Opinion
No. 900 C.D. 2014
05-19-2015
Jose M. Feliciano, Appellant v. Louis Folino, Superintendent, Major L. Winfield, Captain P. Walker, Lt.'s S.P. Durco, B.A. Kirby, Dorina Varner (Chief Grievance Officer), Off. Barry, Off. Kliegan
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Jose M. Feliciano (Feliciano) appeals, pro se, from the April 30, 2014 order of the Court of Common Pleas of Greene County (trial court), granting summary judgment in favor of Louis Folino, Major Winfield, Captain P. Walker, Lieutenant S.P. Durco, B.A. Kirby, Dorina Varner, Officer Barry, and Officer Kliegan (together, Defendants).
Following his conviction for, inter alia, first-degree murder, a trial court sentenced Feliciano to life-imprisonment without the possibility of parole. Feliciano filed a direct appeal; his judgment of sentence was affirmed by the Superior Court; and the Supreme Court denied allowance of appeal. See Commonwealth v. Feliciano, 69 A.3d 1270, 1272 (Pa. Super. 2013) (discussing procedural history of Feliciano's direct appeals and petitions under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-9546). Thereafter, Feliciano filed three PCRA petitions, which were all denied by a trial court and the denials were affirmed on appeal by the Superior Court. Feliciano also filed two federal habeas corpus petitions, which were both denied by a federal district court and the denials were affirmed on appeal by the United States Court of Appeals for the Third Circuit.
While his post-conviction litigation was pending throughout the state and federal courts, Feliciano was confined in the Restricted Housing Unit (RHU) from June 9, 2009, to October 22, 2009, and the Defendants allegedly confiscated his legal materials during this time.
On January 20, 2012, Feliciano filed a civil rights action under Section 1983 in the trial court, asserting that the Defendants deprived him of his constitutional right to access the courts.
Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. §1983.
In his complaint, Feliciano avers that on July 9, 2007, he obtained "after-discovered evidence" in the form of a sentencing transcript of a witness who testified against him in the underlying criminal trial. Feliciano alleges that, although the witness denied having a deal with the Commonwealth at the trial, the sentencing transcript shows that the witness had an agreement with the Commonwealth and received a lenient sentence on criminal charges in exchange for his testimony. According to Feliciano, the Defendants' actions in taking his legal materials resulted in him being unable to properly challenge the Superior Court's denial of his second PCRA petition in an appeal to the Pennsylvania Supreme Court and thwarted his attempt to file a motion for rehearing from the Third Circuit's denial of his second habeas corpus petition. Feliciano contends that his after-discovered evidence would suffice to grant him a new trial.
The Defendants filed a motion for summary judgment, asserting that Feliciano failed to submit sufficient evidence to support his denial of access claim.
On April 30, 2014, the trial court entered an order granting summary judgment in favor of the Defendants, concluding, among other things, that Feliciano's denial of access claim failed as a matter of law because Feliciano did not establish that he was deprived of a legitimate legal claim and, therefore, did not sustain an actual injury.
On appeal to this Court, Feliciano contends that a genuine issue of material fact exists so as to preclude the entry of summary judgment because the Defendants' failure to return his legal materials "harmed [his] chance" of having our Supreme Court and the Third Circuit consider his newly-discovered evidence. (Feliciano's brief at 13.) Feliciano also argues that he suffered actual injury because a key witness lied at his criminal trial about not having an arrangement or deal with the Commonwealth to receive lenient sentencing treatment.
"The scope of this Court's review of a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion." Kaplan v. Southeastern Pennsylvania Transportation Authority, 688 A.2d 736, 738 n.2 (Pa. Cmwlth. 1997). "Summary judgment is appropriate only when, after examining the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Guy M. Cooper, Inc. v. E. Penn School District, 903 A.2d 608, 613 (Pa. Cmwlth. 2006).
"Although denial of access to legal documents may constitute a violation of a prisoner's First Amendment right to petition the courts and/or Fourteenth Amendment due process rights, in order to state a cognizable claim for violation of the right to access to the courts, a prisoner must allege and offer proof that he suffered an 'actual injury' to court access as a result of the denial. The Supreme Court has defined actual injury as the loss or rejection of a nonfrivolous legal claim regarding the sentencing or the conditions of confinement." Hackett v. Horn, 751 A.2d 272, 275-76 (Pa. Cmwlth. 2000) (citations omitted).
Typically, the Commonwealth must disclose to the defense deals or plea bargains between the Commonwealth and a witness testifying against a defendant in a criminal trial because this information could be used by the defense to impeach the witness's testimony by showing that the witness has an improper motive to testify against the defendant, i.e., to receive favorable sentencing treatment for crimes committed by the witness. See Commonwealth v. Burkhardt, 833 A.2d 233, 241 (Pa. Super. 2003) (en banc) (concluding that under the Brady rule, the prosecution must disclose exculpatory information in the form of witness deals because "[a]ny implication, promise or understanding that the government would extend leniency in exchange for a witness's testimony is relevant to the witness's credibility."); Commonwealth v. Johnston, 644 A.2d 168, 173 (Pa. Super. 1994).
See Brady v. Maryland, 373 U.S. 83 (1963).
In this case, the record demonstrates that Feliciano already presented his after-discovered evidence claim to the Superior Court in an appeal from the denial of his second PCRA petition. In an unpublished memorandum, the Superior Court rejected Feliciano's claim and dismissed his second PCRA petition as untimely. Commonwealth v. Feliciano, (Pa. Super., No. 931 EDA 2008, filed November 6, 2008) ("Feliciano I"). In doing so, the Superior Court provided a very generous and liberal reading of Feliciano's after-discovered sentencing transcript and concluded that it failed to establish an arrangement between the Commonwealth and the witness with respect to that witness's testimony in Feliciano's criminal trial. See Feliciano I, slip op. at 2-3 ("At best the transcript evidences a willingness on the part of the Commonwealth to speak to the court about [the witness's] cooperation at [Feliciano's] trial.").
The transcript indicates that the witness decided to withdraw his post-trial motions after being convicted by either a judge or jury for unidentified crimes and opted instead to enter into a guilty plea with a negotiated sentence. When the trial court was deciding whether to accept the guilty plea, the Commonwealth informed the trial court that the witness cooperated with the district attorney and was a material witness in a homicide trial against one Anthony Breeland. (Exhibit "A" to Feliciano's brief.)
Similarly, our independent review of the sentencing transcript reveals that it is not exculpatory in nature and does not demonstrate that the witness had an agreement with the Commonwealth to receive favorable sentencing treatment - or, in fact, received favorable sentencing treatment - for testifying at Feliciano's trial. (Exhibit "A" to Feliciano's brief). What Feliciano's evidence does show is that the witness testified for the Commonwealth in a different homicide trial involving a different defendant, and the Commonwealth brought this to the attention of the sentencing court when the witness was scheduled to be sentenced on criminal convictions. However, the witness's testimony at Feliciano's trial is not mentioned during the sentencing proceedings and it is entirely speculative whether there was any deal between the Commonwealth and the witness regarding Feliciano's trial. See Commonwealth v. Dickerson, 900 A.2d 407, 410 (Pa. Super. 2006) (rejecting the appellant's contention that the Commonwealth did not reveal a deal witness in his case where the appellant offered no evidence of any deal and the claim was based on pure conjecture). See also Commonwealth v. Busanet, 54 A.3d 35, 48-49 (Pa. 2012) ("[A] witness's assumption that he will benefit from cooperating in the prosecution of the defendant, without more, is insufficient to establish that an agreement existed."); Burkhardt, 833 A.2d at 244 ("[A] defendant's subjective hope and even expectation of more lenient treatment is not something the Commonwealth is required, or even able, to disclose.").
To succeed on a denial of access claim, a plaintiff must show that he has suffered an actual injury; that is, the loss of a nonfrivolous legal claim. Hackett, 751 A.2d at 275. Ultimately, Feliciano's failure to adduce sufficient evidence that a witness deal or arrangement occurred in his specific criminal case renders his underlying PCRA and federal habeas corpus claims meritless. Therefore, Feliciano's "lost" legal opportunities - a discretionary appeal to our Supreme Court and a discretionary motion for rehearing before the Third Circuit - are merely "hopes" that those courts would grant review, and Feliciano's Section 1983 claim must necessarily fail. See Christopher v. Harbury, 536 U.S. 403, 416 (2002) (explaining that to prevail on a denial of access claim, the plaintiff must "show that the 'arguable' nature of the underlying claim is more than hope.").
In an attempt to prove that his claim has arguable merit, Feliciano cites Commonwealth v. Davis, 86 A.3d 883 (Pa. Super. 2014), in which the Superior Court concluded that a petitioner's PCRA petition met the governmental interference exception to the PCRA's one-year time limitation to file a petition after a judgment of sentence has become final. In Davis, the petitioner exercised due diligence in obtaining a sentencing transcript of a witness who participated criminally in the petitioner's criminal acts and pled guilty to counts of being an accessory after the fact. The sentencing transcript in Davis clearly indicated that, in exchange for his testimony at the petitioner's trial, the witness had a deal with the Commonwealth to receive probation for his accessory after the fact charges.
In this case, there is no such qualitative evidence. Therefore, Davis is distinguishable on its facts.
Accordingly, we must affirm the trial court's order granting summary judgment in favor of Defendants on Feliciano's Section 1983 access to courts claim.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 19th day of May, 2015, the April 30, 2014 order of the Court of Common Pleas of Greene County is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge