Opinion
645 MDA 2024 J-S42043-24
12-03-2024
COMMONWEALTH OF PENNSYLVANIA v. ALEX MARTIN PETTIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered March 26, 2024 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003851-2014
BEFORE: LAZARUS, P.J., BECK, J., and BENDER, P.J.E.
MEMORANDUM
BENDER, P.J.E.
Appellant, Alex Martin Pettis, appeals pro se from the post-conviction court's March 26, 2024 order denying, as untimely, his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The facts of Appellant's underlying convictions are not germane to our disposition of this appeal. We need only note that on December 11, 2015, a jury convicted Appellant of robbery, simple assault, recklessly endangering another person, and possessing instruments of crime. On February 16, 2016, the trial court sentenced Appellant to an aggregate term of 7 to 20 years' incarceration. Appellant did not file a timely appeal. However, his appeal rights were subsequently reinstated, and he appealed from his judgment of sentence nunc pro tunc. After this Court affirmed Appellant's judgment of sentence on April 25, 2017, our Supreme Court denied his petition for allowance of appeal on January 3, 2018. See Commonwealth v. Pettis, 169 A.3d 1206 (Pa. Super. 2017) (unpublished memorandum), appeal denied, 177 A.3d 829 (Pa. 2018).
18 Pa.C.S. §§ 3701(a)(1)(ii), 2701(a)(3), 2705, and 907(a), respectively.
On March 7, 2018, Appellant filed a timely, pro se PCRA petition.Therein, he averred, inter alia, that his trial counsel had been ineffective "for failing to obtain the services of an expert in video forensics…." Appellant's Brief at 16 (unnumbered). Appellant argued that such an expert would have been able to enhance a video, which was presented by the Commonwealth to the jury at trial, purporting to depict Appellant approaching the victim and pointing a firearm at him. Appellant claimed that an enhancement of the video would have shown that he never pointed a gun, or any type of weapon, during the brief conversation that he had with the victim. See id. (unnumbered). Thus, he insisted his counsel was ineffective for failing to secure an expert to enhance the video.
As the PCRA court explained in its Pa.R.Crim.P. 907 notice, Appellant indicated in his pro se petition that he wished to represent himself. See Rule 907 Notice, 2/9/24, at 2. After the court conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), at which Appellant reiterated his desire to proceed pro se, the PCRA court granted his request to do so and did not appoint counsel.
On March 10, 2020, the PCRA court dismissed Appellant's first PCRA petition without a hearing. He filed a timely notice of appeal, but on December 24, 2020, this Court dismissed his appeal because Appellant failed to file a brief. See Commonwealth v. Pettis, No. 627 MDA 2020 (Pa. Super. Dec. 24, 2021).
On January 22, 2024, Appellant filed a second pro se PCRA petition, which underlies the instant appeal. On February 9, 2024, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. Specifically, the court found that Appellant's petition was untimely, and he had failed to meet any of the timeliness exceptions, discussed infra. Appellant filed a timely, pro se response, but on March 26, 2024, the court issued an order dismissing his petition.
The PCRA court noted that Appellant requested that it appoint counsel to represent him in litigating this petition. See Rule 907 Notice at 2. However, the court concluded that, because this is Appellant's second petition, and the court was "satisfied that an evidentiary hearing is not required, [Appellant] is not entitled to the appointment of counsel…." Id. (citing Commonwealth v. Privolos, 746 A.2d 621, 624 (Pa. Super. 2000) (finding that, although a first-time PCRA petitioner is entitled to counsel, there is no such entitlement on a second or subsequent petition); Pa.R.Crim.P. 904(D) (stating that a petitioner is entitled to counsel on a second or subsequent petition if an evidentiary hearing is required)). We discern no error in the court's decision not to appoint counsel.
Appellant filed a timely notice of appeal. The PCRA court did not order him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The court subsequently issued a "Memorandum Statement in Lieu of Opinion" indicating that it was relying on the reasons set forth in its Rule 907 notice to support its dismissal of Appellant's petition. Herein, Appellant states one issue for our review:
Did the PCRA [c]ourt err when it failed to hold a hearing and grant relief on the claim of the Commonwealth eliciting false testimony
from [the] alleged victim … and Det[ective] Gartland when they testified that there was a gun in [Appellant's] hand during the alleged robbery[,] thereby committing prosecutorial misconduct?Appellant's Brief at 7 (unnumbered).
Initially, we note that 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.42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to invoke one of these exceptions must "be filed within one year of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
Here, Appellant's judgment of sentence became final on April 3, 2018, ninety days after our Supreme Court denied his petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA, petitioner's judgment of sentence becomes final ninety days after our Supreme Court rejects his or her petition for allowance of appeal since petitioner had ninety additional days to seek review with the United States Supreme Court). Thus, Appellant had until April 3, 2019, to file a timely petition, making his instant petition filed in January of 2024 patently untimely. Appellant must prove he meets a timeliness exception to invoke this Court's jurisdiction to review his underlying claims.
In this regard, Appellant first asserts that he has satisfied the governmental-interference exception of section 9545(b)(1)(i). According to Appellant, in his initial PCRA petition, he "asked the PCRA [c]ourt for funds for the purposes of retaining an expert in video forensics for the purpose of raising the ineffectiveness of trial counsel…." Appellant's Brief at 12 (unnumbered). Appellant insists that the court was required to provide him funds for his expert under 50 [P.S.] § 7402(f). However, he claims that the court failed to "even rule on the [m]otion" for funds to retain an expert, thereby effectively denying it. Id. Appellant concludes that the court's erroneous decision to deny him the requisite funds to hire a forensic video expert constituted governmental interference with his presentation of an ineffectiveness claim in his first PCRA petition.
That statute states:
(f) Experts.--The court may allow a psychiatrist or licensed psychologist retained by the defendant and a psychiatrist or licensed psychologist retained by the Commonwealth to witness and participate in the examination. Whenever a defendant who is financially unable to retain such expert has a substantial objection to the conclusions reached by the court-appointed psychiatrist or licensed psychologist, the court shall allow reasonable compensation for the employment of a psychiatrist or licensed psychologist of his selection, which amount shall be chargeable against the mental health and mental retardation program of the locality.50 P.S. § 7402(f).
Alternatively, Appellant contends that he has satisfied the newly-discovered-fact exception of section 9545(b)(1)(ii). Specifically, he claims that he has now obtained an enhanced version of the video of the robbery and "it is plainly clear that Appellant never had a firearm in his right hand." Id. at 16 (unnumbered). Appellant insists that this enhanced video not only constitutes a new fact that meets the timeliness exception, but it proves that the Commonwealth knowingly allowed false testimony by its witnesses who claimed that Appellant had a gun.
In assessing Appellant's claims, we have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have examined the well-reasoned Rule 907 notice authored by the Honorable Scott Arthur Evans of the Court of Common Pleas of Dauphin County. We conclude that Judge Evans' comprehensive discussion accurately disposes of the arguments presented by Appellant. Accordingly, we adopt Judge Evans' assessment in his Rule 907 notice as our own, and conclude that Appellant has failed to satisfy any timeliness exception for the reasons set forth therein. Thus, we affirm the court's order dismissing Appellant's untimely PCRA petition.
We add only one comment to Judge Evans' assessment of Appellant's governmental-interference claim. Judge Evans stated that he reviewed the entire record and could not locate "any actual motion seeking funds to hire a video forensics expert," nor "any request[] for such funds in any of [Appellant's] correspondence" filed in relation to his first PCRA petition. Rule 907 Notice at 4-5. Accordingly, Judge Evans invited Appellant to "direct us to that motion in response to this [Rule 907 n]otice." Id. at 5. However, in Appellant's response to Judge Evans' Rule 907 notice, he did not point to where in the record he sought funds to hire a video forensics expert, and he also does not do so on appeal. Thus, the record supports Judge Evans' conclusion that Appellant failed to demonstrate "that he suffered from governmental interference." Id.
Order affirmed.
Judgment Entered.
NOTICE PURSUANT TO PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 907 OF INTENTION TO DISMISS PETITIONS FOR POST-CONVICTION COLLATERAL RELIEF
SCOTT ARTHUR EVAN, JUDGE
AND NOW, this 9th day of February 2024, notice is hereby given of This Court's intention to dismiss Defendant's petition for post-conviction relief.
On December 11, 2015, following a trial by jury, Defendant was found guilty of Robbery, Simple Assault. Recklessly Endangering Another Person, and Possessing Instruments of Crime. On February 24, 2016, we sentenced Defendant to an aggregate term of not less than seven (7) nor more than twenty (20) years in a state correctional institution. On March 9, 2016, an untimely Post-Sentence Motion was filed, which we denied on March 16, 2016.
On April 12, 2016. Defendant filed a petition for relief under the Post-Conviction Relief Act (PCRA), seeking the reinstatement of his post-sentence and direct appeal rights. We granted Defendant's request on May 11, 2016. Defendant filed a timely Post-Sentence Motion on May 18, 2016, which we denied on May 19, 2016. A timely Notice of Appeal was filed, and on April 24, 2017, the Pennsylvania Superior Court affirmed the judgment of sentence. On January 25, 2018, the Pennsylvania Supreme Court denied Defendant's Petition for Allowance of Appeal.
On March 7, 2018, Defendant filed his first PCRA Petition. See, Commonwealth v. Vega, 754 A.2d 714 (Pa. Super. 2000) (when a PCRA Petition results in the reinstatement of appellate rights nunc pro tunc, a subsequently filed PCRA Petition may be treated as a '"first petition"). Although Defendant was entitled to the appointment counsel in his first PCRA, his pro se Petition alleged that he did not wish to have counsel and desired to represent himself. See, Pa R. Crim. P. 904(C). A Grazier Hearing was held on July 9, 2018, where Defendant reiterated his desire to represent himself and we granted him pro se status.
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
On March 10, 2020, we dismissed Defendant's PCRA Petition without a hearing. Defendant sought a timely appeal from that determination, but on December 24, 2020. the Superior Court dismissed his appeal for failing to file a brief.
On January 22, 2024, Defendant filed a pro se Successive Petition for Post-Conviction Relief. Although Defendant declined the appointment of counsel in his first PCRA Petition, he has now made that request herein. Since the instant Petition is Defendant's second under the PCRA, and we are satisfied that an evidentiary hearing is not required, Defendant is not entitled to the appointment of counsel, and we decline to grant his request. See, Commonwealth v. Priovolos, 746 A.2d 621, 624 (Pa. Super. 2000) (although a first-time PCRA petitioner is entitled to appointment of counsel, there is no such entitlement on second and subsequent PCRA petitions); see also, Pa. R. Crim. P. 904(D).
Defendant mistakenly captioned his case to 3581 CR.2014 rather than his correct docket, 3851 CR 2014. Accordingly, the Clerk of Courts docketed Defendant's Petition to the incorrect docket. If the error is not corrected by the filing of this Notice, we will issue an Order compelling the Clerk of Courts to correct the error and docket Defendant's Petition to the proper case.
With few exceptions, a PCRA petition, including second and subsequent petitions, must be filed within one (1) year of the date a judgment becomes final, 42 Pa. C.S.A. § 9545(b)(1). A judgment becomes final at the conclusion of direct review, including the time to seek discretionary review in the Supreme Court of Pennsylvania or the Supreme Court of the United States, or at the end of the time for seeking such review. 42 Pa. C.S.A. § 9545(b)(3). A petition for writ of certiorari is due in the United States Supreme Court within ninety (90) days after entry of the order denying discretionary review by the Pennsylvania Supreme Court. United States Supreme Court Rule 13.
Since the Pennsylvania Supreme Court denied Defendant's request for allowance of appeal on January 25, 2018. his petition for writ of certiorari would have been due in the United States Supreme Court on April 25, 2018. Therefore, Defendant's judgment of sentence became final on that date, and any subsequent PCRA should have been filed on or before April 25, 2019. Accordingly, Defendant's instant Petition is facially untimely by nearly five (5) years.
The Supreme Court of Pennsylvania has repeatedly held that "the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions." Commonwealth v. Rienzi, 827 A.2d 369,371 (Pa. 2003). Defendant's Petition recognizes its untimeliness but invokes two (2) of the statutorily prescribed exceptions to the PCRA's time bar.
First, Defendant argues that "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." 42 Pa. C.S.A. §9545(b)(1)(i). Specifically, Defendant contends that, during his first PCRA, he "asked the PCRA Court for funds for the purposes of retaining an expert in video forensics for the purpose of raising she ineffectiveness of trial counsel." He further states that the Court failed to award those funds or even rule on his request, thus constituting governmental interference with the presentation of his claim of ineffective assistance of counsel.
At trial, the Commonwealth presented a video to the jury purporting to depict Defendant approaching the victim and pointing a firearm at him. This video depiction corroborated the testimony of the victim. Defendant suggests that enhancement of the images on the video would establish that he "never pointed a gun or any type of weapon during the brief conversation that [he] had with [the victim]."
Defendant ekes to 50 Pa. C.S.A. §7402(0 for the proposition that "the rules required the allocation of funds for an expert witness" during his first PCRA. Defendant's reliance on this statute is entirely misplaced. §7402(f) involves, a court's allocation of funds to an indigent defendant for the retention of a psychiatrist or psychologist in proceedings under the Mental Health and Procedures Act regarding incompetence to stand trial and/or lack of criminal responsibility based on a mental health defense.
PCRA Courts may grant funds to an indigent petitioner to hire expert witnesses "upon a showing that such assistance is reasonably necessary to the preparation of the petitioner's case." Commonwealth v. Howard, 719 A.2d 233, 242 {Pa. 1998). Conversely, when a petitioner fails to prove that funds are reasonably necessary, the denial of funds does not violate due process and cannot constitute governmental interference. See, Commonwealth v. Howard, 788 A.2d 351, 354 (Pa. 2002) (a proper court order denying funds for an expert witness cannot constitute governmental interference).
We have reviewed Defendant's numerous pro se filings during his first PCRA. The overwhelming majority of those filings were in the form of correspondence to The Court rather than proper motions. Our review of Defendant's correspondence uncovered many requests for transcripts and discovery. Defendant filed a motion seeking an extension of time to file a Memorandum in support of his PCRA based entirely on his lack of legal training. He also filed a motion for a Bill of Particulars in which he sought transcripts, discovery, and the "original software of surveillance." We have not located any actual motion seeking funds to hire a video forensics expert, nor did we discover any requests for such funds in any of Defendant's correspondence. If we have overlooked a properly filed motion requesting expert funds, we trust Defendant will direct us to that motion in response to this Notice. Accordingly, we cannot conclude that Defendant at any time demonstrated that such funds were "reasonably necessary" to the preparation of his case, or that he suffered from governmental interference.
Pa. R. Crim. P. 575 mandates die proper form for motions and what information shall be contained therein.
The Motion was granted.
Second, Defendant invokes an exception to the time prohibitions of the PCRA by arguing that "the facts upon which [Ms] claim is predicated were unknown to [him] and could not have been ascertained by the exercise of due diligence." 42 Pa. C.S.A. §9545(b)(I)(ii). The "unknown fact" claimed by Defendant to trigger application of this exception is the allegedly enhanced video he has obtained at his own expense which he believes refutes the Commonwealth's theory that he brandished a firearm at the victim.
Defendant has not presented a new fact. The facts depicted in the video were known to Defendant and the onus was on him to investigate and refute those facts. To the extent that the video itself constitutes the fact in question, it was presented at trial and obviously known to Defendant. The newly discovered fact exception does not include "a newly-discovered...source for previously known facts." Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).
Defendant's own history of pleadings reveals that he knows this to be the case. In his first PCRA Petition, he alleged that his trial counsel was ineffective in failing to have the surveillance video enhanced. His claim is that his counsel should have examined the evidence presented by the Commonwealth closer. The '"closer look" he now wishes to present to the Court is no more a new fact than a cross-examination question never asked at trial. The very nature of the ineffectiveness claim presupposes that the supposedly new fact could "have been ascertained by the exercise of due diligence." 42 Pa. C.S.A. §9545(b)(1)(ii).
Accordingly, we find that Defendant has failed to establish an exception lo the statutory time limitations of the PCRA and that we are without jurisdiction to hear his claims or grant relief.
Based upon the foregoing and after review of Defendant's pro se PCRA Petition, NOTICE IS HEREBY GIVEN of This Court's INTENTION TO DISMISS Defendant's petition for post-conviction relief. Defendant is advised that he may respond to this proposed Order within twenty (20) days of the date of this notice.