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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FRANCISCO PEREZ
Appellant No. 1394 MDA 2014
Appeal from the PCRA Order July 25, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003313-2000
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANCISCO PEREZ
Appellant No. 1395 MDA 2014
Appeal from the PCRA Order July 25, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003314-2000
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED JUNE 02, 2015
Francisco Perez appeals pro se from the consolidated order entered in
the Berks County Court of Common Pleas, dated July 25, 2014, dismissing
J-S11021-15
his serial petition filed under the Post-Conviction Relief Act (“PCRA”)1 as
untimely.2 Perez seeks relief from the judgment of sentence of an aggregate
34½ to 73 years’ imprisonment imposed on March 15, 2001, following his
jury conviction for numerous crimes, including attempted first-degree
murder and four counts of aggravated assault.3 Because we agree the
petition is untimely, we affirm.
Perez’s convictions for attempted murder and related offenses arose
from the shooting of a man who had stolen from him a large sum of cash
that was intended for purchasing drugs. The PCRA court set forth the
relevant procedural history as follows:
Following a jury trial held March 13, 2001, through March
15, 2001, [Perez] was found guilty under Docket No. 3313-2000
of one (1) count of Attempted First Degree Murder,1 four (4)
counts of Aggravated Assault,2 one (1) count of Firearms Not to
be Carried Without a License,3 two (2) counts of Recklessly
Endangering Another Person,4 four (4) counts of Simple Assault,5
and one (1) count of Possession of a Weapon.6 The Court also
found [Perez] guilty of one (1) count of Persons Not to Possess
or Use Firearms.7 Under Docket No. 3314-2000,8 the Court
found [Perez] guilty of one (1) count [of] Terroristic Threats9 and
one (1) count of Flight to Avoid Apprehension, Trial or
Punishment.10
1
18 [PA.C.S.] § 901(a), 2502(a).
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
2
As will be discussed in more detail in the factual history, we note the two
matters were tried together, and the PCRA court disposed of them in one
order.
3
18 Pa.C.S. §§ 901(a), 2502(a), 2702(a)(1), (4), respectively.
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2
18 [PA.C.S.] § 2702(a)(1), (4)[.]
3
18 [PA.C.S.] § 6106(a).
4
18 [PA.C.S.] § 2705.
5
18 [PA.C.S.] § 2701(a)(1), (3).
6
18 [PA.C.S.] § 907(b).
7
18 [PA.C.S.] § 6105(a). This count was severed prior to
the start of the jury trial and decided by the Court after
[Perez] waived his right to a jury trial on this charge.
8
The Court also found [Perez] guilty of one (1) count of
Possession with Intent to Deliver a Controlled Substance,
35 P.S. § 780-113(a)(30), and one (1) count of Possession
of a Controlled Substance, 35 P.S. § 780-113(a)(16).
However, these charges were later nolle prossed by the
Commonwealth on February 18, 2004.
9
18 [PA.C.S.] § 2706(a).
10
18 [PA.C.S.] § 5126(a).
[Perez] was sentenced to an aggregate term of thirty-four
and a half (34½) to seventy-three (73) years of incarceration.
Specifically, [Perez] was sentenced to serve no less than twenty
(20) to no more than forty (40) years on the Attempted First
Degree Murder count. [Perez] was also ordered to serve a
consecutive term of no less than seven and a half (7½) to no
more than fifteen (15) years on one of the Aggravated Assault
counts. Additionally, [Perez] was sentenced to serve no less
than one (1) to no more than three (3) years on the Firearms
Not to be Carried Without a License and Possession of a Weapon
counts. These sentences were ordered to be served concurrently
with the sentence imposed on the Aggravated Assault count.
[Perez] was sentenced to an additional five (5) to ten (10) years
on the Persons Not to Possess or Use Firearms count. Under
Docket No. 3314-2000, [Perez] was ordered to serve no less
than one (1) to no more than five (5) years on the Terroristic
Threats count. This sentence is to be completed at the
expiration of the sentence imposed on the Persons Not to
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Possess or Use Firearms conviction. Lastly, [Perez] was
sentenced to serve a consecutive one (1) to three (3) years on
the Flight to Avoid Apprehension, Trial or Punishment count.
[Perez] was represented at trial and sentencing by William
Bispels, Esquire.
On April 12, 2001, [Perez] filed a pro se Notice of Appeal,
and the Court appointed Gail Chiodo, Esquire, on May 1, 2001,
to represent [Perez] in the pursuit of a direct appeal. The
Pennsylvania Superior Court affirmed [Perez]’s judgment of
sentence by Memorandum dated October 3, 2002.11
11
The Superior Court vacated [Perez]’s drug-related
convictions on jurisdictional grounds. The Commonwealth
filed [a] Petition for Allowance of Appeal (“PAA”) in the
Pennsylvania Supreme Court on November 1, 2002. The
Supreme Court granted the Commonwealth’s PAA on
December 2, 2003, and reversed the Superior Court’s
order as it related to the drug-related convictions.
Because the Commonwealth later decided to nolle pross
[Perez]’s drug-related charges, this has no bearing on the
present PCRA petition. [Perez also filed a PAA, which the
Supreme Court denied on December 2, 2003].
PCRA Court Opinion, 6/26/2014, at 1-3.
Since then, Perez has filed five petitions under the PCRA. 4 None of
these petitions has provided Perez any relief.5 Perez filed the present pro se
PCRA petition, his sixth, on April 28, 2014. After determining that the
petition was untimely, the PCRA court notified Perez of its intent to dismiss
____________________________________________
4
See PCRA Court Opinion, 6/26/2014, at 3 (chart).
5
In his most recent appeal, a panel of this Court affirmed the dismissal of
Perez’s fifth petition for relief because it was untimely and he failed to allege
any exception to the time limitation of the PCRA. See Commonwealth v.
Perez, 55 A.3d 124 [34 MDA 2012] (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 57 A.3d 69 (Pa. 2012), cert. denied, 133 S.
Ct. 1728 (U.S. 2013).
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the petition without a hearing on June 26, 2014. See Pa.R.Crim.P. 907.
Perez filed a response to the Rule 907 notice on July 21, 2014. On July 25,
2014, after considering Perez’s response, the PCRA court dismissed his
petition. This pro se appeal followed.6
“Crucial to the determination of any PCRA appeal is the timeliness of
the underlying petition. Thus, we must first determine whether the instant
PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,
768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).
The PCRA timeliness requirement … is mandatory and
jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
petition’s untimeliness and reach the merits of the petition. Id.
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013). A PCRA
petition must be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S. § 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 review.” 42 Pa.C.S. § 9545(b)(3). Here, our
review of the record reveals the Pennsylvania Supreme Court denied Perez’s
____________________________________________
6
On August 21, 2014, the PCRA court ordered Perez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Perez filed a concise statement on September 8, 2014. The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 11, 2014,
adopting its June 26, 2014, opinion.
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PAA on December 2, 2003. See Commonwealth v. Perez, 839 A.2d 351
(Pa. 2003) (per curiam). Therefore, Perez’s judgment of sentence became
final on March 2, 2004, 90 days after the Pennsylvania Supreme Court
denied his petition for allowance of appeal and the time for filing a petition
for review with the United States Supreme Court expired. See 42 Pa.C.S. §
9545(b)(3); U.S.Sup.Ct.R. 13. As such, any PCRA petition had to be filed by
March 2, 2005. Perez did not file the present PCRA petition until April 28,
2013. Accordingly, Perez’s petition is patently untimely.
Nevertheless, an untimely PCRA petition may be considered if one of
the following three 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 provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i-iii). Furthermore, a PCRA petition alleging any of
the exceptions under Section 9545(b)(1) must be filed within 60 days of
when the PCRA claim could have first been brought. 42 Pa.C.S. §
9545(b)(2).
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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,
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) (emphasis in original).
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).
In his sole issue on appeal, Perez argues the PCRA court erred in
dismissing his petition without conducting a hearing because his argument
meets the exception found in Section 9545(b)(1)(ii) regarding newly-
discovered facts.. Specifically, Perez contends that in February 2014, he re-
established contact with Ivette Cepeda, his girlfriend at the time of trial, and
she informed him that, while in the courtroom prior to the commencement of
his 2001 trial, one of the victims, Herbert Deibert, admitted to Cepeda that
he did not recognize Perez and then left the courtroom with the prosecuting
officers. See Perez’s Brief at 8-11. Perez avers “Cepeda’s affidavit raises a
genuine issue of material fact with respect to whether Herbert Diebert’s
identification of [Perez] was the result of police misconduct, i.e., Michael
Gombar and Christopher Santoro of the Reading Police Department, who
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influenced Diebert’s testimony in favor of guilt by directly identifying [Perez]
for Diebert.” Id. at 11. Perez alleges that although Cepeda was his
girlfriend at the time, she did not convey this information to him, and that as
soon as he was convicted, Cepeda disappeared and it took him over a
decade to find her. Id. at 8. Moreover, he states he had no knowledge that
she knew such information and he was only trying to locate her because of
the child that they shared. Id.
Here, the PCRA court found the following:
Without addressing the credibility of Ms. Cepeda’s new
statement, the Court believes that these facts could have been
ascertained earlier by the exercise of due diligence. Since the
time that Ms. Cepeda allegedly spoke with the victim in the
courtroom, [Perez] has previously been represented by trial
counsel, appellate counsel and PCRA counsel. If this claim had
previously been presented, counsel could have searched for Ms.
Cepeda on [Perez]’s behalf. Furthermore, as Ms. Cepeda was
[Perez]’s girlfriend at the time of trial, [Perez] probably knew
how to get into contact with her. It is not a reasonable
assumption that Ms. Cep[e]da would attend [Perez]’s trial, while
she was still his girlfriend, learn that the victim could not identify
him, and not share this information with [Perez] or his counsel.
It has been more than thirteen (13) years since [Perez]’s trial.
While the Court recognizes that [Perez] has been incarcerated
since that time, [Perez] has not shown that he took any actions
to learn these facts earlier than 2014. This inaction is
particularly concerning based on the fact that [Perez] has
previously contested his identification. [Perez] has not shown
that he could not have ascertained these facts earlier by the
exercise of due diligence. Therefore, the Court does not believe
that the § 9545(b)(1)(ii) exception excuses the untimely filing of
[Perez]’s PCRA petition.
PCRA Court Opinion, 6/26/2014, at 7-8.
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We agree with the court’s analysis. Moreover, of significance, we are
guided by the following: “[A] claim based on inadmissible hearsay does not
implicate” the Section 9545(b)(1)(ii) exception. Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1269 (Pa. 2008), cert. denied, 555 U.S. 916 (2008).
In Abu-Jamal, the defendant filed an untimely PCRA petition, in which
he attempted to invoke the Section 9545(b)(1)(ii) exception. In his petition,
the defendant asserted he received new evidence that a vital Commonwealth
witness, Priscilla Durham, had recanted her trial testimony implicating him in
the criminal acts. To meet this burden, the defendant presented a
declaration by his fellow inmate, Kenneth Pate, who stated he had a phone
conversation with Durham, during which she admitted police had directed
her to falsely testify she heard the defendant confess to the crimes. The
PCRA court dismissed the petition as untimely, and the defendant then
appealed directly to the Pennsylvania Supreme Court because he had been
sentenced to death.7
In concluding the PCRA court properly found the defendant’s petition
was untimely and did not fall under the Section 9545(b)(1)(ii) exception, the
Supreme Court opined, in pertinent part:
[The defendant] offers no explanation as to why Pate, who
asserted he was aware of Durham’s alleged perjury in 1984, did
not come forward with this information until nearly 20 years
later. Thus, we cannot say [the defendant] raised his issues
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7
See 42 Pa.C.S. § 9546(d).
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regarding the applicability of [Section 9545(b)(1)(ii)] in a timely
manner[.]
…
Because Pate’s testimony concerned an out-of-court statement
by 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 defendant] contends Durham’s
statement to Pate was a statement against interest and is
admissible under the hearsay exception in Pa.R.E. 804(b)(3).
However, for this exception to apply, the declarant must be
unavailable as a witness, see Pa.R.E. 804(b), and [the
defendant] offers no proof Durham is not available. Therefore,
Pate’s declaration was inadmissible hearsay and does not fall
under § 9545(b)(1)(ii)’s timeliness exception.
Abu-Jamal, 941 A.2d at 1269-1270.
Turning to the present matter, we find that Abu-Jamal is substantially
similar to this case. Perez attempts to invoke the “new facts” exceptions by
claiming that Deibert gave a statement to Cepeda prior to Perez’s trial, in
which he apparently admitted that he did not recognize Perez,8 and since
Cepeda disappeared directly after his trial, Perez avers he was not aware of
and he could not have discovered this information earlier with the exercise
of due diligence. Because Cepeda’s affidavit concerned an out-of-court
statement by Deibert relied upon for its truth, it is hearsay. However, Perez
only presents Cepeda’s statements, without any proof that Deibert (the
declarant) is not available. See Pa.R.E. 804(b)(3). Likewise, he does not
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8
See Affidavit of Ivette Cepeda, 2/28/2014.
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offer any corroborating evidence to indicate the trustworthiness of Deibert’s
statement. See Pa.R.E. 804(b)(3)(B). Furthermore, as indicated by the
PCRA court, Perez does not explain why Cepeda, who was apparently aware
of this falsification in 2001, did not come forward with this information until
over 13 years later. As such, Cepeda’s affidavit fails to satisfy the hearsay
exception set forth in Rule 804(b)(3). Accordingly, Perez’s present PCRA
petition is based on inadmissible hearsay that cannot satisfy the “new facts”
timeliness exception pursuant to Section 9545(b)(1)(ii). See Abu-Jamal,
supra. Therefore, the PCRA court properly denied his petition, and we
affirm its July 25, 2014, order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2015
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