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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GEORGE PAGE :
:
Appellant : No. 3863 EDA 2017
Appeal from the PCRA Order November 3, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0138781-1990
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 16, 2019
Appellant George Page appeals pro se from the order dismissing as
untimely his second petition filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. Appellant claims that he properly raised the newly
discovered facts and governmental interference exceptions to the PCRA time
bar. See 42 Pa.C.S. § 9545(b)(1)(ii)-(iii). We affirm.
The relevant procedural history of this case is as follows. On October
25, 1990, following a bench trial, Appellant was convicted of second-degree
murder and related offenses. The trial court sentenced Appellant to a
mandatory sentence of life imprisonment.
Appellant filed a post-verdict motion alleging, in relevant part, that the
Commonwealth’s primary witness, Harold Jackson, had recanted his testimony
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* Retired Senior Judge assigned to the Superior Court.
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after trial. See Post-Sentence Mot., 11/1/90; see also Supp. Post Verdict
Mot., 9/16/93. At the hearing on February 28, 1994, Jackson testified for the
defense. At the conclusion of the hearing, the trial court denied Appellant’s
motions.
Appellant filed a direct appeal, and this Court affirmed Appellant’s
judgment of sentence on April 24, 1995. See Commonwealth v. Page, 664
A.2d 1058 (Pa. Super. 1995) (unpublished mem.). The Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on December 4,
1995.
On December 15, 1997, Appellant filed his first pro se PCRA petition.
Appointed counsel subsequently filed an amended petition alleging, in relevant
part, that direct appeal counsel was ineffective for failing to raise the issue of
Jackson’s recantation and the allegation of bribery on direct appeal. See Am.
PCRA Pet., 9/18/98, at 8. The PCRA court ultimately dismissed the petition
as untimely on January 27, 1999. This Court affirmed the PCRA court’s
dismissal on May 30, 2000. See Commonwealth v. Page, 691 EDA 1999
(Pa. Super. filed May 30, 2000) (unpublished mem.).
Appellant filed the instant pro se PCRA petition, his second, on May 11,
2016. Appellant attempted to invoke the governmental interference and
newly discovered evidence exceptions to the PCRA time bar. In support,
Appellant attached a sworn affidavit from Jackson, who again stated that he
lied at trial, and that he did so because he was threatened by detectives and
offered money in exchange for his testimony. See Pro Se PCRA Pet., 5/9/16,
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Ex. A. Jackson also indicated that he “did try to explain this truth . . . some
time ago[.]” Id.
On July 14, 2017, the PCRA court filed a notice of intent to dismiss
Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907, stating
that the petition was untimely and that Appellant failed to establish a time-
bar exception. See Pa.R.Crim.P. 907 Not., 7/14/17. Appellant’s pro se
response was docketed on July 24, 2017.
On November 3, 2017, the PCRA court formally dismissed Appellant’s
petition. Appellant timely appealed. Both the PCRA court and Appellant
complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Whether (in) reviewing the (proeprty) [sic] of the [PCRA]
court’s dismissal of [A]ppellant’s [PCRA] filing, it was an abuse
of discretion for the [PCRA] court to determine that it was
untimely . . . where the petition was timely filed under title [42
Pa.C.S.[] § 9545(b)(1)(ii) and 9545(b)(2), because [A]ppellant
established and invoked the newly discovered facts
exception[.]
2. Whether the PCRA court erred and denied [A]ppellant his
federal and state constitutional rights to due process of law by
dismissing [A]ppellant’s [PCRA] petition without an evidentiary
hearing and appointment of counsel . . . where [A]ppellant
raised questions of disputed facts regarding t[h]e timeliness of
his [PCRA] petition[.]
Appellant’s Brief at 4 (full capitalization omitted).
Our standard of review from the dismissal of a PCRA petition “is limited
to examining whether the PCRA court’s determination is supported by the
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evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).
It is well settled that “the timeliness of a PCRA petition is a jurisdictional
[pre-]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super.
2015) (citation omitted). A 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). 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).
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final only if the petitioner pleads and proves
one of the following three statutory exceptions:
(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. § 9545(b)(1)(i)-(iii).1
In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), the
Pennsylvania Supreme Court emphasized that the Section 9545(b)(1)(ii)
exception “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.’” Id. at 720 (citation omitted). This Court has
explained that “[d]ue diligence demands that the petitioner take reasonable
steps to protect his own interests. A petitioner must explain why he could not
have learned [of] the new fact(s) earlier with the exercise of due diligence.
This rule is strictly enforced.” Commonwealth v. Medina, 92 A.3d 1210,
1216 (Pa. Super. 2014) (en banc) (citation omitted).
Further, the Pennsylvania Supreme Court has noted that
[a]lthough a Brady 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 diligence. Section
9545(b)(1)(ii)’s exception requires the facts upon which the
Brady claim is predicated were not previously known to the
petitioner and could not have been ascertained through due
diligence. In [Commonwealth v. Bennett, 930 A.2d 1264, 1271
(Pa. 2007)], we clarified that § 9454(b)(1)(ii)’s exception does not
contain the same requirements as a Brady claim, noting “we
made clear the exception set forth in subsection (b)(1)(ii) does
not require any merits analysis of the underlying claim. Rather,
the exception merely requires that the ‘facts’ upon which such a
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1Moreover, to invoke one of these exceptions, a petitioner must also file the
petition “within 60 days of the date the claim could have been presented.” 42
Pa.C.S. § 9545(b)(2).
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claim is predicated must not have been known to appellant, nor
could they have been ascertained by due diligence.”
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citations
omitted).
Instantly, there is no dispute that Appellant’s conviction became final in
1996, and that Appellant’s instant PCRA petition is facially untimely. Because
Appellant failed to file the instant PCRA petition within one year of the date
his sentence became final, he must satisfy one of the exceptions to the PCRA
time bar. Appellant raises the newly discovered facts and governmental
interference exceptions.
First, Appellant alleges that he initially became aware of the fact that
Jackson received a monetary reward in exchange for his testimony no earlier
than March 15, 2016, sixty days before his petition was filed. Appellant’s Brief
at 12. He asserts that “although Harold Jackson sent a letter to Appellant’s
[p]ost-sentence counsel Rita M. Eichman recanting his trial testimony over
twenty years ago on the date of October 4, 1993, the letter merely indicated
that he lied at Appellant’s [t]rial.” Id. at 16. Appellant therefore concludes
that Jackson’s new affidavit, which states that “he received a monetary reward
and preferential treatment on open cases” constitutes a new fact. Id. at 19.
Next, Appellant argues that the Commonwealth’s failure to disclose that
Jackson was given money in exchange for his testimony was a Brady violation
and constituted governmental interference. Id. at 20. He argues that he was
unable to contact Jackson to obtain a sworn affidavit and confirm the specific
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details of his perjury. Id. at 18. Therefore, Appellant concludes that his
petition was timely, as it was filed within sixty days of the date he received
Jackson’s sworn affidavit. Id. at 19.
In its Rule 1925(a) opinion, the PCRA court concluded that Appellant did
not meet the newly discovered facts or governmental interference exceptions
because the fact of Jackson’s recantation was not unknown to Appellant. See
PCRA Ct. Op., 5/24/18, at 4-5. Specifically, the PCRA court explained that
[n]otably, in his affidavit, Jackson indicated that he tried to
“explain this truth” during the direct appeals of [Appellant] and
his co-defendant. Despite this statement and [Appellant’s] prior
filings, [Appellant] persisted that he first discovered this “fact” no
earlier than March 15, 2016.
Moreover, the affidavit signed by Jackson appeared consistent
with what was presented at [Appellant’s] post-sentence motions
over twenty years ago. [Appellant’s] counsel during post-
sentence motions, Rita M. Eichman, was sent a letter from Jackson
dated October 4, 1993. This letter indicated that he wanted to
speak to [Appellant’s] counsel because he lied at trial when he
implicated [Appellant]. On February 28, 1994, post-verdict
motions were heard during which [Appellant’s] new counsel
presented Jackson as a witness. During the hearing, Jackson
testified that he was around the corner and did not witness the
incident.[2] The post-sentence motions were denied and counsel
did not raise this issue on direct appeal. Based upon these facts,
[Appellant] knew about the recantation by February 28, 1994 and
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2 The transcript from the post-sentence motions hearing is not included in the
certified record. However, Appellant’s counseled PCRA petition, filed in 1997,
references portions of Jackson’s testimony from the hearing, including that
(1) his original witness statement was coerced by the police; (2) the
prosecution threatened him and stated that he would be implicated for the
shooting if he did not testify against Appellant and his co-defendant; and (3)
the prosecutor gave him $350 in exchange for his testimony. See Am. PCRA
Pet., 9/18/98, at 7.
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likely knew shortly after counsel received the letter dated October
4, 1993.
On December 15, 1997, [Appellant] filed his first pro se PCRA
petition. [Appellant] attached as “Exhibit A” the aforementioned
letter dated October 4, 1993 in which Jackson indicated to
[Appellant]’s counsel that he was recanting his testimony.
Counsel was appointed and subsequently filed an Amended PCRA
Petition, in which he raised the issue of the recantation. Notably,
his Amended Petition indicated that the issue was raised on behalf
of [Appellant] during post-verdict motions and instead argued
counsel was ineffective for abandoning this issue on direct appeal.
The court dismissed the petition as untimely. Therefore, even if
this court disregarded both the October 4, 1993 letter to counsel
and the post-sentence motions, [Appellant] definitively knew by
December 15, 1997.
Based upon the foregoing, this court lacked jurisdiction to hear
this claim involving Jackson’s recantation. [Appellant] has failed
to demonstrate that these statements were previously unknown
and could not have been obtained earlier through the exercise of
due diligence. To the contrary, these “facts” were known to
[Appellant], more than sixty days prior to the filing of the present
petition. The PCRA requires a petition invoking one of these
exceptions, including those relating to both newly discovered
evidence and government interference, “be filed within 60 days of
the date the claim could have been presented.” 42 Pa.[C.S.] §
9545(b)(2). Even treating this as a “newly discovered fact,” it
would have been discovered no later than December 15, 1997.
The present PCRA petition was filed well outside of the 60 day
grace period afforded by 42 Pa.[C.S.] § 9545(b)(2). Further,
[Appellant] has failed to demonstrate that he acted with due
diligence during . . . more than twenty-five years between his
conviction and the filing of the instant petition. This failed to
satisfy his burden.
. . . [Appellant] claimed that Jackson’s allegations in his
recantation constitute governmental interference because he
received preferential treatment on any open cases. Contrary to
[Appellant’s] assertions in his pro se [p]etition, the affidavit
provided by Jackson does not indicate that he received any
preferential treatment on any open cases. Moreover, as stated
above, this alleged misconduct by the Commonwealth was known
to [Appellant] no later than December 15, 1997. Once again, the
petition must “be filed within 60 days of the date the claim could
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have been presented” in accord with 42 Pa.[C.S.] § 9545(b)(2).
This claim was not raised within 60 days of the date it could have
first been presented. As a result, this claim does not satisfy an
exception pursuant to 42 Pa.[C.S.] §9545 (b)(1)(i). Even if this
alleged misconduct constituted government interference, it could
have been presented by December 15, 1997, if not earlier.
[Appellant’s] failure to raise the claim for over eighteen years after
discovering the alleged conduct was fatal to his claim.
Id. at 4-5.
Therefore, we agree with the PCRA court that Appellant has not
established why he could not have raised these exceptions earlier with the
exercise of due diligence. See Marshall, 947 A.2d at 720; Abu-Jamal, 941
A.2d at 1268. Accordingly, the PCRA court properly concluded that it lacked
jurisdiction to consider the merits of Appellant’s claims. See Brown, 111
A.3d at 175.
Finally, Appellant’s claim that the PCRA court erred in not granting him
a hearing is also meritless. This Court has held that “[a] petitioner is not
entitled to a PCRA hearing as a matter of right.” Commonwealth v. Smith,
121 A.3d 1049, 1052 (Pa. Super. 2015) (citation omitted). “It is within the
PCRA court’s discretion to decline to hold a hearing.” Commonwealth v.
Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (citation omitted). “[T]he
PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact and the petitioner is not entitled to post-
conviction collateral relief, and no purpose would be served by any further
proceedings.” Smith, 121 A.3d at 1052 (citation omitted); see Pa.R.Crim.P.
907(2) & cmt. On appeal, we “examine each of the issues raised in the PCRA
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petition in light of the record in order to determine whether the PCRA court
erred in concluding that there were no genuine issues of material fact and in
denying relief without an evidentiary hearing.” Smith, 121 A.3d at 1052
(citation omitted).
As stated above, the PCRA court held that the evidence presented by
Appellant was not previously unknown to Appellant, and therefore he did not
meet the section 9545(b)(1)(i) or (ii) timeliness exceptions to the PCRA time
bar. Because we agree with the court’s holding that Appellant’s petition was
not timely filed, Appellant’s claim did not warrant a hearing under Pa.R.Crim.P.
907. See Pa.R.Crim.P. 907; Smith, 121 A.3d at 1052. Therefore, the PCRA
court did not err in dismissing the petition without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/19
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