J-S83028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    STEVEN BLEAU                               :
                                               :
                      Appellant                :   No. 2232 EDA 2017

                   Appeal from the PCRA Order June 20, 2017
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0000443-1988


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.:                             FILED FEBRUARY 05, 2018

        Appellant, Steven Bleau, appeals pro se from the order entered on

June 20, 2017, dismissing his fourth petition filed under the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.1

        We have previously summarized the facts underlying Appellant’s

convictions and some of the procedural posture leading to Appellant’s fourth

PCRA petition. As we explained:



____________________________________________


1 Appellant filed a motion for permission to supplement his brief, so that he
can allege some sort of unspecified “newly discovered evidence.” See
Appellant’s “Motion for Leave of Court to Supplement Brief with Additional
Newly Discovered Evidence” (hereinafter “Appellant’s Motion”), 12/26/17, at
1.   On January 22, 2018, Appellant filed an application to withdraw
Appellant’s Motion. We grant the application to withdraw and, therefore, do
not consider the merits of Appellant’s Motion.
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       On the morning of November 30, 1987, at approximately
       10:00 a.m., the body of Mabel Toledo [(“Toledo”)] and that
       of a dying George Montgomery [(“Montgomery”)] were
       discovered by Arthur (Moe) Jackson [(“Jackson”)] in his
       home at 165 Glencrest Road, Valley Township, Chester
       County. Both victims had been shot[:] Toledo, four times
       and Montgomery, once.        Montgomery later died at
       Brandywine Hospital.

       The events which led to this bloody murder scene began
       November 29, 1987, when [Appellant] drove Gregory
       Ferguson [(“Ferguson”)], Toledo and Montgomery from New
       York City, New York, to Chester County to meet Jackson.
       Apparently, Montgomery had asked Ferguson for the ride,
       but he did not have a car. [Appellant], Ferguson’s cousin,
       had a Buick Somerset and agreed to drive. [Appellant] and
       Ferguson were paid $250.00 for driving Montgomery and
       Toledo to Chester County. They arrived in Coatesville at
       approximately 8:00 p.m. at Trina Rooks’ [(“Rooks”)]
       apartment on 102 Victoria Drive, Coatesville.     Jackson,
       Rooks’ boyfriend, was alone at the apartment.       Rooks
       arrived later.

       At   some     point    thereafter, [Appellant],   Ferguson,
       Montgomery, Toledo, Jackson and Rooks drove around
       Chester County and made several stops, eventually
       returning to 103 Glen Crest Avenue. Jackson and Rooks
       then left to go to Rooks’ mother’s house for a sump pump
       to remove rain water from Jackson’s basement.          They
       returned, installed the sump pump and left at approximately
       11:30 to 12 midnight. Toledo stated that she wanted to get
       up at 5:00 a.m. to return to New York City by 8:00 a.m.
       Later, at 1:30 a.m. (November 30) Montgomery telephoned
       his employer, Michael Strobert, in New York City and said
       he would not be at work on November 30, 1987.

       According to Ferguson’s testimony, Toledo and Montgomery
       took a rifle with them back to the bedroom, leaving another
       rifle with Ferguson and [Appellant] in the living room.
       [Appellant] and Ferguson sat around drinking beer and
       smoking cigarettes laced with cocaine.       After a while,
       [Appellant] insisted that he wanted to get his money from
       Montgomery now; he was concerned he would not get paid.
       [Appellant] also talked of robbing Montgomery and Toledo.

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       Together, [Appellant] and Ferguson went to the bedroom
       and Ferguson knocked on the door. Montgomery came to
       the door and Ferguson explained that [Appellant] thought
       he was “getting beat” and asked if they were going to be
       paid. Montgomery assured them they would be paid and
       turned back to walk into the bedroom. At that point,
       [Appellant] shot Montgomery who fell forward into
       Ferguson. Ferguson let him down to the ground.

       Ferguson ran into the bedroom and Toledo picked up the
       telephone answering machine in one hand and the [rifle] in
       the other. When Ferguson grabbed the point of the gun,
       Toledo struck him in the head with the answering machine.
       Ferguson pushed her away and [Appellant] ran up and shot
       Toledo in the cheek while she was [lying] across the bed.
       During Ferguson’s struggle with Toledo, they got tangled up
       in the telephone cord. After [Appellant] shot her in the
       cheek, Toledo pleaded for her life. [Appellant] picked up
       Toledo’s rifle and shot Toledo in the head. Ferguson ran out
       of the door, leaving the telephone cord trailing behind him.
       [Appellant] followed him out carrying one of the rifles,
       Montgomery’s coat and Toledo’s pocketbook. [Appellant]
       threw the rifle in the trunk, jumped in the driver's seat and
       began driving.

       On December 9, 1988, following a jury trial, [Appellant] was
       convicted of two counts of first-degree murder, two counts
       of criminal conspiracy, and one count of robbery.
       [Appellant] was subsequently sentenced to an aggregate
       sentence of life in prison. This Court affirmed the judgment
       of sentence [on May 17, 1993]. See Commonwealth v.
       Bleau, 631 A.2d 210 (Pa. Super. 1993) (unpublished
       memorandum).

       [Appellant’s] first PCRA Petition was denied, and this Court
       affirmed the denial. See Commonwealth v. Bleau, 785
       A.2d 1024 (Pa. Super. 2001) (unpublished memorandum),
       appeal denied, 798 A.2d 1286 (Pa. 2002). [Appellant’s]
       second PCRA Petition was dismissed, and this Court
       affirmed the dismissal. See [Commonwealth v. Bleau, 91
       A.3d 1288 (Pa. Super. 2013) (unpublished memorandum)
       at 1-13].




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Commonwealth v. Bleau, 151 A.3d 1156 (Pa. Super. 2016) (unpublished

memorandum) at 1-3 (internal corrections, quotations and footnote omitted)

(some internal citations omitted).

        On March 23, 2015, Appellant filed his third PCRA petition. The PCRA

court dismissed the petition and, on May 23, 2016, this Court affirmed the

PCRA court’s order. Id. at 1-11.

        Appellant filed the current PCRA petition (his fourth) on March 13,

2017.    As the PCRA court explained, Appellant alleged the following in his

fourth petition:

           [within   the     petition,   Appellant]   contends    that[,]
           approximately 30 years after his conviction, he [] recently
           discovered two police reports that were previously provided
           to his trial counsel during discovery which establish his
           innocence. [Appellant] further asserts that his cousin was
           in possession of these police reports and other legal
           material from [Appellant’s] trial. [Appellant] claims that
           when his cousin died, sometime around November 27,
           2016, [Appellant’s] sister discovered the police reports in
           the cousin’s apartment and made [Appellant] aware of the
           materials. [Appellant] asserts that the two police reports
           contain interviews of his friend, New York [g]rocery [s]tore
           owner Frank Fayz, which establish his alibi and innocence. .
           . . [Appellant] acknowledges in his PCRA petition that
           defense counsel was already in possession of the two police
           reports at the time of trial. . . . [Moreover, Appellant] has
           been acting pro se for the majority of the last 30 years.
           Through self-representation, [Appellant] [] had access to his
           entire [case] file[,] including the police reports and other
           discovery material.

PCRA Court Order, 5/4/17, at 6-7; see also Appellant’s Fourth PCRA

Petition, 3/13/17, at 3; Appellant’s Amended Fourth PCRA Petition, 5/1/17,

at 1-19.

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      On June 20, 2017, the PCRA court finally dismissed Appellant’s petition

and Appellant filed a timely notice of appeal. We now affirm the dismissal of

Appellant’s patently untimely, serial PCRA petition.

      “As a general proposition, we review a denial of PCRA relief to

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

record and free of legal error.”   Commonwealth v. Eichinger, 108 A.3d

821, 830 (Pa. 2014).

      Before this Court can address the substance of Appellant’s claim, we

must determine if this petition is timely.

        [The PCRA requires] a petitioner to file any PCRA petition
        within one year of the date the judgment of sentence
        becomes final.    A judgment of sentence becomes final at
        the conclusion of direct review . . . or at the expiration of
        time for seeking review.

                                      ...

        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the
        three limited exceptions to the time for filing the petition,
        set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
        met. A petition invoking one of these exceptions must be
        filed within [60] days of the date the claim could first have
        been presented. In order to be entitled to the exceptions to
        the PCRA’s one-year filing deadline, the petitioner must
        plead and prove specific facts that demonstrate his claim
        was raised within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some

internal citations omitted) (internal quotations omitted).

      In the present case, the PCRA court found Appellant’s petition to be

untimely filed. We agree.

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      Appellant’s judgment of sentence became final in 1993.            See 42

Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States . . . , or at the expiration of time for seeking the review”).

The PCRA explicitly requires that a petition be filed “within one year of the

date the judgment becomes final.”          42 Pa.C.S.A. § 9545(b)(1).    Since

Appellant filed his current petition on March 13, 2017, the current petition is

patently untimely and the burden thus fell upon Appellant to plead and prove

that one of the enumerated exceptions to the one-year time-bar applied to

his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947

A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a statutory exception

to the one-year time-bar, the PCRA demands that the petitioner properly

plead and prove all required elements of the relied-upon exception).

      Appellant claims to invoke the “newly-discovered facts” exception to

the time-bar. This statutory exception provides:

        (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[]

                                     ...




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         (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.

42 Pa.C.S.A. § 9545(b).

      As our Supreme Court has explained:

         subsection (b)(1)(ii) 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.” 42 Pa.C.S.
         § 9545(b)(1)(ii)(emphasis added). 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) (emphasis in

original).

      Further, to properly invoke the newly-discovered facts exception, the

petitioner is statutorily required to file his petition “within 60 days of the

date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b). As our

Supreme Court has explained, to satisfy this “60-day requirement,” a

petitioner must “plead and prove that the information on which he relies

could not have been obtained earlier, despite the exercise of due diligence.”

Commonwealth       v.   Stokes,   959   A.2d   306,   310-311   (Pa.   2008);

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).             Moreover,

because the “60-day requirement” of section 9545(b)(2) is a statutory

mandate, the requirement is “strictly enforced.”        Commonwealth v.

Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).




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      In the case at bar, Appellant claims that Frank Fayz’s statements

constitute newly-discovered facts and that Appellant first discovered the

statements when his sister reviewed his case file, some 30 years after

Appellant’s convictions.   See Appellant’s Fourth PCRA Petition, 3/13/17, at

3. However, Appellant has not pleaded why he could not have discovered

Frank Fayz’s statements earlier, if he had exercised due diligence.        To be

sure, Appellant acknowledges that Mr. Fayz’s statements were contained in

two police reports and that those police reports were available to him in his

case file. Therefore, we agree with the PCRA court that Appellant has not

pleaded why, at some point in the past 30 years, he or his prior counsel

could not have discovered the cited facts earlier with the exercise of due

diligence.    We conclude that Appellant failed to properly plead the newly-

discovered fact exception to the PCRA’s time-bar.          Commonwealth v.

Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010) (“[d]ue diligence demands

that the petitioner take reasonable steps to protect his own interests.         A

petitioner must explain why he could not have obtained the new fact(s)

earlier with the exercise of due diligence. This rule is strictly enforced”).

      Thus, our “courts are without jurisdiction to offer [Appellant] any form

of relief.”   Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super.

2011). We affirm the PCRA court’s order, which dismissed Appellant’s fourth

PCRA petition without a hearing.




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J-S83028-17


     Appellant’s Application to Withdraw Motion for Leave of Court to

Supplement Brief granted. Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/18




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