J-S34036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FERNANDO REAL,

                            Appellant                No. 2514 EDA 2016


                    Appeal from the PCRA Order July 13, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0207721-2004


BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 07, 2017

        Appellant, Fernando Real, appeals pro se from the denial of his second

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

§§ 9541-9546, as untimely, with no exception to the jurisdictional time bar

applicable. Appellant asserts hearsay recantation evidence as an exception

to the jurisdictional time-bar. We affirm.

        We derive the facts of the case from the PCRA court’s Rule 1925(a)

opinion, the hearing held on May 12, 2016, and our independent review of

the record.     On September 11, 2002, Appellant fatally shot an unarmed

man, Levon (“Boo”) Wilson, twelve times, over a dispute in a group dice

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*
    Retired Senior Judge assigned to the Superior Court.
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game.1 Police who were nearby heard the gunshots and went to investigate.

They pursued Appellant but he evaded capture and was a fugitive for a year

until he was apprehended at a motel in New Jersey, on his way to Puerto

Rico.    At least four eyewitnesses (Ronald Milburn, Marquise Nixon, Brian

Perry, and Brian Heard) gave statements to the police identifying Appellant

as the shooter.

        Notably for this appeal, Milburn testified at the preliminary hearing

against Appellant, but subsequently suffered traumatic brain injury in a

motor vehicle accident.          Based on medical evaluation, the trial court

determined that he was unavailable to testify, and his testimony from the

preliminary hearing was read into the record.              Heard apparently also

testified against Appellant at the preliminary hearing (after giving an

inculpatory statement to the police), but the Commonwealth could not locate

him at the time of trial, and the trial court precluded reference to his prior

inculpatory statement and testimony to the jury.2

        On June 28, 2005, the jury convicted Appellant of first-degree murder

and possessing an instrument of crime.           (See N.T. Trial, 6/28/05, at 33).
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1
  Wilson placed a bet without having the money to cover it. Appellant was
the “banker” of the craps game.
2
 In fact, defense trial counsel cited the failure of the Commonwealth to call
Heard as proof of Appellant’s innocence. The PCRA court also notes that
Heard testified against Appellant in a separate double murder trial (of
Marcus Herbert and Byron Story) in 2014. (See N.T. Hearing, 5/12/16, at
12; see also infra at *5).



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The court sentenced him to a term of life in prison for the murder conviction,

with a concurrent sentence of not less than two and one-half nor more than

five years’ incarceration for possessing an instrument of crime.       All his

previous appeals were unsuccessful.3

       On January 26, 2015, Appellant filed the instant second PCRA petition,

pro se, seeking a new trial based on claims of newly-discovered facts

(“evidence”). The petition included two affidavits.

       He first attached an affidavit dated October 8, 2014 from “Margarita

Debnam.”4      In the affidavit, Ms. Debnam claimed that Edith Livingston,

mother of eyewitness Ronald Milburn, told her (Ms. Debnam) in February of

2014 that Mr. Milburn had told his mother (Ms. Livingston) in September
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3
   On March 4, 2009, this Court affirmed the judgment of sentence, and our
Supreme Court denied allowance of appeal on October 7, 2009. (See
Commonwealth v. Real, 972 A.2d 560 (Pa. Super. 2009), appeal denied,
982 A.2d 65 (Pa. 2009), cert. denied, 559 U.S. 1053 (2010)). On February
26, 2010, while his direct appeal was still pending, Appellant filed a
premature petition for PCRA relief. The PCRA court appointed counsel, who
filed an amended petition, but on July 16, 2012, Appellant filed a motion to
proceed pro se. He also filed an amended petition, raising four claims of
ineffective assistance of counsel. On September 13, 2012, the PCRA court
conducted a Grazier hearing and granted Appellant permission to proceed
pro se. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On May
3, 2013, the PCRA court dismissed his first petition after an evidentiary
hearing. This Court affirmed the order of dismissal on August 27, 2014; our
Supreme Court denied allowance of appeal on January 21, 2015.
4
  Although it is not specified in the affidavit itself, the Commonwealth
persuasively argues from the evidence of record that "Margarita Debnam" is
actually Appellant’s mother, a/k/a Margarita Polo. Appellant’s stepfather
was identified at trial as Tayo “Debman.” (See Commonwealth’s Brief, at 6-
7 n.3).



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of 2003 that he was not present during the shooting. According to the text

of the affidavit, Mr. Milburn told his mother that he testified against

Appellant because he (Milburn) was on probation for drug offenses and

violation of the Uniform Firearms Act; he allegedly claimed that he wanted to

avoid a violation of probation and to seek favor with law enforcement by

cooperating in the Wilson murder investigation.

      Additionally, according to the Debnam affidavit, Milburn wanted to get

back at Appellant for dating his sister, Elise Livingston, a more delicate

version of Appellant’s own explanation, that he had taken Ms. Livingston’s

virginity. (See Debnam affidavit; see also Appellant’s Brief, at 10).

      Ms. Debnam further claims that Ms. Livingston said she told all this to

Assistant District Attorney Mark Gilson in January of 2004, but he rebuffed

her and threatened to retaliate against her family if she tried to testify.

Unfortunately for the reliability of this narrative, Mr. Gilson apparently was

not assigned to this case until about a year later.

      Appellant also presents a second affidavit from another eyewitness,

Brian Heard, dated and notarized on June 11, 2015. Heard also identified

Appellant to the police, but the Commonwealth could not locate him for trial,

so, as already noted, his identification of Appellant was not presented to the

jury at trial.

      In the affidavit attributed to Heard, he claims he told the police he

only heard gunshots, and did not see Appellant shoot Wilson. Furthermore,


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Heard describes multiple conversations he had with both Milburn (in

September of 2002) and the assistant district attorney (in May of 2005).

Heard relates that after discussion with Milburn, they both decided to adopt

Milburn’s strategy of blaming Appellant for Wilson’s murder in hopes of

improving their own probationary situations.

      Heard also relates that Milburn explained he never liked Appellant and

wanted to retaliate for the compromise of Elise. Heard claims he told all this

to the assistant district attorney, “a short white man,” who again threatened

retaliation. (Heard Affidavit, 6/11/15).

      As already mentioned, Mr. Milburn testified at the preliminary hearing

but later the same year (August 30, 2004) suffered traumatic brain injury in

a motor vehicle accident.

      Of note for Appellant’s third issue on appeal, independently, he was

also convicted of a double murder (of Marcus Herbert and Byron Story) and

robbery, which occurred two days before the murder of Wilson.

      On July 13, 2016, the PCRA court dismissed Appellant’s petition,

following a hearing. This timely appeal followed.

      Appellant presents three questions for our review:

            A. Whether the PCRA court committed error when it ruled
      that Brian Heard’s recantation was not newly discovered
      evidence even though the Commonwealth concealed it from
      [A]ppellant?

           B. Whether the PCRA court committed error when it ruled
      that Pa.C.S.A. § 9545(b)(1)(ii) requires newly discovered


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      evidence to be admissible in order for the PCRA court to have
      jurisdiction over the claim?

             C. Whether the PCRA court committed error when it ruled
      that it was introduced during trial that the murder weapon was
      used days before the murder to kill two other people, therefore
      this is not newly discovered evidence; when the record confirms
      it was not revealed during trial, it was revealed nine years after
      trial?

(Appellant’s Brief, at 2).

            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. Breakiron, 566 Pa. 323, 781 A.2d
      94, 97 n.4 (2001). Our review of questions of law is de novo.
      Commonwealth v. Fahy, 598 Pa. 584, 959 A.2d 312, 316
      (2008).

Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013), cert. denied,

134 S. Ct. 639 (2013).

            “Questions regarding the scope of the statutory exceptions
      to the PCRA’s jurisdictional time-bar raise questions of law;
      accordingly,   our     standard    of   review    is  de    novo”.
      Commonwealth v. Chester, 586 Pa. 468, 895 A.2d 520, 522
      n.1 (2006).    “As a general proposition, an appellate court
      reviews the PCRA court’s findings to see if they are supported by
      the record and free from legal error.” Commonwealth v.
      Reyes, 582 Pa. 317, 870 A.2d 888, 893 n.2 (2005). This
      Court’s scope of review is limited to the findings of the PCRA
      court and the evidence on the record of the PCRA court’s
      hearing, viewed in the light most favorable to the prevailing
      party, in this case, the Commonwealth.                See, e.g.,
      Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 56, 61
      (2005); Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d
      802 (2005). In addition, “[t]he level of deference to the hearing
      judge may vary depending upon whether the decision involved
      matters of credibility or matters of applying the governing law to
      the facts as so determined.” Commonwealth v. Reaves, 592
      Pa. 134, 923 A.2d 1119, 1124 (2007) (citations omitted).


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Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008).

            We note the timeliness of a PCRA petition implicates the
     jurisdiction of this Court and the PCRA court. Commonwealth
     v. Williams, 35 A.3d 44, 52 (Pa. Super. 2011) (citation
     omitted), appeal denied, 616 Pa. 467, 50 A.3d 121 (2012).
     “Pennsylvania law makes clear no court has jurisdiction to hear
     an untimely PCRA petition.” Id. The PCRA “confers no authority
     upon this Court to fashion ad hoc equitable exceptions to the
     PCRA time-bar [.]” Commonwealth v. Watts, 611 Pa. 80, 23
     A.3d 980, 983 (2011) (citation omitted). This is to “accord
     finality to the collateral review process.” Id. “A petition for
     relief under the PCRA, including a second or subsequent petition,
     must be filed within one year of the date the judgment becomes
     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.     §   9545(b)(1)(i),   (ii),  and    (iii), is  met.”
     Commonwealth v. Harris, 972 A.2d 1196, 1199–1200 (Pa.
     Super. 2009). The act provides, in relevant part, as follows.

              § 9545. Jurisdiction and proceedings

                                 *    *    *

              (b) Time for filing petition.—

              (1) Any petition under this subchapter, including a
       second or subsequent petition, shall be filed within one
       year of the date the judgment becomes final, unless the
       petition alleges and the petitioner proves that:

                                 *    *    *

               (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

                                 *    *    *

           (2) Any petition invoking an exception provided in
     paragraph (1) shall be filed within 60 days of the date the claim
     could have been presented.

                                 *    *    *

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      42 Pa.C.S.A. § 9545(b).

                                  *    *    *

            Additionally, the deference normally due to the findings of
      the PCRA court is accentuated where what is involved is
      recantation testimony[.]

                                  *    *    *

             Furthermore, the PCRA court as factfinder is in a superior
      position to make the initial assessment of the importance of
      recantation testimony to the outcome of the case.

Commonwealth v. Medina, 92 A.3d 1210, 1215-19 (Pa. Super. 2014),

appeal dismissed as improvidently granted, 140 A.3d 675 (Pa. 2016)

(internal quotation marks, citations and brackets omitted).

      Here, preliminarily, we note that Appellant misapprehends and

misstates the law applicable to the review of after-discovered evidence.

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

appeal denied, 125 A.3d 1197 (Pa. 2015), for an isolated proposition, out of

context, Appellant maintains that the new facts exception at Section

9545(b)(1)(ii) does not require any merits analysis of an underlying after-

discovered-evidence claim.      (See Appellant’s Brief, at 9) (citing Brown,

supra at 178; see also id. at 177-79).

      While this point as narrowly stated is literally true, it remains true that

“a petitioner must still allege and prove that (a) the existence of facts that

were unknown to him and (b) his exercise of due diligence in discovering




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those facts.”   Brown, at 179.      Here, Appellant failed to satisfy the two

requirements for this exception.

     Furthermore, it is well-settled that a claim based on inadmissible

hearsay “does not meet § 9545(b)(1)(ii)’s exception because a claim based

on   inadmissible    hearsay       does   not   implicate   this   exception.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1269–70 (Pa. 2008), cert.

denied, 555 U.S. 916 (2008).

     Here, both affidavits are rife with rank hearsay: what Milburn

purportedly told Ms. Livingston; what Ms. Livingston purportedly told Ms.

Debnam about what Milburn told her (double hearsay); what Milburn

purportedly told Heard; what Heard told Milburn; what Heard purportedly

told the assistant district attorney about what Milburn told him (double

hearsay again), and all for the truth of the matters asserted, with no

exception to the hearsay rule pleaded or proven.

     “A claim which rests exclusively upon inadmissible hearsay is not of a

type that would implicate the after-discovered evidence exception to the

timeliness requirement, nor would such a claim, even if timely, entitle

Appellant to relief under the PCRA.” Commonwealth v. Yarris, 731 A.2d

581, 592 (Pa. 1999) (emphasis added).

     Moreover, we agree with the PCRA court that Appellant’s bare

declaration of bald ignorance does not meet the burden to plead and prove

why the information now proffered as after-discovered “evidence” could not


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have been known and obtained earlier by the exercise of due diligence. The

PCRA court properly determined that Appellant’s petition is untimely with no

exception to the jurisdictional time-bar pleaded and proven.

       Finally, in Appellant’s third claim, he alleges that the murder weapon

discussed at the trial for the other murders (of Marcus Herbert and Byron

Story) raised the prospect of another perpetrator. Therefore, he posits, it

constituted newly discovered evidence in this case. (See Appellant’s Brief,

at 11-12).      This claim is particularly egregious.           Appellant neglects to

mention that he was convicted of both of those murders, as well as this one.

(See    N.T.   PCRA     Court    Hearing,      5/12/16,   at   4-5,   10);   (see   also

Commonwealth v. Real, (Pa. Super. filed November 20, 2015), 134 A.3d

499 (unpublished memorandum), appeal denied, 138 A.3d 4 (Pa. 2016))

(footnote omitted).

       Appellant’s second PCRA petition is untimely with no valid exception to

the jurisdictional time bar pleaded and proven.                Moreover, we note for

completeness and clarity that the PCRA court determined that none of

Appellant’s substantive claims would merit relief. (See PCRA Court Hearing,

5/12/16, at 12-13).5

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5
  We also note that on review of Appellant’s first PCRA petition, this Court
agreed with the original PCRA court that the evidence against Appellant was
overwhelming.    (See Commonwealth v. Real, No. 1495 EDA 2013,
unpublished memorandum at *5 (Pa. Super. filed August 27, 2014)).




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2017




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