Com. v. Barto, G. ( 2018 )

J-S70026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY ALLEN BARTO :
:
Appellant : No. 195 MDA 2017
Appeal from the PCRA Order January 17, 2017
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001173-2010
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2018
Appellant, Gregory Allen Barto, appeals pro se from the order denying
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546.1 We affirm.
In its opinion, the PCRA court set forth the relevant facts and procedural
history of this matter as follows:
[Appellant] was charged with numerous counts of sexually
related crimes including but not limited to rape, sexual assault,
indecent assault, unlawful contact with a minor, corruption of
minors and endangering the welfare of children, as well as several
counts of conspiracy to commit various additional sexual offenses.
[Appellant] filed pretrial motions asserting that these
offenses were barred by double jeopardy principles because they
were part of the same criminal episode as offenses involving
separate victims in six other cases.1 The court denied the
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1 Despite seeking and receiving an extension of time in which to file a brief,
the Commonwealth has failed to file a brief in this matter. Order, 8/31/17.
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motions, and [Appellant] appealed. The Superior Court affirmed
this court’s decision in a memorandum opinion dated January 31,
2013, and the Pennsylvania Supreme Court denied [Appellant’s]
petition for allowance of appeal on July 16, 2013.
1Those cases were CR-1079-2008, CR-110-2009, CR-
844-2009, CR-1606-2009 and CR-1632-2009.
On July 17, 2015, [Appellant] entered a no contest plea to
endangering the welfare of children, corruption of the morals of
minors, conspiracy to commit indecent assault of a minor and
indecent assault.[2] [Appellant’s] sentencing hearing was
continued several times. On June 2[2], 201[5], the court
sentenced [Appellant] to two to four years of state incarceration
to run entirely concurrent to the sentences that [Appellant] was
already serving.[3] The sentence was in accordance with the plea
agreement of the parties. [Appellant] did not appeal.
On June 23, 2016, [Appellant] filed a pro se PCRA petition.
The sole issue asserted in this PCRA petition was a claim that
[Appellant’s] second attorney was ineffective in the manner in
which he pursued [Appellant’s] double jeopardy claims. The court
appointed counsel to represent [Appellant] and gave counsel the
opportunity to file an amended PCRA petition or a no merit letter
in accordance with Commonwealth v. Turner, 544 A.2d 927(Pa. 1988) and Commonwealth v. Finley, 550-[sic] A.2d 213
(Pa. Super. 1988).
After obtaining the relevant transcripts, reviewing the issue
thoroughly with [Appellant] and researching the relevant law,
defense counsel filed on August 31, 2016 a motion to withdraw
which included a Turner/Finley no merit letter. Apparently, in
correspondence with counsel, [Appellant] discussed an additional
issue regarding the discipline of a law enforcement officer involved
in his prosecution. Since counsel believed [Appellant] waived that
issue by entering his plea and his double jeopardy issue lacked
merit, counsel did not file an amended PCRA petition.
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2 18 Pa.C.S. §§ 4304(a), 6301(a), 903(c), and 3126(a)(1), respectively.
3The trial court entered an amended sentencing order on June 29, 2015. The
amended order did not change the aggregate sentence.
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In a letter dated September 15, 2016 to this court,
[Appellant] disputed PCRA counsel’s analysis of his issue related
to the law enforcement officer, Trooper Douglas Sversko.
After an independent review of the record, in an Opinion and
Order dated December 21, 2016, the court granted PCRA counsel
leave to withdraw and gave [Appellant] notice of its intent to
dismiss his PCRA petition without holding an evidentiary hearing.
The notice gave [Appellant] twenty days to respond. The court
did not receive anything from [Appellant] within the twenty day
response time. Therefore, the court issued an order dismissing
[Appellant’s] PCRA petition.2
2 Thereafter, [Appellant] sent a letter dated
January 17, 2017, which was titled as “RESPONSE TO
NOTICE OF INTENT TO DISMISS.” [Appellant]
asserted that the Commonwealth’s failure to disclose
Trooper Sversko’s arrest and conviction constituted a
Brady[4] violation. He also noted that Trooper
Sversko interviewed the alleged victim and gathered
the Commonwealth’s evidence. [Appellant]
contended that “the fact that Trooper Sversko had
evidence that was tampered with in his possession
that he should not have had in his residence, provided
powerful impeachment material for trial. Had I known
about this information, which the Commonwealth still
has not provided the specifics of the matter, I would
not have plead (sic) no contest.”
[Appellant] filed a notice of appeal.
PCRA Court Opinion, 6/5/17, at 1-3. Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issue:
I. Whether Appellant’s due process rights were violated when
the Commonwealth failed to disclose Trooper Sversko[’s]
arrest and conviction for sex offenses which included
tampered evidence related to Appellant’s case found in
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4 Brady v. Maryland, 373 U.S. 83 (1963).
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Trooper Sversko’s residence in violation of Brady v.
Maryland?
Appellant’s Brief at 5 (full capitalization omitted).
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. Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. Id.The single claim raised in Appellant’s brief is related to disclosure of
information regarding Trooper Sversko’s arrest and conviction. Appellant’s
Brief at 5. In his PCRA petition filed June 23, 2016, however, Appellant
presented the following single claim:
Claim I.
Trial counsel was ineffective for failure to request nunc pro tunc
reinstatement to file an interlocutory appeal because he was just
retained and prior counsel failed to file an appeal from the denial
of Petitioner’s pretrial double jeopardy motion under Rule 110.
PCRA Petition, 6/23/16, at 3. Thus, Appellant failed to raise the issue
regarding Trooper Sversko in his PCRA petition.
As our Supreme Court has explained: “Any claim not raised in the PCRA
petition is waived and not cognizable on appeal.” Commonwealth v.
Washington, 927 A.2d 586, 601 (Pa. 2007); see also Pa.R.A.P. Rule 302
(stating “issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”). Accordingly, because Appellant did not raise
this issue in his PCRA petition, we cannot consider it on appeal. See
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Commonwealth v. Lauro, 819 A.2d 100, 103 (Pa. Super. 2003) (“issues not
raised in a PCRA petition cannot be considered on appeal.”).
Moreover, the fact that Appellant asserted this issue in his January 17,
2017 response to the PCRA court’s notice of intent to dismiss does not
preserve the issue. As this Court has explained:
The purpose behind a Rule 907 pre-dismissal notice is to allow a
petitioner an opportunity to seek leave to amend his petition and
correct any material defects, the ultimate goal being to permit
merits review by the PCRA court of potentially arguable claims.
The response is an opportunity for a petitioner and/or his counsel
to object to the dismissal and alert the PCRA court of a perceived
error, permitting the court to “discern the potential for
amendment.” The response is not itself a petition and the law still
requires leave of court to submit an amended petition. Hence, we
conclude that a response to a notice of intent to dismiss is not a
second or subsequent petition.
Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012) (internal
citations omitted). Appellant did not seek leave of court to file an amended
petition, nor did he file an amended petition including this claim. Accordingly,
Appellant’s issue is waived as it was not raised in his PCRA petition or in an
amended petition.
Additionally, Appellant’s pro se September 15, 2016 letter filed in
response to counsel’s petition to withdraw does not preserve the issue
Appellant raises on appeal. In his letter, Appellant asserted that counsel
should not have entertained a plea for Appellant without bringing the matter
involving Trooper Sversko “to [the PCRA court] via a pretrial motion.” Letter,
9/15/16, at 1. Appellant further argued that counsel was ineffective for failing
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to investigate the matter to determine why the Commonwealth failed to
disclose this information. Id. Thus, Appellant’s claim raised in his September
15, 2016 letter constitutes a claim of ineffective assistance of counsel and
differs from the issue raised in his appellate brief before this Court.5 Moreover,
had this issue not been waived, we would conclude that it lacked merit for the
reasons outlined by the PCRA court. PCRA Court Opinion, 6/5/17, at 4-7.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2018
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5 The PCRA court addressed this issue in its opinion and order providing notice
of its intent to dismiss. PCRA Opinion and Order, 12/21/16, at 8-10.
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