Com. v. Miranda, E. ( 2021 )

J-A24044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EFRAIN MIRANDA III :
:
Appellant : No. 2196 EDA 2020
Appeal from the PCRA Order Entered October 20, 2020
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0004165-2011
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 18, 2021
Efrain Miranda III (Miranda) appeals from the order of the Court of
Common Pleas of Lehigh County (PCRA court) denying his third petition filed
under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
I.
A.
In April 2011, the Lehigh County Drug Task Force began to investigate
Miranda for selling drugs. As part of its investigation, the Task Force used
confidential informants (CIs) and consensually recorded phone calls between
them and Miranda. Relying in part on these calls, the Task Force applied for
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* Retired Senior Judge assigned to the Superior Court.
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a non-consensual wiretap (wiretap) on Miranda’s cell phone. After getting
judicial approval for the wiretap, the Task Force conducted surveillance of
Miranda and saw him sell cocaine to several persons. In August 2011, the
Task Force charged him with, among other offenses, over 30 counts of
delivering a controlled substance.
After the case was waived to court, the trial court entered a January 5,
2012 protective order stating that “defense counsel may not provide copies,
photocopy, display or otherwise disclose or communicate the contents of the
discovery provided in this matter.” Under the order, though, trial counsel
could “discuss the contents of these documents with the Defendant subject to
the above limitations.”
On July 18, 2012, Miranda pled guilty to ten counts of delivery and one
count each of conspiracy and corrupt organizations. On September 6, 2012,
the trial court sentenced him to an aggregate term of 12 to 29 years’
imprisonment.1 After his post-sentence motion for modification was denied,
Miranda did not file a direct appeal.
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1 Though not relevant here, Miranda’s sentence was a source of some
confusion. He was sentenced to an aggregate total of 9 to 21 years but his
“Special Conditions” sheet stated that his sentence was 12 to 29 years. The
Department of Corrections (DOC) sought clarification, leading to the trial court
restructuring the sentence to 12 to 29 years. Miranda later petitioned to
challenge the recalculation of his sentence. The Commonwealth Court denied
that petition. Miranda v. DOC, 548 M.D. 2019 (Pa. Cmwlth. July 13, 2021)
(unpublished memorandum).
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B.
In July 2013, Miranda filed his first PCRA petition. PCRA counsel was
appointed and filed an amended petition. Among other claims, Miranda
alleged that trial counsel was ineffective because he “never discussed
Discovery nor allowed [Miranda] to look at the Discovery or wiretaps in the
case.” PCRA counsel, however, did not try to lift the protective order and
obtain the wiretap application and affidavit.
At the evidentiary hearing, trial counsel testified that the
Commonwealth provided him with discovery on five compact discs, though he
also had “paper copies of the affidavits, of the criminal complaint, the
warrants, things of that nature.” Trial counsel informed Miranda about the
protective order and had him come to his office to review the discovery, which
included listening to the phone calls intercepted by the wiretap. As to whether
he obtained the wiretap documents, trial counsel testified that he got “the
disclosure on the wiretaps and the search warrant.” He admitted, though,
that he did not review all the discovery because Miranda agreed to cooperate
with the Commonwealth early in the case.
After the hearing, finding Miranda’s claim of ineffectiveness of counsel
did not warrant relief because trial counsel obtained the discovery and
reviewed it with Miranda, the PCRA court denied the petition. On appeal, we
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affirmed. Commonwealth v. Miranda, 116 A.3d 697 (Pa. Super. 2014)
(unpublished memorandum).2
C.
Miranda filed this PCRA petition on August 28, 2020. In his petition,
Miranda alleged that about week earlier, he received the wiretap documents
in the mail from someone he did not know.3 He asserted that the documents
revealed that the evidence obtained through the wiretap should have been
suppressed because one of the consensually recorded phone calls in the
affidavit stated that the CI consented but there was no indication that (1) the
CI gave written consent, or (2) a prosecutor reviewed the facts and believed
the consent was voluntary.4 In Miranda’s view, if trial counsel had reviewed
the wiretap documents, he would have discovered this purported defect and
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2 In December 2017, Miranda filed a second PCRA petition raising a legality of
sentence claim. The PCRA court denied the petition and we affirmed on
appeal. Commonwealth v. Miranda, 201 A.3d 862 (Pa. Super. 2018)
(unpublished memorandum).
3 Miranda attached the mailer in which he received the documents.
The return
address lists a man named “Wilson Buchanon” with an Allentown address.
Miranda provided no further information about how he obtained the
documents.
4 See 18 Pa.C.S. § 5704(2)(ii) (providing it is not unlawful and no prior court
approval is necessary for interception of communications where one of the
parties has consented and, among others, the district attorney or a designated
assistant district attorney “has reviewed the facts and is satisfied that the
consent is voluntary and has given prior approval for the interception”).
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moved to suppress. By failing to do so, Miranda contended, trial counsel
unlawfully induced him into pleading guilty.5
Because his petition was untimely, Miranda asserted both the
governmental interference and newly-discovered fact exceptions to the PCRA
time bar.6 He claimed that he had continued to request the discovery
materials from trial counsel, as well as filing right-to-know requests, formal
and informal requests to the trial court, and even a complaint with the
Disciplinary Board. According to Miranda, this evidences that he exercised
due diligence in trying to obtain the wiretap application and affidavit and could
not know of the defect until he received them from an unknown source.
On September 14, 2020, the PCRA court gave notice of its intent to deny
the petition under Pa.R.Crim.P. 907. After Miranda responded, the PCRA court
formally denied the PCRA petition on October 20, 2020. Miranda timely
appealed.
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5 For a claim of an unlawfully induced guilty plea, the petitioner must show
that the plea was “unlawfully induced where the circumstances make it likely
that the inducement caused the petitioner to plead guilty and the petitioner is
innocent.” 42 Pa.C.S. § 9543(a)(2)(iii).
6 42 Pa.C.S. §§ 9545(b)(1)(i)-(ii).
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II.
Before addressing the merits of Miranda’s petition, we must first
determine whether it is timely under the PCRA's jurisdictional time bar.7 A
PCRA petition, “including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final.” 42 Pa.C.S. § 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 time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3). Because the timeliness requirements of
the PCRA are jurisdictional, courts cannot address the merits of an untimely
petition. See Commonwealth v. Moore, 247 A.3d 990, 998 (Pa. 2021).
Miranda’s sentence became final in October 2012 when he declined to
file an appeal after the denial of his post-sentence motion. See 42 Pa.C.S.
§ 9545(b)(3). Because he did not file this petition until August 28, 2020, it is
facially untimely. To overcome his untimeliness, he must plead and prove one
of the exceptions to the time bar. There are three limited exceptions:
(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;
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7 Whether a PCRA petition is timely raises a question of law over which our
standard of review is de novo. See Commonwealth v. Reid, 235 A.3d 1124,
1166 (Pa. 2020).
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(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. § 9545(b)(1)(i)-(iii).
On appeal, Miranda focuses his timeliness argument on the
governmental interference exception under § 9545(b)(1)(i).8 Under that
exception, the pertinent question is whether the government interfered with
the defendant’s ability to present his claim and whether he was duly diligent
in seeking the facts on which his claim is based. See Commonwealth v.
Chimenti, 218 A.3d 963, 975 (Pa. Super. 2019) (citation omitted).
According to Miranda, he could not have obtained the wiretap application
and affidavit any sooner because of the protective order restricting his access
to the documents. He recounts that he tried to obtain the documents by
continually requesting them from both trial counsel and the trial court and
filing right-to-know requests and a complaint with the Disciplinary Board. He
also alleges that the Commonwealth never gave his trial counsel the
documents. Instead, Miranda contends, the Commonwealth provided him
with the wiretap conversations but disclosed none of the supporting
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8 Miranda also asserts that he satisfied the newly-discovered facts exception
but fails to provide any substantive argument.
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documents. As a result, he contends that the Commonwealth violated its
obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose all
potential exculpatory evidence.
First, Miranda has presented no evidence that the Commonwealth
interfered with him reviewing the wiretap documents. To make out a Brady
violation that falls within the governmental interference exception, Miranda
was obligated to plead and prove that the failure to previously raise these
claims was the result of interference by government officials.
Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006). As noted,
while the case was pending, the trial court entered a protective order that trial
counsel “may not provide copies, photocopy, display or otherwise disclose or
communicate the contents of the discovery provided in this matter.” However,
under that same order, trial counsel was permitted to “discuss the contents
with Defendant subject to the above limitations.” The protective order did not
limit what discovery the Commonwealth had to provide to trial counsel, nor
what trial counsel could discuss with Miranda.
While it is less clear whether trial counsel obtained and reviewed the
wiretap documents, we still find no relief due. At the evidentiary hearing on
the first petition, trial counsel testified that Miranda began cooperating after
being charged, leading to him meeting with the Commonwealth and admitting
to making the drug deliveries. See N.T., 12/6/13, at 33-34. As a result,
Miranda never really discussed going to trial. Id. at 35.
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This being the case, trial counsel obtained discovery—including the
intercepted phone conversations—but apparently did not seek to obtain the
wiretap application. At the hearing, trial counsel was asked about the
paperwork for the wiretap.
Q. What I’m saying is, I know in other cases I have had where
there’s wiretaps there is normally like paper components not
necessarily on paper but maybe on CD.
A. No. This is what was provided.
Q. Okay.
A. -- portions of it.
Q. Were you told that there were none or you didn’t think you
needed to?
A. No, I was not told that there were any and, again, it was
one of the things, it was cooperation. It was – there was no need
to get it.
Q. So [Miranda] was on the cooperation track, so you felt, “I
don’t need to go,” is that fair?
A. That’s fair.
Q. -- to go over every piece of discovery, because he’s
cooperating.
A. That’s absolutely fair.
Id. at 43-44.
Even if this were the case, that is different from the Commonwealth
willfully or inadvertently suppressing the wiretap application and affidavit. The
protective order did not prevent trial counsel from obtaining those documents,
and there is no evidence that the Commonwealth would have failed to disclose
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them if counsel has specifically sought them out. At most, trial counsel chose
not to pursue the wiretap application and affidavit because Miranda was
cooperating with the Commonwealth. Simply, there is no evidence that the
Commonwealth ever withheld the application and affidavit.
Besides there being no evidence of interference, Miranda was not duly
diligent. First, Miranda knew about the wiretap and the trial court’s protective
order, as trial counsel testified that he informed Miranda about it. See N.T.,
12/6/13, at 32-33, 39. Second, Miranda is essentially raising the same claim
that he raised in his first petition, that is, that trial counsel failed to obtain and
review discovery, particularly that pertaining to the wiretap. Despite having
appointed PCRA counsel, Miranda never sought to have the trial court lift its
protective order and obtain the wiretap documents as part of his claim that
trial counsel was ineffective for not reviewing the full discovery. On this point,
Miranda offers no argument why he did not seek the documents in his first
PCRA, especially since he is essentially raising a similar ineffectiveness claim
in this petition based on trial counsel not reviewing discovery.
Despite his purported other efforts, Miranda was not duly diligent in
obtaining the documents because he could have tried to obtain them during
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the first PCRA petition when he raised essentially the same issue as he does
here. The PCRA court did not err in denying relief.9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2021
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9 Even if we reached the merits of Miranda’s petition, we would find no relief
due. Miranda’s claim hinges on the Task Force not obtaining consent from
one of the CIs to record his phone call with Miranda. In the affidavit, however,
the Task Force states that the phone call “was recorded in compliance with 18
Pa.C.S. § 5704(a)(2)(ii). See Affidavit in Support of Wiretap Application,
7/11/11/ at 7 (attached as Exhibit A to Miranda’s PCRA Petition, 8/28/20).
Miranda cites no case law for the proposition that this rendered the wiretap
application infirm and, thus, subject to suppression. His claim would have
been meritless.
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