J-S08011-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

PRESTON PIAZZA, :

:

Appellant : No. 1378 EDA 2014

Appeal from the PCRA Order March 17, 2014,

Court of Common Pleas, Bucks County,

Criminal Division at No(s): CP-09-CR-0002897-2004

and CP-09-CR-0005932-2004

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.: FILED MARCH 02, 2015

Preston Piazza (“Piazza”) appeals from the March 17, 2014 order 

entered by the Bucks County Court of Common Pleas dismissing his third 

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 

9541-9546 (“PCRA”), as untimely. Upon review, we affirm.

We need not repeat the horrific details underlying Piazza’s convictions 

to decide this appeal. The trial court summarized the relevant procedural 

history of this case as follows:

On February 29, 2004, [Piazza] was charged with 

[r]ape, [involuntary deviate sexual intercourse], 

[s]exual [a]ssault, [s]imple [a]ssault and [i]ndecent 

[a]ssault in Criminal Information 2897-2004. On 

August 13, 2004, [Piazza] was charged with 

[t]erroristic [t]hreats in Criminal Information 5932-

2004. On August 23, 2004, the Commonwealth filed 

a Petition to Consolidate the above mentioned cases. 
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The Commonwealth’s Petition to Consolidate was 

granted on September 7, 2004.

[Piazza]’s case was tried before a jury on October 

27, 2004. On November 1, 2004, following a four[-

]day jury trial, the jury returned a verdict of guilty 

for all of the above charges. On May 5, 2005, 

[Piazza] was sentenced to an aggregate sentence of 

not less than fifteen years to no more than thirty 

years in prison.

On March 8, 2006, [Piazza] filed his first motion 

for post-conviction relief under the [PCRA]. [Piazza]’s 

counsel filed an amended PCRA petition on May 30, 

2008. This petition raised various claims of 

ineffective assistance of counsel[,] including a claim 

that one of the jurors, Brenda Alexander, knew 

[Piazza] and his family. On June 10, 2008, a hearing 

was held before the Honorable Mitchell S. Goldberg 

at which [Piazza] specifically withdrew the claim 

regarding juror Brenda Alexander. Following the 

hearing, the remaining claims of [Piazza]’s first PCRA 

petition were denied. [Piazza] thereafter filed an 

appeal to the Superior Court of Pennsylvania. The 

Superior Court affirmed the denial of [Piazza]’s PCRA 

petition on December 3, 2009. A petition for 

allowance of appeal was denied by the Pennsylvania 

Supreme Court on May 27, 2010.

On June 25, 2010, [Piazza] filed a second PCRA 

petition pro se. In this second petition, [Piazza] 

claimed juror misconduct, again alleging that juror 

Brenda Alexander knew [Piazza] and his family. He 

also claimed ineffectiveness of trial counsel 

surrounding the failure to challenge this juror and a 

claim that the [c]omplainant had recanted her 

testimony. On July 15, 2010, this [c]ourt issued a 

notice of intent to dismiss the petition pursuant to 

Pennsylvania Rule of Criminal Procedure 907, finding 

that the claims were waived or previously litigated. 

On August 17, 2010, this [c]ourt issued an [o]rder 

denying [Piazza]’s second PCRA petition without a 

hearing. No appeal was taken of that denial.
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In October 2010, [Piazza] was charged on a new 

case in this [c]ourt, Case Number 6421 of 2010. The 

charges included: intimidation of a witness, the 

witness being the [c]omplainant [in the original rape 

case]; retaliation against a witness; solicitation to 

commit aggravated assault; and other related 

charges. The facts in this case were based on 

allegations that [Piazza] attempted to compel the 

[c]omplainant [to] recant[]her allegations sometime 

between October 2009 and January 2010, prior to 

the filing of his second PCRA. [Piazza] was convicted 

by a jury on those counts and thereafter sentenced 

to 23 1/2 to 43 years consecutive to the sentences 

he is serving in the case at hand.

On January 11, 2011 while Case Number 6421 of 

2010 was pending, [Piazza] filed a third PCRA 

petition, the denial of which is the basis of the 

instant appeal. In this petition, [Piazza] claimed 

ineffective assistance of counsel for failure to 

conduct a proper voir dire. Again, [Piazza] argued 

that juror Brenda Alexander had prior knowledge of 

[Piazza] and his family. [Piazza] also claimed that 

another, juror, prospective juror # 38, should have 

been stricken for cause for allegedly being biased 

based on knowledge of the case prior to trial. 

Further, [Piazza] claimed ineffective assistance of 

counsel for failure to move for a change of venue 

based on pre-trial publicity. Finally, [Piazza] argued 

newly[]discovered evidence, an affidavit by an 

individual named Renee Cereby dated December 16, 

2010, stating that juror Brenda Alexander discussed 

the case at her hair salon in 2004 while the trial was 

in progress. The affidavit claims Brenda Alexander 

stated that she knew the [Piazza] and his family 

prior to the trial, and that there were rumors that 

[the c]omplainant was lying about the charges.

On May 2, 2011, this [c]ourt issued a notice of 

intent to dismiss the petition pursuant to 

Pennsylvania Rule of Criminal Procedure 907. 

[Piazza] filed a response thereto on May 20, 2011. 
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On June 24, 2011, the Bucks County District 

Attorney’s Office (hereinafter “District Attorney”) 

filed a Motion to Dismiss PCRA Petition arguing the 

petition was time-barred. On February 4, 2012, the 

District Attorney filed a second Motion to Dismiss 

PCRA Petition for lack of jurisdiction as time-barred. 

On February 27, 2012, this [c]ourt issued an [o]rder 

denying [Piazza]’s third PCRA petition. On March 8, 

2012, [Piazza] filed a Motion to Reconsider and 

Vacate the February 27, 2012 [o]rder. On March 13, 

2012, this [c]ourt vacated the [o]rder. Thereafter, 

on March 23, 2012, [Piazza] filed a response to the 

District Attorney’s second Motion to Dismiss PCRA 

Petition. On May 29, 2012, the District Attorney filed 

a reply to [Piazza]’s response. A hearing was held on 

August 2, 2012, and briefs [were] subsequently filed 

by the District Attorney and [Piazza]. On March 17, 

2014, this [c]ourt denied [Piazza]’s third PCRA 

petition.

PCRA Court Opinion, 6/20/14, at 2-5 (internal citation omitted).

Piazza filed a timely notice of appeal and complied with the PCRA 

court’s order for a concise statement of errors complained of on appeal 

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. 

Thereafter, the PCRA court issued a responsive opinion pursuant to Pa.R.A.P. 

1925(a).

On appeal, Piazza raises the following issues for our review:

(1) Whether the [PCRA] court erred in denying [Piazza]’s 

[t]hird [PCRA petition] as being time barred, when 

there was an exception[,] newly-discovered 

evidence[,] that applied?[]

(2) Whether the [PCRA] court incorrectly found that the 

exception of newly discovered evidence did not apply 

to the present case?[]
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(3) Whether [Piazza]’s [t]hird [PCRA petition] was filed 

within 60 days of the time [Piazza] learn[ed] of the 

newly discovered evidence?[]

Piazza’s Brief at 4.

We review a PCRA court’s decision to determine whether the record 

supports it and to ensure it is free of legal error. Commonwealth v. 

Hackett, 99 A.3d 11, 50 (Pa. 2014). “We cannot disturb the factual findings 

of the PCRA court, which hears evidence and passes on the credibility of 

witnesses, if they are supported by the record, even where the record could 

support contrary findings.” Id. (citation omitted). Our scope of review is 

limited to the PCRA court’s findings and the evidence presented at the PCRA 

hearing, which we view in the light most favorable to the prevailing party. 

Id. at 50-51.

As stated above, the PCRA court found Piazza’s petition untimely. The 

PCRA requires a petitioner to file a PCRA petition within one year of the date 

the judgment became final. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA 

timeliness requirement ... is mandatory and jurisdictional in nature. The 

court cannot ignore a petition’s untimeliness and reach the merits of the 

petition.” Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) 

(citations omitted). “[A] judgment becomes 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).
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It is uncontested that Piazza’s third PCRA petition is facially untimely. 

As Piazza did not file a direct appeal from his judgment of sentence, it 

became final on June 6, 2005.1 See Pa.R.A.P. 903(a) (requiring a notice of 

appeal from the trial court to the Superior Court to be filed within thirty days 

of the entry of the complained of order). He filed the instant PCRA petition 

on January 11, 2011, five and a half years later and well beyond the oneyear filing requirement. See 42 Pa.C.S.A. § 9545(b)(1).

Section 9545(b)(1) provides three statutory exceptions to the 

timeliness provisions that allow for very limited circumstances under which 

the late filing of a PCRA petition will be excused:

(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.

 

1

 The thirtieth day was June 4, 2005, which was a Saturday, and thus we 

extend the filing time to the following Monday, June 6, 2005. See 1 

Pa.C.S.A. § 1908 (“Whenever the last day of any such period shall fall on 

Saturday or Sunday, or on any day made a legal holiday by the laws of this 

Commonwealth or of the United States, such day shall be omitted from the 

computation.”).
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42 Pa.C.S.A. § 9545(b)(1). “Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the claim could have 

been presented.” 42 Pa.C.S.A. § 9545(b)(2). It is the petitioner’s burden to 

plead and prove, by a preponderance of the evidence, that his facially 

untimely petition falls under one of the three timeliness exceptions; that he 

filed it within sixty days of the date it could have been presented; and that 

the information could not have been obtained earlier. Commonwealth v. 

Williams, __ A.3d __, 2014 WL 7102767, at *4 (Pa. Dec. 15, 2014); 

Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014), cert. denied sub 

nom., Ali v. Pennsylvania, 135 S. Ct. 707 (U.S. 2014).

Piazza attempted to invoke the exception contained in section 

9545(b)(1)(ii), commonly known as the newly discovered fact exception to 

the PCRA’s timeliness requirement. Specifically, he presented the December 

16, 2010 affidavit of Renee Cereby (“Cereby”) indicating that in the fall of 

2004, presumably during Piazza’s rape trial, Cereby overheard Brenda 

Alexander discuss the case with her hair salon patrons and admit that she 

knew Piazza and the complainant and had heard rumors that the 

complainant was lying about the rape. PCRA Petition, 1/11/11, at Exhibit A; 

Piazza’s Brief at 10-11. 

The PCRA court provided several reasons for its dismissal of Piazza’s 

third PCRA petition. We focus on the PCRA court’s conclusions that Piazza 

failed to satisfy his burden of proof that he filed the PCRA petition within 
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sixty days of learning from Cereby that Brenda Alexander made the 

statements she allegedly made and that the information contained in the 

affidavit is not in fact new. PCRA Court Opinion, 6/20/14, at 9-10. 

We begin with the PCRA court’s finding that the affidavit did not 

disclose any new information. In his brief on appeal, Piazza states that the 

affidavit does reveal new information because it “show[s] that Ms. Alexander 

lied during voir dire regarding whether she knew the victim and [Piazza].” 

Piazza’s Brief at 13. The record reflects, however, that Piazza was well 

aware of this information long before the filing of his third PCRA petition. In 

his first amended PCRA petition, filed on May 29, 2008, Piazza included a 

claim of ineffective assistance of trial counsel “for failing to move for a 

mistrial when trial counsel was apprised that one of the jurors, Brenda 

Alexander, had known the defendant for several years and was not a 

fair and impartial juror.” Amended PCRA Petition, 5/29/08, ¶ 18(d) 

(emphasis added). Again, in his second PCRA petition, Piazza alleged the 

following: 

Juror number 4[,] a Ms. Brenda Alexander, whom 

I’ve known [for] years and my family has 

known for years as well as her brother, Jeff 

Alexander, we have had very negative dealings with. 

It all started with a car, bicycle accident involving 

her red GM sports car and has escalated ever since. 

I notified trial counsel but he refused to act upon the 

information.
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PCRA Petition, 6/25/10, ¶ 5 (emphasis added). Thus, the fact that Brenda 

Alexander and Piazza knew each other was not previously unknown to 

Piazza. Furthermore, it is clearly of record that Brenda Alexander did not 

inform the trial court during voir dire that she knew Piazza. See N.T., 

10/27/04, at 47-49. Thus, the information revealed to Piazza by Cereby and 

contained in the affidavit does not qualify under the newly discovered fact 

exception to the PCRA’s timeliness requirements. 42 Pa.C.S.A. § 

9545(b)(1)(ii).

Moreover, even if the information contained in the affidavit could be 

viewed as “new,” the record reflects that neither Piazza’s PCRA petition nor 

Cereby’s affidavit indicate precisely when Piazza became aware of the 

statements alleged to have been made by Brenda Alexander. At the PCRA 

hearing, Piazza testified that he first learned about Brenda Alexander’s 

statements when Cereby came to visit him, which he believed occurred in 

“2011, sometime.” N.T., 8/2/12, at 13. After learning that Cereby’s 

affidavit was dated December 16, 2010, he agreed that it was “about the 

time” she came to visit him, as she did not author the affidavit until after 

she visited. Id. at 14-15.

Cereby was able to provide a somewhat more concise timeline, but she 

was unable to recall when she made Piazza aware of the information in her 

affidavit. She testified that she saw Piazza’s picture in the newspaper in 

connection with his witness intimidation charges (which arose in October of 
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2010), and immediately wrote him a letter. Id. at 30. Piazza then called 

Cereby, at which time she testified she told Piazza about the statements 

Brenda Alexander allegedly made in the fall of 2004. Id. at 30-31. At his 

request, she wrote the story down, had it notarized, and sent it to him. Id.

at 31-32. Contrary to Piazza’s testimony, she testified that she did not see 

him in person until the trial on his second set of charges (which occurred in 

2012).

In his brief on appeal, Piazza states only that “Cereby came forward 

with the new information and presented it to [Piazza] about the same time 

she signed the affidavit.” Piazza’s Brief at 15. As stated above, however, 

Piazza had the burden of proving by a preponderance of the evidence that 

his facially untimely PCRA petition was filed within sixty days of the date he 

could have presented the claim – here, within sixty days of learning the 

allegedly newly discovered fact. See Williams, 2014 WL 7102767, at *4; 

Ali, 86 A.3d 173, 178. We therefore agree with the PCRA court that Piazza 

failed to satisfy his burden of proving that his third PCRA petition, filed on 

January 11, 2011, was filed within sixty days of him learning of the 

statements allegedly made by Brenda Alexander. As such, he is not entitled 

to relief.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/2/2015