Opinion
J-S49018-19 No. 2750 EDA 2018
10-22-2019
COMMONWEATLH OF PENNSYLVANIA Appellee v. JUSTIN HEARD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered August 30, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0004950-2008 BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E. MEMORANDUM BY STABILE, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Justin Heard, appeals from the August 30, 2018 order dismissing his petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We affirm.
On November 13, 2009, Appellant entered a negotiated guilty plea to one count of third-degree murder stemming from an incident in which Appellant conspired with several others to commit a robbery. During the robbery, one occupant of the home was shot and killed, and another was shot and seriously injured. The trial court immediately imposed 17½ to 35 years of incarceration. Appellant did not file a direct appeal.
On May 20, 2016, Appellant filed the instant, counseled PCRA petition, alleging the newly discovered fact that one of his codefendants, Kevin Hiller, who would have testified against Appellant at trial, had denied knowledge of the murders in his testimony in a separate proceeding. The Commonwealth filed a motion to dismiss the petition on February 6, 2018, and Appellant filed a counseled response on May 29, 2018. On July 30, 2018, the PCRA court entered its notice of intent to dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 907. The court dismissed the petition as untimely on August 30, 2018. This timely appeal followed.
On appeal, Appellant claims the PCRA court erred in dismissing the petition without a hearing. Appellant's Brief at 4. On appellate review, the PCRA court's findings are binding on this Court if the record supports them. Commonwealth v. Mason , 130 A.3d 601, 617 (Pa. 2015). We review the PCRA court's legal conclusions de novo. Id . A PCRA court has no jurisdiction to entertain a petition unless the petitioner files it within one year of the date on which his judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(1). The PCRA includes several exceptions to the time bar, one of which is the discovery of new facts which "were unknown to the petitioner and could not have been ascertained by the exercise of due diligence." 42 Pa.C.S.A. § 9545(b)(1)(ii). As of May 20, 2016, when Appellant filed his petition, § 9545 required him to file his petition within 60 days of the first date on which he could have raised the claim.
Section 9545(b)(2) has since been amended to permit petitions within one year of the first date on which the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). --------
Appellant concedes that his petition is facially untimely, but he alleges that Hiller's denial of knowledge of the murder is a newly discovered fact under § 9545(b)(1)(ii). Appellant claims he became aware of the Hiller's testimony on March 23, 2016, such that his May 20, 2016 petition was timely. As the PCRA court explained, however, Appellant failed to offer any substantiation of his due diligence. Appellant offered only a short portion of a transcript (two questions and two short answers comprising less than a single page) attached as an exhibit to his PCRA petition. Appellant produced no evidence of the date on which Hiller gave his testimony, and therefore Appellant failed to plead or prove that he exercised due diligence in learning of Hiller's testimony. PCRA Court Opinion, 11/26/18, at 9. Thus, Appellant has failed to plead and prove the applicability of § 9545(b)(1)(ii); see Commonwealth v. Brown , 111 A.3d 171, 176 (Pa. Super. 2015), appeal denied , 125 A.3d 1197 (Pa. 2015) (noting that the requirement for a petitioner to prove his due diligence is strictly enforced).
Further, the PCRA court noted that Hiller's denial would have been impeachment evidence, as it contradicted other statements Hiller gave to authorities. Mere impeachment evidence does not constitute a newly discovered fact. Brown , 111 A.3d at 177 n.4. Thus, even if Appellant had established jurisdiction by pleading and proving the applicability of § 9545(b)(1)(ii), his claim would have failed.
We conclude that the PCRA court did not err in dismissing Appellant's petition as untimely, and we affirm the order for the reasons explained in the PCRA court opinion (attached).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/22/19
Image materials not available for display.