J-S66018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
EDWARD SCOTT
Appellant No. 441 MDA 2016
Appeal from the PCRA Order March 10, 2016
In the Court of Common Pleas of Fulton County
Criminal Division, at No(s): CP-29-CR-0000175-2011
BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 13, 2016
Edward Scott (“Appellant”) appeals from the order denying his serial
petition for post-conviction relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The pertinent facts and procedural history may be summarized as
follows. On November 15, 2012, Appellant was tried before a jury, in
absentia, and was convicted of aggravated and simple assault as a result of
his attack on his cousin, Matthew Deller (the “victim”), on March 24, 2011.
On December 18, 2012, the trial court sentenced Appellant, once again in
absentia, to a term of 90 to 180 months of imprisonment. Although counsel
was appointed to represent Appellant at trial and at sentencing, counsel filed
neither a post-sentence motion nor a direct appeal on Appellant’s behalf.
J-S66018-16
On May 2, 2013, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and PCRA counsel filed an amended petition.
Within the amended petition, Appellant asserted that his constitutional rights
were violated when a jury was selected in his absence and that trial counsel
was ineffective for failing to preserve this issue and raise it on direct appeal.
The Commonwealth filed an answer. Although the PCRA court found no need
for an evidentiary hearing, it directed the parties to brief the legal issue. By
opinion and order entered January 7, 2014, the PCRA court dismissed
Appellant’s amended petition. Appellant filed a timely appeal. In an
unpublished memorandum filed on June 27, 2014, we adopted the PCRA
court’s opinion as our own and affirmed the denial of post-conviction relief.
See Commonwealth v. Scott, 105 A.3d 48 (Pa. Super. 2014) (Table). On
February 24, 2015, our Supreme Court denied Appellant’s petition for
allowance of appeal. See Commonwealth v. Scott, 110 A.3d 997 (Pa.
2015) (Table).
On May 20, 2015, Appellant filed a pro se “Motion to Reinstate
Petitioner’s Appellant [sic] Rights Nunc Pro Tunc.” The Commonwealth filed
its answer on June 5, 2015. On June 24, 2015, Appellant filed a pro se
“Motion to Amend PCRA Petition.” Treating the pro se filings as Appellant’s
second PCRA petition, on July 9, 2015, the PCRA court issued notice of its
intent to dismiss the second petition without a hearing. In an accompanying
opinion, the PCRA court stated that Appellant’s second petition was
untimely, and that he did not allege any time bar exception.
-2-
J-S66018-16
Appellant filed his response on July 29, 2015. Appellant claimed he
met two exceptions to the PCRA’s time bar, including the newly-discovered
evidence exception. In support of this exception, Appellant asserted that the
victim wrote him a letter in which the victim stated that the district attorney
and the victim’s state parole officer “coerced [him] into changing his
testimony.” Response, 7/29/15, at 2. Appellant did not include a copy of the
victim’s letter.
By order entered September 15, 2015, the PCRA court dismissed
Appellant’s second PCRA petition. In doing so, the PCRA court explained why
Appellant failed to establish the newly-discovered time bar exception. With
regard to the victim’s letter, the PCRA court stated that Appellant had “not
pleaded any facts upon which this Court could reasonably conclude when
said letter was written by the victim or received by [Appellant].” Order,
9/15/15, at 2. Thus, the PCRA court dismissed Appellant’s second PCRA
petition as untimely. Appellant did not appeal the denial of his second PCRA
petition.
Appellant filed the pro se PCRA petition at issue on October 7, 2015.
Within this petition, Appellant asserted that he had newly-discovered an
unsworn affidavit from the victim in the form of a letter, dated September 4,
2015, in which the victim stated, “[t]he [district attorney] forced me to
testify against [Appellant] or [I] would get violated on my probation[,] I told
the [district attorney] I didn’t want to testify[.]” Affidavit, 9/4/15, at 1. The
Commonwealth filed an answer. Appellant then filed a pro se rebuttal to the
-3-
J-S66018-16
Commonwealth’s answer. By opinion and order on January 7, 2016, the
PCRA court dismissed Appellant’s third PCRA petition without a hearing
because it was frivolous.
Although the January 2016 order appeared to be a final dismissal, the
PCRA court subsequently characterized it as providing notice of its intent to
dismiss and granted Appellant’s request for an extension of time in which to
file his response. See Order, 1/29/16, at. 1. Appellant duly filed a response.
Attached as exhibits, Appellant included not only the September 4, 2015
letter from the victim, but also a letter written by the victim, on July 10,
2011, to the district attorney, in which the victim stated that he wanted to
drop the charges against Appellant. The victim informed the district
attorney, “All I want to come out of this is that the hospital bills are paid and
a restraining order for my wife. And a total amount of $300.00 placed [in my
prison account].” After reviewing this response, the PCRA court, by order
entered March 10, 2016, denied Appellant’s third PCRA petition. This timely
appeal follows.
Appellant raises the following issues:
I. Is Appellant entitled to relief on this subsequent
PCRA petition, and a new trial, and/or an evidentiary
hearing based on newly discovered evidence;
evidence that if presented at trial would have
changed the outcome of the proceedings, thus found
Appellant not guilty [sic]?
II. Did the [PCRA] court [err] when it failed to address
[Appellant’s] timely PCRA petition alleging additional
newly discovered evidence; evidence that if
presented at trial would have changed the outcome
-4-
J-S66018-16
of the proceeding, [that is,] finding Appellant not
guilty?
III. Did the prosecutor commit prosecutorial misconduct,
when the prosecutor threatened and intimidated the
alleged victim, and verified his testimony to be
truthful, and did the prosecutor commit trial by
ambush when he surprised the defense with the
[victim’s] state parole officer, and the false
testimony that he gave?
IV. Did the prosecutor violate [Appellant’s] due process
right[s]?
Appellant’s Brief at 4 (excess capitalization omitted).
This Court’s standard of review regarding an order dismissing 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. See
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. See Commonwealth v. Carr, 768 A.2d
1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold
a hearing on the petition if the PCRA court determines that petitioner’s claim
is patently frivolous and is without a trace of support in either the record or
from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa. Super. 2001).
Because this is Appellant’s third petition for post-conviction relief, he
must meet a stringent standard. “A second or any subsequent post-
conviction request for relief will not be entertained unless a strong prima
facie showing is offered to demonstrate that a miscarriage of justice may
-5-
J-S66018-16
have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.
Super. 2003) (en banc) (citations omitted). “A petitioner makes a prima
facie showing if he demonstrates that either the proceedings which resulted
in his conviction were so unfair that a miscarriage of justice occurred which
no civilized society could tolerate, or that he was innocent of the crimes for
which he was charged.” Id. (citations omitted).
The timeliness of a post-conviction petition is jurisdictional. See
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final, unless the petition alleges and proves an exception to the time for
filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claims could have been presented.” Hernandez, 79 A.3d 651-
652 (citing 42 Pa.C.S.A. § 9545(b)(2)). Exceptions to the time bar must be
pled in the petition, and may not be raised for the first time on appeal. See
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see
also Pa.R.A.P. 302(a) (providing that issues not raised before the lower
court are waived and cannot be raised for the first time on appeal).
Appellant’s judgment of sentence became final on January 17, 2013,
when the thirty-day time period for filing an appeal to this Court expired.
See 42 Pa.C.S.A. § 9545(b)(3). Thus, Appellant had until January 17, 2014,
-6-
J-S66018-16
to file a timely PCRA petition. As Appellant filed the instant petition on
October 7, 2015, it is patently untimely unless he has satisfied his burden of
pleading and proving that one of the enumerated exceptions applies.
Appellant claims that he timely filed the PCRA petition at issue within
sixty days of receiving the victim’s September 4, 2015 letter. When
considering a PCRA’s petitioner’s claim that he or she has established an
exception to the PCRA’s time bar under section 9545(b)(1)(ii), the petitioner
must establish only that the facts upon which the claim are predicated were
unknown to him, and that he could not have ascertained the facts earlier
despite the exercise of due diligence. See Commonwealth v. Bennett, 930
A.2d 1264, 1270-1272 (Pa. 2007). The determination of timeliness does not
require a merits analysis. See Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa. 2008).
In its Pa.R.A.P. 1925(a) opinion, the PCRA court acknowledges its
failure to discuss the timeliness of Appellant’s third petition prior to
addressing its merits. See PCRA Court Opinion, 5/3/16, at 4. In rejecting
Appellant’s claim that his appeal is timely, the PCRA court found that
Appellant did not demonstrate the exercise of due diligence. As explained by
the PCRA court: “The September 4, 2015 ‘letter’ from [the victim] was
clearly written after Second Petition was dismissed, yet after the allegation
of newly discovered evidence was raised.” Id. at 8.
-7-
J-S66018-16
Thus, the PCRA court concluded that, although it originally
addressed the merits of Appellant’s newly-discovered evidence, it should
have dismissed the third PCRA petition as untimely. We agree. The record
establishes that Appellant knew of the victim’s purported September 4, 2015
letter because he relied on it as a basis to establish (unsuccessfully) the
timeliness of his second PCRA petition filed in May 2015. Thus, Appellant
knew of the contents of the letter at that time. Our review of the record
supports the PCRA court’s conclusion that “Appellant attempted to remedy
the error in his [second PCRA petition]” by including a dated letter in his
PCRA petition. Id. at 7. Unfortunately for Appellant, despite the date of the
letter, the record establishes that he knew of the information earlier.
Indeed, our own review indicates that Appellant, in the exercise of due
diligence, could have discovered the victim’s coercion claim earlier than the
time he filed his second PCRA petition in May 2015. Specifically, the victim’s
July 2011 letter to the district attorney was read at Appellant’s trial, and the
victim was cross-examined about it by defense counsel. Further, prior to
sentencing, the victim sent a letter to the trial court in which he stated that
he was forced to testify. See Letter, 11/28/12, at 1. Although Appellant was
tried and sentenced in absentia, the record establishes that Appellant’s
mother was aware of the victim’s claim because she was present at
-8-
J-S66018-16
Appellant’s trial and, at all times, served as the liaison between the victim,
the trial court, and Appellant.1 See N.T., 11/15/12, at 8.
In sum, the PCRA court correctly determined that Appellant failed to
exercise due diligence in filing his newly-discovered evidence claim. We
affirm the PCRA court’s order denying Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2016
____________________________________________
1
We further note that, although the PCRA court characterized the victim’s
letter as a recantation of his trial testimony, at no time had the victim ever
stated that Appellant did not assault him.
-9-