J-S78046-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

DAYMOND SWARTZ

                            Appellant                      No. 585 MDA 2014


                  Appeal from the PCRA Order March 5, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000331-2004


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                               FILED APRIL 09, 2015

        Appellant, Daymond Swartz, appeals from the order entered in the

York County Court of Common Pleas, which dismissed his second petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On June 7, 2002, Deena Cunningham and Patrick Hatzinikolas (“Victims”)

left the End Zone Bar and entered their vehicle. As Victims backed out of

the parking spot, shots fired into the vehicle killed Ms. Cunningham and

seriously injured Mr. Hatzinikolas.            The Commonwealth charged Appellant

and three co-defendants in connection with the shooting. On May 3, 2004,


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
J-S78046-14


Appellant and his co-defendants proceeded to a jury trial.2          The jury

convicted Appellant on May 7, 2004, of voluntary manslaughter, involuntary

manslaughter, and aggravated assault. The court sentenced Appellant to an

aggregate term of twenty (20) to forty (40) years’ imprisonment on July 19,

2004.     On August 25, 2005, this Court affirmed Appellant’s judgment of

sentence, and the Pennsylvania Supreme Court denied allowance of appeal

on December 27, 2005.           See Commonwealth v. Swartz, 885 A.2d 586

(Pa.Super. 2005), appeal denied, 586 Pa. 738, 891 A.2d 732 (2005).

        On May 11, 2006, Appellant timely filed a pro se PCRA petition. The

court appointed counsel, who subsequently filed an amended petition on

February 15, 2007.        Following a hearing, the court denied PCRA relief on

February 22, 2007.          This Court affirmed the denial of PCRA relief on

September 9, 2008, and our Supreme Court denied allowance of appeal on

February 27, 2009.          See Commonwealth v. Swartz, 963 A.2d 574

(Pa.Super. 2008), appeal denied, 600 Pa. 755, 966 A.2d 571 (2009).

        On June 25, 2013, Appellant filed the current petition for PCRA relief

(his second). In his petition, Appellant alleged that, on March 1, 2013, Dio

Garcia gave a statement to police that Wilfredo Rodriguez (a Commonwealth

witness at Appellant’s trial) had admitted to Mr. Garcia that Mr. Rodriguez

____________________________________________


2
 The Commonwealth initially tried one of Appellant’s co-defendants, Antonio
Stauffer, separately. Following a mistrial, the Commonwealth tried Mr.
Stauffer along with Appellant and the other co-defendants.



                                           -2-
J-S78046-14


was the shooter in the End Zone Bar homicide. Appellant further claimed his

counsel became aware of Mr. Garcia’s statement by way of counsel for one

of Appellant’s co-defendant’s (co-defendant Greg Lee) on or about May 28,

2013; and Appellant’s counsel disclosed this information to Appellant on May

29, 2013.3 Appellant attached as exhibits to his PCRA petition, inter alia, Mr.

Garcia’s March 1, 2013 transcribed statement to police. Two of Appellant’s

co-defendants (Mr. Lee and Mr. Stauffer) filed similar petitions based on Mr.

Garcia’s statement to police on March 1, 2013. The court held a hearing on

all three petitions on September 23, 2013.

       By order dated March 5, 2014, the court denied PCRA relief. Appellant

timely filed a notice of appeal on April 1, 2014. On April 2, 2014, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).            Appellant timely filed his Rule

1925(b) statement on April 23, 2014.

       Appellant raises the following issue for our review:

          WHETHER THE [PCRA] COURT ERRED WHEN IT DENIED
          THE PETITION FOR PCRA RELIEF BASED ON THE
          EXCULPATORY EVIDENCE NOT AVAILABLE AT THE TIME OF
          TRIAL BUT SUBSEQUENTLY BECAME AVAILABLE, THAT
          BEING THE STATEMENT MADE BY DIO GARCIA TO
          DETECTIVE SPENCE ON OR ABOUT MARCH 1, 2013?

____________________________________________


3
  Appellant maintained that co-defendant Lee’s counsel received a copy of
Mr. Garcia’s statement from police on or about April 9, 2013, but that
Appellant’s counsel did not receive a copy of the statement from co-
defendant Lee’s counsel until May 29, 2013.



                                           -3-
J-S78046-14


              A.   WHETHER THE [PCRA] COURT ERRED WHEN IT
              FOUND THAT DIO GARCIA’S STATEMENT WAS
              INADMISSIBLE HEARSAY AND NOT SUPPORTED BY
              CORROBORATING CIRCUMSTANCES THAT INDICATE
              ITS TRUSTWORTHINESS?

              B.  WHETHER THE [PCRA] COURT ERRED WHEN IT
              FOUND DIO GARCIA’S STATEMENT UNRELIABLE?

              C.   WHETHER THE [PCRA] COURT ERRED WHEN IT
              FOUND THAT DIO GARCIA WAS NOT CREDIBLE AND
              THAT HIS TESTIMONY WOULD NOT HAVE CHANGED
              THE OUTCOME OF TRIAL?

(Appellant’s Brief at 5).

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

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29

A.3d 795 (2011). This Court grants great deference to the findings of the

PCRA court if the certified record contains any support for those findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,

593 Pa. 754, 932 A.2d 74 (2007).           If the record supports a PCRA court’s

credibility   determination,    it   is    binding   on   the   appellate   court.

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).

      As a prefatory matter, the timeliness of a PCRA petition is a

jurisdictional requisite.      Commonwealth v. Robinson, 12 A.3d 477

(Pa.Super. 2011).      A PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment


                                          -4-
J-S78046-14


becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.   42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

         (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).    Additionally, a PCRA petitioner must

present his claimed exception within sixty days of the date the claim first

could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a

PCRA petition is not filed within one year of the expiration of direct review,

or not eligible for one of the three limited exceptions, or entitled to one of


                                      -5-
J-S78046-14


the exceptions, but not filed within 60 days of the date that the claim could

have been first brought, the [PCRA] court has no power to address the

substantive merits of a petitioner’s PCRA claims.”       Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      The timeliness exception set forth in Section 9545(b)(1)(ii) requires a

petitioner to demonstrate he did not know the facts upon which he based his

petition and could not have learned those facts earlier by the exercise of due

diligence.   Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264

(2007). Due diligence demands that the petitioner take reasonable steps to

protect his own interests.     Commonwealth v. Carr, 768 A.2d 1164

(Pa.Super. 2001). A petitioner must explain why he could not have learned

the new fact(s) earlier with the exercise of due diligence. Commonwealth

v. Breakiron, 566 Pa. 323, 781 A.2d 94 (2001).           This rule is strictly

enforced.    Commonwealth v. Monaco, 996 A.2d 1076 (Pa.Super 2010),

appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). 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.”     Commonwealth v.

Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720 (2008) (internal citations

omitted) (emphasis in original).

      Significantly, a claim based on inadmissible hearsay does not satisfy

the “new facts” exception.   Commonwealth v. Abu-Jamal, 596 Pa. 219,

941 A.2d 1263 (2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172


                                    -6-
J-S78046-14


L.Ed.2d 201 (2008). In Abu-Jamal, the petitioner filed a facially untimely

PCRA petition attempting to invoke the “new facts” exception to the PCRA’s

time-bar. In his petition, the petitioner alleged, inter alia, he received new

evidence that Priscilla Durham, a key Commonwealth witness at trial, had

recanted her trial testimony implicating the petitioner in the crimes charged.

In support of this allegation, the petitioner presented a declaration by

Kenneth Pate, one of the petitioner’s fellow inmates, stating Mr. Pate had a

phone conversation with Ms. Durham, during which she admitted police had

directed her to testify she heard the petitioner confess to the crimes

charged, though it was untrue.          The PCRA court dismissed the petition as

untimely, and the petitioner appealed to our Supreme Court.4 Our Supreme

Court explained, in relevant part:

          [The petitioner] offers no explanation as to why [Mr.] Pate,
          who asserted he was aware of [Ms.] Durham’s alleged
          perjury in 1984, did not come forward with this
          information until nearly 20 years later. Thus, we cannot
          say [the petitioner] raised his issues regarding the
          applicability of [Section 9545(b)(1)(ii)] in a timely
          manner….

                                       *       *   *

          [Mr.] Pate’s testimony regarding [Ms.] Durham’s alleged
          perjury [also] does not meet § 9545(b)(1)(ii)’s exception

____________________________________________


4
  The petitioner was entitled to appeal directly to the Supreme Court
because he was sentenced to death for his crimes. See 42 Pa.C.S.A. §
9546(d) (stating final order by PCRA court in case in which death penalty
has been imposed shall be directly appealable only to Supreme Court).



                                           -7-
J-S78046-14


          because a claim based on inadmissible hearsay does not
          implicate this exception. Because [Mr.] Pate’s testimony
          concerned an out-of-court statement by [Ms.] Durham
          relied upon for its truth, it was hearsay. See Pa.R.E.
          801(c) (hearsay is statement, other than one made by
          declarant while testifying at trial, offered in evidence to
          prove truth of matter asserted). [The petitioner] contends
          [Ms.] Durham’s statement to [Mr.] Pate was a statement
          against interest and is admissible under the hearsay
          exception in Pa.R.E. 804(b)(3).[5]        However, for this
          exception to apply, the declarant must be unavailable as a
          witness, see Pa.R.E. 804(b),[6] and [the petitioner] offers
          no proof [Ms.] Durham is not available. Therefore, [Mr.]
          Pate’s declaration was inadmissible hearsay and does not
          fall under § 9545(b)(1)(ii)’s timeliness exception.




____________________________________________


5
   See Pa.R.E. 804(b)(3) (explaining “statement against interest” hearsay
exception is statement that: (A) reasonable person in declarant’s position
would have made only if person believed it to be true because, when made,
it was so contrary to declarant’s proprietary or pecuniary interest or had
such great tendency to invalidate declarant’s claim against someone else or
to expose declarant to civil or criminal liability; and (B) is supported by
corroborating circumstances that clearly indicate its trustworthiness, if
offered in criminal case as one that tends to expose declarant to criminal
liability).
6
  See Pa.R.E. 804(a) (stating declarant is considered unavailable as witness
if declarant is exempted from testifying about subject matter of declarant’s
statement because privilege applies; declarant refuses to testify about
subject matter despite court order to do so; declarant testifies to not
remembering subject matter; declarant cannot be present or testify at trial
or hearing because of death or then-existing infirmity, physical illness, or
mental illness; or declarant is absent from trial or hearing and statement’s
proponent has not been able, by process or other reasonable means, to
procure declarant’s attendance or testimony); Pa.R.E. 804(b)(3) (explaining
“statement against interest” hearsay exception applies only if declarant is
unavailable as witness).



                                           -8-
J-S78046-14


Id. at 229-30, 941 A.2d at 1269-70 (some internal citations omitted). Thus,

the Supreme Court affirmed the order dismissing the petition as untimely.

Id. at 231, 941 A.2d at 1270.

      Instantly, the court sentenced Appellant on July 19, 2004.            Our

Supreme Court denied allowance of appeal on December 27, 2005.

Appellant’s judgment of sentence became final on March 27, 2005, upon

expiration of the time to file a petition for writ of certiorari with the United

States Supreme Court.     See U.S.Sup.Ct.R. 13.      Thus, Appellant’s current

petition, filed on June 25, 2013, is patently untimely.    See 42 Pa.C.S.A. §

9545(b)(1).   Nevertheless, Appellant attempts to invoke the “new facts”

exception at Section 9545(b)(1)(ii), claiming Mr. Garcia gave a statement to

police on March 1, 2013, declaring that, while in prison, Mr. Rodriguez

admitted he was the shooter in the End Zone Bar homicide.           Appellant’s

counsel received the statement on or about May 29, 2013. Appellant filed

his PCRA petition on June 25, 2013. Appellant contends he could not have

discovered this information earlier with the exercise of due diligence.

      On September 23, 2013, the PCRA court held a hearing on Appellant’s,

co-defendant Lee’s, and co-defendant Stauffer’s petitions.           When co-

defendant Lee’s counsel called Mr. Garcia to testify, the Commonwealth

asked for an offer of proof. Co-defendant Lee’s counsel explained Mr. Garcia

would testify consistent with the statement he gave to police on March 1,

2013, in which Mr. Garcia related that Mr. Rodriguez admitted he was the


                                     -9-
J-S78046-14


shooter in the End Zone Bar homicide. The Commonwealth objected to Mr.

Garcia’s proposed testimony as inadmissible hearsay.         Counsel for co-

defendant Stauffer claimed Mr. Garcia’s statement satisfied the “statement

against interest” exception to the hearsay rule at Pa.R.E. 804(b)(3).      The

Commonwealth maintained the proffered testimony did not meet the Rule

804(b)(3) exception because under that Rule, the declarant must be

unavailable, and the petitioners offered no proof that Mr. Rodriguez was

unavailable.   The court overruled the Commonwealth’s objection and

permitted Mr. Garcia to testify. Mr. Garcia testified consistent with his March

1, 2013 statement to police.

      By order dated March 5, 2014, the court denied Appellant PCRA relief.

In its accompanying opinion, the court explained, in relevant part:

         The Commonwealth claims that Mr. Garcia’s testimony on
         September 23, 2013 should not have been permitted. We
         agree. Prior to Mr. Garcia testifying, the Commonwealth
         objected to Mr. Garcia’s testimony as inadmissible
         hearsay, [to] which defense counsel responded by saying
         it was an admission against penal interest. Although an
         admission against penal interest is a valid exception to the
         hearsay rules, this exception is not applicable in the
         present case because the declarant was not unavailable
         and the statement was not supported by corroborating
         circumstances that clearly indicate its trustworthiness.
         See [Pa.R.E. 804(b)(3)(B)].

(Opinion in Support of Order Denying PCRA Relief, filed March 6, 2014, at 3)

(some internal citations omitted).

      Assuming without deciding that Appellant’s petition met the sixty-day

rule per Section 9545(b)(2), we conclude the record supports the court’s

                                     - 10 -
J-S78046-14


analysis. See Conway, supra. Appellant and his co-defendants presented

only the testimony of Mr. Garcia at the PCRA hearing, without any proof that

Mr. Rodriguez (the declarant) was unavailable to testify.7         See Pa.R.E.

804(a), (b)(3).      Further, Appellant offered no corroborating evidence to

indicate the trustworthiness of Mr. Rodriguez’s statement.        See Pa.R.E.

804(b)(3)(B). Notably, Mr. Garcia testified that Mr. Rodriguez admitted he

was the shooter in the End Zone Bar homicide in the presence of Mr. Garcia

and Jesus Laarte (also known as “Cito”). Appellant did not present Cito to

testify. See id. Consequently, Mr. Garcia’s declaration and testimony fail to

satisfy the hearsay exception set forth in Pa.R.E. 804(b)(3). 8     Appellant’s

current PCRA petition is based on inadmissible hearsay that cannot satisfy

the “new facts” exception under Section 9545(b)(1)(ii). 9 See Abu-Jamal,

____________________________________________


7
  The record contains a court order authorizing the sheriff or his authorized
deputies to obtain custody of Mr. Rodriguez, so that he could appear for an
interview with the District Attorney’s Office in relation to Appellant’s case on
September 23, 2013 (the date of the PCRA hearing). Thus, the record
suggests Mr. Rodriguez was available at the time of the PCRA hearing, but
Appellant declined to present him as a witness.
8
   On appeal, Appellant also argues his proffered evidence meets an
exception to the hearsay rule as an inconsistent witness statement, or under
the then-existing mental, emotional, or physical condition hearsay
exception. Appellant raises these claims for the first time on appeal, so they
are waived. See Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883
(2004) (explaining claims not raised in PCRA court are waived and cannot be
raised for first time on appeal).
9
 Based on our disposition, we need not consider Appellant’s claims that the
PCRA court erred in finding his testimony unreliable and incredible.
(Footnote Continued Next Page)


                                          - 11 -
J-S78046-14


supra. Therefore, the PCRA court properly denied the petition. Accordingly,

we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/2015




                       _______________________
(Footnote Continued)

Additionally, we decline to reach the merits of Appellant’s underlying after-
discovered-evidence claim, because Appellant failed initially to establish our
jurisdiction by pleading and proving a timeliness exception.              See
Commonwealth v. Brown, ___ A.3d ___, 2015 PA Super 24 (filed
February 6, 2015) (holding facially untimely PCRA petitioner attempting to
raise substantive after-discovered-evidence claim must first establish
jurisdiction by pleading and proving exception to PCRA time-bar).



                                           - 12 -
