Com. v. Veneri, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY JOHN VENERI
Appellant No. 1803 EDA 2014
Appeal from the PCRA Order June 11, 2014
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003526-1978
CP-23-CR-0003713-1978
BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 21, 2015
Anthony John Veneri (“Appellant”), appeals from the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. After careful review, we affirm.
On January 31, 1979, a jury convicted Appellant of two robberies and
related offenses. The trial court sentenced Appellant to 25 to 50 years’
incarceration to be served consecutively to a previously imposed sentence
for another armed robbery conviction in Missouri. This Court affirmed
Appellant’s judgment of sentence on November 19, 1982. See
Commonwealth v. Veneri, 452 A.2d 784 (Pa.Super.1982).
Appellant filed the instant PCRA petition, his twelfth, on April 26, 2012.
The petition did not plead or prove one of the timeliness exceptions, and the
PCRA court issued a Pa.R.Crim.P. 907 notice on July 17, 2012. Appellant
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responded with multiple filings.1 On July 17, 2013, the PCRA granted
Appellant leave to amend his PCRA petition, to which he again responded
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1
Appellant’s eighteen (18) post-Rule 907 notice filings included:
(1) “Motion to Amend PCRA Petition to Address Timeliness”
dated 7/27/12;
(2) A letter received 8/9/12 stating that he wished to be
appointed an attorney and if he was ordered to be present for a
PCRA hearing that he would refuse as he was busy doing legal
work;
(3) “Motion for Release from State Custody” dated 8/15/12;
(4) “Notice of Intent to Dismiss Defendant’s Motion for Post-
Conviction Collateral Relief Without a Hearing in Twenty (20)
Days” dated 8/21/12;
(5) “Motion to Amend PCRA Petition” dated 8/22/12;
(6) “Motion to Compel the Trial Court to Rule and Decide on
Petitioner’s Post Conviction Collateral Relief” dated 8/21/12;
(7) “Motion for Petition of Writ of Habeas Corpus” based upon a
claim that “the trial court lacked jurisdiction to prosecute
petitioner’s cases” dated 9/6/12’;
(8) A letter to the court dated 9/20/12 asserting that the
Petitioner should be released from state custody based upon
ineffective assistance of counsel;
(9) “Petition for a Writ of Habeas Corpus Action and For an
Appointment of Counsel” filed 12/26/12;
(10) A letter to the court dated 1/16/13 reasserting claims
raised in Petitioner[’]s PCRA petition;
(11) A letter to the court filed with the Office of Judicial Support
on 2/7/13;
(12) “Petition to Supplement Petitioner’s Motion for Post
Conviction Collateral Relief” filed 2/14/13 in which he claimed
(Footnote Continued Next Page)
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with multiple filings.2 Ultimately, the PCRA court dismissed the petition as
untimely on June 11, 2014. Appellant filed a notice of appeal on June 19,
2014. The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal, and Appellant did not file
_______________________
(Footnote Continued)
that he was not read his Miranda warnings and was given pizza
and beer by the police in return for a confession in the instant
case. He claims ineffective assistance of counsel for failing to
explore these allegations at the time of trial;
(13) “Supplement to the Memorandums of Laws in the Petition
for a Writ of Habeas Corpus” filed 3/5/13;
(14) A letter to the court dated 3/1/13;
(15) A letter to the court dated 4/1/13;
(16) “Declaration in Support of Motion to Proceed In Forma
Pauperis” filed 5/13/13;
(17) “Petition for Sentence Reduction” filed 5/13/13;
(18) A letter to the court dated 6/11/13.
Delaware County Court of Common Pleas Docket No. CP-23-CR-0003526-
1978, pp. 5-7; see also PCRA Court Memorandum and Order, July 17,
2013, pp. 1-2.
2
After the PCRA court’s July 17, 2013 order granting leave to file an
amended petition to address the timeliness of his petition, Appellant filed no
less than two Amended PCRA petitions, five supplemental PCRA petitions, a
“Petition for Extraordinary Circumstances for Release from State Custody
Under the King’s Bench Rule”, a “Pro-Se Petition for Default Judgment or
Release from State Custody”, a “Pro Se Petition Demanding Release from
Illegal Confinement at SCI Fayette”, and at least four other petitions for
writs of habeas corpus, mandamus, etc. See Delaware County Court of
Common Pleas Docket No. CP-23-CR-0003526-1978, pp. 7-8.
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one.3 The PCRA court filed its Pa.R.A.P. 1925(a) opinion on November 13,
2014.
Appellant raises the following issues for review:
1. Whether[] the trial court lacked jurisdiction to prosecute
Appellant’s case[]s?
2. Whether[] the bills of informations [sic] were void in limine
[sic]?
3. Whether[] the Appellant had ineffective assistance of counsel?
Appellant’s Brief, p. 2 (all capitals omitted).
In reviewing an order denying PCRA relief, our well-settled standard of
review is “to determine whether the determination of the PCRA court is
supported by the evidence of record and 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. Barndt, 74 A.3d 185,
191-192 (Pa.Super.2013) (internal quotations and citations omitted).
We must first consider the timeliness of the petition. “It is undisputed
that a PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). “This time
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3
Although he did not file a formal 1925(b) statement, Appellant did continue
to file documents after the June 19, 2014 notice of appeal, including multiple
petitions to vacate sentence, and multiple requests for writs of habeas
corpus, mandamus, and an “extraordinary writ” from the Supreme Court of
the United States.
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requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of a petition.” Hernandez, 79 A.3d at
651 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A
judgment of sentence “becomes 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
the review.” 42 Pa.C.S. § 9545(b)(3). However, a facially untimely petition
may be received where any of the PCRA’s three limited exceptions to the
PCRA time bar are met. Hernandez, 79 A.3d at 651 (footnote omitted).
These exceptions include:
(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). As our Supreme Court has repeatedly
stated, the petitioner maintains the burden of pleading and proving that one
of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008); see also
Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa.Super.2011) (“The
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petitioner bears the burden to allege and prove [that] one of the timeliness
exceptions applies.”). Further,
[a] petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, the petitioner
must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame under section
9545(b)(2).
Hernandez, 79 A.3d at 651-652 (internal quotations omitted).
Finally, a heightened standard applies to a second or subsequent PCRA
petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). “A second or
subsequent request for relief under the PCRA will not be entertained unless
the petitioner presents a strong prima facie showing that a miscarriage of
justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,
1251 (Pa.2006). Additionally, in a second or subsequent post-conviction
proceeding, “all issues are waived except those which implicate a
defendant’s innocence or which raise the possibility that the proceedings
resulting in conviction were so unfair that a miscarriage of justice which no
civilized society can tolerate occurred”. Commonwealth v. Williams, 660
A.2d 614, 618 (Pa.Super.1995).
Here, Appellant’s judgment of sentence became final over 30 years
ago, in 1983. Accordingly, the instant petition, filed in 2012, is facially
untimely. Thus, Appellant must plead and prove that his petition falls under
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one of the Section 9545 exceptions set forth in the PCRA. See 42 Pa.C.S. §
9545(b)(1)(i)-(iii).
Appellant’s PCRA petition did not allege a PCRA exception. None of his
18 filings following the PCRA court’s 907 notice alleged a timeliness
exception. Likewise, none of his multiple filings following the PCRA court’s
July 17, 2013 order granting him permission to amend his petition alleged
an exception.
Appellant’s brief states:
5. One year time limitation, which allowed “untimely” claims
when facts were unknown, see case; Com. v. Pursell, 749 A.2d
911 [(Pa.Super.] 2000); Com. v. Austin, 721 A.2d 375
([Pa.Super.]1998).
Also see case; Com. v. Lark, 746 A.2d 585 [(Pa.Super.] 2000);
this case involved a situation where the facts upon which the
claims were based, []were not known to the petitioner and could
not have been discovered by him, until petition was on appeal.
Appellant’s Brief, pp. 5-6. To the extent this statement can be construed as
an attempt to raise the “after-discovered evidence” exception, Appellant
waived this claim by not raising it in his PCRA petition.4 Further, the
statement does not allege any fact that Appellant claims he could not have
ascertained through the exercise of due diligence. Finally, it does not meet
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4
It is axiomatic that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). As with
direct appeals, this axiom applies in PCRA appeals where an appellant did
not raise the claims before the PCRA court. Commonwealth v. Lambert,
797 A.2d 232, 240-41 (Pa.2001).
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the heightened standard for second or subsequent PCRA petitions, as it does
not implicate his actual innocence or raise the possibility that the
proceedings resulting in his conviction were so unfair as to represent a
miscarriage of justice. See Williams, supra. Accordingly, the petition
remains time-barred.
Because Appellant’s instant PCRA petition is patently untimely and
Appellant cannot avail himself of any of the PCRA’s time bar exceptions, the
PCRA court did not err in denying this claim as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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