J-S65042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LOUIS SESSA, III
Appellant No. 1137 EDA 2015
Appeal from the PCRA Order March 3, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005943-1992
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 24, 2015
Appellant Louis Sessa appeals from the March 3, 2015 order of the
Bucks County Court of Common Pleas denying his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. as
untimely. We affirm.
On March 10, 1993, Appellant pled guilty to murder, eight counts of
robbery, two counts of possession of instrument of a crime, two counts of
theft by unlawful taking or disposition, two counts of receiving stolen
property, and eight counts of conspiracy.1 The trial court held a degree of
guilt hearing and found Appellant guilty of second-degree murder. The trial
court imposed concurrent sentences of life imprisonment for the murder
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1
18 Pa.C.S. §§ 2502, 3701, 907, 3921, 3925, and 903, respectively.
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conviction and 10 to 20 years’ imprisonment for the conspiracy conviction.
Appellant did not file a direct appeal.
The PCRA court previously described the post-conviction procedural
history as follows:
On July 18, 1994, [Appellant] filed his first [PCRA
petition]. Thereafter, on December 22, 1994, an
evidentiary hearing was held and at the conclusion of
the hearing Judge Garb denied [Appellant’s] request
for PCRA relief. . . . [O]n August 2, 1995, the
Superior Court of Pennsylvania affirmed the denial of
post-conviction relief and on December 28, 1995 the
Pennsylvania Supreme Court denied [Appellant’s]
petition for allowance of appeal. Commonwealth v.
Sessa, 668 A.2d 1197 (Pa. Super. 1995) (table),
appeal denied, 670 A.2d 141 (Pa. 1995).
On March 7, 2002, [Appellant] filed his second PCRA
petition. On May 3, 2002 [the Court of Common
Pleas of Bucks County] dismissed [Appellant’s]
petition without a hearing on the basis of
untimeliness. [Appellant] appealed, and on February
21, 2003, the Superior Court of Pennsylvania
vacated the order and remanded . . . . On February
10, 2005, [the PCRA court] ultimately dismissed
[Appellant’s] second PCRA petition and [Appellant]
appealed. The Superior Court of Pennsylvania
quashed [Appellant’s] appeal as untimely . . . and
[opined] that the PCRA court did not have
jurisdiction to entertain its merits. The Pennsylvania
Supreme Court denied [Appellant’s] petition for
allowance of appeal. Commonwealth v. Sessa, 903
A.2d 1233 (Pa. 2006) (per curiam).
****
[O]n March 25, 2008, [Appellant] filed a Petition for
Writ of Habeas Corpus ad Subjiciendum in [the trial
court] . . . . On May 28, 2008, [the trial court]
denied the petition without a hearing for failure to
state a claim . . . . The Superior Court of
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Pennsylvania affirmed [the trial court’s] decision on
March 3, 2009 and the Pennsylvania Supreme Court
denied [Appellant’s] petition for allowance of appeal.
Commonwealth v. Sessa, 972 A.2d 561 (Pa.
Super.)
(table), 980 A.2d 607 (Pa. 2009) (per curiam) (some
citations omitted).
[Trial Court Opinion, 7/30/2010 (unpaginated)]
****
On May 1, 2012, [Appellant] filed [a] “Motion for Post
Conviction Collateral Relief” and [a] “Supplemental Post
Conviction Collateral Relief Petition this Courts [sic]
Jurisdiction Pursuant to 42 Pa.C.S. § 9543 et. seq.,” his
fifth PCRA petition. On June 6, 2012, [the PCRA court]
issued an Order for Answer on the Commonwealth. On
June 14, 2012, the Commonwealth filed an Answer. On
June 27, 2012, [Appellant] filed “Petitioner’s Objections to
Commonwealth [sic] Motion to Dismiss P.C.R.A. Petition
Without a Hearing.”
On July 9, 2012, [the PCRA court] issued a Notice of Intent
to Dismiss. On July 19, 2012, [Appellant] filed “Motion for
Extension of Time for Production of Record to Support
Response of Intent to Dismiss Petition without Hearing,”
which [the PCRA court] granted on July 23, 2012 and
extended [Appellant’s] filing period until August 17, 2012.
On July 27, 2012, [Appellant] filed “Petitioner’s Response
to Courts [sic] intent to Dismiss Petition without a
Hearing.” On August 24, 2012, [the PCRA court]
dismissed [Appellant’s] petition. On August 31, 2012,
[Appellant] filed “Motion for Reconsideration of This Courts
[sic] Order of 8/31/2012, Denying P.C.R.A. Petition,” which
[PCRA court] denied on September 24, 2012. On
September 24, 2012, [Appellant] filed a Notice of Appeal
and a “Concise Statement of Matters Complained of on
Appeal.”
PCRA Court Opinion (“P.C.O.”), 12/19/2012, at 1-7 (citations modified). The
PCRA court denied Appellant’s PCRA Petition as untimely under 42 Pa.C.S. §
9545(b), and this Court affirmed.
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On December 1, 2014, Appellant filed another PCRA petition. On
January 28, 2015, the PCRA court issued a notice of its intent to dismiss the
petition without a hearing pursuant to Pennsylvania Rule of Criminal
Procedure 907. Appellant filed a response on February 11, 2015. On March
3, 2015, the PCRA court denied the petition. Appellant filed a timely notice
of appeal. Both Appellant and the trial court complied with Pennsylvania
Rule of Appellate Procedure 1925.
Appellant raises the following issues on appeal:
1. Did the [PCRA] court err, and commit reversible error
when it dismissed [A]ppellant’s petition without the benefit
of [a] properly conducted evidentiary hearing to determine
the credibility of the presented statement(s) that led to
filing of the said petition, and therefore being able to
render a fully informed legal opinion?
2. Did the [PCRA] court err, and commit reversible error
when it failed to recognize a timely presented motion to
the court that was pertinent to the due process of the law
with[] regards to final disposition of [PCRA] petition?
3. Did the Commonwealth’s attorney perpetrate a knowing
fraud upon the court when [he] failed to disclose
discoverable material to the defense, that it presented to
the court at suppression and at trial, and knew was
inherently false in nature?
4. Did the Commonwealth’s prosecuting attorney err, and
commit reversible error, when it permitted knowing false
testimony to remain on the record uncorrected, when it
was presented at a criminal suppression hearing and trial,
as well as, during appellate post collateral proceedings,
impeding justice and perpetrating a knowing fraud upon
the judiciary?
5. Did the [PCRA] court err, and commit reversible error
when it omitted facts of record upon which appellant’s
claims are predicated and completely failed to address
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claims of appellant that are properly preserved and
presented to the court for review?
Appellant’s Brief at iii.
Before reaching the merits of Appellant’s claims, we must determine
whether he timely filed this PCRA petition. Pursuant to Pennsylvania law,
“no court has jurisdiction to hear an untimely PCRA petition.”
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.2003)). The PCRA
provides that a petition, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final.” 42 Pa.C.S. §
9545(b)(1); accord Monaco, 996 A.2d at 1079; Commonwealth v. Bretz,
830 A.2d 1273, 1275 (Pa.Super.2003). A judgment is 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. § 9545(b)(3).
Three exceptions to the PCRA’s statute of limitations exist. The
exceptions allow for limited circumstances under which a court may excuse
the late filing of a PCRA petition. Monaco, 996 A.2d at 1079; 42 Pa.C.S. §
9545(b)(1). The late filing of a petition will be excused if a petitioner alleges
and proves:
(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;
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(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). When invoking an exception outlined
above, the petition must “be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant was sentenced in 1993. As Appellant concedes, his
December 1, 2014 PCRA petition is facially untimely. Appellant claims he
has satisfied two exceptions to the PCRA time-bar – the newly-discovered
evidence exception and the government interference exception. See
Appellant’s Brief at v. He alleges that in October of 2014, he obtained a
copy of his co-defendant’s guilty plea transcript and maintains this transcript
constitutes newly-discovered evidence. Id. at 2. He further alleges the
Commonwealth failed to produce the transcript, as it allegedly was required
to do. Id. The co-defendant’s guilty plea proceedings occurred on March
10, 1993, the day before Appellant’s suppression hearing. PCRA Petition,
10/2/2014, at 6-7; Docket at 4 of 30, Commonwealth v. Sessa, CP-09-
0005943-1992 (C.P.Bucks); Docket at 4 of 27, Commonwealth v. Dyson,
CP-09-CR-0005936-1992 (C.P.Bucks) [“Dyson Docket”]. The transcript of
his co-defendant’s guilty plea hearing was made public on March 31, 1994.
See Dyson Docket at 6 of 27 (notes of testimony filed 3/31/1994).
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To establish the newly-discovered evidence exception to the PCRA
time-bar, the petition must allege and prove that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).
The Supreme Court of Pennsylvania has found that information is not
“unknown” for purposes of the newly-discovered evidence exception to the
PCRA time-bar where the information was a “matter of public record.”
Commonwealth v. Chester, 895 A.2d 520, 522-23 (Pa.2006). This
presumption of access, however, does not apply where the petitioner is a
pro se prisoner at the time the information became public. Commonwealth
v. Burton, 121 A.3d 1063, 1071 (Pa.Super.2015) (en banc). Further, this
Court has recently held that “due diligence requires neither perfect vigilance
nor punctilious care, but rather it requires reasonable efforts by a petitioner,
based on the particular circumstances, to uncover facts that may support a
claim for collateral relief.” Commonwealth v. Burton, 121 A.3d 1063,
1071 (Pa.Super.2015) (en banc).
Appellant relies on Burton, to support his claim that his PCRA petition
is timely. Reply Brief at 1-3. He argues that as an incarcerated pro se
petitioner, he is not presumed to have access to public records, including the
transcript. Id. at 2. In Burton, this Court found the appellant was entitled
to an evidentiary hearing where he filed his PCRA petition within 60 days of
receiving information that his co-defendant had filed a motion to expunge
his criminal record. The motion to expunge averred that the co-defendant
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killed the victim in self-defense and that Appellant was innocent. 121 A.3d
at 1066. We found that the appellant in Burton may have acted diligently
and found the presumption of access to public records did not apply to
incarcerated pro se petitioners without evidence demonstrating the
petitioner had access to the information. Id. at 1073. We noted the
appellant’s co-defendant filed the motion to expunge 10 years after the
appellant’s conviction became final and “it would not be reasonable to expect
Appellant to investigate public records with sufficient regularity to ascertain
quickly whether [the co-defendant] may have disclosed potentially
exculpatory information.” Id. We further noted the co-defendant’s silence
at trial “eliminated any reasonable expectation that he would, thereafter,
publicly acknowledge his guilt.” Id.
Here, Appellant maintains the testimony of the arresting officer
regarding the officer’s interview of Appellant changed between his co-
defendant’s plea proceeding and Appellant’s suppression hearing the
following day. Appellant’s Brief at 1-2. Appellant was represented by
counsel in March 1993, at the time of his co-defendant’s guilty plea.
Although it appears he did not have counsel in March 1994, when the
transcript of the co-defendant’s proceeding was docketed, the court
appointed counsel on July 22, 1994 to represent Appellant in PCRA
proceedings. Appellant’s counsel would have had access to co-defendant’s
guilty plea transcript, which was a public document. Because Appellant did
not file his PCRA petition within 60 days of March 1993 or within 60 days of
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appointment of counsel in July 1994,2 he fails to establish he acted with
reasonable diligence.3 Therefore, the newly-discovered evidence exception
to the PCRA time-bar does not provide relief.
Appellant also maintains his petition qualifies under the government
interference exception to the PCRA time-bar. Appellant Brief at v. To
establish the government-interference exception a petitioner must allege
and 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.” 42 Pa.C.S. § 9545(b)(1)(i).
“Although a Brady4 violation may fall within the governmental interference
exception, the petitioner must plead and prove the failure to previously raise
the claim was the result of interference by government officials, and the
information could not have been obtained earlier with the exercise of due
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2
Appellant also failed to raise any claim related to the transcript at the
December 22, 1994 evidentiary hearing and his counsel did not file an
amended PCRA petition.
3
Further, from review of the portion of co-defendant’s guilty plea transcript
attached to Appellant’s PCRA petition and attached to Appellant’s brief,
Appellant has not established that any police officer testimony materially
differed from the police officer testimony provided at the suppression
hearing.
4
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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diligence.”5 Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa.2008). As discussed above, Appellant could have discovered the
transcript of his co-defendant’s guilty plea with reasonable diligence in July
1994, at the latest. Because he failed to raise any claim based on the
transcript within 60 days of July 1994, Appellant fails to establish the
government interference exception to the PCRA time-bar.
The PCRA court did not err in denying Appellant’s PCRA petition as
untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2015
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5
Appellant also bases his Brady claim on an allegation that the
Commonwealth did not produce notes from a police interview and that the
PCRA court did not investigate whether his co-defendant received favorable
treatment in exchange for waiving his right to a jury trial for the penalty
phase. Appellant’s Brief at 2. Appellant, however, fails to establish when he
discovered the notes and fails to establish the Commonwealth failed to
produce the notes.
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