Com. v. Trivigno, P. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PHILIP TRIVIGNO :
:
Appellant : No. 1779 EDA 2020
Appeal from the PCRA Order Entered August 13, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0100861-1996
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 6, 2021
Appellant, Philip Trivigno, appeals pro se from the August 13, 2020 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the factual history as follows:
[Appellant] was tried before a jury [in] September [] 1996.
Appellant was convicted of first[-]degree murder, possession of
an instrument of crime[,] and aggravated assault, and on March
19, 1998, the [trial] court sentenced him to death. Appellant
appealed, and, on March 24, 2000, [our] Supreme Court reversed
Appellant's death sentence and granted a new penalty hearing.
Commonwealth v. Trivigno, 2013 WL 11259245, at *1 (Pa. Super. 2013)
(unpublished memorandum) (record citations omitted). On January 29, 2003,
following a non-jury hearing, the trial court resentenced Appellant to life
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* Retired Senior Judge assigned to the Superior Court.
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imprisonment for his first-degree murder conviction. Id. “Appellant did not
file a direct appeal[] and[,] thus, his judgment of sentence became final on
February 28, 2003.” Commonwealth v. Trivigno, 2017 WL 3037526, at *1
(Pa. Super. 2017) (unpublished memorandum). Appellant filed a writ of
habeas corpus on January 6, 2004, his first PCRA petition on February 11,
2009, and his second PCRA petition on October 14, 2014. Ultimately, none of
these challenges resulted in relief.
On September 29, 2017, Appellant filed pro se the instant PCRA petition,
his third. Between April 2018, and March 2019, Appellant filed three
supplemental PCRA petitions and two amended PCRA petitions.1 On
November 1, 2019, the PCRA court notified Appellant pursuant to
Pennsylvania Rule of Criminal Procedure 907 of its intent to dismiss as
untimely his PCRA petition without a hearing and without exception. Appellant
filed pro se a response to the Rule 907 notice on November 13, 2019, and an
amended response on December 6, 2019. On August 13, 2020, the PCRA
court dismissed Appellant’s petition and, thereupon, filed an opinion in support
of its decision. Appellant filed pro se a notice of appeal on September 9, 2020,
and that same day the PCRA court filed its Pa.R.A.P. 1925(a) opinion wherein
it relied on its August 13, 2020 opinion dismissing Appellant’s PCRA petition.
The PCRA court did not order Appellant to file a Rule 1925(b) statement.
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1 Appellant filed supplemental or amended PCRA petitions on April 10, 2018,
April 20, 2018, June 1, 2018, November 21, 2018, and March 7, 2019.
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Appellant, however, filed pro se a Rule 1925(b) statement on September 18,
2020.
Appellant raises the following issues for our review:
1. Did the PCRA court err when it concluded that [Appellant’s]
PCRA [petition] was not timely filed?
2. Did the PCRA court err in its opinion by rejecting and
dismissing [Appellant’s] petition [as untimely, despite
Appellant’s allegations of] newly[-]discovered facts[,
namely the] affidavit [] from [Philadelphia] Police Officer
Douglas Morrison[, which, if pleaded and proven by a
preponderance of the evidence, is an exception to the PCRA
jurisdictional time-bar pursuant to 42 Pa.C.S.A.
§ 9545(b)(1)(ii)?]
3. Did the PCRA court err when it refused to address the issue
concerning government interference[, which, if pleaded and
proven by a preponderance of the evidence, is an exception
to the PCRA jurisdictional time-bar pursuant to 42 Pa.C.S.A.
§ 9545(b)(1)(i)?]
4. Did the PCRA court err when it refused to address the issue
concerning records of actual innocence[?]
Appellant’s Brief at 7 (extraneous capitalization omitted).2
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.
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2 For clarity and ease of disposition, Appellant’s issues have been renumbered.
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2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman, 799
A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review
the PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa.
2014).
Our Supreme Court has instructed that the timeliness of a PCRA petition
is jurisdictional. If a PCRA petition is untimely, courts lack jurisdiction over
the petition. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005);
see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014)
(holding, courts do not have jurisdiction over an untimely PCRA petition). To
be timely filed, a PCRA petition, including second and subsequent petitions,
must be filed within one year of the date a petitioner’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).
The PCRA’s jurisdictional time restriction is constitutionally sound.
Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004).
Here, Appellant was resentenced on January 29, 2003, and did not
pursue direct appeal. Consequently, Appellant’s judgment of sentence
became final on February 28, 2003, at the expiration of time for filing a direct
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appeal with this Court. Pa.R.A.P. 903 (stating, a notice of appeal, with limited
exception (of which, none apply in the instant case), “shall be filed within 30
days after the entry of the order from which the appeal is taken”); see also
42 Pa.C.S.A. § 9545(b)(3); Trivigno, 2017 WL 3037526, at *1. Therefore,
Appellant’s PCRA petition filed on September 29, 2017, more than fourteen
years after his judgment of sentence became final, is patently untimely.
If a PCRA petition is untimely filed, the jurisdictional time-bar can only
be overcome if the petitioner alleges and proves one of the three statutory
exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions
to the one-year time-bar are as follows: “(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, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
A petition invoking an exception to the jurisdictional time-bar must be filed
within 60 days of the date that the claim could have been presented.3 42
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3 We note that 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, that is to say,
arising December 24, 2017, or later. Act. 2018, Oct. 24, P.L. 894, No. 146,
§ 3. Because Appellant filed his third PCRA petition on September 29, 2017,
this amendment does not apply. See Commonwealth v. Fear, 250 A.3d
1180, 1183-1184, 1191, 1199-1200 n.12 (Pa. 2021) (holding that, when an
initial PCRA petition is filed prior to December 24, 2017, the filing of an
amended or supplemental PCRA petition after December 24, 2017, does not
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Pa.C.S.A. § 9545(b)(2) (effective November 17, 1995, to December 24,
2018). If an appellant fails to invoke a valid exception to the PCRA time-bar,
courts are without jurisdiction to review the petition and provide relief. Spotz,
171 A.3d at 676.
For purpose of discussion, we note in the case sub judice that Appellant
asserts he is eligible for relief because his conviction resulted from, inter alia,
[1.] A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place [and]
[2.] The unavailability at the time of trial of exculpatory evidence
that has subsequently become available and would have
changed the outcome of the trial if it had been introduced.
Appellant’s PCRA Petition, 9/29/17, at § 4; see also 42 Pa.C.S.A.
§ 9543(a)(2)(i) and (vi).4
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extend the time-period within which to assert a claim for collateral relief for
purposes of 42 Pa.C.S.A. § 9545(b)(2)).
4 Appellant asserts, inter alia, that the Commonwealth knowingly permitted
Philadelphia Police Detective Manuel Santiago, who investigated the incident
involving Appellant, to provide false testimony and evidence that directly
linked Appellant to the crime in violation of his constitutional rights and that
after-discovered evidence in the form of Detective Santiago’s misconduct
would have resulted in a different verdict.
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Because his PCRA petition is untimely, Appellant invokes the
newly-discovered facts exception to overcome the jurisdictional time-bar.5
Appellant’s Amended Supplemental PCRA Petition, 4/20/18; see also
Appellant’s Brief at 10-18. Appellant avers that a Philadelphia Daily News
article dated February 19, 2018,6 “alerted [Appellant] to misconduct with[in]
the [Philadelphia P]olice [D]epartment[,]” including misconduct by Detective
Santiago. Appellant’s Supplement to Third PCRA Petition, 4/10/18; see also
Appellant’s Brief at 10. Appellant avers that upon learning of this newspaper
article and the alleged misconduct of Detective Santiago, he requested
Detective Santiago’s disciplinary records from the Philadelphia Police
Department. Id. In response, Appellant received an affidavit from
Philadelphia Police Officer Douglas Morrison7 in which, Appellant contends,
“Officer Morrison confirmed [Appellant’s] newspaper article.” Id. Appellant
asserts that the newspaper article and Officer Morrison’s affidavit establish the
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5 Appellant also invokes the governmental interference exception to the
jurisdictional time-bar. To successfully invoke the governmental interference
exception, a “petitioner must plead and prove the failure to previously raise
the [underlying] claim was the result of interference by government officials,
and the information could not have been obtained earlier with the exercise of
due diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.
2008). We consider Appellant’s second and third issues in tandem.
6 Chris Palmer, After man was cleared, other cases could follow, Philadelphia
Daily News, Feb. 19, 2018, at 3-4.
7At the time he prepared the affidavit cited in the instant case, Officer
Morrison was the Assistant Open Records Officer for the Philadelphia Police
Department. Appellant’s Brief at Exhibit 2.
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newly-discovered facts exception to the PCRA jurisdictional time-bar. Id. at
10-12.
In a recent decision, our Supreme Court reiterated that the
newly-discovered facts exception “renders a petition timely when the
petitioner establishes that [‘]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.[’]”8 Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa.
2020), quoting 42 Pa.C.S.A. § 9545(b)(1)(ii). A PCRA court must first
determine “whether the facts upon which the claim is predicated were
unknown to the petitioner[.]” Id. at 1282 (original quotation marks omitted).
If the PCRA court concludes that the facts were unknown, then the PCRA court
must next examine whether “the facts could have been ascertained by the
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8 Judicial inquiry into whether a previously-unknown fact supports application
of the newly-discovered facts exception to the PCRA’s timeliness requirement
is distinct from the inquiry undertaken to determine whether a petitioner has
come forward with after-discovered evidence which compels a new trial. This
distinction is highlighted when newspaper articles are presented in support of
claims for collateral relief. For example, our Supreme Court in
Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014) held that a newspaper
article may alert a petitioner to the possible existence of evidence but that the
newspaper article, alone, is insufficient to support a request for a new trial
based upon after-discovered evidence. Id. at 827; see also
Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (stating
that, “[i]t is possible for a petitioner to plead and prove the newly-discovered
fact exception, which gives the PCRA court jurisdiction and permits it to
consider the petition on the merits, and then ultimately fail on the merits of
an after-discovered evidence claim”). Our inquiry here focuses upon whether
a newspaper article triggers the newly-discovered facts exception to the
PCRA’s timeliness requirement.
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exercise of due diligence, including an assessment of the petitioner's access
to public records.” Id. (citation omitted).
Here, Appellant explains that he recently became aware, upon reading
a Philadelphia Daily News article, that several Philadelphia homicide
detectives, including Detective Santiago, who provided evidence directly
linking Appellant to the crime scene, were under investigation for allegedly
withholding, altering, or fabricating evidence in other criminal investigations.
Appellant’s Supplement to Third PCRA Petition, 4/10/18; see also Appellant’s
Amended Supplemental PCRA Petition, 4/20/18; Appellant’s Supplemental
PCRA Petition, 6/1/18; Appellant’s Amended PCRA Petition, 11/21/18.
Appellant contends that Officer Morrison’s affidavit demonstrates that
evidence of Detective Santiago’s misconduct exists but that Detective
Santiago’s disciplinary records are being withheld from him. Appellant’s
Amended PCRA Petition, 3/7/19 (relying on paragraph 10 of Officer Morrison’s
affidavit which states, “[d]isclosing ‘a certified copy of [Detective] Santiago’s
disciplinary record’ would reveal [the Philadelphia Police Department’s]
criminal and/or noncriminal investigation into Detective Santiago”). Appellant
asserts that the newspaper article concerning the misconduct of Philadelphia
homicide detectives and Officer Morrison’s affidavit establish the
newly-discovered facts exception to the PCRA jurisdictional time-bar because
they prove his underlying claims of a violation of his constitutional rights and
exculpatory after-discovered evidence which could not have been uncovered
through due diligence. Appellant’s Amended Supplemental PCRA Petition,
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4/20/18. Appellant contends that the facts gleaned from the newspaper
article and affidavit, namely Detective Santiago’s misconduct, would have
changed the outcome of his trial if evidence of the detective’s misconduct had
been presented and, furthermore, demonstrated a violation of his
constitutional rights that so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place.
Appellant’s PCRA Petition, 9/29/17, at §4.
Appellant argues, in sum, that a newspaper article describing or
encouraging ongoing investigations of Detective Santiago’s alleged
misconduct in other cases satisfies the newly-discovered facts exception to
the PCRA jurisdictional time-bar. We find Commonwealth v. Chmiel, 173
A.3d 617 (Pa. 2017) instructive in resolving the precise issue before us. In
Chmiel, our Supreme Court held that an FBI press release, and the attendant
admissions by the FBI contained therein, constituted a newly-discovered fact
for purposes of triggering an exception to the PCRA jurisdictional time-bar.
Chmiel, 173 A.3d at 629. Chmiel asserted that an FBI press release and a
subsequent Washington Post article publicizing the press release contained
facts which satisfied the newly-discovered facts exception. Id. at 625.
Inherent in both the FBI press release and the Washington Post article were
the facts that (1) “the FBI publicly admitted that the testimony and statements
provided by its analysts about microscopic hair comparison analysis were
erroneous in the vast majority of cases” and (2) “the FBI had trained many
state and local analysts to provide the same scientifically flawed opinions in
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state criminal trials.” Id. Our Supreme Court concluded that it was not the
source of the facts, i.e., a press release or a newspaper article, that satisfied
the newly-discovered facts exception but, rather, it was the information
contained in those media sources which satisfied the newly-discovered facts
exception. Id. at 628. Stated simply, facts are not what a reader gleans from
media reports or newspaper articles but, instead, facts are the substantive
events, i.e., the FBI’s admission of error, which prompted the report by the
media. See Castro, 93 A.3d at 825 n.11 (reiterating that, “[facts] cannot
consist of what one hears on the news” (citation omitted)); see also
Commonwealth v. Reid, 235 A.3d 1124, 1146 (Pa. 2020) (holding, a judicial
decision is not a fact to support the newly-discovered facts exception because
“an in-court ruling or published judicial opinion is law[;] it is simply the
embodiment of abstract principles applied to actual events. The events that
prompted the analysis, which must be established by presumption or
evidence, are regarded as fact.”).
Here, a review of the newspaper article that forms that basis of
Appellant’s newly-discovered facts exception (and his governmental
interference exception) suggests, “an investigation should be launched into
whether the detectives – who investigated murders during the crack wars of
the 1990s – routinely placed their thumbs on the scales while locking people
up during one of Philadelphia’s most violent eras.” Appellant’s Brief at
Exhibit 1. The newspaper article goes on to state, “it remains unclear how
many cases ultimately could be called into question should [the district
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attorney] launch a wider investigation into [the detectives’] work.” Id.Although the newspaper article reports instances of alleged misconduct by
Detective Santiago in his investigation of other criminal cases, the newspaper
article, unlike the FBI press release in Chmiel, does not specifically cite any
admissions or conclusive findings of wrong-doing by Detective Santiago that
may be linked to Appellant’s case. Id. The newspaper article merely suggests
that such an investigation into Detective Santiago’s actions should be
launched. Id. Therefore, Appellant failed to demonstrate that the newspaper
article contained a fact that triggered the newly-discovered facts exception set
forth at 42 Pa.C.S.A. § 9545(b)(1)(ii). Castro, 93 A.3d at 825 n.11
Turning to Officer Morrison’s affidavit, this Court has previously held that
an affidavit, itself, cannot be a newly-discovered fact but, rather, the “fact”
may be the information reported in the affidavit. Brown, 141 A.3d at
502-503. In his affidavit, Officer Morrison explained that the Philadelphia
Police Department established an Internal Affairs Bureau (“IAB”) responsible
for investigating allegations of police misconduct. Appellant’s Brief at Exhibit
2, ¶2-3. Officer Morrison further explained,
Upon completing its investigation, the IAB prepares an
investigation report and depending on the result of the
investigation, the IAB may terminate the investigation, make
recommendations for further actions to be taken against the
[police officer], such as sanctioning the [police officer], or
referring the [police officer] to the Police Board of Inquiry (“PBI”)
for further investigation and potential discipline. The IAB does not
bring formal charges against the [police officer].
Id. at ¶5 (extraneous capitalization omitted).
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Officer Morrison confirmed that, “IAB [] conducted investigations into
reports and/or complaints with respect to Detective Santiago” but that no
records existed of an investigation that ultimately resulted in Detective
Santiago’s demotion or discharge. Id. at ¶7-8. Officer Morrison attested that
“[t]o the extent complaints [of Detective Santiago’s conduct] were criminal in
nature, a further criminal investigation may have been conducted.” Id. at ¶9
(emphasis added). Officer Morrison stated that a certified copy of Detective
Santiago’s disciplinary record “would reveal [the Philadelphia Police
Department’s] criminal and/or noncriminal investigation into Detective
Santiago.” Id. at ¶9-10.
The affidavit merely informs Appellant about the Philadelphia Police
Department’s policies and procedures regarding complaints brought against
police officers. Although the affidavit confirms that IAB investigated reports
or complaints concerning Detective Santiago, nothing in Officer Morrison’s
affidavit establishes a newly-discovered fact which supports Appellant’s
underlying claims of constitutional violations and after-discovered evidence
pertinent to this case.9
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9 Appellant also failed to demonstrate that the governmental interference
exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(i) applies in the instant case.
Detective Santiago’s alleged misconduct, even if proved, would not trigger the
governmental interference exception to the PCRA jurisdictional time-bar since
that conduct would have occurred during pre-trial investigation or at trial and
would not have interfered with Appellant’s presentation of his current claim.
See 42 Pa.C.S.A. § 9545(b)(1)(i); see also Commonwealth v. Chimenti,
218 A.3d 963, 975 (Pa. Super. 2019) (stating that, “[t]he proper question
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In sum, Appellant failed to plead and prove the newly-discovered facts
exception or the governmental interference exception to the PCRA
jurisdictional time-bar. Consequently, the PCRA court lacked jurisdiction to
review Appellant’s PCRA petition, and we may not review the substance of the
petition on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2021
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with respect to [Section] 9545(b)(1)(i)'s timeliness exception is whether the
government interfered with Appellant's ability to present his claim and
whether Appellant was duly diligent in seeking the facts on which his claims
are based” (original quotation marks omitted)), appeal denied, 229 A.3d 565(Pa. 2020). Likewise, other grounds for applying the governmental
interference exception discussed in Appellant’s brief, such as Detective
Santiago’s supposedly false testimony about the color and license plate
number of the shooter’s car or overly suggestive line-ups, would not support
application of the governmental interference exception since that testimony
was presented at trial and could not interfere with the presentation of
Appellant’s current claims.
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