PCRA Relief • Timeliness • Newly Discovered Evidence

Commonwealth v. Berends, PICS Case No. 14-0523 (C.P. Delaware March 6, 2014) Nilon, J. (8 pages) .

Order for department of welfare to expunge appellant’s name from ChildLine Registry with respect to daughter, H.B. was not newly discovered evidence as to conviction for sexually abusing daughter, C.B. Order denying petition for PCRA relief should be affirmed.

Appellant pled guilty to aggravated indecent assault of his four-year-old daughter, C.B., and to corruption of minors. He was sentenced to 24 to 48 months of incarceration and five years of probation. Appellant did not file post-sentence motions or direct appeal. On May 23, 2012, appellant’s judgment of sentence became final.

On July 23, 2013, court ordered department of public welfare to remove appellant’s name from the ChildLine Registry with respect to allegations of sexual abuse of H.B., appellant’s other child who was not involved in the current case. (Department had not produced clear and convincing evidence of abuse at administrative hearing.)

Within 60 days of receiving the order and approximately 16 months after judgment became final, appellant filed a petition for PCRA relief on Sept. 9, 2013, asserting that the order of expungement was newly discovered evidence that extended the one-year time limit to file for PCRA relief. After hearing, court denied appellant’s petition.

Appellant appealed and court submitted a 1925(a) opinion requesting that its order denying relief be affirmed.

Appellant’s judgment became final on May 23, 2012. Appellant was required to file his petition for PCRA relief within one year of final judgment, but instead filed his petition on Sept. 9, 2013. As the petition was untimely on its face, appellant was required to prove that it fit within one of the exceptions to timeliness.

Appellant asserted that the order of expungement in relation to H.B. was “newly discovered evidence” exempting him from PCRA time requirements. The statutory exception based on newly discovered evidence requires appellant to prove that there were facts that were unknown to him and that he could not have ascertained by due diligence. Here, the facts in the order pertained to a different victim and were known to appellant.

In addition, the new “facts” did not, as appellant alleged, constitute exculpatory evidence that would have changed the outcome of the trial. The order is simply a decision to expunge appellant’s name from the ChildLine Registry. Expunging child abuse from the ChildLine Registry as to victim H.B. in no way affected a guilty plea as to C.B.