J-S28038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAVIER ANTONETTY-RODRIGUEZ,                :
                                               :
                       Appellant               :      No. 1860 MDA 2017

                Appeal from the PCRA Order November 20, 2017
                 in the Court of Common Pleas of Berks County,
              Criminal Division at No(s): CP-06-CR-0003057-2009

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 21, 2018

       Javier Antonetty-Rodriguez (“Antonetty-Rodriguez”), pro se, appeals

from the Order dismissing his second Petition for relief filed pursuant to the

Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

       On January 24, 2011, a jury convicted Antonetty-Rodriguez of first-

degree murder, criminal conspiracy, firearms not to be carried without a

license, and possession of an instrument of crime.1 On February 16, 2011,

the trial court sentenced Antonetty-Rodriguez to life in prison without the

possibility of parole. This Court affirmed Antonetty-Rodriguez’s judgment of

sentence on May 25, 2012. See Commonwealth v. Antonetty-Rodriguez,
____________________________________________


1 Relevant to the instant appeal, the Commonwealth had presented at trial the
testimony of Antonetty-Rodriguez’s co-conspirator, Jose Correa-Sanchez
(“Correa-Sanchez”). After Antonetty-Rodriguez’s conviction, Correa-Sanchez
entered into a negotiated guilty plea concerning his involvement in the murder
that Antonetty-Rodriguez had perpetrated.
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50 A.3d 252 (Pa. Super. 2012) (unpublished memorandum).               Antonetty-

Rodriguez did not seek allowance of appeal with the Pennsylvania Supreme

Court.

        Antonetty-Rodriguez, pro se, filed his first PCRA Petition on February 8,

2013.      The PCRA court appointed Antonetty-Rodriguez counsel, who

subsequently filed a Petition to Withdraw as counsel and a Turner/Finley2

“no-merit” letter.      The PCRA court permitted counsel to withdraw, and

dismissed Antonetty-Rodriguez’s Petition without a hearing on April 29, 2013.

Antonetty-Rodriguez untimely appealed the dismissal, after which this Court

quashed the appeal.

        Antonetty-Rodriguez filed a second, pro se PCRA Petition on March 28,

2016. The PCRA court thereafter permitted Antonetty-Rodriguez to file an

Amended PCRA Petition, which Antonetty-Rodriguez filed, pro se, on April 7,

2017.

        After conducting an evidentiary hearing (hereinafter the “PCRA

Hearing”), the PCRA court issued a Notice on September 29, 2017, announcing

its intent to dismiss the PCRA Petition as being untimely and not subject to

any of the statutory time-bar exceptions. On November 20, 2017, the PCRA

court entered an Order dismissing the PCRA Petition. Antonetty-Rodriguez

then filed a timely Notice of Appeal, simultaneously with a Pa.R.A.P. 1925(b)

Concise Statement of errors complained of on appeal.
____________________________________________


2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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         Antonetty-Rodriguez now presents the following issues for our review:

         1. Did the PCRA Court err in dismissing the PCRA [P]etition where
            the PCRA [P]etition’s claim met the statutory time-bar
            exception for newly-discovered facts?

         2. Was [a] Commonwealth[] witness[’s, i.e., Correa-Sanchez,]
            testimony [presented] in exchange for a more beneficial
            outcome in his own case?

Brief for Appellant at 4 (issues renumbered).       We will address Antonetty-

Rodriguez’s issues together, as they are interrelated.

         When reviewing an order dismissing a PCRA petition, we examine

whether the determination of the PCRA court is supported by the record and

free of legal error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super.

2014). The merits of a PCRA petition cannot be addressed unless the PCRA

court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091, 1093

(Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely filed.

Id.

         Any PCRA petition must be filed within one year of the date the judgment

of sentence becomes final.       42 Pa.C.S.A. § 9545(b)(1).    Here, Antonetty-

Rodriguez concedes that his instant PCRA Petition is facially untimely, as he

filed it over 3½ years after June 2012, when his judgment of sentence became

final.

         However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth under

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these

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exceptions “shall be filed within 60 days of the date the claim could have been

presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

       Antonetty-Rodriguez invokes the newly-discovered facts exception, set

forth at section 9545(b)(1)(ii). To prove this exception, “the petitioner must

establish that the facts upon which the claim was predicated were unknown

and could not have been ascertained by the exercise of due diligence.”

Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (citation

omitted). “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).

       Here, Antonetty-Rodriguez asserts that he uncovered “newly discovered

facts” in the form of a number of newspaper articles that were published in

the Reading Eagle newspaper in February 2011 (collectively “the articles”),3



____________________________________________


3 The articles stated, inter alia, that Correa-Sanchez had testified against
Antonetty-Rodriguez at trial, and that, after Antonetty-Rodriguez’s conviction
on January 24, 2011, Correa-Sanchez had entered into a negotiated guilty
plea concerning his involvement in the shooting. Antonetty-Rodriguez points
out that Correa-Sanchez testified at Antonetty-Rodriguez’s trial that the
Commonwealth had not given him “any offer or deal” in exchange for his
testimony. Brief for Appellant at 8. Antonetty-Rodriguez maintains that he
did not learn of the articles until February 27, 2016, when his brother brought
them to his attention. Id. at 9; see also id. (wherein Antonetty-Rodriguez
asserts that he presented the articles, as newly discovered facts, within 60
days of his discovery of them, in his PCRA Petition filed on March 28, 2016).

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which he attached as exhibits to his second PCRA Petition.         See Brief for

Appellant at 8-10. According to Antonetty-Rodriguez, the articles revealed

that the prosecution failed to correct the false testimony of Commonwealth

witness   Correa-Sanchez    during    Antonetty-Rodriguez’s   trial.   See   id.

Antonetty-Rodriguez additionally points out that the Commonwealth attorney

who prosecuted his case testified at the PCRA Hearing that, although there

was no express agreement between Correa-Sanchez and the Commonwealth

in exchange for his testifying at Antonetty-Rodriguez’s trial, “it was certainly

relayed to [Correa-Sanchez] that his cooperation was going to be given the

utmost consideration by my office.” N.T., 8/7/17, at 10; but see also id.

(wherein the prosecutor explained that “the specific plea bargain [made to

Correa-Sanchez] … had not been tendered until after [Antonetty-Rodriguez’s]

trial was over.” (emphasis added)).

      In its September 29, 2017 Notice, the PCRA court cogently addressed

Antonetty-Rodriguez’s claim as follows:

      “[T]he newly discovered evidence exception, set forth in Section
      9545(b)(1)(ii)[,] … merely requires that the ‘facts’ upon which …
      a claim is predicated must not have been known to appellant, nor
      could they have been ascertained by due diligence.”
      Commonwealth v. Lambert, 584 Pa. 461, 467, 884 A.2d 848,
      852 (2005). There had [previously] been a presumption that
      information was not “unknown” if the information was a matter of
      public record. Commonwealth v. [Taylor], 67 A.3d 1245[,
      1248] (Pa. 2013).        [Antonetty-Rodriguez], however, cites
      Commonwealth v. Burton[, 158 A.3d 618 (Pa. 2017),] which
      recently changed the presumption. Under Burton[,] when a
      defendant is pro se, the public records rule does not apply. [See
      id. at 638.] Yet it is unclear whether the Burton presumption
      applies to [Antonetty-Rodriguez] in this case.         [Antonetty-

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     Rodriguez] was represented at the time that the information[,
     i.e., the articles,] became available. He had representation for at
     least a full year after the article[s] [were] written. The Burton
     decision does not address when the presumption applies to
     defendants who had an attorney and then later become pro se.
     In a footnote of the Burton dissent, the Minority wrestles with
     this very question:

         “It is unclear to me from the Majority Opinion at what
         stage an incarcerated PCRA petitioner must be pro se to
         qualify for the exception to the public record
         presumption.      For example, to benefit from this
         exception, does the incarcerated petitioner have to be
         pro se when the “unknown fact” occurred, when it
         became publicly accessible, or when he files his PCRA
         petition? … In this case, we have no idea when exactly
         [Burton] had or did not have counsel.”

     [] Burton, 158 A.3d [at] 639 [n.3 (Baer, J. dissenting)].

            It is clear [] that [Antonetty-Rodriguez] had representation
     at the time that the information became available. Burton also
     made clear that, “[a] pro se incarcerated PCRA petitioner is still
     required to prove that the facts upon which his claim of a
     timeliness exception under subsection 9545(b)(1)(ii) is based
     were unknown to him and not ascertainable by the exercise of due
     diligence.” Id. at 638. [Antonetty-Rodriguez’s] only argument in
     his [PCRA] Petition as to why he was unable to discover the
     article[s] through due diligence is that he did not have internet
     access. All that being true, it is also true that he received the
     article[s] in the mail from his brother. He did not receive notice
     of the article[s] for five years. If he had relatives with access to
     the internet, it is unclear why [Antonetty-Rodriguez] has failed to
     receive news of [the] article[s] for such a long time. [Antonetty-
     Rodriguez] supplies no evidence that he directed his family to
     search in the intervening years, or that he made any attempt on
     his own. Thus, [Antonetty-Rodriguez] has failed to establish that
     he exercised due diligence in obtaining the information from the
     newspaper article[s]. For this reason, the Petition is untimely.

           Even if [Antonetty-Rodriguez] were successful in
     establishing a newly-discovered fact exception to his untimely
     PCRA [Petition], he would still fail on the merits of his argument.
     [Antonetty-Rodriguez] supplies no evidence that there was a deal

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      made between the Commonwealth and [Correa-Sanchez]. The
      articles that [Antonetty-Rodriguez] supplies as proof only indicate
      that [Correa-Sanchez] “hoped” for a deal and that a deal had been
      reached after [Antonetty-Rodriguez’s] trial was complete.
      Therefore, when [Correa-Sanchez] stated at trial that he had not
      made a deal at that time, his testimony was truthful. The
      Commonwealth state[d] on the record[, i.e., at the PCRA
      Hearing,] that there was no deal at the time of [Correa-Sanchez’s]
      testimony, and [Antonetty-Rodriguez] admit[ted] no evidence to
      contradict that assertion.

Order and Notice, 9/29/17, at 4-6 (some emphasis in original; other emphasis

added). The PCRA court’s sound rationale is supported by the law and the

record, and we therefore affirm on this basis in determining that neither of

Antonetty-Rodriguez’s issues entitles him to collateral relief.

      We conclude that the record supports the PCRA court’s dismissal of

Antonetty-Rodriguez’s second PCRA Petition, and discern no error of law.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/21/2018




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