J-S73030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSE LUIS SANTOS                           :
                                               :
                      Appellant                :   No. 418 MDA 2017

                 Appeal from the PCRA Order January 30, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0002087-1999


BEFORE:      OLSON, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 22, 2018

        Appellant, Jose Luis Santos, appeals pro se from the January 30, 2017

Order, entered in the Dauphin County Court of Common Pleas, dismissing as

untimely his fifth Petition filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

        On November 17, 2000, a jury convicted Appellant of Rape, Statutory

Sexual Assault, Endangering the Welfare of Children, and Corruption of

Minors.1 On March 29, 2001, the court sentenced Appellant to an aggregate

term of 12½ to 25 years’ imprisonment.              On June 27, 2002, this Court

affirmed Appellant’s Judgment of Sentence.           Commonwealth v. Santos,

No. 926 MDA 2001 (Pa. Super. filed June 27, 2002) (unpublished

____________________________________________


1 18 Pa.C.S. § 3121; 18 Pa.C.S. § 3122.1; 18 Pa.C.S. § 4304; and 18
Pa.C.S. § 6301, respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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memorandum).          On November 13, 2002, our Supreme Court denied

Appellant’s Petition for Allowance of Appeal.      Commonwealth v. Santos,

No. 554 MAL 2002 (Pa. filed November 13, 2002). Appellant’s Judgment of

Sentence became final on February 11, 2003.2

       Appellant filed the instant PCRA Petition, his fifth, on August 15, 2016.

In his Petition, Appellant alleged the existence of new evidence that

established his innocence, and claimed that the Commonwealth had

suppressed the evidence during trial. On January 5, 2017, the PCRA court

issued a Notice of Intent to Dismiss Appellant’s PCRA Petition pursuant to

Pa.R.Crim.P. 907. Appellant filed a Response to the court’s Rule 907 Notice

on January 23, 2017.

       On January 30, 2017, the PCRA court dismissed Appellant’s Petition.

Appellant timely appealed.          Both Appellant and the court complied with

Pa.R.A.P. 1925.

       Appellant raises the following issue on appeal:

       1. Did the [PCRA] court err in finding that the PCRA Petition was
          untimely and did not invoke a valid exception to the time
          limitations and failing to conduct an evidentiary constituting a
          due process [sic]?

Appellant’s Brief at 6.
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2 See 42 Pa.C.S. § 9545(b)(3) (providing that a Judgment of Sentence
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.”).




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      Before addressing the merits of Appellant’s claim, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA petition is a jurisdictional

requisite).

      Under the PCRA, any PCRA petition ”including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). The PCRA’s timeliness requirements are

jurisdictional in nature, and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.          Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).          Appellant’s Petition, filed on

February 1, 2017, is facially untimely.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides as follows:

         (b) Time for filing petition.

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

              (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;




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            (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.

         (2) Any petition invoking an exception provided in
         paragraph (1) shall be filed within 60 days of the date the
         claim could have been presented.

42 Pa.C.S. § 9545(b)(1-2) (emphasis added).

      The exception in Section 9545(b)(1)(ii) requires a petitioner to plead

and prove that “1) the facts upon which the claim was predicated were

unknown [at the time of trial;] and 2) could not have been ascertained by

the exercise of due diligence [prior to trial].”   Commonwealth v. Bennett,

930 A.2d 1264, 1272 (Pa. 2007).

      “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.”   Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.

Super. 2011) (citations omitted).

      In the instant case, Appellant claims that, on July 27, 2016, he

“acquired new facts relevant to [his] medical history.” Appellant’s Brief at 9.

Appellant notes that a Commonwealth witness testified at his trial that

Appellant had suffered an injury to his penis, and that “an adult male who

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attempted to have sexual intercourse with a young girl could injure his

penis.” Id. at 11. Appellant now avers that it was not until July 27, 2016—

16 years after his trial—that he obtained his own medical records regarding

a procedure that he underwent on his penis in 1991.3 He argues that the

medical records obtained on July 27, 2016, “clearly establishes [sic] that []

Appellant’s penis injury was from the medical procedure and not as a result

of an ‘adult male attempting to have sexual intercourse with a young girl.’”

Id. at 11-12.        Appellant also avers that these medical records were

unavailable to him at the time of trial because the medical records that the

Commonwealth had subpoenaed were from York County Hospital and York

Memorial Hospital “and the records he received did not support []

Appellant’s defense on how his penis injury occurred.”4 Id. at 12.

       With respect to this claim, the PCRA court aptly noted that the records

at issue “are Appellant’s own medical records which would have been

available to him at the time of trial.” PCRA Ct. Op., 4/18/17, at 2 (emphasis

added). Thus, the court concluded that “the medical records were known to


____________________________________________


3 Appellant has appended to his Brief copies of purported medical records,
which note that Appellant had a medical procedure to remove warts from his
penis resulting from human papilloma virus (“HPV”) on December 26, 1991.

4 The medical records annexed to Appellant’s Brief purport to be records of a
“YADS PE.” It is unclear from these documents what “YADS” is and whether
it is affiliated in any way with either York County Hospital or York Memorial
Hospital.



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Appellant at the time of trial and could have been available by the exercise

of due diligence.” Id.

        Appellant also argues, in the alternative that, if his own medical

records were available to him at the time of trial, as the PCRA court

concluded, then the Commonwealth impermissibly withheld production of

them, resulting in a Brady5 violation. Id. at 12-13. In these circumstances,

Appellant avers, “valid timeliness exception pursuant to 42 Pa.C.S. §

9545(b)(1)(i) is applicable.”       Appellant’s Brief at 13.       Appellant’s alternate

claim lacks merit.

        We agree with the PCRA court’s conclusions that Appellant’s own

medical records would have been available to him at the time of trial had he

exercised due diligence to obtain them.              Moreover, it is also likely that

Appellant knew at the time of trial that he had undergone the medical

procedure noted in his medical records, thus, this is not a “new fact.”

Significantly, because Appellant had access to his own medical records at the

time of trial—and did not plead or prove that he had requested the instant

records    and    the   Commonwealth           had   failed   to   produce   them6—the

____________________________________________


5  Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the
prosecution.”).

6   See Brady, 373 U.S. at 87.



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Commonwealth       did   not   “suppress”   or   “withhold”   them   from   him.

Accordingly, Appellant failed to prove any exception to the timeliness

requirement, and his PCRA petition is, thus, untimely.

      Lastly, Appellant claims that he was entitled to a hearing on his PCRA

Petition, and that the court’s failure to hold such a hearing violated his due

process rights. Appellant’s Brief at 18-19.

      With respect to this allegation, we note that the right to a hearing on a

PCRA petition is not absolute.       A court may deny a petition for post-

conviction relief without a hearing when it determines that there are no

genuine issues concerning any material fact, and that the petitioner is not

entitled to relief. Pa.R.Crim.P. 907(1); Commonwealth v. Camps, 772

A.2d 70 (Pa. Super. 2001). The trial court properly concluded that Appellant

had presented no issues of material fact, thus, it properly denied a hearing

on his Petition.

      Order affirmed. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2018



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