Opinion
J.A21012/15 No. 418 EDA 2014
08-05-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. CRAIG SAUNDERS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order January 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0512141-2002
BEFORE: ALLEN, MUNDY, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Craig Saunders, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, dismissing his second Post Conviction Relief Act ("PCRA") petition as untimely. He contends he sufficiently pled both the governmental interference and unknown facts exceptions to the timeliness provision of the PCRA, warranting him review on the merits. We affirm.
42 Pa.C.S. § 9545(b)(1)(i), (ii).
The underlying facts of Appellant's conviction are not dispositive of the issue raised on appeal. We note Appellant's first jury trial in February 2003 resulted in a hung jury. See Commonwealth v. Saunders , 838 EDA 2004 (unpublished memo. at 4 n.1) (Pa. Super. filed Dec. 1, 2006) (direct appeal). Following a second jury trial on January 23, 2004, Appellant was convicted of rape and burglary, as well as multiple counts of robbery, kidnapping, carrying a firearm without a license, and criminal conspiracy. On March 11, 2004, he was sentenced to an aggregate term of 48½ to 97 years' incarceration. Appellant timely appealed, and on December 1, 2006, this Court affirmed his judgment of sentence. Saunders , 838 EDA 2004. On January 25, 2007, this Court denied Appellant's motion for reconsideration.
We note the PCRA court stated Appellant's sentence was 48½ to 103 years' imprisonment. See PCRA Ct. Op., 6/26/14, at 1. However, the sentencing sheets reflect an aggregate term of 48½ to 97 years' imprisonment. See Sentencing Sheets, 3/11/04.
Appellant timely filed his first pro se PCRA petition on February 26, 2007. On April 23, 2010, the PCRA court dismissed Appellant's PCRA petition. This Court affirmed its denial on August 9, 2011. Commonwealth v. Saunders , 1301 EDA 2010 (unpublished memorandum) (Pa. Super. filed Aug. 9, 2011). Appellant filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on August 15, 2012.
On September 20, 2012, Appellant filed this instant pro se PCRA petition, claiming:
(a) Trial counsel was ineffective for failing to bring to bear such skill and knowledge as would render the adversarial process reliable through his cross-examination of witnesses . . . ;Appellant's Pet. for Post Conviction Relief, 9/20/12, at 6-7.
(b) Trial counsel was ineffective for failing to call three witnesses . . . ; and
(c) Trial counsel was ineffective for failing to object to the trial court's erroneous kidnapping jury instruction . . . .
On November 20, 2012, Appellant filed a supplemental PCRA petition claiming:
[Appellant's] rights under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution were violated by the admission of identification evidence presented by the Commonwealth.Appellant's Supp. Pet. for Post Conviction Relief, 11/20/12, at 3.
On August 28, 2013, the PCRA court filed a Pa.R.Crim.P. 907 notice to dismiss the petition without a hearing. Appellant responded to this notice on September 16, 2013. On January 7, 2014, the PCRA court formally dismissed his second PCRA petition as untimely.
Appellant timely filed a notice of appeal on February 3, 2014. Appellant was ordered to file a Pa.R.A.P. 1925(b) statement and timely complied. On June 26, 2014, the PCRA court filed an opinion.
Appellant now raises the following issues for our review:
1. Whether Appellant's second PCRA Petition - filed more than one year after the date his judgment became final - sufficiently pled an exception to the timeliness provision of the Post Conviction Relief Act?Appellant's Brief at 4.
2. Whether Appellant had a right to a remedy under the Pennsylvania and United States Constitutions?
3. Whether the PCRA Court abused its discretion by entering an order on the merits of the PCRA Petition while motion for recusal was pending?
4. Whether the PCRA Court erred by treating the Motion for Modification of Sentence Nunc Pro Tunc as part of the PCRA Petition and denying the Motion?
Appellant concedes the instant PCRA petition was filed more than one year after his judgment of sentence became final. Id. at 10, 11. Appellant first argues he qualified for the exception enumerated in Section 9545(b)(1)(i) of the PCRA because the court reporter, trial judge, and PCRA judge interfered with his obtaining transcripts from the first trial, which resulted in a hung jury. Id. at 12. Appellant specifically avers, without further explanation, the factual bases for his first two ineffective assistance of counsel claims "were contained in the trial transcripts," which he requested "from the time his first trial ended up to the start date of his second trial, during direct appeal, and during the first PCRA proceedings." Id. Appellant also states he received the transcripts on June 16, 2010. He further asserts that had his "requests for leave to file an amended petition and for an evidentiary hearing been granted. . . . he would have been able to provide extensive documentary evidence in support of his pleadings." Id. Finally, he contends "[t]he PCRA Court conflated the governmental interference exception to the time-bar with the standard for a claim for a new trial on the basis of after-discovered evidence." Id.
Secondly, Appellant contends he is qualified for the exception enumerated at Section 9545(b)(1)(ii) because "the facts upon which all four of his claims were predicated were unknown to him and were not ascertained despite the consistent exercise of due diligence." Id. at 13. Specifically, he claims the factual basis of his claim—that his counsel was ineffective for failing to object to an erroneous jury instruction—was predicated upon his "receipt of a copy of the Pennsylvania Suggested Standard Jury Instructions" "around May 31, 2012." Id. Appellant also states the factual predicate of his due process clause claim was based upon the receipt of:
(1) the Philadelphia Police Department Directives #33 and #135, which relate to how police conduct photographic identifications and turn over exculpatory evidence; (2) the September 2011 Report of the Advisory Committee on Wrongful Petitions, by the Pennsylvania General Assembly, which contains a section detailing how mistaken eyewitnesses are a primary cause of wrongful convictions; and (3) the book 'Eyewitness Testimony,' by Elizabeth Loftus, which details the science of how human memory
works and its effects in criminal prosecutions based upon eyewitness testimony.Id. at 13 (footnote omitted).
Finally, Appellant avers that under Commonwealth v. Walker , 92 A.3d 766 (Pa. 2014), expert testimony may be admitted to aid "the trier of fact in understanding the characteristics of eyewitness identification." Appellant's Brief at 14. He therefore asserts because "the Commonwealth's case against [him] rested entirely on the identification testimony of 3 witnesses," he "can now demonstrate that either the identification evidence was inadmissible or, if admitted, he should be able to present compelling expert witness testimony to help the jury understand the fallibility of identification testimony." Id. We find no relief is due.
Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013) (citations omitted).
We first consider whether the PCRA court had jurisdiction to entertain the underlying PCRA petition.
[W]e observe that the timeliness of a PCRA petition is a jurisdictional requisite. "Jurisdictional time limits go to court's right or competency to adjudicate a controversy." Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. The PCRA now requires a petition, including second or subsequent petition, to be
filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1)[.] A judgment is deemed 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 time for seeking review." 42 Pa.C.S.A. § 9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than one year after a petitioner's sentence became final, the petitioner must allege and prove at least one of the three timeliness exceptions. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). To invoke an exception, a petition must allege and the petitioner must prove[, inter alia]:
(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 of laws of this Commonwealth or the Constitution or laws of the United States; [or]
(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[.]
Commonwealth v. Williams , 35 A.3d 44, 52-53 (Pa. Super. 2011) (some citations omitted).
42 Pa.C.S.A. § 9545(b)(1)(i), [(ii)] . . . .
* * *
The statutory exceptions to the timeliness requirements of the PCRA are also subject to a separate time limitation and must be filed within sixty (60) days of the time the claim could have been first presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty (60) day time limit related to Section 9545(b)(2) runs from the date the petitioner first learned of the alleged after-discovered facts. A petitioner must explain when he first learned of the facts underlying his PCRA claims and show that he brought his claim within sixty (60) days thereafter. "A petitioner fails to satisfy the 60-day requirement of Section 9545(b) if he . . . fails to explain why, with the exercise of due diligence, the claim could not have been filed earlier." All of the time limits set forth in the PCRA are jurisdictional and must be strictly construed.
"A second or subsequent petition for post-conviction relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Commonwealth v. Ali , 86 A.3d 173, 176 (Pa. 2014), cert. denied, 135 S. Ct. 707 (2014).
In the instant case, Appellant was sentenced on March 11, 2004. This Court affirmed the judgment of sentence on December 1, 2006, and denied his motion for reconsideration on January 25, 2007. Appellant had thirty days from that date, or until Monday, February 26, 2007, to petition the Pennsylvania Supreme Court for allowance of appeal. See Pa.R.A.P. 1113(a)(1). Therefore, Appellant's judgment of sentence became final on that date, and he generally had one year therefrom, or until February 26, 2008, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(3). As stated above the instant PCRA petition was filed on September 20, 2012.
The thirtieth day after this Court denied Appellant's motion for reconsideration was Saturday, February 24, 2007. Thus, the deadline for him to file a petition for allowance of appeal with our Supreme Court was Monday, February 26, 2007. See 1 Pa.C.S. § 1908.
The PCRA court opined:
Appellant has recognized his petition was untimely filed but has failed to prove an exception to the time-bar as required by 42 Pa.C.S. § 9545(b) and Williams . . . .
In the instant petition, Appellant alleges that the facts upon which his claim is predicated were unknown to him and could not be ascertained by the exercise of due diligence pursuant to 42 Pa.C.S. § 9545(b). The alleged unascertainable facts, trial counsel's ineffectiveness based upon notes of testimony later acquired by Appellant, fails to satisfy the exception identified in [ Commonwealth v. Bonaccurso , 625 A.2d 1197, 1198 (Pa. Super. 1993).] There is no support for Appellant's assertion that his Ineffective Assistance of Counsel (IAC) claims could not have been raised previously based solely on the notes of testimony he received, as Appellant's first PCRA Petition raised several IAC issues, and that dismissal of Appellant's first PCRA Petition was affirmed. Even if the Court were to find that the evidence could not have been discovered, the evidence presented does not appear to be exculpatory in nature. Appellant has also failed to show how the IAC claims were of such a quality as to change the outcome of the trial. Lastly, Appellant stated in his PCRA Petition that the facts newly discovered were known to him on June 16, 2010, but his second petition was filed over two (2) years after Appellant received the alleged after-discovered information. For this reason, this Court properly dismissed Appellant's PCRA petition as untimely.PCRA Ct. Op. at 4-5.
In the instant PCRA petition, Appellant averred the court reporter did not provide transcripts of his first, hung-jury trial until June 16, 2010, and that despite exercising due diligence, he "could not ascertain the facts upon which [his claims] are predicated until" he received them. Appellant's Pet. for Post Conviction Relief at 4. Appellant also stated his first PCRA petition "was not finally resolved until August 15, 2012," when the Supreme Court denied allowance of appeal. Id. at 3. Appellant thus concluded the instant PCRA petition of September 20, 2012, was filed within sixty days of the date he could have raised his claims. Id. at 3-4 (citing Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000) (holding that when appellant's PCRA appeal is pending, subsequent PCRA petition cannot be filed until resolution of review of pending PCRA petition by highest state court in which review is sought, or upon expiration of time for seeking such review)).
While we agree Appellant could not have filed a subsequent PCRA petition until his first petition was resolved, see Lark , 746 A.2d at 588, we find no abuse of discretion in the PCRA court's denial of relief. In the instant petition, Appellant noted he had the same counsel at both trials and argued "counsel's performance at the second trial was remarkably different and deficient with respect to his cross-examination of" the complainant witnesses and police detective. Appellant's Pet. for Post Conviction Relief at 7-11. The PCRA court astutely noted Appellant's first petition raised several claims of trial counsel's ineffectiveness. PCRA Ct. Op. at 5. In the memorandum affirming the denial of that petition, this Court noted, "The mere possibility that trial counsel could have cross-examined a Commonwealth witness more effectively or focused on a different aspect of a witness's testimony does not establish that the tactic counsel actually used were so unreasonable that 'no competent lawyer would have chosen them.'" Saunders , 1301 EDA 2010 (unpublished memo. at 20 (citing Commonwealth v. Albrecht , 511 A.2d 764, 776 (Pa. 1986)). We find this ineffectiveness claim was previously litigated and thus not reviewable. See 42 Pa.C.S. § 9543(a)(3). We also do not disturb the PCRA court's rejection of Appellant's claim that his instant ineffectiveness "claims could not have been raised previously based solely on the notes of testimony he received." See PCRA Ct. Op. at 5.
Appellant's second claim for relief under Section 9545(b)(1)(ii) is also meritless. The Pennsylvania Suggested Standard Jury Instructions for kidnapping charges, Philadelphia Police Department Directive, advisory committee report, book on eyewitness testimony, and Walker decision are not "evidence." See Commonwealth v. Watts , 23 A.3d 980, 986-87 (Pa. 2011) (stating, with respect to Subsection 9545(b)(1)(ii), law is a principle and fact is event); Commonwealth v. Cintora , 69 A.3d 759, 763 (Pa. Super. 2013) (stating our courts have expressly rejected notion that judicial decisions are newly-discovered facts under Subsection 9545(b)(1)(ii)), appeal denied, 81 A.3d 75 (Pa. 2013)). We agree with the Commonwealth's argument that Appellant's due process claim is unreviewable because he failed to include it in his initial PCRA petition and failed to obtain leave of court to file his supplemental petition, in which he did raise it. See Commonwealth v. Reid , 99 A.3d 427, 437 (Pa. 2014).
Appellant has not established any of the timeliness exceptions to the PCRA requirements. See 42 Pa.C.S. § 9545(b)(1)(i)-(ii). Therefore, we agree with the PCRA court that it lacked jurisdiction to address Appellant's claims. We discern no abuse of discretion by the PCRA court. Accordingly, we affirm.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015