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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

EDWARD SCOTT

                         Appellant                    No. 441 MDA 2016


                Appeal from the PCRA Order March 10, 2016
               In the Court of Common Pleas of Fulton County
            Criminal Division, at No(s): CP-29-CR-0000175-2011


BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 13, 2016

      Edward Scott (“Appellant”) appeals from the order denying his serial

petition for post-conviction relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The pertinent facts and procedural history may be summarized as

follows. On November 15, 2012, Appellant was tried before a jury, in

absentia, and was convicted of aggravated and simple assault as a result of

his attack on his cousin, Matthew Deller (the “victim”), on March 24, 2011.

On December 18, 2012, the trial court sentenced Appellant, once again in

absentia, to a term of 90 to 180 months of imprisonment. Although counsel

was appointed to represent Appellant at trial and at sentencing, counsel filed

neither a post-sentence motion nor a direct appeal on Appellant’s behalf.
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      On May 2, 2013, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, and PCRA counsel filed an amended petition.

Within the amended petition, Appellant asserted that his constitutional rights

were violated when a jury was selected in his absence and that trial counsel

was ineffective for failing to preserve this issue and raise it on direct appeal.

The Commonwealth filed an answer. Although the PCRA court found no need

for an evidentiary hearing, it directed the parties to brief the legal issue. By

opinion and order entered January 7, 2014, the PCRA court dismissed

Appellant’s amended petition. Appellant filed a timely appeal. In an

unpublished memorandum filed on June 27, 2014, we adopted the PCRA

court’s opinion as our own and affirmed the denial of post-conviction relief.

See Commonwealth v. Scott, 105 A.3d 48 (Pa. Super. 2014) (Table). On

February 24, 2015, our Supreme Court denied Appellant’s petition for

allowance of appeal. See Commonwealth v. Scott, 110 A.3d 997 (Pa.

2015) (Table).

      On May 20, 2015, Appellant filed a pro se “Motion to Reinstate

Petitioner’s Appellant [sic] Rights Nunc Pro Tunc.” The Commonwealth filed

its answer on June 5, 2015. On June 24, 2015, Appellant filed a pro se

“Motion to Amend PCRA Petition.” Treating the pro se filings as Appellant’s

second PCRA petition, on July 9, 2015, the PCRA court issued notice of its

intent to dismiss the second petition without a hearing. In an accompanying

opinion, the PCRA court stated that Appellant’s second petition was

untimely, and that he did not allege any time bar exception.

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      Appellant filed his response on July 29, 2015. Appellant claimed he

met two exceptions to the PCRA’s time bar, including the newly-discovered

evidence exception. In support of this exception, Appellant asserted that the

victim wrote him a letter in which the victim stated that the district attorney

and the victim’s state parole officer “coerced [him] into changing his

testimony.” Response, 7/29/15, at 2. Appellant did not include a copy of the

victim’s letter.

      By order entered September 15, 2015, the PCRA court dismissed

Appellant’s second PCRA petition. In doing so, the PCRA court explained why

Appellant failed to establish the newly-discovered time bar exception. With

regard to the victim’s letter, the PCRA court stated that Appellant had “not

pleaded any facts upon which this Court could reasonably conclude when

said letter was written by the victim or received by [Appellant].” Order,

9/15/15, at 2. Thus, the PCRA court dismissed Appellant’s second PCRA

petition as untimely. Appellant did not appeal the denial of his second PCRA

petition.

      Appellant filed the pro se PCRA petition at issue on October 7, 2015.

Within this petition, Appellant asserted that he had newly-discovered an

unsworn affidavit from the victim in the form of a letter, dated September 4,

2015, in which the victim stated, “[t]he [district attorney] forced me to

testify against [Appellant] or [I] would get violated on my probation[,] I told

the [district attorney] I didn’t want to testify[.]” Affidavit, 9/4/15, at 1. The

Commonwealth filed an answer. Appellant then filed a pro se rebuttal to the

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Commonwealth’s answer. By opinion and order on January 7, 2016, the

PCRA court dismissed Appellant’s third PCRA petition without a hearing

because it was frivolous.

      Although the January 2016 order appeared to be a final dismissal, the

PCRA court subsequently characterized it as providing notice of its intent to

dismiss and granted Appellant’s request for an extension of time in which to

file his response. See Order, 1/29/16, at. 1. Appellant duly filed a response.

Attached as exhibits, Appellant included not only the September 4, 2015

letter from the victim, but also a letter written by the victim, on July 10,

2011, to the district attorney, in which the victim stated that he wanted to

drop the charges against Appellant. The victim informed the district

attorney, “All I want to come out of this is that the hospital bills are paid and

a restraining order for my wife. And a total amount of $300.00 placed [in my

prison account].” After reviewing this response, the PCRA court, by order

entered March 10, 2016, denied Appellant’s third PCRA petition. This timely

appeal follows.

      Appellant raises the following issues:

         I.       Is Appellant entitled to relief on this subsequent
                  PCRA petition, and a new trial, and/or an evidentiary
                  hearing based on newly discovered evidence;
                  evidence that if presented at trial would have
                  changed the outcome of the proceedings, thus found
                  Appellant not guilty [sic]?

         II.      Did the [PCRA] court [err] when it failed to address
                  [Appellant’s] timely PCRA petition alleging additional
                  newly discovered evidence; evidence that if
                  presented at trial would have changed the outcome

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                of the proceeding, [that is,] finding Appellant not
                guilty?

         III.   Did the prosecutor commit prosecutorial misconduct,
                when the prosecutor threatened and intimidated the
                alleged victim, and verified his testimony to be
                truthful, and did the prosecutor commit trial by
                ambush when he surprised the defense with the
                [victim’s] state parole officer, and the false
                testimony that he gave?

         IV.    Did the prosecutor violate [Appellant’s] due process
                right[s]?

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

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

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

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold

a hearing on the petition if the PCRA court determines that petitioner’s claim

is patently frivolous and is without a trace of support in either the record or

from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1014

(Pa. Super. 2001).

      Because this is Appellant’s third petition for post-conviction relief, he

must meet a stringent standard. “A second or any subsequent post-

conviction request for relief will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

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have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.

Super. 2003) (en banc) (citations omitted). “A petitioner makes a prima

facie showing if he demonstrates that either the proceedings which resulted

in his conviction were so unfair that a miscarriage of justice occurred which

no civilized society could tolerate, or that he was innocent of the crimes for

which he was charged.” Id. (citations omitted).

      The timeliness of a post-conviction petition is jurisdictional. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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 proves an exception to the time for

filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition

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

the date the claims could have been presented.” Hernandez, 79 A.3d 651-

652 (citing 42 Pa.C.S.A. § 9545(b)(2)). Exceptions to the time bar must be

pled in the petition, and may not be raised for the first time on appeal. See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see

also Pa.R.A.P. 302(a) (providing that issues not raised before the lower

court are waived and cannot be raised for the first time on appeal).

      Appellant’s judgment of sentence became final on January 17, 2013,

when the thirty-day time period for filing an appeal to this Court expired.

See 42 Pa.C.S.A. § 9545(b)(3). Thus, Appellant had until January 17, 2014,


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to file a timely PCRA petition. As Appellant filed the instant petition on

October 7, 2015, it is patently untimely unless he has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies.

      Appellant claims that he timely filed the PCRA petition at issue within

sixty days of receiving the victim’s September 4, 2015 letter. 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. See Commonwealth v. Bennett, 930

A.2d 1264, 1270-1272 (Pa. 2007). The determination of timeliness does not

require a merits analysis. See Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa. 2008).

      In its Pa.R.A.P. 1925(a) opinion, the PCRA court acknowledges its

failure to discuss the timeliness of Appellant’s third petition prior to

addressing its merits. See PCRA Court Opinion, 5/3/16, at 4. In rejecting

Appellant’s claim that his appeal is timely, the PCRA court found that

Appellant did not demonstrate the exercise of due diligence. As explained by

the PCRA court: “The September 4, 2015 ‘letter’ from [the victim] was

clearly written after Second Petition was dismissed, yet after the allegation

of newly discovered evidence was raised.” Id. at 8.




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        Thus,   the   PCRA   court   concluded   that,   although   it   originally

addressed the merits of Appellant’s newly-discovered evidence, it should

have dismissed the third PCRA petition as untimely. We agree. The record

establishes that Appellant knew of the victim’s purported September 4, 2015

letter because he relied on it as a basis to establish (unsuccessfully) the

timeliness of his second PCRA petition filed in May 2015. Thus, Appellant

knew of the contents of the letter at that time. Our review of the record

supports the PCRA court’s conclusion that “Appellant attempted to remedy

the error in his [second PCRA petition]” by including a dated letter in his

PCRA petition. Id. at 7. Unfortunately for Appellant, despite the date of the

letter, the record establishes that he knew of the information earlier.

      Indeed, our own review indicates that Appellant, in the exercise of due

diligence, could have discovered the victim’s coercion claim earlier than the

time he filed his second PCRA petition in May 2015. Specifically, the victim’s

July 2011 letter to the district attorney was read at Appellant’s trial, and the

victim was cross-examined about it by defense counsel. Further, prior to

sentencing, the victim sent a letter to the trial court in which he stated that

he was forced to testify. See Letter, 11/28/12, at 1. Although Appellant was

tried and sentenced in absentia, the record establishes that Appellant’s

mother was aware of the victim’s claim because she was present at




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Appellant’s trial and, at all times, served as the liaison between the victim,

the trial court, and Appellant.1 See N.T., 11/15/12, at 8.

       In sum, the PCRA court correctly determined that Appellant failed to

exercise due diligence in filing his newly-discovered evidence claim. We

affirm the PCRA court’s order denying Appellant post-conviction relief.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2016




____________________________________________


1
  We further note that, although the PCRA court characterized the victim’s
letter as a recantation of his trial testimony, at no time had the victim ever
stated that Appellant did not assault him.




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