Com. v. Santiago, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ANTHONY SANTIAGO :
:
Appellant : No. 1105 MDA 2020
Appeal from the PCRA Order Entered August 18, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000722-1998
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 22, 2021
Michael Anthony Santiago (“Santiago”) appeals, pro se, from the Order
dismissing his fourth Petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On November 12, 1997, Santiago was arrested and charged with first-
degree murder1 in relation to the shooting death of Charles Berry (“Berry”),
in the City of York, York County, Pennsylvania.
Relevant to the instant appeal, on the night of the incident, Dennis
Banks (“Banks”) was walking with Berry to Berry’s home. Santiago
approached the men and brandished a firearm, and Banks ran from the scene.
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1 18 Pa.C.S.A. § 2502(a).
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As Banks was running, he heard gunshots. Banks later returned to the scene
to retrieve his bicycle, and saw Berry bleeding outside his home.
Approximately a week before the shooting, Darrell Beatty (“Beatty”),
Berry, and an unknown individual, robbed Santiago at gunpoint, during which
Berry held a gun to Santiago’s head. The Commonwealth presented Beatty’s
testimony at trial for the purpose of establishing Santiago’s motive for
shooting Berry. See N.T. (Jury Trial), 1/7/99, at 384-87.
This Court previously summarized the procedural history of this case as
follows:
Santiago is serving a life sentence for first[-]degree murder.
The January 7, 1999 sentence has been affirmed [by this Court]
on direct [appeal], and the Pennsylvania Supreme Court declined
review on May 30, 2000. [See Commonwealth v. Santiago,
748 A.2d 1254 (Pa. Super. 1999) (unpublished memorandum),
appeal denied, 758 A.2d 1198 (Pa. 2000).] Further review with
the United States Supreme Court was denied on January 8, 2001.
[See Santiago v. Pennsylvania, 531 U.S. 1087 (2001).]
Santiago then commenced filing PCRA petitions, and, following a
hearing, the first counseled [P]etition was denied on May 16,
2002. After an unsuccessful appeal to this Court, Santiago sought
but was denied permission to appeal to the Pennsylvania Supreme
Court on July 28, 2004. [See Commonwealth v. Santiago, 829
A.2d 364 (Pa. Super. 2003) (unpublished memorandum), appeal
denied, 856 A.2d 834 (Pa. 2004).] Santiago’s second PCRA
[P]etition, filed pro se, was dismissed as untimely following a
hearing, and that dismissal was affirmed by … this Court on April
7, 2010[, and the] Pennsylvania Supreme Court … denied [review]
on July 27, 2010. [See Commonwealth v. Santiago, 998 A.2d
1000 (Pa. Super. 2010) (unpublished memorandum), appeal
denied, 998 A.2d 960 (Pa. 2010).]
Commonwealth v. Santiago, 50 A.3d 252 (Pa. Super. 2012) (unpublished
memorandum at 1-2).
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Santiago filed his third, pro se, PCRA Petition on August 31, 2011, and
the PCRA court dismissed it as untimely filed. This Court affirmed the
dismissal of Santiago’s third PCRA Petition. See id.The PCRA court explained what occurred next as follows:
[O]n June 3, 2015, [Santiago] filed[, pro se,] his fourth PCRA
[P]etition, which [he] amended on March 29, 2016. Jennifer
Smith, Esquire [(“Attorney Smith”),] was appointed to represent
[Santiago.] On April 19, 2018, [Santiago] [] motion[ed] for new
counsel due to [Attorney Smith]’s failure to communicate. The
[PCRA c]ourt appointed Heather Reiner, Esquire [(“Attorney
Reiner”),] on April 26, 2018. An almost[-]illegible time-stamped
[P]etition … indicates that, on or about September 14, 2018,
[Santiago] motioned for new counsel due to [Attorney Reiner]’s
failure to communicate. [However, this Petition was sent to
Attorney Reiner, rather than the PCRA court.] On November 20,
2018, [Santiago] motioned to waive counsel and proceed pro se.
On January 18, 2019, Attorney Reiner [] motion[ed] to withdraw
as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. [] 1988) (en banc). [Attorney Reiner] was permitted to
withdraw on January 31, 2019[,] and [Santiago] elected to
proceed pro se. [Santiago] filed a[ pro se] [A]mended PCRA
[P]etition on February 1, 2019. What ensued thereafter was a
series of continuances based upon witness location and
evidentiary issues. [Santiago] submitted another [A]mended
PCRA [P]etition on July 9, 2020. At the conclusion of the PCRA
hearing on August 18, 2020, [Santiago]’s PCRA [P]etition was
dismissed as being time-barred.
PCRA Court Opinion, 12/4/20, at 2 (footnote omitted).
Santiago filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
Santiago now presents the following claims for our review:
1. Whether the PCRA [c]ourt erred[] and committed reversible
error in denying [Santiago]’s [PCRA P]etition as untimely filed
when [Santiago] established that his newly-discovered facts claim
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was timely[,] where [the] Commonwealth’s only eyewitness, []
Banks contacted [Santiago], and sent signed [A]ffidavits along
with unsworn declarations, recanting his trial testimony, claiming
that he withheld facts and physical evidence that would have
proved [Santiago] defended himself, and that [Banks] was
pressured by the police and the district attorney to withhold and
fabricate the facts, and [Santiago] filed a PCRA [P]etition within
60 days of receiving the first [A]ffidavit, was within the plain
language of the timeliness exception set forth at 42 Pa.C.S.A.
§ 9545(B)(1)(ii), (2)?
2. Whether the PCRA [c]ourt erred[] and committed reversible
error by applying a merit analysis when [Santiago] clearly invoked
the newly-discovered facts exception pursuant to 42 Pa.C.S.A.
§ 9545(b)(1)(ii), (2)?
3. Whether the PCRA [c]ourt erred[] and committed reversible
error when it failed to properly place [] Banks[] on the witness
stand to assert his [F]ifth [A]mendment privilege against self-
incrimination, and then declare him unavailable, when [Santiago]
had subpoenaed him at the August 18, 2020 hearing?
4. Whether the PCRA [c]ourt erred, and committed reversible
error when it violated [Santiago]’s state and federal constitutional
rights to due process by failing to rule upon [Santiago]’s Motion
in Limine with respect to admission of [] Banks’s statements
against his interest pursuant to Pa.R[.E.] 804 [(]a)(1)(2), (b)(3),
which included corroborating circumstances that clearly indicated
the trustworthiness of the statements, after the [PCRA c]ourt
declared that [] Banks would assert his [F]ifth [A]mendment
privilege against self-incrimination?
5. Whether the PCRA [c]ourt erred[] and committed reversible
error in denying [Santiago]’s state and federal constitutional
rights to due process by not assessing the credibility of the
recanted statements of [] Banks pursuant to the newly-discovered
fact exception found in 42 Pa.C.S.A. § 9545(b)(1)(ii), (2)?
6. Whether the PCRA [c]ourt erred and committed reversible error
in denying [Santiago]’s [A]mended [P]etition as untimely filed
when [Santiago] established that his newly-discovered facts was
[sic] untimely when he received the sentencing transcripts found
in [the] unrelated case files of witness [] Beatty pertaining to
multiple deals of leniency from the same prosecution that
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examined him at [Santiago]’s trial, after both the witness and the
prosecution denied any promise of deals of leniency, and these
deals were unknown to [Santiago]; [Santiago] then filed an
[A]mended [P]etition within 60 days of receiving the transcripts,
[which] was within the timeliness exception set forth at 42
Pa.C.S.A. § 9545([b])(1)([ii]), (2)?
7. Whether the Commonwealth’s attorney violated [Santiago]’s
state and federal constitutional rights to due process by failing to
correct false testimony of [] Beatty, when he testified that he was
not promised any deal of leniency in exchange for his testimony
against his own pending charges; and the Commonwealth also
used such testimony to bolster the credibility of this witness to the
[c]ourt and the jury at [Santiago]’s trial?
8. Whether the PCRA [c]ourt erred[] and committed reversible
error when it failed to rule upon [Santiago]’s Motion for [L]imited
[D]iscovery/Court [I]nspection of all relevant documents
contained in the prosecution’s file including, but not limited to,
inter alia, plea-agreements, nolle prosequi’s, and any
negotiations, deals, and meetings with [] Banks and [] Beatty
from the year(s): 1998-1999, when [Santiago] only had limited
information from witnesses [sic] docketing statements and
sentencing transcripts?
Brief for Appellant at 3-5.
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of the record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Under the PCRA, any PCRA petition “shall be filed within one year of the
date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment
of sentence becomes final “at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
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Supreme Court of Pennsylvania, or at the expiration of time for seeking
review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature, and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
Instantly, Santiago’s judgment of sentence became final on January 8,
2001, when the United States Supreme Court declined to review his case.
See 42 Pa.C.S.A. § 9545(b)(3). Thus, Santiago’s Petition is facially untimely.
However, Pennsylvania courts may consider an untimely petition if the
petitioner can explicitly plead and prove one of the three exceptions set forth
at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Those three exceptions are as follows:
(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 or 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). Any petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have been
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presented.” Id. § 9545(b)(2) (amended 2018).2 “The PCRA petitioner bears
the burden of proving the applicability of one of the exceptions.”
Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).
In his first claim, Santiago argues that Banks’s Affidavit constitutes a
newly-discovered fact. Brief for Appellant at 14-15. Santiago contends that
in May, 2015, he received the Affidavit from Banks, which included statements
that Berry had possessed a firearm and intended to rob Santiago on the night
in question. Id. at 15. Based upon Banks’s Affidavit, Santiago asserts that
Berry was armed with a firearm on the night of the incident, which supports
Santiago’s claim of self-defense. Id. at 15-18.
Santiago purports to invoke the newly-discovered fact exception, which
[r]equires that the facts upon which such a claim is predicated
must not have been known to [the petitioner], nor could they have
been ascertained by due diligence. To fall within this exception,
the factual predicate of the claim must not be of public record and
must not be facts that were previously known but are now
presented through a newly-discovered source.
Commonwealth v. Shannon, 184 A.3d 1010, 1015-16 (Pa. Super. 2018)
(citations, quotation marks, and some brackets omitted). Further, “[d]ue
diligence demands that the petitioner take reasonable steps to protect his own
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2 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(i.e., Dec. 24, 2018), extending the time for filing from 60 days of the date
the claim could have been first presented, to one year. The amendment
applies to claims arising on December 24, 2017, or thereafter. See Act 2018,
Oct. 24, P.L. 894, N. 146, § 3. Instantly, Santiago’s PCRA Petition was filed
on June 3, 2015, and thus, the original 60-day time limit applies.
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interests. A petitioner must explain why he could not have obtained the new
fact(s) earlier with the exercise of due diligence. This rule is strictly enforced.”
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).
Here, Santiago’s underlying assertion is that the Banks Affidavit
bolstered Santiago’s claim of self-defense.3 See Brief for Appellant at 15-18;
see also PCRA Court Opinion, 12/4/20, at 7-9. In raising this new self-
defense assertion, Santiago essentially concedes that he shot and killed Berry.
Importantly, a successful self-defense claim would have been predicated on
Santiago seeing or having knowledge of Berry’s gun at the time that he shot
and killed Berry. Indeed, there is no dispute that Santiago was present at the
shooting; therefore, he was aware of the circumstances of the incident. Thus,
Banks’s Affidavit, and in particular, Banks’s statements about Berry’s
possession of a firearm, do not constitute a newly-discovered fact. See
Shannon, supra; see also Commonwealth v. Brown, 111 A.3d 171, 176
(Pa. Super. 2015) (stating that a newly willing source for previously known
facts cannot satisfy the newly-discovered facts exception). Moreover,
Santiago fails to explain why he made no attempt to contact Banks prior to
trial, or why he was unable to uncover the information alleged in the Affidavit
earlier, with the exercise of due diligence. See Monaco, supra. Accordingly,
Santiago is not entitled to relief on this claim.
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3 We observe that Santiago did not assert a claim of self-defense at the time
of his trial. See PCRA Court Opinion, 12/4/20, at 8-9.
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In his second claim, Santiago argues that the PCRA court erred in
denying his PCRA Petition when it employed a merits analysis. Brief for
Appellant at 17.
Our review of the record reveals that the PCRA court did, in fact, dismiss
Santiago’s PCRA Petition on the basis of timeliness. 4 See N.T. (PCRA
Hearing), 8/18/20, at 28 (wherein the PCRA court stated “I am going to
dismiss the PCRA on the basis that it is time barred and does not meet any of
the exceptions to justify relief.”); see also PCRA Court Opinion, 12/4/20, at
9. Accordingly, this claim lacks merit.
In his third claim, Santiago contends that the PCRA court erred when it
failed to place Banks on the stand to assert his Fifth Amendment privilege.
Brief for Appellant at 18-19. Santiago claims that the PCRA court abused its
discretion when it failed to determine whether Banks’s statements in his
Affidavit were credible. Id. at 19.
In regards to this claim, Santiago fails to identify or invoke any of the
timeliness exceptions set forth at section 9545(b)(1)(i)-(iii). Accordingly, this
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4 We could find Santiago’s claim waived, because his appellate brief is devoid
of any citations to legal authority supporting his position and contains a single
two-sentence quote from the record. See Pa.R.A.P. 2119(a) (providing that
an appellant’s argument shall include “such discussion and citation of
authorities as are deemed pertinent.”); see also Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority[,] or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”). Nevertheless, we will address
Santiago’s claim.
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Court lacks jurisdiction to address the merits of these claims. See Albrecht,
supra. Moreover, as we discussed supra, Banks’s Affidavit does not constitute
a newly-discovered fact, and Santiago failed to exercise due diligence in
obtaining the Affidavit. See Shannon, supra; see also Monaco, supra.In his fourth claim, Santiago argues that the PCRA court erred when it
failed to rule on his Motion in Limine at the PCRA hearing. See Brief for
Appellant at 3. In his fifth claim, similar to his third claim, Santiago contends
that the PCRA court erred when it failed to assess the credibility of Banks’s
Affidavit at the PCRA hearing. See id.In regards to his fourth and fifth claims, Santiago fails to include any
supporting argument whatsoever, and accordingly, those claims are waived.
See Johnson, supra; Pa.R.A.P. 2119(a).
In his sixth claim, Santiago contends that the sentencing transcripts in
Beatty’s other criminal cases constitute newly-discovered facts. Brief for
Appellant at 19. Santiago argues that, in exchange for Beatty’s testimony
against Santiago, the Commonwealth had promised Beatty leniency at
Beatty’s sentencing hearing. Id. at 19-20. Additionally, Santiago claims that
Beatty lied when he testified at trial that he and the Commonwealth had no
such agreement. Id. Santiago claims that he exercised due diligence in
obtaining Beatty’s sentencing transcripts, because he had asked each of his
prior counsel, including his trial counsel, to obtain the transcripts, but none of
his prior counsel sought the transcripts. Id. at 21.
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Despite invoking the newly-discovered fact exception, Santiago provides
only bald assertions of his due diligence in obtaining the sentencing
transcripts. See Brief for Appellant at 21 (wherein Santiago contends that he
had sent written requests to all prior counsel to obtain Beatty’s sentencing
transcripts). Indeed, Santiago’s PCRA Petition, Amended PCRA Petitions and
his appellate brief are devoid of any support for this claim. Moreover, in his
brief, Santiago concedes that he was aware of the alleged “deal” between
Beatty and the Commonwealth since at least 2001, when he requested that
trial counsel request Beatty’s sentencing transcripts. See Brief for Appellant
at 21. Because Santiago had not exercised due diligence in procuring Beatty’s
sentencing transcripts, his reliance on the newly-discovered fact exception to
the PCRA’s timeliness requirement fails. See Albrecht, supra; see also
Monaco, supra.In his remaining two claims, Santiago fails to identify or invoke any of
the timeliness exceptions set forth at section 9545(b)(1)(i)-(iii). Rather,
Santiago claims that his due process rights were violated when, at trial, the
District Attorney failed to correct Beatty’s statements regarding “leniency” in
exchange for Beatty’s testimony against Santiago; the District Attorney
violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to provide the
alleged agreement; and the Commonwealth knowingly presented false
testimony through Beatty. Brief for Appellant at 24-28. In these remaining
claims, Santiago has failed to invoke any of the exceptions to the PCRA time
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bar and, thus, this Court lacks jurisdiction to address the merits of these
claims. See Albrecht, supra.
Based upon the foregoing, the PCRA court did not err in dismissing
Santiago’s Petition as untimely filed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/22/2021
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