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

v.

GEORGE PAGE

Appellant : : : : : : : : : 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 Po st Conviction Relief Act (PCRA ), 42 Pa.C.S. §§ 9541

- 9546. Appellant claims that he properly raised the newly disco vered 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 convicte d of second

- degree murder and related offenses. The trial court sentenced Appellant to a mandatory sentence of life imprisonment.
A ppellant filed a post

- verdict motion alleging , in relevant part, that the Commonwealth’s primary witness, Harold Jackson, had recanted his testimony

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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after trial. See Post

- Sentenc e M o t. , 11/1/90 ; see also Supp. Post Verdict
M o t. , 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 Appellan t’ s motion s . 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 Super. 1995) (unpublished mem.).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 f or 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. Th is 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,J

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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 pe tition with out a hearing pursuant to Pa.R.Crim.P. 907 , stating tha t the petition was untimely and that Appellant failed to establish a time

bar 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. W hether (in) reviewing the (proeprty) [sic] of th e [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 ne wly discovered facts exception[.] 2. W hether 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 evidentiar y 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 theJ

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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 om itted). 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 p etitioner 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 o f 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 c onstitutional 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.J

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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 ha ve 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 pro tect his own interests. A petitioner must explain why h e 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 c ould 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) doe s not require any merits analysis of the underlying claim. Rather, the exception merely requires that the ‘facts’ upon which such a

_________________ __________ ______ ____ _______ 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).J

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claim is predicated must not have been known to appellant, nor could they have been ascertained by due diligence.”

Commonw

ealth v. Abu -

Jamal , 941 A.2d 1263, 1268 (Pa. 2008) (citations omitted). Instantly, t here 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 t he 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 “ altho ugh 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. Appel lant therefore concludes that Jackson’s new affid avit, 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
Ja ckson 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 specificJ

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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 it s Rule 1925(a) opinion, the PCRA court concluded that Appellant did not meet the newly discovered facts or govern mental interference exception s 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” n o 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 post

sentence 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 [Ap pellant ’ 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

_________________ __________ ______ ____ _______ 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 prosecuti on 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] attac hed as “ Exhibi t 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 b ehalf of [Appellant] during post

- verdict motions and instead argued counsel w as ineffe ctive 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 he ar 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 evidenc e and government interference, “ be filed within 60 days of the date the c laim 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 1 5, 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 h is 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 ca ses. 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 th e 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 couldJ

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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 da te 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

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. 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 p roperly 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 ] p etitioner 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 post

conviction collateral relief, and no purpose would be se rved 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 PCRAJ

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petition in light of the record in order to determine whether the PCRA court erred i n 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 hel d that the evidence presented by Appellant was not previ ously unknown to Appellant , and therefore he did not meet the section 9545(b)(1)(i ) or (ii) timeliness exception s 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 war rant 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