J-S30004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT KENNEDY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1490 WDA 2019

Appeal from the PCRA Order Entered September 11, 2019

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

No(s): CP-02-CR-0003178-2007

BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED JULY 17, 2020

Robert Kennedy (Appellant) appeals from the order dismissing his third 

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 

9541-9546.

The Honorable John A. Zottola presided at Appellant’s non-jury trial in 

2008, and dismissed Appellant’s prior two PCRA petitions. In dismissing the 

third petition, Judge Zottola chronicled the case history as follows:

On August 27, 2008, following a non-jury trial, [Appellant]

was convicted of Count 1—Rape of an Unconscious Victim (18 Pa. 

C.S. § 3121(a)(3)), Count 2—Rape—Forcible Compulsion (18 Pa. 

C.S. § 3121(a)(1)), Count 3—Sexual Assault (Pa. C.S. § 3124.1), 

Count 4—Indecent Assault of an Unconscious Person (Pa. C.S. § 

3126(a)(4), and Count 5—Indecent Assault—without consent (Pa. 

C.S. § 3126(a)(1)). [Appellant] was sentenced to 60 to 120 

months for Count 1 and 66 to 132 months for Count 2, to run 

consecutively for an aggregate sentence of 126-252 months [of]

____________________________________________

* Former Justice specially assigned to the Superior Court.
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incarceration. No further penalty was issued for the remaining 

counts: [Appellant] filed several different Post-Conviction Relief 

Act (“PCRA”) petitions. [Appellant] filed a new PCRA petition on 

May 17, 2019 and [Appellant] filed an Appeal to the Superior Court 

following the denial of his latest PCRA petition.

Pursuant to Rule Pa.R.A.P. 1925(b), [Appellant] filed a 

Concise Statement of Errors Complained of on Appeal on 

November 1, 2019 from which the following is taken verbatim:

Claim #1: The PCRA court erred by rejecting 

[Appellant’s] newly discovered fact claim. The new 

facts from [two witnesses’] statements would likely 

compel a different outcome at retrial. The 

Commonwealth’s case hinged on the credibility of [the 

victim]’s sexual assault narrative as well as her claim 

the markings in the photographs she took of her neck 

and arms were caused by [Appellant’s] sexual assault 

and not fabricated by her to bolster a false rape claim.

Claim #2: The PCRA court erred by not granting an 

evidentiary hearing where [the two witnesses]

could’ve testified regarding [the victim’s] reputation 

for dishonesty as well as specific instances of her 

dishonesty under Pa.R.Evid.405(a) and Pa.R.Evid. 

405(b)(2).

Claim #3: The Court dismissed [Appellant’s] PCRA 

petition because it was “patently frivolous and without 

support on the record[.]” This language is vague and 

broad, meaning it could be based on any number of 

findings, including an untimeliness finding. If the 

Court’s “patently frivolous and without support on the 

record” finding encompasses an untimeliness finding, 

the Court’s finding is wrong as a matter of law.

[Appellant] and the victim met through Match.com, an 

internet dating site, and made plans to meet in person. (TT1 16, 

51). Although the victim lived in Greensburg, PA, [Appellant] 

pressured the victim to meet at his favorite bar, Todd’s by the 

Bridge Tavern, in McKeesport, Allegheny County on December 15, 

2006. (TT1 21, 51). The victim was unfamiliar with the Pittsburgh 

area, but managed to find Todd’s by the Bridge Tavern and met 

him in its parking lot around 10:00 PM. (TT1 21-2). The victim 
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testified that [Appellant] did not resemble his Match.com profile 

pictures and she did not feel sexually attracted to him. However, 

she decided to stay at Todd’s with [Appellant] because she had 

traveled over forty minutes for the date. (TT1 23).

At Todd’s, the victim consumed three alcoholic drinks, which 

were given to her by [Appellant]. (TT1 25, TT3 56). [Appellant] 

purchased one of the drinks while the victim was in the restroom, 

which she consumed once she returned. (TT3 44). The victim 

testified that she began to feel that “something wasn’t right” after 

she consumed her third and final drink. (TT1 26). [Appellant]

suggested that they get something to eat, so he drove the victim 

to Denny’s around 1:30 AM and stayed for approximately 90 

minutes. However, the victim testified that she had no memory of 

what she ate at Denny’s. (TT1 26-7). When leaving the diner,

[Appellant] told the victim that it was safe to sleep at his house if 

she felt that she could not drive home. The victim testified that 

she still felt ill and unable to drive all the way home, so she agreed 

to go to [Appellant’s] house around 3:00 AM. (TT1 27-8). Once 

inside [Appellant’s] house, she sat on the couch and lost 

consciousness. (TT1 29).

The victim regained consciousness due to intense pain in her 

vagina and saw that [Appellant] was on top of her and penetrating 

her vagina with his penis. (TT1 30). She asked [him] to stop, but 

he grabbed her arms and held them above her head. The victim 

kicked [Appellant] off of her and ran into his bathroom, where she 

noticed that she was bleeding from her vagina and that she had 

pain when she urinated. (TT1 30-1). When the victim left the 

bathroom, [Appellant] was asleep on the floor, so she grabbed her 

clothes, left the house, and drove away in her car. (TT1 37).

Once on the road, the victim called her friends, the 

Seighmans, for help. Mr. Seighman testified that the victim was 

crying and panic-stricken, so he called the police on the victim’s

behalf. Once the victim found her way home, she fell asleep until 

she was awakened by a phone call from Lieutenant Doug Marcos 

of the Greensburg Police. (TT1 40, 117-18). Lt. Marcos asked the 

victim to come to Jeanette Hospital, where medical professionals 

conducted a rape test kit. (TT1 40). Dr. Alhashimi, the Emergency 

Room physician, testified that the victim had vaginal trauma, such 

as bleeding and mild labial swelling, as well as bruising and several

abrasions on her body. (TT2 48). A blood test revealed that the 

victim had diphenhydramine in her system, despite never 
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knowingly ingesting the drug during the timeframe in question. 

(TT3 16). The Commonwealth’s expert witness, Jennifer Janssen, 

a certified toxicologist, testified that even a small amount of 

diphenhydramine can cause drowsiness and confusion, especially 

when paired with alcohol. (TT2 30).

A non-jury trial occurred on this matter on May 20-21, 2007 

and August 25 and 27, 2007, where [Appellant] was found guilty 

at the previously mentioned counts and was sentenced on

November 24, 2008. [Appellant] filed a post-sentence motion on 

December 3, 2008, to which the Commonwealth responded on 

April 15, 2009. On April 17, 2009, [Appellant] filed a Second 

Amended Post-Sentence Motion. A hearing was held on April 30, 

2009, after which [Appellant’s] Motion was denied. [He] filed his

first Notice of Appeal to the Superior Court on June 3, 2009 and 

was directed to file a Concise Statement of Matters Complained of 

on Appeal, pursuant to Pa.R.A.P. 1925(b), which he filed on July 

1, 2009. The Superior Court affirmed the judgment on June 15, 

2010.

[Appellant] filed a pro se PCRA petition on September 27, 

2010. Counsel was appointed on October 14, 2010, and appointed 

counsel filed a “No Merit” Letter and Motion to Withdraw on 

November 30, 2010. The Motion to Withdraw was granted and the 

PCRA petition was dismissed on January 5, 2011. On July 9, 2014, 

[Appellant] filed another PCRA petition, which was dismissed on 

September 25, 2014.

The PCRA petition at hand was filed on May 17, 2019, to 

which the Commonwealth responded on June 18, 2019. The 

petition was dismissed on September 11, 2019, and [Appellant]

filed an Appeal to the Superior Court following the denial of his 

latest PCRA petition . . . [Appellant] was ordered to write a Concise 

Statement of Errors Complained of on Appeal, which was filed on 

November 1, 2019.

PCRA Court Opinion, 12/3/19, at 1-5 (footnotes omitted).

On appeal, Appellant presents the three claims, which we reproduce 

verbatim:

Claim #1: [Appellant’s] PCRA petition is timely.
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Claim #2: [Appellant’s] newly-discovered fact claim is 

meritorious.

Claim #3: The PCRA court erred by not granting a PCRA hearing.

Appellant’s Brief at 2.

It is well settled that we review the denial of PCRA relief to determine 

whether the record supports the PCRA court’s findings and whether its decision 

is free of legal error. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 

2018).

We begin with our analysis with Appellant’s first claim concerning 

timeliness. This Court recently commented:

[T]he timeliness of any PCRA petition is a jurisdictional requisite. 

No court has jurisdiction to review an untimely PCRA petition. 

Whether a court has subject matter jurisdiction is a question of 

law.... It is not waivable, even by consent, and may be raised by 

any party or by the court, sua sponte, at any stage of the 

proceeding. [E]ven where the PCRA court does not address the 

applicability of the PCRA timing mandate, this Court will consider 

the issue sua sponte, as it is a threshold question implicating our 

subject matter jurisdiction and ability to grant the requested relief.

Significantly,

[A] jurisdictional time limitation is not subject to 

equitable principles such as tolling except as provided 

by statute. Thus, the filing period is only extended as

permitted; in the case of the PCRA, the time 

limitations are extended upon satisfaction of the 

exceptions found in § 9545(b)(1)(i)–(iii) and timely 

filing pursuant to (b)(2). As it has been established 

that the PCRA’s time restrictions are jurisdictional, we 

hold that the period for filing a PCRA petition is not 

subject to the doctrine of equitable tolling, save to the 

extent the doctrine is embraced by § 9545(b)(1)(i)–

(iii).

Commonwealth v. Fahy, 558 Pa. 313, 329, 737 A.2d 214, 222 

(1999). In other words, “The PCRA’s time limitations ‘are 
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mandatory and interpreted literally; thus, a court has no authority 

to extend filing periods except as the statute permits.’” 

Commonwealth v. Lee, 206 A.3d 1, 11, 2019 PA Super 64 *8 

(2019) (en banc).

Commonwealth v. Beatty, 207 A.3d 957, 961–62, appeal denied, 218 

A.3d 850 (Pa. 2019) (some citations omitted). In sum, the PCRA’s time bar 

“implicate[s] our jurisdiction and may not be altered or disregarded in order 

to address the underlying merits of a claim.” Commonwealth v. Greco, 203 

A.3d 1120, 1124 (Pa. Super. 2019).

It’s well settled that any 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.A. § 9545(b)(1). A PCRA petition may be filed 

beyond the one-year period only if the petitioner alleges and proves one of 

the following three 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.

Id.
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Any petition attempting to invoke an exception “shall be filed within one 

year of the date the claim could have been presented.” 42 Pa.C.S.A. § 

9545(b)(2). To satisfy the newly discovered fact exception, a petitioner must 

allege and prove 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.” Commonwealth v. Brensinger, 218 A.3d 440, 448 (Pa. Super. 

2019) (en banc) (citation omitted). “Due diligence requires the petitioner take 

reasonable steps to protect his own interests.” Id.

Appellant concedes that his petition is facially untimely. See Appellant’s 

Brief at 36. However, Appellant argues that he has demonstrated an 

exception to the time bar because “the facts comprising [Appellant’s] newlydiscovered fact claim weren’t ‘ascertainable’ or ‘obtainable’ before trial, even 

with the exercise of due diligence.” Id. at 37. Appellant asserts that he 

learned of the “new facts” on November 7, 2018, after communicating with 

the victim’s ex-husband; Appellant’s third PCRA petition was filed 

approximately six months later, on May 17, 2019. The facts to which 

Appellant refers consist of testimony from: (1) the victim’s ex-husband, who 

divorced the victim in 2006 and “is cognizant of [the victim’s] reputation for 

dishonesty, particularly at the time when she made her allegations against 

[Appellant] in December 2006”; and (2) the victim’s former employer, who 

“agreed to testify at a PCRA hearing to discuss specific instances of how [the 
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victim] lied to her and her staff,” and “hoodwinked” and embezzled from her 

employer “in the late 1990s.” See Appellant’s Brief at 30-33.

Appellant concedes that “no one from [his] defense team contacted” the 

victim’s ex-husband prior to trial. See Appellant’s Brief at 32. However, he 

maintains that the failure to interview the ex-husband or attempt to interview 

the ex-husband would not have been successful because the ex-husband 

indicated he would not have cooperated at the time. Id. Thus, Appellant 

maintains that the testimony of the victim’s ex-husband (which led him to the

former employer and her testimony) were not ascertainable prior to 

Appellant’s trial “even with the exercise of due diligence.” Id. at 37. Again, 

Appellant concedes that he did not contact the victim’s ex-husband and former 

employer prior to trial. Id. at 32-33. He emphasizes, “even if trial, appellate, 

and initial-review PCRA counsel had contacted [the ex-husband], he would not 

have spoken to them, meaning none of them would have learned about [the 

victim’s] embezzlement, credit card fraud, and pathological tendency to lie, 

cheat and con people.” Id. at 40. Appellant states that without the exhusband’s statements, “no prior counsel would have known to interview [the 

prior employer] to verify the embezzlement.” Id. at 40-41. Appellant claims 

the statements of the victim’s ex-husband and former employer would have 

compelled a different verdict in Appellant’s rape case. Id. at 41. We are not 

persuaded by Appellant’s argument.
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Our Supreme Court has “emphasize[d] that it is the petitioner who bears 

the burden to allege and prove that one of the timeliness exceptions applies.” 

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008). With regard to 

an assertion of newly discovered facts, the Court continued:

Exception (b)(1)(ii) requires [a] 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. 

The focus of the exception is on [the] newly discovered facts, not 

on a newly discovered or newly willing source for previously known 

facts. [T]his Court [has] rejected the petitioner’s argument that 

a witness’s subsequent admission of alleged facts brought a claim 

within the scope of exception (b)(1)(ii) even though the facts had 

been available to the petitioner beforehand.

Id. at 720 (emphasis in original, citations and footnote omitted).

Appellant focuses on the identities of the victim’s ex-husband and 

former employer relative to the victim’s acts of dishonesty and theft, and the 

details of which he learned when he communicated with the ex-husband, and 

consequently the former employer, a decade later. However, section 

9545(b)(1)(ii) requires that Appellant allege and prove facts that were

unknown to him and could not have ascertained by the exercise of due

diligence. Significantly, in his prior appeal to this Court, Appellant raised facts

attendant to the victim’s credibility and crimen falsi. See Commonwealth 

v. Kennedy, 934 WDA 2009 (June 15, 2010) (unpublished memorandum), at 

*7-11. In affirming Appellant’s judgment of sentence, we found that the 

credibility of the victim and her crimen falsi convictions “would not have 

resulted in a different verdict.” Id. at 10-11.
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Additionally, and independent of the merits, the PCRA court rejected

Appellant’s claim of newly discovered evidence, stating:

[Appellant] cites to several “new” pieces of evidence, including

testimony from . . . the victim’s ex-husband, that the victim has 

a reputation for dishonesty and has committed embezzlement and 

credit card fraud. [Appellant] also proffers testimony from [the]

owner of [the victim’s employer], who alleges that the victim 

embezzled a large amount of money from her company in the late 

1990s. [Appellant] also references a criminal case against the 

victim which occurred in Westmoreland County in 2006, shortly 

before these crimes [of which Appellant was convicted] occurred.

[Appellant] states that he was not aware of these facts until 

November 7, 2018 and that these facts could not have been 

discovered because [the ex-husband] was not contacted by 

[Appellant] or his attorney until recently. [The ex-husband]

connected [Appellant] to [the victim’s former employer], so 

[Appellant] also alleges that her testimony was not obtainable 

prior to the conclusion of his trial in 2007. He also claims that even 

if [the ex-husband] had been contacted [prior to trial], his

testimony would still unobtainable because [the ex-husband]

would have refused to testify because he feared retaliation by the 

victim.

These arguments fail for several reasons. [Appellant] knew that 

the victim had a previous husband because she told [Appellant]

that she was going through a divorce in an email they exchanged 

on Match.com. (TT1 20-1). Yet, [Appellant] admits that no one 

from his defense team in 2007 to now even attempted to contact 

[the ex-husband]. Therefore, [the ex-husband] was an obvious, 

available source of information in 2007 that was ignored. Because

[the victim’s ex-husband] was never approached by [Appellant], 

it is irrelevant that he claims that he would not have testified in 

2007. [The ex-husband’s] testimony regarding the criminal 

charge against the victim in 2006 could easily have been 

discovered without his testimony because criminal charges are 

public record. Likewise, [the employer’s] testimony could have 

been uncovered through reasonable diligence by [Appellant]

before the conclusion of trial because it is not unreasonable to 

investigate a key witness’ employment history. Just because 

[Appellant] was not told directly of [the witness’s] testimony does 

not mean that it was unobtainable in 2007.
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PCRA Court Opinion, 12/3/19, at 6-7 (footnote and citations omitted).

Although the PCRA court noted that “even if [Appellant’s alleged new] 

evidence was truly unobtainable until after [Appellant’s] trial, it is purely 

impeachment testimony,” id. at 7, a lack of jurisdiction precludes a merits 

analysis.

1

 Upon review, we conclude that Appellant’s third PCRA petition is 

untimely because Appellant failed to demonstrate the existence of facts that 

were unknown to him and his exercise of due diligence in discovering those 

facts. Accordingly, we affirm the denial of relief by the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2020

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1 The PCRA court stated that it viewed Appellant’ third petition as timely “so 

as to address the petition’s merits.” PCRA Court Opinion, 12/3/19, at 5. 

However, an appellate court may affirm on any basis. See Commonwealth 

v. Lee, 947 A.2d 199 (Pa. Super. 2008).