Com. v. Disco, R.

J-S44026-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RICHARD DISCO :

:

Appellant : No. 778 EDA 2024

Appeal from the PCRA Order Entered February 9, 2024

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

No(s): CP-51-CR-1206261-2001

BEFORE: NICHOLS, J., MURRAY, J., and LANE, J.

MEMORANDUM BY MURRAY, J.: FILED MARCH 12, 2025

Richard Disco (Appellant) appeals, pro se, from the order dismissing as

untimely filed his fourth Post Conviction Relief Act (PCRA) petition. See 42

Pa.C.S.A. §§ 9541-9546. We affirm.

This Court previously summarized the underlying procedural history as

follows:

On May 19, 2003, a jury convicted Appellant of multiple sex

offenses related to the abuse of his [minor] stepdaughter [(the

complainant)]. On October 2, 2003, the [trial] court sentenced

Appellant to an aggregate term of fourteen to twenty-eight years’

incarceration.

On August 23, 2005, this Court affirmed Appellant’s

convictions, but vacated his judgment of sentence and remanded

the case to the trial court for resentencing. Commonwealth v.

Disco, 885 A.2d 574 (Pa. Super. 2005). On June 8, 2006, the

trial court resentenced Appellant to an aggregate term of ten to

twenty years of incarceration. Appellant filed an appeal to this

Court, which he discontinued on February 9, 2007.

J-S44026-24

On June 11, 2007, Appellant timely filed his first pro se PCRA

petition. The PCRA court appointed counsel, who filed an

amended petition. On February 9, 2009, the PCRA court

dismissed Appellant’s petition. This Court affirmed the dismissal

order on August 30, 2010, and the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on March 29,

2011. Commonwealth v. Disco, 11 A.3d 1042 (Pa. Super.

2010) (unpublished memorandum), appeal denied, 19 A.3d

1049 (Pa. 2011).

Commonwealth v. Disco, 266 A.3d 657, 1676 EDA 2020 (Pa. Super. 2021)

(unpublished memorandum at 1-2) (some citations and brackets omitted;

citations modified).

Appellant subsequently filed, pro se, second and third PCRA petitions,

both of which were facially untimely. Because Appellant failed to plead and

prove any exception to the PCRA’s one-year jurisdictional time-bar, 1 the PCRA

court dismissed the petitions, after which this Court affirmed the dismissals.

See id. (unpublished memorandum at 12-15); Commonwealth v. Disco,

220 A.3d 680, 3274 EDA 2017 (Pa. Super. 2019) (unpublished memorandum

at 4-5).

On November 4, 2022, over 15 years after Appellant’s judgment of

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1 See 42 Pa.C.S.A. § 9545(b)(1) (providing all PCRA petitions must be filed

within one year of the date the judgment of sentence becomes final); id. §

9545(b)(1)(i-iii) (identifying the PCRA’s three time-bar exceptions, which we

collectively refer to as the “timeliness exceptions”).

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sentence became final,2 Appellant filed the instant pro se PCRA petition, his

fourth. Appellant conceded the facial untimeliness of his petition, but asserted

he met the timeliness exception for newly-discovered facts, codified at 42

Pa.C.S.A. § 9545(b)(1)(ii). See PCRA Petition, 11/4/22, at 4, 7-8. Appellant

claimed he recently discovered new information, which revealed that the

complainant had fabricated her abuse accusations and trial testimony against

Appellant. Id. at 5 (Appellant asserting his discovery of “new evidence that

[the complainant] made false statements that greatly undermines [the]

credibility of her trial testimony in [Appellant’s] case.”). On September 18,

2023, Appellant filed a substantially similar, amended pro se PCRA petition.

Appellant attached to his PCRA petition, and amended petition,

numerous documents (collectively, “PCRA exhibits”). According to Appellant,

the PCRA exhibits support his claim of a “new fact,” i.e., his discovery of the

complainant’s fabrication of her trial testimony. The PCRA exhibits included,

inter alia,3

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2 For purposes of the PCRA, “a judgment becomes final at the conclusion of

direct review … or at the expiration of time for seeking the review.” 42

Pa.C.S.A. § 9545(b)(3). Instantly, Appellant’s judgment of sentence became

final on February 9, 2007, when he discontinued his appeal following

resentencing. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1973.

3 The PCRA exhibits also included (1) excerpts from Appellant’s 2003 jury trial,

PCRA Petition, 11/4/22, Ex. E; (2) a police report from 2001, detailing

Appellant’s abuse of the complainant, id., Ex. A; and (3) a victim impact

statement, purportedly authored by the complainant’s mother in 2003,

regarding Appellant’s case. Id., Ex. D. However, as Appellant has been aware

(Footnote Continued Next Page)

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(1) A police report and witness statements, purportedly compiled

by a private investigator in April 2022, regarding an unrelated

civil case (the Merlino case) that the complainant filed in the

State of Florida in March 2022, wherein she sought a

protection from abuse order against Joseph Merlino (Merlino).

PCRA Petition, 11/4/22, Exs. B, C, F, G; 4

(2) An online blog article published in 2015 (blog article), which

detailed an interview of the complainant. Id., Ex. H; and

(3) An Instagram social media post, purportedly authored by the

complainant (Instagram post),5 which described Appellant’s

crimes against the complainant. Amended PCRA Petition,

9/18/23, Ex. A.

Regarding the Instagram post, the PCRA court explained as follows:

In th[e] unauthenticated Instagram post, the complainant

appears to assert that [Appellant] sexually abused her on more

than the two occasions to which the complainant had testified at

trial. See [id.] The complainant allegedly avers in the purported

Instagram post that she “lost count” of the number of times

[Appellant] sexually abused her “throughout the years[,”] a

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of these documents for over two decades, they do not constitute newly-

discovered facts. See Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.

Super. 2015) (stating that the newly-discovered fact exception, which we

address further below, requires a petitioner to demonstrate, inter alia, that

“he did not know the facts upon which he based his petition.” (citation

omitted)).

4 The witness statements taken in connection with the Merlino case were from

the complainant’s sister, J.D.; the complainant’s mother, D.F.; the

complainant’s father, A.D.; and a friend of Merlino, S.F. See generally PCRA

Petition, 11/4/22, Exs. C, F, G. These witnesses commented on, inter alia,

their opinions of the complainant’s credibility in relation to the Merlino case.

See id.

5 The PCRA court found that the Instagram post had “an alleged publication

date of December 17, 2021[.]” Notice Pursuant to Pa.R.Crim.P. 907, 12/7/23,

at 1 (unpaginated). The Instagram post listed the complainant’s full name as

the username associated with the post. Amended PCRA Petition, 9/18/23, Ex.

A.

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characterization of events diverging from [the complainant’s] trial

testimony of two occurrences of sexual abuse, once at age 11 and

again at age 21. [Id.] Further, in the [Instagram] post, the

complainant recounts that the abuse occurred [when she was] 12

[years old,] and additionally includes a new allegation, not

presented at trial, that [Appellant] beat her. [Id.]

PCRA Court Opinion, 2/9/24, at 2 n.3 (unpaginated).

The Commonwealth did not respond to Appellant’s PCRA petition or

amended petition. On December 7, 2023, the PCRA court issued Pa.R.Crim.P.

907 notice (907 Notice) of its intent to dismiss Appellant’s petition without an

evidentiary hearing. The 907 Notice stated the court lacked jurisdiction to

address Appellant’s petition because it was untimely filed, and Appellant had

failed to establish the newly-discovered fact exception (or any other timeliness

exception). The court reasoned as follows:

Concerning the police report[] and [witness statements] related

to the Merlino case, [Appellant] fail[s] to support the notion that

the [purportedly] “false” averments made by the complainant in

[the Merlino] case substantiate, in any way, the claim that the

complainant fabricated allegations against [Appellant in his

criminal] case. Likewise, [Appellant has] failed to substantiate the

purported Instagram post on grounds of lack of authentication.

However, granting for argument’s sake that the [Instagram] post

is authentic, the complainant’s recounting of facts in the

[Instagram] post cannot support the claim that the complainant

fabricated her testimony [at Appellant’s trial], as [the content of

the Instagram post] merely deviates in small details from [the

complainant’s] prior testimony and insists on [Appellant’s]

criminal responsibility, instead of serving as a recantation.

Moreover, whether or not [Appellant] personally engaged in

certain volitional conduct in relation to the complainant is a matter

of [Appellant’s] own personal knowledge, or imputed as such, and

consequently, could not have been unknown to [Appellant].

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907 Notice, 12/7/23, at 1-2 (unpaginated) (punctuation modified). Appellant

filed a pro se response to the 907 Notice on January 19, 2024.

On February 9, 2024, the PCRA court dismissed Appellant’s fourth PCRA

petition as untimely filed. Appellant timely filed a pro se notice of appeal. The

PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The PCRA court issued a Rule

1925(a) opinion on February 28, 2024.6

On appeal, Appellant presents two issues for our review:

I. Did the PCRA court err when it dismissed Appellant’s PCRA

petition filed on November 4, 2022, claiming newly[-

]discovered facts that undermine the validity of Appellant’s

conviction[,] when the newly[-]discovered facts prove that

the complainant’s testimony is unreliable to support a

conviction of sexual abuse?

II. Did the PCRA court err when it dismissed Appellant’s PCRA

petition as untimely?

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6 This panel previously filed a memorandum in this matter on December 19,

2024, wherein we determined that Appellant was statutorily ineligible for PCRA

relief, based on his concession that he was at liberty and the lack of any

indication in the record that he was still serving a sentence in connection with

this case. See Memorandum, 12/19/24, at 4-5 (citing 42 Pa.C.S.A. §

9543(a)(1)(i) (requiring, as a prerequisite for PCRA eligibility, that the

petitioner is “currently serving a sentence of imprisonment, probation or

parole for the crime[.]”)). On December 31, 2024, Appellant filed a pro se

Application for Reconsideration, which enclosed documentation indicating that

he was, in fact, still serving a sentence in connection with this case, and had

been released on parole. Application for Reconsideration, 12/31/24, Ex. A

(Pennsylvania Parole Board document indicating Appellant was released on

parole on July 9, 2024, and that his maximum sentence expiration date is

March 23, 2026). On February 24, 2025, we granted the Application for

Reconsideration and withdrew our prior memorandum.

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Appellant’s Brief at 2 (capitalization modified). As Appellant’s issues are

closely related, we address them together.

When reviewing the dismissal of a PCRA petition, we examine “whether

the PCRA court’s conclusions are supported by the record and free from legal

error.” Commonwealth v. Johnson, 289 A.3d 959, 979 (Pa. 2023) (citation

omitted). The scope of our review “is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the prevailing

party at the PCRA court level.” Commonwealth v. Conforti, 303 A.3d 715,

725 (Pa. 2023) (citations omitted).

Where a PCRA petitioner fails to file a timely petition, “neither this Court

nor the trial court has jurisdiction over the petition.” Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). If a PCRA

petitioner did not file his petition within one year of his judgment of sentence

becoming final, but invokes one or more of the timeliness exceptions, the

“petitioner bears the burden of proving the applicability of one of the

[timeliness] exceptions.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa.

2017). Moreover, any PCRA petition invoking a timeliness exception must also

establish that the petitioner invoked the exception within one year of the date

the claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

Instantly, Appellant invokes the newly-discovered fact timeliness

exception, 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court has stated that

to establish this exception, the petitioner must plead and prove two prongs:

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“(1) the facts upon which the claim was predicated were unknown[;] and (2)

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

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (citation omitted).

The focus of the newly-discovered fact exception “is on the newly discovered

facts, not on a newly discovered or newly willing source for previously known

facts.” Commonwealth v. Lopez, 249 A.3d 993, 1000 (Pa. 2021) (citation,

emphasis, and footnote omitted). Regarding the due diligence prong, we have

stated that “due diligence requires neither perfect vigilance nor punctilious

care, but rather it requires reasonable efforts by a petitioner, based on the

particular circumstances, to uncover facts that may support a claim for

collateral relief.” Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.

Super. 2015) (en banc); see also Commonwealth v. Brown, 111 A.3d 171,

176 (Pa. Super. 2015) (“Due diligence demands that the petitioner take

reasonable steps to protect his own interests.” (citation omitted)).

We are mindful that “the analysis of whether a PCRA petitioner has

satisfied the [Section] 9545(b)(1)(ii) time-bar exception is analytically distinct

from the merits of any substantive claim seeking relief.” Commonwealth v.

Robinson, 185 A.3d 1055, 1059 (Pa. Super. 2018) (en banc). However,

courts must analyze the nature of the underlying claim for the limited purpose

of determining whether the petitioner’s asserted newly-discovered facts are

based on information that is relevant to the petitioner’s claim. See id. at

1061-62 (explaining that a PCRA petitioner may not merely assert any fact at

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all that the petitioner did not know before and could not have known in order

to invoke jurisdiction); Commonwealth v. Shannon, 184 A.3d 1010, 1017

(Pa. Super. 2018) (observing that while “we need not find a ‘direct connection’

between the newly-discovered facts and the claims asserted by a petitioner,

the statutory language [of 42 Pa.C.S.A. § 9545(b)(1)(ii)] requires there be

some relationship between the two.” (citation omitted)).

Here, Appellant claims the PCRA court erred in determining that he failed

to satisfy the requirements of the newly-discovered fact exception. See

Appellant’s Brief at 5-29. Appellant asserts the newly-discovered PCRA

exhibits show that the complainant fabricated her trial testimony. Id. at 5.

Appellant claims these documents satisfy the newly-discovered facts

exception, “raise issues of material fact[,] and question the validity of

Appellant’s conviction.” Id. Appellant claims that the PCRA exhibits constitute

“material evidence, because but for the circumstances that the facts were

unavailable[,] the outcome of [Appellant’s trial] would have been different.”

Id. at 9. According to Appellant, he filed his instant PCRA petition invoking

the PCRA exhibits within one year of the date on which he became aware of

the new facts, in compliance with 42 Pa.C.S.A. § 9545(b)(2). Appellant’s Brief

at 30-31.

Regarding the police report and witness statements in the Merlino case,

Appellant contends that these documents illustrate the complainant’s

propensity to lie and her lack of credibility. See id. at 10-17; see also id. at

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17 (asserting the witness statements illustrate that the complainant “will make

false police reports, and will testify under oath consistent with those

reports[.]”). Regarding the Instagram post, Appellant claims it is “material

evidence which questions the validity of Appellant’s conviction,” and

establishes that the complainant fabricated her testimony at Appellant’s trial.

Id. at 21. Appellant points out that the Instagram post contains some details

that are inconsistent with the complainant’s trial testimony, including the

number of times Appellant assaulted the complainant and her age at the time

of the assaults. Id. at 21-22. Finally, Appellant asserts the blog article as a

newly-discovered fact. See id. at 17-21. He claims the blog article contains

multiple falsehoods by the complainant, “which are materially inconsistent

with what she testified to at [Appellant’s] trial.” Id. at 21; see also id. at

18-21.

The Commonwealth counters the PCRA court correctly determined it

lacked jurisdiction to address Appellant’s PCRA claims, as he failed to meet

the requirements of the newly-discovered fact exception or any other

timeliness exception. See Commonwealth Brief at 5-9. According to the

Commonwealth, “[t]he opinions of several people regarding the

[complainant’s] credibility in an unrelated civil case, and a screen shot of an

Instagram post, are not facts that meet the newly[-]discovered facts

exception.” Id. at 5 (punctuation modified). Regarding the witness

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statements given in connection with the Merlino case, the Commonwealth

asserts that

the opinions of others in a matter wholly unrelated to [Appellant’s]

own case are not “facts” as required by the PCRA and further,

have no bearing on [Appellant’s] innocence. Because there is no

relationship between the alleged “facts” [Appellant] presents

now[,] and his claim that the [complainant] was untruthful during

his trial twenty years ago, [Appellant] failed to satisfy the newly[-

]discovered fact exception.

Id. at 7-8 (emphasis in original). Regarding the Instagram post, the

Commonwealth claims the

unauthenticated [] post does not constitute a newly[-]discovered

fact. The fact [] that [Appellant] assaulted the [complainant], and

that the [complainant] accurately reported it, was known to

[Appellant] when [the assaults] occurred, and moreover[,] settled

at trial.

Id. at 8-9.

We initially address the blog article. Appellant’s second PCRA petition

(filed March 25, 2015) previously invoked the 2015 blog article to support his

claim of a newly-discovered fact. See Disco, 220 A.3d 680 (unpublished

memorandum at 2). We concluded that the blog article was unavailing to

Appellant, who “failed to demonstrate how the [blog article] refuted the

[complainant’s] testimony.” Id. at 4; see also id. (noting that “Appellant

mischaracterized the information in the [blog] article”). Accordingly, this issue

has been previously litigated and is thus not cognizable. See 42 Pa.C.S.A. §

9543(a)(3) (providing that previously litigated claims are not cognizable under

the PCRA). Moreover, the 2015 blog article does not constitute a newly-

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discovered fact, as Appellant has known about it for nearly a decade. See

Cox, 146 A.3d at 227.

In its Rule 1925(a) opinion, the PCRA court reasoned as follows in

support of its determination that Appellant failed to establish the newly-

discovered fact exception:

[Appellant] fails to substantiate the purported fact of the

complainant’s fabrication of trial testimony. No satisfactorily

authenticated evidentiary support has been provided by

[Appellant] for his bald assertion concerning the [police report and

witness statements issued in connection with the] Merlino case.

Yet, even granting that [Appellant] has provided evidentiary

support for this assertion, the allegedly “false” testimony he

presents is relevant only to an entirely distinct [] case[,]

which bears no relationship to [Appellant]. Such evidence

cannot conceivably substantiate the purported fact that the

complainant fabricated [her] testimony against [Appellant].

Absent a direct relationship to [Appellant’s] prosecution, the

supposed fact that the complainant’s [allegations against Merlino]

failed to result in [the issuance of a protection from abuse order

against] … Merlino will not support the purported fact that the

complainant testified falsely against [Appellant].

Moreover, the [] Instagram post fails to substantiate the

purported fact of the complainant’s fabrication of testimony

because [Appellant] fails to provide sufficient authentication, such

that the [PCRA] court cannot determine whether the [purported

Instagram] post ever existed at all or has not undergone any

modification by [Appellant] or others. Even granting the

[Instagram] post’s authenticity for argument’s sake, the details

expressed therein are not materially inconsistent with the

complainant’s trial testimony. The complainant’s recollection

in the [Instagram] post[,] of [criminal] acts committed against

her by [Appellant,] does not substantiate [Appellant’s] averred

newly[-]discovered fact of the complainant’s fabrication of trial

testimony. On this basis, the purported Instagram post could not

possibly substantiate [Appellant’s] alleged newly[-]discovered

fact that the complainant fabricated trial testimony against him.

Rather than contradicting the complainant’s prior testimony to the

point of recantation, the [Instagram] post insists on [Appellant’s]

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culpability. A clear disconnect exists between the plainly

expressed content of the [Instagram] post and the interpretation

assigned to it by [Appellant]. Small deviations in a witness’s

narrative recollection of events – barring actual

recantation of earlier testimony that plainly absolves a

petitioner – will [] not substantiate a newly[-]discovered

facts exception claim. See Commonwealth v. Small, 238

A.3d 1267, 1287 ([Pa.] 2020) (testimony that “[omits minor]

details from the sequence of events [that a witness] described at

trial” will not “constitute a ‘new story’” sufficient to substantiate a

newly[-]discovered facts exception claim [(citation omitted)]).

Thus, the [PCRA exhibits Appellant submitted in support of his

claim of newly-discovered facts] cannot sufficiently [satisfy] … 42

Pa.[C.S.A.] § 9545(b)(1)(ii).

Further, [Appellant] fails to establish that the

purported fact of the complainant’s false testimony was

previously unknown. Whether the complainant testified falsely

at trial concerning [Appellant’s] conduct [does] not constitute a

fact previously unknown to [Appellant]. As a person’s volitional

conduct constitutes that person’s lived experience, such conduct

will necessarily fall within the limits of personal knowledge. Thus,

the alleged untruth of the complainant’s testimony concerning

[Appellant’s] conduct [does] not satisfy the requirement that

[Appellant] plead and prove previously unknown facts.

Consequently, [Appellant] fails to plead and prove that “facts”

averred in [his PCRA] petition existed outside [of Appellant’s]

personal knowledge, as [Appellant] would have known from the

start the truth [] of the complainant’s testimony concerning

[Appellant’s] conduct. [See Lopez, 249 A.3d at 1000 (stating the

newly-discovered fact exception is not satisfied by a newly-

discovered source for previously known facts).]

PCRA Court Opinion, 2/9/24, at 2-3 (unpaginated) (emphasis added;

footnotes omitted).

Our review confirms the record and the law support the PCRA court’s

findings, and we agree with its determination. Appellant failed to satisfy his

burden of proving the newly-discovered facts timeliness exception.

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Based on the foregoing, the PCRA court’s conclusion that Appellant’s

PCRA petition is untimely, and does not satisfy any timeliness exception, is

supported by the record and free of legal error. See Johnson, 289 A.3d at

979. Both the PCRA court and this Court are, therefore, without jurisdiction

to consider the issues raised by Appellant. Albrecht, 994 A.2d at 1093.

Accordingly, we affirm the order dismissing Appellant’s fourth PCRA petition

as untimely filed.

Order affirmed.

Date: 3/12/2025

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