Com. v. Trivigno, P.

J-S13013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

PHILIP TRIVIGNO :

:

Appellant : No. 1779 EDA 2020

Appeal from the PCRA Order Entered August 13, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0100861-1996

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.: FILED AUGUST 6, 2021

Appellant, Philip Trivigno, appeals pro se from the August 13, 2020 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

A prior panel of this Court summarized the factual history as follows:

[Appellant] was tried before a jury [in] September [] 1996.

Appellant was convicted of first[-]degree murder, possession of

an instrument of crime[,] and aggravated assault, and on March

19, 1998, the [trial] court sentenced him to death. Appellant

appealed, and, on March 24, 2000, [our] Supreme Court reversed

Appellant's death sentence and granted a new penalty hearing.

Commonwealth v. Trivigno, 2013 WL 11259245, at *1 (Pa. Super. 2013)

(unpublished memorandum) (record citations omitted). On January 29, 2003,

following a non-jury hearing, the trial court resentenced Appellant to life

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* Retired Senior Judge assigned to the Superior Court.

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imprisonment for his first-degree murder conviction. Id. “Appellant did not

file a direct appeal[] and[,] thus, his judgment of sentence became final on

February 28, 2003.” Commonwealth v. Trivigno, 2017 WL 3037526, at *1

(Pa. Super. 2017) (unpublished memorandum). Appellant filed a writ of

habeas corpus on January 6, 2004, his first PCRA petition on February 11,

2009, and his second PCRA petition on October 14, 2014. Ultimately, none of

these challenges resulted in relief.

On September 29, 2017, Appellant filed pro se the instant PCRA petition,

his third. Between April 2018, and March 2019, Appellant filed three

supplemental PCRA petitions and two amended PCRA petitions.1 On

November 1, 2019, the PCRA court notified Appellant pursuant to

Pennsylvania Rule of Criminal Procedure 907 of its intent to dismiss as

untimely his PCRA petition without a hearing and without exception. Appellant

filed pro se a response to the Rule 907 notice on November 13, 2019, and an

amended response on December 6, 2019. On August 13, 2020, the PCRA

court dismissed Appellant’s petition and, thereupon, filed an opinion in support

of its decision. Appellant filed pro se a notice of appeal on September 9, 2020,

and that same day the PCRA court filed its Pa.R.A.P. 1925(a) opinion wherein

it relied on its August 13, 2020 opinion dismissing Appellant’s PCRA petition.

The PCRA court did not order Appellant to file a Rule 1925(b) statement.

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1 Appellant filed supplemental or amended PCRA petitions on April 10, 2018,

April 20, 2018, June 1, 2018, November 21, 2018, and March 7, 2019.

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Appellant, however, filed pro se a Rule 1925(b) statement on September 18,

2020.

Appellant raises the following issues for our review:

1. Did the PCRA court err when it concluded that [Appellant’s]

PCRA [petition] was not timely filed?

2. Did the PCRA court err in its opinion by rejecting and

dismissing [Appellant’s] petition [as untimely, despite

Appellant’s allegations of] newly[-]discovered facts[,

namely the] affidavit [] from [Philadelphia] Police Officer

Douglas Morrison[, which, if pleaded and proven by a

preponderance of the evidence, is an exception to the PCRA

jurisdictional time-bar pursuant to 42 Pa.C.S.A.

§ 9545(b)(1)(ii)?]

3. Did the PCRA court err when it refused to address the issue

concerning government interference[, which, if pleaded and

proven by a preponderance of the evidence, is an exception

to the PCRA jurisdictional time-bar pursuant to 42 Pa.C.S.A.

§ 9545(b)(1)(i)?]

4. Did the PCRA court err when it refused to address the issue

concerning records of actual innocence[?]

Appellant’s Brief at 7 (extraneous capitalization omitted).2

Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

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2 For clarity and ease of disposition, Appellant’s issues have been renumbered.

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2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.” Commonwealth v. Hickman, 799

A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review

the PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90

A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa.

2014).

Our Supreme Court has instructed that the timeliness of a PCRA petition

is jurisdictional. If a PCRA petition is untimely, courts lack jurisdiction over

the petition. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005);

see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014)

(holding, courts do not have jurisdiction over an untimely PCRA petition). To

be timely filed, a PCRA petition, including second and subsequent petitions,

must be filed within one year of the date a petitioner’s 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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The PCRA’s jurisdictional time restriction is constitutionally sound.

Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004).

Here, Appellant was resentenced on January 29, 2003, and did not

pursue direct appeal. Consequently, Appellant’s judgment of sentence

became final on February 28, 2003, at the expiration of time for filing a direct

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appeal with this Court. Pa.R.A.P. 903 (stating, a notice of appeal, with limited

exception (of which, none apply in the instant case), “shall be filed within 30

days after the entry of the order from which the appeal is taken”); see also

42 Pa.C.S.A. § 9545(b)(3); Trivigno, 2017 WL 3037526, at *1. Therefore,

Appellant’s PCRA petition filed on September 29, 2017, more than fourteen

years after his judgment of sentence became final, is patently untimely.

If a PCRA petition is untimely filed, the jurisdictional time-bar can only

be overcome if the petitioner alleges and proves one of the three statutory

exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.

Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions

to the one-year time-bar are as follows: “(1) interference by government

officials in the presentation of the claim; (2) newly[-]discovered facts; and (3)

an after-recognized constitutional right.” Commonwealth v. Brandon, 51

A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

A petition invoking an exception to the jurisdictional time-bar must be filed

within 60 days of the date that the claim could have been presented.3 42

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3 We note that effective December 24, 2018, the time-period in which to file

a petition invoking one of the three exceptions was extended from 60 days to

one year. 42 Pa.C.S.A. § 9545(b)(2). This amendment applies to claims

arising one year prior to the effective date of the amendment, that is to say,

arising December 24, 2017, or later. Act. 2018, Oct. 24, P.L. 894, No. 146,

§ 3. Because Appellant filed his third PCRA petition on September 29, 2017,

this amendment does not apply. See Commonwealth v. Fear, 250 A.3d

1180, 1183-1184, 1191, 1199-1200 n.12 (Pa. 2021) (holding that, when an

initial PCRA petition is filed prior to December 24, 2017, the filing of an

amended or supplemental PCRA petition after December 24, 2017, does not

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Pa.C.S.A. § 9545(b)(2) (effective November 17, 1995, to December 24,

2018). If an appellant fails to invoke a valid exception to the PCRA time-bar,

courts are without jurisdiction to review the petition and provide relief. Spotz,

171 A.3d at 676.

For purpose of discussion, we note in the case sub judice that Appellant

asserts he is eligible for relief because his conviction resulted from, inter alia,

[1.] A violation of the Constitution of this Commonwealth or the

Constitution or laws of the United States which, in the

circumstances of the particular case, so undermined the

truth-determining process that no reliable adjudication of

guilt or innocence could have taken place [and]

[2.] The unavailability at the time of trial of exculpatory evidence

that has subsequently become available and would have

changed the outcome of the trial if it had been introduced.

Appellant’s PCRA Petition, 9/29/17, at § 4; see also 42 Pa.C.S.A.

§ 9543(a)(2)(i) and (vi).4

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extend the time-period within which to assert a claim for collateral relief for

purposes of 42 Pa.C.S.A. § 9545(b)(2)).

4 Appellant asserts, inter alia, that the Commonwealth knowingly permitted

Philadelphia Police Detective Manuel Santiago, who investigated the incident

involving Appellant, to provide false testimony and evidence that directly

linked Appellant to the crime in violation of his constitutional rights and that

after-discovered evidence in the form of Detective Santiago’s misconduct

would have resulted in a different verdict.

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Because his PCRA petition is untimely, Appellant invokes the

newly-discovered facts exception to overcome the jurisdictional time-bar.5

Appellant’s Amended Supplemental PCRA Petition, 4/20/18; see also

Appellant’s Brief at 10-18. Appellant avers that a Philadelphia Daily News

article dated February 19, 2018,6 “alerted [Appellant] to misconduct with[in]

the [Philadelphia P]olice [D]epartment[,]” including misconduct by Detective

Santiago. Appellant’s Supplement to Third PCRA Petition, 4/10/18; see also

Appellant’s Brief at 10. Appellant avers that upon learning of this newspaper

article and the alleged misconduct of Detective Santiago, he requested

Detective Santiago’s disciplinary records from the Philadelphia Police

Department. Id. In response, Appellant received an affidavit from

Philadelphia Police Officer Douglas Morrison7 in which, Appellant contends,

“Officer Morrison confirmed [Appellant’s] newspaper article.” Id. Appellant

asserts that the newspaper article and Officer Morrison’s affidavit establish the

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5 Appellant also invokes the governmental interference exception to the

jurisdictional time-bar. To successfully invoke the governmental interference

exception, a “petitioner must plead and prove the failure to previously raise

the [underlying] claim was the result of interference by government officials,

and the information could not have been obtained earlier with the exercise of

due diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.

2008). We consider Appellant’s second and third issues in tandem.

6 Chris Palmer, After man was cleared, other cases could follow, Philadelphia

Daily News, Feb. 19, 2018, at 3-4.

7At the time he prepared the affidavit cited in the instant case, Officer

Morrison was the Assistant Open Records Officer for the Philadelphia Police

Department. Appellant’s Brief at Exhibit 2.

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newly-discovered facts exception to the PCRA jurisdictional time-bar. Id. at

10-12.

In a recent decision, our Supreme Court reiterated that the

newly-discovered facts exception “renders a petition timely when the

petitioner establishes that [‘]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.[’]”8 Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa.

2020), quoting 42 Pa.C.S.A. § 9545(b)(1)(ii). A PCRA court must first

determine “whether the facts upon which the claim is predicated were

unknown to the petitioner[.]” Id. at 1282 (original quotation marks omitted).

If the PCRA court concludes that the facts were unknown, then the PCRA court

must next examine whether “the facts could have been ascertained by the

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8 Judicial inquiry into whether a previously-unknown fact supports application

of the newly-discovered facts exception to the PCRA’s timeliness requirement

is distinct from the inquiry undertaken to determine whether a petitioner has

come forward with after-discovered evidence which compels a new trial. This

distinction is highlighted when newspaper articles are presented in support of

claims for collateral relief. For example, our Supreme Court in

Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014) held that a newspaper

article may alert a petitioner to the possible existence of evidence but that the

newspaper article, alone, is insufficient to support a request for a new trial

based upon after-discovered evidence. Id. at 827; see also

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

that, “[i]t is possible for a petitioner to plead and prove the newly-discovered

fact exception, which gives the PCRA court jurisdiction and permits it to

consider the petition on the merits, and then ultimately fail on the merits of

an after-discovered evidence claim”). Our inquiry here focuses upon whether

a newspaper article triggers the newly-discovered facts exception to the

PCRA’s timeliness requirement.

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exercise of due diligence, including an assessment of the petitioner's access

to public records.” Id. (citation omitted).

Here, Appellant explains that he recently became aware, upon reading

a Philadelphia Daily News article, that several Philadelphia homicide

detectives, including Detective Santiago, who provided evidence directly

linking Appellant to the crime scene, were under investigation for allegedly

withholding, altering, or fabricating evidence in other criminal investigations.

Appellant’s Supplement to Third PCRA Petition, 4/10/18; see also Appellant’s

Amended Supplemental PCRA Petition, 4/20/18; Appellant’s Supplemental

PCRA Petition, 6/1/18; Appellant’s Amended PCRA Petition, 11/21/18.

Appellant contends that Officer Morrison’s affidavit demonstrates that

evidence of Detective Santiago’s misconduct exists but that Detective

Santiago’s disciplinary records are being withheld from him. Appellant’s

Amended PCRA Petition, 3/7/19 (relying on paragraph 10 of Officer Morrison’s

affidavit which states, “[d]isclosing ‘a certified copy of [Detective] Santiago’s

disciplinary record’ would reveal [the Philadelphia Police Department’s]

criminal and/or noncriminal investigation into Detective Santiago”). Appellant

asserts that the newspaper article concerning the misconduct of Philadelphia

homicide detectives and Officer Morrison’s affidavit establish the

newly-discovered facts exception to the PCRA jurisdictional time-bar because

they prove his underlying claims of a violation of his constitutional rights and

exculpatory after-discovered evidence which could not have been uncovered

through due diligence. Appellant’s Amended Supplemental PCRA Petition,

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4/20/18. Appellant contends that the facts gleaned from the newspaper

article and affidavit, namely Detective Santiago’s misconduct, would have

changed the outcome of his trial if evidence of the detective’s misconduct had

been presented and, furthermore, demonstrated a violation of his

constitutional rights that so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.

Appellant’s PCRA Petition, 9/29/17, at §4.

Appellant argues, in sum, that a newspaper article describing or

encouraging ongoing investigations of Detective Santiago’s alleged

misconduct in other cases satisfies the newly-discovered facts exception to

the PCRA jurisdictional time-bar. We find Commonwealth v. Chmiel, 173

A.3d 617 (Pa. 2017) instructive in resolving the precise issue before us. In

Chmiel, our Supreme Court held that an FBI press release, and the attendant

admissions by the FBI contained therein, constituted a newly-discovered fact

for purposes of triggering an exception to the PCRA jurisdictional time-bar.

Chmiel, 173 A.3d at 629. Chmiel asserted that an FBI press release and a

subsequent Washington Post article publicizing the press release contained

facts which satisfied the newly-discovered facts exception. Id. at 625.

Inherent in both the FBI press release and the Washington Post article were

the facts that (1) “the FBI publicly admitted that the testimony and statements

provided by its analysts about microscopic hair comparison analysis were

erroneous in the vast majority of cases” and (2) “the FBI had trained many

state and local analysts to provide the same scientifically flawed opinions in

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state criminal trials.” Id. Our Supreme Court concluded that it was not the

source of the facts, i.e., a press release or a newspaper article, that satisfied

the newly-discovered facts exception but, rather, it was the information

contained in those media sources which satisfied the newly-discovered facts

exception. Id. at 628. Stated simply, facts are not what a reader gleans from

media reports or newspaper articles but, instead, facts are the substantive

events, i.e., the FBI’s admission of error, which prompted the report by the

media. See Castro, 93 A.3d at 825 n.11 (reiterating that, “[facts] cannot

consist of what one hears on the news” (citation omitted)); see also

Commonwealth v. Reid, 235 A.3d 1124, 1146 (Pa. 2020) (holding, a judicial

decision is not a fact to support the newly-discovered facts exception because

“an in-court ruling or published judicial opinion is law[;] it is simply the

embodiment of abstract principles applied to actual events. The events that

prompted the analysis, which must be established by presumption or

evidence, are regarded as fact.”).

Here, a review of the newspaper article that forms that basis of

Appellant’s newly-discovered facts exception (and his governmental

interference exception) suggests, “an investigation should be launched into

whether the detectives – who investigated murders during the crack wars of

the 1990s – routinely placed their thumbs on the scales while locking people

up during one of Philadelphia’s most violent eras.” Appellant’s Brief at

Exhibit 1. The newspaper article goes on to state, “it remains unclear how

many cases ultimately could be called into question should [the district

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attorney] launch a wider investigation into [the detectives’] work.” Id.

Although the newspaper article reports instances of alleged misconduct by

Detective Santiago in his investigation of other criminal cases, the newspaper

article, unlike the FBI press release in Chmiel, does not specifically cite any

admissions or conclusive findings of wrong-doing by Detective Santiago that

may be linked to Appellant’s case. Id. The newspaper article merely suggests

that such an investigation into Detective Santiago’s actions should be

launched. Id. Therefore, Appellant failed to demonstrate that the newspaper

article contained a fact that triggered the newly-discovered facts exception set

forth at 42 Pa.C.S.A. § 9545(b)(1)(ii). Castro, 93 A.3d at 825 n.11

Turning to Officer Morrison’s affidavit, this Court has previously held that

an affidavit, itself, cannot be a newly-discovered fact but, rather, the “fact”

may be the information reported in the affidavit. Brown, 141 A.3d at

502-503. In his affidavit, Officer Morrison explained that the Philadelphia

Police Department established an Internal Affairs Bureau (“IAB”) responsible

for investigating allegations of police misconduct. Appellant’s Brief at Exhibit

2, ¶2-3. Officer Morrison further explained,

Upon completing its investigation, the IAB prepares an

investigation report and depending on the result of the

investigation, the IAB may terminate the investigation, make

recommendations for further actions to be taken against the

[police officer], such as sanctioning the [police officer], or

referring the [police officer] to the Police Board of Inquiry (“PBI”)

for further investigation and potential discipline. The IAB does not

bring formal charges against the [police officer].

Id. at ¶5 (extraneous capitalization omitted).

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Officer Morrison confirmed that, “IAB [] conducted investigations into

reports and/or complaints with respect to Detective Santiago” but that no

records existed of an investigation that ultimately resulted in Detective

Santiago’s demotion or discharge. Id. at ¶7-8. Officer Morrison attested that

“[t]o the extent complaints [of Detective Santiago’s conduct] were criminal in

nature, a further criminal investigation may have been conducted.” Id. at ¶9

(emphasis added). Officer Morrison stated that a certified copy of Detective

Santiago’s disciplinary record “would reveal [the Philadelphia Police

Department’s] criminal and/or noncriminal investigation into Detective

Santiago.” Id. at ¶9-10.

The affidavit merely informs Appellant about the Philadelphia Police

Department’s policies and procedures regarding complaints brought against

police officers. Although the affidavit confirms that IAB investigated reports

or complaints concerning Detective Santiago, nothing in Officer Morrison’s

affidavit establishes a newly-discovered fact which supports Appellant’s

underlying claims of constitutional violations and after-discovered evidence

pertinent to this case.9

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9 Appellant also failed to demonstrate that the governmental interference

exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(i) applies in the instant case.

Detective Santiago’s alleged misconduct, even if proved, would not trigger the

governmental interference exception to the PCRA jurisdictional time-bar since

that conduct would have occurred during pre-trial investigation or at trial and

would not have interfered with Appellant’s presentation of his current claim.

See 42 Pa.C.S.A. § 9545(b)(1)(i); see also Commonwealth v. Chimenti,

218 A.3d 963, 975 (Pa. Super. 2019) (stating that, “[t]he proper question

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In sum, Appellant failed to plead and prove the newly-discovered facts

exception or the governmental interference exception to the PCRA

jurisdictional time-bar. Consequently, the PCRA court lacked jurisdiction to

review Appellant’s PCRA petition, and we may not review the substance of the

petition on appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/6/2021

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with respect to [Section] 9545(b)(1)(i)'s timeliness exception is whether the

government interfered with Appellant's ability to present his claim and

whether Appellant was duly diligent in seeking the facts on which his claims

are based” (original quotation marks omitted)), appeal denied, 229 A.3d 565

(Pa. 2020). Likewise, other grounds for applying the governmental

interference exception discussed in Appellant’s brief, such as Detective

Santiago’s supposedly false testimony about the color and license plate

number of the shooter’s car or overly suggestive line-ups, would not support

application of the governmental interference exception since that testimony

was presented at trial and could not interfere with the presentation of

Appellant’s current claims.

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