Com. v. Veneri, A. ( 2019 )

J-S14038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY JOHN VENERI :
:
Appellant : No. 2472 EDA 2018
Appeal from the PCRA Order Entered August 7, 2018
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: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 1, 2019
Anthony John Veneri (Veneri) appeals from an order entered in the Court
of Common Pleas of Delaware County (PCRA court) dismissing one of his
countless pro se petitions filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. 9541-9546.1 The petition is both untimely and without
merit. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 Veneri’s claims are governed by the PCRA even though he styled it as a
“Petition for Writ of Habeas Corpus, Nunc Pro Tunc.” “It is well settled that
the PCRA is intended to be the sole means of achieving postconviction relief.”
42 Pa.C.S. § 9542. A defendant may not circumvent the PCRA’s filing
requirements by labelling a request for postconviction relief as a petition for
writ of mandamus or habeas corpus. See Commonwealth v. Taylor, 65
A.3d 462, 466 (Pa. Super. 2013). “All motions filed after a judgment of
sentence is final are to be construed as PCRA petitions.” Id.
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I.
In 1979, Veneri was found guilty of two bank robberies as well as many
other related offenses. He was sentenced to an aggregate prison term of 25
to 50 years to begin after Veneri served a sentence for a separate robbery
conviction in another state. Veneri timely appealed and this Court affirmed
the judgment of sentence in November 1982. See Commonwealth v.
Veneri, 452 A.2d 784 (Pa. Super. 1982). This Court also affirmed the denial
of several PCRA petitions concerning the present case and raising the exact
same issues as those asserted in the instant PCRA petition. See e.g.,
Commonwealth v. Veneri, 1803 EDA 2014, 121 A.3d 1136 (Pa. Super. April
21, 2015); Commonwealth v. Veneri, 942 EDA 2015 (Pa. Super. December
29, 2015).
Veneri filed the present PCRA petition on February 7, 2018. He argued
that the trial court had no jurisdiction because his offenses were federal crimes
and that the charging documents were void because the prosecutor did not
sign them. He also argued that his trial counsel was ineffective in failing to
object to the charging documents. The trial court dismissed the petition
without a hearing and Veneri timely appealed.
The PCRA court filed a 1925(a) opinion explaining that Veneri’s petition
is untimely on its face and that the issues he raises have long been disposed
of. In his brief, Veneri did not attempt to satisfy any exception to the timing
requirements of the PCRA nor did he address the fact that his present claims
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have already been raised and decided in previous appellate proceedings. He
merely reiterated the same claims, hoping for a different result.
II.
In reviewing the denial of a PCRA claim, review “is limited to examining
whether the PCRA court’s determination is supported by the evidence of record
and whether it is free of legal error.” Commonwealth v. Ousley, 21 A.3d
1238, 1242 (Pa. Super. 2011). First, the PCRA court lacked jurisdiction to
consider the merits of Veneri’s claims. A PCRA petition is only timely if filed
within one year of the date that the judgment of sentence became final. See
42 Pa.C.S. § 9545(b)(3). A PCRA court only has jurisdiction to entertain
claims which satisfy that timing rule or an exception to it. See 42 Pa.C.S. §
9545(b)(1). Veneri’s judgment of sentence became final in the early 1980s.
He makes no attempt to explain how he can satisfy an exception to the
timeliness requirements of the PCRA. His petition was properly denied on that
basis.2
____________________________________________
2 Further, courts seek to avoid “serial requests for post-conviction relief” by
applying a heightened timeliness standard to second or subsequent PCRA
petitions. 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). 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.
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Second, Veneri now raises claims which have been previously litigated
in either his direct appeal or in prior PCRA appeals. To be eligible for relief
under the PCRA, the petitioner must plead and prove that “the allegation of
error has not been previously litigated or waived.” See 42 P.A.C.S. §
9543(a)(3). An issue has been previously litigated if it has “been raised and
decided in a proceeding collaterally attacking the conviction or sentence.” Id.
at 9544(a).
Veneri’s claims regarding the deficiency of the charging documents were
previously litigated in his direct appeal. See Veneri, 452 A.2d 784. His claim
regarding the trial court’s jurisdiction was raised in a previous PCRA appeal
and found to be untimely. Record on appeal at 1150 (Claim #14 of PCRA
petition filed on February 14, 2014); id. at 1166 (PCRA Court order denying
petition); see also Veneri, 1803 EDA 2014 (affirming order denying PCRA
petition which included claim that trial court lacked jurisdiction as to a federal
offense). Thus, Veneri is not eligible for PCRA relief because all of his claims
are both untimely and previously litigated.3
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1995). Veneri makes no attempt to establish his innocence or a miscarriage
of justice.
3 We note that Veneri also seeks PCRA relief in case number 3310 EDA 2018
where the PCRA court denied a pro se “Petition for Writ of Habeas Corpus or
Writ of Mandamus, Nunc Pro Tunc.” The petition in that case was dismissed
due to the pendency of the present appeal. Pennsylvania Rule of Appellate
Procedure 1701(a) provides that once “an appeal is taken or review of a
quasijudicial order is sought, the trial court or other government unit may no
longer proceed further in the matter.”
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/19
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