J-S53026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                          Appellee

                     v.

JAMAL HATCHER

                          Appellant                   No. 1600 EDA 2019


             Appeal from the PCRA Order entered May 31, 2019
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0006133-2010


BEFORE: OLSON, STABILE, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 24, 2019

      Appellant, Jamal Hatcher, appeals pro se from the May 31, 2019 order

entered in the Court of Common Pleas of Philadelphia County, dismissing his

third petition for collateral relief pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends the PCRA court

erred by dismissing his petition that sought a new trial based on newly-

discovered evidence from a witness, Maisie Suarez (“Suarez”), who testified

at Appellant’s trial. After careful review, we affirm. However, we affirm on

the basis that Appellant’s petition was untimely filed, depriving this Court of

jurisdiction to consider the merits of Appellant’s claims.

      Following a jury trial, Appellant was convicted of attempted murder,

aggravated assault and firearms violations, all stemming from events that
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occurred in Philadelphia on April 2, 2010.1 The trial court denied Appellant’s

post-sentence motions and we affirmed his judgment of sentence on June 5,

2013.     See Commonwealth v. Jamal Hatcher, 2013 WL 11262133 (Pa.

Super., June 5, 2013).2 Appellant did not seek allowance of appeal to our

Supreme Court.       Therefore, his judgment of sentence was final on July 5,

2013.

        Appellant filed a timely first PCRA petition on March 17, 2014. Appointed

counsel filed an amended petition and a motion to withdraw.                 Appellant

subsequently filed several amended petitions, including a pro se petition filed

on September 16, 2014, in which he asserted, inter alia, that Suarez would

provide testimony that “will establish unequivocal exculpatory statements

were manipulated by detectives and what they put forth on affidavit [of]

probable cause and at trial was fabricated false evidence.” Pro Se Amended

First PCRA Petition, 9/16/14, at 7. Further, Appellant claimed the “evidence

produced upon warrant and trial [was] fabricated wholly to implicate the

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1 Appellant was tried jointly with his co-defendant brother, Hassan Hatcher,
who was convicted of aggravated assault and conspiracy for his role in the
April 2, 2010 events. We affirmed Hassan Hatcher’s judgment of sentence on
June 5, 2013. See Commonwealth v. Hassan Hatcher, 2013 WL 11262119
(Pa. Super., June 5, 2013), appeal denied, 77 A.3d 636 (Pa. 2013). As
reflected in n.6, infra, we also affirmed the dismissal of Hassan Hatcher’s PCRA
petition filed in 2014. See Commonwealth v. Hassan Hatcher, 2018 WL
4870803 (Pa. Super., October 9, 2018), appeal denied, 205 A.3d 1234 (Pa.
2019).

2   Our decision provides a detailed recitation of the facts of the case.



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accused in a crime bearing on the linchpin issue of (shooter’s identity) of guilt

where actions of detectives are material in view of the record (favorable to

justice)[.]” Id. at 9.

       On May 24, 2016, the Commonwealth filed a motion to dismiss.

Following a Grazier3 hearing conducted on July 5, 2016, the court permitted

Appellant to proceed pro se.          On July 13, 2016, Appellant filed a pro se

amended petition and a memorandum of law in support. On September 2,

2016, the court heard argument on Appellant’s petition and issued a Rule 907

notice of intent to dismiss. Appellant did not file a response and the PCRA

court dismissed the petition on October 28, 2016. Appellant filed an appeal

to this Court. On May 12, 2017, Appellant filed a second PCRA petition that

was dismissed on June 16, 2017 for lack of jurisdiction due to the pending

appeal. On August 3, 2018, we affirmed the dismissal of Appellant’s first PCRA

petition. See Commonwealth v. Jamal Hatcher, 2018 WL 3688451 (Pa.

Super., August 3, 2018).

       On September 12, 2018, Appellant filed his third petition, which is the

subject of this appeal.       By order entered May 31, 2019, the PCRA court

dismissed the petition on its merits.          This timely appeal followed.   Both

Appellant and the PCRA court complied with Pa.R.A.P 1925.

       Appellant asks us to consider two issues in this appeal:



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3   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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      1a. Did the PCRA court commit error of law by denying a new trial
      where the new evidence from Maisie Suarez substantiate (sic) that
      the Commonwealth knowingly violated Appellant’s due process
      rights when they presented false testimony that went
      uncorrected, suppressed exculpatory and impeaching evidence,
      and fabricated incriminating evidence which affected the truth
      seeking process and the jury’s verdict under Mooney and Brady?

      1b. Did the PCRA court commit error of law in denying a new trial
      by finding that the other properly admitted evidence which was
      conflicting, disputed, and contradicted was overwhelming
      evidence of guilt where according to Commonwealth v. Story
      and Larosa, evidence cannot be considered overwhelming unless
      it is uncontradicted or undisputed?

Appellant’s Brief at 4.

      “On appeal from the denial of PCRA relief, our standard of review is

whether the findings of the PCRA court are supported by the record and free

of legal error.” Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007)

(citations omitted).

      We begin by addressing the timeliness of Appellant's petition,

recognizing that the PCRA’s timeliness requirements are jurisdictional in

nature, and that a court may not address the merits of the issues raised if the

PCRA petition was not timely filed. Commonwealth v. Spotz, 171 A.3d 675,

678 (Pa. 2017). As our Supreme Court observed in Spotz, “The statutory

time bar implicates the court’s very power to adjudicate a controversy and

prohibits a court from extending filing periods except as the statute permits.”

Id. (quotations omitted). Further, this Court has determined that parties may

not stipulate to a court’s jurisdiction in disregard of statutory procedures.

Commonwealth v. DeFelice, 375 A.2d 360, 363 (Pa. Super. 1977); see

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also Northbrook Life Ins. Co. v. Commonwealth, 949 A.2d 333, 336 (Pa.

2008) (“parties cannot stipulate to matters affecting the jurisdiction, business,

or convenience of the courts”).

        All PCRA petitions, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). The one-year time limitation, however, can be overcome if a

petitioner (1) alleges and proves one of the three exceptions set forth in

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this

exception within sixty days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).4

        Again, this Court affirmed Appellant’s judgment of sentence on June 5,

2013.    Appellant did not seek allowance of appeal.     Therefore, Appellant’s

judgment of sentence was final on July 5, 2013, when his time to seek

allowance of appeal expired. See Pa.R.A.P. 1113. Consequently, Appellant

had until June 5, 2014 to file a PCRA petition. The instant petition filed on

September 12, 2018 is facially untimely. Unless Appellant has alleged and

proven an exception to the PCRA’s time bar, neither this Court nor the PCRA

court can exercise jurisdiction over his claims.



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4 We note Section 9545(b)(2) was amended, effective December 24, 2018, to
enlarge the deadline from sixty days to one year. Appellant’s petition and the
claims raised therein predate the amendment. Appellant filed his third PCRA
petition within sixty days of the date this Court affirmed dismissal of his first
petition.

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      In the instant case, Appellant invokes the newly-discovered facts

exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii). In accordance with that

subsection, a petitioner must allege and prove that “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[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).

      In his petition, Appellant asserted that an affidavit obtained from Suarez

on January 18, 2017 constituted newly-discovered facts and, as such,

constituted an exception to the PCRA’s time bar. Appellant recognized the

petitioner bears the burden of overcoming the PCRA’s time bar based on

newly-discovered facts.    Appellant’s Third PCRA Petition, 9/12/18, at 4.

Appellant acknowledged that he must allege and prove in his petition 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.”         Id. (citing

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007)). He stated he was

not aware of allegedly falsified testimony presented at trial and remained

unaware until his private investigator obtained an affidavit from Suarez in

January of 2017, nearly six years after his trial. He contended reasonable

investigation would not have revealed the Commonwealth’s misdeeds because

“the Commonwealth has maintained on appeal that the police did not engage

in any misconduct.” Id. at 6. He claimed that obtaining the Suarez affidavit

in January of 2017 “establishes [he] did not know of the information at trial

and could not have discovered it with reasonable diligence where he learned


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of it [six] years after trial.” Id. at 7. However, his petition is silent as to why

he allegedly could not obtain the information earlier or what efforts, if any, he

made in the exercise of due diligence to obtain an affidavit from Suarez.

      Importantly, and as reflected above, Appellant raised the issue of

fabricated trial evidence in his amended first PCRA petition. In his September

16, 2014 petition, he mentioned Suarez by name and represented that her

testimony   would    “establish   unequivocal   exculpatory    statements    were

manipulated by detectives and what they put forth . . . at trial was fabricated

false evidence.” Pro Se Amended First PCRA Petition, 9/16/14, at 7. Further,

in a subsequent amended petition filed after his Grazier hearing, Appellant

contended the “[p]rosecutor knew or should have known of police officers

fabrication and forwarding false evidence to obtain a tainted conviction.”

Amended Pro Se PCRA Petition, 7/13/16, at ¶ 13A. In his memorandum of

law in support of his petition, he again made specific reference to Suarez,

contending Suarez was influenced by a detective to give false evidence of her

observations at the crime scene and asserted it was obvious the officers

fabricated evidence.    Memorandum of Law, 7/13/16, at 12-13, 18.           These

assertions regarding Suarez and her testimony predated her affidavit and

refute his contention that he was unaware of the facts and unable to ascertain

them with due diligence.

      On appeal from the denial of his first petition, Appellant contended the

PCRA court erred when it denied relief “in light of newly-discovered evidence


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substantiating that the Commonwealth violated Appellant’s due process rights

by   presenting   false   testimony   and   fabricated   evidence   at   trial.”

Commonwealth v. Jamal Hatcher, 2018 WL 3688451, at *1 (Pa. Super.,

August 3, 2018). We determined the issue was waived because “his claim

could have been raised on direct appeal, but was not.” Id. at 2. Nevertheless,

Appellant raised a similar claim in his third PCRA petition, framing it as an

exception under Section 9545(b)(1)(ii), contending he discovered the facts

regarding fabricated evidence only after his private investigator interviewed

Suarez in January of 2017.

      In Commonwealth v. Priovolos, 746 A.2d 621 (Pa. Super. 2000), the

appellant hired a private investigator whose efforts to unearth exculpatory

evidence yielded a number of statements from potential witnesses. Appellant

attached those statements to his untimely second PCRA petition. On appeal

from the dismissal of that petition, we recognized that neither the parties nor

the PCRA court analyzed the timeliness of the petition. Because the timeliness

implicated the Court’s jurisdiction, we considered the matter sua sponte. Id.

at 625 (citing Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 2000)).

      Based on a review of the appellant’s petition, the Court determined there

were no claims implicating either the governmental interference, 42

Pa.C.S.A.§ 9545(b)(1)(i), or the newly-recognized constitutional right

exception to the PCRA’s time bar, 42 Pa.C.S.A. § 9545(b)(1)(iii). Id. As for

the newly-discovered facts exception of Section 9545(b)(1)(ii), the Court


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recognized that the appellant “makes no attempt to explain why the

information contained in the[] statements could not, with the exercise of due

diligence, have been obtained much earlier.” Id. (quoting Yarris, 731 A.2d

at 590). Therefore, the appellant failed to carry his burden of proving any of

the three exceptions under Section 9545(b)(1) and his petition was time-

barred.

      Similarly, Appellant in the instant case does not allege or prove a

timeliness exception based on governmental interference or a newly-

recognized constitutional right. More importantly, although he claims newly-

discovered facts, he has not even attempted to explain why the information

contained in the Suarez affidavit could not, with the exercise of due diligence,

have been obtained much earlier. Unlike the potential witnesses uncovered

by the investigator in Priovolos, Suarez testified at Appellant’s trial and was

clearly known to Appellant.    Moreover, in his amended pro se first PCRA

petitions, Appellant represented, “subject to the penalties provided by 18

Pa.C.S. § 4904 (unsworn falsification to authorities),” that Suarez would

testify that statements were falsified and detectives fabricated false evidence.

Pro Se Amended First PCRA Petition, 9/16/14, at 7. Appellant did not explain

in his third PCRA petition how or why his investigator happened to interview

Suarez six years after the trial, why he could not obtain a statement earlier,

or in what respect information provided in that statement was different from

the assertions made regarding Suarez in the amended first petition filed in


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September 2014 or in the subsequent amendment filed in July 2016. Instead,

he simply stated his investigator obtained the statement. In his estimation,

that is sufficient to satisfy the newly-discovered facts exception. However,

Section 9545(b)(1)(ii) requires that he prove that the facts were unknown to

him and could not have been ascertained by the exercise of due diligence.

Appellant has not satisfied either requirement. Therefore, his petition is time-

barred and the PCRA court lacked jurisdiction to consider the merits of

Appellant’s claims.

      For reasons not discernible from the record, neither the PCRA court nor

the Commonwealth questioned the PCRA court’s jurisdiction to entertain this

facially untimely petition. For example, during a hearing on May 2, 2019, the

following exchange took place:

      Pro Se Appellant:           May it please the court and the
      Commonwealth, in the preliminary matter to avoid way of
      background (sic), can we stipulate for the record that this third
      PCRA petition overcomes the time bar of 9545(b)(1)[(ii)] because
      the Commonwealth concedes that the new discovered evidence
      (sic) satisfies the subsection of 9545(b)(1)[(ii)].

      PCRA Court: I will hear your argument on the merit.

Notes of Testimony, 5/2/19, at 4. Further, in its brief filed with this Court,

the Commonwealth indicates, in its Counter-Statement of the Case, that

“[t]he parties acknowledged below that the PCRA court could review

[Appellant’s] claims pursuant to the newly-discovered fact exception to the

PCRA’s time-bar.” Commonwealth Brief at 2.




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       In its Rule 1925(a) opinion, the PCRA court stated that “[a] petitioner is

entitled to file all PCRA petitions, including second and subsequent petitions

within one (1) year from the date his judgment of sentence becomes final.”

PCRA Court Opinion, 8/12/19, at 8. The court then explained the criteria for

obtaining relief based on “after-discovered evidence.” Id. at 8-9. The court

proceeded to analyze the merits of Appellant’s claims under Section

9543(a)(2)(vi)5 and explained the petitioner bears the burden of proving that

       the allegedly new evidence: (1) has been discovered after the trial
       and could not have been obtained at or prior to the conclusion of
       the trial by the exercise of reasonable diligence; (2) is not merely
       corroborative or cumulative: (3) will not be used solely to impeach
       the credibility of a witness; and (4) is of such a nature and
       character that a different verdict will likely result if a new trial is
       granted.

Id. at 8-9 (citing Commonwealth v. Rudolph, 873 A.2d 1277, 1283 (Pa.

2005)).

       Although the PCRA court addressed the standard for granting a new trial

based on newly-discovered evidence, the court did not explore—or even

address—the timeliness of Appellant’s petition under Section 9545(b)(1) and

whether the court had jurisdiction over the facially untimely petition. Instead,

under the framework of Section 9543(a)(2)(vi), the court analyzed whether


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5 To be eligible for relief under Section 9543(a)(2)(vi), the petitioner must
prove that his conviction or sentence resulted from “[t]he unavailability at the
time of trial of exculpatory evidence that has subsequently become available
and 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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the evidence would solely impeach the credibility of the witness and whether

a different verdict would likely result. After comparing Suarez’s trial testimony

with her statement, the court concluded:

       While the account in Ms. Suarez’s affidavit differed slightly from
       her trial testimony, none of the discrepancies dispute her
       testimony that [Appellant] was a shooter at the scene. Further,
       the victim identified [Appellant] as the person who fired the first
       gunshot that missed him. In addition, there are still photographs
       from the ATM machine which clearly show [Appellant’s] brother at
       the scene and offer a view of [Appellant] as he chased, wounded
       the victim, and fled back to his brother’s car. Despite the minor
       discrepancies between Ms. Suarez’s affidavit and her testimony at
       trial, the remaining evidence is so overwhelming as to
       [Appellant’s] guilt that the discrepancies are essentially irrelevant.
       Thus Suarez’s affidavit would not warrant PCRA relief because it
       would only serve to impeach Ms. Suarez’s trial testimony, not to
       compel a different result.

PCRA Court Opinion, 8/12/19, at 10-11 (citations to trial transcripts omitted).

       Nowhere in the PCRA court’s opinion does that court address whether

Appellant has alleged and proven an exception to the PCRA’s time bar. Again,

absent allegation and proof of an exception, the court lacks jurisdiction over

an untimely petition, Spotz, supra, and the parties are not at liberty to

stipulate to the court’s jurisdiction over an untimely petition. See DeFelice

and Northbrook Life Ins., supra.6

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6Although we cannot ascertain the basis for the PCRA court’s failure to address
the timeliness of the petition, we note that Appellant encouraged the
Commonwealth to concede the petition satisfied the PCRA’s timeliness
requirements “where this court has previously found the new evidence
proffered in Commonwealth v. Hassan Hatcher satisfied the requirements
of the Act.” Appellant’s Motion for PCRA Hearing to Be Held by Video, 3/13/19,



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       Because our standard of review “is whether the findings of the PCRA

court are supported by the record and free of legal error,” we are constrained

to find that the PCRA court erred in assuming jurisdiction over the petition and

considering its merits because Appellant failed to prove the newly-discovered

facts exception to the PCRA’s time bar. However, cognizant of the fact we can

affirm the PCRA court’s ruling on any basis supported by the record, see

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), and in

light of the fact we lack jurisdiction to consider the merits of an untimely

petition, we affirm the May 31, 2019 order dismissing Appellant’s third PCRA

petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/19

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at ¶ 6. However, Appellant fails—and perhaps the Commonwealth and the
PCRA court failed as well—to appreciate that the Suarez affidavit was offered
as “newly-discovered evidence” in a supplement to his brother Hassan’s timely
first PCRA petition, whereas Appellant attempted to offer the affidavit as
newly-discovered evidence in support of his facially untimely third PCRA
petition. While Hassan Hatcher’s petition was ultimately dismissed on its
merits, and this Court affirmed that dismissal, Hassan Hatcher was not
required to plead and prove an exception under Section 9545(b). See
Commonwealth v. Hassan Hatcher, 2018 WL 4870803 (Pa. Super.,
October 9, 2018), appeal denied, 205 A.3d 1234 (Pa. 2019).


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