J-S36006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSE MENDEZ,                            :
                                         :
                    Appellant.           :   No. 8 EDA 2017


               Appeal from the PCRA Order, November 22, 2016,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0707561-2002.


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

MEMORANDUM BY KUNSELMAN, J.:                    FILED OCTOBER 25, 2018

     Jose Mendez appeals from the order denying his second petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

     The pertinent facts and procedural history are as follows: On July 2,

2003, a jury convicted Mendez of first-degree murder and related charges

from an incident that resulted in the death of Visael Otero. Mendez, his co-

defendant, Jean Carlos Cruz Rivera, and Otero lived in a house owned by

Johnny Rivera, a drug dealer for whom Mendez and Cruz Rivera worked. Otero

did not work in the drug trade, but had a legitimate construction job.

Moreover, Rivera did not live at the house, but kept his drug money receipts

hidden in a light fixture in Mendez’s middle bedroom on the second floor. At
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the time of Otero’s murder, these funds totaled approximately $60,000.00 to

$70,000.00.

      Prior to Mendez’s trial, Cruz Rivera pled guilty to third degree murder,

and agreed to testify against Mendez in order to avoid a possible life sentence.

According to Cruz Rivera, on June 11, 2001, after Johnny Rivera and some

construction workers left the house, Cruz Rivera turned up the radio’s volume

at Mendez’s direction, and Mendez went upstairs. Mendez then quickly came

downstairs with a pistol in his hand.    Mendez asked Cruz Rivera to “come

upstairs with [him].” N.T., 7/1/18, at 16. Once upstairs, Cruz Rivera saw

Otero’s bleeding body on the floor. The two men then stole the drug money

and fled.

      Immediately following the jury’s verdict, the trial court sentenced

Mendez to an aggregate term of life imprisonment.        Mendez filed a timely

appeal to this Court. Among the claims he raised on appeal, Mendez argued

that the evidence was not sufficient to support his conviction for first-degree

murder primarily because Cruz Rivera’s trial testimony was not credible. We

dismissed this claim, noting that the jury, as fact-finder, is the “final arbiter

of credibility.” See Commonwealth v. Mendez, 873 A.2d 770 (Pa. Super.

2005), unpublished memorandum at 2. Finding no merit to the remaining

claims raised by Mendez, we affirmed his judgment of sentence. Id. at 5. On

November 30, 2005, our Supreme Court denied Mendez’s petition for

allowance of appeal. Commonwealth v. Mendez, 889 A.2d 1214 (Pa. 2003).




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      On January 26, 2006, Mendez filed a pro se PCRA petition, and the PCRA

court appointed counsel. On June 29, 2006, Mendez’s counsel filed a no-merit

letter and petition to withdraw pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc).     After filing Pa.R.Crim.P. 907 notice of intent to

dismiss Mendez’s petition without a hearing, the PCRA court dismissed the

petition on September 22, 2006. The record reflects that the PCRA court did

not dispose of PCRA counsel’s motion to withdraw, and PCRA counsel took no

further action on Mendez’s behalf. Further, the record did not indicate that

the PCRA court apprised Mendez of his right to appeal in accordance with

Pa.R.Crim.P. 907(4), and Mendez did not file a timely appeal.

      Represented    by   new   counsel,   Mendez   sought   nunc    pro   tunc

reinstatement of his right to appeal from the dismissal of his prior petition.

The PCRA court granted the petition on March 30, 2009. Thereafter, Mendez

filed a nunc pro tunc appeal in which he asserted various claims of ineffective

assistance of counsel. Finding these claims to be without merit or waived, on

August 25, 2010, we affirmed the order denying post-conviction relief.

Commonwealth v. Mendez, 11 A.3d 1037 (Pa. Super. 2010) (unpublished

memorandum). On October 23, 2012, our Supreme Court denied Mendez’s

nunc pro tunc petition for allowance of appeal and application for relief.

Commonwealth v. Mendez, 78 A.3d 614 (Pa. 2012).

      On August 18, 2014, Mendez filed the counseled PCRA petition at issue,

his second, in which he asserted that he possessed newly discovered evidence.

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He attached a declaration from Wilfredo Ortiz, a fellow inmate, who would

testify that he witnessed the shooting, and that the shooter was not Mendez.

According to Mendez, he did not know this information until Ortiz sent a letter

to Mendez’s counsel on June 25, 2014.            The PCRA Court held evidentiary

hearings on October 31, 2016, and on November 10, 2016.1 At the close of

testimony, the PCRA court took the matter under advisement. The PCRA court

held an additional hearing on November 22, 2016. At the hearing, the court

explained its reasons on the record and denied Mendez’s petition that same

day. This appeal followed. Both Mendez and the PCRA Court have complied

with Pa.R.A.P. 1925.

       Mendez raises the following issues on appeal:

          I.     Did the PCRA court use incorrect standards of review
                 under which to evaluate [Mendez’s] after discovered
                 evidence claim which increased his burden of proving
                 a different verdict would likely result if a new trial were
                 granted?

                     A. Does the after discovered evidence have to
                        “outweigh [] the [Commonwealth’s] evidence”?

                     B. Does the after discovered evidence have to be
                        such as to “likely compel a different verdict”?

          II.    Was the Commonwealth’s testimony against which
                 the newly discovered evidence must be evaluated
                 mis-characterized by the PCRA court when it deemed


____________________________________________


1There is no explanation in the certified record for the over two-year delay in
holding these hearings.




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                 it “compelling” and “highly credible” when in fact it
                 really was the worst form of evidence?

Mendez’s Brief at 6 (excess capitalization omitted). 2 We will address these

claims together.

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

under the PCRA is to determine whether the PCRA court’s conclusion is

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

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

findings in the certified record. Commonwealth v. Barndt, 74 A.3d 185,

191-92 (Pa. Super. 2013) (citations omitted).

        We must first determine whether Mendez’s second petition for post-

conviction relief was timely filed. 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, unless the petition alleges, and the petitioner

proves, that an exception to the time for filing the petition, set forth at 42

Pa.C.S.A. sections 9545(b)(1)(i), (ii), and (iii), is met.3 42 Pa.C.S.A. § 9545.


____________________________________________


2 Mendez also maintains that he can challenge PCRA counsel’s alleged
ineffectiveness for the first time on appeal. Mendez’s Brief at 17-21. We
disagree.    See generally Commonwealth v. Pitts, 981 A.2d 875 (Pa.
2009). Moreover, Mendez does not develop this claim within his brief.

3   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of government officials with the presentation of the



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A PCRA petition invoking one of these statutory exceptions must “be filed

within 60 days of the date the claims could have been presented.”               See

Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013)

(citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Asserted exceptions

to the time restrictions for a PCRA petition must be included in the petition,

and may not be raised for the first time on appeal.          Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016).

       Here, because Mendez did not seek further review after our Supreme

Court denied his petition for allowance of appeal on November 30, 2005, his

judgment of sentence became final ninety days thereafter, or on February 28,

2006. See 42 Pa.C.S.A. § 9545(b)(3). Thus, for purposes of the PCRA’s time

bar, Mendez had to file his second petition by February 28, 2007. As he filed

his second petition in 2014, it is patently untimely, unless Mendez has satisfied




____________________________________________


       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
       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), (ii), and (iii).


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his burden of pleading and proving that one of the enumerated exceptions

applies. See Hernandez, supra.

     As noted above, Mendez claims he meets the time-bar exception based

upon “newly discovered” evidence. This Court has summarized:

           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 of 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.

           The timeliness exception set forth at Section
        9545(b)(1)(ii) has often mistakenly been referred to as the
        “after-discovered evidence” exception.       This shorthand
        reference was a misnomer, since the plain language of
        subsection (b)(1)(ii) does not require the petitioner to allege
        and prove a claim of “after-discovered evidence.” Rather,
        an initial jurisdictional threshold, Section 9545(b)(1)(ii)
        requires a petitioner to allege and prove that there were
        facts unknown to him and that he exercised due diligence in
        discovering those facts. Once jurisdiction is established, a
        PCRA petitioner can present a substantive after-discovered
        evidence claim.

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

and quotation marks omitted).

     Stated differently, subsection 9545(b)(1)(ii)

        “has two components that must be alleged and proved.
        Namely, the PCRA petitioner must establish that: 1) the
        facts upon which the claim is predicated were unknown to
        him and 2) could not have been ascertained by the exercise

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         of due diligence. If the petitioner alleges and proves these
         two components, then the PCRA court has jurisdiction over
         the claim under this subsection.

Id., at 176-77 (quoting Commonwealth v. Bennett, 930 A.2d 1264, 1272

(Pa. 2007) (emphasis in original).

      Here, Mendez labeled this PCRA petition as a “Petition for Post-

Conviction Relief Based Upon After-Discovered Evidence under 42 Pa.C.S.

§9545(b)(1)(ii) and (b)(2).”   In regard to the latter subsection, although

making no further reference to Section 9545(b)(1)(ii), Mendez averred that,

“he was not present at the time of the murder and therefore learned of Mr.

Ortiz’s presence during the murder only after [Ortiz’s] letter, dated June 25,

2014, and postmarked June 26, 2014, was received.            Accordingly, the

evidence could not have been made available to him through reasonable

efforts prior to or at the time of trial.” Within the motion, Mendez proffered

no other evidence to support this assertion.

      As we reinforced in Brown, supra, a PCRA petitioner’s “reliance on

Section 9543 as a basis for asserting an after-discovered-evidence under the

PCRA, [does not] suspend [the petitioner’s] initial obligation to establish

jurisdiction by alleging and proving” the Section 9545(b)(1)(ii) time-bar

requirements enumerated above. Brown, 111 A.3d 177. At the subsequent

evidentiary hearing, Mendez did not testify and provided no additional

information regarding the discovery of this “new fact” or his exercise of due

diligence.



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      Just as the PCRA petitioner must establish the Subsection 9545(b)(ii)

requirements, the PCRA also must court initially determine whether it has

jurisdiction under the PCRA. This determination is important, preliminarily, as

it could obviate the need for an evidentiary hearing regarding the merits of

the “newly-discovered” evidence. See Commonwealth v. Gamboa-Taylor,

753 A.2d 780, 784 (Pa. 2000) (explaining that “the PCRA court concluded that

[the PCRA petitioner] failed to establish his entitlement to the one-year time

limitation, thus obviating the need for the court to receive evidence on [his]

substantive PCRA claims”).

      Here, the PCRA court did not specifically address the Section

9545(b)(1)(ii) exception to the PCRA’s time bar, but rather, noted that it

“tacitly agreed that the new evidence allowed for the [PCRA’s] timeliness

exception to apply.” PCRA Court Opinion, 5/16/17, at 8. The court then heard

Ortiz’s testimony at the evidentiary hearing, and concluded that Ortiz’s

testimony did not qualify as “after-discovered” evidence that would warrant a

new trial. See PCRA Court Opinion, 8/25/17, at 5-7.

      The PCRA court’s “tacit agreement” that Mendez met the Section

9545(b)(1)(ii) time-bar exception, although involving the court’s very

jurisdiction to hear the merits of Mendez’s underlying after-discovered

evidence claim, is not sufficient to meet the PCRA court’s initial determination.

Nevertheless, rather than remand for a determination of jurisdiction before

proceeding further, we conclude that the record establishes the PCRA court


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had jurisdiction to address Mendez’s after-discovered evidence claim.        We

caution, however, that the PCRA court should always address jurisdiction

before deciding the merits of the underlying claim.

      Nothing in our review of the record contradicts Mendez’s assertions in

his PCRA petition. He asserted that he was not present when the victim was

murdered, and did not discover Ortiz’s testimony until Ortiz wrote to Mendez’s

counsel on June 25, 2014. Mendez filed his petition within 60 days of gaining

this knowledge. Given these circumstances, Ortiz arguably met the Section

9545(b)(1)(ii) requirements, which gave the PCRA court jurisdiction. Thus,

we will review the PCRA court’s disposition of Mendez’s after-discovered

evidence claim.

      A petitioner is eligible for relief under the PCRA and can obtain a new

trial if he can establish the “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). This Court has explained the four-part test the court should

apply to such claims as follows:

            To obtain relief based on after-discovered evidence, an
         appellant must demonstrate that the evidence: (1) could not
         have been obtained prior to the conclusion of trial by the
         exercise of reasonable due diligence; (2) is not merely
         corroborative or cumulative; (3) will not be used solely to
         impeach the credibility of a witness; and (4) would likely
         result in a different verdict if a new trial were granted.




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Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation

omitted).   “The test is conjunctive; the [appellant] must show by a

preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.” Id. Moreover, “when reviewing the

decision to grant or deny a new trial on the basis of after-discovered evidence,

an appellate court [must] determine whether the PCRA court committed an

abuse of discretion or error of law that controlled the outcome of the case.”

Id.

      Wifredo Ortiz was the only witness to testify at the evidentiary hearings.

On direct, he testified about the contents of the two letters he had sent to

Mendez’s counsel, and the declaration that was prepared with the assistance

of counsel. The PCRA court summarized these declarations as follows:

             [Ortiz] stated that on the night of the murder he was in
         the house and “observed [Cruz Rivera] on that evening
         enter the house, go to the second floor, and shoot Visael
         Otero with a handgun.” He “kept quiet” about what he saw
         because he was afraid [Cruz] Rivera would try to kill him,
         and afraid of the police because he was wanted for dealing
         drugs. One day in May of 2014 he met [Mendez] at the
         prison, recognized him because he knew his cousin, and
         came to realize that he was serving a sentence for the
         murder he saw. He did not tell [Mendez] that but [Mendez]
         gave him his attorneys’ information (he did not say why).
         He said he [wrote one of the attorneys and told her] he had
         been in the neighborhood on the night of the murder but did
         not reveal that he was in the house and saw it. “Later, I
         still could not get the murder out of my mind and continued
         to think that Jose Mendez was serving time for the rest of
         his life for a crime I knew he did not commit.” He described
         sending [a second] letter to the attorney and then confirmed
         that he never discussed the case with anyone until he
         [contacted] the attorney.

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PCRA Court Opinion, 5/16/17, at 7-8. The court further noted that, in neither

his letters to counsel nor his declaration “did [Ortiz] mention whether he ever

discussed any of this with [Mendez] personally.” Id. at 8.

      As noted above, the PCRA court held an additional hearing on November

22, 2016. At this time, Mendez declined to present any additional evidence

or argument. The PCRA court then expressed its reasons for denying Mendez’s

second PCRA petition:

              I do not find the evidence persuasive enough that I would
           conclude it would likely compel a different verdict. The
           evidence presented by the witness, I believe, does not rise
           to that standard, even on the preponderance of the
           evidence.

              [The court noted its belief that the evidence was
           discovered after trial, could not have been obtained earlier,
           and was not cumulative nor impeaching of any of the trial
           witnesses. Thus, the first three parts of the Foreman test
           were met.]

               The burden being that the preponderance of the
           evidence, I find that burden had not been met given the
           nature and the quality of the testimony presented [as to the
           fourth part of the Foreman test], so the motion for a new
           trial is denied.

PCRA Court Opinion, 5/16/17, at 8.

      Citing the above comments, Mendez argues that “each standard of

review cited above ignores the impact of the after discovered evidence on

raising a reasonable doubt, and each focuses on whether the after discovered

evidence     outweighed    the   Commonwealth’s     evidence   or   whether   its

persuasiveness would have compelled a different verdict.” Mendez’s Brief at



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8. According to Mendez, “[e]ach standard used by the PCRA court increases

[his] burden of proof, from needing to show the evidence could have raised a

reasonable doubt to requiring [him] to show his evidence came close to

proving innocence.”   Mendez’s Brief at 8. Finally, Mendez argues that the

PCRA court “greatly overvalued the Commonwealth’s evidence presented at

trial to [his] prejudice.” Id. We disagree.

      In discussing the fourth part of the Foreman test necessary to support

the award of a new trial, based on after-discovered evidence, this Court has

summarized:

             [B]efore granting a new trial, a court must assess
         whether the alleged after-discovered evidence is of such
         nature and character that it would likely compel a different
         verdict if a new trial is granted. See [Commonwealth v.
         Pagan, 950 A.2d 270, 292 (Pa. 2008)]. In making this
         determination, a court should consider the integrity of the
         alleged after discovered evidence, the motive of those
         offering the evidence, and the overall strength of the
         evidence supporting the conviction.

Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010).

      After careful review, we agree with the PCRA court that it “applied the

proper standard, and its ruling had a sound factual foundation.” PCRA Court

Opinion, 5/16/17, at 8. The PCRA court explained:

             [Mendez] made no attempt to demonstrate, by
         references to the [in]culpatory evidence against him
         presented at trial, or any exculpatory evidence his trial
         counsel introduced or tried to elicit through cross-
         examination of the [Commonwealth’s] witnesses, how this
         alleged new evidence would have swayed a jury from a
         belief in the credibility of the [Commonwealth’s] witnesses,
         and this court was not required to make that effort for him,

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         particularly since that evidence was found sufficient to
         convict in the direct appeal.

                                     ***

             Our courts have become increasingly inclined to dismiss
         jailhouse revelations to fellow inmates such as this one out
         of hand. “Furthermore, it must be remembered that in such
         cases we are often dealing with witnesses who themselves
         are actively engaged in a criminal lifestyle. Telling a story
         to help a friend or relative to beat the rap, [cannot] be
         viewed as an extraordinary occurrence.” Commonwealth
         v. Bracero, 515 Pa. 355, 528 A.2d 936, 941 (1987)[.]

                                     ***

            Our courts have consistently and emphatically ruled that
         the PCRA court’s first and primary function is to do precisely
         what this court did: examine the purported exculpatory
         evidence and balance it against that used to convict and
         determine whether it has any scintilla of credibility and could
         have possibly outweighed the [Commonwealth’s] evidence,
         and if the answers are no, to summarily dismiss it.
         Wherefore, the denial of [Mendez’s] second PCRA petition
         should be affirmed.

PCRA Court Opinion, 5/16/17, at 12-15 (emphasis and internal quotation

marks omitted).

      Our review of the record supports the PCRA court’s conclusions. As the

PCRA court noted, when considering the alleged after-discovered evidence

such credibility considerations are properly part of the determination of the

integrity of the proffered evidence. Therefore, the PCRA court must consider

whether the proposed evidence would “likely compel a different verdict if a

new trial is granted.” Padillas, supra. Mendez’s disagreement with the PCRA

court’s credibility assessment of the evidence presented at his trial—opining

that it was “worst form of evidence,” is not a basis for post-conviction relief.


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      In sum, the PCRA court correctly concluded that Mendez’s after-

discovered evidence claim did not entitle him to post-conviction relief in the

form of a new trial. We therefore affirm the PCRA court’s order denying his

PCRA second petition.

      Order affirmed.

      President Judge Gantman concurs in the result.

      Judge Dubow concurs in the result.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/18




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