J-S85030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

ALAN KUSHNER

                            Appellant              No. 792 EDA 2016


                 Appeal from the PCRA Order February 10, 2016
             in the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0009814-2008


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                       FILED JANUARY 10, 2017

        Appellant, Alan Kushner, appeals from the February 10, 2016 order,

denying his petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

        We adopt the PCRA court’s statement of the facts of this case for

purposes of this appeal. See PCRA Court Opinion (PCO), 5/18/16, at 1-7.

On October 30, 2008, Appellant was arrested and charged with attempted

murder, criminal solicitation to commit murder, and criminal conspiracy to

commit murder1 in connection with his attempts to hire another individual to

kill his wife.



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1
    18 Pa.C.S. §§ 901, 902, and 903.
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      On July 20, 2009, Appellant was convicted of solicitation to commit

murder and acquitted of attempted murder and conspiracy to commit

murder. Appellant was sentenced to seven and one-half to twenty years of

incarceration, and his judgment of sentence was affirmed on December 8,

2010. See Commonwealth v. Kushner, 23 A.3d 573 (Pa. Super. 2010)

(unpublished memorandum), appeal denied, 30 A.3d 487 (Pa. 2011).

      Appellant timely filed a first PCRA petition on October 11, 2012. After

multiple evidentiary hearings, the PCRA court dismissed the petition.      This

Court affirmed the PCRA court’s order on October 6, 2015.                  See

Commonwealth v. Kushner, 134 A.3d 91 (Pa. Super. 2015) (unpublished

memorandum).

      On October 30, 2015, Appellant filed a counseled petition for post-

conviction relief based upon newly-discovered facts and a motion for

expedited proceedings.    Appellant claimed that as a result of information

provided by his son, Appellant had been re-examined by a psychiatrist and

diagnosed with Reactive Attachment Disorder (RAD). See PCRA petition at

1-5. Appellant argued that this information was so significant that it would

compel a new trial or sentencing hearing. Id. Appellant also claimed that

trial counsel was ineffective for failure to file a Bill of Particulars. Id. The

Commonwealth filed a response in opposition. Appellant then filed, without

leave of court, an amended petition raising additional issues and arguing




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that the Commonwealth had committed a Brady2 violation due to its alleged

failure to disclose an agreement between the Philadelphia District Attorney’s

Office and the Montgomery County District Attorney’s Office to try the case

in Montgomery County. See Amended Motion, 12/3/15, at 1-2. Appellant

argued that this “concealment” resulted in the case being prosecuted in an

improper jurisdiction. Id.

        On December 9, 2015, the PCRA court gave notice pursuant to

Pa.R.Crim.P. 907 of dismissal.           On December 29, 2015, Appellant filed

“objections” to the Rule 907 notice and a motion for leave to amend his

PCRA petition to specifically plead the newly-discovered facts exception

under 42 Pa.C.S. § 9545(b)(1)(ii), but did not request leave to amend the

petition to add the additional claims raised in the “amended petition.” On

February 10, 2016, the PCRA court denied Appellant’s motion to amend and

formally dismissed the petition. Appellant filed a motion for reconsideration,

which was denied.

        Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The PCRA court issued a responsive opinion.

        Herein, Appellant raises three issues for our review.

        1. Where Appellant alleged and proved new facts, which could
        not have been discovered in the exercise of due diligence, and
        met the new facts exception under 42 Pa.C.S. § 9545(b)(1)(ii),

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2
    Brady v. Maryland, 83 S. Ct. 1194 (1963).



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        did the lower court err in dismissing the PCRA petition without a
        hearing?

        2. Where Pennsylvania Rule of Criminal Procedure §905(a) [sic]
        permits amendments of PCRA petitions at any time, and directs
        that they should be freely allowed to achieve substantial justice,
        did the lower court abuse its discretion in not permitting
        Appellant to file an amended petition to achieve substantial
        justice?

        3. Where jurisdiction can never be waived and the Court of
        Common Pleas did not have subject-matter jurisdiction to try
        this case, did the lower court err in denying this issue in the
        court below?

Appellant’s Brief at 2 (unnecessary capitalization and emphasis omitted).

        We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.     Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

        In this case, the PCRA court dismissed Appellant’s petition without a

hearing.    See PCRA Court Order, 12/9/15 (citing in support Pa.R.Crim.P.

907).      There is no absolute right to an evidentiary hearing.             See

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On

appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding that there were no genuine




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issues of material fact and denying relief without an evidentiary hearing.”

Springer, 961 A.2d at 1264.

     Initially, we address the timeliness of Appellant’s petition. In order for

a post-conviction petition to be timely under the PCRA, it must be filed

within one year of the finality of the petitioner's judgment of sentence. See

42 Pa.C.S. § 9545(b)(1); see also Commonwealth v. Bretz, 830 A.2d

1273, 1275 (Pa. Super. 2003). No court possess jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010). There are three exceptions to the PCRA’s timeliness rule:

     (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.

See 42 Pa.C.S. § 9545(b)(1). A petitioner has the burden of pleading and

proving an exception to the time bar.     Commonwealth v. Hawkins, 953

A.2d 1248, 1253 (Pa. 2008).        A petition seeking relief pursuant to a

statutory exception must adhere to the additional requirement of filing the

claim within 60 days of the date the claim could have been first presented.

See 42 Pa.C.S. § 9545(b)(2). The petition must plead and prove that the

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information relied upon could not have been obtained earlier despite the

exercise of due diligence. See Commonwealth v. Marshall, 947 A.2d 714,

720 (Pa. 2008).

       Appellant’s judgment of sentence became final for PCRA purposes on

January 11, 2012.3        He thus had until January 11, 2013, to timely file a

petition seeking PCRA relief.        Appellant’s petition, filed October 30, 2015,

was thus untimely. Although Appellant’s petition did not spsecifically plead

the newly-discovered facts exception to the time-bar, the arguments raised

were sufficient for the PCRA court to treat Appellant’s petition as an attempt

to plead the newly-discovered facts exception.              However, the court

ultimately found that Appellant had not satisfied the exception.          See 42

Pa.C.S. § 9545(b)(1)(ii); PCO at 12-13.

       In his first issue, Appellant claims that the court erred in concluding he

did not satisfy the newly-discovered facts exception. Appellant argues that

until Appellant’s son spoke with counsel and asserted that Appellant suffered

from “separation anxiety,” leading to a re-examination, Appellant was

unaware that he had been incorrectly diagnosed.          See Appellant’s Brief at

15-17.

       The newly-discovered facts exception
____________________________________________


3
  See Commonwealth v. Fahy, 737 A.2d 214, 218 (Pa. 1999) (noting that
Appellant’s judgment of sentence becomes final upon the expiration of the
ninety-day period for seeking appellate review to the United States Supreme
Court.



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      has two components, which must be alleged and proved.
      Namely, the petitioner must establish that: 1) the facts upon
      which the claim was predicated were unknown and 2) could not
      have been ascertained by the exercise of due diligence. If the
      petitioner alleges and proves these two components, then the
      PCRA court has jurisdiction over the claim under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal

quotation marks and citations omitted; emphasis removed).

      The focus of the exception is on the newly discovered facts, not upon a

newly discovered or newly willing source for previously known facts.        See

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). With regard

to mental health diagnoses, the discovery of new opinions uncovered after

trial do not constitute new facts. Commonwealth v. Gamboa-Taylor, 753

A.2d 780, 787 (Pa. 2000).      Specifically, the Gamboa-Taylor court noted

that all facts regarding Appellant’s mental state, if not known, were surely

ascertainable by the exercise of due diligence prior to trial. Id.

      Appellant’s contention that his “separation anxiety” was unknowable to

him prior to his reunion with his son is unavailing.     Appellant litigated his

mental state at trial, sentencing, on direct appeal, and during multiple

evidentiary hearings in the course of his first PCRA petition. Appellant was

examined by multiple experts over many separate evaluations in connection

with these proceedings. None of these medical professionals over the course

of   many   hours   of   examinations   diagnosed    Appellant   with   Reactive

Attachment Disorder.      In short, Appellant has not satisfied the newly-

discovered facts exception. Instead, he attempts to again litigate the issue

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of his mental health through a differing opinion. Accordingly, the PCRA court

properly dismissed Appellant’s petition without an evidentiary hearing.

Bennett, 930 A.2d at 1272.

      Next, Appellant claims that the PCRA court erred in denying his

request to amend his PCRA, as such amendments should be liberally

granted. See Appellant’s Brief at 25.

      The Pennsylvania Rules of Criminal Procedure reflect that a PCRA

judge “may grant leave to amend ... a petition for post-conviction collateral

relief at any time,” and that amendment “shall be freely allowed to achieve

substantial   justice.”   Pa.R.Crim.P.   905(A);   see   Commonwealth      v.

Williams, 573 Pa. 613, 633, 828 A.2d 981, 993 (2003) (noting that the

criminal procedural rules contemplate a “liberal amendment” policy for PCRA

petitions).   A petitioner must seek and be granted leave to amend;

amendments are not self-authorizing. Commonwealth v. Baumhammers,

92 A.3d 708, 730 (Pa. 2014). Amendment is permitted solely by direction or

leave of the PCRA court. Id.

      In the instant case, the PCRA court properly denied Appellant’s motion

to amend, as amendment would have served no purpose.           As discussed

above, Appellant’s contention that the new diagnosis satisfied the newly-

discovered facts exception was not correct.        The PCRA court properly

reviewed Appellant’s response to the Pa.R.Crim.P. 907 notice, determined

that Appellant had not satisfied the exception, and additionally found that


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the other issues raised were previously litigated. PCO at 16. Accordingly,

there was no error in the court’s denial of Appellant’s motion.

      Finally, Appellant claims that the PCRA court erred in denying his

jurisdictional challenge on several grounds. Appellant’s Brief at 29-35.

      To the extent Appellant attempts to argue that this petition should be

cognizable as a writ of habeas corpus, the PCRA court properly treated it as

an untimely PCRA.       Unless the PCRA does not provide for a potential

remedy, it subsumes the writ of habeas corpus. Fahy, supra, at 223-24.

Issues cognizable under the PCRA must be raised in a timely PCRA petition,

not a habeas petition.    See Commonwealth v. Peterkin, 722 A.2d 638

(1998). The PCRA specifically provides for jurisdictional challenges. See 42

Pa.C.S. § 9543.    Thus, the claim is also untimely and does not satisfy an

exception to the timeliness requirement. See 42 Pa.C.S. § 9545.

      Even if this claim was not raised in an untimely manner, it was

previously litigated.   In his appeal from the 2014 order denying his first

PCRA, Appellant claimed that trial counsel was ineffective for failure to raise

a jurisdictional challenge.   See Kushner, 134 A.3d 91.       The PCRA court

determined that the contention was meritless, and this Court affirmed: as

the crime was to be committed in the marital home in Montgomery County,

jurisdiction was proper in Montgomery County. Id. Further, the PCRA court

found meritless Appellant’s contention that trial counsel was not ineffective

for failure to move for a dismissal of the charges due to an alleged ambiguity


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in the Bill of Information. See Kushner, 134 A.3d 91. Appellant’s attempts

to relitigate this argument in a different guise are unavailing.   See, e.g.,

Commonwealth v. Small, 980 A.2d 549, 569 (Pa. 2009) (noting that

whether an issue was previously litigated turns on whether that issue

constitutes a discrete legal ground or merely an alternative theory in support

of the same underlying issue raised on direct appeal); see also 42 Pa.C.S. §

9543(a)(3).

      Accordingly, we discern no error in the PCRA court’s decision to

dismiss Appellant’s petition without an evidentiary hearing.       Appellant’s

claims are without merit, and he is entitled to no relief. See Ragan, 923

A.2d at 1170.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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