J-S04044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 JOHN HART                              :
                                        :
                   Appellant            :   No. 2535 EDA 2019

            Appeal from the PCRA Order Entered July 25, 2019
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0001012-2005

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 JOHN HART                              :
                                        :
                   Appellant            :   No. 2536 EDA 2019

            Appeal from the PCRA Order Entered July 25, 2019
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0004329-2005


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM PER CURIAM:                           FILED MARCH 11, 2020

     John Hart (Appellant) appeals pro se from the order dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.
J-S04044-20



       It is undisputed that Appellant’s petition, filed November 17, 2017, is

untimely.1 However, this case is before us following remand for the PCRA

court to “act as factfinder to determine whether [Appellant] has met the proof

requirement under section 9545(b)(1)(ii),” i.e., whether the [evidence was]

in fact unknown to [Appellant] and whether he exercised due diligence . . .”

Commonwealth v. Hart, 199 A.3d 475, 482 (Pa. Super. 2018).

       We previously summarized:

       On June 27, 2006, [Appellant] pled guilty to intimidation of
       witnesses or victims for his act of soliciting [a fellow inmate,
       Michael] Keenan[,] to kill his girlfriend. The same day he also pled
       guilty to simple assault and stalking for separate crimes unrelated
       to the [solicitation]. [Appellant] did not file a direct appeal. In
       October 2010, [he] filed his first pro se PCRA petition. The PCRA
       court appointed counsel, who filed an amended petition. The
       PCRA court denied the petition, and this Court affirmed. See
       Commonwealth v. Hart, 63 A.3d 817 (Pa. Super. 2012)
       (unpublished memorandum).

       On November 17, 2017, PCRA counsel filed the instant petition
       giving rise to this appeal. The petition alleged that appellate
       counsel had uncovered in the DA’s files four letters from Keenan
       to Detective Worrilow while the charges in reference to the
       [solicitation] were pending against [Appellant] . . .

Id. at 479.




____________________________________________


1 This Court previously determined that Appellant’s judgment of sentence
became final on July 27, 2006, and any petition filed after July 27, 2007 would
be untimely in the absence of a statutory exception. Commonwealth v.
Hart, 199 A.3d 475, 481 (Pa. Super. 2018).


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      It is well-settled that in reviewing the denial of a PCRA petition, our

review is limited to examining whether the PCRA court’s findings are supported

by the record and free of legal error. See Commonwealth v. Hanible, 30

A.3d 426, 438 (Pa. 2011). We view the findings of the PCRA court and the

evidence of record in the light most favorable to the prevailing party.      Id.

“The PCRA court’s credibility determinations, when supported by the record,

are binding on this Court; however, we apply a de novo standard of review to

the PCRA court’s legal conclusions.” See Commonwealth v. Mason, 130

A.3d 601, 617 (Pa. 2015).

      Further, Pennsylvania law is unequivocal that no court has jurisdiction

to hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within

one year of the date on which the petitioner’s judgment of sentence became

final, unless one of the three statutory 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 of Pennsylvania after the time period


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                 provided in this section and has been held by that court
                 to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).2 If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

Instantly, we are without jurisdiction to decide Appellant’s appeal unless he

pled and proved one of the three timeliness exceptions of Section 9545(b)(1).

See Derrickson, 923 A.2d at 468.

       Following remand, the PCRA court concluded that Appellant’s petition

was untimely and did not meet an exception to the statutory time-bar because

“at the time he entered his plea, Appellant was fully cognizant of the very

information he now claims would have caused him to reject the plea offer, and

____________________________________________


2 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
2018, now provides that a PCRA petition invoking a timeliness exception must
be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall
apply only to claims arising one year before the effective date . . . or
thereafter.” Id. Here, it is not disputed that Appellant raised his PCRA claim
“within 60 days of the date on which he could have first raised it.”
Commonwealth v. Hart, 199 A.3d at 481.


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at all times Appellant failed to exercise due diligence.” PCRA Court Opinion,

10/17/19, at 23.

      In challenging the PCRA court’s ruling, Appellant presents related

issues:

      A. DID THE PCRA COURT NOT ERR IN DISMISSING APPELLANT’S
      POST CONVICTION RELIEF ACT PETITION WHERE IT IS
      UNDISPUTED THAT THE COMMONWEALTH FAILED TO PRODUCE
      BRADY MATERIAL IN THE FORM OF AT LEAST ONE LETTER IN
      WHICH THE MAIN WITNESS AGAINST APPELLANT INDICATED
      THAT THE ASSIGNED DETECTIVE HAD PROMISED THE WITNESS
      LENIENCY IN EXCHANGE FOR COOPERATION?

      B. DID THE PCRA COURT NOT ERR IN DISMISSING APPELLANT’S
      POST CONVICTION RELIEF ACT PETITION WHERE THE FOUR
      LETTERS WERE NOT MERELY CUMULATIVE OR DUPLICATIVE OF
      THE LETTERS PROVIDED TO THE DEFENSE DURING DISCOVERY?

      C. DID THE PCRA COURT NOT ERR IN DISMISSING APPELLANT’S
      POST CONVICTION RELIEF ACT PETITION WHERE APPELLANT
      EXERCISED DUE DILIGENCE TO OBTAIN THE FOUR LETTERS?

      D. DID THE PCRA COURT NOT ERR IN DISMISSING APPELLANT’S
      POST CONVICTION RELIEF ACT PETITION WHERE PLEA COUNSEL
      WOULD HAVE BEEN INEFFECTIVE FOR NOT DISCOVERING THE
      LETTERS OR DISCLOSING THEM TO APPELLANT IF ATTORNEY
      MUCH DID NOT EXERCISE DUE DILIGENCE TO OBTAIN THE FOUR
      LETTERS?

      E. DID THE PCRA COURT NOT ERR IN DISMISSING APPELLANT’S
      POST CONVICTION RELIEF ACT PETITION WHERE THE COURT’S
      DETERMINATION WAS NOT SUPPORTED BY EVIDENCE OF
      RECORD AND WHERE THE PCRA COURT SHOWED A PERSONAL
      BIAS AGAINST APPELLANT IN ITS OPINION?

Appellant’s Brief at iv.

      All of Appellant’s issues concern the four letters written by Appellant’s

fellow inmate, Keenan, to Detective Worrilow. The PCRA court summarized:


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J-S04044-20


      The Petition, facially untimely, raised the after discovered
      evidence exception, supported by the argument that the four
      letters written by Keenan to Detective Worrilow were not turned
      over during discovery, and, as such, his decision to enter the plea
      could not have been knowing, voluntarily and intelligent. The
      Petition also alleged claims of ineffective assistance of counsel and
      Brady violations. The general overview of all four letters, which
      were attached to the Petition, indicate that Keenan wanted/was
      expecting consideration on behalf of the District Attorney’s office
      in his pending cases in exchange for his cooperation with Detective
      Worrilow in regard to Appellant’s case.

PCRA Court Opinion, 10/17/19, at 8.

      The PCRA court, after chronicling “Appellant’s excessive filings, both pro

se and counseled, [which] make the docket somewhat complex to follow,”

recounted the evidence presented at the PCRA hearing following remand,

including Keenan’s four letters. See id. at 1, 10-16. Notably, the district

attorney testified that he “always gave” Appellant’s attorney “everything he

had in this case.” Id. at 14. A transcript from the March 6, 2006 pre-trial

hearing indicated that the district attorney stated “several times that all

correspondence written from Keenan to Detective Worrilow regarding this case

. . . had been turned over.” Id. at 15 (citing N.T., 4/17/19, at 101).

      The PCRA stated that it denied relief “after an exhaustive review of the

transcripts from the January 10, 2006 discovery hearing, the transcripts from

the March 2, 2006 discovery hearing, the transcripts from the March 17, 2006

discovery hearing, the transcripts from the April 17, 2006 discovery hearing,

the exhibits, the contents of the letters in question, [and] the applicable

caselaw.” Id. at 16. The court found Appellant’s trial counsel and the district

attorney to be credible; it found “in contrast, Appellant’s testimony was


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entirely self-serving, well-rehearsed and, unlike [trial counsel and the district

attorney], totally inconsistent with the fact that discovery in this matter

transpired fifteen years ago.” Id. at 21.

      Further, the PCRA court observed:

      All these letters set forth the same facts, i.e., that Keenan was
      expecting (whether he was promised it or not) something in
      exchange for his cooperation. If Appellant’s objective, as implied
      herein, was to use this information to cross-examine Keenan and
      undermine his credibility, Appellant had that information at the
      time he knowingly, intelligently and voluntarily entered his plea
      agreement.

PCRA Court Opinion, 10/17/19, at 21.

      Upon review, we find no error in the factual findings and legal

conclusions upon which the PCRA court relied in denying relief. As indicated

above, the Honorable John P. Capuzzi, Sr., sitting as the PCRA court, has

authored an excellent opinion explaining the court’s decision. We therefore

adopt and incorporate the entirety of Judge Capuzzi’s opinion as our own in

disposing of this case. When relevant, the parties shall attach a copy of the

October 17, 2019 opinion to future pleadings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/20

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