J-S29036-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
BARRY CRESPO,                             :
                                          :
                 Appellant                :   No. 1827 WDA 2014

             Appeal from the PCRA Order Entered October 8, 2014,
               in the Court of Common Pleas of Bedford County,
             Criminal Division, at No(s): CP-05-CR-0000343-2008

BEFORE:      PANELLA, MUNDY, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 24, 2015

        Barry Crespo (Appellant) appeals from the order entered October 8,

2014, dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On June 18, 2009, following his convictions for involuntary deviate

sexual intercourse and related offenses, Appellant was sentenced to an

aggregate term of 20 to 40 years’ incarceration.     Appellant timely filed a

notice of appeal to this Court, which affirmed Appellant’s judgment of

sentence on July 27, 2010. Commonwealth v. Crespo, 6 A.3d 574 (Pa.

Super. 2010) (unpublished memorandum). Appellant did not seek review by

our Supreme Court, but filed a counseled PCRA petition on January 20,

2011.    On April 26, 2012, following two days of hearings, the PCRA court

denied Appellant’s petition. Appellant timely filed an appeal from the PCRA



*Retired Senior Judge assigned to the Superior Court.
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court’s decision. On August 28, 2013, this Court affirmed the PCRA court’s

order and, on March 24, 2014, our Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Crespo, 83 A.3d 1079

(Pa. Super. 2013) (unpublished memorandum), appeal denied, 87 A.3d 814

(Pa. 2014).

        On September 8, 2014, Appellant, through privately retained counsel,

filed a second PCRA petition in which he alleged, inter alia, that he had

recently uncovered information that one of his trial attorneys, Lance

Marshall, Esquire,1 was the subject of criminal and disciplinary investigations

at and before the time of Appellant’s 2009 trial. Appellant’s Brief at 5-13. In

his petition, Appellant alleged that Attorney Marshall’s “interest in protecting

himself from criminal prosecution and disciplinary action” created a conflict

of interest that adversely affected his stewardship of Appellant’s case. Id. at

12.     On October 9, 2014, the PCRA court entered an order dismissing




1
    As Appellant explains,

        Appellant was represented [at trial] by Philip Masorti and Lance
        Marshall. Masorti handled the actual trial and meetings with
        witnesses. Marshall was responsible for much of the pre-trial
        preparation, plea negotiations, drafting and litigating of motions,
        consultation with [A]ppellant, researching of various legal issues,
        preparation [for] sentencing, appearance at the sentencing
        hearing, post[-]sentence motions, and the appeals to both the
        Superior and Supreme Courts of Pennsylvania.

Appellant’s Brief at 4.


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Appellant’s petition.    This timely appeal followed.      Both Appellant and the

PCRA court complied with the mandates of Pa.R.A.P. 1925.

      Appellant   presents      the     following   questions      for   this   Court’s

consideration.

      1. Did the PCRA court err in dismissing [Appellant’s] PCRA
      petition without a hearing on the grounds that it was untimely
      [filed] where [Appellant] pled and would have proved that
      evidence establishing a serious conflict of interest on trial
      counsel’s part was just discovered and could not have been
      discovered any sooner with the exercise of reasonable diligence
      and therefore met the criteria of the “newly discovered evidence”
      exception to the statutory time bar?

      2. Did the PCRA court err in dismissing [Appellant’s] PCRA
      petition without a hearing on the grounds that it was untimely
      [filed] by failing to address [Appellant’s] claim that evidence
      establishing a serious conflict of interest on trial counsel’s part
      was knowingly concealed by the Commonwealth and he
      therefore met the criteria of the “governmental interference”
      exception to the statutory time bar?

Appellant’s Brief at 3 (suggested answers omitted).

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

      The   timeliness     of   a     post-conviction   petition    is   jurisdictional.

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011).

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



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

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met.        42 Pa.C.S.

§ 9545.   A PCRA petition invoking one of these statutory exceptions must

“be filed within 60 days of the date the claims could have been presented.”

Robinson, 12 A.3d at 480.

      Appellant’s petition, filed over a year after his judgment of sentence

became final, is patently untimely.       However, Appellant claims that he

alleged sufficient facts to satisfy the timeliness exceptions provided in 42

Pa.C.S. § 9545(b)(1)(i) and (ii), which provide as follows: “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,”

and “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[.]”

      As to the first exception, Appellant claims that the Commonwealth

concealed its knowledge of Attorney Marshall’s legal problems, and the

resulting conflict of interest, in violation of its ethical duty to disclose such

matters. Appellant’s Brief at 29-31. As to the second exception, Appellant

contends that his privately-retained attorney only discovered newspaper




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articles regarding Attorney Marshall’s legal difficulties in July of 2014.2 Id. at

8, 12-13. Appellant maintains that he filed the instant PCRA petition within

60 days of discovering this information. Id. Appellant further asserts that

he could not by the exercise of due diligence have learned of the articles

earlier because they were published in small, local newspapers outside of

Bedford County and he had no reason to investigate Attorney Marshall, thus

“[w]hen there is no reason to investigate something, failure to investigate it

cannot be faulted.” Id. at 21. Therefore, Appellant argues, the PCRA court

should not have dismissed his petition as untimely.

      We disagree.     Appellant relies on facts that were available to the

general public through articles that were published prior to trial in this

matter.   Appellant’s argument that he had no duty to investigate Attorney

Marshall is unavailing, particularly in light of the fact that this information

could have been obtained prior to the filing of his first PCRA petition in which

he raised claims of trial counsels’ ineffectiveness. Thus, Appellant failed to

allege facts that warranted a hearing on his petition.               See, e.g.,

Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (holding that

“to constitute facts which were unknown to a petitioner and could not have



2
  Specifically, Appellant contends that his present counsel performed an
internet search of “Lance Marshall attorney” on “July 28 or 29, 2014” which
uncovered two articles, published in the Centre Daily Times and the Lehigh
County Morning Call in 2009, detailing the Pennsylvania Attorney General’s
investigation into Attorney Marshall.


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been ascertained by the exercise of due diligence, the information must not

be of public record”); Commonwealth v. Fisher, 870 A.2d 864, 871 (Pa.

2005) (holding subsection 9545(b)(1)(ii) exception not met where articles

containing information relied upon had “been available and discoverable for

more than two years” prior to filing of petition).   Moreover, Appellant has

failed to explain the manner in which the District Attorney’s Office of Bedford

County concealed or otherwise interfered with the presentation of this claim

when the documentation upon which Appellant now relies was a matter of

public record as early as 2009.

      Because Appellant failed to satisfy a PCRA timeliness exception, the

PCRA court lacked jurisdiction to entertain the merits of Appellant’s claims,

and dismissal of the PCRA petition was proper.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2015




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