Com. v. Miller, J.

J-S68038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOHN MILLER

Appellant No. 3563 EDA 2014

Appeal from the PCRA Order November 13, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1010301-1997

BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.: FILED December 18, 2015

Appellant, John Miller, appeals from the November 13, 2014 order

dismissing, as untimely, his fourth petition for relief filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we affirm.

The PCRA court set forth the facts and procedural history of this case

as follows.

On October 8, 1996, the decedent Anthony
Mullen (“Mullen”) was shot and killed in a parking lot
adjacent to 30th Street Station [in Philadelphia]. The
police recovered a 9 mm cartridge casing next to
Mullen’s body, as well as three .25-caliber cartridge
casings on the opposite side of Mullen’s automobile.
Furthermore, the police recovered a .25-caliber
firearm underneath Mullen’s body, with one round
jammed in the chamber and four rounds in the
magazine. No other firearm was recovered from the
scene.
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On February 27, 1997, the police arrested
David Williams ([David]) for robbery. On February
28, 1997, [David] was interviewed by Detective
Michael Sharkey (“Sharkey”). During the interview,
[David], a neighbor and lifelong acquaintance of
[Appellant], told Sharkey that [Appellant] was
responsible for Mullen’s murder. On March 4, 1997,
[David] was interviewed by Detective Jeffrey Piree
(“Piree”) of the Homicide Unit. During the interview,
[David] stated that [Appellant] confessed to him that
he killed Mullen during a robbery attempt. [David]
further stated that [Appellant] told him he had
obtained the murder weapon from a neighbor,
Michael Arnold (“Arnold”) and then threw the gun
away after the murder. [David] stated that he then
confirmed this information with Arnold and Arnold
told him that [Appellant] confessed to him as well.

On June 23, 1997, Detective Richard Bova
(“Bova”) interviewed Arnold. During the interview,
Arnold confirmed that [Appellant] had taken a gun
from him in August 1996. Arnold stated that he
retrieved the gun from his home after a fight erupted
on the street outside[.] Arnold further stated that he
then discarded the gun when the police arrived on
the scene, and he saw [Appellant] pick the gun up.
Arnold stated that the gun was either a silver
automatic .380-caliber pistol or a 9 mm pistol.
Arnold further stated that he spoke with [Appellant]
on October 8, 1996, and [Appellant] confirmed at
that time that he still possessed the gun.

On June 25, 1997, [Appellant] was arrested
and charged with murder, robbery and related
offenses. On October 30, 1997, during a preliminary
hearing, [David] recanted the statement he had
given to police. [David] claimed that, while the
statement accurately reflected what he told the
police, he had lied to the police because he and
[Appellant] were not getting along at the time. From
September 24, 1998 to September 29, 1998, a jury
trial was held before the Honorable Judge John
Poserina. At trial, [David] again recanted the
statement he had given to police. [David] testified

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that he did not give any information to the police and
they had fabricated his statement. During their
testimony, Sharkey and Piree refuted [David’s]
recantation. Furthermore, Arnold testified that
[Appellant] had taken his gun, but stated that the
gun did not work and he was unaware of its caliber.
On September 29, 1998, the jury found [Appellant]
guilty of second-degree murder, robbery and
possession of an instrument of crime (PIC). On
December 15, 1998, [Appellant] was sentenced to
life imprisonment on the murder charge.

[Appellant] appealed the judgment of sentence
to the Superior Court, which affirmed the sentence
on December 15, 2000. [Commonwealth v.
Miller, 769 A.2d 1207 (Pa. Super. 2000)
(unpublished memorandum).] [Appellant] did not
file a Petition for Allowance of Appeal with the
Pennsylvania Supreme Court. On May 15, 2001,
[Appellant] filed his first PCRA petition, alleging
after-discovered evidence on the basis of statements
by Clinton Bailey (“Bailey”) and Terry Scruggs
(“Scruggs”) which implicated [David] in Mullen’s
murder. On August 5, 2002 and August 8, 2002, the
PCRA court held an evidentiary hearing and received
testimony from Bailey and Scruggs. On October 29,
2002, the PCRA court dismissed [Appellant’s]
petition after concluding that the testimony of Bailey
and Scruggs was unbelievable.

On November 26, 2002, [Appellant] filed a
Notice of Appeal to the Superior Court. On January
8, 2003, [Appellant] filed a Concise Statement of
Errors pursuant to Pa.R.A.P. 1925(b) and attached to
it a copy of a letter from [David] to [Appellant’s]
mother. In the letter, [David] claimed that he killed
Mullen and falsely implicated [Appellant]. On April
16, 2003, [Appellant] filed an Application for Remand
with the Superior Court for an evidentiary hearing
regarding the letter. On May 21, 2003, the Superior
Court granted [Appellant’s] request for an
evidentiary hearing, which was held on July 30,
2003. [David] testified at the hearing that he shot
and killed Mullen in self-defense. [David] further

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testified that he had known Mullen for several
months prior to the murder, and had shot him while
he was trying to recover money that he had loaned
to Mullen a few days prior to the shooting. [David]
also testified that the police had accurately recorded
what he told them in his statement, but that he had
lied to them. However, [David] testified incorrectly
that Mullen was a short white male who was wearing
a green jacket on the night of the shooting, and
incorrectly identified the location of the shooting as
occurring inside the parking garage adjacent to the
station. In reality, Mullen was a tall, heavy-set,
African-American male who was wearing a red jacket
on the night of the shooting, and the shooting
occurred near Mullen’s van in an open air parking lot
farther away from the station. At the conclusion of
the hearing, the PCRA court stated that it believed
[David] was lying under oath. The PCRA court then
referred the case back to [the] Superior Court. On
that same day, [David] was arrested for perjury
based on the testimony he gave at the hearing. On
February 26, 2004, [David] pled guilty to perjury
and was sentenced to 1 to 3 years[’] incarceration
plus 4 years[’] probation. On October 22, 2004, the
Superior Court affirmed the PCRA court’s dismissal of
[Appellant’s] petition. [Commonwealth v. Miller,
864 A.2d 581 (Pa. Super. 2004), appeal denied, 872
A.2d 1198 (Pa. 2005).] On April 26, 2005, the
Supreme Court of Pennsylvania denied [Appellant’s]
Petition for Allowance of Appeal. [Id.]

On October 6, 2005, [Appellant] filed a petition
for habeas corpus in the United States District Court
for the Eastern District of Pennsylvania. On January
30, 2007, the Honorable Judge Bruce Kauffman
dismissed [Appellant’s] petition without a hearing
and ruled that no Certificate of Appealability should
issue. On February 20, 2007, [Appellant] filed a
Notice of Appeal and Application for Certificate of
Appealability to the United States Court of Appeals
for the Third Circuit. On July 27, 2007, the
Honorable Judge Morton Greenberg denied
[Appellant’s] request for a Certificate of
Appealability. On October 23, 2007, [Appellant] filed

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a Petition for a Writ of Certiorari to the United States
Supreme Court, which denied [Appellant’s] petition
on February 19, 2008. [Miller v. Beard, 552 U.S.
1205 (2008).]

On October 23, 2007, [Appellant] filed his
second petition for relief pursuant to the PCRA.
[Appellant] submitted with his petition an affidavit
from fellow inmate Andre Monroe, who claimed to
have witnessed [David] shoot and kill Mullen. On
October 17, 2008, the PCRA court dismissed
[Appellant’s] petition without a hearing as untimely.
[Appellant did not file a notice of appeal to the
Superior Court.]

On April 19, 2011, [Appellant] filed a third
petition for relief pursuant to the PCRA. [Appellant]
attached to his petition another letter from [David]
to his mother, in which [David] again declared that
he killed Mullen and claimed that he incorrectly
identified Mullen as a white male due to panic while
on the witness stand. On June 6, 2011, [Appellant]
amended his petition to include an affidavit from
Arnold, in which Arnold recanted his pretrial
statement to police and his testimony at trial. On
July 18, 2011, the PCRA court sent [Appellant] a
[Pennsylvania Rule of Criminal Procedure] 907
notice, indicating that his petition would be
dismissed as untimely. On August 4, 2011,
[Appellant] filed a response to the [Rule] 907 notice.

On August 5, 2011, new counsel entered an
appearance on behalf of [Appellant]. On November
3, 2011, defense counsel filed an amended petition,
alleging after-discovered evidence and governmental
interference as exceptions to the time-bar. Defense
counsel attached to the amended petition a
statement from Mark Manigault (“Manigault”). In the
statement, Manigault claimed that he shared a cell
with [David] in February 1997 and [David] told him
that he was going to pin a murder that he committed
on someone else in order to get out of jail.
Manigault further claimed that he was interviewed by
police about Mullen’s murder, but told the police that

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he knew nothing. Defense counsel argued that the
police failed to disclose this alleged evidence to
[Appellant] prior to trial and that it would have
changed the outcome of [Appellant’s] trial. On
November 18, 2011, the PCRA court dismissed
[Appellant’s] petition as untimely. On November 28,
2011, defense counsel filed a motion for
reconsideration. On December 13, 2011, the PCRA
court denied [Appellant’s] motion. On December 15,
2011, [Appellant] filed a Notice of Appeal to the
Superior Court. On February 13, 2012, [Appellant]
filed a second petition for habeas corpus in federal
court. [That petition remains pending in the United
States District Court for the Eastern District of
Pennsylvania.] On March 9, 2012, [Appellant] filed
an Application for Remand with the Superior Court
for an evidentiary hearing regarding evidence which
is now the subject of his current PCRA petition. On
March 28, 2012, the Superior Court denied
[Appellant’s] Application for Remand. On July 24,
2012, the Superior Court affirmed the denial of
[Appellant’s] PCRA petition. [Commonwealth v.
Miller, 55 A.3d 145 (Pa. Super. 2012) (unpublished
memorandum). Appellant did not file a petition for
allowance of appeal with the Pennsylvania Supreme
Court.]

On September 20, 2012, [Appellant] filed a
fourth petition for relief pursuant to the PCRA,
invoking the after-discovered evidence and
governmental interference exceptions to the time-
bar. In the instant petition, [Appellant] alleges that,
on the same day [David] gave his statement to the
police implicating [Appellant] in Mullen’s murder,
[David] also gave a statement to the police which
implicated Jack Williams (“Jack”) in an unrelated
murder. [Appellant] claims that [David] fabricated
this statement to the police as well, and later told
Jack that he purposefully included false information
in the statement. [Appellant] further claims that
[David] fabricated the statement against [Appellant]
as well as the statement against Jack in order to
receive leniency on his own pending charges. Jack
was subsequently found guilty of first-degree murder

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at trial. Four witnesses testified for the
Commonwealth at Jack’s trial, although [David] was
not called to testify. [Appellant] alleges that he first
learned about this other statement [David] gave
during a phone call between defense counsel and
[David] on April 27, 2012. [Appellant] argues that
the Commonwealth failed to disclose to the defense
that [David] had given an allegedly false statement
to the police concerning a separate homicide on the
same day that he gave his statement to police
implicating [Appellant] in Mullen’s murder.
[Appellant] further argues that, had the jury known
about this second statement, the outcome at trial
would have been different. Furthermore, [Appellant]
claims that Arnold again recanted the statement he
gave to police and the testimony he gave at trial.

On September 4, 2013, the Commonwealth
filed a motion to dismiss [Appellant’s] PCRA petition.
On October 11, 2013, [Appellant] filed a response to
the Commonwealth’s motion to dismiss. On October
17, 2014, [the PCRA court] sent [Appellant] a notice
pursuant to Rule 907, indicating that his petition
would be dismissed because the issues raised in the
petition were without merit. [Appellant] did not file
a response to the [Rule] 907 notice. On November
13, 2014, after independent review of [Appellant’s]
pro se petition, defense counsel’s amended petition,
the Commonwealth’s motion to dismiss, and
[Appellant’s] response to the Commonwealth’s
motion to dismiss, [the PCRA court] dismissed the
petition based upon a lack of merit. On November
21, 2014, [Appellant], through counsel, filed a Notice
of Appeal to the Superior Court.[1]

PCRA Court Opinion, 1/30/15, at 1-7 (footnote omitted).

____________________________________________

1
The PCRA court did not direct Appellant to file a Pennsylvania Rule of
Appellate Procedure 1925(b) statement of matters complained of on appeal.
The PCRA court authored a Rule 1925(a) opinion on January 30, 2015.

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On appeal, Appellant presents the four following issues for our review,

which we have reordered for purposes of our discussion.

1. Whether the PCRA court erred in dismissing
Mr. Miller’s PCRA [p]etition as untimely.

[2]. Whether the PCRA court erred in finding that
[Appellant’s] claim that governmental interference in
the form of failure to disclose the existence of
exculpatory evidence was not a denial of due process
under the Pennsylvania Constitution and the United
States Constitution as construed by the United
States Supreme Court in Brady v. Maryland, 373
U.S. 83 (1963) and Commonwealth v. Watkins,
108 A.3d 692 (Pa. 2014).

[3]. Whether the PCRA court erred in failing to hold
an evidentiary hearing to allow [Appellant] to
demonstrate the court’s jurisdiction and to establish
his claim.

4. Whether the PCRA court erred in denying
[Appellant’s] freestanding claim of actual innocence
pursuant to the Pennsylvania and United States
Constitutions.

Appellant’s Brief at 4.

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

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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).

As Appellant’s first and second issues on appeal both raise exceptions

to the PCRA time-bar, we address them together. Therein, Appellant

contends that the PCRA court erred in dismissing his petition as untimely.

The timeliness of Appellant’s PCRA petition 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 is 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

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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). Section 9545 sets forth the three exceptions to the PCRA time-bar

as follows.

§ 9545. Jurisdiction and proceedings

…

(b) Time for filing petition.—

(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.

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…

42 Pa.C.S.A. § 9545(b)(1). A PCRA petition invoking one of these time-bar

exceptions must “be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2). “A petitioner fails to satisfy the 60-day

requirement of Section 9545(b) if he or she fails to explain why, with the

exercise of due diligence, the claim could not have been filed earlier.”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).

Herein, Appellant was sentenced on December 15, 1998. This Court

affirmed his judgment of sentence on December 29, 2000, and Appellant did

not file a petition for allocator with our Supreme Court. As a result,

Appellant’s judgment of sentence became final on January 29, 2001, when

the time for Appellant to file such a petition expired. 2 See id. § 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[]”); Pa.R.A.P. 1113 (declaring an appeal to our Supreme Court

must be filed within 30 days of an order of this Court). Accordingly,

Appellant had until January 29, 2002 to file a timely PCRA petition. See 42

____________________________________________

2
We note that the 30th day following this Court’s decision fell on Sunday,
January 28, 2001. As such, the last day Appellant could have filed a petition
for allocator was Monday, January 29, 2001. See 1 Pa.C.S.A. § 1908
(providing that when the last day of a calculated period of time falls on a
Saturday or Sunday, such days shall be omitted from the computation).

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Pa.C.S.A. § 9545(b)(1) (providing that a PCRA petition must be filed within

one year of the judgment of sentence becoming final to be considered

timely). Therefore, Appellant’s current petition, his fourth, filed on

September 20, 2012, was facially untimely. See id.

Appellant argues, however, that the PCRA court erred in dismissing his

petition because the “newly discovered fact” and the “governmental

interference” exceptions to the time-bar enumerated in Section 9545 apply

in this case. Appellant’s Brief at 22. We will discuss each exception in turn.

Appellant’s PCRA petition raised two facts that he claimed were newly

discovered. Id. at 23. First, like his prior PCRA petition, Appellant again

presented his overarching claim that David’s initial statement to police

implicating Appellant was false. The “newly discovered fact” Appellant relied

on in his latest PCRA petition to discredit David was that David gave a

separate statement to police, implicating Jack in an unrelated homicide case,

hours before David provided the statement accusing Appellant of Mullen’s

homicide. Id. at 23-24. According to Appellant, David later told Jack that

he had made a false statement inculpating Jack in exchange for leniency in

his robbery case. Id. at 24. Appellant argues that this constituted a newly

discovered fact that he could not have previously discovered through due

diligence, which meets the exception to the time-bar in Section

9545(b)(1)(ii). Moreover, Appellant’s PCRA petition pled a second allegedly

newly discovered fact, which was that Arnold supplied a supplemental

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recantation in greater detail than the repudiation that was one of the

grounds for Appellant’s prior PCRA petition. Id. at 29-31. For the following

reasons, we conclude that neither of the ultimate facts that Appellant

asserted meets the time-bar exception because they were not newly

discovered.

Our Supreme Court has explained that the newly discovered fact

exception in Section 9545(b)(1)(ii) “requires petitioner to allege and prove

that there were ‘facts’ that were ‘unknown’ to him” and that he could not

have ascertained those facts by the exercise of “due diligence.”

Commonwealth v. Bennett, 930 A.2d 1264, 1270-1272 (Pa. 2007). A

PCRA petitioner cannot meet this exception by introducing a new source of a

previously known fact. Marshall, supra.

Herein, Appellant’s PCRA petition pled new sources of two previously

known facts.3 First, Appellant attempted to show, yet again, that David

falsely accused him of Mullen’s murder. He sought to do so in this PCRA
____________________________________________

3
Appellant claimed he discovered both sources while the appeal of his third
PCRA petition was pending with this Court. Specifically, on March 18, 2012,
Arnold signed a written certification admitting that he falsely accused
Appellant of taking Arnold’s discarded handgun. Appellant’s Brief at 29.
Moreover, on April 27, 2012, David disclosed to Appellant’s counsel that he
made the false statement implicating Jack. Id. at 28. Then, on June 1,
2012, Appellant’s counsel obtained Jack’s discovery packet. Id. Thereafter,
on July 27, 2012, this Court decided Appellant’s appeal of his third PCRA
petition, affirming the PCRA court’s dismissal of the petition. On September
20, 2012, Appellant filed the instant PCRA petition, his fourth, which was
within 60 days of this Court’s decision. Appellant claims this satisfies the
60-day requirement of Section 9545(b)(2). Id. at 29.

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petition by introducing a new source in the form of David’s allegedly false

statement to police accusing Jack of a separate homicide while David was in

custody on robbery charges. David’s statement accusing Jack, however, is

simply Appellant’s latest means to discredit David’s statement implicating

him in Mullen’s murder. Appellant has known the ultimate fact that David

falsely accused Appellant of Mullen’s homicide since his preliminary hearing

in October 1997. A prior panel of this Court, in affirming the dismissal of

Appellant’s third PCRA petition, detailed David’s various recantations of his

statement as follows.

On March 4, 1997, [David] signed a statement
that [Appellant] had confessed to him that he
murdered Mullen in a botched robbery attempt.
Thereafter, at [Appellant’s] October 30, 1997
preliminary hearing, [David] testified that his signed
statement had accurately reflected what he had told
police, but not what actually happened.
Subsequently, at trial, [David] testified that the
detectives had actually made up “ninety percent” of
his statement themselves. Then, in an undated
letter written to [Appellant’s] mother sometime in
the fall of 2002 and submitted to the PCRA court on
January 3, 2003, [David] confessed to having killed
Mullen himself and stated that [Appellant] had no
knowledge of the crime. [David] stated that the
shooting occurred when he went to the parking lot to
collect drug money owed to him by Mullen. At a
subsequent PCRA hearing in July 2003, [David] again
confessed to Mullen’s murder and testified, under
oath, that Mullen was a white male wearing a green
jacket. In fact, Mullen was a black male wearing a
red jacket. Finally, on March 19, 2011, [David] sent
another letter to [Appellant’s] mother in which he
again confessed to murdering Mullen and also: (1)
admitted to having lied in court at [Appellant’s] July
2003 PCRA hearing and (2) stated that the shooting

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occurred when he attempted to rob Mullen, not when
he was collecting a drug debt as he had previously
stated.

Commonwealth v. Miller, 55 A.3d 145 (Pa. Super. 2012) (unpublished

memorandum at 19 n.9) (citation omitted; emphasis in original).

Based on the foregoing, we conclude Appellant previously knew the

“fact” that David falsely accused Appellant of Mullen’s murder and David’s

statement implicating Jack is merely a new source of that previously known

fact, which does not satisfy the time-bar. See Marshall, supra.

Accordingly, the PCRA court did not abuse its discretion or err as a matter of

law in dismissing Appellant’s petition as untimely. See Fears, supra.

Similarly, Appellant asserts that Arnold’s latest, most detailed

recantation is a newly discovered fact capable of overcoming the time-bar.

Appellant’s Brief at 29 (stating Arnold’s latest recantation “describes Arnold’s

motivations to provide false information against [Appellant]”). Arnold,

however, recanted his initial statement to police both at Appellant’s trial and

in a 2011 statement. In the 2011 statement to Appellant’s counsel, Arnold

claimed that he fabricated his original statement to police to eliminate

Appellant as his competitor in the local drug trafficking market. The 2011

statement was one of the grounds that Appellant cited in his third PCRA

petition. Here, because Arnold’s third and most recent recantation is merely

a more detailed version of a fact previously known to Appellant, and litigated

in Appellant’s third PCRA, it cannot overcome the time-bar. See Marshall,

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supra. Accordingly, the PCRA court did not abuse its discretion or commit

an error of law by concluding Appellant did not plead or prove the newly

discovered fact exception to the PCRA time-bar. See Fears, supra.

Alternatively, in an attempt to invoke the governmental interference

exception to the time-bar at Section 9545(b)(1)(i), Appellant contends that

the Commonwealth was aware of David’s false statement implicating Jack,

but did not disclose it to him in discovery in violation of its obligations under

Brady v. Maryland, 373 U.S. 83 (1963). Appellant’s Brief at 35.

Our Supreme Court has explained the interaction between Brady and

the governmental interference exception to the PCRA time-bar as follows.

Although a Brady violation might fall within
the “governmental interference” exception,
§ 9545(b)(1)(i) nonetheless requires a petitioner to
plead and prove: (1) the failure to previously raise
the claim was the result of interference by
government officials and (2) the information on
which he relies could not have been obtained earlier
with the exercise of due diligence. The merits of a
Brady claim need not be addressed until it is
established that the instant petition was timely filed.

Commonwealth v. Williams, 105 A.3d 1234, 1240 (Pa. 2014) (citations

omitted), cert. granted, Williams v. Pennsylvania, 136 S. Ct. 28 (2015).

Accordingly, we must determine whether the Commonwealth interfered with

Appellant’s ability to raise the claim that David’s statement was false and

whether Appellant could have uncovered David’s statement about Jack

through due diligence. Id.

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In concluding Appellant did not exercise due diligence, the PCRA court

reasoned as follows.

[A]s the Superior Court noted in its prior dismissal of
[Appellant’s] third PCRA petition, [Appellant] had
known [David] since childhood and [David] had been
actively cooperating with [Appellant’s] efforts to
exonerate himself since at least 2003. In holding
that [Appellant] had not exercised due diligence in
obtaining Manigault’s statement, the Superior Court
stated that [Appellant] could have simply asked
[David] if he confessed to anyone else about
shooting Mullen. Likewise, here, [Appellant] or []
counsel earlier could have obtained information
about the other statement [David] gave by asking
[David] an equally simple question as to what
occurred while he was in police custody on the day
he gave the statement. Certainly, the circumstances
under which a witness gives a statement while in
police custody are commonly inquired into by
defense counsel in order to determine a possible
basis to impeach that statement. Thus, [Appellant]
has failed to demonstrate that he exercised due
diligence in obtaining the evidence of [David’s] other
statement upon which this fourth PCRA petition is
based.

PCRA Court Opinion, 1/30/15, at 11. We discern no abuse of discretion or

error of law in the PCRA court’s finding that Appellant did not exhibit due

diligence in obtaining David’s statement about Jack. See Williams, supra.

We emphasize that David had recanted his statement since Appellant’s

preliminary hearing and had been actively assisting Appellant in his post-

conviction proceedings since at least 2003. Because of David’s cooperation,

we conclude that Appellant could have ascertained David’s statement about

Jack through the exercise of due diligence. Accordingly, Appellant cannot

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meet the governmental interference exception to the PCRA time-bar. See

id. Moreover, because Appellant’s petition is untimely, we need not address

the merits of the alleged Brady violation. See id. Therefore, we conclude

Appellant’s first two issues on appeal are meritless because his untimely

PCRA petition failed to meet either the newly discovered fact or the

governmental interference exception to the time-bar, and the PCRA court did

not abuse its discretion or err as a matter of law in dismissing the petition as

untimely. See Fears, supra.

In his third issue on appeal, Appellant argues that the PCRA court

erred by denying him a hearing on his petition before dismissing it as

untimely. Appellant’s Brief at 32. We note that there is no absolute right to

an evidentiary hearing in a post-conviction proceeding; instead, the trial

court may forego a hearing when confronted with a frivolous claim.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012). We review

a PCRA court’s decision to dismiss without a hearing for an abuse of

discretion. Id. Herein, the PCRA court explained that it dismissed

Appellant’s PCRA petition without a hearing because it found that Appellant’s

claims were without merit. PCRA Court Opinion, 1/30/15, at 13. We

conclude the PCRA court’s dismissal without a hearing was not an abuse of

its discretion because Appellant’s attempts to satisfy the time-bar exceptions

were frivolous. See Wah, supra. Therefore, Appellant’s third issue on

appeal is meritless.

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In his fourth issue, Appellant contends the PCRA court erred in

rejecting his “independent claim of actual innocence.” Appellant’s Brief at

39. Appellant asserts that the PCRA court erred because his actual

innocence claim is a freestanding claim, citing federal habeas corpus

precedent. Id. at 39-40. Our Supreme Court, however, has specifically

rejected this argument. See Commonwealth v. Abu-Jamal, 833 A.2d

719, 738 (Pa. 2003) (explaining that a claim of actual innocence is

cognizable under the PCRA and subject to the time-bar), cert. denied, Abu-

Jamal v. Pennsylvania, 541 U.S. 1048 (2004). As Appellant’s claim is

cognizable under the PCRA, and we have concluded Appellant’s petition is

untimely, we are without jurisdiction to reach the merits of his actual

innocence claim. See id. Accordingly, Appellant’s fourth issue on appeal

does not warrant relief.

Based on the foregoing, we conclude that the PCRA court did not

abuse its discretion or commit an error of law in finding Appellant’s serial

PCRA petition untimely and dismissing it without a hearing.4 See Fears,

supra. Accordingly, we affirm the PCRA court’s November 13, 2014 order.

____________________________________________

4
While the Commonwealth’s brief addresses the timeliness issue, we do not
consider the brief. After we granted two extensions to the Commonwealth,
its brief was due on or before August 26, 2015, with no further extensions
granted. The Commonwealth, however, did not file its brief until September
29, 2015; thus, it was not timely filed. On October 16, 2015, Appellant
objected to the untimeliness of the brief. Accordingly, we grant Appellant’s
motion to strike and disregard the Commonwealth’s brief.

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Order affirmed.

Judge Donohue joins the memorandum.

President Judge Emeritus Bender files a concurring and dissenting

memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2015

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