Com. v. Lawton, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MATTHEW ALLEN LAWTON :
:
Appellant : No. 305 WDA 2021
Appeal from the PCRA Order Entered February 22, 2021
In the Court of Common Pleas of Potter County
Criminal Division at No: CP-53-CR-0000187-2010
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: JULY 16, 2021
Matthew Allen Lawton (Appellant) appeals pro se from the order
dismissing his third petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court, in affirming the dismissal of Appellant’s second PCRA
petition, relayed:
The record demonstrates that on September 10, 2012, a jury
convicted Appellant of rape of a child (4 counts), involuntary
deviate sexual intercourse with a child (4 counts), aggravated
indecent assault of a child (4 counts), indecent assault of a person
less than 13 years of age (13 counts), and corruption of minors
(2 counts) in connection with his sexual assault of a 10-year-old
child [(Victim)].[FN]1 On September 10, 2012, the trial court
sentenced Appellant to an aggregate 20 to 40 years’ incarceration.
This Court affirmed Appellant’s judgment of sentence on February
21, 2014. Commonwealth v. Lawton, 97 A.3d 810 (Pa. Super.
2014) (unpublished memorandum). Our Supreme Court denied
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* Retired Senior Judge assigned to the Superior Court.
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allocatur on August 26, 2014. Commonwealth v. Lawton, 99
A.3d 76 (Pa. 2014). Appellant did not seek a writ of certiorari
from the Supreme Court of the United States.
[FN]118 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b),
3126(a)(7), and 6301(a)(1),
respectively.
On February 15, 2015, Appellant filed pro se his first PCRA petition
asserting claims of ineffectiveness of trial counsel. The PCRA court
appointed Jarett R. Smith, Esq. (Attorney Smith) to represent
Appellant. Attorney Smith filed an amended PCRA petition on May
29, 2015. After a hearing on the matter, the PCRA court denied
Appellant’s PCRA petition. This Court subsequently affirmed the
denial of Appellant’s first PCRA petition. Commonwealth v.
Lawton, 159 A.3d 37 (Pa. Super. 2016) (unpublished
memorandum). Our Supreme Court denied allocatur on January
9, 2018. Commonwealth v. Lawton, 178 A.3d 734 (Pa. 2018).
On February 1, 2018, Appellant filed pro se his second PCRA
petition asserting claims of ineffectiveness of PCRA counsel. The
PCRA court provided notice, pursuant to Pa.R.Crim.P. 907, of its
intent to dismiss the PCRA petition without an evidentiary hearing
because the PCRA petition was untimely and Appellant failed to
invoke any of the exceptions to the PCRA jurisdictional time-bar.
Appellant filed pro se a response to the PCRA court’s notice of
intent to dismiss his PCRA petition. The PCRA court appointed
Daniel A. Stefanides, Esq. (Attorney Stefanides) to represent
Appellant on his second PCRA petition. On March 14, 2019,
Attorney Stefanides filed a motion to withdraw and a
Turner/Finley no merit letter concluding that Appellant’s claims
were without merit. On March 19, 2019, the PCRA court provided
a Rule 907 notice of its intent to dismiss Appellant’s second PCRA
petition within 20 days without an evidentiary hearing. On April
9, 2019, Appellant filed pro se a response to Attorney Stefanides’
Turner/Finley no merit letter. On April 25, 2019, the PCRA court
denied Appellant’s second PCRA petition as untimely and failing to
invoke an exception to the PCRA jurisdictional time-bar. The PCRA
court also granted Attorney Stefanides’ motion to withdraw.
Commonwealth v. Lawton, 770 WDA 2019, *1-3 (Pa. Super. March 27,
2020) (unpublished memorandum) (some footnotes omitted).
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Appellant appealed, and as noted, this Court affirmed the dismissal of
Appellant’s second PCRA petition. Id. The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal. Commonwealth v.
Lawton, 115 WAL 2020 (Pa. Sept. 1, 2020). On January 19, 2021, Appellant
pro se filed the underlying PCRA petition. Appellant conceded his petition was
untimely, but claimed the conviction in New York of H.S., Victim’s father, for
molesting Victim, satisfied the newly discovered fact exception to the PCRA’s
time-bar. Appellant’s Brief at 3; Motion for Post Conviction Relief, 1/19/21,
at 2, 4. Appellant suggests that H.S.’s conviction proves Appellant is innocent.
Id.The PCRA court issued notice of intent to dismiss pursuant to
Pa.R.Crim.P. 907 and Appellant filed a pro se response. On February 22,
2021, the court entered the order dismissing Appellant’s petition without a
hearing. Appellant filed this appeal. Although the PCRA court did not order
Appellant to file a Pa.R.A.P. 1925(b) concise statement, it filed a Pa.R.A.P.
1925(a) opinion in which it stated it “hereby designates the Notice of Intent
to Dismiss dated and filed January 21, 2021 as the reason for the Court’s
decision to dismiss the Appellant’s PCRA Petition.” Order in Support of
Decision, 3/3/21.
On appeal, Appellant presents three questions, stated verbatim:
1. That this newly discovered evidence could be used for a new
Trial on the bases that the police officers from New York State
would be on the Appellants side. As well as this evidence
[s]hows that everything that the Appellant and his family told
the truth, and that Judge Minor telling Nancy Langan to take
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the 5th or be charged with purgry [sic] was wrong. As well as
this evidence shows that the Sewar family lied on stand.
2. That most of this evidence would have been available for
sentencing and e[i]ther the District Attorney or the New York
State Police did not tell any one in Pennsylvania. This could
have been used for mi[t]igating circ[u]mstances for
sentencing, and was not.
3. Judge Minor of the Appellant’s PCRA denied the PCRA with out
a hearing. This s[h]ould not of happened for there is to be a
hearing to determ[ine] the creditability [sic] of the witnesses.
Appellant’s Brief at 1-2.
In reviewing the PCRA court’s dismissal of Appellant’s petition, we
examine “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 when an appellant’s judgment of sentence
becomes 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).
Our 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,
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our Supreme Court has instructed that the timeliness of a PCRA petition is
jurisdictional. If a PCRA petition is untimely, courts lack jurisdiction.
Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also
Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (courts
do not have jurisdiction over an untimely PCRA petition). Here, Appellant’s
petition is untimely because his judgment of sentence became final on
November 24, 2014, and this third petition was filed on January 19, 2021,
more than six years later. See Lawton, 770 WDA 2019, at *4-5.
If a PCRA petition is untimely, the 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 narrow 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 to the
jurisdictional time-bar must be filed within one year of the date that the claim
could have been presented.1 42 Pa.C.S.A. § 9545(b)(2). If a petitioner fails
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1 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., arising December 24,
2017, or later. Act 2018, Oct. 24, P.L. 894, No. 146, § 3. Because Appellant
filed his third PCRA petition on January 19, 2021, the amendment applies to
him.
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to invoke a valid exception to the PCRA time-bar, courts are without
jurisdiction to review the petition or provide relief. Spotz, 171 A.3d at 676.
Appellant contends his claim falls within the newly discovered fact
exception, Section 9545(b)(1)(ii). The PCRA court summarized Appellant’s
argument as follows:
In the [Appellant’s] instant PCRA Motion he avers newly
discovered evidence that would have changed the outcome of the
trial. The evidence is in the nature of a conviction of the victim’s
father, [H.S.], in the State of New York for molesting his daughter
who was also the [Appellant’s] victim. Attached to [Appellant’s]
Motion are numerous documents concerning the conviction of
[H.S.] In the sentencing transcript of [H.S.] of July 1, 2020, the
victim asserts that her father molested her from age 6 through
the age of 12. Interestingly on page 5, lines 23-24 of said
transcript the victim suggests that she was raped by a “cousin”
however, the cousin’s name is blacked out.
Notice of Intention to Dismiss, 1/21/21, at 1-2 (unnumbered) (citations
omitted).
Appellant had to demonstrate he did not know the facts upon which he
based his petition, and could not have learned the facts earlier by the exercise
of due diligence. See, e.g., Commonwealth v. Bennett, 930 A.2d 1264,
1271 (Pa. 2007). Due diligence demands the petitioner take reasonable steps
to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168
(Pa. Super. 2001). Additionally, the focus of this 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) (emphasis omitted). In other words, the “new facts” exception at:
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[S]ubsection (b)(1)(ii) has two components, which must be
alleged and proved. Namely, the petitioner must establish that:
1) the facts upon which the claim was predicated were unknown
and 2) could not have been ascertained by the exercise of due
diligence. If the petitioner alleges and proves these two
components, then the PCRA court has jurisdiction over the claim
under this subsection.
Bennett, supra at 1272 (citations omitted) (emphasis omitted).
Upon review, we agree the conviction of H.S. for molesting Victim in the
State of New York was a newly discovered fact. The pleadings attached to
Appellant’s petition demonstrate Appellant did not discover and could not have
discovered H.S.’s conviction until January 16, 2020, when H.S. pled guilty to
“course of sexual conduct against a child.”2 Appellant filed his petition a year
after discovering this fact.3 Accordingly, Appellant’s claim is timely under the
newly-discovered fact exception to the PCRA time-bar.
Next, we consider the merits of Appellant’s claim. We recognize:
The four-prong test for awarding a new trial because of after-
discovered evidence is well settled. The evidence: (1) could not
have been obtained prior to trial by exercising reasonable
diligence; (2) is not merely corroborative or cumulative; (3) will
not be used solely to impeach a witness’s credibility; and (4)
would likely result in a different verdict. See Commonwealth v.
Pagan, [] 950 A.2d 270, 292 ([Pa.] 2008) (citations omitted).
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014). In determining
“whether the alleged after-discovered evidence is of such nature and character
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2 PL § 130.75(A)(a).
3 One year from the date of H.S.’s conviction was January 16, 2021, which
was a Saturday, and Monday, January 18, 2021 was a holiday. Thus,
Appellant’s petition, filed on Tuesday, January 19, 2021, was timely.
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that it would likely compel a different verdict if a new trial is granted, . . . a
court should consider the integrity of the alleged after-discovered evidence,
the motive of those offering the evidence, and the overall strength of the
evidence supporting the conviction.” Commonwealth v. Padillas, 997 A.2d
356, 365 (Pa. Super. 2010) (cleaned up). Finally, “the proposed new evidence
must be producible and admissible.” Castro, 93 A.3d at 825 (cleaned up).
Here, the PCRA court reasoned:
. . . The [c]ourt is unable to find any information in the various
documents concerning [H.S.’s] criminal matter that would
somehow indicate [Appellant] is innocent of the crimes for which
he was convicted.
* * *
For multiple reasons, [Appellant’s] claim fails. Although sadly the
victim’s father sexually assaulted her, it does not prove
[Appellant] did not commit a sexual assault on the victim as well.
[Appellant] has provided no evidence or even an assertion that
the sexual assault of the father of his daughter somehow proves
his innocence. It is doubtful that the evidence of the father’s
assault would even be admissible in [Appellant’s] trial. It appears
that [Appellant] intends to use the evidence to discredit the victim
or other witnesses at trial, accordingly, the third element is not
satisfied as the evidence cannot be used for impeachment
purposes.
Notice of Intention to Dismiss, 1/21/21, at 2-3 (unnumbered). 4
The record supports the PCRA court’s reasoning. Appellant states
numerous times throughout his petition that he intends to use H.S.’s
conviction solely to impeach the credibility of witnesses who testified at his
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4 The Commonwealth’s argument mirrors the analysis of the PCRA court.
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trial. See e.g., Motion for Post Conviction Relief, 1/19/21, at 4 (asserting
several witnesses “lied on [the] stand under oath about sex in the family and
in doing so this falls under impeachment of a witness. . . .”; requesting relief
because H.S.’s conviction “shows that the vast majority of the Commonwealth
witnesses clearly lied on the stand”); see also id. at 8 (arguing H.S.’s
conviction “shows purgry [sic] throughout the Commonwealth’s case”).
Accordingly, because the after-discovered evidence is only relevant to
impeach the witness credibility, the PCRA court properly denied relief.
Castro, supra, at 821 n.7.5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/16/2021
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5 Appellant’s claim also fails to demonstrate how H.S.’s conviction would
compel a different verdict for Appellant.
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