J-S67023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GEORGE PAGE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3863 EDA 2017

Appeal from the PCRA Order November 3, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0138781-1990

BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: FILED JANUARY 16, 2019

Appellant George Page appeals pro se from the order dismissing as 

untimely his second petition filed under the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546. Appellant claims that he properly raised the newly 

discovered facts and governmental interference exceptions to the PCRA time

bar. See 42 Pa.C.S. § 9545(b)(1)(ii)-(iii). We affirm.

The relevant procedural history of this case is as follows. On October 

25, 1990, following a bench trial, Appellant was convicted of second-degree 

murder and related offenses. The trial court sentenced Appellant to a 

mandatory sentence of life imprisonment. 

Appellant filed a post-verdict motion alleging, in relevant part, that the 

Commonwealth’s primary witness, Harold Jackson, had recanted his testimony 

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* Retired Senior Judge assigned to the Superior Court.
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after trial. See Post-Sentence Mot., 11/1/90; see also Supp. Post Verdict 

Mot., 9/16/93. At the hearing on February 28, 1994, Jackson testified for the 

defense. At the conclusion of the hearing, the trial court denied Appellant’s 

motions.

Appellant filed a direct appeal, and this Court affirmed Appellant’s

judgment of sentence on April 24, 1995. See Commonwealth v. Page, 664 

A.2d 1058 (Pa. Super. 1995) (unpublished mem.). The Pennsylvania Supreme 

Court denied Appellant’s petition for allowance of appeal on December 4, 

1995. 

On December 15, 1997, Appellant filed his first pro se PCRA petition. 

Appointed counsel subsequently filed an amended petition alleging, in relevant 

part, that direct appeal counsel was ineffective for failing to raise the issue of 

Jackson’s recantation and the allegation of bribery on direct appeal. See Am.

PCRA Pet., 9/18/98, at 8. The PCRA court ultimately dismissed the petition 

as untimely on January 27, 1999. This Court affirmed the PCRA court’s 

dismissal on May 30, 2000. See Commonwealth v. Page, 691 EDA 1999

(Pa. Super. filed May 30, 2000) (unpublished mem.).

Appellant filed the instant pro se PCRA petition, his second, on May 11, 

2016. Appellant attempted to invoke the governmental interference and 

newly discovered evidence exceptions to the PCRA time bar. In support, 

Appellant attached a sworn affidavit from Jackson, who again stated that he 

lied at trial, and that he did so because he was threatened by detectives and 

offered money in exchange for his testimony. See Pro Se PCRA Pet., 5/9/16, 
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Ex. A. Jackson also indicated that he “did try to explain this truth . . . some 

time ago[.]” Id.

On July 14, 2017, the PCRA court filed a notice of intent to dismiss 

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907, stating

that the petition was untimely and that Appellant failed to establish a timebar exception. See Pa.R.Crim.P. 907 Not., 7/14/17. Appellant’s pro se

response was docketed on July 24, 2017. 

On November 3, 2017, the PCRA court formally dismissed Appellant’s 

petition. Appellant timely appealed. Both the PCRA court and Appellant 

complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Whether (in) reviewing the (proeprty) [sic] of the [PCRA] 

court’s dismissal of [A]ppellant’s [PCRA] filing, it was an abuse 

of discretion for the [PCRA] court to determine that it was 

untimely . . . where the petition was timely filed under title [42 

Pa.C.S.[] § 9545(b)(1)(ii) and 9545(b)(2), because [A]ppellant 

established and invoked the newly discovered facts 

exception[.]

2. Whether the PCRA court erred and denied [A]ppellant his 

federal and state constitutional rights to due process of law by 

dismissing [A]ppellant’s [PCRA] petition without an evidentiary 

hearing and appointment of counsel . . . where [A]ppellant 

raised questions of disputed facts regarding t[h]e timeliness of 

his [PCRA] petition[.]

Appellant’s Brief at 4 (full capitalization omitted).

Our standard of review from the dismissal of a PCRA petition “is limited 

to examining whether the PCRA court’s determination is supported by the 
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evidence of record and whether it is free of legal error.” Commonwealth v. 

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

It is well settled that “the timeliness of a PCRA petition is a jurisdictional 

[pre-]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 

2015) (citation omitted). A PCRA petition “including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes final.” 

42 Pa.C.S. § 9545(b)(1). A judgment is 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. § 9545(b)(3). 

Courts may consider a PCRA petition filed more than one year after a 

judgment of sentence becomes final only if the petitioner pleads and proves 

one of the following three statutory exceptions: 

(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii).1

In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), the 

Pennsylvania Supreme Court emphasized that the Section 9545(b)(1)(ii) 

exception “requires petitioner to allege and prove that there were ‘facts’ that 

were ‘unknown’ to him and that he could not have ascertained those facts by 

the exercise of ‘due diligence.’” Id. at 720 (citation omitted). This Court has 

explained that “[d]ue diligence demands that the petitioner take reasonable 

steps to protect his own interests. A petitioner must explain why he could not 

have learned [of] the new fact(s) earlier with the exercise of due diligence. 

This rule is strictly enforced.” Commonwealth v. Medina, 92 A.3d 1210, 

1216 (Pa. Super. 2014) (en banc) (citation omitted).

Further, the Pennsylvania Supreme Court has noted that

[a]lthough a Brady violation may fall within the governmental 

interference exception, the petitioner must plead and prove the 

failure to previously raise the claim was the result of interference 

by government officials, and the information could not have been 

obtained earlier with the exercise of due diligence. Section 

9545(b)(1)(ii)’s exception requires the facts upon which the 

Brady claim is predicated were not previously known to the 

petitioner and could not have been ascertained through due 

diligence. In [Commonwealth v. Bennett, 930 A.2d 1264, 1271 

(Pa. 2007)], we clarified that § 9454(b)(1)(ii)’s exception does not 

contain the same requirements as a Brady claim, noting “we 

made clear the exception set forth in subsection (b)(1)(ii) does 

not require any merits analysis of the underlying claim. Rather, 

the exception merely requires that the ‘facts’ upon which such a 

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1 Moreover, to invoke one of these exceptions, a petitioner must also file the 

petition “within 60 days of the date the claim could have been presented.” 42 

Pa.C.S. § 9545(b)(2).
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claim is predicated must not have been known to appellant, nor 

could they have been ascertained by due diligence.” 

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citations 

omitted).

Instantly, there is no dispute that Appellant’s conviction became final in 

1996, and that Appellant’s instant PCRA petition is facially untimely. Because 

Appellant failed to file the instant PCRA petition within one year of the date

his sentence became final, he must satisfy one of the exceptions to the PCRA 

time bar. Appellant raises the newly discovered facts and governmental 

interference exceptions.

First, Appellant alleges that he initially became aware of the fact that 

Jackson received a monetary reward in exchange for his testimony no earlier 

than March 15, 2016, sixty days before his petition was filed. Appellant’s Brief 

at 12. He asserts that “although Harold Jackson sent a letter to Appellant’s 

[p]ost-sentence counsel Rita M. Eichman recanting his trial testimony over 

twenty years ago on the date of October 4, 1993, the letter merely indicated 

that he lied at Appellant’s [t]rial.” Id. at 16. Appellant therefore concludes 

that Jackson’s new affidavit, which states that “he received a monetary reward 

and preferential treatment on open cases” constitutes a new fact. Id. at 19.

Next, Appellant argues that the Commonwealth’s failure to disclose that 

Jackson was given money in exchange for his testimony was a Brady violation 

and constituted governmental interference. Id. at 20. He argues that he was 

unable to contact Jackson to obtain a sworn affidavit and confirm the specific 
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details of his perjury. Id. at 18. Therefore, Appellant concludes that his 

petition was timely, as it was filed within sixty days of the date he received 

Jackson’s sworn affidavit. Id. at 19.

In its Rule 1925(a) opinion, the PCRA court concluded that Appellant did 

not meet the newly discovered facts or governmental interference exceptions

because the fact of Jackson’s recantation was not unknown to Appellant. See 

PCRA Ct. Op., 5/24/18, at 4-5. Specifically, the PCRA court explained that

[n]otably, in his affidavit, Jackson indicated that he tried to 

“explain this truth” during the direct appeals of [Appellant] and 

his co-defendant. Despite this statement and [Appellant’s] prior 

filings, [Appellant] persisted that he first discovered this “fact” no 

earlier than March 15, 2016.

Moreover, the affidavit signed by Jackson appeared consistent 

with what was presented at [Appellant’s] post-sentence motions 

over twenty years ago. [Appellant’s] counsel during postsentence motions, Rita M. Eichman, was sent a letter from Jackson 

dated October 4, 1993. This letter indicated that he wanted to 

speak to [Appellant’s] counsel because he lied at trial when he 

implicated [Appellant]. On February 28, 1994, post-verdict 

motions were heard during which [Appellant’s] new counsel 

presented Jackson as a witness. During the hearing, Jackson 

testified that he was around the corner and did not witness the 

incident.[2] The post-sentence motions were denied and counsel 

did not raise this issue on direct appeal. Based upon these facts, 

[Appellant] knew about the recantation by February 28, 1994 and 

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2 The transcript from the post-sentence motions hearing is not included in the 

certified record. However, Appellant’s counseled PCRA petition, filed in 1997, 

references portions of Jackson’s testimony from the hearing, including that

(1) his original witness statement was coerced by the police; (2) the 

prosecution threatened him and stated that he would be implicated for the 

shooting if he did not testify against Appellant and his co-defendant; and (3) 

the prosecutor gave him $350 in exchange for his testimony. See Am. PCRA 

Pet., 9/18/98, at 7.
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likely knew shortly after counsel received the letter dated October 

4, 1993.

On December 15, 1997, [Appellant] filed his first pro se PCRA 

petition. [Appellant] attached as “Exhibit A” the aforementioned 

letter dated October 4, 1993 in which Jackson indicated to 

[Appellant]’s counsel that he was recanting his testimony. 

Counsel was appointed and subsequently filed an Amended PCRA 

Petition, in which he raised the issue of the recantation. Notably, 

his Amended Petition indicated that the issue was raised on behalf 

of [Appellant] during post-verdict motions and instead argued 

counsel was ineffective for abandoning this issue on direct appeal. 

The court dismissed the petition as untimely. Therefore, even if 

this court disregarded both the October 4, 1993 letter to counsel 

and the post-sentence motions, [Appellant] definitively knew by 

December 15, 1997.

Based upon the foregoing, this court lacked jurisdiction to hear 

this claim involving Jackson’s recantation. [Appellant] has failed 

to demonstrate that these statements were previously unknown 

and could not have been obtained earlier through the exercise of 

due diligence. To the contrary, these “facts” were known to 

[Appellant], more than sixty days prior to the filing of the present 

petition. The PCRA requires a petition invoking one of these 

exceptions, including those relating to both newly discovered 

evidence and government interference, “be filed within 60 days of 

the date the claim could have been presented.” 42 Pa.[C.S.] § 

9545(b)(2). Even treating this as a “newly discovered fact,” it 

would have been discovered no later than December 15, 1997. 

The present PCRA petition was filed well outside of the 60 day 

grace period afforded by 42 Pa.[C.S.] § 9545(b)(2). Further, 

[Appellant] has failed to demonstrate that he acted with due 

diligence during . . . more than twenty-five years between his 

conviction and the filing of the instant petition. This failed to 

satisfy his burden.

. . . [Appellant] claimed that Jackson’s allegations in his 

recantation constitute governmental interference because he 

received preferential treatment on any open cases. Contrary to 

[Appellant’s] assertions in his pro se [p]etition, the affidavit 

provided by Jackson does not indicate that he received any 

preferential treatment on any open cases. Moreover, as stated 

above, this alleged misconduct by the Commonwealth was known 

to [Appellant] no later than December 15, 1997. Once again, the 

petition must “be filed within 60 days of the date the claim could 
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have been presented” in accord with 42 Pa.[C.S.] § 9545(b)(2). 

This claim was not raised within 60 days of the date it could have 

first been presented. As a result, this claim does not satisfy an 

exception pursuant to 42 Pa.[C.S.] §9545 (b)(1)(i). Even if this 

alleged misconduct constituted government interference, it could 

have been presented by December 15, 1997, if not earlier. 

[Appellant’s] failure to raise the claim for over eighteen years after 

discovering the alleged conduct was fatal to his claim.

Id. at 4-5.

Therefore, we agree with the PCRA court that Appellant has not 

established why he could not have raised these exceptions earlier with the 

exercise of due diligence. See Marshall, 947 A.2d at 720; Abu-Jamal, 941 

A.2d at 1268. Accordingly, the PCRA court properly concluded that it lacked 

jurisdiction to consider the merits of Appellant’s claims. See Brown, 111 

A.3d at 175.

Finally, Appellant’s claim that the PCRA court erred in not granting him 

a hearing is also meritless. This Court has held that “[a] petitioner is not 

entitled to a PCRA hearing as a matter of right.” Commonwealth v. Smith, 

121 A.3d 1049, 1052 (Pa. Super. 2015) (citation omitted). “It is within the 

PCRA court’s discretion to decline to hold a hearing.” Commonwealth v. 

Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (citation omitted). “[T]he 

PCRA court can decline to hold a hearing if there is no genuine issue 

concerning any material fact and the petitioner is not entitled to postconviction collateral relief, and no purpose would be served by any further 

proceedings.” Smith, 121 A.3d at 1052 (citation omitted); see Pa.R.Crim.P. 

907(2) & cmt. On appeal, we “examine each of the issues raised in the PCRA 
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petition in light of the record in order to determine whether the PCRA court 

erred in concluding that there were no genuine issues of material fact and in 

denying relief without an evidentiary hearing.” Smith, 121 A.3d at 1052 

(citation omitted). 

As stated above, the PCRA court held that the evidence presented by 

Appellant was not previously unknown to Appellant, and therefore he did not 

meet the section 9545(b)(1)(i) or (ii) timeliness exceptions to the PCRA time 

bar. Because we agree with the court’s holding that Appellant’s petition was 

not timely filed, Appellant’s claim did not warrant a hearing under Pa.R.Crim.P. 

907. See Pa.R.Crim.P. 907; Smith, 121 A.3d at 1052. Therefore, the PCRA 

court did not err in dismissing the petition without an evidentiary hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/16/19