Com. v. Veneri, A. ( 2020 )

J-S32043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY JOHN VENERI, JR. :
:
Appellant : No. 912 EDA 2020
Appeal from the PCRA Order Entered March 4, 2020,
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0003526-1978,
CP-23-CR-0003713-1978.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY JOHN VENERI, JR. :
:
Appellant : No. 1387 EDA 2020
Appeal from the PCRA Order Entered March 4, 2020,
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: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM PER CURIAM: FILED SEPTEMBER 11, 2020
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S32043-20
In these consolidated appeals, Anthony John Veneri, Jr., presents a pro
se challenge to the order denying his latest petitions filed pursuant to the Post
Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On January
31, 1979, a jury convicted Veneri of two bank robberies and related charges.
The trial court sentenced him to twenty-five to fifty years of imprisonment to
be served consecutive to a previously imposed sentence for armed robbery
imposed by another state. Veneri filed a timely appeal to this Court, and we
affirmed his judgment of sentence on November 19, 1982. Commonwealth
v. Veneri, 452 A.2d 784 (Pa. Super. 1982) (en banc). Our Supreme Court
denied Veneri’s allocatur petition on September 13, 1983.
Over the ensuing decades Veneri unsuccessfully has sought post-
conviction relief. Veneri filed the instant “Petition for this Court Depriving
[Veneri’s] Rights Under Color of State Law” on January 14, 2020, and a
“Petition for Writ of Habeas Corpus Nunc Pro Tunc” the next day. In both
filings, Veneri asserted several claims, including a claim that the bills of
information filed against him were void and claims of ineffective assistance of
counsel.
On January 27, 2020, following review of Veneri’s petitions and the
record as a whole, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent
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to dismiss without a hearing.1 Veneri did not file a response. By order entered
March 4, 2020, the PCRA court entered an order dismissing Veneri’s petitions.
These timely appeals followed. The PCRA court did not require Pa.R.A.P. 1925
compliance.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
Veneri has filed a handwritten/printed brief and supplement thereto
which marginally complies with our briefing requirements. Before reaching
any of his “issues” however, we must first determine whether the PCRA court
correctly determined that Veneri’s most recent petitions were untimely filed.
Initially, as noted by the PCRA court, the PCRA is intended to be the sole
means of achieving post-conviction relief and that the statute has subsumed
the writ of habeas corpus. See 42 Pa.C.S.A. § 9542; Commonwealth v.
Taylor, 65 A.3d 462 (Pa. Super. 2013). Thus, Veneri’s most recent filings are
subject to the PCRA’s time restrictions.
____________________________________________
1 Although the PCRA court referenced the Rule 907 notice order in its
subsequent order denying Veneri’s petitions, this order does not appear in the
electronic record. In addition, we note that Veneri has filed multiple petitions
after he took the instant appeal.
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Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that an exception
to the time limitation for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.2 A PCRA petition invoking one of these
statutory exceptions must be filed within one year of the date the claims could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). Asserted exceptions to the
time restrictions for a PCRA petition must be included in the petition, and may
not be raised for the first time on appeal. Commonwealth v. Furgess, 149
A.3d 90 (Pa. Super. 2016).
Here, this Court has previously held that, “pursuant to 42 Pa.C.S. §
9545(b)(3), [Veneri’s] judgment of sentence became final ninety days after
____________________________________________
2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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), (ii), and (iii).
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September 13, 1983, when he did not seek review of our Supreme Court’s
denial of relief.” Veneri, unpublished memorandum at 3. Because Veneri
filed the petitions at issue three decades later, they are patently untimely,
unless Veneri satisfied his burden of pleading and proving that one of the
enumerated exceptions applies.
In his latest petitions, Veneri has failed to acknowledge, let alone plead
and prove the applicability of any of the PCRA’s time-bar exceptions. In his
original and supplemental “briefs,” Veneri avers that he is “submitting to this
Honorable Court, newly discovered issues,” and, once again, claims that his
trial counsel was ineffective for failing to argue the bills of information were
“void-in-limine.” Veneri’s Brief at 3. The PCRA court correctly addressed this
issue:
[T]he issue of the validity of the Informations filed
against [Veneri] in 1978, which [Veneri] raises in [his]
present petition, was already decided in his 1982 [direct
appeal] in Commonwealth v. Veneri, 452 A.2d 784 (Pa.
Super. 1982) [(en banc)] and therefore may not be raised
in his PCRA. 42 Pa.C.S.A. §9543(a)(3). Moreover,
[Veneri’s] contention that the Informations charging him
were “void in limine” is meritless.
PCRA Court Opinion, 4/15/20, at 3-4.
In Veneri, an en banc panel of this Court concluded that then
Pa.R.Crim.P. 225(b) (now Rule 560(B))’s requirement of that actual signature
of the attorney for the Commonwealth, was “directory only and that its
absence renders an information merely voidable and curable by amendment
if properly raised in a pre-trial motion to quash.” Veneri, 452 A.2d at 788.
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In Veneri’s case, we found he waived this challenge because he raised it for
the first time on appeal. Id. Although Veneri now claims, as he did in multiple
prior filings, that trial counsel was ineffective for failing to timely raise this
defect, claims of ineffectiveness do not establish a timeliness exception under
the PCRA. See 42 Pa.C.S.A. § 95459(b)(4) (providing, “For purposes of this
subchapter, “government officials” shall not include defense counsel, whether
appointed or retained”); Commonwealth v. Edmiston, 65 A.3d 339, 349
(Pa. 2013) (explaining allegations of ineffective assistance of counsel will not
overcome the jurisdictional timeliness requirements of the PCRA).
In sum, because Veneri’s latest petitions are patently untimely and
Veneri cannot avail himself of any of the PCRA’s time-bar exceptions, the PCRA
court did not error in denying them.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/20
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