              : No. 1378 EDA 2014

                Appeal from the PCRA Order March 17, 2014,
                   Court of Common Pleas, Bucks County,
             Criminal Division at No(s): CP-09-CR-0002897-2004
                        and CP-09-CR-0005932-2004

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED MARCH 02, 2015

      Preston Piazza (“Piazza”) appeals from the March 17, 2014 order

entered by the Bucks County Court of Common Pleas dismissing his third

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546 (“PCRA”), as untimely. Upon review, we affirm.

      We need not repeat the horrific details underlying Piazza’s convictions

to decide this appeal.   The trial court summarized the relevant procedural

history of this case as follows:

               On February 29, 2004, [Piazza] was charged with
            [r]ape, [involuntary deviate sexual intercourse],
            [s]exual [a]ssault, [s]imple [a]ssault and [i]ndecent
            [a]ssault in Criminal Information 2897-2004. On
            August 13, 2004, [Piazza] was charged with
            [t]erroristic [t]hreats in Criminal Information 5932-
            2004. On August 23, 2004, the Commonwealth filed
            a Petition to Consolidate the above mentioned cases.
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          The Commonwealth’s Petition to Consolidate was
          granted on September 7, 2004.

             [Piazza]’s case was tried before a jury on October
          27, 2004. On November 1, 2004, following a four[-
          ]day jury trial, the jury returned a verdict of guilty
          for all of the above charges. On May 5, 2005,
          [Piazza] was sentenced to an aggregate sentence of
          not less than fifteen years to no more than thirty
          years in prison.

              On March 8, 2006, [Piazza] filed his first motion
          for post-conviction relief under the [PCRA]. [Piazza]’s
          counsel filed an amended PCRA petition on May 30,
          2008. This petition raised various claims of
          ineffective assistance of counsel[,] including a claim
          that one of the jurors, Brenda Alexander, knew
          [Piazza] and his family. On June 10, 2008, a hearing
          was held before the Honorable Mitchell S. Goldberg
          at which [Piazza] specifically withdrew the claim
          regarding juror Brenda Alexander. Following the
          hearing, the remaining claims of [Piazza]’s first PCRA
          petition were denied. [Piazza] thereafter filed an
          appeal to the Superior Court of Pennsylvania. The
          Superior Court affirmed the denial of [Piazza]’s PCRA
          petition on December 3, 2009. A petition for
          allowance of appeal was denied by the Pennsylvania
          Supreme Court on May 27, 2010.

             On June 25, 2010, [Piazza] filed a second PCRA
          petition pro se. In this second petition, [Piazza]
          claimed juror misconduct, again alleging that juror
          Brenda Alexander knew [Piazza] and his family. He
          also claimed ineffectiveness of trial counsel
          surrounding the failure to challenge this juror and a
          claim that the [c]omplainant had recanted her
          testimony. On July 15, 2010, this [c]ourt issued a
          notice of intent to dismiss the petition pursuant to
          Pennsylvania Rule of Criminal Procedure 907, finding
          that the claims were waived or previously litigated.
          On August 17, 2010, this [c]ourt issued an [o]rder
          denying [Piazza]’s second PCRA petition without a
          hearing. No appeal was taken of that denial.



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              In October 2010, [Piazza] was charged on a new
          case in this [c]ourt, Case Number 6421 of 2010. The
          charges included: intimidation of a witness, the
          witness being the [c]omplainant [in the original rape
          case]; retaliation against a witness; solicitation to
          commit aggravated assault; and other related
          charges. The facts in this case were based on
          allegations that [Piazza] attempted to compel the
          [c]omplainant [to] recant[]her allegations sometime
          between October 2009 and January 2010, prior to
          the filing of his second PCRA. [Piazza] was convicted
          by a jury on those counts and thereafter sentenced
          to 23 1/2 to 43 years consecutive to the sentences
          he is serving in the case at hand.

             On January 11, 2011 while Case Number 6421 of
          2010 was pending, [Piazza] filed a third PCRA
          petition, the denial of which is the basis of the
          instant appeal. In this petition, [Piazza] claimed
          ineffective assistance of counsel for failure to
          conduct a proper voir dire. Again, [Piazza] argued
          that juror Brenda Alexander had prior knowledge of
          [Piazza] and his family. [Piazza] also claimed that
          another, juror, prospective juror # 38, should have
          been stricken for cause for allegedly being biased
          based on knowledge of the case prior to trial.
          Further, [Piazza] claimed ineffective assistance of
          counsel for failure to move for a change of venue
          based on pre-trial publicity. Finally, [Piazza] argued
          newly[]discovered evidence, an affidavit by an
          individual named Renee Cereby dated December 16,
          2010, stating that juror Brenda Alexander discussed
          the case at her hair salon in 2004 while the trial was
          in progress. The affidavit claims Brenda Alexander
          stated that she knew the [Piazza] and his family
          prior to the trial, and that there were rumors that
          [the c]omplainant was lying about the charges.

             On May 2, 2011, this [c]ourt issued a notice of
          intent to dismiss the petition pursuant to
          Pennsylvania Rule of Criminal Procedure 907.
          [Piazza] filed a response thereto on May 20, 2011.



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           On June 24, 2011, the Bucks County District
           Attorney’s Office (hereinafter “District Attorney”)
           filed a Motion to Dismiss PCRA Petition arguing the
           petition was time-barred. On February 4, 2012, the
           District Attorney filed a second Motion to Dismiss
           PCRA Petition for lack of jurisdiction as time-barred.
           On February 27, 2012, this [c]ourt issued an [o]rder
           denying [Piazza]’s third PCRA petition. On March 8,
           2012, [Piazza] filed a Motion to Reconsider and
           Vacate the February 27, 2012 [o]rder. On March 13,
           2012, this [c]ourt vacated the [o]rder. Thereafter,
           on March 23, 2012, [Piazza] filed a response to the
           District Attorney’s second Motion to Dismiss PCRA
           Petition. On May 29, 2012, the District Attorney filed
           a reply to [Piazza]’s response. A hearing was held on
           August 2, 2012, and briefs [were] subsequently filed
           by the District Attorney and [Piazza]. On March 17,
           2014, this [c]ourt denied [Piazza]’s third PCRA
           petition.

PCRA Court Opinion, 6/20/14, at 2-5 (internal citation omitted).

     Piazza filed a timely notice of appeal and complied with the PCRA

court’s order for a concise statement of errors complained of on appeal

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.

Thereafter, the PCRA court issued a responsive opinion pursuant to Pa.R.A.P.

1925(a).

     On appeal, Piazza raises the following issues for our review:

        (1) Whether the [PCRA] court erred in denying [Piazza]’s
            [t]hird [PCRA petition] as being time barred, when
            there    was   an    exception[,]  newly-discovered
            evidence[,] that applied?[]

        (2) Whether the [PCRA] court incorrectly found that the
            exception of newly discovered evidence did not apply
            to the present case?[]




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        (3) Whether [Piazza]’s [t]hird [PCRA petition] was filed
            within 60 days of the time [Piazza] learn[ed] of the
            newly discovered evidence?[]

Piazza’s Brief at 4.

      We review a PCRA court’s decision to determine whether the record

supports it and to ensure it is free of legal error.     Commonwealth v.

Hackett, 99 A.3d 11, 50 (Pa. 2014). “We cannot disturb the factual findings

of the PCRA court, which hears evidence and passes on the credibility of

witnesses, if they are supported by the record, even where the record could

support contrary findings.”   Id. (citation omitted). Our scope of review is

limited to the PCRA court’s findings and the evidence presented at the PCRA

hearing, which we view in the light most favorable to the prevailing party.

Id. at 50-51.

      As stated above, the PCRA court found Piazza’s petition untimely. The

PCRA requires a petitioner to file a PCRA petition within one year of the date

the judgment became final.       42 Pa.C.S.A. § 9545(b)(1).        “The PCRA

timeliness requirement … is mandatory and jurisdictional in nature. The

court cannot ignore a petition’s untimeliness and reach the merits of the

petition.”   Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013)

(citations omitted). “[A] judgment becomes 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.A. § 9545(b)(3).



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      It is uncontested that Piazza’s third PCRA petition is facially untimely.

As Piazza did not file a direct appeal from his judgment of sentence, it

became final on June 6, 2005.1 See Pa.R.A.P. 903(a) (requiring a notice of

appeal from the trial court to the Superior Court to be filed within thirty days

of the entry of the complained of order). He filed the instant PCRA petition

on January 11, 2011, five and a half years later and well beyond the one-

year filing requirement. See 42 Pa.C.S.A. § 9545(b)(1).

      Section   9545(b)(1)   provides   three   statutory   exceptions   to   the

timeliness provisions that allow for very limited circumstances under which

the late filing of a PCRA petition will be excused:

            (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.



1
  The thirtieth day was June 4, 2005, which was a Saturday, and thus we
extend the filing time to the following Monday, June 6, 2005. See 1
Pa.C.S.A. § 1908 (“Whenever the last day of any such period shall fall on
Saturday or Sunday, or on any day made a legal holiday by the laws of this
Commonwealth or of the United States, such day shall be omitted from the
computation.”).


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42 Pa.C.S.A. § 9545(b)(1). “Any petition invoking an exception provided in

paragraph (1) shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2). It is the petitioner’s burden to

plead and prove, by a preponderance of the evidence, that his facially

untimely petition falls under one of the three timeliness exceptions; that he

filed it within sixty days of the date it could have been presented; and that

the information could not have been obtained earlier. Commonwealth v.

Williams, __ A.3d __, 2014 WL 7102767, at *4 (Pa. Dec. 15, 2014);

Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014), cert. denied sub

nom., Ali v. Pennsylvania, 135 S. Ct. 707 (U.S. 2014).

      Piazza attempted to invoke the exception contained in section

9545(b)(1)(ii), commonly known as the newly discovered fact exception to

the PCRA’s timeliness requirement. Specifically, he presented the December

16, 2010 affidavit of Renee Cereby (“Cereby”) indicating that in the fall of

2004, presumably during Piazza’s rape trial, Cereby overheard Brenda

Alexander discuss the case with her hair salon patrons and admit that she

knew Piazza and the complainant and had heard rumors that the

complainant was lying about the rape. PCRA Petition, 1/11/11, at Exhibit A;

Piazza’s Brief at 10-11.

      The PCRA court provided several reasons for its dismissal of Piazza’s

third PCRA petition. We focus on the PCRA court’s conclusions that Piazza

failed to satisfy his burden of proof that he filed the PCRA petition within



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sixty days of learning from Cereby that Brenda Alexander made the

statements she allegedly made and that the information contained in the

affidavit is not in fact new. PCRA Court Opinion, 6/20/14, at 9-10.

      We begin with the PCRA court’s finding that the affidavit did not

disclose any new information. In his brief on appeal, Piazza states that the

affidavit does reveal new information because it “show[s] that Ms. Alexander

lied during voir dire regarding whether she knew the victim and [Piazza].”

Piazza’s Brief at 13.    The record reflects, however, that Piazza was well

aware of this information long before the filing of his third PCRA petition. In

his first amended PCRA petition, filed on May 29, 2008, Piazza included a

claim of ineffective assistance of trial counsel “for failing to move for a

mistrial when trial counsel was apprised that one of the jurors, Brenda

Alexander, had known the defendant for several years and was not a

fair and impartial juror.”      Amended PCRA Petition, 5/29/08, ¶ 18(d)

(emphasis added).     Again, in his second PCRA petition, Piazza alleged the

following:

             Juror number 4[,] a Ms. Brenda Alexander, whom
             I’ve known [for] years and my family has
             known for years as well as her brother, Jeff
             Alexander, we have had very negative dealings with.
             It all started with a car, bicycle accident involving
             her red GM sports car and has escalated ever since.
             I notified trial counsel but he refused to act upon the
             information.




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PCRA Petition, 6/25/10, ¶ 5 (emphasis added). Thus, the fact that Brenda

Alexander and Piazza knew each other was not previously unknown to

Piazza.      Furthermore, it is clearly of record that Brenda Alexander did not

inform the trial court during voir dire that she knew Piazza.          See N.T.,

10/27/04, at 47-49. Thus, the information revealed to Piazza by Cereby and

contained in the affidavit does not qualify under the newly discovered fact

exception      to   the   PCRA’s   timeliness   requirements.   42   Pa.C.S.A.   §

9545(b)(1)(ii).

      Moreover, even if the information contained in the affidavit could be

viewed as “new,” the record reflects that neither Piazza’s PCRA petition nor

Cereby’s affidavit indicate precisely when Piazza became aware of the

statements alleged to have been made by Brenda Alexander. At the PCRA

hearing, Piazza testified that he first learned about Brenda Alexander’s

statements when Cereby came to visit him, which he believed occurred in

“2011, sometime.”          N.T., 8/2/12, at 13.      After learning that Cereby’s

affidavit was dated December 16, 2010, he agreed that it was “about the

time” she came to visit him, as she did not author the affidavit until after

she visited. Id. at 14-15.

      Cereby was able to provide a somewhat more concise timeline, but she

was unable to recall when she made Piazza aware of the information in her

affidavit.    She testified that she saw Piazza’s picture in the newspaper in

connection with his witness intimidation charges (which arose in October of



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2010), and immediately wrote him a letter. Id. at 30. Piazza then called

Cereby, at which time she testified she told Piazza about the statements

Brenda Alexander allegedly made in the fall of 2004. Id. at 30-31. At his

request, she wrote the story down, had it notarized, and sent it to him. Id.

at 31-32. Contrary to Piazza’s testimony, she testified that she did not see

him in person until the trial on his second set of charges (which occurred in

2012).

       In his brief on appeal, Piazza states only that “Cereby came forward

with the new information and presented it to [Piazza] about the same time

she signed the affidavit.” Piazza’s Brief at 15. As stated above, however,

Piazza had the burden of proving by a preponderance of the evidence that

his facially untimely PCRA petition was filed within sixty days of the date he

could have presented the claim – here, within sixty days of learning the

allegedly newly discovered fact. See Williams, 2014 WL 7102767, at *4;

Ali, 86 A.3d 173, 178. We therefore agree with the PCRA court that Piazza

failed to satisfy his burden of proving that his third PCRA petition, filed on

January 11, 2011, was filed within sixty days of him learning of the

statements allegedly made by Brenda Alexander. As such, he is not entitled

to relief.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/2/2015




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