Com. v. Ruedas, I. ( 2015 )

J-S10008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IVETTE RUEDAS,
Appellant No. 3429 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0501751-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHEED DURHAM,
Appellant No. 3432 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0612031-2006
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JENNIFER BENIGUEZ,
Appellant No. 3434 EDA 2013
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Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1104961-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE MATEO,
Appellant No. 3437 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0010653-2007
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOEL BROWN,
Appellant No. 3442 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0207082-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL FALU,
Appellant No. 3446 EDA 2013
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Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1106201-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TAMMY MICHENSELDER,
Appellant No. 3455 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0909232-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TWANIA HILL,
Appellant No. 3458 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0510412-2006
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
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DANNY T. GORHAM,
Appellant No. 3459 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0003286-2007
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM T. CHIRENO,
Appellant No. 3461 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0511041-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRENDA WATTS,
Appellant No. 3463 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1300499-2006
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
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v.
ROBERT MOLL,
Appellant No. 3466 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0909231-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK MARQUES,
Appellant No. 3469 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0027188-2008
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMASINA HOPKINS,
Appellant No. 3470 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0906233-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
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Appellee
v.
LOUIS B. MERRERO,
Appellant No. 3471 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0101781-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANGEL GONZALEZ,
Appellant No. 3474 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004744-2008
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD HARRISON,
Appellant No. 3475 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0107682-2004
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COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHERRIA JOHNSON,
Appellant No. 3476 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0311842-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHERRITA HALL,
Appellant No. 3480 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0906232-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEX CALIX,
Appellant No. 3481 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0006641-2008
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COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SOTO HECTOR,
Appellant No. 3486 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0000083-2007
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
REGINALD HALL,
Appellant No. 3487 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0906231-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHANIEL MOORE,
Appellant No. 3488 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0014839-2007
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COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JARELL CLARKE,
Appellant No. 3492 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0306871-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE L. MALAVE,
Appellant No. 3495 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0304351-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JACKLINE CAMACHO,
Appellant No. 3498 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0809742-2004
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COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SOL M. M. GONZALEZ,
Appellant No. 3499 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-00005183-2007
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KARLTON JOHNSON,
Appellant No. 3501 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1000941-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LOUIS RODRIGUES,
Appellant No. 3502 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
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Criminal Division at No.: CP-51-CR-0006642-2008
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NICOLE TAMM,
Appellant No. 3503 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0010715-2008
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AMILIA FARRELL,
Appellant No. 3504 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004303-2007
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHAMAR WITHROW,
Appellant No. 3505 EDA 2013
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Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1204521-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARITZA RODRIGUEZ,
Appellant No. 3508 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0301122-2006
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANGELO LOPEZ,
Appellant No. 3516 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0302781-2006
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VERNON HAYES,
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Appellant No. 3517 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0010893-2008
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICKY BUCKNER,
Appellant No. 3518 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007363-2008
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILFREDO BAEZ,
Appellant No. 3523 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0001739-2007
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
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JONATHAN DEAN,
Appellant No. 3525 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1002371-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRAVIS JOHNSON,
Appellant No. 3526 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0107681-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEE STEWART,
Appellant No. 3527 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0204821-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
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v.
MERIAM VARGAS,
Appellant No. 3528 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007964-2007
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MYRA HAYNES,
Appellant No. 3530 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0009486-2008
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY FERNANDEZ,
Appellant No. 3531 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0405811-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
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Appellee
v.
GEORGE SERRANO,
Appellant No. 3532 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1101501-2004
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM APONTE,
Appellant No. 3533 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0001343-2007
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JORGE RIVERA,
Appellant No. 3534 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0100271-2005
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COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARLOS ACOSTA,
Appellant No. 3570 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1007331-2005
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ADA ANAYA,
Appellant No. 3579 EDA 2013
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1000431-2003
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUAN R. BROWN,
Appellant No. 96 EDA 2014
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0207081-2004
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COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NADIYAH FRANKS,
Appellant No. 319 EDA 2014
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1204501-2003
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON DEVALLE,
Appellant No. 528 EDA 2014
Appeal from the PCRA Order November 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1207903-2000
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 05, 2015
Appellants, in these fifty-one consolidated cases, appeal from the
orders issued on November 8, 2013,1 which dismissed, without a hearing,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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their petitions brought under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. In addition, Appellants have filed a petition to
vacate the current briefing schedule and remand for an evidentiary hearing
(Petition to Remand) or alternatively for a writ of habeas corpus. For the
reasons discussed below, we deny Appellants’ Petition to Remand, deny
habeas corpus and affirm the dismissal of their PCRA petitions.
On February 9, 2009, the Philadelphia Daily News published a story
based upon information from a confidential informant (CI), concerning police
corruption. (See PCRA Court Opinion, 5/14/14, at 1-2). Within sixty days
of that story appearing, on April 13, 2009, counsel for Appellants filed the
instant PCRA petitions, which the PCRA court consolidated.2 (See id. at 2,
and at n.2). Between May 2009 and September 2013, the PCRA court held
regular status hearings awaiting the results from a possible investigation of
the Philadelphia police officer in question, Officer Jeffrey Cujdik. (See id. at
2).
_______________________
(Footnote Continued)
1
The PCRA court issued Rule 907 notices, orders dismissing these cases,
and Rule 1925(a) opinions on several different dates. Because the individual
dates have no bearing on our decision, for purposes of consistency and ease
of discussion, we will use the dates contained in the lead case,
Commonwealth v. Ruedas, No. 3429 EDA 2013.
2
Again, as discussed above, we use the date counsel filed the PCRA on
behalf of Appellant Ruedas. Philadelphia Courts were closed on Friday, April
10, 2009, in observance of Good Friday.
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On September 20, 2013, because Appellants failed to provide
confirmation of any on-going investigation, the PCRA court issued notice of
its intent to dismiss the petitions pursuant to Pennsylvania Rule of Criminal
Procedure 907(1). (See id. at 3). In response, Appellants filed two
affidavits, one from the CI in question, Ventura Martinez, and one from one
of the Appellants, Danny T. Gorham. (See id. at 3). On November 8,
2013, the PCRA court dismissed the petitions. The instant, timely appeal
followed.3
On appeal, Appellants raise the following questions for our review:
1. Should not this Court remand these cases for a hearing on
after-discovered evidence pursuant to [Pa.R.Crim.P.] 720[C]
where, while these cases were pending on appeal before this
Court, it became known publicly that a secret police investigation
determined that the police officer involved in this case had lied
on a search warrant and had lied to police investigators?
2. Did not the [PCRA] court err by dismissing without a
hearing the instant petitions where there were genuine issues of
fact that could only be determined in an evidentiary hearing?
3. Is not state habeas corpus an appropriate remedy in the
instant cases?
(Appellants’ Brief, at 3).
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3
In response to the PCRA court’s order, Appellants filed timely concise
statements of errors complained of on appeal. See Pa.R.A.P. 1925(b). The
PCRA court subsequently issued Rule 1925(a) opinions in each case. See
Pa.R.A.P. 1925(a).
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In their first issue, Appellants argue that this Court should remand the
matter pursuant to Pennsylvania Rule of Criminal Procedure 720(C) because
“critical new information [had] suddenly become[] known.” (Appellants’
Brief, at 12). Specifically, Appellants contend that two newspapers have
reported, “a secret police investigation sustained eight findings against
[Officer Cujdik] . . . [and that] these findings were so serious that Police
Commissioner Charles Ramsey immediately suspended Officer Cujdik for
[thirty] days with intent to fire him.” (Appellants’ Brief, at 13) (record
citations omitted). However, Appellants have not demonstrated that
Pa.R.Crim.P. 720(C) is applicable.4
Rule 720(C) provides that, “[a] post-sentence motion for a new trial
on the ground of after-discovered evidence must be filed in writing promptly
____________________________________________
4
We note that in order to obtain a new trial under Rule 720(C) on the basis
of newly discovered evidence, an appellant must demonstrate that the
evidence:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to
impeach the credibility of a witness; and (4) would likely result
in a different verdict if a new trial were granted.
Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009), cert. denied,
131 S. Ct. 127 (2010) (citation omitted). Further, “the proposed new
evidence must be producible and admissible.” Castro, infra at 825 (citation
and internal quotation marks omitted).
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after such discovery.” Pa.R.Crim.P. 720(C). The comment to Rule 720(C)
specifically states in pertinent part:
Accordingly, after-discovered evidence discovered during the
post-sentence stage must be raised promptly with the trial judge
at the post-sentence stage; after-discovered evidence
discovered during the direct appeal process must be raised
promptly during the direct appeal process, and should include a
request for a remand to the trial judge; and after-discovered
evidence discovered after completion of the direct appeal
process should be raised in the context of the PCRA.
Pa.R.Crim.P. 720(C) comment (citations omitted) (emphasis added); see
also Commonwealth v. Soto, 983 A.2d 212, 213 (Pa. Super. 2009),
appeal denied, 17 A.3d 1252 (Pa. 2011) (holding claims of after-discovered
evidence filed after completion of direct appeal process cannot be considered
under Pa.R.Crim.P. 720(C); these motions must be considered solely under
PCRA). Therefore, we cannot treat Appellants’ petitions as both PCRA
petitions and Rule 720(C) motions for a new trial. Because Appellants have
not argued that direct appeals are still pending in any of their cases (see
Appellants’ Brief, at 12-15), we must treat their petitions as PCRA petitions.
Thus, their claims that they are entitled to a new trial under Pa.R.Crim.P.
720(C) must fail. See Soto, supra at 213. Appellants’ first issue does not
merit relief.
Appellants next claim that the PCRA court erred in dismissing their
PCRA petitions without an evidentiary hearing. Specifically, they argue,
“there were contested facts that mandated a hearing.” (Appellants’ Brief, at
16). We disagree.
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We begin by noting our well-settled standard of review. In
reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination is supported by the record and free
of legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level. It is
well-settled that a PCRA court’s credibility determinations are
binding upon an appellate court so long as they are supported by
the record. However, this Court reviews the PCRA court’s legal
conclusions de novo.
We also note that a PCRA petitioner is not automatically
entitled to an evidentiary hearing. We review the PCRA court’s
decision dismissing a petition without a hearing for an abuse of
discretion.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
[A]n evidentiary hearing is not meant to function as a fishing
expedition for any possible evidence. . . .
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
and internal quotation marks omitted).
As a preliminary matter, we observe that the timeliness of a PCRA
petition is a jurisdictional requisite. See Commonwealth v. Turner, 73
A.3d 1283, 1285 (Pa. Super. 2013), appeal denied, 91 A.3d 162 (Pa. 2014).
A PCRA petition must be filed within one year of the date the underlying
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judgment becomes final. See 42 Pa.C.S.A. § 9545(b)(1). The three
statutory exceptions to the PCRA’s timeliness provisions allow for very
limited circumstances under which the late filing of a petition will be
excused; and a petitioner asserting a timeliness exception must file a
petition within 60 days of the date the claim could have been presented.
See 42 Pa.C.S.A. § 9545(b)(1), (b)(2). To invoke an exception, a petition
must allege and the petitioner must prove:
(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, to be eligible for PCRA relief,
a petitioner must be currently serving a sentence of imprisonment, probation
or parole for the crime the petitioner seeks to challenge. See 42 Pa.C.S.A. §
9543(a)(1)(i).
Instantly, we cannot discern from this record whether any of the PCRA
petitions under review are timely, or whether any of Appellants are still
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serving a sentence for their challenged crimes.5 To the extent that any
Appellant is no longer serving a sentence for the conviction in question,
he/she is ineligible for relief under the PCRA. See 42 Pa.C.S.A. §
9543(a)(1)(i). To the extent that any Appellant is serving a sentence for the
conviction in question but filed an untimely PCRA petition that fails to allege
an exception the PCRA’s time-bar, he/she cannot establish jurisdiction under
the PCRA. See Turner, supra at 1285; 42 Pa.C.S.A. § 9545(b)(1), (b)(2).
To the extent any Appellant is still serving a sentence for the
conviction in question and has filed either (1) an untimely PCRA petition that
pleads the “new facts” exception to the PCRA’s time-bar at 42 Pa.C.S.A. §
9545(b)(1)(ii); or (2) a timely PCRA petition raising an after-discovered-
evidence claim pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vi), we address
Appellants’ argument as follows.
The timeliness exception set forth in Section 9545(b)(1)(ii) requires a
petitioner to demonstrate he did not know the facts upon which he based his
____________________________________________
5
Our review of the records shows that some of the PCRA petitions in this
matter are timely, while others are untimely; and that at least some
Appellants are no longer serving the sentences at issue. While the PCRA
court includes a general timeliness discussion in its Rule 1925(a) opinions, it
does not differentiate between those timely petitions seeking PCRA relief
pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vi) and those untimely petitions
seeking to establish an exception to the timeliness requirements pursuant to
42 Pa.C.S.A. § 9545(b)(1)(ii). Additionally, the PCRA court suggests none
of Appellants are currently serving the sentences at issue, and thus, are
ineligible for PCRA relief. (See PCRA Ct. Op., at 8); see also 42 Pa.C.S.A. §
9543(a)(1)(i). Nevertheless, the PCRA court did not dismiss any of the
PCRA petitions as untimely, or due to ineligibility for relief.
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petition and could not have learned those facts earlier by the exercise of due
diligence. See Commonwealth v. Bennett, 930 A.2d 1264, 1273-74 (Pa.
2007). Due diligence demands that the petitioner take reasonable steps to
protect his own interests. See Commonwealth v. Carr, 768 A.2d 1164,
1168 (Pa. Super. 2001). A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence. See
Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). This rule is
strictly enforced. See Commonwealth v. Monaco, 996 A.2d 1076, 1080
(Pa. Super 2010), appeal denied, 20 A.3d 1210 (Pa. 2011). Significantly, a
claim based on inadmissible hearsay does not satisfy the “new facts”
exception. See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1269 (Pa.
2008), cert. denied, 555 U.S. 916 (2008) (holding appellant’s presentation
of inmate’s affidavit relating Commonwealth witness’ (declarant’s) alleged
perjury did not satisfy “new facts” exception per Section 9545(b)(1)(ii)
because claim based on inadmissible hearsay does not implicate “new facts”
exception).
To obtain relief on a substantive after-discovered-evidence claim
raised in a timely-filed PCRA petition, a petitioner must demonstrate: (1) the
evidence was discovered after trial and it could not have been obtained at or
prior to trial through reasonable diligence; (2) the evidence is not
cumulative; (3) it is not being used solely to impeach credibility; and (4) it
would likely compel a different verdict. See Commonwealth v.
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Washington, 927 A.2d 586, 595-96 (Pa. 2007). Further, “[a] petitioner
must . . . explain why his asserted facts could not have been ascertained
earlier with the exercise of due diligence.” Commonwealth v. Taylor, 933
A.2d 1035, 1041 (Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa.
2008) (citation omitted).
In a recent decision, Commonwealth v. Castro, 93 A.3d 818 (Pa.
2014), our Supreme Court held that allegations in a newspaper article “do
not constitute evidence” and were not sufficient to support a motion for a
new trial. Id. at 819. The Castro Court stated,
[A]llegations in the media, whether true or false, are no
more evidence than allegations in any other out-of-court
situation. Nothing in these allegations even read in the
broadest sense, can be described as “evidence,” and
references to the officer being under investigation for
misconduct contains no information regarding what
evidence existed to substantiate this averment. One
cannot glean from these bald allegations what evidence of
misconduct appellee intended to produce at the hearing.
Id. at 825. Our Supreme Court further characterized the information
contained in newspaper articles as “double hearsay.” Id. at 826. The
Castro Court concluded:
The relevant motion is not to serve as a preemptive means
of securing a hearing that will itself comprise the
investigation. Appellee needed to do more than present an
article “pointing to” allegations that if true have the
potential to aid his cause; he needed to clearly articulate in
his motion what evidence he would present to meet the
test. . . .
Id. at 828.
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Instantly, in arguing that they are entitled to an evidentiary hearing,
Appellants rely on the newspaper articles attached to the PCRA petition, and
attached to the Petition to Remand, and the affidavits attached to their
response to the Rule 907 notice. (See Appellants’ Brief, at 9-10). To the
extent any untimely PCRA petitions allege the “new facts” exception and rely
on the newspaper articles, the articles constitute inadmissible “double
hearsay” which fails to satisfy the “new facts” exception at Section
9545(b)(1)(ii). See Castro, supra at 826; Abu-Jamal, supra at 1269.
With respect to any timely-filed PCRA petitions alleging a substantive
after-discovered-evidence claim under 42 Pa.C.S.A. § 9543(a)(2)(vi),
Appellants attempt to distinguish Castro by stating: “Unlike [the]
unsubstantiated newspaper allegations in Castro, here there are
substantiated police investigations.” (Appellants’ Brief, at 14). Although the
Castro Court notes the vagueness of the newspaper article at issue, the
holding in Castro squarely held that newspaper articles are not evidence.
See Castro, supra at 825. We are bound by Castro and agree with the
PCRA court that the newspaper articles do not constitute evidence to satisfy
their substantive after-discovered-evidence claims.
Appellants further argue that they proffered not only newspaper
articles but also two affidavits in support of their contentions. (See
Appellants’ Brief, at 16). The affidavit by Appellant Danny T. Gorham
describes testimony of Officer Cujdik at Appellant Gorham’s preliminary
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hearing in 2006 and then states that this testimony was false. (See
Declaration of Danny Gorham, 10/07/13, at unnumbered page 1). Gorham
possessed this information before he pled guilty in October 2007. Thus, the
testimony does not constitute a “new fact” for purposes of the timeliness
exception at Section 9545(b)(1)(ii), or after-discovered evidence as
contemplated under the PCRA. See Bennett, supra at 1273-74;
Washington, supra at 595-96.
Additionally, the affidavit by Ventura Martinez does not satisfy the due
diligence requirements. While Appellants claim that Martinez was difficult to
locate, (see Objection to Notice of Intent to Dismiss, 10/09/13, at 3, ¶ 6),
they failed to provide any details regarding their attempts to locate him. As
presented, the affidavit alone is insufficient to satisfy the requirements of
due diligence for the timeliness exception or the substantive after-
discovered-evidence claim.6 See Bennett, supra at 1273-74; Breakiron,
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6
Moreover, the Martinez affidavit is vague. It does not contain names,
dates, or specific events. (See Affidavit of Ventura Martinez, 9/30/13, at
unnumbered pages 1-2). While Martinez claims that the information
contained in the newspaper articles is true and mentions certain instances of
allegedly improper activities by Officer Cujdik, it does not connect those
activities with any of Appellants and does not contest the substantive guilt of
any of them. (See id.). Thus, the affidavit is only relevant for
impeachment of the police officer and such an affidavit is not a basis for
relief. See Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super.
2012) (stating new evidence “[did] not meet the after-discovered evidence
test” where its main purpose “would be to impeach the detective’s
credibility”).
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supra at 98; Carr, supra at 1168; see also Washington, supra at 595-
96; Taylor, supra at 1041.
We conclude, for the foregoing reasons, that the combination of the
newspaper articles and the affidavits was insufficient to satisfy the
requirements for the “new facts” exception to the PCRA’s timeliness
requirements or a substantive claim of after-discovered evidence. Thus, any
Appellants who are eligible for PCRA relief and who pled the “new facts”
exception as a basis for relief in an untimely PCRA petition or pled an after-
discovered-evidence claim in a timely-filed PCRA petition, are not entitled to
relief. The PCRA court properly denied all Appellants’ PCRA petitions
without a hearing. See Miller, supra at 992. Appellants’ second issue does
not merit relief.
In their third claim, Appellants allege that the PCRA court erred in
concluding that habeas corpus was unavailable as a remedy. (See
Appellants’ Brief, at 18-19). We disagree. The PCRA subsumes the remedy
of habeas corpus. See Commonwealth v. Turner, 80 A.3d 754, 770 (Pa.
2013), cert. denied, 134 S. Ct. 1771 (2014). The Pennsylvania courts have
consistently held that, so long as it falls within the ambit of the PCRA, any
petition filed after the judgment of sentence is final is to be treated as a
PCRA petition. See Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.
Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008) (noting cases).
Appellants’ claims of newly discovered evidence are cognizable under the
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PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(vi). Thus, the writ of habeas corpus
is not available to Appellants. See Turner, supra at 770; Fowler, supra
at 591. Appellants’ third issue does not merit relief.
Accordingly, for the reasons discussed above, we affirm the PCRA
court’s dismissal of Appellants’ PCRA petitions without a hearing. Further,
we deny Appellants’ petition to vacate the current briefing schedule and to
remand for an evidentiary hearing.
Petition denied. Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2015
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