J-S61005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

BRYNN WAYNE GRIFFIN,

                         Appellant                   No. 1099 WDA 2015


             Appeal from the PCRA Order entered June 29, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division, at No(s): CP-02-CR-0009985-1996


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

MEMORANDUM BY PANELLA, J.                      FILED SEPTEMBER 06, 2016

      Brynn Wayne Griffin (“Appellant”) appeals from the order denying his

serial petition for post-conviction relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts underlying Appellant’s convictions have been

summarized as follows:

            In the late evening of July 11, 1995, or early morning
         July 12, 1995, the victim was sexually assaulted by
         Appellant. The victim testified that Appellant, who was
         engaged to her sister, came into her bedroom and
         awakened her, claiming that he needed to talk to her.
         After talking about various problems in his life, Appellant
         stated that he believed that he and the victim should
         become lovers. Appellant exposed himself, pulled out a
         knife, and began rubbing his body against the victim. The
         victim testified that, against her will, Appellant placed his
         fingers insider her vagina and also performed oral sex on
         her while holding a knife to her throat. About twelve hours
         after the incident, the victim reported to medical personnel
         at a local hospital where she was examined.
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           Appellant was arrested in July 1996. He initially denied
        engaging in any sexual activity with the victim. However,
        he eventually admitted to police that he had been in the
        victim’s bedroom the night of the attack, had touched the
        victim and rubbed his body against hers. He continued to
        deny raping the victim, touching her genitals or engaging
        in oral sex.

Commonwealth v. Griffin, 1901 WDA 2000, at 2 (Pa. Super., filed

7/16/02) (unpublished memorandum).

     At the conclusion of a bench trial on May 18, 1998, the court convicted

Appellant of involuntary deviate sexual intercourse, sexual assault, and

aggravated indecent assault. The court found Appellant not guilty of rape.

On August 20, 1998, the trial court sentenced Appellant to an aggregate

term of six to twenty years of imprisonment, to be followed by an eight-year

probationary term.

     Appellant did not initially file a direct appeal. But his appellate rights

were later reinstated on October 19, 2000. Appellant filed a timely appeal,

and we affirmed his judgment of sentence on July 16, 2002. See Griffin,

supra. Our Supreme Court denied Appellant’s petition for allowance of

appeal on August 6, 2003. See Commonwealth v. Griffin, 829 A.2d 1156

(Pa 2003) (Table).

     Appellant filed a pro se PCRA petition on November 9, 2004. The PCRA

court appointed counsel, and PCRA counsel filed an amended petition.

Following an evidentiary hearing, the PCRA dismissed Appellant’s PCRA

petition on March 23, 2007. Appellant filed a timely appeal, and this Court

affirmed the order denying post-conviction relief. See Commonwealth v.

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Griffin, 676 WDA 2007 (Pa. Super., filed 6/2/08). Thereafter, Appellant

unsuccessfully sought post-conviction relief, in both state and federal courts,

in 2009, 2011 and 2012. See Commonwealth v. Griffin, 1089 WDA 2012,

at 2 (Pa. Super., filed 8/16/13) (setting forth procedural history).

       On March 9, 2015, prior counsel filed the PCRA petition at issue—

Appellant’s fourth. Within this petition, Appellant asserted that he timely

filed his PCRA petition within sixty days of receipt of a sworn affidavit from

the victim’s mother, in which the mother states that the victim recanted her

trial testimony prior to her death in 2011. The Commonwealth moved to

dismiss the petition, asserting that Appellant knew of the mother’s assertion

from   an   earlier   affidavit   he   received   in   2013.   According   to   the

Commonwealth, Appellant’s latest PCRA petition was untimely because

Appellant did not file it within sixty days of receiving the 2013 affidavit. The

PCRA court issued notice of its intent to dismiss the petition as untimely.

Prior counsel filed a response.

       At a hearing, the Commonwealth reiterated its argument regarding the

untimeliness of Appellant’s fourth petition. In response, Appellant’s prior

counsel opined that the 2013 affidavit was not sufficiently exculpatory; he

informed the court that once he contacted the victim’s mother he told her

she had to be more specific, and she then averred that the victim fully

recanted. Thus, according to prior counsel, Appellant timely filed his latest

PCRA petition within sixty days of receiving the 2015 affidavit. See N.T.,

Hearing, 6/12/15, at 5-9.

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      The PCRA court dismissed Appellant’s PCRA petition. This timely appeal

follows. Appellant raises the following issue: “Whether the [PCRA] court

erred in dismissing Appellant’s [PCRA petition] based on ‘after-discovered

evidence,’ when the petition was filed within 60 days after Appellant learned

of the critical fact upon which the petition is predicated?” Appellant’s Brief at

4 (excess capitalization omitted).

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. See

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold

a hearing on the petition if the PCRA court determines that petitioner’s claim

is patently frivolous and is without a trace of support in either the record or

from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1104

(Pa. Super. 2001).

      Because this is Appellant’s fourth petition for post-conviction relief, he

must meet a more stringent standard. “A second or any subsequent post-

conviction request for relief will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.


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Super. 2003) (en banc) (citations omitted). “A petitioner makes a prima

facie showing if he demonstrates that either the proceedings which resulted

in his conviction were so unfair that a miscarriage of justice occurred which

no civilized society could tolerate, or that he was innocent of the crimes for

which he was charged.” Id. (citations omitted).

      The timeliness of a post-conviction petition is jurisdictional. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final, see 42 Pa.C.S.A. § 9545(b)(1), unless the petition alleges, and the

petitioner proves, that an exception to the timeliness requirement exists,

see 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims

could have been presented.” Hernandez, 79 A.3d 651-52 (citations

omitted). See also 42 Pa.C.S.A. § 9545(b)(2).

      Appellant’s judgment of sentence became final on or about November

6, 2003, when the ninety-day time period for filing a writ of certiorari with

the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13. Thus, Appellant had until November 6, 2004 to file a

timely PCRA petition. As Appellant filed the instant petition in 2015, it is

patently untimely unless he has satisfied his burden of pleading and proving

that one of the enumerated exceptions applies.


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      As noted, Appellant claims that he timely filed the PCRA petition at

issue within sixty days of receiving the 2015 affidavit. When considering a

PCRA’s petitioner’s claim that he or she has established an exception to the

PCRA’s time bar under § 9545(b)(1)(ii), the petitioner must establish only

that the facts upon which the claim are predicated were unknown to him,

and that he could not have ascertained the facts earlier despite the exercise

of due diligence. See Commonwealth v. Bennett, 930 A.2d 1264, 1270-

72 (Pa. 2007). The determination of timeliness does not require a merits

analysis. See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.

2008).

      Here, the PCRA court found that Appellant did not demonstrate the

exercise of due diligence. We agree.

      It is undisputed that, in late 2014, Appellant sent prior counsel a 2013

affidavit he had received from the victim’s mother. This affidavit read, in

pertinent part, as follows:

         Prior to [the victim’s] untimely death, she informed me
         that she wanted to make things right and be forgiven for
         the bad things she had done.

         She informed me that Detective Larry Miller and some lady
         from an organization called “Pittsburgh Action Against
         Rape” forced her to pursue charges against [Appellant],
         and instructed her to do whatever she could, to get
         evidence to put [Appellant] behind bars for a long time.

         [The victim] shared with me that she told them that
         nothing really happened, and she did not want to press
         charges. She was upset because she liked [Appellant], but
         she realized that she was doing was wrong.


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          [The victim] told me that Detective Miller threatened that
          is she didn’t go forward with the charges, he would file
          charges against her for filing a false report. She was
          afraid, and did what the detective told her. She told me
          that Detective Miller coached her through the trial, and
          even showed her notes during her questioning at the
          preliminary hearing until [Appellant’s] lawyer caught him.

          Before passing away, [the victim] expressed extreme
          regret for the pain she has caused, and begged me to do
          my best to make it right.

See Appellant’s Brief at 11 (emphasis added). A comparison of that affidavit

with the one the victim’s mother later signed in 2015 reveals that they are

nearly identical except for the following final sentence in the latter affidavit:

“On several occasions [the victim] told me that she lied about [Appellant]

and that he never assaulted her or tried to rape her.”

       In responding to the PCRA court’s notice of its intent to dismiss,

Appellant’s prior counsel stated:

           [Appellant] had nothing to present the [PCRA] court that
          would be anything but frivolous with respect to the earlier
          affidavit from [the victim’s mother]. The second affidavit
          was the first time [the victim’s mother] was saying what
          she was saying about the victim informing her that she
          had lied. The Commonwealth may be unaware, and
          Appellant, should disclose, that [the victim] is deceased.

Response, 4/28/15, at 2.1



____________________________________________


1
  At the conclusion of the PCRA hearing, prior counsel asked to withdraw,
and present counsel was subsequently appointed.




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      Appellant cites no case law             to demonstrate that an absolute

recantation is necessary prior to the filing of a petition claiming newly-

discovered evidence. And we know of none. Given Appellant’s previous pro

se requests for post-conviction relief, his failure to exercise due diligence in

this instance cannot be excused. Compare Commonwealth v. Davis, 86

A.3d 883 (Pa. Super. 2014) (concluding that pro se litigant exercised due

diligence   in   filing   serial   petition   based   upon   affidavit   in   which   a

Commonwealth witness indicated he fabricated his trial testimony regarding

the defendant’s confession). Indeed, in the same response, prior counsel

informed the PCRA court that subsequently when he contacted the victim’s

mother to obtain her address, “she began screaming that she lied in the

affidavit.” Response, 4/28/15, at 2.

      In sum, the PCRA court correctly determined that Appellant failed to

exercise due diligence in filing his newly-discovered evidence claim.

Therefore, the PCRA court properly found Appellant’s fourth PCRA petition to

be untimely, and we affirm the PCRA court’s order denying Appellant post-

conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2016




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