Com. v. Santiago, W. ( 2017 )

J-S26044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM SANTIAGO :
:
Appellant : No. 1294 MDA 2016
Appeal from the PCRA Order July 8, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002738-2004
BEFORE: BOWES, DUBOW, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 26, 2017
Appellant, William Santiago, appeals from the order entered in the
York County Court of Common Pleas dismissing his second Post Conviction
Relief Act1 (“PCRA”) petition. He argues that his petition was timely filed
pursuant to the new facts exception to the PCRA. 42 Pa.C.S. §
9545(b)(1)(ii). We affirm.
A prior panel of this Court summarized the facts and procedural
posture of this case as follows:
On January 13, 2005, a jury convicted Appellant of first
degree murder. On the following day, he was sentenced to
life imprisonment. The conviction stems from the 2004
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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shooting death of sixteen-year-old William Barnes as part
of an ongoing altercation between rival drug dealers over
distribution territory in Hanover, Pennsylvania. The victim
and Appellant’s accomplice, William Riley, were street-level
drug dealers for Appellant’s rival, Kunta King. Appellant
enticed Mr. Riley to draw the victim from a motel room,
whereupon Appellant forced the victim into an automobile
at gunpoint, drove to an alley in York, Pennsylvania, and
shot him repeatedly. This Court affirmed the judgment of
sentence on July 31, 2006, and our Supreme Court denied
allowance of appeal on November 28, 2007.
Commonwealth v. Santiago, 909 A.2d 887 (Pa. Super.
2006) (unpublished memorandum), appeal denied,
Commonwealth v. Santiago, 937 A.2d 445 ([Pa.] 2007).
The United States Supreme Court denied certiorari on April
28, 2008. Santiago v. Pennsylvania, 533 U.S.
1021(2008).
Thereafter, acting pro se, Appellant filed the underlying
PCRA petition on December 15, 2008. Counsel was
appointed to represent Appellant, and counsel filed an
amended PCRA petition. After an evidentiary hearing on
June 29, 2009, the PCRA court denied relief.
Commonwealth v. Santiago, 1346 MDA 2009, (unpublished memorandum
at 1-2) (Pa. Super. Aug. 18, 2010). Appellant appealed, and this Court
affirmed. See id.
On October 29, 2015, Appellant filed the instant second PCRA petition.
The Commonwealth filed a motion to dismiss the PCRA petition. The PCRA
court granted the Commonwealth’s motion to dismiss the claims raised in
the petition with the exception of the issue of the affidavit of Shannon Ritter.
See Order, 6/28/16, at 1-2. A hearing was held on June 28, 2016. On July
8, 2016 the PCRA court granted the motion to dismiss. This timely appeal
followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of
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errors complained of on appeal and the PCRA court filed a Rule 1925(a)
opinion, based upon its opinion in support of the order granting the
Commonwealth’s motion to dismiss the PCRA petition.
Appellant raises the following issues for our review:
I. Whether the [PCRA] court erred in denying relief when it
dismissed as untimely the issue of the newly discovered
evidence of Johnnie Simmons affidavit of September 2015
concerning his statements to the police?
II. Whether the [PCRA] court erred in denying relief when
it dismissed as untimely the issues that Attorney [William
H.] Graff [Jr.] did not present a valid subpoena prior to the
[c]ourt issuing a warrant for Shannon Ritter and that
Attorney Graff had an ex parte communication with the
[c]ourt to get the warrant issued for Shannon Ritter?
III. Whether the [PCRA] court erred in denying relief when
it dismissed as untimely the issue that the search warrants
are not part of the case file in the Clerk of Courts Office?
IV. Whether the [PCRA] court erred in denying relief when
it dismissed as untimely the issue of Shannon Ritter’s
recantation in his affidavit in September 2015?
Appellant’s Brief at 4.
We reproduce Appellant’s argument in support of his first claim
verbatim:
It is undisputed that the [PCRA] petition was filed well
after the one year deadline to file a petition. Appellant
contends that the circumstances in this case meet the
exception that the after discovered evidence was unknown
to him, and he would have been unable to have known
them [sic] through the exercise of due diligence.
Appellant contends that the testimony of Johnn[ie]
Simmons would have been able to attack the credibility of
the investigation of the York City Police Department. Mr.
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Simmons had presented a written affidavit to Appellant on
September 23, 2015, stating that he never made any
statements against Appellant. This testimony if presented
to a jury would be able to cast doubt on how the
investigation was conducted by the York City Police
Department, as well as how the case was prosecuted by
the York County District Attorney’s Office.
At the time of Appellant’s trial, he did not have any
reason to question the investigation and prosecution of his
case. It was not until Appellant notice [sic] issues with the
search warrants not being in the York County Clerk of
Courts office that he began to question these issues.
Appellant filed his PCRA within 60 days of receiving the
affidavit from Mr. Simmons. Given the impact his
testimony would have had to a jury, Appellant contends
the [PCRA] Court erred in dismissing his PCRA petition.
Id. at 8-9.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-
(iii) applies and the petition is filed within 60 days of the date the claim
could have been presented.” Commonwealth v. Copenhefer, 941 A.2d
646, 648 (Pa. 2007) (citations and footnote omitted).
Jurisdictional time limits go to a court’s right or
competency to adjudicate a controversy. These limitations
are mandatory and interpreted literally; thus, a court has
no authority to extend filing periods except as the statute
permits. Unlike a statute of limitations, a jurisdictional
time limitation is not subject to equitable principles such as
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tolling except as provided by statute. Thus, the filing
period is only extended as permitted; in the case of the
PCRA, the time limitations are extended upon satisfaction
of the exceptions found in § 9545(b)(1)(i)-(iii) and timely
filing pursuant to (b)(2). As it has been established that
the PCRA’s time restrictions are jurisdictional, we hold that
the period for filing a PCRA petition is not subject to the
doctrine of equitable tolling, save to the extent the
doctrine is embraced by § 9545(b)(1)(i)-(iii).
Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999).
The three timeliness exceptions are:
(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. § 9545(b)(1)(i)-(iii).
The timeliness exception set forth at Section
9545(b)(1)(ii) has often mistakenly been referred to as the
“after-discovered evidence” exception. [Commonwealth
v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007)]. “This
shorthand reference was a misnomer, since the plain
language of subsection (b)(1)(ii) does not require the
petitioner to allege and prove a claim of ‘after-discovered
evidence.’” Id. Rather, as an initial jurisdictional
threshold, Section 9545(b)(1)(ii) requires a petitioner to
allege and prove that there were facts unknown to him and
that he exercised due diligence in discovering those facts.
Once jurisdiction is established, a PCRA petitioner can
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present a substantive after-discovered-evidence claim.
See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
eligible for relief under PCRA, petitioner must plead and
prove by preponderance of evidence that conviction or
sentence resulted from, inter alia, unavailability at time of
trial of exculpatory evidence that has subsequently
become available and would have changed outcome of trial
if it had been introduced). In other words, the “new facts”
exception at:
[S]ubsection (b)(1)(ii) has two components, which
must be alleged and proved. Namely, the petitioner
must establish that: 1) the facts upon which the
claim was predicated were unknown and 2) could
not have been ascertained by the exercise of due
diligence. If the petitioner alleges and proves these
two components, then the PCRA court has
jurisdiction over the claim under this subsection.
Bennett, [ ] 930 A.2d at 1272 (internal citations omitted)
(emphasis in original). Thus, the “new facts” exception at
Section 9545(b)(1)(ii) does not require any merits analysis
of an underlying after-discovered-evidence claim.
Commonwealth v. Brown, 111 A.3d 171, 176–77 (Pa. Super. 2015),
appeal denied, 125 A.3d 1197 (Pa. 2015) (some citations omitted).
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 petition and
could not have learned those facts earlier by the exercise
of due diligence. Due diligence demands that the petitioner
take reasonable steps to protect his own 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)
(citations omitted and emphasis added).
The PCRA court opined:
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[Appellant] essentially claims that a witness who did not
testify presented after-discovered evidence that that he
did not make a statement attributed to him by the police.
No police officer testified during the course of the trial
about anything that proposed witness said. [See N.T.
PCRA Hr’g., 6/28/16, at 11-12.]
* * *
Accordingly, we will grant the Commonwealth’s motion
to dismiss a PCRA claim based on that issue.
Order, 6/28/16, at 1.
Appellant contends that the testimony of Johnnie Simmons that “he
never made any statements against” him would have had an impact on the
jury. Appellant’s Brief at 8-9. Appellant has not explained why he could not
have obtained the new facts earlier with the exercise of due diligence. See
Brown, 111 A.3d at 176-77; Monaco, 996 A.2d at 1080. We discern no
error by the PCRA court. See Wilson, 824 A.2d at 333.
Second, Appellant avers the PCRA “court erred in denying relief when
it dismissed as untimely the issues that Attorney Graff did not present a
valid subpoena prior to the [c]ourt issuing a warrant for Shannon Ritter and
that Attorney Graff had an ex parte communication with the [c]ourt to get
the warrant issued for Shannon Ritter.” Appellant’s Brief at 9. In support of
this claim, Appellant contends that
[i]t is clear from the record from the trial that when the
warrant was issued for Shannon Ritter as a material
witness, no subpoena was shown to the [t]rial [c]ourt, as
well that the conversation occurred without Appellant’s
defense counsel present. Appellant contends that since he
still maintains his innocence and with the level of judicial
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impropriety that would be clear from the record, it is an
exception to the one year time bar.
Id. at 9-10.
A review of the record reveals that this claim does not constitute an
after discovered fact. Appellant has not presented a claim that satisfies
any timeliness exception pursuant to Section 9545(b)(1)(i)-(iii).2
Third, Appellant avers the PCRA “court erred in denying relief when it
dismissed as untimely the issue that the search warrants are not part of the
case file in the Clerk of Courts Office.” Appellant’s Brief at 10. His argument
in support of this claim is as follows:
Appellant’s family in September of 2015, became aware
that the search warrants in his case were not part of the
file in the Clerk of Courts Office. Appellant contends
without the warrants in the file, there is no way to verify
the legitimacy of the warrants. It is clear that Appellant
and his attorney were aware of the search warrants,
including having a suppression hearing. Appellant
contends that due to his claim of innocence and it being a
clear miscarriage of justice he would be able to raise this
issue past the one year time bar.
Id.
Appellant’s claim does not satisfy any timeliness exception. See 42
Pa.C.S. § 9545(b)(1)i)-(iii). Appellant concedes he “and his attorney were
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2
We note that on direct appeal this Court found the trial court did not abuse
its discretion in permitting Ritter to testify at the time of trial. See
Commonwealth v. Santiago, 401 MDA 2005, (unpublished memorandum
at 22-23) (Pa. Super. Sept. 25, 2007).
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aware of the search warrants, including having a suppression hearing.” 3
Appellant’s Brief at 10.
Lastly, Appellant contends the PCRA “court erred in denying relief
when it dismissed as untimely the issue of Shannon Ritter’s recantation in
his affidavit in September 2015.”4 Appellant’s Brief at 10. In support of
this claim, Appellant avers as follows:
Appellant contends that the [PCRA c]ourt erred in
finding that Shannon Ritter’s recantation did not meet the
burden of newly discovered evidence. Appellant believes
that Shannon Ritter’s recantation more than establishes by
a preponderance of the evidence that it would have
changed the outcome of the trial. While Mr. Ritter’s
testimony was corroborative of other testimony presented
by Freddy Goff, Mr. Ritter was a much more credible
witness. In the closing argument by Attorney Graff, he
stated that Mr. Ritter was the most credible witness,
because he did not ask for anything when he provided his
statement to police. Mr. Ritter had no motive for Appellant
to be able to attack his testimony, whereas Mr. Goff was
receiving consideration for his testimony.
While Mr. Ritter could not be clear during the PCRA
hearing on which statements would have been hearsay, he
was clear that he testified to statement that Appellant
never told him. The standard is only by preponderance of
evidence that it would have changed the outcome of the
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3
On direct appeal, this Court addressed the issue of the legitimacy of the
search warrant and determined that it was “validly-issued.” See Santiago,
401 MDA 2005, (unpublished memorandum at 17) (Pa. Super. 2006).
4
In the affidavit, Mr. Ritter states as follows: “I write this affidavit to let it
be known that the only reason I testified against [Appellant] at his trial on
January 2005 was because it was being done under DURESS by ADA William
H. Graff.” PCRA Petition, 10/29/15, at Ex. “A”.
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trial. When Mr. Ritter’s testimony is put into question it
does meet that standard, due to the weight that
Commonwealth relied on it in its argument to the jury.
Appellant’s Brief at 10-11.
In the case sub judice, the PCRA court granted the Commonwealth’s
motion to dismiss the PCRA petition as to all claims with the exception of Mr.
Ritter’s testimony. The court stated: “With regard to Shannon Ritter’s
proposed testimony, at this time we’ll deny the Commonwealth’s motion to
dismiss concerning that particular issue and we’ll take testimony on that.”
Order, 6/28/16, at 2.
The PCRA court opined:
On June 28, 2016, at the hearing held on the instant
matter, Ritter testified that he felt like he was under
pressure from the District Attorney’s Office to testify
against Appellant. He felt this way because they had
arrested him and told him, he would not be freed until he
testified to the statements he herd [sic] Appellant make
concerning the homicide. Ritter further explained that
Appellant made incriminating statement to him concerning
the homicide but that numerous inmates were also talking
about the crime and he cannot ascertain which statements
Appellant made from statements other inmates made.
However, he knows he testified as truthfully as he could
and to the best of his ability at trial.
Furthermore, Ritter’s testimony at trial was
corroborative of other testimony presented by [Frederick]
Goff [Jr.] [Goff]. Goff testified that Appellant confessed to
killing the victim and told him that “sometimes you got to
kill the pawn to get to the king.” Goff also testified that
Appellant used a (.45) handgun and shot the victim (4-
5)times in the back. At trial, Ritter testified that Appellant
used a (.45) handgun and shot the victim (4) times in the
back. Goff and Ritter gave consistent testimony.
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Here, we agree that the statements Ritter made in
September 2015 were not available at the time of
Appellant’s trial and that they have subsequently become
available. However, we do not believe that the statements
alleged in Ritter’s affidavit, not [sic] his testimony which
he offered at the June 28, 2016, PCRA hearing in support
of his affidavit, would change the outcome of the trial.
First, Ritter is not able to establish which statements he
made might have been false. Secondly, he stated that he
testified as truthfully as he could. Finally, even if Ritter did
not testify at trial, Appellant would likely have still been
convicted of the homicide because a second witness, Goff,
testified to the same statements as Ritter. Therefore,
Appellant has not established by preponderance of the
evidence that this new evidence would have changed the
outcome of the trial. Thus, Appellant is not entitled relief
to [sic] based on the PCRA’s newly discovered evidence
exception to the one-year time bar.
Opinion in Support of Order Granting the Commonwealth’s Motion for
Dismissal of Defendant’s Second Petition for Post Conviction Relief at 4
(citations omitted). We agree no relief is due.
At the PCRA hearing, Mr. Ritter testified, inter alia, as follows:
[Counsel for Appellant]: Mr. Ritter, do you recall testifying
in this trial as it relates to Mr. Santiago?
A: Yes, I do.
Q: In regards to that, prior to presenting that testimony,
you had an opportunity to speak with the District
Attorney’s Office and provide them a statement; correct?
A: Yes, I provided them a statement.
Q: And then at some point while the trial was going on you
were arrested on a bench warrant that was issued?
A: Yes. . . .
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I was in Wal-Mart one evening and a family member of
mine had called me and asked me where I was at. . . .
Q: And that’s how you got arrested on the warrant?
A: Yes, sir. . . .
* * *
Q: So once you were taken into custody, can you explain
to the Court as far as what did happen and who you had a
conversation with?
A: Once I was taken into custody . . . I was transported to
York police station, taken downstairs. Attorney Graff was
there, a few detectives were there, and the people that
apprehended me were there. They made me aware─Prior
to my getting there, I didn’t know why I was being
arrested. But when I got there, you know, it was clear
that the trial was going on and they wanted me to testify.
At that time I made it clear that I didn’t want to testify and
as to why I didn’t want to testify.
Q: Why didn’t you want to testify?
A: Honestly, sir, coming forward and giving a statement
was one of the hardest things I’ve ever done. . . .
But after the fact of my giving the statement, I realized
that some of the things that I testified to, well, some of
the things that I said in the statement weren’t─they were
told to me, but they weren’t all told to me by [Appellant]. .
..
Q: And did you explain that to Attorney Graff and the other
members of the law enforcement that were there when
you were taken into custody?
A: I did mention that.
Q: And what was there response as far as to that?
A: That I should just testify to what I told them.
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* * *
Q: Did they make any statements to you if you didn’t
testify what would happen?
A: That I would remain in jail until I did because it was an
Order of Court that I testify.
* * *
Q: At the time that you testified, did you feel pressure
from the District Attorney’s Office to testify to the
statement you previously gave?
A: Absolutely.
* * *
Q: When you testified at trial, did you testify truthfully?
A: To the best of my knowledge.
Q: Fair enough. Mr. Ritter, have you talked to [Appellant]
in the last say five years?
A: Once.
Q: What was the nature of that contact?
A: This was just recently. I went to see him at the prison.
* * *
Q: This was after you filed your affidavit?
A: Yes, ma’am.
Q: What did you and he talk about?
A: I just went to apologize to him.
Q: For telling the truth?
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A: No, ma’am. For possibly─I’m not going to say not
telling the truth, but for possibly, you know, prejudicing
him by saying things that he may not have told me.
Q: But again you agree that there are things he did tell
you?
A: Yes, ma’am.
Q: And there are things about the crime?
A: Yes.
Q: And there were things that implicated his guilt in it?
A: Yes, ma’am.
* * *
The Court: . . . Did you lie under oath during the trial?
A: No, sir. I told the truth to what I believed it to be. I
didn’t lie. I just─I’m not sure what he told me and what
he didn’t because I was given a lot of information.
The Court: From various sources?
A: At the prison at the same time, yes, sir.
The Court: When you were in prison?
A: When I was having the conversations with [Appellant],
there was also other people there in the prison that had
things to do with the case and people were just talking
about things. . . .
N.T., 6/28/16, at 22-26, 28, 32-34.
At trial, however, Goff testified, inter alia, as follows:
[The Commonwealth]: . . . Did [Appellant] tell you what
gun he used on Billy Barnes?
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A: Yes, he did.
Q: What did he tell you he used?
A: .45.
Q: Did he tell you how many times he shot him?
A: Yes. Four or five times.
Q: Where did he shoot him?
A: In the back.
Q: And all this was before the autopsy was done or any
forensic examinations was [sic] done or anything else?
A: Yes.
Q: This was within a day or so of the shooting?
A: Yes.
N.T., 1/12/05, at 630-31.
The PCRA court found that, even if Ritter did not testify at trial,
Appellant would likely have still be convicted of the homicide based upon
Goff’s testimony. We find the PCRA court’s determination that Appellant is
not entitled to relief is supported by the record. See 42 Pa.C.S. §
9543(a)(2)(vi); Brown, 111 A.3d at 176-77. We discern no legal error in
the PCRA court’s dismissal of Appellant’s PCRA petition. See Wilson, 824
A.2d 331.
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Accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
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