Com. v. Walter, F. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FREDERICK SHELDON WALTER :
:
Appellant : No. 608 WDA 2021
Appeal from the PCRA Order Entered April 23, 2021
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0001011-2003
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED: JUNE 14, 2022
Frederick Sheldon Walter appeals from the order entered in the Venango
County Court of Common Pleas on April 23, 2021, dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546 as untimely. Because we agree Walter’s petition was untimely filed, we
affirm.
Walter was first tried by jury trial in September 2004 based on
allegations he sexually abused his minor stepdaughter.1 Following the receipt
of evidence, a mistrial was declared due to jury deadlock. After the
Commonwealth indicated its intent to retry the case, Walter filed a motion to
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1 Notably, at the first trial, the victim testified she fabricated the accusations
against Walter. The prosecution impeached this testimony with transcripts
from the preliminary hearing as well as two prior interviews with police.
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dismiss based on double jeopardy grounds. After a hearing, the trial court
denied relief. On appeal, this Court affirmed.
The case was subsequently retried in March 2007, after which a second
jury found Walter guilty of involuntary deviate sexual intercourse, aggravated
indecent assault, criminal attempt to commit aggravated indecent assault,
corruption of minors, and two counts of indecent assault. On July 23, 2007,
the trial court sentenced Walter to an aggregate term of eleven and one-half
to twenty-four years’ imprisonment.
Walter filed his first pro se PCRA petition in July 2008. Counsel was
appointed and filed an amended petition, raising claims of ineffective
assistance of trial counsel. The PCRA court dismissed the petition. On appeal,
we affirmed the dismissal.
In September 2018, Walter filed his second pro se PCRA petition. The
PCRA court dismissed the petition without a hearing, finding the petition was
untimely filed. We again affirmed the dismissal.
On March 6, 2020, Walter filed a third pro se PCRA petition, which
underlies the present appeal. Now, Walter claims eligibility for relief based on
“Recantation Newly Discovered Evidence.” PCRA Petition, 3/6/2020, at 2. In
support of an exception to the PCRA time-bar, Walter attached an affidavit
authored by the victim, who is now an adult, in which she recants her trial
testimony and asserts her testimony was the result of prosecutorial
misconduct. On October 13, 2020, the PCRA court issued notice of its intent
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to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.
However, on the same date the court also filed an order dismissing the
petition. Two weeks later, the court issued an order giving Walter 20 days to
respond to the Rule 907 notice.2 Walter timely filed a counseled response. The
PCRA Court subsequently dismissed the petition without a hearing. This timely
appeal followed.
Prior to reaching the merits of Walter’s claims on appeal, we must first
consider the timeliness of his PCRA petition. See Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. The PCRA’s timeliness
requirements are jurisdictional; therefore, a court may not
address the merits of the issues raised if the petition was not
timely filed. The timeliness requirements apply to all PCRA
petitions, regardless of the nature of the individual claims raised
therein. The PCRA squarely places upon the petitioner the burden
of proving an untimely petition fits within one of the three
exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations
and footnote omitted).
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2 In the order, the court noted it had received correspondence from Walter’s
son, indicating the two prior orders had been sent improperly to him instead
of Walter himself. See Order, 10/26/2020. The court reviewed the record and
agreed that the orders were not properly mailed to Walter. See id.-3-
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It does not appear from the record that Walter filed any post-sentence
motions or a direct appeal. Therefore, Walter’s judgment of sentence would
have been final on August 22, 2007, when his time for seeking direct review
with this Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence
becomes final “at the conclusion of direct review … or at the expiration of time
for seeking the review”). The instant petition – filed more than a decade later
– is patently untimely. Therefore, the PCRA court lacked jurisdiction to review
Walter’s petition unless he was able to successfully plead and prove one of the
statutory exceptions to the PCRA’s time-bar. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii).
The PCRA provides three exceptions to its time bar:
(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in
the petition, and may not be raised for the first time on appeal. See
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also
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Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are
waived and cannot be raised for the first time on appeal). Further,
[a]lthough this Court is willing to construe liberally materials filed
by a pro se litigant, pro se status generally confers no special
benefit upon an appellant. Accordingly, a pro se litigant must
comply with the procedural rules set forth in the Pennsylvania
Rules of the Court. This Court may quash or dismiss an appeal if
an appellant fails to conform with the requirements set forth in
the Pennsylvania Rules of Appellate Procedure.
Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003)
(citations omitted).3
Even liberally construed, Walter has failed to plead and prove that any
of his claims constitute a valid exception to the PCRA time-bar. Walter asserts
he meets the requirements of Section 9545(b)(1)(ii), i.e., the newly
discovered fact exception to the PCRA’s time-bar, based on an affidavit he
submitted from the victim,4 in which she recants her trial testimony and claims
her testimony was coerced by the prosecutor.
Section 9545(b)(1)(ii) “requires [a] petitioner to allege and prove that
there were ‘facts' that were ‘unknown’ to him” and that he could not have
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3While Walter is represented by counsel on appeal, he filed his PCRA petition
pro se, and no counseled amended petition was filed on his behalf. Therefore,
we look to the pro se PCRA petition to determine whether Walter has met his
burden to plead and prove an exception to the PCRA time-bar.
4 We note that the affidavit does not appear in the certified record. However,
the PCRA petition does state that the affidavit was attached upon filing.
Further, Walter included the affidavit as an attachment to his appellate brief.
As the existence of the affidavit, and the claims made in it, are undisputed,
we do not find its absence from the certified record hampers our review.
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ascertained those facts by the exercise of “due diligence.” See
Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). “The focus
of the exception is on the newly discovered facts, not on a newly discovered
or newly willing source for previously known facts.” Commonwealth v.
Marshall, 947 A.2d 714, 720 (Pa. 2008) (citation and brackets omitted). “Due
diligence demands that the petitioner take reasonable steps to protect his own
interests. A petitioner must explain why he could not have learned of the new
fact(s) earlier with the exercise of due diligence.” Commonwealth v.
Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (citations omitted).
Here, Walter filed his petition soon after learning of the victim’s affidavit.
However, the affidavit itself is not a “new fact.” See Commonwealth v.
Maxwell, 232 A.3d 739, 745-46 (Pa. Super. 2020). The actual “fact” for
purposes of Section 9545(b)(1)(ii) is that the victim recants her trial
testimony, and that the prosecutor coerced her to testify against Walter.
It is clear from a review of the record that the new affidavit is merely a
new conduit for issues previously litigated by Walter. The victim’s recantation
and the underlying assertion of prosecutorial misconduct are not “new facts”
to Walter, as the victim attempted to recant her accusations during the
litigation process and Walter previously raised these exact claims in his motion
to dismiss filed prior to his second trial. In his appeal from the trial court’s
dismissal of his motion to dismiss, Walter specifically raised numerous
instances of prosecutorial misconduct, including that the prosecutor met with
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the victim prior to the preliminary hearing and (1) threatened her with
placement if she did not testify consistent with her original accusations, (2)
intimidated her by telling her she would go to hell if she lied, and (3)
intimidated her by telling her she could be sent to jail for lying on the witness
stand. Notably, the victim’s affidavit does not include any new claims in
addition to these previously litigated claims.
Walter admits he has raised these claims before but argues the issue
could never be fully explored due to the victim’s age, mental state, and the
alleged prosecutorial misconduct of threats and coercion upon the victim. As
stated above, the “fact” that another witness is willing to testify to previously
known facts does not satisfy the newly discovered fact exception to the PCRA’s
time-bar. See Maxwell, 232 A.3d at 746. Therefore, it is certainly the case
that the same witness being willing to testify to previously known facts will
not satisfy the exception.5
As Walter’s PCRA petition was untimely and does not fall under an
exception to the PCRA time bar, we affirm the PCRA court’s order dismissing
the petition.
Order affirmed. Jurisdiction relinquished.
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5 To the extent Walter attempts to rely on cases in which we found
prosecutorial misconduct by the same prosecutor, leading to the prosecutor
being disbarred, see Appellant’s Brief, at 13-14, they also merely provide a
new source for a previously known fact. Nor does the fact that the prosecutor
was found to have engaged in prosecutorial misconduct in another case
automatically prove that his conduct in this case requires a new trial.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2022
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