Com. v. Soto Jr., H. ( 2021 )

J-S22023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HECTOR MANUEL SOTO, JR. :
:
Appellant : No. 25 MDA 2021
Appeal from the PCRA Order Entered December 10, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0006101-2004
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED OCTOBER 20, 2021
Hector Manuel Soto, Jr. (Appellant) takes this counseled appeal from
the order entered in the Berks County Court of Common Pleas, following a
hearing, dismissing his fourth Post Conviction Relief Act1 (PCRA) petition as
untimely filed. Appellant seeks collateral relief from his jury convictions of,
inter alia, second and third degree murder.2 On appeal, Appellant argues the
PCRA court erred in dismissing the petition as untimely after he presented
newly discovered evidence of an alleged eyewitness and a recantation by a
trial witness. The PCRA court found Appellant raised these issues in a 2017
PCRA petition. For the reasons that follow, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. § 2502(b), (c).
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The PCRA court summarized the underlying facts of this case as follows:
During the evening of October 3, 2004, Jason Stief and
Courtnee Salvati were visiting the home of Miguel [(Victim)] and
Dallanara Colon at 1024 Perry Street in the City of Reading, Berks
County. The Colons’ eighteen-month-old child was also present.
Three uninvited men entered the residence through the unlocked
exterior door.
Each of the intruders was wearing a hooded sweatshirt and
two of them had the hoods pulled tight around their faces. Each
of the intruders also carried a gun and pointed it at one or several
of the victims. One intruder told [Victim] to give him everything
he had; meanwhile, the other intruders held Ms. Salvati, Mr. Stief,
Ms. Colon, and the baby at gun point. When [Victim] responded
that he didn’t have anything, one intruder struck him on the head
with the gun. [Victim] gave something to one of the men, but
they continued arguing with him, demanding more money.
[Victim] then ran outside with all three intruders pursuing him.
Within seconds of their exit, four or five gunshots were fired.
Shortly after the gunfire, Mr. Stief, Ms. Salvati, and Ms.
Colon, who was carrying the baby, left the house looking for
[Victim]. Other individuals found [Victim] wounded and lying on
the sidewalk. A group of individuals then gathered, including Ms.
Colon, Mr. Stief, Ms. Salvati, and Mr. Stief’s mother, who lived in
the neighborhood. Mr. Stief told Ms. Salvati that he knew the
identity of one of the intruders. Mr. Stief spoke with detectives[3]
from the City of Reading Police Department and identified
[Appellant] from a JNET photograph as one of the perpetrators.
[Victim died as a result of this shooting.]
Michael Cortez, who shared a cell with [Appellant] at prison,
testified that [Appellant] told him that he was incarcerated for
homicide and one of the witnesses knew him from school.
[Appellant] indicated that the witness probably could not
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3 Initially, Stief told police a man named “Hector Rosario” was involved in the
incident; however, after further investigation, police concluded Stief “simply
forgot, or misstated, the last name of the ‘Hector’ he was referring to.”
Commonwealth v. Soto, 1427 MDA 2007 (unpub. memo. at 2-3 n.2) (Pa.
Super. Jan. 5, 2009), appeal denied, 60 MAL 2009 (Pa. May 5, 2010).
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recognize him because a hooded sweatshirt was covering his face
at the time of the robbery. In addition, [Appellant] said that he
did not need to worry about that witness because he made sure
the witness was deceased. Mr. Stief was shot and killed
[approximately 11 days after this shooting,] while [Appellant] was
incarcerated, prior to the preliminary hearing.
PCRA Ct. Op., 3/8/21, at 5-6.
This case proceeded to a jury trial on July 9, 2007, and Appellant was
found guilty of second degree murder, third degree murder, simple assault,
robbery, burglary, possession of an instrument of crime, criminal trespass,
and conspiracy.4 The trial court sentenced Appellant on July 31, 2007, to life
imprisonment. This Court affirmed his judgment of sentence on January 5,
2009. Soto, 1427 MDA 2007. Appellant sought allowance of appeal with our
Supreme Court, which was denied May 5, 2010. Soto, 60 MAL 2009.
Appellant filed a timely, counseled first PCRA petition, which was
dismissed after a hearing on December 9, 2011. This Court affirmed the
dismissal on September 10, 2012. Commonwealth v. Soto, 2260 MDA 2011
(unpub. memo.) (Pa. Super. Sept. 10, 2012), appeal denied, 801 MAL 2012
(Pa. Apr. 17, 2013). Appellant then sought allowance of appeal with our
Supreme Court, which was denied April 17, 2013. Appellant filed a second
PCRA petition, which was dismissed on April 12, 2016. He did not appeal.
____________________________________________
4 18 Pa.C.S. §§ 2701(a)(1), 3701(a)(1)(ii), 3502, 907(b), 3503, 903,
respectively.
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On November 20, 2017, Appellant filed a third PCRA petition and
supplemental petition,5 alleging newly discovered evidence. Appellant cited
both: (1) a September 25, 2017, private investigator interview with an alleged
eyewitness to the shooting, Lucas Faith;6 and (2) the recantation of
Commonwealth trial witness, Michael Cortez. PCRA Ct. Op. at 9. The PCRA
court dismissed these petitions on April 5, 2019. Appellant filed an appeal on
April 29, 2019. While that appeal was pending, Appellant filed the underlying,
fourth pro se PCRA petition on June 27, 2019.7 Appellant then filed a
counseled motion to discontinue the appeal of his third petition, which this
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5 Appellant filed both a “Motion/Petition for DNA Testing” and a habeas petition
requesting an evidentiary hearing. The PCRA court construed them both as
Appellant’s third PCRA petition. See 42 Pa.C.S. § 9542 (PCRA shall be the
“sole means of obtaining collateral relief and encompasses all other common
law and statutory remedies[,] including habeas corpus[.]”); Commonwealth
v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) (“[I]f the underlying
substantive claim is one that could potentially be remedied under the PCRA,
that claim is exclusive to the PCRA.”) (emphasis in original).
6 Private Investigator Tom Pisano interviewed Faith in 2017 regarding a
murder trial for defendant Norman Vega. Vega then mailed Appellant’s
present PCRA counsel, Jack McMahon, Esquire, a letter with Private
Investigator Pisano’s notes from the Faith interview. Appellant’s Supplement
to Pending Habeas Corpus/ PCRA Petition, 11/20/17, Letter to Jack McMahon,
Esquire.
7 Both the Commonwealth and Appellant state that Appellant also filed a
supplement to his fourth petition on July 22, 2020. Appellant’s Brief at 9-10;
Commonwealth Brief at 5. The Commonwealth contends Appellant filed this
supplemental brief without leave of court. Commonwealth Brief at 5.
However, it does not appear this supplement is included in this voluminous
record.
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Court granted on September 28, 2020. Commonwealth v. Soto, 707 MDA
2019 (order) (Pa. Super. Sept. 28, 2020).
The PCRA court held an evidentiary hearing on Appellant’s fourth
petition on July 30, 2020. Appellant, represented by Attorney McMahon,
presented two witnesses, Faith and Cortez. Appellant testified at the PCRA
hearing that he learned of Faith’s interview with a private investigator after
“someone on the street” sent his family a letter. N.T. PCRA H’rg, 7/30/20, at
110. Appellant sent his third PCRA counsel, Lara Hoffert, Esquire, this letter
“expecting” her to “follow up” on Faith’s interview, but “she did not do that.”
Id. Appellant subsequently contacted Private Investigator Pisano to
reinterview Faith. Id. at 110.
Faith testified that on the night of the shooting in 2004, 15 years earlier,
he was 12 years old. N.T. at 24. Around 9:30 p.m., he was near 10th and
Perry Streets in Reading, Pennsylvania. Id. at 26, 40. Faith saw three men,
whom he recognized “from the neighborhood[,]” and identified them as
Orlando, Hector, and Tony. Id. at 27-28. Faith observed the three men enter
a home after a food delivery “[a]nd a short time after that,” Faith saw a “bald
man[,]” who was Victim, run toward an alleyway followed by the three men.
Id. at 30-32. Faith stated that Orlando “fired two to three shots” toward
Victim. Id. at 31. Faith did not go to police because he “felt it was not safe[.]”
Id. at 32-33. Faith also stated that on September 25, 2017, he told Private
Investigator Pisano about witnessing this crime. Id. However, Private
Investigator Pisano did not show a photo array to Faith during this interview.
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Id. at 34. Nineteen months later, on May 17, 2019, Private Investigator
Pisano reinterviewed Faith and showed him “numerous photos of people
named Hector.” Id. at 37, 39. Faith stated that Appellant was not the Hector
he saw the night of the incident. Id.
Appellant also claimed newly discovered evidence in the form of a
recantation by Commonwealth trial witness, and prison informant, Michael
Cortez. As stated above, Cortez testified at trial that Appellant admitted to
him he was involved in the murder of Victim. N.T. at 116-17. At the PCRA
hearing, Cortez stated that his testimony at the trial “was all false.” Id. at
116. Cortez stated Appellant never made an admission to him while in prison
together and he only learned of the details of the incident when police showed
him another witness’s written statement. Id. at 120. Cortez stated he only
agreed to testify at trial after police threatened “to deport [his] family[,]” and
gave him “rent money” and “[h]ockey tickets[.]” Id. at 119, 121-22.
The PCRA court dismissed Appellant’s fourth petition on December 10,
2020, finding it was untimely filed. This timely appeal follows. Appellant
timely complied with the PCRA court’s order to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following claims on appeal:
A. Whether the trial court erred in denying [ ] Appellant’s PCRA
petition where [ ] Appellant presented newly discovered
exculpatory evidence of an eyewitness, Lucas Faith[,] which
would have affected the outcome of the trial?
B. Whether the trial court erred in denying [ ] Appellant’s PCRA
petition where [ ] Appellant presented newly discovered
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evidence in the form of the recantation of one of two prison
informants on whom the Commonwealth relied to prove its
case, Michael Cortez?
Appellant’s Brief at 5.
The standard by which we review PCRA petitions is well settled:
Our standard of review in a PCRA appeal requires us to
determine whether the PCRA court’s findings of fact are supported
by the record, and whether its conclusions of law are free from
legal error. The scope of our review is limited to the findings of
the PCRA court and the evidence of record, which we view in the
light most favorable to the party who prevailed before that court.
[ ] The PCRA court’s factual findings and credibility
determinations, when supported by the record, are binding upon
this Court. However, we review the PCRA court's legal conclusions
de novo.
Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citations
omitted).
First, we must address the timeliness of the petition:
“Crucial to the determination of any PCRA appeal is the
timeliness of the underlying petition.” The timeliness requirement
for PCRA petitions “is mandatory and jurisdictional in nature.”
* * *
A PCRA petition is timely if it is “filed within one year of the
date the judgment [of sentence] becomes final.” 42 Pa.C.S.A.
§ 9545(b)(1). “[A] judgment becomes 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.A.
§ 9545(b)(3).
Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (en
banc) (some citations omitted).
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In the instant case, the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal on May 5, 2010. Appellant then had 90 days
to seek certiorari with the United States Supreme Court. See S.Ct.R. 13(1).
Appellant did not, and thus his judgment of sentence became final on Monday,
August 9, 2010.8 Appellant then generally had one year, or until August 9,
2011, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Appellant filed
the present PCRA petition on June 27, 2019, approximately eight years
thereafter.
We thus consider whether Appellant properly invoked one of the
timeliness exceptions below:
(1) Any [PCRA petition], including a second or subsequent
petition, shall be filed within one year of the date the judgment
becomes final, unless the petition alleges and the petitioner
proves that:
(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
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8 The ninetieth day after May 10, 2010, was Sunday, August 8th. We thus
conclude his judgment of sentence became final the following day, Monday.
See 1 Pa.C.S. § 1908 (when last day of any period of time referred to in any
statute falls on Saturday, Sunday, or legal holiday, such day shall be omitted
from computation).
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Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.
See 42 Pa.C.S. § 9545(b)(1)-(2) (2017).9 The PCRA court found Appellant
failed to properly invoke any of these exceptions.
In his first claim, Appellant argues the PCRA court erred in denying relief
when he presented the newly discovered evidence of Faith’s exculpatory
eyewitness account. Appellant’s Brief at 12. Appellant maintains Faith “was
not a known witness” at the time of trial, “was not on any discovery list[,]”
and “would have testified” at trial if Appellant subpoenaed him. Id. When
shown a photograph of Appellant on May 19, 2019, Faith told Private
Investigator Pisano that Appellant “was not . . .part of the three man group
that” committed the robbery and murder. Id. at 13, 15. Appellant avers Faith
testified about the 2004 crime “for the very first time” at the July 30, 2020,
PCRA hearing. Id. at 12. Appellant insists he could not obtain this evidence
before his trial because Faith “told nobody . . . what he observed that night”
and “nobody” was aware he “was an eyewitness.” Id. at 14. Appellant argues
Faith’s testimony is “accurate and credible” because he knew information
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9 This subsection was amended, effective December 24, 2018, to provide
petitioners with one year to invoke a timeliness exception regarding “claims
arising on Dec. 24, 2017[,] or thereafter.” 42 Pa.C.S. § 9545(b)(2); Section
3 of Act 2018, Oct. 24, P.L. 894, No. 146, effective in 60 days. Because
Appellant learned of the evidence at issue in his claims before the effective
date of the amendment, the amendment is not applicable here.
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“consistent [and] unique to the incident,” including the use of a single gun,
Victim being bald and fleeing the home, the number of perpetrators and what
they were wearing, and that a pizza delivery immediately preceded the
robbery). Id. at 16-17. Appellant contends Faith’s testimony is exculpatory,
“exonerates [him as] a participant in any way[,]” and is “extremely likely to
have had an [effect] on the jury’s determination of guilt.” Id. at 14.
Contrary to Appellant’s contention that he first learned of Faith’s
“exonerating” statement after Faith’s May 19, 2019, interview with Private
Investigator Pisano, we agree with the PCRA court that Appellant knew of this
evidence in 2017. The PCRA court stated:
[Appellant] knew about [Private Investigator] Pisano’s first
interview with [Faith] on September 25, 2017[,] when [Appellant]
filed his third PCRA petition on November 20, 2017[,] because he
alleged in that petition that it was newly discovered evidence.
[Appellant] made no efforts to gather the necessary additional
information from [ ] Faith until a second interview with Mr. Faith
was conducted on May 17, 2019, almost twenty months after the
first interview and eighteen months after [Appellant] filed his
petition alleging this evidence. In the first interview, Mr. Faith just
said that [Appellant] had not fired the shots. He never presented
any evidence that [Appellant] had not been present during the
shooting. Thus, [Appellant] did not exercise the requisite due
diligence to bring the issue regarding the second interview timely
before this court.
PCRA Ct. Op., at 9. Further, in Appellant’s third PCRA petition, he claimed the
men Faith saw during the incident “did not include [him],” and Faith “will
absolutely be able to testify that [Appellant was] not” present during the
incident. Appellant’s Supplement to Pending Habeas Corpus/PCRA petition,
11/20/17, at 3 (unpaginated); Appellant’s sworn affidavit, 11/20/17.
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Appellant was insistent in 2017 that Faith’s statement was exculpatory, but
he failed to exercise due diligence or further investigate the claim within the
allotted 60-day period. See 42 Pa.C.S. § at 9545(b)(2) (2017). We agree
with the PCRA court’s conclusion that this claim is time barred. See 42 Pa.C.S.
§ 9545(b)(1)(ii), (2). Thus, no relief is due.
In his second claim on appeal, Appellant argues the PCRA court erred in
denying relief when he presented the newly discovered recantation of
Commonwealth trial witness Cortez. Appellant’s Brief at 20. Appellant cites
Cortez’s admission, at the PCRA hearing, that his trial testimony “was
completely made up and a lie.” Id. Cortez gave “the fabricated testimony to
stop [g]overnment efforts to deport his family.” Id. Appellant maintains he
could not bring a claim about Cortez’s recantation at an earlier time because
Cortez “never opened up about his lie until 2019.” Id. at 22. Appellant insists
that if Cortez told the truth at trial, “it would have eliminated a significant part
of an already less than stellar case.” Id. at 20.
The PCRA court likewise found Appellant previously raised this issue, in
his 2017 third PCRA petition. PCRA Ct. Op. at 10. Appellant does not address,
nor dispute, this analysis. Our review of the record supports the PCRA court’s
finding — that Appellant included this claim, citing the same information that
was in Cortez’s 2020 PCRA hearing testimony, in his 2017 habeas corpus
petition. See Appellant’s Habeas Corpus Petition, 9/14/17, at 34. In his
habeas petition, Appellant also averred Cortez fabricated his testimony based
on information police provided to him and argued why Cortez gave false
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testimony at trial. Id. at 37. We again agree with the PCRA court’s conclusion
that Appellant’s claim does not meet the newly discovered fact exception to
the PCRA time bar because he knew of Cortez’s recantation in 2017. See 42
Pa.C.S. § 9545(b)(1)(ii), (2); PCRA Ct. Op. at 9. Thus, the court was without
jurisdiction to hear the present petition. See Montgomery, 181 A.3d at 365.
Finally, we agree with the PCRA Court’s determination that Appellant’s claims
were previously litigated in his third PCRA petition, and thus are not eligible
for PCRA relief. See PCRA Ct. Op. at 9-10; see 42 Pa.C.S. § 9543(a)(3) (to
be eligible for PCRA relief, the allegation cannot be previously litigated). No
relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2021
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