Com. v. Dipietro, N. ( 2022 )

J-S37024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAS DIPIETRO :
:
Appellant : No. 548 EDA 2021
Appeal from the PCRA Order Entered February 24, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0401701-2000
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JANUARY 4, 2022
Nicholas DiPietro (Appellant) appeals pro se from the order dismissing
as untimely his second petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural history as follows:
In January of 2001 [Appellant] first went to trial before the
Honorable James A. Lineberger. He was represented by attorney
Earl Raynor (Raynor). During the trial, attorneys Charles Peruto,
Jr. (Peruto) and Stephen Jarrett (Jarrett) attempted to enter their
appearances on [Appellant’s] behalf. On January 26, 2001,
following an acrimonious dispute involving [Appellant], attorney
Raynor and attorneys Peruto and Jarrett, the court declared a
mistrial.
On August 7, 2001, following [Appellant’s] second trial
where he was represented by attorney Jarrett, a jury found him
guilty of first-degree murder and related offenses arising from a
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* Former Justice specially assigned to the Superior Court.
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killing on February 28, 2000. On August 8, 2001, he was
sentenced to life imprisonment.
On July 30, 2008, the Superior Court affirmed the sentence
on [Appellant’s] direct appeal. [The Pennsylvania Supreme Court
denied allocatur on December 12, 2008; thus, Appellant’s
judgment of sentence became final on March 12, 2009, after
ninety days had passed and Appellant did not seek certiorari with
the United States Supreme Court]. On June 23, 2009, [Appellant]
filed a counseled [PCRA] petition that was dismissed on December
20, 2011. [Appellant] appealed and on July 24, 2013, the
Superior Court affirmed the trial court’s order dismissing his
petition. [Appellant did not seek leave to appeal from the
Pennsylvania Supreme Court.]
On March 21, 2016 [ ], [Appellant] filed a pro se [PCRA
Petition] that was amended in an April 3, 2018 [Amended PCRA
Petition], and an October 11, 2019 [Second Amended PCRA
Petition]. On February 24, 2021, after having granted
[Appellant’s] requests for additional time to respond to the
[c]ourt’s Rule 907 Notice of Intention to Dismiss, the [c]ourt
dismissed the petition as untimely. [Appellant] took this appeal.
PCRA Court Opinion, 6/16/21, at 1-2.
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. WAS [APPELLANT] ENTITLED TO A HEARING ON HIS NEWLY-
DISCOVERED FACT CLAIM, IN LIGHT OF COMMONWEALTH
V. WILLIAMS, [244 A.3d 1281 (Pa. Super. 2021)] RELATING
TO THE SAME TYPE OF CLAIM?
2. WHETHER THE PCRA COURT MADE A DECISION THAT WAS
CONTRARY TO THE PENNSYLVANIA SUPERIOR COURT AND
THE PENNSYLVANIA SUPREME COURT?
3. WHETHER [APPELLANT] SATISFIED THE JURISDICTIONAL
REQUIREMENTS OF 42 Pa.C.S.A. § 9545(b)(1)(i)[1] & (ii)?
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(Footnote Continued Next Page)
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Appellant’s Brief at 7 (footnote added).
As Appellant’s issues are related, we address them together, mindful
that we review the dismissal of a PCRA petition to determine “whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.To be timely, PCRA petitions, including second and subsequent petitions,
must be filed within one year of an appellant’s judgment of sentence becoming
final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment 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
the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The
Pennsylvania Supreme Court has held that the PCRA’s time restriction is
constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004). In addition, the timeliness of a PCRA petition is jurisdictional. If a
PCRA petition is untimely, the courts lack jurisdiction. Commonwealth v.
Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also Commonwealth v.
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1In the body of his argument, Appellant abandons his claim relative to 42
Pa.C.S.A. § 9545(b)(1)(i). See Appellant’s Brief at 31.
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Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (courts do not have
jurisdiction over an untimely PCRA petition). “Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.”
Commonwealth v. Lewis, 63 A.3d 1274, 1281 (Pa. Super. 2013).
Here, Appellant’s judgment of sentence became final in 2009. He did
not file the instant petition, his second, until March 21, 2016. Thus,
Appellant’s petition is facially untimely. When a PCRA petition is untimely, a
petitioner may overcome the time-bar if he alleges and proves one of the
three statutory exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1).
Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The three
exceptions to the one-year time-bar are: “(1) interference by government
officials in the presentation of the claim; (2) newly discovered facts; and (3)
an after-recognized constitutional right.” Commonwealth v. Brandon, 51
A.3d 231, 233-34 (Pa. Super. 2012); see also 42 Pa.C.S.A. § 9545(b)(1)(i-
iii). A petition invoking an exception must be filed within 60 days of the date
the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). 2 If a
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2 Effective December 24, 2018, the time period in which to file a petition
invoking one of the three exceptions was extended from 60 days to one year.
42 Pa.C.S.A. § 9545(b)(2). This amendment applies to claims arising one
year prior to the effective date of the amendment, i.e., claims arising
December 24, 2017 or later. Act 2018, Oct. 24, P.L. 894, No. 146, § 3.
Because Appellant filed his petition on March 21, 2016, the amendment does
not apply.
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petitioner fails to invoke a valid exception, courts are without jurisdiction to
review the petition or provide relief. Spotz, 171 A.3d at 676.
Appellant claims he qualifies for the newly discovered facts exception.
42 Pa.C.S.A. § 9545(b)(1)(ii). He alleges that he discovered in 2019 that
attorney Charles Peruto, Jr., who briefly represented Appellant during his first
trial, “sold [him] out” by informing the trial judge and the Commonwealth that
Appellant had confessed to the crime. Amended PCRA Petition, 10/11/19, at
3-4.
In rejecting this claim, the PCRA court explained at length:
[Appellant] invokes the newly discovered fact exception on a claim
that his counsel engaged in misconduct detrimental to his
interests. Specifically, he avers that he:
received correspondence from Journalist Nick
Christophers dated September 26, 2019, informing
[Appellant] that he had researched transcripts and
observed where counsel ‘sold you out,’ and forwarded
a copy of the transcript pages revealing that counsel
informed the prosecutor and Judge prior to the second
trial that [Appellant] told counsel that he did the
crime.
He complains that counsel thereafter should have withdrawn from
representing [him] and that the judge should have recused
himself.
Attached to the [Second Amended PCRA Petition] are two exhibits.
The first consists of copies of two letters from Nick Christophers
(Christophers). The one dated September 26, 2019, is notarized
and states:
Dear Nick,
Hope all is well. Through my investigative reporting I
discovered that in your original trial transcripts that
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your attorney told to [sic] the Judge that you admitted
to murdering an individual. This is a breach of loyalty
and a broken rule. You need to check back on the
transcripts page 34/35.
Best,
Nick Christophers
The second letter from Christophers is dated 7-19-19, is not
notarized and reads:
Nicky,
I have researched a lot of your trial transcripts from
your first and second trial. You should read them it
seems your lawyer “sold you out” in what is terms
[sic] a structural error. This could be your opportunity
to prove your innocence.
Best,
Nick Christophers
Exhibit 2 consists of copies of transcript pages from the first trial:
pages 33-38 of the notes taken on January 26, 2001, and pages
13-16 of notes taken on January 25, 2001.2 These pages show
that on January 25, 2001, the [c]ourt explained to the jury that
attorney Raynor would represent [Appellant] in the proceedings
that day, but that attorneys Peruto and Jarrett, who had entered
their appearance on [Appellant’s] behalf, would then take over.
The next day, out of the presence of the jury, an exchange took
place among the court and counsel. The defense requested a
mistrial. The [c]ourt requested the Commonwealth’s position. The
prosecutor responded, in pertinent part:
... as the [c]ourt is aware from the off the record
discussion, the other attorney wants to try this case a
lot differently [than Raynor would]. This case is being
tried as an identification case. Mr. Peruto, in the back
wasn’t — and I don’t think counsel [Raynor] was privy
to that conversation, said this is not an identification
case, my client told me he did it...
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2 It appears that copies of the transcript pages
accompanied Christophers’ September letter.
[Appellant’s] theory is that counsel’s purported betrayal was a
new fact unknown to him before September of 2019, and that
since he filed his petition within a month of receiving Christophers’
letter, he has satisfied the after-discovered fact exception.
The theory fails. While [Appellant] may have read the transcript
for the first time in September of 2019, it has been available to
him since 2001. Although he declares that he could not have
discovered the fact before, he does not say why; he omits any
description of the due diligence, if any, he exercised. This is
particularly damning since the record shows that Christophers is
a journalist whose investigation into [Appellant’s] case has been
known to [Appellant] since at least May of 2018.3
3[Appellant] attaches to his [Amended PCRA Petition]
a copy of an article authored by Christophers in May
2016 entitled, “Story of Nicky Slick [Appellant]:
Something Stinks in Philadelphia” and published in a
blog entitled Costa Nostra News[.]
Appellant has neither pled nor proven a prima facie claim that his
petition falls under the after-acquired fact exception.4
Accordingly, this court lacked jurisdiction to hear this claim.
4 [Appellant’s] petition is silent on the question of how
or why this new fact — that Peruto claim[ed] that his
client confessed — would change the outcome of his
second trial before a new jury. Com. v. Sattazahn,
2005 Pa. Super. 70, ¶ 11, 869 A.2d 529, 534 (2005)
(stating that petitioner must show the new facts
“would have changed the outcome of the trial if it had
been introduced.”).
PCRA Court Opinion, 6/16/21, at 5-7 (record citations omitted, emphases in
original).
Upon review of the record, including Appellant’s initial pro se petition
and counseled amended petitions, we agree with the PCRA court’s well-
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reasoned analysis and rejection of Appellant’s attempt to invoke the newly-
discovered fact exception of Section 9545(b)(1)(ii). In addition, were are
unpersuaded by Appellant’s reliance on our recent decision in
Commonwealth v. Williams, supra, and the Pennsylvania Supreme Court’s
decision in Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020).
In Williams, we addressed Small and explained:
In Small, the Supreme Court “disavow[ed] the public record
presumption [and overruled any] earlier decisions, including [its]
own, [that] relied upon and applied that presumption to reject a
petitioner’s claim.” Id. at 1286. The Small Court recognized that
the public record presumption “can lead to results in tension with
the statutory language [of section 9545(b)(1)(ii) ... where] a
PCRA petition can establish the facial requirements of the newly-
discovered fact exception, but the court rejects [a] claim merely
due to the earlier public availability of the information[.]” Id. at
1284.
Williams, 244 A.3d at 1288 (footnote omitted). Consistent with Small, we
vacated the order dismissing the appellant’s untimely PCRA petition based on
the public record presumption and remanded for a hearing to ascertain
whether the facts regarding a Commonwealth witness’s criminal history and
pattern of cooperation with the Commonwealth were unknown to the
appellant, and if so, whether the appellant had exercised due diligence. Id.
at 1288-89.
Here, Small and Williams are inapplicable because the PCRA court did
not dismiss Appellant’s petition based on the public record presumption, but
because Appellant failed to plead and prove that he attempted to obtain the
relevant transcripts in the many years that passed from his trial, conviction,
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and sentencing in 2001, to the March 2016 filing of his second PCRA petition.
As stated by the PCRA court, Appellant “may have read the transcript for the
first time in September of 2019, [but] it has been available to him since 2001.”
PCRA Court Opinion, 6/16/21, at 7.
Accordingly, Appellant has failed to plead and prove an exception to the
PCRA time-bar. As his second PCRA petition is untimely, we, like the PCRA
court, lack jurisdiction and “the legal authority to address the substantive
claims.” Lewis, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2022
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