J-S77038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICARDO MORALES A/K/A RICARDO
MORALES-VASQUEZ,
Appellant No. 757 MDA 2016
Appeal from the PCRA Order April 25, 2016
in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0004025-2002
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 28, 2016
Appellant, Ricardo Morales a/k/a Ricardo Morales-Vasquez, appeals
from the order which dismissed his counseled fourth petition filed pursuant
to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541–9546 (PCRA), as
untimely. Appellant claims his petition is timely under the after-discovered
facts exception. We affirm.
On April 11, 2003, a jury convicted Appellant of murder of the second
degree, 18 Pa.C.S.A. § 2502; two counts of aggravated assault, 18 Pa.C.S.A.
§ 2702(a)(1); robbery, 18 Pa.C.S.A. § 3701(a)(1)(i); and criminal
conspiracy to commit robbery, 18 Pa.C.S.A. § 903(a)(1), (2).
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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The conviction arose out of a botched robbery. On April 30, 2002,
Shalimar Espinosa was fatally shot near Walnut and Nevin Streets, in
Lancaster, Pennsylvania. His brother, Tyndall Espinosa, was also shot, but
survived.
Appellant’s jury trial began on April 1, 2003. The evidence tended to
show that Appellant conspired with Roberto Colon, Angel Bermudez, Angel
Martinez, Miguel DeJesus, and Lazaro DeJesus to commit the crimes
previously noted. (See generally Commonwealth v. Morales-Vasquez,
N.T. Trial, 4/01/03─4/11/03; see also Commonwealth v. Morales-
Vasquez, No. 948 MDA 2003, unpublished memorandum at 1-2 (855 A.2d
135 (Pa. Super. filed May 11, 2004), appeal denied, 860 A.2d 123 (Pa.
2004)). At trial, Angel Bermudez, Angel Martinez, Miguel DeJesus, and
Lazaro DeJesus testified against Appellant and Roberto Colon.
The conspirators originally intended to rob Luis Santiago, a known
drug dealer. Shalimar Espinosa was a roommate and apparently a drug
associate of Santiago. After arriving outside Santiago’s apartment, the
conspirators made a last-minute decision to set up a sham drug purchase
from Santiago to lure him out and ambush him.
While they were driving away in Martinez’s minivan to arrange the
sham drug purchase, the conspirators saw the Espinosa brothers on the
street and decided to rob them instead. Appellant and Colon got out of the
minivan and approached the Espinosa brothers. They ordered them not to
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run or move, but both turned to run anyway. Appellant and Colon began to
shoot, fifteen rounds in all.
On May 16, 2003, the court sentenced Appellant to a term of life
imprisonment without parole plus a consecutive period of not less than ten
nor more than twenty years of incarceration. Appellant filed a notice of
appeal on June 13, 2003. This Court affirmed his judgment of sentence on
May 11, 2004. See Commonwealth v. Morales-Vasquez, 855 A.2d 135
(Pa. Super. 2004) (unpublished memorandum). On October 5, 2004, the
Supreme Court of Pennsylvania denied Appellant’s petition for allowance of
appeal. See Commonwealth v. Morales-Vasquez, 860 A.2d 123 (Pa.
2004).
Appellant did not file a petition for a writ of certiorari with the United
States Supreme Court. See U.S.Sup.Ct.R. 13. Accordingly, Appellant’s
judgment of sentence became final on January 3, 2005. See 42 Pa.C.S.A. §
9545(b)(3) (“For purposes of this subchapter, 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.”). Therefore, Appellant
had until January 3, 2006 to file a timely PCRA petition. 1
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1
In pertinent part, 42 Pa.C.S.A. § 9545 provides:
(b) Time for filing petition.─
(Footnote Continued Next Page)
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Separately, after Appellant’s trial and sentence, on August 20, 2003,
Lazaro DeJesus entered into a negotiated plea agreement to murder of the
third degree. He received a sentence of not less than nine nor more than
eighteen years’ incarceration in a state correctional institution, followed by a
consecutive period of probation of ten years. Angel Bermudez also entered
a negotiated guilty plea to murder of the third degree, among other charges.
On November 5, 2003 the court sentenced him to a term of not less than
twelve and one-half nor more than twenty-five years of incarceration at a
state correctional institution. On the same date, Angel Martinez similarly
entered a guilty plea to murder of the third degree in exchange for a
negotiated sentence of not less than twelve and one-half nor more than
twenty-five years of incarceration at a state correctional institution.
_______________________
(Footnote Continued)
(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:
* * *
(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[.]
42 Pa.C.S.A. § 9545(b)(1)(ii).
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The instant petition, Appellant’s fourth, was filed April 30, 2015. 2 The
PCRA court again appointed counsel, who filed an amended petition.
Appellant essentially alleges that before his trial (and contrary to their
denials at that trial), Lazaro DeJesus, Angel Bermudez, and Angel Martinez
had already received promises of leniency in sentencing from the
Commonwealth in their own criminal cases. (See Amended PCRA Petition,
9/14/15, at 2). Appellant asserts that “no sooner than March 5, 2015,”
(after he learned that one of his co-conspirators was about to be released
from prison), did he investigate further and discover that three of them had
entered negotiated pleas to lesser sentences than he received. (Id. at 2).
He claims that the secret promises of leniency they received induced them to
testify against him.
On January 7, 2016, the PCRA court held an evidentiary hearing on
timeliness. After the hearing, on April 25, 2016, the court dismissed the
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2
Appellant’s prior PCRA procedural history is not in dispute. He filed his first
PCRA petition on October 6, 2005. The PCRA court appointed counsel and,
after an evidentiary hearing and briefs on the matter, denied relief on June
29, 2007. Appellant did not appeal. He filed a second PCRA Petition on
February 9, 2009. The PCRA court again appointed counsel. After an
evidentiary hearing the PCRA court denied the second petition on March 9,
2010. This Court affirmed the denial on October 28, 2010. Appellant filed a
third PCRA petition, pro se, on August 29, 2012. The PCRA court filed a
Notice of Intent to Dismiss pursuant to Pennsylvania Rule of Criminal
Procedure 907 on December 7, 2012, and dismissed the petition on May 17,
2013, as untimely. This Court affirmed on February 28, 2014.
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petition as untimely, with no statutory exception to the time bar pleaded and
proven. This timely appeal followed.3
On appeal, Appellant presents one question for our review:
Whether the PCRA [c]ourt erred in ruling that the PCRA
[p]etition was untimely filed, where the facts upon which the
petition was predicated were unknown to him and could not have
been ascertained by the exercise of due diligence prior to a date
within [sixty] days of the filing of the petition[?]
(Appellant’s Brief, at 4).
Our standard of review for an order denying PCRA relief is well-settled:
We review a PCRA court’s order to determine whether it is supported by the
evidence of record and is free of legal error. Great deference is granted to
the findings of the PCRA court, and these findings will not be disturbed
unless they have no support in the certified record. See Commonwealth
v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).
Notably, for our review, “if a PCRA [p]etition is untimely, a trial court
has no jurisdiction to entertain the petition.” Commonwealth v. Hutchins,
760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). The PCRA provides
that “[a]ny petition under this subchapter, including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1).
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3
Counsel filed a timely statement of errors on June 1, 2016. The PCRA
court filed its opinion on June 22, 2016. See Pa.R.A.P. 1925.
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Here, as already noted, Appellant’s judgment of sentence became final
on January 3, 2005, ninety days after the Pennsylvania Supreme Court
denied leave to appeal and Appellant did not file a petition for a writ of
certiorari with the United States Supreme Court. See U.S.Sup.Ct.R. 13.
Therefore, Appellant had one year, until January 3, 2006, to file a
timely PCRA petition. Because Appellant did not file his current petition until
April 30, 2015, over nine years later, it is untimely on its face. Thus, he had
to plead and prove that his claim falls under one of the exceptions at section
9545(b) to establish jurisdiction for a merit review. See 42 Pa.C.S.A.
§ 9545(b)(1)(i)-(iii).
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully 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. See id.
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Furthermore, a petitioner who wishes to invoke any of the above
exceptions must file the petition “within [sixty] days of the date the claim
could have been presented.” Id. at § 9545(b)(2). The Pennsylvania
Supreme Court has repeatedly stated that it is an appellant’s burden to
plead and prove that one of the above-enumerated exceptions applies. See,
e.g., Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1268 (Pa. 2008),
cert. denied, 555 U.S. 916 (2008).
Instantly, Appellant alleges that his petition is timely under section
9545(b)(1)(ii), newly discovered facts. (See Appellant’s Brief, at 5). He
claims that the Commonwealth never informed him that, at the time of trial,
three witnesses had received the promise of favorable treatment if they
testified against him. Appellant only discovered this, he claims, almost ten
years later when he learned one of the conspirators was about to be
released.
On further investigation, he continues, he engaged (through family) a
private investigator who interviewed at least some of the conspirators and
reported that they told him that they had received pre-trial promises of
favorable treatment for their testimony. Thus, Appellant’s after-discovered
facts include recantation testimony. After-discovered facts or evidence
cases can be premised on recantation testimony. See Commonwealth v.
Johnson, 966 A.2d 523, 541 (Pa. 2009).
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However, to prevail under the newly-discovered facts exception,
Appellant must plead and prove that the facts upon which the claim is
predicated were unknown to him and could not have been ascertained
earlier by the exercise of due diligence. See Commonwealth v. Bennett,
930 A.2d 1264, 1273–74 (Pa. 2007). “A petitioner must . . . explain why his
asserted facts could not have been ascertained earlier with the exercise of
due diligence.” Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa.
Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008) (citation omitted).
Here, Appellant has failed to do so.4 On independent review we conclude
that the PCRA court properly decided that Appellant has not pleaded facts
which demonstrate that he exercised due diligence in obtaining this
information.
“Our Supreme Court has held for purposes of 42 Pa.C.S.A.
§ 9545(b)(1)(ii) information is not ‘unknown’ to a PCRA petitioner when the
information was a matter of public record.” Id. (citing Commonwealth v.
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4
We note for completeness and clarity that recantation testimony must
meet the four-part standard established by our Supreme Court. See, e.g.,
Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004) (petitioner
must establish that: (1) evidence has been discovered after trial and it could
not have been obtained at or prior to trial through reasonable diligence; (2)
the evidence is not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict. .” Id. at 823
(citations omitted). Furthermore, the D’Amato Court acknowledged that
recantation evidence “is notoriously unreliable, particularly where the
witness claims to have committed perjury.” Id. at 825 (citations omitted).
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Chester, 895 A.2d 520, 523 (Pa. 2006) (claim founded on arrest warrant in
record of case was based on matter of public record that due diligence would
have disclosed to appellant long before filing of PCRA petition).
In this appeal, Appellant concedes that the sentences received by his
co-conspirators are a matter of public record. (See Appellant’s Brief at 9).
Nevertheless, he maintains that the after-discovered facts are not the
sentences themselves, but the secret promises of leniency before his trial,
untruthful trial testimony about the absence of such promises, and the
Commonwealth’s failure to disclose the promises. (See id.). We disagree.
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. 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 rule is strictly enforced. 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. Brown, 111 A.3d 171, 176, appeal denied, 125 A.3d
1197 (Pa. 2015) (citations and internal quotation marks omitted).
Preliminarily, we emphasize for the clarity of the record that “[t]he
Commonwealth disagrees that any negotiated plea agreements were made
prior to Appellant’s trial.” (Commonwealth’s Brief, at 7 n.7).
Next, we observe that Appellant’s attempt to distinguish between the
conceded public records of sentencing and the alleged “secret promises of
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leniency” is unpersuasive. The focus of the exception is on the newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts. See Brown, supra at 176. Even if we were willing
to accept Appellant’s narrative odyssey of discovery at face value for the
sake of argument, it only goes to show how he discovered the purported
promises of leniency. It does not meet his burden to prove why he could
not have discovered the facts he now relies on earlier with the exercise of
due diligence.
To the contrary, our independent review of the record reveals that at
the hearing on Appellant’s first PCRA petition, the issue of the testifying
coconspirators was already on the defense radar screen. At the PCRA
hearing on that first petition, Appellant’s trial counsel, now the Honorable
Merrill M. Spahn, Jr., testified:
[A] theme of our defense in this case was that the
Commonwealth’s case relied heavily on two individuals who were
what I considered to be corrupt and polluted sources, had a
motivation to implicate Mr. Morales-Vasquez, so we spent an
ample amount of time trying to investigate that.
(N.T. PCRA Hearing, 12/15/06, at 6) (emphasis added).
Moreover, on the current fourth petition, at the PCRA hearing, the
testimony of the “recanting” witnesses is blatantly self-contradictory and
facially inconsistent, far below the burden of proof by a preponderance of
the evidence necessary to establish an exception to the statutory time-bar.
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Angel Bermudez first testified that his lawyer, Barry Goldman, Esq.,
told him before he testified there was an oral plea arrangement for ten to
twenty years’ imprisonment. (See N.T. PCRA Hearing, 1/07/16, at 49-50).
However, on cross-examination, the prosecutor read to Bermudez his trial
testimony that nobody had promised him anything in return for his
testimony. (See id. at 54). The prosecutor then asked him:
[Commonwealth ] Q. Was that the truth or was that a lie?
Bermudez replied: A. The truth.
(See id.). Attorney Goldman testified at the same hearing that there was
no pre-trial offer for testimony:
I have no recollection of an offer being [made].5 If I can
add, given the gravity of these charges and according to our
standard protocol, there would not have been a specific offer
made in advance of trial. That is not the way things are done.
(Id. at 82).
Similarly, on the cross-examination of Angel Martinez, the following
exchange occurred:
[Commonwealth] Q: So if you told the jury at the time of
the trial that there were no promises made to you, you think you
were telling the truth at that time or telling a lie?
[Martinez] A: Telling the truth.
(Id. at 60).
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5
The transcript reads “being paid.”
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It bears noting that the prosecutor in Appellant’s trial, Christopher A.
Hackman, also now a judge in the Court of Common Pleas of Lancaster
County, flatly denied making any plea offers to the testifying co-defendants,
as a matter of office policy. (See id. at 34-37).
Correspondingly, Appellant’s trial counsel, Attorney (now Judge) Spahn
testified that he was never informed of any plea offers or agreements. (See
id. at 5-8). Notably, he added that because his defense theory was that
Appellant was duped into being the “fall guy[,]” if there had been any
arrangement or agreements with the testifying co-conspirators from the
Commonwealth, “I absolutely would have used it[,]” in support of that
defense. (Id. at 9, 10).
The PCRA court emphasizes that the instant petition is untimely
because “the failure to discover matters of public record for almost ten years
cannot be described as due diligence.” (PCRA Court Opinion, 6/22/16, at
unnumbered page three). We agree. But we would go further.
As already noted, the defense theory of Appellant’s case raised
suspicions about the testifying co-conspirators as early as before trial. (See
N.T. [First] PCRA Hearing, 12/15/06, at 6). Therefore, Appellant’s claim that
he had “no reason to even investigate his case” until he learned that the first
sentence had been served is at plain variance with the facts and testimony
of record. (Appellant’s Brief, at 13).
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Moreover, we note that Appellant had the benefit of counsel in three of
his four PCRA petitions. Yet neither of the preceding counsel found support
for the claim Appellant now raises, even though trial counsel testified that he
investigated and would have raised the issue if it had been available.
The mere assertion of biased testimony is not enough to establish an
exception to the statutory time bar. Appellant had the burden to plead and
prove by a preponderance of the evidence why he could not have discovered
earlier the facts he now asserts, by the exercise of due diligence. He has
failed to do so.
We conclude that the PCRA court properly determined that Appellant’s
petition is untimely and he failed to prove an exception to the statutory time
bar. Because Appellant’s petition is untimely, the PCRA court properly
determined that it was without jurisdiction to address the merits of his
asserted claims. Accordingly, we affirm the denial of his PCRA petition,
albeit for slightly different reasons than those cited by the PCRA court. See
Commonwealth v. Hernandez, 886 A.2d 231, 240 (Pa. Super. 2005),
appeal denied, 899 A.2d 1122 (Pa. 2006) (holding that appellate court may
affirm order of trial court on any basis, so long as decision is correct).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2016
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