J-S78015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

GREG LEE

                            Appellant                      No. 631 MDA 2014


                  Appeal from the PCRA Order March 6, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000332-2004


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED FEBRUARY 20, 2015

        Appellant, Greg Lee, appeals from the order entered in the York

County Court of Common Pleas, which dismissed his serial petition brought

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On June 7, 2002, Deena Cunningham and Patrick Hatzinikolas (“Victims”)

left the End Zone Bar and entered their vehicle. As Victims backed out of

the parking spot, shots fired into the vehicle killed Ms. Cunningham and

seriously injured Mr. Hatzinikolas.            The Commonwealth charged Appellant

and three co-defendants in connection with the shooting. On May 3, 2004,


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1
    42 Pa.C.S.A. §§ 9541-9546.
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Appellant and his co-defendants proceeded to a jury trial.2                 The jury

convicted Appellant on May 7, 2004, of first-degree murder, conspiracy,

attempted murder, and aggravated assault. The court sentenced Appellant

to life imprisonment without parole on July 19, 2004. On August 26, 2005,

this Court affirmed Appellant’s judgment of sentence, and the Pennsylvania

Supreme Court denied allowance of appeal on December 27, 2005.                     See

Commonwealth v. Lee, 885 A.2d 578 (Pa.Super. 2005), appeal denied,

586 Pa. 736, 891 A.2d 731 (2005).

         On May 31, 2013, Appellant filed the current, serial petition for PCRA

relief. In his petition, Appellant alleged that on March 1, 2013, Dio Garcia

gave a statement to police that Wilfredo Rodriguez (a Commonwealth

witness at Appellant’s trial) had admitted to Mr. Garcia that Mr. Rodriguez

was the shooter in the End Zone Bar homicide.            Appellant further claimed

police    contacted    Appellant’s    counsel    regarding   this   information,   and

Appellant’s counsel received a copy of Mr. Garcia’s statement on or about

April 9, 2013. Appellant attached as exhibits to his PCRA petition, inter alia,

Mr. Garcia’s March 1, 2013 transcribed statement to police.3 The court held

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2
 The Commonwealth initially tried one of Appellant’s co-defendants, Antonio
Stauffer, separately. Following a mistrial, the Commonwealth tried Mr.
Stauffer along with Appellant and the other co-defendants.
3
  Counsel inadvertently omitted the attachment from Appellant’s May 31,
2013 filing, so counsel filed a praecipe to attach exhibits to the PCRA petition
on June 3, 2013.



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a hearing on Appellant’s petition on September 23, 2013.       On March 6,

2014, the court denied PCRA relief. Appellant timely filed a notice of appeal

on Monday, April 7, 2014. On April 9, 2014, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellant timely filed his Rule 1925(b) statement on May

6, 2014.

      Appellant raises the following issue for our review:

           WHETHER THE [PCRA] COURT ERRED WHEN IT DENIED
           THE PETITION FOR PCRA RELIEF BASED ON THE
           EXCULPATORY EVIDENCE NOT AVAILABLE AT THE TIME OF
           TRIAL BUT SUBSEQUENTLY BECAME AVAILABLE, THAT
           BEING THE STATEMENT MADE BY DIO GARCIA TO
           DETECTIVE SPENCE ON OR ABOUT MARCH 1, 2013.

             A.   WHETHER THE [PCRA] COURT ERRED WHEN IT
             FOUND THAT DIO GARCIA’S STATEMENT WAS
             INADMISSIBLE HEARSAY AND NOT SUPPORTED BY
             CORROBORATING CIRCUMSTANCES THAT INDICATE
             ITS TRUSTWORTHINESS, WHEN IN FACT IT WAS A
             STATEMENT AGAINST INTEREST AND A STATEMENT
             OF RODRIGUEZ’S STATE OF MIND AND HIS THEN
             EXISTING MENTAL, EMOTIONAL, OR PHYSICAL
             CONDITION.

             B.  WHETHER THE [PCRA] COURT ERRED WHEN IT
             FOUND DIO GARCIA’S STATEMENT UNRELIABLE.

             C.   WHETHER THE [PCRA] COURT ERRED WHEN IT
             FOUND THAT DIO GARCIA WAS NOT CREDIBLE AND
             THAT HIS TESTIMONY WOULD NOT HAVE CHANGED
             THE OUTCOME OF THE TRIAL.

             D.   WHETHER THE [PCRA] COURT ERRED WHEN IT
             FOUND THAT WILFREDO RODRIGUEZ’S STATEMENT
             TO DIO GARCIA WAS INADMISSIBLE HEARSAY[.]

(Appellant’s Brief at 6).

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      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29

A.3d 795 (2011). This Court grants great deference to the findings of the

PCRA court if the certified record contains any support for those findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,

593 Pa. 754, 932 A.2d 74 (2007).           If the record supports a PCRA court’s

credibility   determination,    it   is    binding   on   the   appellate   court.

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).

      As a prefatory matter, the timeliness of a PCRA petition is a

jurisdictional requisite.      Commonwealth v. Robinson, 12 A.3d 477

(Pa.Super. 2011).     A PCRA petition, including a second or subsequent

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

becomes final. 42 Pa.C.S.A. § 9545(b)(1). 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 the review.”            42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.    42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a


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petition must allege and the petitioner must prove:

         (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 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).    Additionally, a PCRA petitioner must

present his claimed exception within sixty days of the date the claim first

could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a

PCRA petition is not filed within one year of the expiration of direct review,

or not eligible for one of the three limited exceptions, or entitled to one of

the exceptions, but not filed within 60 days of the date that the claim could

have been first brought, the [PCRA] court has no power to address the

substantive merits of a petitioner’s PCRA claims.”       Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      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. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,


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1271 (2007).    Due diligence demands that the petitioner take reasonable

steps to protect his own interests.      Commonwealth v. Carr, 768 A.2d

1164, 1168 (Pa.Super. 2001). A petitioner must explain why he could not

have learned the new fact(s) earlier with the exercise of due diligence.

Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98

(2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super

2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011).            This rule is

strictly enforced.   Id.   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. Marshall, 596 Pa. 587,

596, 947 A.2d 714, 720 (2008) (internal citations omitted) (emphasis in

original).

      Significantly, a claim based on inadmissible hearsay does not satisfy

the “new facts” exception.     Commonwealth v. Abu-Jamal, 596 Pa. 219,

941 A.2d 1263 (2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172

L.Ed.2d 201 (2008). In Abu-Jamal, the petitioner filed a facially untimely

PCRA petition attempting to invoke the “new facts” exception to the PCRA’s

time-bar. In his petition, the petitioner alleged, inter alia, he received new

evidence that Priscilla Durham, a key Commonwealth witness at trial, had

recanted her trial testimony implicating the petitioner in the crimes charged.

In support of this allegation, the petitioner presented a declaration by

Kenneth Pate, one of the appellant’s fellow inmates, stating Mr. Pate had a


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phone conversation with Ms. Durham, during which she admitted police had

directed her to testify she heard the petitioner confess to the crimes

charged, though it was untrue.          The PCRA court dismissed the petition as

untimely, and the petitioner appealed to our Supreme Court.4 Our Supreme

Court explained, in relevant part:

          [The petitioner] offers no explanation as to why [Mr. Pate],
          who asserted he was aware of [Ms.] Durham’s alleged
          perjury in 1984, did not come forward with this
          information until nearly 20 years later. Thus, we cannot
          say [the petitioner] raised his issues regarding the
          applicability of [Section 9545(b)(1)(ii)] in a timely
          manner….

                                       *       *   *

          [Mr.] Pate’s testimony regarding [Ms.] Durham’s alleged
          perjury [also] does not meet § 9545(b)(1)(ii)’s exception
          because a claim based on inadmissible hearsay does not
          implicate this exception. Because [Mr.] Pate’s testimony
          concerned an out-of-court statement by [Ms.] Durham
          relied upon for its truth, it was hearsay. See Pa.R.E.
          801(c) (hearsay is statement, other than one made by
          declarant while testifying at trial, offered in evidence to
          prove truth of matter asserted). [The petitioner] contends
          [Ms.] Durham’s statement to [Mr.] Pate was a statement
          against interest and is admissible under the hearsay
          exception in Pa.R.E. 804(b)(3).[5]       However, for this
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4
  The petitioner was entitled to appeal directly to the Supreme Court
because he was sentenced to death for his crimes. See 42 Pa.C.S.A. §
9546(d) (stating final order by PCRA court in case in which death penalty
has been imposed shall be directly appealable only to Supreme Court).
5
   See Pa.R.E. 804(b)(3) (explaining “statement against interest” hearsay
exception is statement that: (A) reasonable person in declarant’s position
would have made only if person believed it to be true because, when made,
it was so contrary to declarant’s proprietary or pecuniary interest or had
(Footnote Continued Next Page)


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          exception to apply, the declarant must be unavailable as a
          witness, see Pa.R.E. 804(b),[6] and [the petitioner] offers
          no proof [Ms.] Durham is not available. Therefore, [Mr.]
          Pate’s declaration was inadmissible hearsay and does not
          fall under § 9545(b)(1)(ii)’s timeliness exception.

Id. at 229-30, 941 A.2d at 1269-70 (some internal citations omitted). Thus,

the Supreme Court affirmed the order dismissing the petition as untimely.

Id. at 231, 941 A.2d at 1270.

      Instantly, the court sentenced Appellant on July 19, 2004.            Our

Supreme Court denied allowance of appeal on December 27, 2005.

Appellant’s judgment of sentence became final on March 27, 2005, upon

expiration of the time to file a petition for writ of certiorari with the United

States Supreme Court.          See U.S.Sup.Ct.R. 13.   Thus, Appellant’s current

petition, filed on May 31, 2013, is patently untimely.      See 42 Pa.C.S.A. §

                       _______________________
(Footnote Continued)

such great tendency to invalidate declarant’s claim against someone else or
to expose declarant to civil or criminal liability; and (B) is supported by
corroborating circumstances that clearly indicate its trustworthiness, if
offered in criminal case as one that tends to expose declarant to criminal
liability).
6
  See Pa.R.E. 804(a) (stating declarant is considered unavailable as witness
if declarant is exempted from testifying about subject matter of declarant’s
statement because privilege applies; declarant refuses to testify about
subject matter despite court order to do so; declarant testifies to not
remembering subject matter; declarant cannot be present or testify at trial
or hearing because of death or then-existing infirmity, physical illness, or
mental illness; or declarant is absent from trial or hearing and statement’s
proponent has not been able, by process or other reasonable means, to
procure declarant’s attendance or testimony); Pa.R.E. 804(b)(3) (explaining
“statement against interest” hearsay exception applies only if declarant is
unavailable as witness).



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9545(b)(1).    Nevertheless, Appellant attempts to invoke the “new facts”

exception at Section 9545(b)(1)(ii), claiming Mr. Garcia gave a statement to

police on March 1, 2013, declaring that, while in prison, Mr. Rodriguez

admitted he was the shooter in the End Zone Bar homicide.           Appellant’s

counsel received the statement on or about April 9, 2013. Appellant filed his

PCRA petition on May 31, 2013.        Appellant contends he could not have

discovered this information earlier with the exercise of due diligence.

      On September 23, 2013, the PCRA court held a hearing on Appellant’s

petition.   When Appellant called Mr. Garcia to testify, the Commonwealth

asked for an offer of proof. Appellant’s counsel explained Mr. Garcia would

testify consistent with the statement he gave to police on March 1, 2013, in

which Mr. Garcia related that Mr. Rodriguez admitted he was the shooter in

the End Zone Bar homicide.      The Commonwealth objected to Mr. Garcia’s

proposed testimony as inadmissible hearsay. Appellant claimed Mr. Garcia’s

statement satisfied the “statement against interest” exception to the hearsay

rule at Pa.R.E. 804(b)(3).    The Commonwealth maintained the proffered

testimony did not meet the Rule 804(b)(3) exception because under that

Rule, the declarant must be unavailable, and Appellant offered no proof that

Mr. Rodriguez was unavailable.     The court overruled the Commonwealth’s

objection and permitted Mr. Garcia to testify. Mr. Garcia testified consistent

with his March 1, 2013 statement to police.

      On March 6, 2014, the court denied PCRA relief. In its accompanying


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opinion, the court explained, in relevant part:

         The Commonwealth claims that Mr. Garcia’s testimony on
         September 23, 2013 should not have been permitted. We
         agree. Prior to Mr. Garcia testifying, the Commonwealth
         objected to Mr. Garcia’s testimony as inadmissible
         hearsay, [to] which defense counsel responded by saying
         it was an admission against penal interest. Although an
         admission against penal interest is a valid exception to the
         hearsay rules, this exception is not applicable in the
         present case because the declarant was not unavailable
         and the statement was not supported by corroborating
         circumstances that clearly indicate its trustworthiness.
         See [Pa.R.E. 804(b)(3)(B)].

(Opinion in Support of Order Denying PCRA Relief, filed March 6, 2014, at

3).

      Assuming without deciding that Appellant’s petition met the sixty-day

rule under the PCRA, as described in Gamboa-Taylor, supra, we conclude

the record supports the court’s analysis. See Conway, supra. Appellant

presented only the testimony of Mr. Garcia at the PCRA hearing, without any

proof that Mr. Rodriguez (the declarant) was unavailable to testify.     See

Pa.R.E. 804(a), (b)(3). Further, Appellant offered no corroborating evidence

to indicate the trustworthiness of Mr. Rodriguez’s statement.    See Pa.R.E.

804(b)(3)(B). Notably, Mr. Garcia testified that Mr. Rodriguez admitted he

was the shooter in the End Zone Bar homicide in the presence of Mr. Garcia

and Jesus Laarte (also known as “Cito”). Appellant did not present Cito to

testify. See id. Consequently, Mr. Garcia’s declaration and testimony fail to

satisfy the hearsay exception set forth in Pa.R.E. 804(b)(3).     Appellant’s

current PCRA petition is based on inadmissible hearsay that cannot satisfy

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the “new facts” exception under Section 9545(b)(1)(ii). 7 See Abu-Jamal,

supra.       Therefore,     the   PCRA     court   properly   denied   the   petition.8

Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015




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7
  Based on our disposition, we need not consider Appellant’s claims that the
PCRA court erred in finding his testimony unreliable and incredible.
Additionally, we decline to reach the merits of Appellant’s underlying after-
discovered-evidence claim, because Appellant failed initially to establish our
jurisdiction by pleading and proving a timeliness exception.              See
Commonwealth v. Brown, ___ A.3d ___, 2015 PA Super 24 (filed
February 6, 2015) (holding facially untimely PCRA petitioner attempting to
raise substantive after-discovered-evidence claim must first establish
jurisdiction by pleading and proving exception to PCRA time-bar).
8
   On appeal, Appellant also argues his proffered evidence meets an
exception to the hearsay rule as an inconsistent witness statement, or under
the then-existing mental, emotional, or physical condition hearsay
exception. Appellant raises these claims for the first time on appeal, so they
are waived. See Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883
(2004) (explaining claims not raised in PCRA court are waived and cannot be
raised for first time on appeal); Pa.R.A.P. 302(a) (stating issues not raised in
PCRA court are waived and cannot be raised for first time on appeal).



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