Com. v. Disco, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RICHARD DISCO :
:
Appellant : No. 1676 EDA 2020
Appeal from the PCRA Order Entered July 22, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1206261-2001
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 26, 2021
Appellant, Richard Disco, appeals from the order entered on July 22,
2020, dismissing his third petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
A prior panel of this Court summarized the facts and procedural history
of this case as follows:
On May 19, 2003, a jury convicted Appellant of multiple sex
offenses related to the abuse of his stepdaughter. On October 2,
2003, the court sentenced Appellant to an aggregate term of
fourteen to twenty-eight years' incarceration.
On August 23, 2005, this Court affirmed Appellant's convictions,
but [] vacated his judgment of sentence and remanded the case
to the trial court for resentencing. Commonwealth v. Disco,
3411 EDA 2003 (Pa. Super. 2005 filed Aug. 23, 2005). On June 8,
2006, the trial court resentenced Appellant to an aggregate term
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* Retired Senior Judge assigned to the Superior Court.
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of ten to twenty years of incarceration. Appellant filed an appeal
to this Court, which he discontinued on February 9, 2007.
On June 11, 2007, Appellant timely filed his first pro se PCRA
petition. The PCRA court appointed counsel, who filed an amended
petition. On February 9, 2009, the PCRA court dismissed
Appellant's petition. This Court affirmed the [dismissal] order on
August 30, 2010, and the Pennsylvania Supreme Court denied
Appellant's petition for allowance of appeal on March 29, 2011.
Commonwealth v. Disco, 606 EDA 2009 (Pa. Super. filed Aug.
30, 2010) (unpublished memorandum), appeal denied, 19 A.3d
1049 (Pa. 2011).
On March 25, 2015, Appellant filed [his second] pro se PCRA
petition. Appellant subsequently submitted four additional pro se
filings, which the PCRA court treated as amendments to the
original petition. In his filings, Appellant argued that the PCRA
court should consider his petition as timely filed due to newly
discovered facts, including (1) a January 15, 2015 newspaper
interview with the victim, which raised questions about her mental
health and cast doubt on the credibility of her accusations; (2)
provocative photos of the victim from a magazine article; and (3)
statements in Appellant's probation and parole board records
about his behavior in the courtroom following his conviction.
Appellant also argued that his sentence was illegal pursuant to the
United States Supreme Court's decision in Alleyne v. United
States, 570 U.S. 99 (2013).
Commonwealth v. Disco, 2019 WL 3383892, at *1 (Pa. Super. 2019)
(unpublished memorandum) (footnote omitted).
At the time Appellant filed his second PCRA petition, he had been eligible
for parole for nearly two years under the terms of the sentence imposed on
June 8, 2006. Because certain material included within Appellant’s second
PCRA petition is relevant to our disposition of the instant appeal, we briefly
review the contents of that submission. Appellant filed a copy of his parole
supervision history summary as an amendment to his second PCRA petition
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on March 22, 2017.1 Appellant claimed that his parole supervision summary
falsely stated:
It should be noted that on the date of [Appellant’s] conviction,
5/19/03, [Appellant] showed hostile behavior in the courtroom.
After the verdict was read, [Appellant] attempted to jump over
the bar of the court and attack the victim and her mother.
[Appellant] was restrained by seven court sheriffs. At this time,
[Appellant] stated, “You fucking slut. You fucking came to court
and lied on me. This is not over. You will pay for this!”
Supervision History, 10/4/2001, at *1-2.
Referring to the summary of his supervision history, Appellant’s
amended second PCRA petition alleged:
the “supervision history” document prepared by his former parole
officer contained false statements, “[t]he most troubling aspect of
this issue is, [Appellant] has never been interviewed by the Parole
Board,” and the document at issue “may have played a big part
with all the problems [Appellant] has been having with the Parole
Board and the Department of Corrections.” Consequently,
Appellant requested an evidentiary hearing and the issuance of a
subpoena to the parole officer “to answer for her actions, which
[have] no doubt hindered [Appellant's] ability to be paroled.”
Disco, 2019 WL 3383892, at *1, n.1.
In its opinion disposing of Appellant’s second PCRA petition, the PCRA
court framed this issue as follows: “Appellant claimed the [supervision history]
document contained false and incriminating statements about things he
allegedly said and did after the verdict was read during his trial.” PCRA Court
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1 Appellant’s parole supervision history summary was written by his parole
supervisor, Dana Roth. Agent Roth testified as a Commonwealth witness at
Appellant’s trial.
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Opinion, 1/14/2019, at 10. Ultimately, the PCRA court determined that
Appellant’s second, amended PCRA petition was patently untimely, and
Appellant failed to exercise due diligence to present the aforementioned
information within 60 days of receiving it in order to meet the unknown facts
exception to the PCRA. Id. at 10, n.8. Hence, Appellant did not meet the
criteria of the unknown facts timeliness exception under the PCRA. The PCRA
court additionally noted that Appellant’s claim lacked merit because a
challenge to parole status is exclusively within the Commonwealth Court’s
exclusive jurisdiction and not cognizable under the PCRA. Id. at 10. On
appeal, this Court adopted and affirmed the PCRA court’s opinion. Disco,
2019 WL 3383892, at *2. We further recognized:
For the first time on appeal, Appellant argue[d] that the
statements in his parole records call[ed] into question all of the
parole officer's trial testimony, and Appellant [maintained he]
should receive a new trial on this basis. Because Appellant failed
to raise this argument before the PCRA court, [the prior panel of
this Court found this portion of Appellant’s argument] waived.
Id. at *2, n.2.
Most recently, on February 20, 2020, Appellant filed his third PCRA
petition, pro se, as well as a motion for the PCRA judge’s recusal.2 Appellant
claimed that he was entitled to a new trial because “[i]f Agent Roth is capable
of falsifying her report to the Parole Board, after his trial, with a corrupt motive
to cause him additional time of incarceration[, t]hen Agent Roth also had a
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2 The Honorable Shelley Robins New presided over Appellant’s trial and
subsequent PCRA petitions.
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motive to cause Appellant harm [when testifying] during his trial.” Pro Se
PCRA Petition, 2/20/2020, at 9. Appellant also claimed that Judge Robins New
knew that the statements made in his parole supervision history pertaining to
the events that transpired after the verdict were false because she was
present in the courtroom. Id. at 8. As a result, Appellant filed a complaint
against Judge Robins New with the Judicial Conduct Board. To that complaint,
Appellant attached copies of the PCRA court’s decision from January 14, 2019,
transcripts from his trial showing the events that transpired after the verdict,
and Appellant’s aforementioned parole supervision history summary. By letter
dated December 16, 2019, the Judicial Conduct Board notified Appellant that
it issued a letter of caution to Judge Robins New, closed the disciplinary
matter, and dismissed Appellant’s judicial conduct complaint. In his February
2020 PCRA petition, Appellant claims that he is entitled to collateral relief, now
relying upon the governmental interference exception to the one-year
timeliness requirement under the PCRA. To his most recent PCRA petition,
Appellant attached copies of his parole supervision report, transcripts from
trial, correspondence with Judge Robins New, and the complaint and decision
from the Judicial Conduct Board.3
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3 The letter of caution issued to Judge Robins New by the Judicial Conduct
Board is not contained in the certified record and, thus, we are unable to
review it. Appellant asserts that the Judicial Conduct Board informed him that
they were unable to provide him with a copy of the letter of caution.
Appellant’s Pro Se Reply Brief, 7/13/2021, at ¶ 3.
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On March 10, 2020, the PCRA court sent Appellant notice pursuant to
Pa.R.Crim.P. 907, indicating the PCRA petition would be dismissed as meritless
without an evidentiary hearing. The PCRA court denied relief by order entered
on July 24, 2020. This timely appeal resulted.4
On appeal pro se, Appellant presents the following issues for our review:
1. Did the PCRA court err when [it] denied Appellant’s motion for
recusal after the Judicial Conduct Board issued a letter of
caution to Judge [Robins] New, for refusing to disclose the
truth about the misconduct a witness for the Commonwealth
engaged in after Appellant’s trial?
2. Did the PCRA court err when it dismissed Appellant’s PCRA
[petition] after the court incorrectly categorized and rejected
Appellant’s claim of misconduct by a witness for the
Commonwealth as an issue of parole eligibility and having no
jurisdiction over parole matters[,] when Appellant did not raise
the issue of parole [] in his [] PCRA petition?
3. Did a witness for the Commonwealth have a corrupt motive to
cause [Appellant] harm during his trial where there is
significant evidence that this witness lied and fabricated her
report to the Parole Board about things that [] Appellant did
not do or say in the courtroom after the verdict was read during
his trial[,] which now calls into question the reliability of this
witness’s testimony and reliability of every document she
submitted from his parole file during the trial to stir the
passions of the jurors against Appellant?
Appellant’s Pro Se Brief at 2 (complete capitalization omitted).
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4 On August 20, 2020, Appellant filed a timely, pro se notice of appeal. On
September 30, 2020, the PCRA court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely on November 7, 2020. On November 10, 2020,
the PCRA court denied Appellant’s motion for recusal. On December 22, 2020,
the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).
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Appellant’s issues are inter-related, so we will address them together.
Appellant claims that he is entitled to a new trial because “Appellant’s then
Parole Agent Dana Roth, falsified her supervision history report to the Parole
Board about things [] Appellant did not do or say in the courtroom after the
verdict was read during his trial[.]” Id. at 14. Appellant claims that his parole
agent’s parole summary was “an indication of her corrupt motive to cause []
Appellant harm during his trial and Judge [Robins] New should have looked
into this matter.” Id. at 17. Appellant asserts that Judge Robins New
erroneously determined that Appellant’s PCRA claims as presented implicated
a decision pertaining to parole and properly belonged before the
Commonwealth Court. Id. at 15 and 19-20. Appellant claims that the letter
of caution to Judge Robins New showed her bias towards Appellant. Id. at
15. As such, Appellant claims that Judge Robins New, as both the trial court
and PCRA court judge, should have recused herself from this matter. Id. at
13. Appellant maintains that he is entitled to a new trial on the basis of
after-discovered evidence. Id. at 18.
We adhere to the following standard of review:
This Court's standard of review regarding an order denying a
petition under the PCRA is 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.
Pennsylvania law makes clear no court has jurisdiction to hear an
untimely PCRA petition. [Under the PCRA,] a PCRA petition,
including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment becomes final. A
judgment is deemed final at the conclusion of direct review,
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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.
There are three statutory exceptions to the timeliness provisions
in the PCRA that allow for the very limited circumstances under
which the late filing of a petition will be excused. To invoke an
exception, a petitioner must allege and prove:
(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.
We emphasize that it is the petitioner who bears the burden to
allege and prove that one of the timeliness exceptions applies.
Lastly, there is no generalized equitable exception to the
jurisdictional one-year time bar pertaining to post-conviction
petitions.
Commonwealth v. Vinson, 249 A.3d 1197, 1203–1204 (Pa. Super. 2021)
(internal citations, quotations and original brackets omitted). “Any petition
invoking an exception [] shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2),
Here, there is no dispute that Appellant’s judgment of sentence became
final on February 9, 2007, when he discontinued his direct appeal.
Accordingly, Appellant’s most recent PCRA petition filed almost thirteen years
later, on February 20, 2020, is patently untimely. Thus, Appellant was
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required to plead and prove one of the exceptions to the PCRA’s one-year
jurisdictional time-bar. In his current PCRA petition, Appellant alleged that he
was entitled to relief pursuant to the governmental interference exception to
the PCRA. See Pro Se PCRA Petition, 2/20/2021, at 4. On appeal, however,
Appellant abandons his reliance on the governmental interference exception
and, instead, argues that he was entitled to relief pursuant to the
“after-discovered evidence” exception to the PCRA.5 Appellant’s Pro Se Brief
at 18.
Initially, we note that by failing to argue and develop the applicability of
the governmental interference exception in his appellate brief, Appellant has
waived his claim. See Commonwealth v. Reid, 235 A.3d 1124, 1191 n.35
(Pa. 2020), citing Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (“where an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
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5 This Court has explained:
The timeliness exception set forth at Section 9545(b)(1)(ii) has
often mistakenly been referred to as the “after-discovered
evidence” exception. This shorthand reference [is] a misnomer,
since the plain language of subsection (b)(1)(ii) does not require
the petitioner to allege and prove a claim of after-discovered
evidence. Rather, as an initial jurisdictional threshold, Section
9545(b)(1)(ii) requires a petitioner to allege and prove that there
were facts unknown to him and that he exercised due diligence in
discovering those facts. Once jurisdiction is established, a PCRA
petitioner can present a substantive after-discovered-evidence
claim.
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).
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meaningful fashion capable of review, that claim is waived.”). Accordingly,
Appellant has waived his claim pertaining to the governmental interference
exception to the PCRA. Furthermore, “the proper question with respect to
Subsection 9545(b)(1)(i)'s timeliness exception is whether the government
interfered with [an a]ppellant's ability to present his claim and whether [he]
was duly diligent in seeking the facts on which his claims are based.”
Commonwealth v. Chimenti, 218 A.3d 963, 975 (Pa. Super. 2019) (internal
citations and quotations omitted). Here, Appellant’s claim centers on his
discovery of his parole supervision report and the impact of his parole agent’s
testimony at trial. Appellant has not demonstrated that the government, in
this case, either the parole agent or the PCRA court, interfered with his ability
to present this claim.
Additionally, “[e]xceptions to the time-bar must be pled in the [PCRA]
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
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). As such, Appellant
cannot argue, for the first time on appeal, that the unknown facts exception
to the PCRA applies instantly. Regardless, our Supreme Court has
determined:
Section 9545(b)(1)(ii) [] requires a petitioner to allege and prove
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.” 42 Pa.C.S.A. § 9545(b)(1)(ii); see also
Commonwealth v. Bennett, 930 A.2d 1264, 1270–1272 (Pa.
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2007). Any petition asserting the newly-discovered evidence
exception must be filed within one year of the date on which the
claim could have been raised. Id. § 9545(b)(2). Finally, [our
Supreme] Court has held that 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. Lopez, 249 A.3d 993, 999 (Pa. 2021). In his latest PCRA
petition, Appellant alleges that he received the parole supervision report on
December 27, 2016. See Pro Se PCRA Petition, 2/20/2021, at 5. Appellant
could have presented his current claim, that his parole supervisor presented
false testimony at trial, in his March 22, 2017 amended PCRA petition, but he
did not. See Disco, 2019 WL 3383892, at *1 n.1. Instead, Appellant waited
until February 20, 2020, almost three years later, to present this claim.
Accordingly, Appellant did not file his most recent PCRA petition within one
year of the date on which the claims could have been raised. For all of the
foregoing reasons, Appellant has failed to properly plead or prove an exception
to one-year jurisdictional time-bar to the PCRA. Hence, we discern no error
by the PCRA court in dismissing Appellant’s PCRA petition for lack of
jurisdiction.
Moreover, regarding recusal, our Supreme Court has stated:
A party that seeks recusal of a judge bears the burden to produce
evidence establishing bias, prejudice or unfairness which raises a
substantial doubt as to the jurist's ability to preside impartially.
[An appellate court] reviews a jurist's denial of a motion to recuse
for abuse of discretion. In addition, [our Supreme Court has]
concluded that, in general, it is preferable for the judge who
presided at trial to preside over any post-conviction proceedings
because his or her familiarity with the case will likely assist the
proper administration of justice.
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Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011) (internal
citations and quotations omitted). Here, we discern no abuse of discretion by
the PCRA court in denying recusal. While Appellant claimed that the PCRA
court was biased because of the dismissal of his third PCRA petition, the
petition was plainly untimely and without exception. As the PCRA court was
without jurisdiction under the PCRA to reach the merits of the collateral claims
presented, there simply is no evidence establishing PCRA court bias, prejudice,
or unfairness by dismissing this matter. Accordingly, recusal was
unwarranted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2021
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