Com. v. Disco, R. ( 2019 )

J-S32023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD DISCO :
:
Appellant : No. 3274 EDA 2017
Appeal from the PCRA Order September 15, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1206261-2001
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY NICHOLS, J.: FILED JULY 25, 2019
Appellant Richard Disco appeals pro se from the order dismissing as
untimely his second petition under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Appellant claims that his discovery of new facts
provides an exception to the time-bar provisions of the PCRA. We affirm.
We adopt the facts and procedural history set forth in the PCRA court’s
decision. See PCRA Ct. Op., 1/14/19, 1-5. On May 19, 2003, a jury convicted
Appellant of multiple sex offenses related to the abuse of his stepdaughter.
On October 2, 2003, the court sentenced Appellant to an aggregate term of
fourteen to twenty-eight years’ incarceration.
On August 23, 2005, this Court affirmed Appellant’s convictions, but it
vacated his judgment of sentence and remanded the case to the trial court for
resentencing. Commonwealth v. Disco, 3411 EDA 2003 (Pa. Super. 2005
filed Aug. 23, 2005). On June 8, 2006, the trial court resentenced Appellant
J-S32023-19
to an aggregate term of ten to twenty years of incarceration. Appellant filed
an appeal to this Court, which he discontinued on February 9, 2007.
On June 11, 2007, Appellant timely filed his first pro se PCRA petition.
The PCRA court appointed counsel, who filed an amended petition. On
February 9, 2009, the PCRA court dismissed Appellant’s petition. This Court
affirmed the order on August 30, 2010, and the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal on March 29, 2011.
Commonwealth v. Disco, 606 EDA 2009 (Pa. Super. filed Aug. 30, 2010)
(unpublished mem.), appeal denied, 19 A.3d 1049 (Pa. 2011).
On March 25, 2015, Appellant filed the current pro se PCRA petition.
Appellant subsequently submitted four additional pro se filings, which the
PCRA court treated as amendments to the original petition. In his filings,
Appellant argued that the PCRA court should consider his petition as timely
filed due to newly discovered facts, including (1) a January 15, 2015
newspaper interview with the victim, which raised questions about her mental
health and cast doubt on the credibility of her accusations; (2) provocative
photos of the victim from a magazine article; and (3) statements in Appellant’s
probation and parole board records about his behavior in the courtroom
following his conviction.1 Appellant also argued that his sentence was illegal
____________________________________________
1 Specifically, Appellant’s March 22, 2017 amended PCRA petition asserted
that the “supervision history” document prepared by his former parole officer
contained false statements, “[t]he most troubling aspect of this issue is,
[Appellant] has never been interviewed by the Parole Board,” and the
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pursuant to the United States Supreme Court’s decision in Alleyne v. United
States, 570 U.S. 99 (2013).
On July 14, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss the petition without a hearing. Appellant did not file a
response to the Rule 907 notice. The PCRA court dismissed the petition as
untimely on September 15, 2017.
Appellant timely filed a pro se notice of appeal, which was postmarked
on September 29, 2017. On October 20, 2017, Appellant timely filed a court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. The PCRA court filed a responsive Rule 1925(a) opinion, concluding
that Appellant had failed to overcome the PCRA’s time-bar provisions.
Appellant now raises three questions for our review:
Did the Honorable PCRA Court err when it dismissed Appellant’s
PCRA filed on March 25, 2015 as untimely and without merit?
When Appellant would have been able to plead and prove that the
alleged victim’s testimony was unreliable to support a conviction
of sexual abuse, possibly as a result of her admission of being a
woman of many different personalities?
Did the Honorable PCRA Court err when it dismissed Appellant’s
Amended PCRA Petition filed on August 13, 2015 without a
hearing, and where Appellant would have been able to prove that
his sentence was illegal?
____________________________________________
document at issue “may have played a big part with all the problems
[Appellant] has been having with the Parole Board and the Department of
Corrections.” Amended PCRA Pet., 3/22/17, at 5. Consequently, Appellant
requested an evidentiary hearing and the issuance of a subpoena to the parole
officer “to answer for her actions, which [have] no doubt hindered
[Appellant’s] ability to be paroled.” Id.
-3-
J-S32023-19
Did the Honorable PCRA Court err when it dismissed Appellant’s
Amended PCRA Petition as untimely[?] Where Appellant pled and
would have been able to prove that a witness for the
Commonwealth during his trial, Appellant’s Parole Agent, falsified
a Supervision History Report and submitted it to the Pennsylvania
Board of Probation and Parole to hinder his ability to be paroled?
Appellant’s Brief at 2.
After a review of the parties’ briefs, the record, and the PCRA court’s
decision, we adopt and affirm based on the PCRA court’s opinion addressing
the issues raised on appeal. See PCRA Ct. Op. at 5-11. Specifically, the PCRA
court determined that Appellant mischaracterized the information in the
newspaper article, which did not indicate that the victim suffered from a
mental health disorder. Id. at 6-7. Appellant also failed to demonstrate how
the photos refuted the victim’s testimony. Id. at 9. Further, the PCRA court
concluded that Appellant’s complaint about the failure to receive an interview
with the Parole Board is not cognizable under the PCRA.2 Id. at 10.
Additionally, the holding in Alleyne is inapplicable, because Appellant did not
receive mandatory minimum sentences.3 Id. at 8-9. Accordingly, having
discerned no error of law, we affirm the order denying PCRA relief.
____________________________________________
2 For the first time on appeal, Appellant argues that the statements in his
parole records call into question all of the parole officer’s trial testimony, and
Appellant should receive a new trial on this basis. See Appellant’s Brief at 34.
Because Appellant failed to raise this argument before the PCRA court, it is
waived. See Commonwealth v. Roney, 79 A.3d 595, 611-12 (Pa. 2013)
(reiterating that an issue is waived on appeal if it is not presented to the PCRA
court in the first instance).
3 We note, however, that the PCRA court’s opinion contains a typographical
error in the fourth sentence of the first paragraph on page nine, where the
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/19
____________________________________________
court should have written that a mandatory minimum sentence was not
imposed at the 2006 resentencing hearing.
-5-
0046_Opinion
Circulated 07/10/2019 10:55 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
.CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-1206261-2001
CP-51-CR-1206261-2001 Comm v. Disco, Richard
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OPINION OF THE COURT
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Appellant, Richard Disco, appeals from this Court's denial of relief pursuar@toill1e.E.ost-
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Conviction Relief Act (PCRA), 42 Pa. C.S.A. §9541 et seq. For the reasons set forth below, this
Court's Order denying relief should be affirmed.
This matter was tried as a jury trial before this Court between May 8, 2003 and May 19,
2003. Appellant was charged with involuntary deviate sexual intercourse and related charges
concerning an incident that occurred with the complainant, his step-daughter, in or about 1992,
when she was about eleven years old. He also was charged with a May 19, 2001, incident involving
the same complainant, when she was twenty years old.
On May 19, 2003, the jury returned a verdict of guilty of involuntary sexual intercourse,
indecent assault, endangering the welfare of a child and corruption of a minor. On October 27,
2003, this Court sentenced Appellant to an aggregate prison sentence of sentence of fourteen (14)
to twenty eight (28) years. 1
On August 23, 2005, the Superior Court affirmed Appellant's convictions, but vacated his
judgments of sentence and remanded to this Court for resentencing. Commonwealth v. Richard
Disco, 3411 EDA 2003 (Pa. Super. 2005). On June 8, 2006 this Court resentenced Appellant to an
1
Specifically, was sentenced to nine (9) to eighteen ( 18) Y!,!ars for involuntary deviate sexual intercourse; one (I) to
two (2) years for indecent assault; two (2) to four ( 4) years for endangering the welfare of a child; and two (2) to
four (4) years for corruption ofa minor. All sentences were to run consecutively.
1·
'
aggregate term of ten to twenty years of imprisonment. Appellant filed a notice of appeal to the
Superior Court, but withdrew it on February 9, 2007.
The facts as found by the jury are as follows: the victim, who was twenty-two years old at
the time of trial, is Appellant's stepdaughter. She testified to a pattern of sexual behavior towards
her by Appellant that began when she was about eleven years old. Specifically, one night when
she was about eleven, Appellant came home and took her to look for her mother and sister, who,
apparently were out looking for Appellant. As the two were driving, Appellant stated that he
wanted to teach her how to kiss. She persistently declined, and Appellant took her back home.
(N.T. 5/12/03, 57-68).
When they arrived home, the victim testified that she took off her favorite purple winter
coat. Appellant then grabbed her and threw her onto the couch, pushing her down into a couch
with her head in a pillow. He got on top of her and pulled down her pants. He then began licking
inside her vagina and buttocks. Every time she tried to get up, Appellant held her head down.
This continued on for about 20 minutes. After he finished, Appellant laid on top of her until he
fell asleep. (N.T. 5/12/03, 65-70).
The complainant then pushed him off her, and ran up to her room. She cried all night.
The following morning, Appellant approached her to discuss what happened last night. As she
was getting ready to leave for school, he stated, "No one will believe you, and if they do, I'll hurt
you, and you'll break a family up." He also told the complainant that "I'll buy you whatever you
want, don't tell your mother, don't tell nobody. It was an accident. It will never happen again."
(N.T. 5/12/03, 70-72).
She did not tell anyone about what Appellant did to her the previous night because she
was scared of what he might do if she told. Yet this incident was not a one-time occurrence. The
2
victim testified to other instances when she would be taking a shower, and Appellant would look
in through the shower curtain. However, she continued not to tell anyone because she didn't
want her brother to grow up without a father.2 (N.T. 5/12/03, 71- 76).
On May 19, 2001, the victim, who at that time was twenty years old, was sleeping on the
sofa in their home. She awoke and found Appellant grinding on top of her body with his body.
She testified that his penis, through his clothes, was grinding on the victim's vagina. She kicked
him, pushed him away and ran into her room. She told her mother and they called the police.
Appellant ran out of the house before the police arrived and called the house numerous times
stating: "How dare you call the cops; I was trying to wake you up." (N.T. 5/12/03 80-91).
As a result of this incident, the complainant testified that she has had nightmares, has been
unable to sleep, is afraid of the dark, and is scared to walk down the street at night. Also, she has
received counseling because of this incident. (N.T. 5/12/03, 113-114).
The complainant's sister, testified that she was awakened in the early morning of May 19,
2001 to find her sister in her bed, rocking back and forth, crying and holding herself. When she
asked her sister what was wrong, the complainant said, "Richie touched me." Together, they told
their mother3 and the police were called. (N.T. 5/13/03, 41-48.)
Police Officer Graber arrived as a result of the call. While Officer Graber was talking to
the complainant, Appellant kept calling the house demanding to speak to the complainant.
Officer Graber picked up the telephone numerous times and Appellant kept hanging up. (N.T.
5113/03, 176-177).
2
The victim has no blood relationship with Appellant. Her younger brother is the son of her mother and of
Appellant.
3
Her mother also testified, among other things, to the victim's prompt complaint concerning this incident. (N.T.
5/13/03, 72-73)
3
After this 200 l incident, the Appellant wrote several letters4 and made dozens of phone
calls to the victim's mother, in an attempt to convince and/or threaten the victim and her not to
cooperate with any prosecution. In one letter, he wrote that he did not want the victim to come to
the hearing so that the case would be thrown out. In another letter addressed to the complainant's
mother, he wanted the victim to state that she 741 A.2d 1258, 1260 (P.a. 1999). The timeliness requirements of 42
Pa.C.S.A. §9545(b) "are jurisdictional in nature, and the courts lack jurisdiction to grant PCRA
5
relief unless the petitioner can plead and prove that one of the exceptions to the time bar
applies." Commonwea�th. v. Gallman, 838 A.2d 768, 774-75 (P.a. Super 2003) (quoting
Commonwealth v. Palf!ler, 814 A.2d 700, 704-705 (P.a. Super 2002)). Under Pa.C.S.A.
§9545(b ), all PCRA petitions, including second and subsequent ones, must be filed within one
year of the date on which the judgment of sentence becomes "final," except three very limited
circumstances:
(i) the failure Jo 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 or' 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 peen 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
.f
retroactively.
42 Pa. Stat. and Cons. Stat. Ann. § 9545(b)(l)(i)-(iii) (2006); Commonwealth v.
Yarris, 731 A.2d 581, 587 (Pa. 1999). See also Commonwealth v. Whitney, 817
A.2d 473, 477 QPa. 2003); Commonwealth v. Fahy, 737 A.2d 214, 218 (Pa. 1999).
Appellant's judgment was considered final on February 9, 2007, the date in which he withdrew
his direct appeal. The instant PCRA petition was filed well after the one-year time limit. In order
for the instant PCRA to be heard on its merit, Appellant must prove that one of the three limited
exceptions applies. Instantly, Appellant alleges that the exceptions contained in 42 Pa.C.S.A.
§9545(b)(l)(i)-(iii) apply and therefore he avoided the bar of that waiver. We disagree.
We will address each claim individually in chronological order. The first claim was raised
in Appellant's PCRA petition filed on March 25, 2015. Appellant alleged that a 2015 newspaper
article, in which the victim describes herself as a "woman of many different personalities,"
constituted newly discovered information which showed that she suffered from multiple
personality disorder. Appellant claimed this information met the standard of the timeliness
6
exception under 42 Pa. C.S. §9545(b)(l)(ii) as newly discovered factual information which were
unknown to petitioner and could not have been ascertained by the exercise of due diligence.
Appellant claimed this information undermined the victim's credibility regarding her trial
testimony; therefore, he is entitled to relief. However, Appellant is misguided.
42 Pa. C.S. §9545(b )(1 )(ii) states "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"
( emphasis added). The newly discovered factual information must relate to the underlying claim.
The newspaper interview Appellant referenced took place twelve years after Appellant's trial. The
interview is not, as Appellant claimed, a reference to a mental health problem or multiple
personality disorder. It relates solely to the difference between the victim's television persona and
off screen charitable activities. The focus of the interview is entirely about the victim's role on a
television show and does not reference Appellant or Appellant's crimes or trial. At no point does
the interview make reference to the victim's mental health status during the time period in which
the victim testified at Appellant's trial." The "newly discovered facts" discovered by Appellant do
not in any way help prove his conclusion that the victim's testimony was not credible.
Furthermore, even if the newspaper interview insinuated the victim had a mental health
disorder that undermined the credibility of the victim's trial testimony, which it unequivocally
does not, the statement would be classified as inadmissible hearsay. Pa.R.E. 801 defines hearsay
as "an out of court statement offered for the truth of the matter asserted." It is well established in
Pennsylvania that the newly discovered fact exception cannot be based on inadmissible hearsay.
See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1269 (Pa. 2008). Accordingly, Appellant has
5
Furthermore, Appellant was the victim's stepfather. As such, if the victim ever suffered from a mental health
disorder, he would have been aware long before this interview. Nonetheless, there is absolutely no indication on the
record that the victim ever suffered from a mental health disorder, either at the time of the trial or at the time of the
referenced interview.
7
not met any of three exceptions to the timeliness requirements of 42 Pa.C.S.A. §9545(b), therefore
the claim is untimely.
The second claim, which was raised in Appellant's first amended petition on August 13,
2015, alleged that Appellant's sentence was illegal under Alleyne v. United States, 133 S. Ct. 2151
(2013). Appellant claimed that he met the standard of the timeliness exception under 42 Pa. C.S.
§9545(b)(1 )(iii), recognizing a constitutional right established by the Supreme Court of the United
States which was held to apply retroactively.6 However, Appellant's use of Alleyne in the instant
petition is misguided.
The Supreme Court held in Alleyne that a jury must prove facts that increase a mandatory
minimum sentence beyond a reasonable doubt. This limited to when a court makes a factual finding
which increases a penalty to reach a mandatory minimum sentence. As a result that fact will be
seen as an element to the crime that must be proved by a jury, meeting a standard of beyond a
reasonable doubt. The Supreme Court was clear, however, that this holding is limited to facts that
increase mandatory minimum sentences.
In holding that facts that increase mandatory minimum sentences must be submitted to the
jury, we take care to note what our holding does not entail. Our ruling today does not mean
that any fact that influences judicial discretion must be found by a jury. We have long
recognized that broad sentencing discretion, informed by judicial factfinding, does not
violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S.--,--, 130
S. Ct. 2683, 2692, 177 L. Ed. 2d 271 (2010) ("[W]ithin established limits[,] ... the exercise
of [ sentencing] discretion does not contravene the Sixth Amendment even if it is informed
by judge-found facts" (emphasis deleted and internal quotation marks
omitted)); Apprendi, 530 U.S., at 481, 120 S. Ct. 2348 ("[N]othing in this history suggests
that it is impermissible for judges to exercise discretion-taking into consideration various
factors relating both to offense and offender-in imposing a judgment within the
range prescribed by statute").
Alleyne v. U.S., 570 U.S. 99, 116 (2013)
6
Appellant later cites to Commonwealth v. Wolfe, 140 A.3d 651 (Pa.2016) in an amended petition filed 7/18/16,
however, as this case relates to Alleyne, which is inapplicable to the instant petition, there is no need to address
these individual cases. Furthermore, the amended petition dated 7 I 15/16 was also untimely.
8
Appellant did not receive a mandatory rrurumum sentence. Appellant was originally
sentenced to a discretionary term of nine to eighteen years. There was no mandatory minimum
sentence attached to the conviction. Even after resentencing, where Appellant received an
aggregate sentence of ten to twenty years, a mandatory minimum sentence was involved. As a
result, Alleyne and its progeny are inapplicable to Appellant. Accordingly, Appellant has not met
any of three exceptions to the timeliness requirements of 42 Pa.C.S.A. §9545(b), therefore the
claim is untimely.
The third claim, which was raised in Appellant's second amended petition on March 3,
2016, alleged newly discovered factual information, in the form of photographs of the victim.
Appellant claimed these photographs undermine her victim statement, therefore, meeting the
standard of the timeliness exception under 42 Pa. C.S. §9545(b)(1)(ii). However, Appellant is
misguided.
As stated previously, 42 Pa. C.S. §9545(b)(I)(ii) states "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" ( emphasis added). Once again, Appellant does not in any way prove that these
photographs have any relation to the underlying claim. Appellant does not explain how undated
photographs refute the victim's impact statement from 2003. Even if Appellant successfully
pleaded undated photos had a negative relation to the victim's impact statement, which he does
not, the victim's impact statement was taken after the jury found the Appellant guilty. Therefore,
this statement had no effect on Appellant being found guilty. As a result, Appellant has not proved
that he discovered any new factual information that pertains to the underlying claim. Accordingly,
Appellant has not met any of three exceptions to the timeliness requirements of 42 Pa.C.S.A.
§9545(b), therefore the claim is untimely.
9
Finally, Appellant's fourth claim, which was raised in Appellant's fourth and most recent
amended petition on March 22, 2017, alleged that newly discovered factual information, in the
form of a document describing his supervision history that Appellant received in December 2016,
meets the standard of the timeliness exception under 42 Pa. C.S. §9545(b)(l)(ii). Appellant
claimed he "inadvertently received" a copy of a "Supervision History" document, which was sent
to the Parole Board in Harrisburg on July 24, 20Q3. Appellant received a copy of the document on
December 27, 2016. Appellant claimed the document contained false and incriminating statements
about things he allegedly said and did after the verdict was read during his trial", As a result,
Appellant claimed this Court "has jurisdiction to act on this petition based on the fact that [his
parole officer] was a witness for the Commonwealth during his trial."
Appellant's underlying claim does not meet a time I iness exception and has no merit8.
Appellant asked "for this Court's consideration to grant him the appropriate relief'' in the form of
an evidentiary hearing. Appellant's argument is ostensibly based on alleged problems with his
parole status.9 However, Appellant's claim is meritless because issues of parole eligibility are not
cognizable under the PCRA. "The Commonwealth Court maintains exclusive jurisdiction over
appeals from administrative parole orders; as such, a PCRA petition is not the proper avenue for
challenging the determination of the Parole· Board." Com. v. Camps, 772 A.2d 70, 74-75 (Pa.
Super. 2001). See also Commonwelath v. Legrande, 567 A.2d 693 (Pa.Super. 1989) (holding that
7
It should be noted that this Court did not entertain the cited document as a source for Appellant's sentencing. This
Court sentenced Appellant based solely on the facts and evidence presented at trial.
8
Appellant references in his Statement of Matters Complained on Appeal that he was within the 60-day limit to file
a claim under the timeliness exception by using either the date in which he received a letter from this Court or the
date he received a suggestion from his attorney. He is misguided. The date to be used is the date in which the
unknown facts could be ascertained by due diligence. He received the document in question more than 60 days
before filing the instant PCRA petition. Therefore, even if the claim had merit, which it does not, and it met a
timeliness exception, which it also does not, it is untimely.
9
In Appellant's instant petition, part of his proposed request is for the parole officer in question to be subpoenaed,
"ordering her to appear before this Court to answer for her actions, which has no doubt hindered [Appellant's]
ability to be paroled. (Amended PCRA Petition, 3/22/17, 5)
10
the PCRA is not the proper vehicle to challenge the Board's determination of parole
eligibility); Commonwealth v. Perry, 563 A.2d 511 (Pa.Super. 1989) (holding that the PCRA is
not the proper vehicle to challenge the Bureau of Corrections' calculation of sentences).
As the instant petition was filed more than one year after the date on which the judgment
of sentence became final and as appellant has neither pleaded nor proven any of the three
enumerated statutory exceptions, this Court is without jurisdiction to entertain the substantive
claims raised in the Petition.
Finally, as noted above, even if Appellant was able to avoid the bar of waiver, the
underlying claim is meritless, as Appellant's newly found factual information does not relate to
the underlying claim, only his parole status.
Accordingly, for the reasons set forth above, the Order denying relief under the PCRA
should be affirmed.
11