Com. v. Walton, M.

J-S04012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS M. WALTON :
:
Appellant : No. 3657 EDA 2018

Appeal from the PCRA Order Entered November 20, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): Cp-51-CR-0334691-1989

BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 27, 2020

Appellant, Marcus M. Walton, appeals pro se from the order dismissing

his untimely petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-46. After careful review, we affirm.

During Appellant’s direct appeal from his judgment of sentence, this

Court provided a brief summary of the facts underlying Appellant’s conviction

as follows:

On February 9, 1989, [A]ppellant entered the residence at 647
North 52nd Street in Philadelphia. Upon entering, [he] went to the
second floor of the residence where he engaged in a conversation
with Mark Bryant. Appellant spoke with Bryant briefly and told
him to go into the bathroom. Appellant told the other people
present on the premises to go into their rooms, and then went
into the bathroom with Bryant. Approximately five minutes later
a shot was heard. Appellant was then seen exiting the bathroom
with a gun at his hip. He ran down the steps and fled through the
first floor rear door into his white BMW. Immediately thereafter,
Bryant was found on the floor of the bathroom with a fatal bullet
wound to the back of his head.
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Commonwealth v. Walton, No. 2998 Philadelphia 1990, unpublished

memorandum at 1 (Pa. Super. July 10, 1992). Further, in our review of

Appellant’s appeal from the denial of his second PCRA petition, we noted that:

“At trial, several witnesses, including David Munlyn, Christine Nelson, and

Loretta Nelson, who were present during the incident, attested to [Appellant]’s

involvement in the shooting.” Commonwealth v. Walton, No. 3363 EDA

2001, unpublished memorandum at 2 (Pa. Super. Dec. 5, 2002).

The PCRA court provided the following procedural history of this case:

[Appellant] was arrested and subsequently charged in connection
with the 1989 fatal shooting of Mark Bryant in his home. On March
6, 1990, following a jury trial presided over by the Honorable
William J. Manfredi, [Appellant] was convicted of first-degree
murder and possessing an instrument of crime. On October 22,
1990, the trial court sentenced [Appellant] to an aggregate term
of life imprisonment. Following a direct appeal, the Superior Court
affirmed the judgment of sentence on July 10, 1992, and the
Pennsylvania Supreme Court denied [Appellant]’s petition for
allowance of appeal on December 8, 1992.2
2Commonwealth v. Walton, 616 A.2d 721 (Pa. Super.
1992), appeal denied, 618 A.2d 401 (Pa. 1992).

[Appellant] filed his first PCRA petition on January 2, 1997, which
the PCRA court subsequently denied after conducting an
evidentiary hearing on September 22, 1998. The Superior Court
affirmed the order denying relief on September 19, 2000.3
3Commonwealth v. Walton, 766 A.2d 893 (Pa. Super.
2000) (table).

[Appellant] was subsequently unsuccessful in obtaining collateral
relief through serial petitions filed between 2000 and 2014.

On February 7, 2017, [Appellant] filed the instant pro se PCRA
petition. [Appellant] filed supplemental petitions [that] were
reviewed jointly with his initial petition. Pursuant to Pennsylvania
Rule of Criminal Procedure 907, [Appellant] was served notice of

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the PCRA court’s intention to dismiss his petition on August 13,
2018. [Appellant] submitted a response to the Rule 907 notice on
September 10, 2018. On November 20, 2018, the PCRA court
dismissed his petition as untimely without exception. On
December 11, 2018, [a timely, pro se] notice of appeal was timely
filed to the Superior Court.

PCRA Court Opinion (“PCO”), 3/29/19, at 1-2.

The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)

statement, and Appellant did not file one. The trial court issued its Rule

1925(a) opinion on March 29, 2019.

Appellant now presents the following questions for our review, verbatim:

I. WHETHER APPELLANT SUFFERED FROM A FRUIT OF THE
POISONOUS TREE, IN THAT, DETECTIVE MANUEL SANTIAGO
FASLEY TESTIFIED AND OFFERED “TESTIMONIAL EVIDENCE”
DERIVING FROM A JUVENILE WITNESS POLICE STATEMENT
GIVEN WITHOUT PARENTAL CONSENT AND FURTHER
RECONSTRUCTED THE EVIDENCE TO IMPLICATE THE DEFENDANT
WHEN THE JUVENILE’S POLICE STATEMENT NAMED SOMEONE
ELSE?

II. WHETHER THE PCRA COURT COMMITTED A LEGAL ERROR
WHEN RECOGNIZING THE APPELLANT SUFFERED A BRADY[1]
VIOLATION, BUT IGNORED TO ISSUE MEANINGFUL PCRA REVIEW
ON THE PREMISE, THAT THE APPELLANT FAILED TO EXPRESS
REASONABLE DUE DILIGENCE ALTHOUGH THE RULE ON
DILIGENCE HAS CHANGED IN THIS AREA OF THE LAW?

III. WHETHER APPELLANT’S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS WERE VIOLATED UNDER
PENNSYLVANIA CONSTITUTION ARTICLE I § 9, AND THE SIXTH
AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION WHEN THE PCRA COURT COMMITTED LEGAL
ERROR OR AN OBSTRUCTION OF JUSTICE VIA IGNORING THE
AFTER DISCOVERED FACTS EXCEPTIONS UNDER 42 PA C.S. §
9545(b)(1)(ii) AND § 9545(b)(2), PERTAINING TO PCRA
COUNSEL’S MENTAL ILLNESSES?

____________________________________________

1 Brady v. Maryland, 373 U.S. 83 (1963).

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IV. WHETHER PCRA COUNSEL’S MENTAL ILLNESSES AIDED IN
HIS INEFFECTIVE ASSISTANCE OF COUNSEL PER-SE WHEN
WAVING AND FAILING TO ADDRESS APPELLANT’S REMAINING
PCRA CLAIMS WHICH WERE PROPERLY RAISED AND PRESERVED
FOR MEANINGFUL REVIEW IN AN “INITIAL TIMELY FILED PCRA
PETITION”?

V. WHETHER THE CUMULATIVE ERRORS IN ITS TOTALITY
CAUSED A PREJUDICIAL EFFECT AND DENIED APPELLANT RIGHTS
TO A FAIR AND IMPARTIAL TRIAL PROCEEDINGS?

Appellant’s Brief at 3.

This Court’s standard of review regarding an order denying a PCRA

petition 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

Appellant’s petition, because the PCRA’s 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). 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 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

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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 one year of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).2

Appellant’s PCRA petition is patently untimely. Thus, he must

successfully plead and prove a timeliness exception to enable this Court to

review his claims. Appellant twice invokes the newly-discovered fact

exception set forth in Section 9545(b)(1)(ii), which apply to his first and

second, and third and fourth issues, respectively.

This exception requires that the facts upon which such a
claim is predicated must not have been known to [the] appellant,
nor could they have been ascertained by due diligence. [T]o fall
within this exception, the factual predicate of the claim must not
be of public record and must not be facts that were previously
known but are now presented through a newly discovered source.

Commonwealth v. Chmiel, 173 A.3d 617, 625 (Pa. 2017) (cleaned up).
____________________________________________

2 When Appellant’s current PCRA petition was filed, Section 9545(b)(2)
required PCRA petitions invoking a timeliness exception to be filed within 60
days of the date the claim could have been first presented. Appellant filed the
instant petition on April 17, 2019, whereas the amendment increasing the
look-back period set forth in Section 9545(b)(2) did not take effect until
December 17, 2017. Therefore, Appellant’s petition is subject to the 60-day
limitation under the pre-amended version of the statute.

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I & II

The first piece of newly-discovered evidence alleged by Appellant

concerns an article in Rolling Stone Magazine discussing accusations of corrupt

conduct, by former Detective Manuel Santiago (“Santiago”) of the Philadelphia

Police Department, in an unrelated case. See Paul Solotaroff, Finally Free:

Inside Tony Wright’s Murder Exoneration, Rolling Stone, August 29, 2016.3

Santiago testified at Appellant’s trial.

According to Appellant, his discovery of Santiago’s pattern of

misconduct,4 which he first learned about in the Rolling Stone article, led him

to further scrutinize Santiago’s testimony at his own trial. Santiago testified,

inter alia, that Appellant was seen by a witness fleeing the scene of the crime

in a distinctive white BMW, which was the same make and model of the vehicle

owned by Appellant at the time (hereinafter “Santiago’s statement”). N.T.,

2/27/90, at 102. However, Appellant avers that a statement given to Santiago

by a juvenile, E.B., indicated that the person who fled the scene and left in a

white car was someone other than Appellant. See Appellant’s Brief, Exhibit

____________________________________________

3 https://www.rollingstone.com/culture/culture-news/finally-free-inside-
tony-wrights-murder-exoneration-250694/

4In the article, the author states that Santiago and another Philadelphia Police
detective are “alleged” to have “long histories of coercion and misconduct[.]”
Id. With regard to the case of Tony Wright, Santiago is accused of coercing
Wright into falsely confessing to the rape and murder of a woman. Id. After-
discovered DNA evidence pointed to another culprit, and Wright’s conviction
was overturned in 2014, twenty-one years after he was initially convicted. Id.
The Commonwealth decided to retry Wright, but he was quickly acquitted by
a jury. Id.

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B. Appellant alleges that Santiago intentionally misconstrued E.B.’s statement

in order to prejudice him before the jury, which he believes was particularly

prejudicial to him at trial, because the Commonwealth never produced a

witness who specifically testified to observing Appellant flee in a white BMW.

The PCRA court found that the Rolling Stone article did not satisfy the

newly-discovered evidence exception, see PCO at 4, relying solely on our

Supreme Court’s statement in Commonwealth v. Castro, 93 A.3d 818 (Pa.

2014), that “allegations in the media, whether true or false, are no more

evidence than allegations in any other out-of-court situation.” Castro, 93

A.3d 825. The Castro Court further remarked that “this Court and the

Commonwealth and Superior Courts have held newspaper articles generally

do not constitute evidence, as they contain inadmissible hearsay.” Id. at 825

n.11. Based on Castro, the PCRA court determined that “the article

[Appellant] presented was not newly-discovered evidence.” PCO at 5. We

agree with the PCRA court that Rolling Stone article alone, and the allegations

contained therein, do not constitute newly-discovered facts; they are merely

allegations. See Castro. In any event, nothing in the article directly pertains

to Santiago’s conduct in Appellant’s case.

However, our inquiry does not end there. The PCRA court failed to

discuss Appellant’s further contention that the article ostensibly prompted his

discovery of more specific evidence of Santiago’s wrongdoing in Appellant’s

case. In his pro se brief, Appellant presents the novel claim that the Rolling

Stone article led him to further scrutinize the record regarding Santiago’s

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testimony and, in particular, its relationship to E.B.’s statement. He contends

the discovery of the suspicious nature of Santiago’s testimony in light of E.B.’s

statement was a newly-discovered fact triggered by his discovery of the

Rolling Stone article.

There are several problems with this argument. Santiago’s in-court

testimony at Appellant’s trial was plainly not a newly-discovered fact when

Appellant filed the instant petition, nor is Appellant’s skepticism of that

statement. When Santiago testified that Appellant was seen fleeing the scene

of the crime in a white BMW (while describing photos of Appellant’s vehicle),

Appellant’s trial counsel immediately objected and requested a mistrial. N.T.,

2/27/90, at 102-03. The prosecutor averred that he would proffer a witness

to testify to that fact. Id. at 103. The trial court cautioned the prosecutor,

and advised Appellant’s counsel that he could renew his request for a mistrial

should the Commonwealth fail to produce that witness to substantiate

Santiago’s statement. Id. at 104. The jury was then instructed “in the

strongest terms possible to disregard” Santiago’s statement. Id.; see also

id. at 105-06 (instructing the jury to disregard Santiago’s testimony regarding

Appellant’s connection to the specific white BMW). Ultimately, the

Commonwealth did not provide a witness who could substantiate Santiago’s

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statement that a witness had specifically observed Appellant fleeing the scene

in a white BMW.5

Not only did Appellant object at the time of trial to the problematic

testimony by Santiago, he raised the matter several times on prior occasions

under alternative legal theories. Appellant raised the court’s error in failing to

grant a mistrial based on Santiago’s statement during his direct appeal in his

Rule 1925(b) statement. See Appellant’s Pa.R.A.P. 1925(b), 11/7/90, at 2 ¶

8. The trial court addressed the matter as follows:

A detective testified that a white, four-door[] BMW … registered
to [Appellant], with the inscription “King of All Kings” written on
the side, was the vehicle in which [Appellant] left the scene of the
shooting. We sustained [Appellant’s] objection, ordered the
testimony stricken[,] and gave the jury a specific instruction to
disregard the testimony[;] said instruction even included an
explanation as to why the Detective was not competent to give
the stricken testimony. However, we denied [Appellant]’s motion
for a mistrial.

Subsequently, the Commonwealth presented testimony that a
white car was seen leaving the back of the home on the night of
the incident…[,] and that [Appellant] was driving a white car with
tinted windows and an unknown saying written on the side…. In
light of this subsequent testimony and our prompt and complete
curative instruction, we are satisfied that any error was harmless

____________________________________________

5 To be clear, Appellant’s alleged flight from the scene in a white BMW was
not the only evidence, nor the most damning evidence, leading to his
conviction (indeed, it was not evidence at all, as the jury was instructed to
disregard Santiago’s statement to that effect). Various witnesses identified
Appellant in the building with the victim, testified to his possession of a gun
near the time of the killing, that Appellant owned the vehicle in question, and
that a white car was seen leaving the scene after the shooting. What was
missing to substantiate Santiago’s statement was a witness who specifically
observed Appellant fleeing in the white BMW that he owned.

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beyond a reasonable doubt and that it would have been
inappropriate to declare a mistrial.

Trial Court Opinion, 9/23/91, at 7.

The issue was then abandoned by Appellant’s counsel on direct appeal,

and Appellant raised direct-appeal counsel’s ineffectiveness for that omission

in his first PCRA petition. See Appellant’s pro se PCRA petition, 1/8/97, at 17

¶ 7. The issue was also presented as a failure-to-object-to-prosecutorial-

misconduct ineffectiveness claim in a counseled, supplemental PCRA petition.

See Appellant’s supplemental PCRA petition, 10/20/99, at 5-6 (wherein first

PCRA counsel argued direct-appeal counsel’s ineffectiveness for failing to

raise, inter alia, prosecutorial misconduct related to Santiago’s statement).

However, those ineffectiveness claims were also abandoned on direct appeal

from the denial of Appellant’s first PCRA petition. As a result, those matters

were not addressed by this Court in that appeal. See Commonwealth v.

Walton, 766 A.2d 893 (Pa. Super. Sept. 19, 2000) (unpublished

memorandum).

In Appellant’s next PCRA petition, his second, he raised only a claim of

after-discovered evidence; he did not assert his prior PCRA counsel’s

ineffectiveness for failing to seek relief under any theory related to Santiago’s

problematic testimony. However, Appellant was still represented by the same

attorney during the litigation of his second PCRA petition. We affirmed the

denial of that petition on December 5, 2002, and our Supreme Court

subsequently affirmed. Commonwealth v. Walton, 817 A.2d 1186 (Pa.

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Super. 2002) (unpublished memorandum), appeal denied, 825 A.3d 638 (Pa.

2003).

Appellant filed a pro se PCRA petition, his third, while his second was

still under review. The PCRA court denied it for that reason.6 In that petition,

Appellant had sought to remove his PCRA attorney. Appellant subsequently

filed another pro se PCRA petition, his fourth, on June 17, 2004. Therein, he

raised numerous issues, including a claim that Santiago’s statement

constituted a Crawford7 violation, and sought to overcome the PCRA’s

timeliness requirements by asserting Crawford as a new constitutional right.

We rejected that claim because, first, Appellant’s fourth petition was not

filed within 60 days of the date Crawford was decided. Commonwealth v.

Walton, No. 2166 EDA 2005, unpublished memorandum at 7 (Pa. Super. filed

May 15, 2006). Second, we recognized that, in any event, Crawford did not

apply retroactively on collateral review. Id. at 6. Thus, Appellant’s fourth

petition, in which he sought to raise, inter alia, issues regarding the admission

of Santiago’s statement at trial, was time-barred.

In his fifth petition, Appellant presented numerous claims asserting,

inter alia, the ineffectiveness of his trial, direct appeal, and PCRA counsel for

____________________________________________

6 See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding that
“when an appellant’s PCRA appeal 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 upon
the expiration of the time for seeking such review”).

7 Crawford v. Washington, 541 U.S. 36 (2004).

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their failures to pursue various legal claims, none of which involved the failure

to preserve claims related to Santiago’s problematic testimony. The PCRA

court denied the petition as untimely, and we affirmed. See Commonwealth

v. Walton, 988 A.2d 732 (Pa. Super. 2009) (unpublished memorandum). In

his sixth PCRA petition, filed in 2012, Appellant did not raise any claims related

to Santiago’s statement. We affirmed the denial of that petition as untimely.

See Commonwealth v. Walton, 105 A.3d 792 (Pa. Super. 2014)

(unpublished memorandum).

Appellant now attempts to resurrect an issue regarding Santiago’s

testimony under the rubric of newly discovered evidence. He believes that

Santiago deliberately misquoted E.B.’s statement to police at Appellant’s trial,

a suspicion that ostensibly arises out of his discovery of allegations of

Santiago’s corruption in unrelated cases through the Rolling Stone article.

Appellant believes this “new evidence” substantiates several previously-

raised, yet ultimately-abandoned legal theories under which Appellant has

sought to demonstrate the inadmissibility and prejudicial impact of Santiago’s

statement.

We are still unconvinced that Appellant has met his burden to

demonstrate the applicability of the newly-discovered evidence exception

beyond the mere allegations contained in the Rolling Stone article. At best,

Appellant has constructed a new theory by which to challenge Santiago’s

statement and its impact on Appellant’s trial. He contends that the new

evidence is not “of the same character” as what previously was used to

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challenge Santiago’s statement, citing for support Commonwealth v.

Mount, 257 A.2d 578 (Pa. 1969), and Commonwealth v. Small, 189 A.3d

961 (Pa. 2018). Appellant’s Brief at 29. However, we conclude both cases

are distinguishable from the instant matter.

In Mount, the defendant pled guilty to murder generally, leaving only

the question of his degree of guilt. Mount, 257 A.2d at 579. The sentencing

court considered his rape of the victim as an aggravating factor in deciding to

sentence him to death for first-degree murder. Id. New evidence emerged

that a laboratory technician, who testified at Mount’s trial “that she found

seminal stains and blood stains matching the deceased’s blood type on a pair

of underpants found among the appellant’s belongings at the time of his

apprehension[,]” “had never fulfilled the educational requirements for a

laboratory technician.” Id. at 579–80. The Mount Court concluded that the

technician’s “testimony was not merely cumulative and that, discounting her

testimony, there was insufficient evidence to prove a rape.” Id. at 581. On

that basis, the Supreme Court vacated Mount’s death sentence and remanded

for resentencing with the direction for the sentencing court to reassess the

technician’s credibility in light of the new information, and to craft a new

sentence after that reassessment. Id. at 582.

In Appellant’s case, Santiago’s statement was not admitted into

evidence, and the jury was specifically instructed to disregard it. In Mount,

by contrast, the technician’s testimony had not been previously challenged on

any basis, and had been given considerable weight by the court that had

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sentenced Mount to death. Furthermore, there was no question in Mount

that the new fact was credible—that the technician lacked the technical

qualifications for her position. Here, Appellant presents only bald accusations

from the Rolling Stone article, in addition to Santiago’s testimony and E.B.’s

statement, neither of which are newly-discovered.8

In Small, the defendant was convicted of first-degree murder. Small,

189 A.3d at 967. In that case, there were no eyewitnesses to the fatal

shooting, but Small was observed walking out of a nightclub with the victim

not long before the murder occurred. Id. at 963. That evidence, in addition

to testimony that Small had admitted to the killing of two other inmates when

he was incarcerated, and circumstantial evidence that demonstrated his

motive, supported his conviction. Id. at 963-66. However, some of the

Commonwealth’s own evidence potentially pointed to another shooter,

Espada, who also had a motive to kill the victim, who was with Small and the

victim at the time of the shooting, and who had also reportedly confessed his

guilt. Id. at 966-67.

____________________________________________

8 Appellant does not specifically assert that E.B.’s statement is newly-
discovered fact. He claims at one point that the Commonwealth failed to turn
that statement over to the defense, but he provides no information regarding
when or how he came into possession of it. See Appellant’s Brief at 35 (“The
State failed to turn over its unknown witness police statement or supplemental
police statement.”). As far as we know, E.B.’s statement was provided to
Appellant during pre-trial discovery as required by law, and nothing in the
record calls that assumption into question. Therefore, we assume that E.B.’s
statement is not itself a newly-discovered fact.

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Tyson, the mother of Espada’s children, testified for the Commonwealth

about some of the circumstances surrounding the shooting, including a motive

for the killing. Id. at 963-64. After Small was denied relief on direct appeal,

Tyson provided him with an affidavit indicating that she had withheld from the

police, and from her testimony at Small’s trial, that Espada had confessed to

her soon after the shooting that he had shot the victim. Id. at 968. After a

hearing, the PCRA court granted a new trial based on a finding that Tyson’s

new statement was not merely cumulative, and was not obtainable at an

earlier time with the exercise of due diligence. Id. at 968-70. The

Commonwealth appealed, and the Superior Court reversed, concluding that

the testimony was cumulative because it tended to corroborate evidence at

trial that had already suggested Espada’s guilt. Id. at 970-71. Our Supreme

Court vacated the Superior Court’s order, and remanded for the PCRA court

to make a credibility determination regarding aspects of Tyson’s new

testimony that appeared to recant her statement to police. Id. at 978-79.

However, in reasoning to that result, the Court clarified its precedent that the

Court had

never foreclosed — and has actually embraced — the notion that
new evidence tending to prove a material fact that was in evidence
at trial is not always “merely” corroborative or cumulative, so long
as it is of a higher and different grade or character. Moreover, our
cases support a salutary goal of the after-discovered evidence
rule: to limit continued litigation without being so rigid as to shut
out newly discovered evidence from a credible source which may
lead to a true and proper judgment.

Id. at 975.

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Here, relying on Small, Appellant contends his new evidence is of higher

or different grade than he previously employed to challenge Santiago’s

statement. However, as indicated above, the trial court instructed the jury to

disregard Santiago’s statement. In Small, by contrast, the new evidence,

Tyson’s new testimony contradicted the admitted testimonial evidence that

led to Small’s conviction. The “new fact” in the instant case is a new theory

for the inadmissibility of a statement that had already been deemed

inadmissible, a theory grounded in a foundation of mere accusations from a

magazine.

Appellant simply cannot benefit from merely demonstrating new reasons

to exclude Santiago’s statement from his trial when that statement was not

used against him in the first instance. Appellant’s allegation that Santiago

intentionally misquoted E.B.’s statement is specious at best, but, even if true,

it would demonstrate only that that statement should have been excluded

from the jury’s consideration for additional reasons.

Appellant also invokes Small for the proposition that he is entitled to a

hearing, but he fails to specify what the purpose of such a hearing would be.

In Small, our Supreme Court determined that Tyson’s new testimony required

a credibility determination, and could not be accepted at face value, given the

generally skeptical view the Court applies to recantation evidence. There is

no analogy in the instant case. Even accepted on face value, Appellant’s

attempt to invoke the newly-discovered evidence exception fails. Even if

Santiago’s statement was the product of intentional misconduct, Appellant

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would not be entitled to relief, because Santiago’s statement was not admitted

at Appellant’s trial.

In sum, Appellant presents no new facts, only new theories predicated

on mere accusations. Accordingly, we conclude that the PCRA court did not

err in determining that Appellant’s discovery of the Rolling Stone article did

not satisfy the newly-discovered evidence exception to the PCRA’s timeliness

requirements.

III & IV

Appellant next contends that he meets the newly-discovered evidence

exception based on his discovery of evidence of his prior PCRA attorney’s

mental illness. However, Appellant avers that he first raised the matter of

counsel’s mental illness in a Supplemental PCRA petition that he filed in

January of 2015, based on an article published on December 2, 2014. See

Appellant’s Brief 39. That petition was ultimately denied as untimely by order

dated January 30, 2017. Appellant did not file an appeal from that order.

The PCRA petition currently under review was subsequently filed on February

7, 2017.

It is plain from the record that Appellant raised this precise claim in a

prior PCRA petition, failed to appeal from the order denying relief, and is now

presenting the same claim for the second time. Thus, it is obvious that

Appellant did not file the instant PCRA petition within 60 days of having

discovered evidence of his prior attorney’s mental illness as, by his own

admission and legal filings, he has known about the matter since at least

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January of 2015, yet he did not file the instant PCRA petition until 2017. Thus,

Section 9545(b)(2) bars Appellant’s attempt to invoke the newly-discovered

evidence exception based on his discovery of his prior attorney’s mental

illness.

Although not specifically raised in his statement of the questions

presented, Appellant also alleges that he newly-discovered evidence of a

Brady violation regarding the testimony of David Munlyn, who purportedly

had a plea deal with the Commonwealth despite having testified to the

contrary at Appellant’s trial. However, this issue was raised several times in

Appellant’s prior PCRA petitions. Indeed, it was the gravamen of Appellant’s

after-discovered evidence claim in his second PCRA petition, and the sole claim

he raised on appeal from the order denying that petition. See

Commonwealth v. Walton, 817 A.2d 1186 (Pa. Super. 2002) (unpublished

memorandum). Appellant cannot now assert that he newly discovered the

same fact that was the precise subject of litigation nearly 20 years ago in a

prior PCRA petition. Likewise, he cannot assert the government interference

exception, which is also predicated on his discovery of the same fact(s).

Appellant presents no new facts pertaining to the alleged government

interference. Accordingly, neither exception applies to the instant PCRA

petition.

V

Finally, Appellant claims that the totality of the collective errors that

occurred at his trial and in prior PCRA proceedings, in addition to the

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ineffective assistance of counsel provide by all of his prior attorneys, entitle

him to relief. However, in raising this claim, Appellant does not present any

exception to the PCRA’s timeliness requirements, but for those already

specifically rejected above. Thus, Appellant is not entitled to relief, as no

timeliness exception applies to this claim.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/20

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