Com. v. Crise, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES CRISE :
:
Appellant : No. 788 WDA 2022
Appeal from the PCRA Order Entered May 17, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0004502-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES CRISE :
:
Appellant : No. 789 WDA 2022
Appeal from the PCRA Order Entered May 17, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001899-2008
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: December 9, 2022
James Crise appeals from the May 17, 2022 order dismissing his petition
pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
Due to the nature of our holding, we will recite only the basic factual
and procedural background of these cases. At CP-65-CR-0004502-2008
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* Retired Senior Judge assigned to the Superior Court.
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(“Case No. 4502”), a jury found Appellant guilty of involuntary deviate sexual
intercourse (“IDSI”) and related offenses. In a separate jury trial, Appellant
was convicted of sexual exploitation of children, criminal use of a
communication facility, and related offenses at CP-65-CR-0001899-2008
(“Case No. 1899”). Since it is relevant to our disposition, we note that
Appellant’s convictions were based, in part, upon “evidence seized during a
traffic stop and vehicle inventory search” that led to the discovery of two
computers containing incriminating materials. Order and Memorandum,
4/29/22, at 2. Additionally, an individual named Henry Powell testified at
Appellant’s trial at Case No. 4502 that Appellant had “admitted to him while
in jail that he had a sexual relationship with the 15-year-old victim.”
Commonwealth v. Crise, 229 A.3d 359 (Pa.Super. 2020) (“Crise”)
(unpublished memorandum at 3); see also N.T. Trial, 9/1/09, at 186-88.
Powell also testified that he had not been “promised anything” by the
Commonwealth in exchange for his testimony. Id. at 184.
On December 22, 2009, Appellant was sentenced at both cases to an
aggregate term of twenty to fifty-five years of incarceration. Appellant filed
separate direct appeals from his judgments of sentence, which this Court
consolidated and affirmed. See Commonwealth v. Crise, 24 A.3d 455(Pa.Super. 2011) (unpublished memorandum), appeal denied, 24 A.3d 863(Pa. 2011). Appellant’s judgment of sentence became final pursuant to the
PCRA on October 17, 2011, when his time to appeal to the United States
Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13(1).
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Thereafter, Appellant filed several unsuccessful PCRA petitions. See Crise,
supra at 2 n.1 (collecting cases). Most recently, this Court affirmed the
dismissal of Appellant’s fifth PCRA petition, which included claims that, inter
alia, Powell had lied about the existence of a deal between himself and the
Commonwealth. Id. at 6.
On December 16, 2021, Appellant filed a pro se PCRA petition in both
cases, which forms the basis for this appeal. The filing asserted two claims
for relief: (1) that Powell had allegedly “testified falsely under oath” by
denying he had received anything from the Commonwealth in exchange for
his testimony; and (2) that our Supreme Court’s holding in Commonwealth
v. Alexander, 243 A.3d 177 (Pa. 2020) recognized a “retroactive”
constitutional right that should benefit Appellant in these cases.1 PCRA
Petition, 12/20/21, at 1-2 (unpaginated). Appellant also argued that all of his
prior attorneys were ineffective for failing to raise the applicability of
Alexander with respect to the computers seized from his car.
Appellant additionally submitted a request that counsel be appointed to
represent him, which the PCRA court granted. Ultimately, PCRA counsel
petitioned to withdraw based upon the petition’s lack of merit pursuant to the
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1 In Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), our Supreme
Court reaffirmed that the “Pennsylvania constitution requires both a showing
of probable cause and exigent circumstances to justify a warrantless search
of an automobile.” Id. at 181 (emphasis added). In so doing, the Court
overruled Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which adopted
the federal automobile exception to the warrant requirement in Pennsylvania,
allowing police to conduct a warrantless vehicle search based solely upon
probable cause without the additional requirement of an exigency.
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framework provided by Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
The PCRA court filed notice of its intent to dismiss Appellant’s petition
without a hearing pursuant to Pa.R.Crim.P 907, wherein it concluded that it
was untimely. See Order, 4/29/22, at 19. Appellant filed a pro se response
expounding upon his arguments. On May 17, 2022, the PCRA court entered
an order listing the docket numbers for both cases that dismissed Appellant’s
PCRA petition and granted PCRA counsel’s motion to withdraw. This order
advised Appellant that he had thirty days in which to file “any appeal.” Order
and Memorandum, 5/17/22, at ¶ 3. On May 31, 2022, Appellant filed a single
timely, pro se notice of appeal listing the docket numbers for both cases.2 On
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2 Our review of the certified record indicates that Appellant submitted a single
pro se notice of appeal, which was subsequently photocopied and filed at both
cases by the clerk of courts. See Notice of Appeal, 5/31/22, at 1. This filing
violated Pa.R.A.P. 341(a), which our Supreme Court has interpreted as
requiring that when “one or more orders resolves issues arising on more than
one docket or relating to more than one judgment, separate notices of appeals
must be filed[.]” Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018)
(cleaned up). Generally, it is within our discretion to either quash an appeal
for violation of this rule or to remand for correction pursuant to Pa.R.A.P. 902.
See Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021).
However, our review leads us to conclude that Appellant’s erroneous filing
was precipitated by a breakdown in court processes, namely, the PCRA court’s
use of the singular “appeal” in its dismissal order erroneously led Appellant to
believe that he need only file a single notice of appeal. See Order, 5/17/22,
at ¶ 3. Since this “misstatement” concerned the “manner that Appellant could
effectuate an appeal from the PCRA court’s order,” we will “overlook the
defective nature of Appellant’s timely notice of appeal rather than quash
pursuant to Walker” or remand pursuant to Young. Commonwealth v.
Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019).
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June 9, 2022, the PCRA court filed an order directing Appellant to file a concise
statement of errors pursuant to Pa.R.A.P. 1925(b) within twenty-one days of
the filing. Appellant did not immediately respond. On July 5, 2022, the trial
court filed a statement in lieu of a Rule 1925(a) opinion, referring to the
extensive reasoning presented in its April 29, 2022 order and memorandum.
The same day, Appellant filed a Rule 1925(b) statement.3 We have
consolidated these appeals sua sponte.
Appellant has raised the following issues for our consideration:
A. Did the Commonwealth hide information of deals between itself
and witnesses in order to unfairly gain an edge during trial?
B. Was counsel ineffective for failing to properly plead the merits
of suppression, rendering ineffective assistance of counsel?
Appellant’s brief at 4 (issues reordered).
We begin with a review of the pertinent law. On appeal from the denial
of PCRA relief, “our standard and scope of review is limited to determining
whether the PCRA court’s findings are supported by the record and without
legal error.” Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa.Super.
2014). Before considering the merits of Appellant’s claims for relief, we must
assess the timeliness of his PCRA petition. See Commonwealth v. Howard,
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3 We note that the trial court’s order directing Appellant to file a Rule 1925(b)
statement did not comply with Pa.R.A.P. 1925(b)(3)(iv) as it failed to advise
Appellant that issues not raised in the statement would be deemed waived.
See Order, 6/9/22, at 1-2. This deficiency in the underlying order would likely
preclude a finding of waiver. See Commonwealth v. Bush, 197 A.3d 285,
287 (Pa.Super. 2018).
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___ A.3d ___, 2022 WL 16826744 at *3 (Pa.Super. Nov. 9, 2022) (“[T]he
PCRA’s time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of a petition.”).
Timeliness in this context is governed by 42 Pa.C.S. § 9545(b), which
provides as follows:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within one year of the date the
claim could have been presented.
(3) For purposes of this subchapter, 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 time for seeking the review.
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42 Pa.C.S. § 9545(b)(1)-(3). There is no question that Appellant’s petition is
facially untimely as his judgment of sentence became final more than ten
years ago. Thus, he must plead and prove one of the exceptions noted above.
Appellant’s first timeliness argument concerns the allegedly false
testimony of Powell regarding the absence of a deal with the Commonwealth.
See N.T. Trial, 9/1/09, at 184. Appellant’s arguments on this point implicate
the timeliness exception at § 9545(b)(1)(ii), which has two components: “(1)
the facts upon which the claim was predicated were unknown and (2) could
not have been ascertained by the exercise of due diligence.” Commonwealth
v. Peterson, 192 A.3d 1123, 1128-29 (Pa. 2018) (emphasis in original).
Appellant claimed to have first discovered that Powell lied concerning an
alleged deal between himself and the Commonwealth on November 30, 2021,
while researching other cases in which Powell had provided jailhouse
testimony. See Response to Rule 907 Notice, 5/16/22, at 3. However,
Appellant’s averment is fully belied by the certified record. Specifically,
Appellant raised this exact claim in Crise, wherein he claimed that he had
learned of this purported lie in 2018. Crise, supra at 3 (indicating that
Appellant argued his petition was timely pursuant to § 9545(b)(1)(ii) by
“asserting that he learned of a ‘deal’ between the Commonwealth and Powell
in 2018”). Thus, it is clear that the facts underlying Appellant’s arguments
concerning Powell’s testimony were not “unknown” within the meaning of
§ 9545(b)(1)(ii). At most, Appellant has discovered a new source for an
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already-known fact, which does not entitle him to the benefit of this exception.
See Commonwealth v. Smallwood, 155 A.3d 1054, 1067 (Pa.Super. 2017)
(“[A] petitioner must allege and prove previously unknown facts, not merely
a newly discovered or newly willing source for previously known
facts.”) (cleaned up; emphasis in original). Therefore, the newly-discovered
facts exception does not render Appellant’s petition timely.
Appellant’s second timeliness claim concerns the exception at
§ 9545(b)(1)(ii), which requires that a petitioner plead and prove that his
claims for relief implicate a retroactive constitutional right, i.e., a right that
was recognized by either the Pennsylvania or United States Supreme Court
after the expiration of the petitioner’s time in which to file a PCRA petition,
but which has been explicitly held to apply retroactively. See 42 Pa.C.S.
§ 9545(b)(1)(iii). Here, Appellant asserts that our Supreme Court announced
a new, retroactive constitutional right in Alexander. We must disagree.
Appellant’s discussion of this particular issue is woefully deficient. His
brief to this Court focuses exclusively upon the underlying merits of his
allegations, without addressing the issues critical to timeliness, i.e., the
retroactivity of Alexander. Furthermore, Appellant has not cited any legal
authority in support of his contention that Alexander has retroactive effect
within the meaning of § 9545(b)(1)(iii). As our Supreme Court has held, “it
is well settled that a new constitutional right must already have ‘been held’ by
[our Supreme Court] to apply retroactively prior to the filing of the subject
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petition in order for [§] 9545(b)(1)(iii) to apply.” Commonwealth v. Taylor,
283 A.3d 178, 188 (Pa. 2022). Instantly, Appellant has cited no such
precedent in support of his contention and our review of the applicable case
law has also uncovered no holdings to that effect.4 Thus, we conclude that
Appellant has failed to plead and prove that he is entitled to the benefit of
§ 9545(b)(1)(iii).5 See Taylor, supra at 188 (“In the absence of such a
preexisting holding, [petitioner] has failed to establish the applicability of the
newly recognized constitutional right exception[.]”).
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4 To the contrary, this Court has already concluded that we should decline to
apply Alexander retroactively in cases where the defendant “did not preserve
a challenge to the application of the automobile exception and the existence
of exigent circumstances” in the trial court prior to the announcement of this
new precedent. Commonwealth v. Heidelberg, 267 A.3d 492, 503
(Pa.Super. 2021) (en banc). Instantly, Appellant did not preserve any such
claim. Indeed, Appellant’s judgments of sentence predate by five years the
holding in Gary, which Alexander overruled.
5 In his brief to this Court, Appellant has arguably raised ineffectiveness
allegations against PCRA counsel who was appointed to represent him in this
appeal but, ultimately, withdrew. See Appellant’s brief at 5. We discern that
Appellant asserts PCRA counsel was ineffective for failing to raise claims
concerning prior counsel’s failure to seek relief pursuant to Alexander.
Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) provides that a
PCRA petitioner “may, after a PCRA court denies relief, and after obtaining
new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness
at the first opportunity to do so, even if on appeal.” However, Bradley
involved a timely, first PCRA petition. Thus, it “does not sanction extra-
statutory serial petitions.” Id. at 381 (Dougherty, J., concurring).
Accordingly, this Court has declined to apply Bradley in the context of
untimely, serial PCRA petitions like the one at bar. See Commonwealth v.
Gurdine, 273 A.3d 1076 (Pa.Super. 2022) (non-precedential decision at 9
n.14). To the extent Appellant seeks to argue PCRA counsel’s ineffectiveness,
we decline to address his claim under Bradley.
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Overall, Appellant has failed to plead and prove that his petition is
subject to one of the PCRA timeliness exceptions. Accordingly, we find no
abuse of discretion or error of law in the PCRA court’s conclusion that it lacked
jurisdiction to consider the merits of Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2022
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