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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER HANSON
Appellant No. 2275 EDA 2014
Appeal from the PCRA Order June 3, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000421-1984
CP-39-CR-0001582-1983
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 17, 2015
Appellant, Christopher Hanson, appeals pro se from the June 3, 2014
order dismissing, as untimely, his serial petition for relief filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we affirm.
A previous panel of this Court summarized the relevant procedural
history of this case as follows.
On July 14, 1984, a jury found Appellant guilty of
second-degree murder, rape and criminal
conspiracy.1 On January 30, 1986, the trial court
sentenced Appellant to life imprisonment. This Court
affirmed Appellant’s judgment of sentence on August
31, 1987, and our Supreme Court denied Appellant’s
petition for allowance of appeal on March 23, 1988.
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1
18 Pa.C.S.A. §§ 2502(b), 3121(a) and 903(a), respectively.
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See Commonwealth v. Hanson, 534 A.2d 130 (Pa.
Super. 1987) (unpublished memorandum), appeal
denied, 544 A.2d 1341 (Pa. 1988). Appellant has
since filed numerous PCRA petitions as well as
federal habeas corpus petitions, none of which have
garnered him relief.
Appellant filed [a previous] pro se PCRA
petition on February 9, 2010. Therein, Appellant
alleged an exception to the PCRA time-bar based on
newly discovered evidence. See 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Appellant offered as newly
discovered evidence a December 7, 2009 written
statement by Colie B. Chappelle, Esquire (Attorney
Chappelle) stating that Appellant’s co-conspirator,
Timothy Seip entered into a secret plea agreement
with the Commonwealth in exchange for Seip’s
testimony at Appellant’s trial. On March 31, 2010,
the PCRA court entered an order notifying Appellant
of its intent to dismiss Appellant’s PCRA petition
without a hearing pursuant to Pennsylvania Rule of
Criminal Procedure 907. The PCRA court ultimately
dismissed the petition on July 6, 2010 and Appellant
filed a timely notice of appeal to this Court.
On June 8, 2011, this Court vacated and
remanded for further proceedings. Commonwealth
v. Hanson, 31 A.3d 737 (Pa. Super. 2011)
(unpublished memorandum at 3). The panel
concluded that Attorney Chappelle’s written
statement could support an exception to the PCRA
time-bar.
Although the agreement, much like Appellant’s
guilt, was determined in an earlier proceeding
based upon evidence therein presented, new
evidence may be presented to challenge a prior
determination. Here, the affidavit and its
contents constitute the previously unknown
facts upon which Appellant’s claim is based.
The PCRA court erred in determining these
facts could not support application of the time-
bar exception.
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Id. (unpublished memorandum at 2-3).
On remand, the PCRA court held a hearing on
Appellant’s petition. On June 11, 2012, the PCRA
court entered an order dismissing Appellant’s PCRA
petition on the merits.
Commonwealth v. Hanson, 82 A.3d 472 (Pa. Super. 2013) (unpublished
memorandum at 1-3), appeal denied, 83 A.3d 414 (Pa. 2013). Appellant
filed a notice of appeal, and this Court affirmed the PCRA court’s order on
June 27, 2013, concluding that his PCRA petition was untimely and the PCRA
court was without jurisdiction to entertain Appellant’s claims. Id. Our
Supreme Court denied Appellant’s petition for allocatur on December 31,
2013. Id.
On April 8, 2014, Appellant filed the instant PCRA petition. On April
15, 2014, the PCRA court issued its Rule 907 notice. Appellant filed two pro
se responses on May 19, 2014. The PCRA court entered its order dismissing
Appellant’s PCRA petition as untimely on June 3, 2014. On July 2, 2014,
Appellant filed a timely notice of appeal.2
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2
Although Appellant’s notice of appeal was docketed on July 28, 2014,
Appellant has provided a copy of the cash slip used by the Department of
Corrections to mail his notice of appeal to the PCRA court. The cash slip
bears a date of July 2, 2014. Under the prisoner mailbox rule, “a pro se
prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011) (citation omitted), appeal denied, 46 A.3d 715 (Pa. 2012).
As a result, we deem Appellant’s notice of appeal filed on July 2, 2014, and
therefore timely. We further note that Appellant and the PCRA court have
complied with Pennsylvania Rule of Appellate Procedure 1925.
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On appeal, Appellant raises the following issue for our review.
Should Appellant be granted PCRA relief based on
new evidence in the form of an affidavit signed by
Timothy Mark Seip, dated March 28, 2014[?] In that
affidavit, attached to Appellant’s 907 notice, Exhibit
“A”, Seip claimed that he was coerced to testify
against Appellant [], and was assured of an
undisclosed plea agreement with [A]ttorney Makoul
and [P]rosecutor Tomsho, and would receive the
death sentence if he, (Seip), rejected this plea
agreement[.]
Appellant’s Brief at 3.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Before we may address the merits of Appellant’s arguments, we must
first consider the timeliness of Appellant’s PCRA petition because it
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implicates the jurisdiction of this Court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation
omitted). Pennsylvania law makes clear that when “a PCRA petition is
untimely, neither this Court nor the trial court has jurisdiction over the
petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)
(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for
filing a PCRA petition is not subject to the doctrine of equitable tolling;
instead, the time for filing a PCRA petition can be extended only if the PCRA
permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.
2014) (internal quotation marks and citation omitted), cert. denied, Ali v.
Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord finality to the
collateral review process.” Commonwealth v. Watts, 23 A.3d 980, 983
(Pa. 2011) (citation omitted). “However, an untimely petition may be
received when the petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition, set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.” Commonwealth v.
Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted). The PCRA
provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
…
(b) Time for filing petition.—
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(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;
(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.A. § 9545(b).
In the case sub judice, Appellant was sentenced on January 30, 1986,
this Court affirmed Appellant’s judgment of sentence on August 31, 1987,
and our Supreme Court denied Appellant’s petition for allocatur on March 23,
1988. See Hanson, supra at 1. As a result, Appellant’s judgment of
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sentence became final on June 21, 1988, when the time for Appellant to file
a petition for a writ of certiorari in the United States Supreme Court expired.
See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a judgment 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[]”); U.S. S. Ct. R. 13(1) (stating “a
petition for a writ of certiorari to review a judgment in any case … is timely
when it is filed with the Clerk of this Court within 90 days after entry of the
judgment[]”). Appellant’s instant April 8, 2014 petition was filed almost 26
years after his judgment of sentence became final and more than 17 years
after the PCRA’s grace period ended, so it was therefore patently untimely.3
However, Appellant argues that two time-bar exceptions apply in this case.
Specifically, Appellant raises the governmental interference and the newly-
discovered fact exceptions to the time-bar. Appellant’s Brief at 7-8.
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3
The 1995 amendments to the PCRA initiated the current one-year time-
bar. The 1995 amendments also granted prisoners whose judgment of
sentence had become final more than one year before the implementation of
the time-bar, one year from the effective date of the amendments to file
their first PCRA petition. Act of November 17, 1995, P.L. 1118, No. 32
(Spec. Sess. No. 1), § 3(1). Under this provision “a petitioner’s first PCRA
petition, that would otherwise be considered untimely because it was filed
more than one year after the judgment of sentence became final, would be
deemed timely if it was filed by January 16, 1997.” Commonwealth v.
Thomas, 718 A.2d 326, 329 (Pa. Super. 1998) (en banc). However, our
Supreme Court has noted this grace period does not apply to second or
subsequent PCRA petitions. Commonwealth v. Crews, 863 A.2d 498, 501
(Pa. 2004).
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In order to meet the statutory requirements of the governmental
interference exception, “[the a]ppellant was required to plead and prove that
his failure to raise the claim previously was the result of interference by
government officials with the presentation of the claim [or claims] in
violation of the Constitution or laws of this Commonwealth or the
Constitution or laws of the United States….” Commonwealth v. Chester,
895 A.2d 520, 523 (Pa. 2006) (internal quotation marks and citation
omitted; emphasis in original). A defendant claiming this exception must
also show that “the information could not have been obtained earlier with
the exercise of due diligence.” Commonwealth v. Hawkins, 953 A.2d
1248, 1253 (Pa. 2006) (citation omitted).
Likewise, our Supreme Court has previously described a petitioner’s
burden under the newly-discovered evidence exception as follows.
[S]ubsection (b)(1)(ii) has two components, which
must be alleged and proved. Namely, the petitioner
must establish that: 1) “the facts upon which the
claim was predicated were unknown” and 2) “could
not have been ascertained by the exercise of due
diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
added).
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in
original). “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
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rule is strictly enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.
Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012).
Additionally, as this Court has often explained, all of the time-bar
exceptions are subject to a separate deadline.
The statutory exceptions to the timeliness
requirements of the PCRA are also subject to a
separate time limitation and must be filed within
sixty (60) days of the time the claim could first have
been presented. See 42 Pa.C.S.A. § 9545(b)(2).
The sixty (60) day time limit … runs from the date
the petitioner first learned of the alleged after-
discovered facts. A petitioner must explain when he
first learned of the facts underlying his PCRA claims
and show that he brought his claim within sixty (60)
days thereafter.
Id. (some citations omitted). Our Supreme Court has held that Section
9545(b)(2) also requires a showing of due diligence insofar that a petitioner
must file the petition within 60 days that the claim could have first been
presented. Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),
cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).
As noted above, Appellant has consistently averred in previous PCRA
petitions that the Commonwealth offered Seip a secret plea deal in exchange
for his testimony against Appellant. See Hanson, supra at 2. In his latest
PCRA petition, Appellant argues that he has discovered, through an affidavit
from Seip, that the Commonwealth threatened to seek the death penalty
against Seip, if Seip did not accept its plea offer. Appellant’s Brief at 7.
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As to the governmental interference exception, Appellant avers the
following.
After receiving Seip’s affidavit indicating that
Seip had been in discussions for a lenient sentence in
exchange for his testimony, Appellant filed the PCRA
informing of such actions. Appellant also acquired
transcripts of Seip’s guilty plea, and had learned of
these discussions by [ADA] Tomsho and [Attorney]
Chappelle, after the Hughes affidavit in 2006.
Appellant acted diligently in suspecting that the
Commonwealth may have allso [sic] concealed
threats to Seip, now evidenced by Seip’s affidavit
wherein he states he would get the death penallty
[sic] if he rejected the plea agreement. Appellant
had proven the applicability of the governmental
interference exception under [S]ection 9545(b)(1)(i).
Id. In addition, Appellant avers that Seip’s affidavit constitutes previously
unknown facts so as to satisfy the time-bar exception at Section
9545(b)(1)(ii). Id. at 8 n.2; Appellant’s Reply Brief at 3.
As this Court explained in our 2013 memorandum disposing of
Appellant’s last PCRA petition, Seip actually testified at Appellant’s February
19, 2008 PCRA hearing, during which he discussed his plea negotiations
with the Commonwealth. Hanson, supra at 8-9, quoting N.T., 2/19/08, at
27-28. Specifically, at said hearing, Seip was called to testify as Appellant’s
own witness, about Seip’s plea negotiations with the Commonwealth.
Appellant repeatedly asked Seip whether he received a promise of a five to
ten year sentence from the Commonwealth in exchange for testifying
against Appellant, to which Seip responded in the negative. N.T., 2/19/08,
at 15-16, 18-20, 22-25.
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As noted above, Appellant has had knowledge of a purported plea
bargain between Seip and the Commonwealth since 2008. See Hanson,
supra at 2. Whether Seip was cooperating with the Commonwealth to gain
a favorable sentence, or whether his cooperation was induced through the
threat of a negative consequence, such as the imposition of the death
penalty, is immaterial. Because Appellant had knowledge of the alleged plea
agreement in 2008, Appellant possessed sufficient information to form the
underlying basis for the time-bar exception he now alleges in 2015.
Therefore, Appellant has failed to prove that he filed the instant PCRA
petition within 60 days that the claim could have first been presented. See
Edmiston, supra; 42 Pa.C.S.A. § 9545(b)(2). As a result, the PCRA court
correctly concluded that it lacked jurisdiction to consider the merits of
Appellant’s claims. See id.
Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s serial PCRA petition as untimely filed. Accordingly, the
PCRA court’s June 3, 2014 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2015
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