Com. v. Boggs, A. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 KENNETH BOGGS
Appellant No. 3589 EDA 2015
Appeal from the PCRA Order October 29, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000505-1997
BEFORE: PANELLA, OLSON, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 09, 2016
Appellant, Anthony Kenneth Boggs, appeals pro se from the October
29, 2015 order, denying his second petition under the Post-Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On March 25, 1998, a jury convicted Appellant of first-degree murder.1
On April 1, 1998, Appellant was sentenced to a mandatory term of life in
prison. This Court affirmed Appellant’s judgment of sentence on January 14,
1999, and the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on July 9, 1999. Commonwealth v. Boggs, 736 A.2d
678 (Pa. Super. 1999) (unpublished memorandum) at 1-8, appeal denied,
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1
18 Pa.C.S.A. § 2502(a).
*Former Justice specially assigned to the Superior Court.
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740 A.2d 1143 (Pa. 1999). Appellant did not file a petition for writ of
certiorari with the United States Supreme Court.
On February 10, 2000, Appellant filed his first PCRA petition and the
PCRA court appointed counsel to represent Appellant. Following a number of
evidentiary hearings, the PCRA court denied Appellant relief on June 12,
2003, and this Court affirmed the PCRA court’s order on July 13, 2004.
Commonwealth v. Boggs, 859 A.2d 826 (Pa. Super. 2004) (unpublished
memorandum) at 1-3.
On December 15, 2009, Appellant filed a motion for post-conviction
DNA testing. See 42 Pa.C.S.A. § 9543.1; see also Commonwealth v.
Weeks, 831 A.2d 1194, 1196 (Pa. 2003) (“[p]ost conviction DNA testing . .
. allows for a convicted individual to first obtain DNA testing which could
then be used within a PCRA petition to establish new facts in order to satisfy
the requirements of an exception under 42 Pa.C.S.A. § 9545(b)(2)”). The
motion was denied on July 1, 2010 and Appellant did not appeal.
On April 22, 2015, Appellant filed a “Motion for New Trial – After
Discovered Evidence” (hereinafter “Appellant’s Second PCRA Petition”). The
motion constituted Appellant’s second PCRA petition. See Commonwealth
v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (“any motion filed after the
finality of a sentence that raises an issue that can be addressed under the
PCRA is to be treated as a PCRA petition”); Commonwealth v. Descardes,
___ A.3d ___, 2016 WL 1249964 at *14 (Pa. 2016) (“the language of the
PCRA clearly requires that an individual seeking relief from the judgment of
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sentence itself . . . pursue his request for relief through the PCRA”). Within
the petition, Appellant claimed:
On [March 21, 2015, Appellant] was informed by Coatesville
resident Josh Mc[M]illan, that Brian Armarillo, of Coatesville,
PA informed him (Mc[M]illan) that prosecution witness
against [Appellant] gave [false] testimony at [Appellant’s]
trial, in order to get an undisclosed deal, for her testimony
against [Appellant], and also to seek revenge for her
brother[,] Mike Stanley, in which [Appellant] had an
altercation with over a bet laid in a craps game, which
[Appellant] engaged in a simple assault against Crystal
Stanley’s . . . brother Mike Stanley. . . .
[Appellant] became aware of this [information] recently,
and has never attempted to make any contact with Crystal
Stanley, yet has learned through witnesses[] that she is
willing to recant her testimony, and is ashamed of [herself]
for committing “perjury.”
Appellant’s Second PCRA Petition, 4/22/15, at 1 (some internal capitalization
and emphasis omitted).
On May 28, 2015, the PCRA court issued an order declaring that it was
denying Appellant’s petition “without prejudice.” See PCRA Court Order,
5/28/15, at 1 n.1.
On June 10, 2015, Appellant filed a “Motion for Post Conviction
Collateral Relief” (hereinafter “Appellant’s Amended Second PCRA Petition”),
where Appellant reiterated the above allegations.2 Further, on July 6, 2015,
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2
Given that the PCRA court’s May 28, 2015 order declared that Appellant’s
“motion for a new trial” was denied “without prejudice,” Appellant’s June 10,
2015 filing constitutes an amendment to his second PCRA petition.
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Appellant filed an amendment to the petition, where Appellant claimed that
he recently learned that Coatesville Police Detective Gerald Pawling had
pleaded guilty to tampering with evidence; according to Appellant, Detective
Pawling “was involved in [Appellant’s] arrest, and investigation of the
location of hair samples taken from a ski mask, which was used to convict
[Appellant].” Appellant’s Second Amended Second PCRA Petition, 7/6/15, at
1-2 (some internal capitalization omitted).
On July 29, 2015, the PCRA court issued Appellant notice that it
intended to dismiss Appellant’s second PCRA petition in 20 days, without
holding a hearing. PCRA Court Order, 7/29/15, at 1; see Pa.R.Crim.P. 907.
On August 14, 2015, Appellant filed a response to the notice of intent to
dismiss and restated his claims. Moreover, on August 25, 2015, Appellant
filed a motion to supplement and amend the PCRA petition, claiming that he
“recently [became] aware that his 5th [A]mendment right to an investigation
by a grand jury [was] violated due to the fact that [neither his trial attorney
nor the] district attorney [ever] requested a grand jury investigation.”
Appellant’s Motion to Amend Second PCRA Petition, 8/25/15, at 1.
On October 29, 2015, the PCRA court dismissed Appellant’s petition.
This timely appeal followed. We now affirm the dismissal of Appellant’s
patently untimely, serial PCRA petition.
Any petition under the PCRA, including second or subsequent petitions,
must be filed within one year of the judgment of sentence becoming final,
unless the petitioner can prove one of the three exceptions: (1) interference
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by government officials; (2) discovery of previously unknown facts that
could not have been earlier ascertained by the exercise of due diligence; and
(3) a newly recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1). A
petitioner has 60 days from the date when the claim could have been
presented to file his petition. 42 Pa.C.S.A. § 9545(b)(2). The timeliness
requirement of the PCRA is jurisdictional in nature and cannot be waived.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citation
omitted). An untimely PCRA petition renders the court without jurisdiction
to address the merits of the claims. Id. As Appellant’s judgment of
sentence became final in 1999 and he filed this petition on April 22, 2015,
his petition is untimely unless he can prove one of the exceptions applies. It
is Appellant’s burden to plead and prove any exceptions to the time bar.
Commonwealth v. Wharton, 886 A.2d 1126 (Pa. 2005).
Appellant acknowledges the untimeliness of his petition and relies on
42 Pa.C.S.A. § 9545(b)(1)(ii) to excuse this untimeliness. See Appellant’s
Brief at 8-11. This exception requires discovery of previously unknown facts
which could not have been discovered prior with due diligence. See
Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000). Due diligence
“requires that Appellant take such steps to protect his own interests.”
Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A
petitioner must give the court the precise date upon which he discovered the
new facts and explain to the court why he could not have discovered them
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sooner. Commonwealth v. Yarris, 731, A.2d 581, 590 (Pa. 1999). This
allows the court to determine whether the exception was timely invoked.
First, Appellant alleges that Josh McMillan told him that a witness at
Appellant’s trial committed perjury because she was offered an undisclosed
deal and wanted to seek revenge on Appellant. Appellant’s Second
Amended PCRA Petition, 6/10/15, at 4. This alleged evidence constitutes
inadmissible hearsay and, as such, does not satisfy the after-discovered
evidence exception to the timeliness requirement. Yarris, 731 A.2d at 592
(“[a] claim which rests exclusively upon inadmissible hearsay is not of a type
that would implicate the after-discovered evidence exception to the
timeliness requirement, nor would such a claim, even if timely, entitle
Appellant to relief under the PCRA”).
Second, Appellant alleges he recently learned that Coatesville Police
Detective Gerald Pawling had pleaded guilty to tampering with evidence.
According to Appellant, Detective Pawling “was involved in [Appellant’s]
arrest, and investigation of the location of hair samples taken from a ski
mask, which was used to convict [Appellant].” Appellant’s Second Amended
Second PCRA Petition, 7/6/15, at 1-2 (some internal capitalization omitted).
This claim does not satisfy the PCRA’s after-discovered fact exception
because Appellant failed to plead the date upon which he learned of this fact,
how he learned of this fact, or why his claim could not have been presented
sooner with due diligence. See Appellant’s Second Amended Second PCRA
Petition, 7/6/15, at 1-2. We have previously held:
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The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the
facts upon which he based his petition and could not have
learned those facts earlier by the exercise of due diligence.
Due diligence demands that the petitioner take reasonable
steps to protect his own interests. A petitioner must explain
why he could not have obtained the new fact(s) earlier with
the exercise of due diligence. This rule is strictly enforced.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).
Because Appellant failed to explain when or how the alleged facts were
uncovered or his exercise of due diligence, Appellant has not pleaded or
proven an exception to the PCRA time-bar.
Thus, Appellant failed to properly plead any exception to the PCRA’s
one-year time-bar. As such, our “courts are without jurisdiction to offer
[Appellant] any form of relief.” Commonwealth v. Jackson, 30 A.3d 516,
523 (Pa. Super. 2011). We thus affirm the PCRA court’s order dismissing
Appellant’s second PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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