MEMORANDUM BY BOWES, J.
Charles K. Diggs appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). Upon review, we affirm.
We previously summarized the relevant factual history of this case as follows:
In 1977, Appellant proceeded to a jury trial. The jury convicted Appellant of first-degree murder, criminal conspiracy, possession of an instrument of crime, and prohibited weapons. In 1991, federal habeas corpus relief was granted after it was determined that a prosecutor had systematically excluded black venire persons from Appellant's jury, in violation of
A second jury trial was held in 1991, at which Ricardo Kelsey testified that Appellant had confessed to participating in the murder while they were incarcerated together.
Appellant filed a timely pro se PCRA petition, and counsel was appointed. Multiple assignments, withdrawals of counsel, and amended PCRA petitions followed. On January 8, 2002, the PCRA court dismissed Appellant's PCRA petition without a hearing, finding that all of his claims lacked merit. On appeal, we addressed Appellant's newly-discovered evidence claim regarding the PCRA court's failure to grant a hearing concerning the affidavits of Charles Giles and Timothy VanHook. Appellant asserted that the affidavits indicated that Ricardo Kelsey had lied at trial about Appellant's involvement in the murder. Appellant's appeal was unsuccessful as we agreed with the PCRA court that neither affidavit specifically asserted that Kelsey lied. When affirming the trial court's dismissal order, we also pointed out "that noticeably absent is an affidavit from Kelsey indicating that he lied at trial."
Appellant filed a petition for reconsideration, which we denied, and a petition for allowance of appeal to the Supreme Court, which was granted. The Supreme Court remanded the case to our Court with directions to address the other thirteen issues raised by Appellant that we had found waived. Our subsequent memorandum addressed the additional issues, and reaffirmed our previous decision regarding Appellant's newly-discovered evidence claim.
On August 21, 2012, Appellant filed his second PCRA petition, alleging that
On September 7, 2016, counsel filed an amended petition alleging that Appellant had uncovered notes of the medical examiner that contradicted the victim's dying declaration and that were withheld from the defense in violation of
On January 15, 2017, Appellant filed a petition requesting permission to add a new claim to his PCRA petition. In the supplement, Appellant alleged an additional claim of after-discovered evidence in the form of a witness recantation. Specifically, Appellant said that Timothy VanHook had made contact with Appellant in prison on November 19, 2016. VanHook told Appellant that Ricardo Kelsey had admitted to lying about Appellant's involvement in the murder. VanHook was one of the newly-discovered witnesses in Appellant's original PCRA petition filed ten years before, wherein he also alleged that Ricardo Kelsey had lied at trial. Appellant requested more time to investigate this new evidence. Appellant filed additional supplements, attaching affidavits by inmates Timothy VanHook, Charles Giles, and William Broxton, all who stated that Ricardo Kelsey admitted to them that he lied during his trial testimony in this case.
On April 10, 2017, Appellant filed another petition seeking to add a new claim to his Amended PCRA petition. Therein, Appellant asserted that after meeting with Appellant's private investigator on January 28, 2017, Kelsey had agreed to come forward to admit that he lied when he testified against Appellant. In March of 2017, Kelsey met with Appellant's investigator and signed an affidavit to that effect, which was filed on May 14, 2017. The Commonwealth responded with a supplemental motion to dismiss, indicating that it wanted a hearing, because it had obtained a competing affidavit from Kelsey wherein he reaffirmed the validity of his trial testimony. The Commonwealth emphasized that despite its request for a hearing, it was not conceding timeliness on either of Appellant's issues.
On November 8 and 27, 2017, the PCRA court held evidentiary hearings on both of the after-discovered evidence claims.
Appellant raises the following issues for our review:
Appellant's brief at 2.
We begin with the pertinent legal principles. Our "review is limited to the findings of the PCRA court and the evidence of record" and we do not "disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error."
Under the PCRA, any petition "including a second or subsequent petition, shall be filed within one year of the date the judgment [of sentence] becomes final[.]" 42 Pa.C.S. § 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 Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S. § 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.
The time bar can "only be overcome by satisfaction of one of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii)."
The timeliness exception set forth at § 9545(b)(1)(ii) has two components, which must be alleged and proven as an initial jurisdictional threshold.
Once it is established that the PCRA court has jurisdiction over the claim, the petitioner can present a substantive after-discovered evidence claim.
In his first claim, Appellant challenges the PCRA court's review of the record when it dismissed his allegation of after-discovered evidence regarding newly-discovered medical examiner records. The PCRA court held a hearing on this issue, before concluding that the documents did not constitute after-discovered evidence as Appellant had not shown due diligence or prejudice. PCRA Court Opinion, 7/17/18, at 9-11.
Despite the PCRA court's failure to do so, we must discern whether we have jurisdiction before proceeding to an analysis of the merits of Appellant's after-discovered evidence claim. Although facially untimely, Appellant pled a newly-discovered fact exception in order to overcome the PCRA time bar.
A review of the PCRA hearing transcripts reveals that Appellant's allegation that he had no reason to think that there were any documents outstanding from the medical examiner's office is disingenuous, as the existence of these documents was known to trial counsel at the time of trial. Specifically, Appellant's trial counsel testified that he was aware that such documents existed at the time of Appellant's trial and that he did not request them because he "didn't think there would be an issue pertaining to it." N.T. PCRA Hearing, 11/8/17, at 15-18.
Also, reasonable investigation could have uncovered the outstanding medical records many years sooner. As the PCRA court concluded, given that trial counsel was aware of the existence of these documents, and PCRA counsel obtained them by directing a subpoena to the medical examiner's office, "trial counsel had the ability to subpoena the aforementioned documents from the Office of the Medical Examiner prior to trial, but did not." PCRA Court Opinion, 7/17/18, at 11. Appellant has shown us nothing that counters the veracity of that finding. More importantly, Appellant offers no explanation as to why he could not have discovered the documents years earlier simply by serving the subpoena he waited until 2016 to pursue. Therefore, since we can affirm on any basis supported by the record, we find that Appellant has failed to meet the newly-discovered fact exception to the time-bar, and thus his petition is not timely filed.
Next, Appellant argues that the PCRA court erred when it did not grant him a new trial because Ricardo Kelsey lied when he testified that Appellant had confessed his involvement in the murder. Appellant's brief at 11. Again, the PCRA court failed to conduct a jurisdictional timeliness analysis, before proceeding substantively. However, in its analysis of the first issue, the PCRA court implicitly found that the newly-discovered fact requirements necessary to establish jurisdiction were met here, when it made a credibility determination regarding the Ricardo Kelsey affidavit and testimony. The parties do not dispute this jurisdictional finding. From our review of the record, we conclude that Appellant timely pled his newly-discovered fact of Ricardo Kelsey's alleged recantation for purposes of the timeliness exception in 42 Pa.C.S. § 9542(b)(1)(ii) and the PCRA court had jurisdiction to reach the merits.
The PCRA court found the affidavit to be "wholly lacking in credibility" when balanced against Kelsey's testimony at the evidentiary hearing. PCRA Court Opinion, 7/17/18, at 6. We agree. In the 1990s, Ricardo Kelsey contacted the police and told them that Appellant had confessed to him his involvement in the murder of the victim. N.T. PCRA Hearing, 11/8/17, at 66. After the court issued a protective order, Kelsey testified against Appellant at the 1991 trial.
Viewing the affidavit in the context of the larger record, where Kelsey has been consistent in his testimony despite repeated pressure from others on Appellant's behalf, the PCRA court credited Kelsey's PCRA hearing testimony. PCRA Court Opinion, 7/17/18, at 6. The certified record supports the PCRA court's findings. Thus, we discern no abuse of discretion in the PCRA court's denial of this claim for relief. Accordingly, we affirm the PCRA court's order dismissing the PCRA petition.
Order affirmed.
Judgment Entered.