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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE LUIS SANTOS :
:
Appellant : No. 418 MDA 2017
Appeal from the PCRA Order January 30, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002087-1999
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 22, 2018
Appellant, Jose Luis Santos, appeals pro se from the January 30, 2017
Order, entered in the Dauphin County Court of Common Pleas, dismissing as
untimely his fifth Petition filed under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
On November 17, 2000, a jury convicted Appellant of Rape, Statutory
Sexual Assault, Endangering the Welfare of Children, and Corruption of
Minors.1 On March 29, 2001, the court sentenced Appellant to an aggregate
term of 12½ to 25 years’ imprisonment. On June 27, 2002, this Court
affirmed Appellant’s Judgment of Sentence. Commonwealth v. Santos,
No. 926 MDA 2001 (Pa. Super. filed June 27, 2002) (unpublished
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1 18 Pa.C.S. § 3121; 18 Pa.C.S. § 3122.1; 18 Pa.C.S. § 4304; and 18
Pa.C.S. § 6301, respectively.
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* Retired Senior Judge assigned to the Superior Court.
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memorandum). On November 13, 2002, our Supreme Court denied
Appellant’s Petition for Allowance of Appeal. Commonwealth v. Santos,
No. 554 MAL 2002 (Pa. filed November 13, 2002). Appellant’s Judgment of
Sentence became final on February 11, 2003.2
Appellant filed the instant PCRA Petition, his fifth, on August 15, 2016.
In his Petition, Appellant alleged the existence of new evidence that
established his innocence, and claimed that the Commonwealth had
suppressed the evidence during trial. On January 5, 2017, the PCRA court
issued a Notice of Intent to Dismiss Appellant’s PCRA Petition pursuant to
Pa.R.Crim.P. 907. Appellant filed a Response to the court’s Rule 907 Notice
on January 23, 2017.
On January 30, 2017, the PCRA court dismissed Appellant’s Petition.
Appellant timely appealed. Both Appellant and the court complied with
Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
1. Did the [PCRA] court err in finding that the PCRA Petition was
untimely and did not invoke a valid exception to the time
limitations and failing to conduct an evidentiary constituting a
due process [sic]?
Appellant’s Brief at 6.
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2 See 42 Pa.C.S. § 9545(b)(3) (providing that a Judgment of Sentence
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.”).
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Before addressing the merits of Appellant’s claim, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA petition is a jurisdictional
requisite).
Under the PCRA, any PCRA 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). The PCRA’s timeliness requirements are
jurisdictional in nature, and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). Appellant’s Petition, filed on
February 1, 2017, is facially untimely.
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b), which provides as follows:
(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;
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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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S. § 9545(b)(1-2) (emphasis added).
The exception in Section 9545(b)(1)(ii) requires a petitioner to plead
and prove that “1) the facts upon which the claim was predicated were
unknown [at the time of trial;] and 2) could not have been ascertained by
the exercise of due diligence [prior to trial].” Commonwealth v. Bennett,
930 A.2d 1264, 1272 (Pa. 2007).
“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.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.
Super. 2011) (citations omitted).
In the instant case, Appellant claims that, on July 27, 2016, he
“acquired new facts relevant to [his] medical history.” Appellant’s Brief at 9.
Appellant notes that a Commonwealth witness testified at his trial that
Appellant had suffered an injury to his penis, and that “an adult male who
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attempted to have sexual intercourse with a young girl could injure his
penis.” Id. at 11. Appellant now avers that it was not until July 27, 2016—
16 years after his trial—that he obtained his own medical records regarding
a procedure that he underwent on his penis in 1991.3 He argues that the
medical records obtained on July 27, 2016, “clearly establishes [sic] that []
Appellant’s penis injury was from the medical procedure and not as a result
of an ‘adult male attempting to have sexual intercourse with a young girl.’”
Id. at 11-12. Appellant also avers that these medical records were
unavailable to him at the time of trial because the medical records that the
Commonwealth had subpoenaed were from York County Hospital and York
Memorial Hospital “and the records he received did not support []
Appellant’s defense on how his penis injury occurred.”4 Id. at 12.
With respect to this claim, the PCRA court aptly noted that the records
at issue “are Appellant’s own medical records which would have been
available to him at the time of trial.” PCRA Ct. Op., 4/18/17, at 2 (emphasis
added). Thus, the court concluded that “the medical records were known to
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3 Appellant has appended to his Brief copies of purported medical records,
which note that Appellant had a medical procedure to remove warts from his
penis resulting from human papilloma virus (“HPV”) on December 26, 1991.
4 The medical records annexed to Appellant’s Brief purport to be records of a
“YADS PE.” It is unclear from these documents what “YADS” is and whether
it is affiliated in any way with either York County Hospital or York Memorial
Hospital.
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Appellant at the time of trial and could have been available by the exercise
of due diligence.” Id.
Appellant also argues, in the alternative that, if his own medical
records were available to him at the time of trial, as the PCRA court
concluded, then the Commonwealth impermissibly withheld production of
them, resulting in a Brady5 violation. Id. at 12-13. In these circumstances,
Appellant avers, “valid timeliness exception pursuant to 42 Pa.C.S. §
9545(b)(1)(i) is applicable.” Appellant’s Brief at 13. Appellant’s alternate
claim lacks merit.
We agree with the PCRA court’s conclusions that Appellant’s own
medical records would have been available to him at the time of trial had he
exercised due diligence to obtain them. Moreover, it is also likely that
Appellant knew at the time of trial that he had undergone the medical
procedure noted in his medical records, thus, this is not a “new fact.”
Significantly, because Appellant had access to his own medical records at the
time of trial—and did not plead or prove that he had requested the instant
records and the Commonwealth had failed to produce them6—the
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5 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the
prosecution.”).
6 See Brady, 373 U.S. at 87.
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Commonwealth did not “suppress” or “withhold” them from him.
Accordingly, Appellant failed to prove any exception to the timeliness
requirement, and his PCRA petition is, thus, untimely.
Lastly, Appellant claims that he was entitled to a hearing on his PCRA
Petition, and that the court’s failure to hold such a hearing violated his due
process rights. Appellant’s Brief at 18-19.
With respect to this allegation, we note that the right to a hearing on a
PCRA petition is not absolute. A court may deny a petition for post-
conviction relief without a hearing when it determines that there are no
genuine issues concerning any material fact, and that the petitioner is not
entitled to relief. Pa.R.Crim.P. 907(1); Commonwealth v. Camps, 772
A.2d 70 (Pa. Super. 2001). The trial court properly concluded that Appellant
had presented no issues of material fact, thus, it properly denied a hearing
on his Petition.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2018
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