J-S85030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ALAN KUSHNER

Appellant No. 792 EDA 2016

Appeal from the PCRA Order February 10, 2016

in the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0009814-2008

BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.: FILED JANUARY 10, 2017

Appellant, Alan Kushner, appeals from the February 10, 2016 order, 

denying his petition filed under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. We affirm.

We adopt the PCRA court’s statement of the facts of this case for 

purposes of this appeal. See PCRA Court Opinion (PCO), 5/18/16, at 1-7. 

On October 30, 2008, Appellant was arrested and charged with attempted 

murder, criminal solicitation to commit murder, and criminal conspiracy to 

commit murder1in connection with his attempts to hire another individual to 

kill his wife. 

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1 18 Pa.C.S. §§ 901, 902, and 903.
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On July 20, 2009, Appellant was convicted of solicitation to commit 

murder and acquitted of attempted murder and conspiracy to commit 

murder. Appellant was sentenced to seven and one-half to twenty years of 

incarceration, and his judgment of sentence was affirmed on December 8, 

2010. See Commonwealth v. Kushner, 23 A.3d 573 (Pa. Super. 2010) 

(unpublished memorandum), appeal denied, 30 A.3d 487 (Pa. 2011).

Appellant timely filed a first PCRA petition on October 11, 2012. After 

multiple evidentiary hearings, the PCRA court dismissed the petition. This 

Court affirmed the PCRA court’s order on October 6, 2015. See 

Commonwealth v. Kushner, 134 A.3d 91 (Pa. Super. 2015) (unpublished 

memorandum). 

On October 30, 2015, Appellant filed a counseled petition for postconviction relief based upon newly-discovered facts and a motion for 

expedited proceedings. Appellant claimed that as a result of information 

provided by his son, Appellant had been re-examined by a psychiatrist and 

diagnosed with Reactive Attachment Disorder (RAD). See PCRA petition at 

1-5. Appellant argued that this information was so significant that it would 

compel a new trial or sentencing hearing. Id. Appellant also claimed that 

trial counsel was ineffective for failure to file a Bill of Particulars. Id. The 

Commonwealth filed a response in opposition. Appellant then filed, without 

leave of court, an amended petition raising additional issues and arguing 
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that the Commonwealth had committed a Brady2violation due to its alleged 

failure to disclose an agreement between the Philadelphia District Attorney’s 

Office and the Montgomery County District Attorney’s Office to try the case 

in Montgomery County. See Amended Motion, 12/3/15, at 1-2. Appellant 

argued that this “concealment” resulted in the case being prosecuted in an 

improper jurisdiction. Id.

On December 9, 2015, the PCRA court gave notice pursuant to 

Pa.R.Crim.P. 907 of dismissal. On December 29, 2015, Appellant filed 

“objections” to the Rule 907 notice and a motion for leave to amend his 

PCRA petition to specifically plead the newly-discovered facts exception 

under 42 Pa.C.S. § 9545(b)(1)(ii), but did not request leave to amend the 

petition to add the additional claims raised in the “amended petition.” On 

February 10, 2016, the PCRA court denied Appellant’s motion to amend and 

formally dismissed the petition. Appellant filed a motion for reconsideration, 

which was denied.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement. The PCRA court issued a responsive opinion.

Herein, Appellant raises three issues for our review.

1. Where Appellant alleged and proved new facts, which could 

not have been discovered in the exercise of due diligence, and 

met the new facts exception under 42 Pa.C.S. § 9545(b)(1)(ii), 

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2 Brady v. Maryland, 83 S. Ct. 1194 (1963).
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did the lower court err in dismissing the PCRA petition without a 

hearing?

2. Where Pennsylvania Rule of Criminal Procedure §905(a) [sic] 

permits amendments of PCRA petitions at any time, and directs 

that they should be freely allowed to achieve substantial justice, 

did the lower court abuse its discretion in not permitting 

Appellant to file an amended petition to achieve substantial 

justice?

3. Where jurisdiction can never be waived and the Court of 

Common Pleas did not have subject-matter jurisdiction to try 

this case, did the lower court err in denying this issue in the 

court below?

Appellant’s Brief at 2 (unnecessary capitalization and emphasis omitted).

We review an order denying a petition under the PCRA to determine 

whether the findings of the PCRA court are supported by the evidence of 

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 

1170 (Pa. 2007). We afford the court’s findings deference unless there is no 

support for them in the certified record. Commonwealth v. Brown, 48 

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 

995 A.2d 1184, 1189 (Pa. Super. 2010)).

In this case, the PCRA court dismissed Appellant’s petition without a 

hearing. See PCRA Court Order, 12/9/15 (citing in support Pa.R.Crim.P. 

907). There is no absolute right to an evidentiary hearing. See 

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On 

appeal, we examine the issues raised in light of the record “to determine 

whether the PCRA court erred in concluding that there were no genuine 
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issues of material fact and denying relief without an evidentiary hearing.” 

Springer, 961 A.2d at 1264.

Initially, we address the timeliness of Appellant’s petition. In order for 

a post-conviction petition to be timely under the PCRA, it must be filed 

within one year of the finality of the petitioner's judgment of sentence. See 

42 Pa.C.S. § 9545(b)(1); see also Commonwealth v. Bretz, 830 A.2d 

1273, 1275 (Pa. Super. 2003). No court possess jurisdiction to hear an 

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079 

(Pa. Super. 2010). There are three exceptions to the PCRA’s timeliness rule:

(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.

See 42 Pa.C.S. § 9545(b)(1). A petitioner has the burden of pleading and 

proving an exception to the time bar. Commonwealth v. Hawkins, 953 

A.2d 1248, 1253 (Pa. 2008). A petition seeking relief pursuant to a 

statutory exception must adhere to the additional requirement of filing the 

claim within 60 days of the date the claim could have been first presented. 

See 42 Pa.C.S. § 9545(b)(2). The petition must plead and prove that the 
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information relied upon could not have been obtained earlier despite the 

exercise of due diligence. See Commonwealth v. Marshall, 947 A.2d 714, 

720 (Pa. 2008).

Appellant’s judgment of sentence became final for PCRA purposes on 

January 11, 2012.3 He thus had until January 11, 2013, to timely file a 

petition seeking PCRA relief. Appellant’s petition, filed October 30, 2015, 

was thus untimely. Although Appellant’s petition did not spsecifically plead 

the newly-discovered facts exception to the time-bar, the arguments raised 

were sufficient for the PCRA court to treat Appellant’s petition as an attempt 

to plead the newly-discovered facts exception. However, the court 

ultimately found that Appellant had not satisfied the exception. See 42 

Pa.C.S. § 9545(b)(1)(ii); PCO at 12-13. 

In his first issue, Appellant claims that the court erred in concluding he 

did not satisfy the newly-discovered facts exception. Appellant argues that 

until Appellant’s son spoke with counsel and asserted that Appellant suffered 

from “separation anxiety,” leading to a re-examination, Appellant was 

unaware that he had been incorrectly diagnosed. See Appellant’s Brief at 

15-17.

The newly-discovered facts exception

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3 See Commonwealth v. Fahy, 737 A.2d 214, 218 (Pa. 1999) (noting that 

Appellant’s judgment of sentence becomes final upon the expiration of the 

ninety-day period for seeking appellate review to the United States Supreme 

Court.
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has two components, which must be alleged and proved. 

Namely, the petitioner must establish that: 1) the facts upon 

which the claim was predicated were unknown and 2) could not 

have been ascertained by the exercise of due diligence. If the 

petitioner alleges and proves these two components, then the

PCRA court has jurisdiction over the claim under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal 

quotation marks and citations omitted; emphasis removed).

The focus of the exception is on the newly discovered facts, not upon a 

newly discovered or newly willing source for previously known facts. See 

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). With regard 

to mental health diagnoses, the discovery of new opinions uncovered after 

trial do not constitute new facts. Commonwealth v. Gamboa-Taylor, 753 

A.2d 780, 787 (Pa. 2000). Specifically, the Gamboa-Taylor court noted 

that all facts regarding Appellant’s mental state, if not known, were surely 

ascertainable by the exercise of due diligence prior to trial. Id.

Appellant’s contention that his “separation anxiety” was unknowable to 

him prior to his reunion with his son is unavailing. Appellant litigated his 

mental state at trial, sentencing, on direct appeal, and during multiple 

evidentiary hearings in the course of his first PCRA petition. Appellant was 

examined by multiple experts over many separate evaluations in connection 

with these proceedings. None of these medical professionals over the course 

of many hours of examinations diagnosed Appellant with Reactive 

Attachment Disorder. In short, Appellant has not satisfied the newlydiscovered facts exception. Instead, he attempts to again litigate the issue 
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of his mental health through a differing opinion. Accordingly, the PCRA court 

properly dismissed Appellant’s petition without an evidentiary hearing. 

Bennett, 930 A.2d at 1272.

Next, Appellant claims that the PCRA court erred in denying his 

request to amend his PCRA, as such amendments should be liberally 

granted. See Appellant’s Brief at 25.

The Pennsylvania Rules of Criminal Procedure reflect that a PCRA 

judge “may grant leave to amend ... a petition for post-conviction collateral 

relief at any time,” and that amendment “shall be freely allowed to achieve 

substantial justice.” Pa.R.Crim.P. 905(A); see Commonwealth v. 

Williams, 573 Pa. 613, 633, 828 A.2d 981, 993 (2003) (noting that the 

criminal procedural rules contemplate a “liberal amendment” policy for PCRA 

petitions). A petitioner must seek and be granted leave to amend; 

amendments are not self-authorizing. Commonwealth v. Baumhammers, 

92 A.3d 708, 730 (Pa. 2014). Amendment is permitted solely by direction or 

leave of the PCRA court. Id.

In the instant case, the PCRA court properly denied Appellant’s motion 

to amend, as amendment would have served no purpose. As discussed 

above, Appellant’s contention that the new diagnosis satisfied the newlydiscovered facts exception was not correct. The PCRA court properly 

reviewed Appellant’s response to the Pa.R.Crim.P. 907 notice, determined 

that Appellant had not satisfied the exception, and additionally found that 
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the other issues raised were previously litigated. PCO at 16. Accordingly, 

there was no error in the court’s denial of Appellant’s motion.

Finally, Appellant claims that the PCRA court erred in denying his 

jurisdictional challenge on several grounds. Appellant’s Brief at 29-35. 

To the extent Appellant attempts to argue that this petition should be 

cognizable as a writ of habeas corpus, the PCRA court properly treated it as 

an untimely PCRA. Unless the PCRA does not provide for a potential 

remedy, it subsumes the writ of habeas corpus. Fahy, supra, at 223-24. 

Issues cognizable under the PCRA must be raised in a timely PCRA petition, 

not a habeas petition. See Commonwealth v. Peterkin, 722 A.2d 638 

(1998). The PCRA specifically provides for jurisdictional challenges. See 42 

Pa.C.S. § 9543. Thus, the claim is also untimely and does not satisfy an 

exception to the timeliness requirement. See 42 Pa.C.S. § 9545.

Even if this claim was not raised in an untimely manner, it was 

previously litigated. In his appeal from the 2014 order denying his first 

PCRA, Appellant claimed that trial counsel was ineffective for failure to raise 

a jurisdictional challenge. See Kushner, 134 A.3d 91. The PCRA court 

determined that the contention was meritless, and this Court affirmed: as 

the crime was to be committed in the marital home in Montgomery County, 

jurisdiction was proper in Montgomery County. Id. Further, the PCRA court 

found meritless Appellant’s contention that trial counsel was not ineffective 

for failure to move for a dismissal of the charges due to an alleged ambiguity 
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in the Bill of Information. See Kushner, 134 A.3d 91. Appellant’s attempts 

to relitigate this argument in a different guise are unavailing. See, e.g., 

Commonwealth v. Small, 980 A.2d 549, 569 (Pa. 2009) (noting that 

whether an issue was previously litigated turns on whether that issue 

constitutes a discrete legal ground or merely an alternative theory in support 

of the same underlying issue raised on direct appeal); see also 42 Pa.C.S. § 

9543(a)(3).

Accordingly, we discern no error in the PCRA court’s decision to 

dismiss Appellant’s petition without an evidentiary hearing. Appellant’s 

claims are without merit, and he is entitled to no relief. See Ragan, 923 

A.2d at 1170. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/10/2017