J-E04003-17


                                   2018 PA Super 47

    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    ROBERT FENNELL,

                             Appellant                  No. 1119 EDA 2016


                 Appeal from the PCRA Order of March 22, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0406281-2005


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J.

OPINION BY OLSON, J.:                                  FILED MARCH 02, 2018

        Appellant, Robert Fennell, appeals from the order entered on March 22,

2016 by the Court of Common Pleas of Philadelphia County dismissing as

untimely Appellant’s March 19, 2014 serial petition filed pursuant to the Post-

Conviction Relief Act (PCRA).1 Appellant seeks relief from the judgment of

sentence imposed on December 4, 2006, following his jury convictions of

unlawful restraint, aggravated assault, robbery of a motor vehicle, kidnapping,

and criminal conspiracy.2 On appeal, Appellant contends that the PCRA court

erred in dismissing his claim asserting the newly discovered fact exception to
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1   42 Pa. C.S.A. §§ 9541-9546.

2 18 Pa. C.S.A. §§ 2902, 2702(a)(1), 3702(a)(1)(ii), 2901 and 903,
respectively.
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the PCRA’s timeliness requirement.3 After careful consideration, we conclude

that the PCRA court lacked jurisdiction to consider the claims raised in the

untimely PCRA petition. Accordingly, we affirm.

        On February 25, 2005, Appellant and his two co-conspirators kidnapped

the victim, his family and two neighbors in order to rob a check-cashing

business where the victim’s wife worked. On September 22, 2006, a jury

convicted Appellant of the above-mentioned crimes. The trial court sentenced

Appellant on November 15, 2006 to an aggregate term of imprisonment of ten

to 20 years. Sentence Order, 11/15/06. A panel of this Court affirmed the

judgment of sentence on July 16, 2008, and the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on April 1, 2009.

Commonwealth v. Fennell, 959 A.2d 961 (Pa. Super. 2008) (unpublished

memorandum), appeal denied, 968 A.2d 231 (Pa. 2009).

        Following the judgment of sentence, Appellant filed three PCRA petitions

on November 19, 2007, November 19, 2008, and November 8, 2010. None

of these petitions provided Appellant with relief. Appellant filed the present

pro se petition, his fourth, on March 19, 2014. After determining that the

current petition was untimely, the PCRA court denied relief without a hearing

on March 22, 2016.4 On appeal, a divided panel of this Court reversed the

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3   42 Pa.C.S.A. § 9545(b)(1)(ii).

4The record reveals that the PCRA court did not issue a Pa.R.Crim.P. 907
notice before it dismissed Appellant’s fourth petition. Nonetheless, Appellant



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PCRA court’s order dismissing Appellant’s petition. Specifically, the majority

concluded that Appellant pled sufficient facts to invoke the newly discovered

fact exception to the PCRA’s time-bar. Thus, the case was remanded for a

hearing to permit Appellant to prove that he acted with due diligence in filing

his fourth PCRA petition and, if able to do so, to demonstrate the merits of his

underlying issue.

       The Commonwealth filed a petition for reargument which was granted

on April 26, 2017.5 Following the submission of substituted briefs and oral

argument before this Court en banc, the case is ripe for decision.

       Appellant raises the following issue for our review:

       1. Did the PCRA [c]ourt err in dismissing [A]ppellant’s serial PCRA
          [p]etition without a hearing as untimely and declining to
          address [A]ppellant’s claim on the merits, specifically, whether
          [A]ppellant satisfied the newly-discovered facts exception to
          the PCRA time-bar pursuant to 42 Pa. C.S. § 9545(b)(1)(ii) and
          42 Pa. C.S. § 9545(b)(2), on [A]ppellant’s claim of a juror’s
          allegedly disqualifying criminal record?

Appellant’s Substituted Brief at 4.

       As our Supreme Court recently articulated:


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did not challenge the lack of Rule 907 notice on appeal, which constitutes
waiver of any rule-related claim. See Commonwealth v. Boyd, 923 A.2d
513, 514, n.1 (Pa. Super. 2007), appeal denied, 932 A.2d 74 (Pa. 2007).

5 This Court’s order of April 26, 2017 granting reargument en banc also
directed the Court of Common Pleas of Philadelphia County to appoint counsel
for Appellant for purposes of this appeal. Order, 4/26/17. Counsel was
appointed and represented Appellant for purposes of the reargument before
the Court en banc.

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      Our review of a PCRA court’s decision is limited to determining
      whether the PCRA court’s findings of fact are supported by the
      record, and whether its conclusions of law are free from legal
      error. Our review of questions of law is de novo. Our scope is
      limited to the PCRA court’s findings and the evidence of record,
      viewed in the light most favorable to the Commonwealth as the
      prevailing party.

Commonwealth v. Chimel, 2017 WL 5616233, *5 (Pa. Nov. 22, 2017)

(internal citations and quotes omitted).

      “Crucial to the determination of any PCRA appeal is the timeliness of

the underlying petition. Thus, we must first determine whether the instant

PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).        The PCRA

contains a jurisdictional time-bar, which is subject to limited statutory

exceptions. This time-bar demands that “a PCRA petition, including a second

or subsequent petition, must be filed within one year of a final judgment,

unless the petitioner alleges and proves that he is entitled to one of three

exceptions to this general rule, and that the petition was filed within 60 days

of the date the claim could have been presented.” Chimel, supra (citation

omitted); 42 Pa.C.S.A. § 9545(b).      A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545(b)(3).

      Further, since the time-bar implicates the subject matter jurisdiction of

our courts, we are required to determine first the timeliness of a petition


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before we consider the underlying claims. Commonwealth v. Taylor, 67

A.3d 1245, 1248 (Pa. 2013), cert. denied, 134 S.Ct. 2695 (2014) (“The PCRA

timeliness requirement . . . is mandatory and jurisdictional in nature. … The

court cannot ignore a petition’s untimeliness and reach the merits of the

petition.”)

      In this case, the Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal on April 1, 2009. Commonwealth v. Fennell, 968

A.2d 231 (Pa. 2009) (per curiam).          Therefore, Appellant’s judgment of

sentence became final on June 30, 2009, 90 days after the Pennsylvania

Supreme Court denied his petition for allowance of appeal and the time for

filing a petition for review with the United States Supreme Court expired. See

42 Pa.C.S.A. 9545(b)(3); U.S.Sup.Ct.R. 13. As such, to be timely, Appellant

had to file his PCRA petition by June 30, 2010.       Appellant’s present PCRA

petition was filed on March 19, 2014; therefore, it is patently untimely.

Nevertheless, an untimely PCRA petition may be considered if one of the

following exceptions applies:

      (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


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      of Pennsylvania after the time period provided in this section and
      has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      Whether the petitioner meets his burden to allege and prove that one of

the PCRA timeliness exceptions applies is a threshold inquiry that must be

resolved prior to considering the merits of the petition. Commonwealth v.

Edmiston, 65 A.3d 339, 346 (Pa. 2013). In this case, Appellant alleges that

the newly discovered fact exception set forth in Section 9545(b)(1)(ii) applies.

As this Court has stated:

      The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned those
      facts earlier by the exercise of due diligence. Due diligence
      demands that the petitioner take reasonable steps to protect his
      own interests. A petitioner must explain why he could not
      have learned the new fact(s) earlier with the exercise of
      due diligence. This rule is strictly enforced. Additionally, the
      focus of this exception is on the newly discovered facts, not on a
      newly discovered or newly willing source for previously known
      facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015), appeal

denied, 125 A.3d 1197 (Pa. 2015) (internal quotes and citations omitted)

(emphasis added).

      A review of Appellant’s most recent PCRA petition reveals that

Appellant’s allegations touch upon the newly discovered fact exception set




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forth in Section 9545(b)(1)(ii).6          Specifically, Appellant alleges that he

discovered that one of the jurors from his trial provided false information

regarding that juror’s criminal background during voir dire and the juror’s

perjured statement violated Appellant’s constitutional rights as the juror’s

conviction would have constituted a valid basis to strike him for cause. PCRA

Petition, 3/19/14, at 15, 18-19 (unpaginated).7 Appellant asserts that he was




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6 Appellant’s PCRA petition does not expressly allege or reference the newly
discovered fact exception. Instead, the petition alleges “equitable tolling.”
PCRA Petition, 3/19/14, at 19 (unpaginated). Specifically, Appellant asserts
that he diligently pursued his claims; however, correctional officers improperly
confiscated and destroyed his petitions, notes of testimony and other
evidence. Thus, he argues that the “PCRA statute is . . . subject to equitable
tolling.” Id. As our Supreme Court has made clear, “the period for filing a
PCRA petition is not subject to the doctrine of equitable tolling; instead the
time for filing a PCRA petition can be extended only by operation of one of the
statutorily enumerated exceptions to the PCRA time-bar.” Commonwealth
v. Robinson, 139 A.3d 178, 185 (Pa. 2016) (internal citations and quotes
omitted). Because of this, we could dismiss this most recent PCRA petition
for failure to assert properly the newly discovered fact exception. However,
since the petition does allege that Appellant did not receive information
regarding juror #2 until December 31, 2013 and February 14, 2014, we agree
that Appellant’s petition sufficiently raises the newly discovered fact
exception.

7   Title 42, Section 4502(a)(3) provides, in pertinent part:

       (a)    General rule. – Every citizen of this Commonwealth who
              is of the required minimum age of voting for State or local
              officials and who resides in the county shall be qualified to
              serve as a juror therein unless such citizen:
                                 ...




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not able to obtain the transcript of the September 18, 2006 jury voir dire until

December 31, 2013 at which time he saw that juror #2 stated under oath that

he was never convicted of a crime.             Id. at 19 (unpaginated).   Moreover,

Appellant alleges that it was not until February 14, 2014 that he obtained the

criminal background information regarding juror #2 which revealed that this

juror lied under oath as he had been convicted of a crime and, therefore, was

unqualified to serve on the jury. Id. As the current PCRA petition was filed

on March 19, 2014, less than 60 days after he learned of the juror’s criminal

conviction, Appellant argues that he properly invoked an exception to the

time-bar. Moreover, Appellant argues that he was “duly diligent in obtaining

the voir dire notes of testimony of September 18, 2006, which he contends

were obtained on December 31, 2013” and was “duly diligent when obtaining

juror #2’s criminal record, which [A]ppellant obtained from a fellow inmate on

or about February 14, 2014.” Appellant’s Substituted Brief at 10.

       After a careful review of the record, we conclude that Appellant’s March

19, 2014 petition was untimely as Appellant did not act diligently in obtaining



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              (3) has been convicted of a crime punishable by
              imprisonment for more than one year and has not been
              granted a pardon or amnesty therefor.

  42 Pa.C.S.A. § 4502(a)(3).




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the alleged information regarding juror #2.8 Additionally, Appellant did not

file his PCRA petition within the requisite 60 days after first obtaining

information regarding juror #2’s voir dire testimony. Accordingly, Appellant

failed to establish the applicability of the newly discovered fact exception

which would confer          subject matter       jurisdiction   on the   PCRA court.

       Attached to the instant PCRA petition is a hand-written statement

prepared by Appellant in which he alleges that he wrote to his trial counsel

Attorney Scott J. O’Keefe (now Judge O’Keefe) on September 23, 2006

(shortly after the conclusion of the jury trial in which Appellant was found

guilty) and requested his files. PCRA Petition, 3/19/14, at 15 (unpaginated).

On September 29, 2006, Attorney O’Keefe allegedly sent a letter with one trial

transcript and indicated that was all he had. Id. Appellant claims he did not

believe Attorney O’Keefe’s representation that that was all he had, so

Appellant alleges he sent a letter to Attorney O’Keefe every 15 days from

October 10, 2006 until November 18, 2007 asking for copies of all of his

paperwork and each request was ignored. Id. Although these allegations are

made, the only pertinent letter attached to the petition is a letter dated


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8 In its original brief, the Commonwealth asserted that Appellant’s “entire
claim is based on a glaring factual error” as the criminal history provided to
Appellant by a fellow prison inmate did not apply to juror #2 but to another
individual. Appellee’s Brief at 12, n. 4. As we conclude that Appellant’s PCRA
petition is untimely, we need not get into the merits of whether juror #2 was,
in fact, convicted of a crime that would disqualify him from serving on a jury.



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October 11, 2012 from Emily Cherniack, Esquire (Appellant’s second lawyer)

to Appellant.9    This letter reads in relevant part:


       Enclosed is a copy of your transcripts in the above-captioned
       matter which I have retained. I do not have the discovery in your
       matter. I will check again but I believe Mr. O’Keefe as your trial
       attorney may have retained a copy. As I was relieved as your
       court appointed attorney, I have no ability to request your
       discovery for you.

       I can make two suggestions to you. First, if Mr. O’Keefe no
       longer has the file, Mr. Ostriak may have a copy of your co-
       defendant’s discovery. Also, if your family has access to the
       criminal justice center, some or much of the police paperwork may
       be in the file as exhibits in the court file.

Id. at 14 (unpaginated) (emphasis added). Thus, as early as October 11,

2012, Appellant was advised by his second counsel that she did not have the

documents requested and that, if Attorney O’Keefe did not have the



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9 Appellant attached copies of other letters to his initial pro se brief, including
letters from Attorney O’Keefe dated March 14, 2007 and September 30, 2013,
and letters from Jason Javie of Michael J. Diamondson, P.C. dated March 18,
2012 and August 20, 2012. These letters were not attached to the March 19,
2014 PCRA petition and, although some of these letters were attached to prior
PCRA petitions filed by Appellant, it is not clear that all of the letters were
included with earlier PCRA submissions. To the extent that these letters were
not made part of the certified record, we cannot consider them.
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (if a document
is not in the certified record, the Superior Court may not consider it), appeal
denied 916 A.2d 632 (Pa. 2007). See also Commonwealth v. Kennedy,
868 A.2d 582, 593 (Pa. Super. 2006) (Any document not in the certified record
is deemed non-existent, a deficiency which cannot be remedied merely by
attaching the missing documents to the brief.). Even if we were to consider
these documents, they do not support the conclusion that Appellant acted
diligently in ascertaining the newly discovered facts regarding juror #2.


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documents (a fact which Appellant knew as he alleged that he repeatedly

requested documents from Attorney O’Keefe starting in 2006 and received

only one transcript), he should contact his co-defendant’s lawyer to see if he

had copies of the desired materials.           Apparently, that is what Appellant

ultimately did as he alleges in his PCRA petition that he received a copy of the

relevant jury voir dire transcript from his co-defendant, Lamont Childs, on

December 31, 2013, more than one year after he was advised by Attorney

Cherniack to contact his co-defendant’s counsel to see if he had the requested

materials. Waiting over one year to contact either his co-defendant or his co-

defendant’s counsel to request the relevant transcript does not sufficiently

allege that Appellant acted with due diligence.10

       Additionally, Appellant alleges in his petition that, after receiving the

pertinent jury voir dire transcript on December 31, 2013, he requested the

help of a fellow prisoner, Anthony Murphy, on January 31, 2014.                PCRA

Petition, 3/19/14, at 19 (unpaginated).        Appellant asserts “[t]his prisoner . .

. agreed to have his friends run a back ground [sic] search of several juror[s].

On February 14th 2014 Murphy sent [Appellant] a copy of [j]uror #2[‘s] . . .

docket sheet. [Appellant] promptly filed this PCRA after discovered [sic] that

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10  Appellant’s co-defendant and co-defendant’s counsel were known to
Appellant as potential sources of relevant information as early as the time of
trial in 2006. Clearly, then, they should have been investigative targets for
any supplemental information that Attorney O’Keefe was unable to produce.




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[juror #2] lied.” Id. In support of this allegation, Appellant attaches a hand-

written document entitled “Affidavit” dated February 15, 2014 purportedly

signed by Anthony Murphy.11 That document provides in its entirety:

       I Anthony Murphy FW0863 hearby [sic] declare that the following
       facts are true and correct to the best of my knowledge & belief[.]

       On February 15 [sic] 2014 I gave [Appellant] a common pleas
       docket sheet with the name of [W.C.][.]

       [Appellant] has been asking me to help him to get a
       background report for over a year but I could not get it until
       Feb 13 2004 [sic] [.]

PCRA Petition, 3/19/14 at 10 (unpaginated) (emphasis added).                Thus,

Appellant’s own petition indicates that he knew about juror #2 and had been

seeking a background report on the juror in question for over a year.

Moreover, Appellant fails to explain why Anthony Murphy was the sole source

of juror #2’s criminal history or why he did not pursue other avenues when

there was a delay in obtaining the requested information from Mr. Murphy.

Hence, the record does not support the conclusion that Appellant acted with

due diligence in obtaining the newly discovered facts upon which he now

relies. As this Court stated in Brown, “[a] petitioner must explain why he



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11  Although captioned “Affidavit,” the document purportedly signed by
Anthony Murphy is not an affidavit. An affidavit is “[a] voluntary declaration
of facts written down and sworn to by a declarant . . . before an officer
authorized to administer oaths.” Black’s Law Dictionary (10th ed. 2014)
(emphasis added).     Nothing on the document purportedly signed by Mr.
Murphy indicates that Mr. Murphy swore to or affirmed the statements made
in the document before an officer authorized to administer oaths.

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could not have learned the new fact(s) earlier with the exercise of due

diligence. This rule is strictly enforced.” Commonwealth v. Brown, 111

A.3d at 176 (emphasis supplied).

       Most troubling of all is that the allegations set forth in Appellant’s March

19, 2014 PCRA petition regarding his inability to obtain the jury voir dire

transcript do not appear to be truthful. Contained within the certified record

is the PCRA petition filed by Appellant on November 19, 2008, just two years

after his conviction.      Appellant attached to that petition a typed-written

document that contains a section entitled “Basic and Fundamental Error’s

[sic].” PCRA Petition, 11/19/08 at 35. In that section, Appellant asserts that

juror #29, S.C., was stricken for cause based on her testimony that she was

a victim of a crime. Id. Appellant then cites to notes of testimony (pages

186-187) and quotes the question posed to juror #29 and her answer.12 Id.

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12 We note that the quote contained in Appellant’s November 19, 2008 PCRA
petition is not identical to the language contained in the notes of testimony
from the jury voir dire proceeding on September 18, 2006. Appellant’s PCRA
petition states:

       (The Court) Q. Have you or someone close to you been the victim
       of a crime?

       (Juror #29) A. Yes, me, [i]t was a [r]obbery.

PCRA Petition, 11/19/08 at 35. The notes of testimony from the voir dire
proceeding read:

       The Court: You or someone close to you has been the victim of a
       crime?



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This attachment goes on to reference other jurors who were stricken for cause

and cites to the relevant transcript pages. Id. Based on the attachments to

Appellant’s November 19, 2008 petition, we can only conclude that Appellant

had the relevant notes of testimony from the September 18, 2006 jury voir

dire proceeding as early as November 2008.13 Appellant’s possession and use

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       Juror #29: Yes.

       The Court: Who would that have been?

       Juror #29: Me.

       The Court: Did it involve the same or similar type of offense or
       offenses that you heard mentioned here?

       Juror #29: No.

       The Court: Was it robbery, assault?

       Juror #29: it was a robbery.

N.T., 9/18/06, at 186-187. Although not identical, Appellant’s November 19,
2008 PCRA Petition accurately reflects the contents of the questions and
answers with respect to juror #29 and correctly references the pages of the
notes of testimony.

13 In his substituted brief, Appellant acknowledges the argument that
Appellant had the September 18, 2006 voir dire transcript prior to November
19, 2008. Appellant’s Substituted Brief at 11. However, Appellant goes on to
argue that he “contends otherwise” and “[f]or this reason alone, an
evidentiary hearing is warranted so that the trial court may make its
evidentiary determination.” Id. We disagree. It is well established that a
hearing is not necessary when a petitioner’s claim is patently frivolous and is
without a trace of support in the record or from other evidence.
Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). Here,
the certified record belies Appellant’s contention that he first obtained the voir



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of the 2006 jury voir dire transcript in support of his previous November 2008

PCRA petition wholly undercuts the credibility of his present assertion that he

did not obtain the jury voir dire transcript until December 31, 2013.         In

addition, Appellant’s earlier possession of the jury voir dire transcript

advances the trigger date for investigating claims concerning the veracity of

juror #2’s responses to questions posed by the trial judge.14

       For the foregoing reasons, we conclude that Appellant failed to meet his

burden of establishing the applicability of the newly discovered fact exception

to the PCRA time-bar and, as such, Appellant’s March 19, 2014 PCRA petition

is untimely. Accordingly, the PCRA court lacked jurisdiction to consider the

merits of the petition.

       Order affirmed.




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dire transcript on December 31, 2013; therefore, a hearing is not warranted.
See Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014) (“If a PCRA
petitioner’s . . . allegations are refuted by the existing record, an evidentiary
hearing is unwarranted.”).

14 Indeed, even the content of Mr. Murphy’s statement strongly supports the
conclusion that Appellant has long harbored, but failed to act upon, suspicions
that juror #2 made false statements regarding his criminal history. In his
statement, Mr. Murphy declared that Appellant had requested his assistance
in securing background information “for over a year.” See PCRA Petition,
3/19/14, at “Affidavit” of Anthony Murphy (emphasis added).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/18




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