Com. v. Hesden, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CARLTON HESDEN :

:

Appellant : No. 2747 EDA 2019

Appeal from the PCRA Order Entered August 20, 2019

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

No(s): CP-51-CR-0908682-1996

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: Filed: January 28, 2021

Appellant, Carlton Hesden, appeals pro se from the post-conviction

court’s August 20, 2019 order denying, as untimely, his petition filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant

claims that he has discovered new evidence, which meets a timeliness

exception and warrants a new trial. After careful review, we affirm.

On September 9, 1997, Appellant was convicted, following a non-jury

trial, of second-degree murder, burglary, conspiracy, and possessing an

instrument of crime. The evidence presented at trial established that

Appellant and two other men barged into the home of Efrie Cardona after

Cardona’s friend, Jamal Northington, opened the door. Appellant said, “stick

up,” after which one of his cohorts shot Northington three times, killing him.

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* Retired Senior Judge assigned to the Superior Court.

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See Commonwealth v. Hesden, No. 1393 Phila. 1998, unpublished

memorandum at 1-2 (Pa. Super. filed Aug. 10, 1999). On November 3, 1997,

Appellant was sentenced to an aggregate term of life imprisonment. This

Court affirmed on direct appeal, and our Supreme Court denied Appellant’s

petition for allowance of appeal on December 8, 1999. See id.; see also

Commonwealth v. Hesden, 745 A.2d 40 (Pa. Super. 1999) (unpublished

memorandum), appeal denied, 749 A.2d 467 (Pa. 1999).

Appellant thereafter filed a timely PCRA petition, which was denied. On

appeal, this Court affirmed, and our Supreme Court denied allowance of

appeal. See Commonwealth v. Hesden, 819 A.2d 114 (Pa. Super. 2003)

(unpublished memorandum), appeal denied, 829 A.2d 1157 (Pa. 2003). He

filed a second, untimely petition on August 29, 2014. Therein, Appellant

claimed that Cardona’s ex-girlfriend, Arnita Russell, had provided him with an

affidavit, which he attached to his petition, claiming that Cardona had told her

he fabricated his testimony against Appellant. According to Ms. Russell,

Cardona told her that he falsified the story about the robbery in order to obtain

immunity from the Commonwealth for drug and gun charges he was facing,

and because he, himself, feared he would be charged with Northington’s

murder.

The PCRA court denied Appellant’s petition as untimely. It reasoned

that he had not stated “what due diligence, if any, he took to secure Ms.

Russell’s testimony at trial[,]” or “why he could not have discovered Ms.

Russell on an earlier date, through the use of a private investigator or

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otherwise.” PCRA Court Opinion (PCO), 10/28/16, at 5. Alternatively, the

court rejected Appellant’s claim because it was “predicated on hearsay.” Id.

The court noted that “[t]he Pennsylvania Supreme Court has stated that ‘[a]

claim which rests exclusively upon inadmissible hearsay is not of a type that

would implicate the after-discovered evidence exception to the timeliness

requirement, nor would such a claim, even if timely, entitle Appellant to relief

under the PCRA.” Id. at 6 (quoting Commonwealth v. Yarris, 731 A.2d

581, 592 (Pa. 1999)). Appellant filed an appeal from the denial of his PCRA

petition, but he later petitioned to discontinue that appeal, which this Court

granted.

On July 21, 2017, Appellant filed another pro se PCRA petition, which

underlies his present appeal. Therein, he again claimed that Cardona testified

falsely against him. As evidence of this “new” fact, Appellant attached to his

petition an affidavit signed by a private investigator, Diane Cowan. In her

affidavit, Ms. Cowan claimed that on May 30, 2017, Cardona contacted her

and stated that he had falsely testified against Appellant in order to receive

immunity from the Commonwealth, and because the Commonwealth had

promised Cardona that a foreclosure action against his mother’s home would

end and she would keep her residence. See PCRA Petition, 7/21/17, at Exhibit

A. Ms. Cowan also said that, while Cardona had initially offered to provide an

affidavit, he later changed his mind and said that he wished to contact an

attorney before proceeding further. Id. Ms. Cowan then lost contact with

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Cardona, and she had not been able to reach him at the time she signed her

affidavit. Id.

On December 13, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition without a hearing, reasoning that

it was untimely and he failed to prove the applicability of any timeliness

exception. Citing Yarris, the court stated that Ms. Cowan’s affidavit was

inadmissible hearsay and, therefore, it was insufficient to meet a timeliness

exception. See Pa.R.Crim.P. 907, 12/13/17, at 1. The court also reasoned

that because Appellant knew, and had asserted in his 2014 petition, that

Cardona testified falsely against him in exchange for immunity, Ms. Cowan’s

affidavit setting forth this same information was merely a new source of a

previously known fact. Id. Appellant responded to the court’s Rule 907

notice, but the court ultimately dismissed his petition by order entered on

August 20, 2019.

Appellant filed a timely, pro se notice of appeal. The court did not order

him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal, but it filed a Rule 1925(a) opinion on December 18, 2019. Herein,

Appellant states one question for our review: “Did the … [PCRA] court abuse

its discretion by denying [A]ppellant his newly[-]discovered evidence[,]

without granting him a[n] evidentiary hearing[, i]n direct violation of [the] 5th

and 14th amendments of the [U]nited [S]tates [C]onstitution[]?” Appellant’s

Brief at iii.

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This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including

a second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the

date the judgment becomes final, unless the petition alleges

and the petitioner proves that:

(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.

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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).1

Here, Appellant’s judgment of sentence became final in 2000, after our

Supreme Court denied his petition for allowance of appeal and the time

expired for him to file a petition for certiorari with the United States Supreme

Court. Thus, his present petition filed in 2017 is clearly untimely, and he must

prove that he meets one of the exceptions to the timeliness requirements set

forth in 42 Pa.C.S. § 9545(b).

Appellant argues that he meets the newly-discovered fact exception of

section 9545(b)(1)(ii) based on Ms. Cowan’s affidavit claiming that Cardona

confessed to her that he falsely testified against Appellant in exchange for

immunity and other favors from the Commonwealth. It is apparent from the

record before us that Appellant knew that Cardona had admitted to falsifying

his testimony years before he filed the present petition. As discussed, supra,

Appellant received an affidavit from Ms. Russell in 2014 providing nearly

identical information as Ms. Cowan offered in 2017 — that Cardona had

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1 An amendment to section 9545(b)(2), which became effective on December

24, 2018, changed the language to require that a petition “be filed within one

year of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2). That amendment applies to any claims arising on or after

December 24, 2017. Thus, it does not apply to Appellant’s claim that arose

in May of 2017, and which was raised in his petition filed in July of 2017.

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admitted to falsifying his testimony in exchange for immunity and other favors

from the Commonwealth. Thus, the information in Ms. Cowan’s affidavit

regarding Cardona’s admission is not a ‘new fact,’ but merely a new source of

a previously known fact. Moreover, Appellant fails to explain why he could

not have obtained Ms. Cowan’s affidavit earlier than 2017, when he knew, in

2014, that Cardona had admitted to falsifying his testimony in exchange for

immunity. Accordingly, Ms. Cowan’s affidavit fails to meet the requirements

of the newly-discovered fact exception. See Commonwealth v. Edmiston,

65 A.3d 339, 352 (Pa. 2013) (“[T]o constitute facts which were unknown to a

petitioner and could not have been ascertained by the exercise of due

diligence, the information … must not be facts that were previously known but

are now presented through a newly discovered source.”), overruled on other

grounds by, Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020) (holding

that there is no requirement, within the newly-discovered facts exception, that

the information must not be of public record).

Alternatively, we would conclude that Appellant has not met the newly-

discovered fact exception because Ms. Cowan’s affidavit constitutes

inadmissible hearsay. This case is analogous to Yarris. There,

the petitioner sought to invoke the newly-discovered fact

exception to the PCRA’s timeliness requirement. He relied upon

an affidavit by an individual who said that she heard another

individual, not the petitioner, confess to the murder for which the

petitioner had been convicted. Our Supreme Court held

that the evidence which purportedly reveals that someone

other than [the petitioner] committed the murder is

hearsay, not within any exception, and so unreliable as to

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be inadmissible. A claim which rests exclusively upon

inadmissible hearsay is not of a type that would implicate

the [newly-discovered fact] exception to the timeliness

requirement, nor would such a claim, even if timely, entitle

[the petitioner] to relief under the PCRA.

Commonwealth v. Brown, 141 A.3d 491, 501-02 (Pa. Super. 2016)

(quoting Yarris, 731 A.2d at 592).

In this case, the information contained in Ms. Cowan’s affidavit consists

of Cardona’s out-of-court statements that would be offered for the truth of the

matter asserted. Therefore, the affidavit contains inadmissible hearsay. See

Pa.R.E. 801(c). Cardona’s admission that he committed perjury could not be

considered a statement against interest under the hearsay exception of Rule

804(b), as Appellant has offered no proof that Cardona would be unavailable

as a witness. See Brown, 141 A.3d at 501 (concluding that the petitioner

failed to meet the newly-discovered evidence exception where he presented

an affidavit containing a hearsay confession by a third-party, but failed to

present any proof that the declarant was unavailable as a witness).2

For these reasons, we discern no error in the PCRA court’s conclusion

that Appellant’s petition is untimely and he has failed to plead and prove the

applicability of any timeliness exception.

Order affirmed.

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2 We observe that, if Cardona ever provides Appellant with an affidavit

admitting that he falsified his testimony, it would not amount to hearsay. We

express no view on whether an affidavit from Cardona could potentially meet

the newly-discovered fact exception, in that it differs from the inadmissible

hearsay presented in Ms. Russell’s and Ms. Cowan’s affidavits.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/28/21

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