Com. v. Grego, M. ( 2019 )

J-S02032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL GREGO :
:
Appellant : No. 2269 EDA 2018
Appeal from the PCRA Order Entered July 2, 2018
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000322-2007
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED FEBRUARY 12, 2019
Appellant, Michael Grego, appeals from the order entered in the Monroe
County Court of Common Pleas, which denied as untimely his serial petition
filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. On November 14, 2008, a jury convicted Appellant of attempted rape,
multiple counts of corruption of minors, indecent exposure, open lewdness,
unlawful contact with a minor, and other related offenses, in connection with
Appellant’s sexual abuse of three minors. The court sentenced Appellant on
March 17, 2009, to an aggregate term of 135 to 288 months’ incarceration.
This Court affirmed the judgment of sentence on March 17, 2011. See
Commonwealth v. Grego, 26 A.3d 1196 (Pa.Super. 2011). Appellant did
not pursue further direct review.
Appellant timely filed his first PCRA petition pro se on June 1, 2011. The
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court appointed counsel on June 7, 2011. Following a hearing on December
19, 2011, the court denied relief on February 24, 2012. This Court affirmed
the denial of PCRA relief on November 1, 2012, and our Supreme Court denied
allowance of appeal on July 2, 2013. See Commonwealth v. Grego, 63 A.3d
818 (Pa.Super. 2012), appeal denied, 620 Pa. 720, 69 A.3d 600 (2013).
On December 11, 2017, Appellant filed the current pro se PCRA petition.
The court appointed counsel on December 14, 2017. Following a hearing on
March 27, 2018, the court denied PCRA relief on July 2, 2018. Appellant timely
filed a notice of appeal on July 29, 2018. On July 31, 2018, the court ordered
Appellant to file a concise statement of errors per Pa.R.A.P. 1925(b).
Appellant timely complied on August 20, 2018.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition must be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is “final” at
the conclusion of direct review or at the expiration of time for seeking review.
42 Pa.C.S.A. § 9545(b)(3). The exceptions to the PCRA time-bar allow for
limited circumstances under which the late filing of a petition will be excused;
a petitioner asserting an exception must file a petition within 60 days of the
date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant’s judgment of sentence became final on April 16,
2011, upon expiration of the 30 days to file a petition for allowance of appeal
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in the Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a). Appellant filed
the current PCRA petition on December 11, 2017, which is patently untimely.
See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new
constitutional right” exception at Section 9545(b)(1)(iii), relying on
Commonwealth v. Maconeghy, 642 Pa. 770, 171 A.3d 707 (2017) (holding
expert witness may not express opinion that particular complainant was victim
of sexual assault based upon witness accounts couched as history, in absence
of physical evidence of abuse; such testimony invades province of jury
relative to determining credibility). Even if Appellant could establish that
Maconeghy announced a new constitutional right subject to retroactive
application, see 42 Pa.C.S.A. § 9545(b)(1)(iii), he still would not be entitled
to relief. Significantly, the Commonwealth presented physical evidence of
sexual abuse at trial, so Maconeghy is inapposite. Thus, Appellant’s current
PCRA petition remains time-barred. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/19
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