J-S12026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANDREW D. PASCAL,

                            Appellant                  No. 1212 EDA 2015


               Appeal from the PCRA Order of February 19, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0001976-2006


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED JANUARY 27, 2016

        Appellant, Andrew D. Pascal, appeals from the order entered on

February 19, 2014, dismissing his petition pursuant to the Post Conviction

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

        We briefly summarize the facts and procedural history of this case as

follows. On September 11, 2007, a jury convicted Appellant of first-degree

murder and conspiracy to commit murder.1        On September 19, 2007, the

trial court sentenced Appellant to life imprisonment. On June 8, 2009, this

Court affirmed Appellant’s judgment of sentence. See Commonwealth v.

Pascal, 981 A.2d 318 (Pa. Super. 2009) (unpublished memorandum). Our



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1
    18 Pa.C.S.A. §§ 2502(a) and 903, respectively.



*Retired Senior Judge assigned to the Superior Court.
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Supreme Court denied further review on December 17, 2009.                See

Commonwealth v. Pascal, 986 A.2d 150 (Pa. 2009).

        On September 7, 2010, Appellant filed his first PCRA petition.   The

PCRA court held an evidentiary hearing, wherein Appellant presented

purported alibi testimony from Rachel Koplin.   Following the submission of

briefs, the PCRA court denied relief by order entered on June 23, 2011. On

August 24, 2012, this Court affirmed the dismissal of Appellant’s first PCRA

petition. See Commonwealth v. Pascal, 60 A.3d 580 (Pa. Super. 2012)

(unpublished memorandum).       Our Supreme Court denied further review.

See Commonwealth v. Pascal, 63 A.3d 776 (Pa. 2013).

        On October 21, 2013, Appellant filed a second pro se PCRA petition.

Therein he alleged he acquired exculpatory evidence, not available at trial,

which would have changed the outcome of his case.          He attached an

affidavit from an eyewitness, Ishmael Peterson, who claimed he was present

at the time of the shooting, but did not see Appellant in the SUV where the

fatal shots emanated.     On October 22, 2013, the PCRA court appointed

counsel.    The PCRA court held an evidentiary hearing on December 30,

2013.    By order entered on February 19, 2014, the PCRA court dismissed

Appellant’s second PCRA petition.     Although not entirely clear from the

record, the PCRA court appointed appellate PCRA counsel, at some point, to

represent Appellant.    Appellant requested an appeal, but appellate PCRA

counsel did not file an appeal. On January 2, 2015, the PCRA court vacated

the prior appointment and appointed substitute counsel, who currently

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represents Appellant on appeal. On March 13, 2015, current PCRA counsel

filed a PCRA petition wherein he alleged that prior appellate counsel died

after a prolonged illness, resulting in Appellant’s abandonment.        As such,

current PCRA counsel requested the nunc pro tunc reinstatement of

Appellant’s appeal rights from the denial of his second PCRA petition. The

Commonwealth agreed and the PCRA court entered an order granting

Appellant’s request on April 13, 2015. This timely appeal resulted. 2

       On appeal, Appellant presents the following issues for our review:

         1. The PCRA hearing testimony of Ishmael Peterson was
            credible and, if introduced at trial, would have likely
            changed the outcome of Appellant’s trial.

         2. In light of the testimony of Ishmael Peterson, the
            testimony of Rachel Koplin at the hearing on
            [Appellant’s] [f]irst PCRA [p]etition was credible and, if
            introduced at trial, would have likely changed the
            outcome of Appellant’s trial.

Appellant’s Brief at 4.

       The PCRA court examined the substantive merits of Appellant’s claims

and determined that Appellant was not entitled to relief under 42 Pa.C.S.A. §

9543(a)(2)(vi).3 However, this Court has noted:
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2
    Appellant filed his nunc pro tunc notice of appeal on April 24,   2015. On
April 27, 2015, the PCRA court ordered Appellant to file a concise    statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).       Appellant
complied timely after the grant of an extension. On June 15,          2015, the
PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).
3
  “[T]o be eligible for relief” under the PCRA, “the petitioner must plead and
prove by a preponderance of the evidence” that “[t]he unavailability at the
(Footnote Continued Next Page)


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          As a threshold jurisdictional matter … the timeliness of the
          PCRA petition must be addressed. Even where neither party
          nor the PCRA court have addressed the matter, it is well-
          settled that we may raise it sua sponte since a question of
          timeliness implicates the jurisdiction of our Court. Thus, we
          shall forego assessment of the merits of the claim set forth
          in Appellant's brief and, instead, concentrate our attention
          on whether Appellant timely filed his PCRA petition and, if
          not, whether he has raised a viable statutory exception to
          the PCRA's timeliness requirement. As the timeliness of a
          PCRA petition is a question of law, our standard of review is
          de novo and our scope of review is plenary.

          A PCRA petition is timely if it is filed within one year of the
          date the judgment of sentence becomes final. A judgment
          becomes 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.

Commonwealth v. Callahan, 101 A.3d 118, 121-122 (Pa. Super. 2014)

(internal citations, quotations, and brackets omitted).

        As previously stated, our Supreme Court denied review of Appellant’s

judgment of sentence on December 17, 2009. Thus, Appellant's judgment

of sentence became final after the Supreme Court denied allowance of

appeal on December 17, 2009, and the 90-day period for filing a petition for

writ of certiorari to the United States Supreme Court expired on March 17,

2010.     See 42 Pa.C.S.A. § 9545(b)(3); U.S. Supreme Court Rule 13.

Accordingly, Appellant had until March 17, 2011 to file a timely PCRA


                       _______________________
(Footnote Continued)

time of trial of exculpatory evidence that has subsequently become available
would have changed the outcome of the trial if it had been introduced.” 42
Pa.C.S.A. § 9543(a)(2)(vi).



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petition. Because Appellant filed his current PCRA petition on October 21,

2013, it was patently untimely.

      A PCRA petitioner, however, may prove one of three statutory

exceptions to the PCRA’s jurisdictional timing requirements. Here, Appellant

asserts “the facts upon which [his] claim is predicated were unknown to

[him] and could not have been ascertained by the exercise of due diligence”

prior to trial pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii). See Appellant’s Brief

at 12-16. Our Supreme Court has determined:

        Exception (b)(1)(ii) “requires petitioner to allege and prove
        that there were ‘facts' that were ‘unknown’ to him” and that
        he could not have ascertained those facts by the exercise of
        “due diligence.” Commonwealth v. Bennett, 930 A.2d
        1264, 1270–1272 (Pa. 2007) (emphasis added). The focus
        of the exception is “on the newly discovered facts, not on a
        newly discovered or newly willing source for previously
        known facts.” Commonwealth v. Johnson, 863 A.2d 423,
        427 (Pa. 2004) (emphasis in original). In Johnson, [the
        Supreme] Court rejected the petitioner's argument that a
        witness's subsequent admission of alleged facts brought a
        claim within the scope of exception (b)(1)(ii) even though
        the facts had been available to the petitioner beforehand.
        Relying on Johnson, [the Supreme] Court more recently
        held that an affidavit alleging perjury did not bring a
        petitioner's claim of fabricated testimony within the scope of
        exception (b)(1)(ii) because the only “new” aspect of the
        claim was that a new witness had come forward to testify
        regarding the previously raised claim. [Commonwealth v.
        Abu–Jamal, 941 A.2d 1263, 1267 (Pa. 2008)].
        Specifically, [the Supreme Court] held that the fact that the
        petitioner “discovered yet another conduit for the same
        claim of perjury does not transform his latest source into
        evidence falling within the ambit of Section 9545(b)(1)(ii).”
        Id. at 1269.




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Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (footnote and

original brackets omitted).

      Upon review of the record, Appellant has steadfastly maintained that

he was not at the scene of the crime.     At trial, there was evidence that

Appellant told police that he was at two other locations on the night of the

murder and Appellant provided a written statement to them regarding his

prior activities. Trial Court Opinion, 6/30/2008, at 10; PCRA Court Opinion,

12/28/2011, at 6.    Moreover, in his first PCRA petition, Appellant alleged

that he had an alibi to support his claim that he was not at the scene of the

crime. The PCRA court rejected that claim and we agreed on appeal. Now,

Appellant has come forward with an affidavit from Ishmael Peterson to again

argue that he was not at the scene of the crime. More specifically, Peterson

claims that he saw and spoke with the three occupants of the SUV, where

the fatal shots emanated, moments before the murder and Appellant was

not present. See Peterson Affidavit, Exhibit A, PCRA Petition, 10/21/2013 at

1 (“I knew for a fact Drew[,] Andrew Pascal wasn’t in that SUV.”). Appellant

has always maintained he was not present for the murder. Thus, Peterson’s

affidavit is yet another conduit for the same claim Appellant made at trial

and during the course of his first, unsuccessful PCRA petition; it cannot be

the basis of an exception under Section 9545(b)(1)(ii) to the one-year

jurisdictional requirement of the PCRA.     Hence, the PCRA court lacked




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jurisdiction to entertain Appellant’s untimely claim.   Accordingly, we affirm

the dismissal of Appellant’s most recent PCRA petition.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2016




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4
 This Court “may affirm the decision of the PCRA court if there is any basis
on the record to support the PCRA court's action; this is so even if we rely
on a different basis in our decision to affirm.” Commonwealth v. Wiley,
966 A.2d 1153, 1157 (Pa. Super. 2009) (brackets omitted).



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