J-S24018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES F. SINKOVITZ,                      :
                                          :
                    Appellant             :   No. 1954 MDA 2017


              Appeal from the PCRA Order, December 4, 2017,
             in the Court of Common Pleas of Dauphin County,
            Criminal Division at No(s): CP-22-CR-0000808-2009.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED JUNE 13, 2018

      James F. Sinkovitz appeals pro se from the order denying as untimely

his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      The pertinent facts and procedural history are as follows: On January

26, 2009, police arrested Sinkovitz and charged him with criminal homicide.

On November 19, 2009, a jury convicted him of first-degree murder.          On

November 23, 2009, the trial court sentenced Sinkovitz to life in prison.

Following the denial of his post-sentence motion, Sinkovitz filed a timely

appeal to this Court. In an unpublished memorandum filed on February 8,

2011, a panel of this Court affirmed Sinkovitz’s judgment of sentence, and our

Supreme Court denied his petition for allowance of appeal on September 28,
J-S24018-18



2011. Commonwealth v. Sinkovitz, 24 A.3d 448 (Pa. Super. 2011), appeal

denied, 30 A.3d 488 (Pa. 2011).

      Sinkovitz filed a timely pro se PCRA petition, and the PCRA court

appointed counsel. Thereafter, PCRA counsel filed a motion to withdraw and

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). On December 23, 2013, the PCRA court granted PCRA counsel’s motion

to withdraw, and issued notice of its intent to dismiss Sinkovitz’s petition

without a hearing pursuant to Pa.R.Crim.P. 907. Sinkovitz filed a response.

By order entered February 24, 2014, the PCRA court dismissed Sinkovitz’s

PCRA petition.

      Sinkovitz filed a pro se appeal to this Court. Although a panel of this

Court found Sinkovitz’s supporting argument as to these claims largely

unintelligible, it nevertheless cited and agreed with the PCRA court’s

disposition when affirming its order denying post-conviction relief.      See

Commonwealth v. Sinkovitz, 120 A.3d 1050 (Pa. 2015) (unpublished

memorandum).

      Sinkovitz filed a pro se “Motion to Hear Newly Discovered Evidence” on

November 3, 2017. Properly treating this filing as a second PCRA petition, the

PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Sinkovitz’s

second PCRA petition as untimely filed. Sinkovitz filed a pro se response. By

order entered December 4, 2017, the PCRA court denied the petition. This




                                    -2-
J-S24018-18



appeal follows.      Both Sinkovitz and the PCRA court have complied with

Pa.R.A.P. 1925.

        Sinkovitz raises multiple issues on appeal. See Sinkovitz’s Brief at 3-5.

Before discussing these issues, we must first determine whether the PCRA

court correctly concluded that Sinkovitz’s second petition for post-conviction

relief was untimely filed. This Court’s standard of review regarding an order

dismissing a petition under the PCRA is to determine whether the PCRA court’s

conclusion is supported by the evidence of record and is free of legal error.

The PCRA court’s factual 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 omitted).

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. “A PCRA petition



____________________________________________


1   The exceptions to the timeliness requirement are:

        (I) the failure to raise the claim previously was the result of
        interference of 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.




                                           -3-
J-S24018-18


invoking one of these statutory exceptions must be filed within sixty days of

the date the claims could have been presented.”              Commonwealth v.

Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013); see also 42 Pa.C.S.A.

§ 9545(b)(2). Asserted exceptions to the time restrictions for a PCRA petition

must be included in the petition, and may not be raised for the first time on

appeal. Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa. Super. 2016).

       Because he did not seek further review following the denial of his

petition for allowance of appeal by our Supreme Court on September 28,

2011, Sinkovitz’s judgment of sentence became final on December 27, 2011,

when the ninety-day time period for filing a writ of certiorari with the United

States Supreme Court expired.            See 42 Pa.C.S.A. § 9545(b)(3).         Thus,

Sinkovitz had until December 27, 2012, to file a timely PCRA petition. As he

filed the instant petition in 2017, it is patently untimely unless Sinkovitz has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.



____________________________________________


       (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), (ii), and (iii).


                                           -4-
J-S24018-18


       Within his brief, Sinkovitz avers that he received “the criminal

backgrounds of [the victim] and Mr. David Petrie” on October 22, 2017, and

filed his second PCRA within sixty days of their receipt. Sinkovitz’s Brief at

16. He argues, “it is [his] intention . . . to seek relief through the use of this

information. This information should have been made available in discovery,

pretrial.” Id.   According to Sinkovitz, “[t]his information was vital to [his]

defense, to establish the witness [sic] credibility on cross examination.”

Motion, 11/3/17, at 2.

       When considering a PCRA’s petitioner’s claim that he or she has

established an exception to the PCRA’s time bar under section 9545(b)(1)(ii),

the petitioner must establish only that the facts upon which the claim are

predicated were unknown to him, and that he could not have ascertained the

facts earlier despite the exercise of due diligence.2       Commonwealth v.

Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007).               The determination of

timeliness does not require a merits analysis.       Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

       The PCRA court first found that Sinkovitz failed to establish the newly

discovered evidence exception because:


____________________________________________


2 Although Sinkovitz also cited to 42 Pa.C.S.A, section 9545(b)(1)(i) in his
2017 motion, he has not presented any argument regarding the governmental
interference exception to the PCRA’s time bar. As such, this argument is
waived. In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012).



                                           -5-
J-S24018-18


         A witness’ criminal record is a matter of public record and
         cannot be “unknown” for purposes of the newly discovered
         evidence exception.      Additionally, [Sinkovitz] failed to
         explain why he did not know those facts early and why he
         could not have learned of those facts earlier by the exercise
         of due diligence (i.e. why he could not have obtained [the
         victim’s] criminal record in a timely fashion).

PCRA Court Opinion, 11/14/17, at 4.

      Sinkovitz correctly asserts that, for purposes of newly-discovered time-

bar exception, the presumption that information which is of public record

cannot be deemed “unknown” does not apply to pro se, incarcerated prisoners

like him. See generally, Commonwealth v. Burton, 158 A.3d 618 (Pa.

2017). However, the PCRA court also concluded that, even if Sinkowitz could

satisfy the newly discovered exception to the PCRA’s time bar, he did not

establish that the discovery of these prison records would entitle him to post-

conviction relief in the form of a new trial. We agree.

      A petitioner is eligible for relief under the PCRA if he or she can establish

the “unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). This Court has

explained the test to be applied to such a claim as follows:

            To obtain relief based on after-discovered evidence, an
         appellant must demonstrate that the evidence: (1) could
         not have been obtained prior to the conclusion of trial by the
         exercise of reasonable due diligence; (2) is not merely
         corroborative or cumulative; (3) will not be used solely to
         impeach the credibility of a witness; and (4) would likely
         result in a different verdict if a new trial were granted.



                                      -6-
J-S24018-18



Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation

omitted).     “The test is conjunctive; the appellant must show by a

preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.” Id. Moreover, “when reviewing the

decision to grant or deny a new trial on the basis of after-discovered evidence,

an appellate court is to determine whether the PCRA court committed an

abuse of discretion or error of law that controlled the outcome of the case.”

Id.

        Here, neither of the prior criminal records at issue survive the Foreman

test.    As to the victim, at the beginning of Sinkovitz’s trial, the parties

discussed evidence of the victim’s violent propensities being introduced

through trial testimony.     N.T., 11/16/09, at 5-10.    At that time, defense

counsel requested the victim’s criminal history, and the court directed the

Commonwealth to comply. Id. at 17-18. Ultimately, defense counsel was

able to put in evidence the volatile relationship the victim had with his wife,

which culminated in a 2008 PFA prohibiting him from entering onto the

property where the shooting occurred. See N.T., 11/18/09, at 522-36. Given

these circumstances, Sinkovitz cannot establish that further use of the victim’s

criminal record “would likely result in a different verdict if a new trial were

granted.” Foreman, 55 A.3d at 537.

        As to Petrie, even without reference to his criminal record, defense

counsel challenged Petrie’s credibility through questions regarding his mental

health and inconsistencies between his trial testimony and his prior

                                      -7-
J-S24018-18



statements to police. See N.T., 11/17/19, at 305-349. Thus, evidence of

Petrie’s criminal record, if properly admissible as crimen falsi, would have only

been used for impeachment purposes, thereby failing the Foreman test.

      In sum, the PCRA court correctly concluded that Sinkovitz’s “after-

discovered evidence” does not entitle him to post-conviction relief in the form

of a new trial. We therefore affirm the PCRA court’s order denying his PCRA

petition.

      Order affirmed.


      Judge Musmanno joins.

      Judge Olson concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/13/2018




                                       -8-
