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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTONIO MOLINA,
Appellant No. 2602 EDA 2016
Appeal from the PCRA Order Entered August 1, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005971-2000
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 15, 2017
Appellant, Antonio Molina, appeals from the post-conviction court’s
order denying, as untimely, his fourth petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
This Court previously summarized the facts and procedural history of
Molina’s case, as follows:
In January 1993, Molina, the leader of a small drug ring in
Philadelphia, hired a “hit man” to murder the victim, whom
Molina believed had robbed and shot him a few months earlier.
One of the individuals who had sold drugs for Molina, Mariano De
Los Santos (“De Los Santos”), testified on behalf of the
Commonwealth at Molina’s trial. Specifically, De Los Santos
testified to overhearing Molina’s negotiations with a hit man
concerning the planned murder. Additionally, Ramon Guaba
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* Former Justice specially assigned to the Superior Court.
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(“Guaba”), a Commonwealth witness, testified to overhearing a
similar conversation. The victim was shot to death on January
21, 1993, and Molina paid the hit man $5,000 after confirming
that the victim was dead.
In September 2002, the matter proceeded to a non-jury
trial, at the close of which the trial court found Molina guilty of
first-degree murder and criminal conspiracy. The trial court
sentenced Molina to life in prison. This Court affirmed the
judgment of sentence, after which the Pennsylvania Supreme
Court denied allowance of appeal. See Commonwealth v.
Molina, 847 A.2d 759 (Pa. Super. 2004) (unpublished
memorandum), appeal denied, 864 A.2d 529 (Pa. 2004).
In the following years, Molina filed two pro se PCRA
Petitions, both of which were dismissed, and the dismissals were
affirmed on appeal. See Commonwealth v. Molina, 932 A.2d
259 (Pa. Super. 2007) (unpublished memorandum), appeal
denied, 937 A.2d 444 (Pa. 2007); Commonwealth v. Molina,
60 A.3d 847 (Pa. Super. 2012) (unpublished memorandum),
appeal denied, 63 A.3d 775 (Pa. 2013).
Commonwealth v. Molina, No. 2347 EDA 2014, unpublished memorandum
at 1-2 (Pa. Super. filed March 30, 2015).
On August 16, 2013, Molina filed a third, pro se PCRA petition, which
was subsequently denied by the PCRA court as being untimely filed. This
Court affirmed on appeal, and our Supreme Court denied Molina’s
subsequent petition for allowance of appeal. See Commonwealth v.
Molina, 120 A.3d 1065 (Pa. Super. 2015) (unpublished memorandum),
appeal denied, 120 A.3d 1065 (Pa. 2015).
On August 31, 2015, Molina filed his fourth, pro se PCRA petition,
which underlies the present appeal. On April 8, 2016, the PCRA court issued
a Pa.R.Crim.P. 907 notice of its intent to dismiss Molina’s petition, to which
Molina filed a timely response. Nevertheless, on August 1, 2016, the PCRA
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court issued an order, and accompanying opinion, dismissing Molina’s
petition as being untimely filed.
Molina filed a timely, pro se notice of appeal. It does not appear that
the PCRA court ordered him to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Herein, Molina raises one issue for our
review:
The [PCRA] court abused it’s [sic] discretion when it dismissed
[Molina’s] PCRA petition that presented solid proof that [Molina]
was convicted as a result of a deal that the “star” witness made
with the District Attorney [sic] Office to testify against [Molina]
to alleged facts that were fabricated and manufactured for the
sole purpose of winning a conviction against the petitioner. The
solid evidence is attached to the PCRA at issue here. There
cannot be any excuse for dismissing the PCRA petition in this
instant matter.
Molina’s Brief at 3A (unnecessary capitalization and emphasis omitted).
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Molina’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address
the merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may
not be altered or disregarded to address the merits of the petition). Under
the PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date the judgment of
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sentence becomes final, unless one of the following exceptions set forth in
42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Molina does not dispute that his current PCRA petition is facially
untimely. In an effort to overcome the jurisdictional time-bar, Molina argues
that he meets the after-discovered fact exception of section 9545(b)(1)(ii).
His claim is premised on a sworn affidavit from De Los Santos, in which De
Los Santos states, in pertinent part and verbatim, the following:
I testified on a trial in the commonwealth of the city of
Pennsylvania, United States of America, in the month of
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September 2002, against of Mr. Antonio Molina. In said
testimony I was accompanied by the defendant ROMAN GUABA,
which has secured ‘me that if we testify against of ANTONIO
MOLINA, our sentence were going to be reduce and soon we will
go to our house in our country, the prosecution office in charge
of the trial promise.
Today free in my country, I feel in jail because of my conscience,
because I know that ROMAN GUABA and I LIE just to get out of
jail. Before the man and before God I certify that I lie. I
regretted and I swear that the testimony against of Mr.
ANTONIO MOLINA issue on September 2002, was false,
therefore I request forgiveness to God, to Molina and to the
American Justice.
I am sending this testimony to Antonio Molina….
In the city of Santo Domingo, Dominican Republic, at the ten
(10) days of May 2015.
Molina’s PCRA Petition, 8/31/15, at Appendix D (emphasis in original).
Preliminarily, we conclude that Molina raised his claim regarding De
Los Santos’s affidavit within 60 days of when he could have first presented it
following his receipt of that affidavit. Molina attached to his PCRA petition
mail forms indicating that De Los Santos’s affidavit was mailed from the
Dominican Republic – where De Los Santos resides – on May 26, 2015. See
Molina’s PCRA Petition at Appendix C. In May of 2015, Molina’s appeal from
the denial of his third PCRA petition was still pending; specifically, Molina
was awaiting a decision by our Supreme Court on his petition for allowance
of appeal from this Court’s March 30, 2015 decision. It was not until August
10, 2015, that our Supreme Court denied Molina’s petition for allowance of
appeal. Molina then filed his current PCRA petition on August 31, 2015,
within 60 days of when he could have first done so. See Commonwealth
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v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding “that when an appellant’s
PCRA petition is pending before a court, a subsequent PCRA petition cannot
be filed until the resolution of review of the pending PCRA petition by the
highest state court in which review is sought, or the expiration of time for
seeking such review”; if the subsequent petition is not filed within one year
of the date that the judgment of sentence became final, it “must also be
filed within 60 days of the date of the order which finally resolves the
previous PCRA petition, because this is the first ‘date the claim could have
been presented’”) (footnote omitted; quoting 42 Pa.C.S. § 9545(b)(2)).1
Nevertheless, we are compelled to conclude that Molina has not met
the after-discovered fact exception based on De Los Santos’s affidavit. That
exception “has two components, which must be alleged and proved.”
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).
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. If the
petitioner alleges and proves these two components, then the
PCRA court has jurisdiction over the claim under this subsection.
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1 We recognize that Molina also attempted to assert his claim based on De
Los Santos’s affidavit before our Supreme Court denied his petition for
allowance of appeal. In particular, Molina attached to his current PCRA
petition evidence that, after he received De Los Santos’s affidavit, he filed
with our Supreme Court a “Petition for Leave of the Court to Allow New
Evidence[,]” asking the Court to consider the affidavit. Our Supreme Court
denied that petition on August 10, 2015, in the same order denying Molina’s
petition for allowance of appeal. See Molina’s PCRA Petition at Appendix G
(Per Curiam order by our Supreme Court).
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Id. at 176-77 (citation omitted). This Court has declared “that the due
diligence inquiry is fact-sensitive and dependent upon the circumstances
presented.” Commonwealth v. Burton, 121 A3d 1063, 1070 (Pa. Super.
2015) (en banc). The Burton panel further 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 relief. We shall strictly enforce
this requirement.” Id. at 1071 (citations omitted).
Here, we are constrained to conclude that Molina did not plead
sufficient facts to demonstrate that he acted with due diligence in obtaining
De Los Santos’s affidavit. In support of this conclusion, we stress that in
Molina’s first PCRA petition filed in October of 2004, he presented an
affidavit from Alfredo Colon, De Los Santos’s former cellmate, in which Colon
stated that, prior to Molina’s trial, De Los Santos told Colon that he (De Los
Santos) planned to falsely implicate Molina in the murder. On appeal from
the PCRA court’s denial of this petition, we concluded that Colon’s statement
was inadmissible hearsay and, thus, we affirmed. See Commonwealth v.
Molina, No. 1365 EDA 2006, unpublished memorandum at 9-11 (Pa. Super.
filed July 17, 2007).
Then, on August 16, 2013, Molina filed his third PCRA petition, again
alleging newly discovered evidence involving De Los Santos’s false
testimony. Specifically, Molina presented a document that he had obtained
from the U.S. Citizenship and Immigration Services (USCIS), which
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ostensibly memorialized statements made by De Los Santos to a USCIS
employee. De Los Santos allegedly told the employee that he knew nothing
about the murder, and that he had only told the police what they wanted to
hear. De Los Santos also told the USCIS employee that Guaba told him
what to say to the police. The PCRA court denied Molina’s petition, stressing
that he did not submit any affidavit from De Los Santos or Guaba indicating
that they were recanting their testimony. Again, this Court affirmed. See
Commonwealth v. Molina, No. 2347 EDA 2014, unpublished memorandum
(Pa. Super. filed March 30, 2015).
Now, Molina again asserts that De Los Santos fabricated his trial
testimony, and that he has new evidence to prove this fact – De Los
Santos’s affidavit. The Commonwealth, however, contends that Molina has
failed to satisfy his burden of establishing that he acted with due
diligence in obtaining his purported ‘new facts.’ [Molina] has
been presenting claims that [] De Los Santos recanted for over a
decade. This provided [Molina with] ample opportunity, and
motivation, to seek out De Los Santos and request his
assistance, either on his own, through friends and family, or
through two attorneys who represented him in litigating his first
and [third] PCRA petitions. Due diligence does not permit a
defendant to sit back and wait for evidence to appear; he must
instead “take reasonable steps to protect his own interests.”
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super.
2010). Yet [Molina] has failed to set forth any specific steps he
or his representatives took to contact [] De Los Santos.
[Molina’s] inaction does not reflect reasonable diligence.
Commonwealth’s Brief at 15-16 (emphasis in original; some citations
omitted).
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We are compelled to agree with the Commonwealth. Molina clearly
knew, as early as 2004, that De Los Santos admitted that he fabricated his
trial testimony. Additionally, in regard to the alleged deal between De Los
Santos and the Commonwealth, De Los Santos admitted at Molina’s trial that
he hoped his cooperation with the Commonwealth would earn him an early
release from an unrelated prison sentence he was then serving. See
Commonwealth v. Molina, No. 3188 EDA 2002, unpublished memorandum
at 8. De Los Santos’s testimony should have at least triggered Molina’s
suspicion that De Los Santos had received a deal from the Commonwealth in
exchange for his testimony. Despite Molina’s knowing about De Los Santos’s
possible deal and recantation as early as 2002 and 2004, respectively,
Molina did not produce an affidavit from De Los Santos until 2015.
Problematically, Molina did not explain in his PCRA petition, nor does
he discuss on appeal, what specific efforts he took to obtain De Los
Santos’s affidavit during this lengthy time period. For instance, in Molina’s
petition, he made bald assertions that he “diligently tried to have [De Los]
Santos contacted … for the sole purpose of telling the truth. But [De Los]
Santos has consistently refused to engage in ‘any’ conversation or in any
communication with either [Molina] or his representatives.” Molina’s PCRA
Petition, 8/31/15, at 3-4. Molina did not state when he or his
‘representatives’ attempted to contact De Los Santos, how they tried to do
so, or who specifically attempted to communicate with De Los Santos on his
behalf.
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Molina’s most developed discussion of his attempts to contact De Los
Santos was set forth in his response to the PCRA court’s Rule 907 notice, in
which Molina stated:
I was never able to obtain [De Los] Santos’s retraction/affidavit
from him. I had no contact with him. I am in prison and I can’t
make phone calls to him. I took a chance and I kept
asking/begging people to “try” and contact [De Los] Santos and
to ask him if he would tell the truth. I had heard a rumor that
he had turned his life over to JESUS and was a devoted follower
of JESUS’S teachings and a devout Christian. I kept trying to
get someone – anyone – to please contact him and ask him to
tell the truth, about this case. []Finally, I was able to get some
help. People who believed that I was telling the truth that I am
actually innocent and was wrongfully convicted. I had nothing to
do with the murder of the decedent. NOTHING AT ALL!
Remember, for years I was trying to get someone to help me. I
was bankrupted because of my arrest and conviction. Since
coming to prison, I have been a … WARD of the Commonwealth.
BROKE – and A PAUPER. I had no way of hiring someone to
travel to the Dominican Republic and contact [De Los] Santos. I
am in prison. I am alone here and in spite of all that I never
stopped trying to get someone to help me and for someone to go
to [De Los] Santos and ask him to “just tell the truth” – nothing
more and nothing less.
…
Finally, I was able to get help and now [De Los] Santos was
contacted and he provided an affidavit.
Molina’s Response to Rule 907 Notice, 6/20/16, at 3-4 (emphasis in
original).
Again, Molina at no point clarified, in his Rule 907 response, precisely
when he heard the ‘rumor’ that De Los Santos had become a Christian and
was now willing to recant; who tried to contact De Los Santos on Molina’s
behalf, how they attempted to do so, and when those efforts were made;
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and/or who was finally able to convince De Los Santos to draft the affidavit,
and when that communication occurred. Molina also does not offer such
information in his brief to this Court.
Without a more detailed explanation of exactly what efforts Molina
took over the last decade to obtain De Los Santos’s affidavit - and further
specifics about how he was finally able to do so - we simply cannot conclude
that Molina exercised due diligence in obtaining that new evidence.
Therefore, Molina’s claim that he has satisfied the timeliness exception of
section 9545(b)(1)(ii) fails.
Order affirmed.
Judge Ott joins this memorandum.
Justice Fitzgerald notes his dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2017
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