J-S78046-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAYMOND SWARTZ

Appellant No. 585 MDA 2014

Appeal from the PCRA Order March 5, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0000331-2004

BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 09, 2015

Appellant, Daymond Swartz, appeals from the order entered in the 

York County Court of Common Pleas, which dismissed his second petition 

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

On June 7, 2002, Deena Cunningham and Patrick Hatzinikolas (“Victims”) 

left the End Zone Bar and entered their vehicle. As Victims backed out of 

the parking spot, shots fired into the vehicle killed Ms. Cunningham and 

seriously injured Mr. Hatzinikolas. The Commonwealth charged Appellant 

and three co-defendants in connection with the shooting. On May 3, 2004, 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.
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Appellant and his co-defendants proceeded to a jury trial.2 The jury 

convicted Appellant on May 7, 2004, of voluntary manslaughter, involuntary 

manslaughter, and aggravated assault. The court sentenced Appellant to an 

aggregate term of twenty (20) to forty (40) years’ imprisonment on July 19, 

2004. On August 25, 2005, this Court affirmed Appellant’s judgment of 

sentence, and the Pennsylvania Supreme Court denied allowance of appeal 

on December 27, 2005. See Commonwealth v. Swartz, 885 A.2d 586 

(Pa.Super. 2005), appeal denied, 586 Pa. 738, 891 A.2d 732 (2005). 

On May 11, 2006, Appellant timely filed a pro se PCRA petition. The 

court appointed counsel, who subsequently filed an amended petition on 

February 15, 2007. Following a hearing, the court denied PCRA relief on 

February 22, 2007. This Court affirmed the denial of PCRA relief on 

September 9, 2008, and our Supreme Court denied allowance of appeal on 

February 27, 2009. See Commonwealth v. Swartz, 963 A.2d 574 

(Pa.Super. 2008), appeal denied, 600 Pa. 755, 966 A.2d 571 (2009). 

On June 25, 2013, Appellant filed the current petition for PCRA relief 

(his second). In his petition, Appellant alleged that, on March 1, 2013, Dio 

Garcia gave a statement to police that Wilfredo Rodriguez (a Commonwealth 

witness at Appellant’s trial) had admitted to Mr. Garcia that Mr. Rodriguez 

____________________________________________

2 The Commonwealth initially tried one of Appellant’s co-defendants, Antonio 

Stauffer, separately. Following a mistrial, the Commonwealth tried Mr. 

Stauffer along with Appellant and the other co-defendants. 
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was the shooter in the End Zone Bar homicide. Appellant further claimed his 

counsel became aware of Mr. Garcia’s statement by way of counsel for one 

of Appellant’s co-defendant’s (co-defendant Greg Lee) on or about May 28, 

2013; and Appellant’s counsel disclosed this information to Appellant on May 

29, 2013.3 Appellant attached as exhibits to his PCRA petition, inter alia, Mr. 

Garcia’s March 1, 2013 transcribed statement to police. Two of Appellant’s 

co-defendants (Mr. Lee and Mr. Stauffer) filed similar petitions based on Mr. 

Garcia’s statement to police on March 1, 2013. The court held a hearing on 

all three petitions on September 23, 2013. 

By order dated March 5, 2014, the court denied PCRA relief. Appellant 

timely filed a notice of appeal on April 1, 2014. On April 2, 2014, the court 

ordered Appellant to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his Rule 

1925(b) statement on April 23, 2014.

Appellant raises the following issue for our review:

WHETHER THE [PCRA] COURT ERRED WHEN IT DENIED 

THE PETITION FOR PCRA RELIEF BASED ON THE 

EXCULPATORY EVIDENCE NOT AVAILABLE AT THE TIME OF 

TRIAL BUT SUBSEQUENTLY BECAME AVAILABLE, THAT 

BEING THE STATEMENT MADE BY DIO GARCIA TO 

DETECTIVE SPENCE ON OR ABOUT MARCH 1, 2013? 

____________________________________________

3 Appellant maintained that co-defendant Lee’s counsel received a copy of 

Mr. Garcia’s statement from police on or about April 9, 2013, but that 

Appellant’s counsel did not receive a copy of the statement from codefendant Lee’s counsel until May 29, 2013. 
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A. WHETHER THE [PCRA] COURT ERRED WHEN IT 

FOUND THAT DIO GARCIA’S STATEMENT WAS 

INADMISSIBLE HEARSAY AND NOT SUPPORTED BY

CORROBORATING CIRCUMSTANCES THAT INDICATE 

ITS TRUSTWORTHINESS? 

B. WHETHER THE [PCRA] COURT ERRED WHEN IT 

FOUND DIO GARCIA’S STATEMENT UNRELIABLE?

C. WHETHER THE [PCRA] COURT ERRED WHEN IT 

FOUND THAT DIO GARCIA WAS NOT CREDIBLE AND 

THAT HIS TESTIMONY WOULD NOT HAVE CHANGED 

THE OUTCOME OF TRIAL? 

(Appellant’s Brief at 5). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the record evidence supports the court’s determination 

and whether the court’s decision is free of legal error. Commonwealth v. 

Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 

A.3d 795 (2011). This Court grants great deference to the findings of the 

PCRA court if the certified record contains any support for those findings. 

Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 

593 Pa. 754, 932 A.2d 74 (2007). If the record supports a PCRA court’s 

credibility determination, it is binding on the appellate court. 

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). 

As a prefatory matter, the timeliness of a PCRA petition is a

jurisdictional requisite. Commonwealth v. Robinson, 12 A.3d 477 

(Pa.Super. 2011). A PCRA petition, including a second or subsequent 

petition, shall be filed within one year of the date the underlying judgment 
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becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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). 

The three statutory exceptions to the timeliness provisions in the PCRA 

allow for very limited circumstances under which the late filing of a petition 

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a 

petition must allege and the petitioner must prove:

(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). Additionally, a PCRA petitioner must 

present his claimed exception within sixty days of the date the claim first 

could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a 

PCRA petition is not filed within one year of the expiration of direct review, 

or not eligible for one of the three limited exceptions, or entitled to one of 
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the exceptions, but not filed within 60 days of the date that the claim could 

have been first brought, the [PCRA] court has no power to address the 

substantive merits of a petitioner’s PCRA claims.” Commonwealth v. 

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000). 

The timeliness exception set forth in Section 9545(b)(1)(ii) requires a 

petitioner to demonstrate he did not know the facts upon which he based his 

petition and could not have learned those facts earlier by the exercise of due 

diligence. Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 

(2007). Due diligence demands that the petitioner take reasonable steps to 

protect his own interests. Commonwealth v. Carr, 768 A.2d 1164 

(Pa.Super. 2001). A petitioner must explain why he could not have learned 

the new fact(s) earlier with the exercise of due diligence. Commonwealth 

v. Breakiron, 566 Pa. 323, 781 A.2d 94 (2001). This rule is strictly 

enforced. Commonwealth v. Monaco, 996 A.2d 1076 (Pa.Super 2010), 

appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). Additionally, the focus of 

this exception “is on the newly discovered facts, not on a newly discovered 

or newly willing source for previously known facts.” Commonwealth v. 

Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720 (2008) (internal citations 

omitted) (emphasis in original). 

Significantly, a claim based on inadmissible hearsay does not satisfy 

the “new facts” exception. Commonwealth v. Abu-Jamal, 596 Pa. 219, 

941 A.2d 1263 (2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 
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L.Ed.2d 201 (2008). In Abu-Jamal, the petitioner filed a facially untimely 

PCRA petition attempting to invoke the “new facts” exception to the PCRA’s 

time-bar. In his petition, the petitioner alleged, inter alia, he received new 

evidence that Priscilla Durham, a key Commonwealth witness at trial, had 

recanted her trial testimony implicating the petitioner in the crimes charged. 

In support of this allegation, the petitioner presented a declaration by 

Kenneth Pate, one of the petitioner’s fellow inmates, stating Mr. Pate had a 

phone conversation with Ms. Durham, during which she admitted police had 

directed her to testify she heard the petitioner confess to the crimes 

charged, though it was untrue. The PCRA court dismissed the petition as 

untimely, and the petitioner appealed to our Supreme Court.4 Our Supreme 

Court explained, in relevant part:

[The petitioner] offers no explanation as to why [Mr.] Pate, 

who asserted he was aware of [Ms.] Durham’s alleged 

perjury in 1984, did not come forward with this 

information until nearly 20 years later. Thus, we cannot 

say [the petitioner] raised his issues regarding the 

applicability of [Section 9545(b)(1)(ii)] in a timely 

manner.... 

* * *

[Mr.] Pate’s testimony regarding [Ms.] Durham’s alleged 

perjury [also] does not meet § 9545(b)(1)(ii)’s exception 

____________________________________________

4 The petitioner was entitled to appeal directly to the Supreme Court 

because he was sentenced to death for his crimes. See 42 Pa.C.S.A. § 

9546(d) (stating final order by PCRA court in case in which death penalty 

has been imposed shall be directly appealable only to Supreme Court). 
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because a claim based on inadmissible hearsay does not 

implicate this exception. Because [Mr.] Pate’s testimony 

concerned an out-of-court statement by [Ms.] Durham 

relied upon for its truth, it was hearsay. See Pa.R.E. 

801(c) (hearsay is statement, other than one made by 

declarant while testifying at trial, offered in evidence to 

prove truth of matter asserted). [The petitioner] contends 

[Ms.] Durham’s statement to [Mr.] Pate was a statement 

against interest and is admissible under the hearsay 

exception in Pa.R.E. 804(b)(3).[5] However, for this 

exception to apply, the declarant must be unavailable as a 

witness, see Pa.R.E. 804(b),[6]and [the petitioner] offers 

no proof [Ms.] Durham is not available. Therefore, [Mr.] 

Pate’s declaration was inadmissible hearsay and does not 

fall under § 9545(b)(1)(ii)’s timeliness exception.

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5 See Pa.R.E. 804(b)(3) (explaining “statement against interest” hearsay 

exception is statement that: (A) reasonable person in declarant’s position 

would have made only if person believed it to be true because, when made, 

it was so contrary to declarant’s proprietary or pecuniary interest or had 

such great tendency to invalidate declarant’s claim against someone else or 

to expose declarant to civil or criminal liability; and (B) is supported by 

corroborating circumstances that clearly indicate its trustworthiness, if 

offered in criminal case as one that tends to expose declarant to criminal 

liability). 

6 See Pa.R.E. 804(a) (stating declarant is considered unavailable as witness 

if declarant is exempted from testifying about subject matter of declarant’s 

statement because privilege applies; declarant refuses to testify about 

subject matter despite court order to do so; declarant testifies to not 

remembering subject matter; declarant cannot be present or testify at trial 

or hearing because of death or then-existing infirmity, physical illness, or 

mental illness; or declarant is absent from trial or hearing and statement’s 

proponent has not been able, by process or other reasonable means, to 

procure declarant’s attendance or testimony); Pa.R.E. 804(b)(3) (explaining 

“statement against interest” hearsay exception applies only if declarant is 

unavailable as witness). 
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Id. at 229-30, 941 A.2d at 1269-70 (some internal citations omitted). Thus, 

the Supreme Court affirmed the order dismissing the petition as untimely. 

Id. at 231, 941 A.2d at 1270. 

Instantly, the court sentenced Appellant on July 19, 2004. Our 

Supreme Court denied allowance of appeal on December 27, 2005. 

Appellant’s judgment of sentence became final on March 27, 2005, upon 

expiration of the time to file a petition for writ of certiorari with the United 

States Supreme Court. See U.S.Sup.Ct.R. 13. Thus, Appellant’s current 

petition, filed on June 25, 2013, is patently untimely. See 42 Pa.C.S.A. § 

9545(b)(1). Nevertheless, Appellant attempts to invoke the “new facts” 

exception at Section 9545(b)(1)(ii), claiming Mr. Garcia gave a statement to 

police on March 1, 2013, declaring that, while in prison, Mr. Rodriguez 

admitted he was the shooter in the End Zone Bar homicide. Appellant’s 

counsel received the statement on or about May 29, 2013. Appellant filed 

his PCRA petition on June 25, 2013. Appellant contends he could not have 

discovered this information earlier with the exercise of due diligence. 

On September 23, 2013, the PCRA court held a hearing on Appellant’s, 

co-defendant Lee’s, and co-defendant Stauffer’s petitions. When codefendant Lee’s counsel called Mr. Garcia to testify, the Commonwealth 

asked for an offer of proof. Co-defendant Lee’s counsel explained Mr. Garcia 

would testify consistent with the statement he gave to police on March 1, 

2013, in which Mr. Garcia related that Mr. Rodriguez admitted he was the 
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shooter in the End Zone Bar homicide. The Commonwealth objected to Mr. 

Garcia’s proposed testimony as inadmissible hearsay. Counsel for codefendant Stauffer claimed Mr. Garcia’s statement satisfied the “statement 

against interest” exception to the hearsay rule at Pa.R.E. 804(b)(3). The 

Commonwealth maintained the proffered testimony did not meet the Rule 

804(b)(3) exception because under that Rule, the declarant must be 

unavailable, and the petitioners offered no proof that Mr. Rodriguez was 

unavailable. The court overruled the Commonwealth’s objection and 

permitted Mr. Garcia to testify. Mr. Garcia testified consistent with his March 

1, 2013 statement to police. 

By order dated March 5, 2014, the court denied Appellant PCRA relief. 

In its accompanying opinion, the court explained, in relevant part:

The Commonwealth claims that Mr. Garcia’s testimony on 

September 23, 2013 should not have been permitted. We 

agree. Prior to Mr. Garcia testifying, the Commonwealth 

objected to Mr. Garcia’s testimony as inadmissible 

hearsay, [to] which defense counsel responded by saying 

it was an admission against penal interest. Although an 

admission against penal interest is a valid exception to the 

hearsay rules, this exception is not applicable in the 

present case because the declarant was not unavailable 

and the statement was not supported by corroborating 

circumstances that clearly indicate its trustworthiness. 

See [Pa.R.E. 804(b)(3)(B)]. 

(Opinion in Support of Order Denying PCRA Relief, filed March 6, 2014, at 3) 

(some internal citations omitted). 

Assuming without deciding that Appellant’s petition met the sixty-day 

rule per Section 9545(b)(2), we conclude the record supports the court’s 
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analysis. See Conway, supra. Appellant and his co-defendants presented 

only the testimony of Mr. Garcia at the PCRA hearing, without any proof that 

Mr. Rodriguez (the declarant) was unavailable to testify.7 See Pa.R.E. 

804(a), (b)(3). Further, Appellant offered no corroborating evidence to 

indicate the trustworthiness of Mr. Rodriguez’s statement. See Pa.R.E. 

804(b)(3)(B). Notably, Mr. Garcia testified that Mr. Rodriguez admitted he 

was the shooter in the End Zone Bar homicide in the presence of Mr. Garcia 

and Jesus Laarte (also known as “Cito”). Appellant did not present Cito to 

testify. See id. Consequently, Mr. Garcia’s declaration and testimony fail to 

satisfy the hearsay exception set forth in Pa.R.E. 804(b)(3).8 Appellant’s 

current PCRA petition is based on inadmissible hearsay that cannot satisfy 

the “new facts” exception under Section 9545(b)(1)(ii).9 See Abu-Jamal, 

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7 The record contains a court order authorizing the sheriff or his authorized 

deputies to obtain custody of Mr. Rodriguez, so that he could appear for an 

interview with the District Attorney’s Office in relation to Appellant’s case on 

September 23, 2013 (the date of the PCRA hearing). Thus, the record 

suggests Mr. Rodriguez was available at the time of the PCRA hearing, but 

Appellant declined to present him as a witness. 

8 On appeal, Appellant also argues his proffered evidence meets an 

exception to the hearsay rule as an inconsistent witness statement, or under 

the then-existing mental, emotional, or physical condition hearsay 

exception. Appellant raises these claims for the first time on appeal, so they 

are waived. See Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883 

(2004) (explaining claims not raised in PCRA court are waived and cannot be 

raised for first time on appeal). 

9 Based on our disposition, we need not consider Appellant’s claims that the 

PCRA court erred in finding his testimony unreliable and incredible. 

(Footnote Continued Next Page)
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supra. Therefore, the PCRA court properly denied the petition. Accordingly, 

we affirm.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/2015

(Footnote Continued) _______________________

Additionally, we decline to reach the merits of Appellant’s underlying afterdiscovered-evidence claim, because Appellant failed initially to establish our 

jurisdiction by pleading and proving a timeliness exception. See

Commonwealth v. Brown, ___ A.3d ___, 2015 PA Super 24 (filed 

February 6, 2015) (holding facially untimely PCRA petitioner attempting to 

raise substantive after-discovered-evidence claim must first establish 

jurisdiction by pleading and proving exception to PCRA time-bar).