J-S21018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB MATTHEW CHRISTINE :
:
Appellant : No. 3555 EDA 2018
Appeal from the PCRA Order Entered November 19, 2018
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003344-2009
BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED APRIL 26, 2019
Jacob Matthew Christine (Appellant) appeals pro se from the dismissal
of his third petition seeking relief under the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The PCRA court detailed the relevant facts and procedural history as
follows:
[Appellant] was convicted of Aggravated Assault and
Recklessly Endangering Another Person by a jury on October 7,
2010. The conviction resulted from an incident that occurred in
Northampton County Prison (NCP) on June 8, 2009. The trial
record established that on June 8, 2009, [Appellant] and his
victim, Thomas Misero (Misero), were inmates in NCP when a
confrontation between the two men occurred in [Appellant’s] cell
in Unit B-2. The cell housed 8 inmates in four rows of bunk beds.
While in [Appellant’s] cell, [Appellant] was alleged to have slashed
Misero’s neck and ear with a razor blade. Misero testified that
[Appellant’s] assault was unprovoked. Another inmate in
Northampton County Prison, Daniel Rice, was called by the
Commonwealth. Rice testified that he witnessed Misero go into
[Appellant’s] cell, heard a fight occur and came into the cell as
[Appellant] and Misero were being separated. Rice witnessed
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Misero’s wounds, but did not witness the fight. Rice also testified
that [Appellant] told him the fight was over twenty dollars that
Misero owed [Appellant]. During his direct and cross, Rice was
asked about any deal or consideration that the Commonwealth
was giving him in return for his testimony. Rice testified that he
was not promised anything in return for his testimony.
***
[Appellant] pursued post-sentence motions and an appeal
through the appellate courts. The Pennsylvania Supreme Court
issued an Order affirming [Appellant’s] conviction on [October]
27, 2015.
[Appellant’s] first PCRA was filed on February 22, 2016. In
the first PCRA, [Appellant] raised a series of claims, including
ineffective assistance of counsel and the existence of “new
evidence” consisting of prosecutorial misconduct alleging that the
Assistant District Attorney (ADA) intimidated Rice and suborned
Rice’s perjured testimony by promising Rice a hidden deal on his
criminal charges in exchange for his perjured testimony.
We held our first hearing on the PCRA on July 11, 2016.
[Appellant] was represented by PCRA counsel. At the hearing, we
heard from Rice’s guilty plea counsel, Rice’s PCRA counsel, and
[Appellant]. We learned that on September 15, 2010, shortly
after [Appellant’s] trial, Rice was given a 4-8 year sentence as
part of a negotiated plea with a sentence bargain for a bank
robbery in which he was the getaway driver. At sentencing, Rice
acknowledged that he got the benefit of his negotiated bargain.
Apparently, Rice’s co-defendant was later given a 3 to 6 year
sentence. Upon finding that his co-defendant (who actually
entered the bank to commit the robbery) got a lesser sentence,
Rice filed for PCRA relief asking for reconsideration and/or for the
same sentence his co-defendant received. Rice also claimed in his
PCRA that he was promised a sentence reduction by the ADA.
During the PCRA hearing, both of Rice’s attorneys testified that
they were not aware that any prior promises were made to Rice
for his testimony against [Appellant]. Rice’s PCRA attorney
testified that he did raise the inequitable sentencing situation with
the ADA. Thereafter, the ADA (the same ADA who prosecuted
[Appellant]) agreed with his proposal that a fair resolution would
be to give Rice the same sentence as the actual robber. Rice
agreed to accept the new resolution. On September 30, 2011, as
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part of the resolution of Rice’s PCRA, the Judge modified Rice’s
sentence to 3-6 years, with the agreement of the ADA.
[Appellant] also testified at his PCRA hearing. [Appellant]
presented the report of a private investigator, John Stahr, a
retired Detective from the Bethlehem Police Department who was
apparently sent to interview Rice by [Appellant’s] Public Defender,
prior to [Appellant’s] trial. The entirety of Stahr’s report as it
relates to his hearsay summary of his interview with Rice is as
follows:
I asked Rice if he saw Misero approach [Appellant’s]
cell and he told me that he had. Rice said that Misero
had a cup in his hand and that he saw him walk into
[Appellant’s] cell. Rice said that he saw a scuffle start
and then someone yelled that they were fighting. Rice
told me that he went to the cell but the fight was over.
[Appellant] and Misero were arguing about a dispute
on the street but he did not know what it involved.
Rice had nothing further to add and the interview was
terminated.
Report of John Stahr, April 12, 2010.
[Appellant] argued that Rice’s PCRA filing and the Stahr
report establish both the secret sentencing deal Rice reached with
the ADA and that the ADA suborned perjured testimony from Rice.
PCRA Counsel asked to recess the hearing as he considered calling
additional witnesses. No other hearings were held, even though
we recessed the hearing to allow PCRA Counsel to call possible
additional witnesses.
On December 30, 2016, we entered our Order denying
[Appellant’s] first Petition. Our December 30, 2016 Order was
appealed. On January 3, 2018, the Superior Court affirmed our
Order denying post-conviction relief. In the Superior Court’s
decision, the Court discussed the alleged improper “secret deal”
between the ADA and Rice in which the ADA allegedly influenced
Rice to change his testimony and/or the ADA knowingly proffered
perjured testimony of Rice at trial, before concluding that there
was no credible evidence of a “secret deal” or that the ADA
misrepresented facts or proffered perjured testimony. The
Superior Court’s detailed analysis can be found in its January 3,
2018 Opinion (pp. 4-12), where the Superior Court finally stated:
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“We conclude, therefore, that the record supports the PCRA
court’s finding that [Appellant], who had the burden of proof,
presented no competent or credible evidence in support of his bald
theory that the ADA lied during the trial.” See Superior Court
Opinion, No. 337 EDA 2017, January 3, 2018 at page 12.
***
On May 7, 2018, [Appellant] filed his second PCRA Petition
advancing the same theory and based upon the same factual
predicate, with additional evidence consisting of a written
statement (an affidavit) from Rice which [Appellant] argued
constituted “newly discovered evidence” under the PCRA. The
Affidavit signed by Rice alleges that the ADA offered Rice reduced
time in exchange for his testimony, and that his original statement
to the “initial investigator” who visited him in prison was his true
statement.
PCRA Court Opinion, 11/19/18, at 1-6.
On May 15, 2018, the PCRA court issued notice of intent to dismiss
Appellant’s second PCRA petition without a hearing pursuant to Pennsylvania
Rule of Criminal Procedure 907. The PCRA court dismissed the petition on
June 11, 2018. Appellant did not file an appeal.
On September 24, 2018, Appellant filed the instant PCRA petition, his
third. Again, Appellant has claimed that a sworn affidavit from Rice
constituted after-discovered evidence which entitles Appellant to a new trial.
On October 11, 2018, the PCRA court issued notice of its intent to dismiss
Appellant’s PCRA petition without a hearing pursuant to Pennsylvania Rule of
Criminal Procedure 907. The court dismissed the petition on November 19,
2018 on the basis that it lacked jurisdiction because the petition was untimely.
Appellant filed this appeal.
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On appeal, Appellant presents a single issue:
1) DID THE LOWER COURT ERR IN FAILING TO GRANT A
PCRA EVIDENTIARY HEARING WHERE [APPELLANT]
PRESENTED A SWORN AFFIDAVIT FROM A
COMMONWEALTH WITNESS THAT “ALL [HIS] TRIAL
TESTIMONY WAS FALSE,” THAT “[APPELLANT] WAS
DEFENDING [HIM]SELF FROM [THE VICTIM],” AND THAT
THE ONLY REASON [THE WITNESS] TESTIFIED AGAINST
[APPELLANT] WAS BECAUSE THE ADA MADE A SECRET
DEAL WITH [THE WITNESS] PRIOR TO TRIAL TO CHANGE
HIS TESTIMONY FROM EXCULPATORY TO INCULPATORY
IN EXCHANGE FOR A SENTENCE REDUCTION ON HIS
BANK ROBBERY CONVICTION THAT WAS HIDDEN FROM
[THE] JURY.
Appellant’s Brief at 4 (underline in original).
“On appeal from the denial of PCRA relief, our standard of review calls
for us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Williams, 196 A.3d 1021,
1026-27 (Pa. 2018) (quoting Commonwealth v. Washington, 927 A.2d
586, 593 (Pa. 2007)). “The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we apply a de
novo standard of review to the PCRA court’s legal conclusions.”
Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).
Instantly, we must first address the timeliness of Appellant’s petition,
because the PCRA’s time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address a petition’s merits; a petitioner
seeking post-conviction relief must file a petition within one year of the
petitioner’s judgment of sentence becoming final. See, e.g.,
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Commonwealth v. Smith, 194 A.3d 126, 132 (Pa. Super. 2018); see also
42 Pa.C.S.A. § 9545(b)(1). Section 9545 of the PCRA requires 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). The timeliness requirement of the PCRA is “mandatory and
jurisdictional in nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-
85 (Pa. Super. 2008). Therefore, “no court may disregard, alter, or create
equitable exceptions to the timeliness requirement in order to reach the
substance of a petitioner’s arguments.” Id. at 785.
Appellant’s third PCRA petition is patently untimely. The Pennsylvania
Supreme Court affirmed Appellant’s judgment of sentence on October 27,
2015. Appellant sought reargument with the Supreme Court, which was
denied on January 26, 2016. Under U.S. Sup. Ct. R. 13, Appellant had 90
days to petition for a writ of certiorari with the United States Supreme Court,
but did not do so. 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.” 42 Pa.C.S.A. § 9545(b)(3). Therefore,
Appellant’s judgment of sentence became final on April 25, 2016, and he had
to file his PCRA petition by April 25, 2017 to meet the PCRA’s time restrictions.
The underlying petition was not filed until September 24, 2018.
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It is well-settled that a court does not have jurisdiction to entertain a
petition filed after the one-year time-bar unless the petitioner pleads and
proves one of the time-bar exceptions. The exceptions include:
(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.A. § 9545(b)(1)(i)-(iii).
Until recently, a petition invoking an exception had to be filed within 60
days of the date the claim could have been presented. However, effective
December 2017, Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), and
now provides that a PCRA petition invoking a timeliness exception must be
filed within one year of the date the claim could have been presented. See
Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Although we note the change
in the law from 60 days to one year, and its application to Appellant, the
change does not impact our analysis.
Appellant argues that the PCRA court should have held a hearing on his
third PCRA petition and vacated his conviction because he presented sworn
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affidavits from Rice documenting Rice’s “secret deal” with the Commonwealth.
See Appellant’s Brief at 17 (stating that the PCRA court erred by failing to
conduct a hearing where the witness, Rice, “confesses” that “all his trial
testimony was false,” and Appellant “was defending himself from Misero.”).
Although Appellant recognizes the PCRA’s time-bar and asserts that he has
presented newly discovered evidence to circumvent the time requirement, this
assertion is belied by the record. As noted by the Commonwealth, Appellant
“has failed to prove [the newly discovered evidence] exception to the
timeliness requirement because he has not shown that these facts were
unknown to him and that he exercised due diligence.” Commonwealth Brief
at 10. Moreover, as the PCRA court recognizes, Appellant may not re-raise
issues that were previously litigated. PCRA Court Opinion, 11/19/18, at 17
(citing 42 Pa.C.S.A. § 9544, providing that an issue has been previously
litigated where, inter alia, “it has been raised and decided in a proceeding
collaterally attacking the conviction or sentence.”). The PCRA court
thoroughly analyzed Appellant’s third claim for post-conviction relief, stating:
[Appellant’s] third PCRA alleging new evidence . . . is actually a
reiteration of [Appellant’s] previous assertions addressing
whether or not Misero was holding anything in his hand when he
entered [Appellant’s] cell and claiming that the District Attorney
promised Rice some undefined sentencing benefit in return for
falsifying his testimony.
PCRA Court Opinion, 11/19/18, at 18.
The PCRA court observed that “rather than constituting new evidence,
Rice’s affidavits merely regurgitate stale evidence,” and thus, Appellant’s
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evidence “is both repetitive and cumulative.” Id. at 21. The court accurately
explained:
[Appellant’s] claim does not qualify as after-discovered
evidence under the PCRA, as the claim about the truthfulness or
accuracy of Rice’s testimony was known (and addressed) at the
original trial, nearly ten years ago. Frankly, if anything, Rice
continues to be consistent with his uncertain memory in each
affidavit. Further, after the expiration of ten years after this issue
was first addressed at his trial, [Appellant] cannot meet the due
diligence requirement of the PCRA.
Id. at 20. See also 42 Pa.C.S.A. § 9545(b)(1)(ii).
For the above reasons, we agree that Appellant has failed to plead and
prove an exception to the PCRA’s time-bar, and is not entitled to relief.
Because the he PCRA court did not abuse its discretion, we affirm its order
dismissing Appellant’s petition for lack of jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/19
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