J-S06037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER SWEET
Appellant No. 2431 EDA 2015
Appeal from the PCRA Order June 29, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0610014-2001
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 31, 2017
Appellant, Christopher Sweet, appeals pro se from the order of the
Philadelphia County Court of Common Pleas denying his second petition for
relief under the Post Conviction Relief Act1 (“PCRA”) without an evidentiary
hearing. Appellant claims that the PCRA court erred in rejecting his claims
of prosecutorial misconduct and after-discovered evidence. Additionally,
Appellant contends that his sentence is illegal under Alleyne v. United
States, 133 S. Ct. 2151 (2013), and Commonwealth v. Hopkins, 117
A.3d 247 (Pa. 2015). We affirm.
On March 23, 2001, Appellant and several co-conspirators, including
Jose Medina and Jeffrey Sweet, broke into the Apple Spa in Philadelphia and
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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robbed several spa employees. The spa’s manager called police as the
robbers forced their way into the building. The police arrived shortly after
the call. Officers observed Appellant emerge from one of the rooms in the
spa holding an elderly Asian female who was tied up with plastic flex cuffs.
Using the woman as a shield, Appellant pushed her in the direction of a
police lieutenant and then fled out the back door. N.T., 3/18/02, at 18;
N.T., 3/25/02, at 137. Shortly thereafter, a police officer found Appellant
hiding under a car with an illuminated cell phone in his hand. Police
recovered a handgun within five to ten feet of Appellant as well as $663.00
on his person. Appellant was taken into custody, as were the other
conspirators, including Medina and Jeffrey Sweet. Later that morning,
Appellant and Jeffrey Sweet confessed to participating in the robbery. N.T.,
3/25/02, at 43, 67-70.
On April 1, 2002, the jury convicted Appellant of burglary,2 robbery,3
aggravated assault,4 conspiracy,5 carrying a firearm without a license,6 and
2
18 Pa.C.S. § 3502.
3
18 Pa.C.S. § 3701.
4
18 Pa.C.S. § 2702.
5
18 Pa.C.S. § 903.
6
18 Pa.C.S. § 6106.
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possessing an instrument of crime.7 On May 10, 2002, the trial court
sentenced Appellant to an aggregate term of seventeen to thirty-four years’
imprisonment followed by five years of probation. This Court affirmed the
judgment of sentence on April 26, 2004. Commonwealth v. Sweet, 3296
EDA 2002 (Pa. Super. Apr. 26, 2004) (unpublished memorandum). The
Pennsylvania Supreme Court denied allowance of appeal on December 29,
2004. Commonwealth v. Sweet, 864 A.2d 1204 (Pa. 2004).
On November 30, 2005, Appellant filed his first PCRA petition. The
petition was dismissed, and this Court affirmed on November 27, 2007.
Commonwealth v. Sweet, 3302 EDA 2006 (Pa. Super. Nov. 27, 2007)
(unpublished memorandum). On December 18, 2007, through retained
counsel, Appellant filed a federal habeas petition. The United States District
Court for the Eastern District of Pennsylvania denied the petition without a
hearing. On July 12, 2010, the United States Court of Appeals for the Third
Circuit affirmed.
On January 14, 2013, Appellant, acting pro se, filed the present PCRA
petition, his second, claiming that he was entitled to relief based on an
affidavit executed by Medina fifty-one days before Appellant filed his
petition. Medina’s affidavit stated: (1) Appellant was not involved in the
robbery at the Apple Spa because he was merely a customer at the time of
the incident; and (2) Medina did not come forward earlier with this
7
18 Pa.C.S. § 907.
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exculpatory evidence because he had pleaded guilty to the robbery, and in
exchange for his guilty plea, he was not permitted to testify that Appellant
did not participate in the robbery.
Court-appointed counsel filed a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Counsel emphasized that Medina’s affidavit was false, because instead of
pleading guilty, Medina was tried and convicted for the robbery and related
offenses and also appealed his conviction unsuccessfully.8 On May 26, 2015,
the court issued a notice of intent to dismiss the PCRA petition within twenty
days pursuant to Pa.R.Crim.P. 907. On June 29, 2015, the PCRA court
dismissed the petition as untimely or meritless. This appeal followed.
Appellant raises the following issues on appeal:
1. Being that Appellant has a right to be heard, did the
trial court err[] in denying Appellant’s PCRA petition?
2. Being that Appellant can prove prosecutorial misconduct
with after-discovered evidence, did the trial court err[] in
not giving Appellant a new trial?
3. Being that Appellant now has a[n] illegal
unconstitutional mandatory minimum sentence, did the
trial court err[] in not correcting Appellant’s illegal
sentence?
Appellant’s Brief at 7.
8
This Court considered Medina’s direct appeal in Commonwealth v.
Medina, 2298 EDA 2004 (Pa. Super. Sept. 23, 2005) (unpublished
memorandum).
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We will address Appellant’s first two arguments together, because they
relate to the same argument that Appellant deserves a new trial due to
newly discovered evidence within Medina’s affidavit. Appellant contends that
Medina’s affidavit establishes prosecutorial misconduct that prevented him
from timely raising his underlying claim for relief and contains previously
unknown facts establishing his innocence. No relief is due.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
As our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. We have also held
that even where the PCRA court does not address the
applicability of the PCRA timing mandate, th[e] Court will
consider the issue sua sponte, as it is a threshold question
implicating our subject matter jurisdiction and ability to
grant the requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations
omitted).
A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . .” Commonwealth v. Copenhefer, 941 A.2d
646, 648 (Pa. 2007) (citation and footnote omitted). The three exceptions
to the general one-year time limitation are:
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(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. § 9545(b)(1)(i)-(iii). In addition, to be eligible for relief under
these exceptions, the petitioner must file his claim “within 60 days of the
date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). Our
Supreme Court “has made it clear that the 60–day rule requires a petitioner
to plead and prove that the information on which he relies could not have
been obtained earlier, despite the exercise of due diligence.”
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (citation
omitted).
Here, Appellant filed his current petition on January 13, 2013, almost
eight years after his judgment of sentence became final. Although Appellant
asserts he discovered new facts regarding governmental interference and
prosecutorial misconduct, the PCRA court rejected that assertion. The court
found that Medina’s allegation that the Commonwealth induced him not to
testify at Appellant’s trial as a condition of an alleged plea agreement was
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patently false. As the court noted, Medina proceeded to trial in his own case
and was convicted after testifying on his own behalf. Thus, we agree with
the PCRA court that Appellant could not establish an exception to the PCRA
time bar under the governmental interference exception in 42 Pa.C.S. §
9545(b)(1)(i).
Appellant also presented a claim that he satisfied the newly discovered
evidence exception under 42 Pa.C.S. § 9545(b)(1)(ii). However, aside from
the unsupported assertion regarding Medina’s guilty plea, Appellant fails to
establish that he exercised due diligence in discovering this “fact.” Thus,
Appellant has not established a time-bar exception under 42 Pa.C.S. §
9545(b)(1)(ii).
In any event, even assuming that Appellant could not have obtained
the exculpatory evidence in Medina’s affidavit before November 24, 2012,
the date Medina signed the affidavit, Appellant still is not entitled to relief.
To obtain PCRA relief, Appellant was required to prove: “ (1) the evidence
has been discovered after trial and it could not have been obtained at or
prior to trial through reasonable diligence; (2) the evidence is not
cumulative; (3) it is not being used solely to impeach credibility; and (4) it
would likely compel a different verdict.” Commonwealth v. Cox, 146 A.3d
221, 228 (Pa. 2016) (citation omitted); see also 42 Pa.C.S. §
9543(a)(2)(vi).
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We conclude that Medina’s assertions that Appellant was a customer of
the spa and not a robber would not likely compel a different verdict. During
the robbery, a police lieutenant observed Appellant using one of the spa
employees as a human shield and then pushing her toward the officers while
fleeing the spa. Another officer discovered Appellant shortly thereafter
hiding under a car. A handgun was on the ground five to ten feet away from
Appellant, and $663.00 in cash was on his person. Appellant and his co-
conspirator, Jeffrey Sweet, gave detailed confessions to the robbery later
that morning.9
For these reasons, Appellant’s first two arguments on appeal do not
entitle him to relief.
In his final argument, Appellant contends that he is entitled to relief
from the imposition of a mandatory minimum sentence under Alleyne and
Hopkins. This argument also fails.
Our review reveals that Appellant filed the instant petition before the
United States Supreme Court’s decided Alleyne and the Pennsylvania
Supreme Court decided Hopkins. However, while Appellant’s present
appeal was pending, our Supreme Court held that Alleyne does not apply
retroactively to cases pending on collateral review. See Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016). Similarly, this Court has held
9
Not only was the evidence against Appellant overwhelming, but Medina’s
affidavit was, as discussed above, palpably false, rendering the affidavit
completely unreliable.
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that Hopkins does not apply retroactively. Commonwealth v.
Whitehawk, 146 A.3d 266, 271 (Pa. Super. 2016). Thus, Alleyne and
Hopkins do not provide a basis for a timeliness exceptions to the PCRA time
bar. See Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2004)
(noting Section 9545 (b)(1)(iii) has two requirements: (1) a constitutional
right must be recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time provided in this section and
(2) “the right has been held by that court to apply retroactively”). In any
event, neither decision warrants relief. See Washington, 142 A.3d at 820;
Whitehawk, 146 A.3d at 271.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2017
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