Com. v. McCollister, E. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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
Appellee :
:
v. :
:
ERIC C. MCCOLLISTER, :
:
Appellant : No. 1666 EDA 2020
Appeal from the PCRA Order Entered August 18, 2020
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002043-2007
BEFORE: PANELLA, P.J., KUNSELMAN, J. and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 27, 2021
Appellant, Eric C. McCollister, appeals pro se from the order entered in
the Court of Common Pleas of Montgomery County dismissing his serial
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546, without an evidentiary hearing. After a careful review, we
affirm.
The relevant facts and procedural history have been set forth previously
by this Court as follows:
Although he was represented by several different attorneys
prior to trial, [Appellant] acted pro se at his 2008 jury trial. The
Commonwealth presented evidence that in 2006, [Appellant]
broke into the home of his former employer, beat him, poured
dishwashing liquid over him, and stole $8,000 in cash from a
dresser drawer. See Trial Court Opinion, filed October 19, 2009,
at 2. The jury convicted [Appellant] of burglary, criminal
trespass, two counts of robbery, two counts of aggravated assault,
and simple assault.
*Retired Justice specially assigned to the Superior Court.
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[Appellant] was represented by counsel at his sentencing
hearing. The Commonwealth presented evidence that [Appellant]
had twice been convicted in Delaware for burglaries of residences
where people were present. Due to the prior convictions, the
court imposed a 25-year, mandatory minimum sentence under
Pennsylvania’s “three strikes law.” See 42 Pa.C.S.A.
§ 9714(a)(2). The aggregate sentence was 40 years to life
imprisonment. [Appellant] filed a post-sentence motion and
direct appeal. This Court affirmed [Appellant’s] judgment of
sentence on August 30, 2010. See Commonwealth v.
McCollister, 11 A.3d 1042, No. 1401 EDA 2009 (Pa. Super. 2010)
(unpublished memorandum). [Appellant] did not seek review in
the Supreme Court of Pennsylvania.
[Appellant] filed a pro se PCRA petition on January 5, 2015.
The PCRA court appointed counsel, who filed an Amended Petition.
The PCRA court issued notice of its intent to dismiss the petition
based on its untimeliness. See Pa.R.A.P. 907. [Appellant] filed
a pro se response. The PCRA court thereafter appointed new
§ 9545 PCRA counsel, who filed a Second Amended Petition.
The Second Amended Petition, which included the
arguments of the Amended Petition, asserted that
[Appellant’s] petition was timely because it was filed within 60
days of the order in Commonwealth v. Armstrong, 107 A.3d
735 (Pa., filed December 30, 2014), in which the Supreme Court
held that a third-strike sentence under Section 9714(a)(2)
requires prior sentencing as a second-strike offender. Id.(adopting the reasoning set forth in Commonwealth v.
Armstrong, 74 A.3d 228, 239-42 (Pa. Super. 2013)).
The Second Amended Petition also argued that [Appellant’s]
third-strike sentence was illegal according to Alleyne v. United
States, 570 U.S. 99 (2013), which held that a trial court cannot
increase a minimum sentence based upon a preponderance of the
evidence, and that Alleyne should be applied retroactively to
cases on collateral review pursuant to Montgomery v. Lousiana,
136 S.Ct. 718 (2016). The Second Amended Petition further
argued [Appellant’s] third-strike sentence was illegal because
Section 9714(a)(2) was unconstitutionally vague, and advanced
claims of trial counsel ineffectiveness.
The court held an evidentiary hearing. At the hearing, in
addition to the claims raised in his Second Amended
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Petition, [Appellant] raised the claim that his pretrial counsel was
ineffective for failing to communicate a plea deal. [Appellant]
alleged he discovered this alleged failure during the course of the
PCRA proceedings. [Appellant] also asserted his petition was
timely due to governmental interference during the sentencing
proceedings, and that it was timely due to the decision
of Johnson v. United States, 135 S.Ct. 2551 (2015), which
struck a federal sentencing statute as unconstitutionally
vague. [Appellant] testified at the hearing, as did his pretrial
counsel and the trial prosecutor. Following the hearing, the PCRA
court dismissed the petition as untimely.
[Appellant] appealed, and filed a request to proceed pro se.
We remanded the case for the PCRA court to conduct
a Grazier hearing. Order, 9/17/18 (per curiam). The PCRA court
conducted a hearing, allowed counsel to withdraw, and appointed
standby appellate counsel. [Appellant represented] himself on
appeal.
Commonwealth v. McCollister, 225 A.3d 1190 (Pa. Super. 2019)
(unpublished memorandum at 4) (footnotes omitted). On December 30,
2019, this Court affirmed the denial of Appellant’s PCRA petition as untimely
filed. Appellant did not file a petition for allowance of appeal with our Supreme
Court.
On January 20, 2020, Appellant filed the instant pro se PCRA petition.1
Therein, Appellant argued that Kathleen Bernard, the victim in a 1987
Delaware burglary conviction that constituted one of the convictions triggering
1 The postage order/receipt accompanying Appellant’s PCRA petition indicates
that Appellant submitted his petition to prison officials on January 20, 2020,
for mailing. Accordingly, although Appellant’s pro se document was entered
on the docket on January 24, 2020, we shall deem it to have been filed on
January 20, 2020, when it was handed to prison officials. See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011)
(“Under the prisoner mailbox rule, we deem a pro se document filed on the
date it is placed in the hands of prison authorities for mailing.”).
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the imposition of the three strikes mandatory minimum sentence, was alive
at the time of Appellant’s sentencing hearing and that the Commonwealth had
misrepresented that she was no longer alive.
According to Appellant, his petition should be considered timely based
on the governmental interference and newly-discovered facts exceptions to
the PCRA’s time bar.2 He also raised an ineffective assistance of sentencing
counsel claim for failing to investigate the living status of Bernard at the time
of the sentencing hearing because Bernard would have testified that she had
invited Appellant into her home.
Appellant filed a subsequent PCRA petition,3 as well as a supplemental
PCRA petition.4 In the supplemental petition, Appellant challenged the legality
of his sentence and the validity of his waiver of trial counsel. In so doing,
Appellant contended that this Court’s prior determinations that Appellant’s
2 As discussed infra, there are three exceptions to the PCRA’s one-year time
bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
3 In this petition, Appellant raised the same issues as in the January 20, 2020
petition.
4 Supplemental petitions may only be filed with leave of court. Although the
PCRA court did not grant Appellant leave to file a supplemental petition, it
implicitly granted leave by considering it within its notice of intent to dismiss.
See Commonwealth v. Brown, 141 A.3d 491, 504 n.12 (Pa. Super. 2016)
(citations omitted) (noting that our Supreme Court “has condemned the
unauthorized filing of supplements and amendments to PCRA petitions, and
held that claims raised in such supplements” without leave of court “are
subject to waiver[,]” unless there is evidence that the “PCRA court considered
the supplemental materials prior to dismissing the petition[,]” thereby
implicitly granting leave to amend).
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sentence was legal and that his waiver of counsel colloquy was knowing and
intelligent were erroneous and would create a manifest injustice if followed.
He also argued that PCRA counsel was ineffective for failing to raise these
claims in his prior PCRA petition.
On July 22, 2020, the PCRA court provided Appellant with notice of its
intent to dismiss the petition without an evidentiary hearing on the basis his
claims were without merit. Appellant filed a response, objecting to the notice
of intent to dismiss. On August 18, 2020, the PCRA court dismissed
Appellant’s PCRA petition. This timely pro se appeal followed. All Pa.R.A.P.
1925 requirements have been sufficiently met.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions” (verbatim):
1. Did the appellant have the right pursuant to Pa.R.Crim.P. 904
to the effective assistance of counsel, that would review the
record, then brief and present all meritorious claims in
appellants first pcra?
2. Was the assistance given by appointed counsel sufficient to
satisfy Pa.R.Crim.P. 904, and Pennsylvania Supreme and
Superior Court precedents and holdings regarding counsels
duties and obligations for an appellants first pcra?
3. Was Mr. Henry Hilles, Esq. ineffective for refusing to present
and argue a coherent and comprehensive challenge to the
legality and constitutionality of 9714(a)(1), (d), and (g)
provisions as applied to appellants case?
4. Was Mr. Hilles ineffective for refusing to present and argue
sentencing and post-sentence counsels [sic] ineffectiveness for
failing to challenge the prior conviction evidence and
sentencing of appellant as a three strike violent offender?
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5. Was Mr. Hilles ineffective for refusing to argue that the original
direct appeals panel (1401 EDA 2009) overlooked, and or
misapprehended the fact that appellant was never sentenced
as a first or second strike violent offender, and the law of the
case conflicts with Supreme and Superior Court precedent and
holdings?
6. Was Mr. Hilles ineffective for failing to argue that a departure
from the law of the case was required in order to correct and
prevent a manifest injustice due to an illegal sentence of 25 to
Life without parole?
7. Was there a conflict of interest, and was the conflict prejudicial
to appellant, when Mr. Hilles, while representing appellant, was
pursuing, and then campaigned and became a Montgomery
County Court of Common Pleas Judge?
8. Was Mr. Hilles, Esq. ineffective for arguing that
Commonwealth v. Armstrong was new constitutional law?
9. Did the pcra court commit legal error and or abuse its discretion
when it denied an evidentiary hearing regarding the newly
discovered facts with regard to Mrs. Kathleen Bernard’s
availability?
10. Was the pcra court’s standard and scope of review with
regard to the newly discovered facts claim error?
11. Did the appellant have a State and Federal constitutional
right to confront Mrs. Bernard, and present any and all
mitigating and defense evidence to challenge sentencing as a
violent offender, via Mrs. Bernard’s testimony prior to and
during the sentencing process?
12. Was Mr. Henry Milles, Esq. ineffective for failing to protect
appellant’s sixth (6th) amendment rights to confront and cross-
examine Mr. Dennis Caglia, Esq. at the 11-21-16 evidentiary
hearing?
13. Did the pcra court commit legal error when it allowed Mrs.
Sharon Meisler, Esq. or Mr. Henry Hilles, Esq. to withdraw
without the court trying to resolve the issues, or order the filing
of a no-merit letter?
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14. Did the pcra court commit legal error when it refused to
address and answer #1, 2, 3, 4, 8, and 9 of appellants 1925(b)
Appellant’s Brief at 9-10.
Initially, we note the following:
On appeal from the denial of PCRA relief, our standard of review
calls for us to determine whether the ruling of the PCRA court is
supported by the record and 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. The PCRA court’s factual
determinations are entitled to deference, but its legal
determinations are subject to our plenary review.
Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (quotation
marks and quotations omitted). However, before reaching the merits of
Appellant’s claims on appeal, we must first determine whether Appellant’s
PCRA petition was timely filed as this implicates our jurisdiction.5
5 We observe that the PCRA court did not address the timeliness of Appellant’s
petition before dismissing it. In the PCRA context, statutory jurisdiction
cannot be conferred by silence, agreement, or neglect. See Commonwealth
v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000). Further:
The PCRA provides the sole means for obtaining collateral review
of a judgment of sentence. [A] court may entertain a challenge
to the legality of the sentence so long as the court has jurisdiction
to hear the claim. In the PCRA context, jurisdiction is tied to the
filing of a timely PCRA petition. Although legality of sentence is
always subject to review within the PCRA, claims must still first
satisfy the PCRA’s time limits or one of the exceptions thereto.
Thus, a collateral claim regarding the legality of a sentence can be
lost for failure to raise it in a timely manner under the PCRA.
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal
citations omitted). Thus, we address this issue sua sponte. See
Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 587 (1999) (“Because
the timeliness implicates our jurisdiction, we may consider the matter sua
sponte.”) (citation omitted).
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Pennsylvania law makes clear no court has jurisdiction to hear
an untimely PCRA petition. The most recent amendments to
the PCRA, effective January 16, 1996, provide a PCRA petition,
including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)
(citations omitted).
[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. 42 Pa.C.S.A.
§ 9545(b)(1). 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.
Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)).
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Any petition invoking a timeliness exception must be filed within one
year of the date the claim could have been presented. 6 42 Pa.C.S.A.
§ 9545(b)(2). “We emphasize that it is the petitioner who bears the burden
to allege and prove that one of the timeliness exceptions
applies.” Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719
(2008) (citation omitted).
In the case sub judice, as this Court has previously held, Appellant’s
judgment of sentence became final on September 29, 2010, upon “expiration
of the time to seek review in the Pennsylvania Supreme Court[.]”
McCollister, 225 A.3d 1190 (unpublished memorandum at 5). Appellant filed
the instant PCRA petition on January 20, 2020, and therefore, it is patently
untimely.
In his PCRA petition, Appellant invoked the governmental interference
and newly-discovered facts exceptions based upon his learning in 2019 that
Bernard was alive at the time of his December 29, 2008, sentencing hearing.
Appellant argued that, during the sentencing hearing, he allegedly asked
6 42 Pa.C.S.A. § 9545(b)(2) previously provided that a petition invoking a
timeliness exception was required to be filed within sixty days of the date the
claim could first have been presented. However, effective December 24,
2018, the legislature amended Subsection 9545(b)(2) to read: “Any petition
invoking an exception provided in paragraph (1) shall be filed within one year
of the date the claim could have been presented.” See 42 Pa.C.S.A.
§ 9545(b)(2) (effective December 24, 2018). The amendment to Subsection
9545(b)(2) only applies to “claims arising on [December] 24, 2017, or
thereafter.” See id., cmt. Appellant filed the instant PCRA petition on January
20, 2020.
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defense counsel to call Bernard as a witness regarding the 1987 incident
because she would testify that she had invited Appellant and another
individual into her home and it was the other individual who had stolen an
item from Bernard’s home. Appellant argues that such testimony would have
removed the 1987 incident as a prior strike.
According to Appellant, the Assistant District Attorney (“ADA”) told the
sentencing court that Bernard was not alive, and defense counsel purportedly
responded off-the-record to Appellant’s request that “[i]t did not matter
because the witnesses were dead.” Pro se PCRA Petition Memorandum in
Support, 1/20/2020, at 2-3.
As to the governmental interference exception, Appellant argued that
he “was prevented from examining a material witness with mitigating
evidence that would have prevented sentencing as a three-strike offender.”
Id. at 3.
As to the newly-discovered facts exception, Appellant argued that the
date of Bernard’s death was an unknown fact, and he had attempted to obtain
information relating to his prior convictions since 2010. Id. at 4. Appellant
contended that he timely invoked these exceptions because he was unaware
that Bernard was alive at the time of his sentencing hearing until he received
a message from Pastor Margaret Guy on February 13, 2019, which included
Bernard’s obituary stating that she passed away on May 30, 2009,
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approximately five months after Appellant’s sentencing hearing. Pro se PCRA
Petition Memorandum in Support, 1/20/2020, at 3, Exhibits A, A1.
By way of background, at Appellant’s sentencing hearing, the
Commonwealth presented the testimony of the arresting officers in two prior
burglary cases, which formed the basis of Appellant’s two prior strikes for
purposes of imposing the three strikes mandatory minimum sentence.
Regarding the 1987 burglary at Bernard’s home in Delaware, the
Commonwealth called Philip Freccia, who investigated the incident and
arrested Appellant. The sentencing court inquired as to whether Bernard was
still alive, and the following exchange occurred.
[ADA]: They are not alive, to the best of my knowledge,
Your Honor. I did not confirm with a death
certificate, but at this point it would be
extremely unlikely that they would be alive.
THE COURT: How old would she be?
[FRECCIA]: Ninety something probably.
[ADA]: Nine-nine or 102. I believe 102.
N.T., 12/29/2008, at 13. In further support of this first strike, the
Commonwealth submitted a certified copy of the conviction. See id. at 18.
During his allocution, Appellant stated in pertinent part as follows.
I don’t even know about those charges that those cops was [sic]
talking about. I was young. I don’t remember what that was
about. I don’t even understand none of that. I do know that when
I was young that I did some burglaries that were businesses and
I remember that. But I don’t remember, you know, no old ladies
and none of that kind of stuff.
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Id. at 25-26.
We first consider whether Appellant has pleaded and proved the
governmental interference exception.
In order to establish the governmental interference exception, a
petitioner must plead and prove (1) the failure to previously raise
the claim was the result of interference by government officials
and (2) the petitioner could not have obtained the information
earlier with the exercise of due diligence. Commonwealth v.
Abu-Jamal, 596 Pa. 219, 941 A.2d 1263, 1268 (2008). In other
words, a petitioner is required to show that but for the interference
of a government actor “he could not have filed his claim earlier.”
Commonwealth v. Stokes, 598 Pa. 574, 959 A.2d 306, 310
(2008).
Commonwealth v. Vinson, 249 A.3d 1197, 1205 (Pa. Super. 2021).
At Appellant’s sentencing hearing, the Commonwealth told the court
that it believed Bernard had passed away given that she would have been at
least in her nineties at that point, but noted that it had not confirmed whether
she was living or dead. The Commonwealth’s response to Appellant’s
statement, “But, I don’t remember, you know, no old ladies and none of that
kind of stuff” as to Bernard’s living status did not interfere with Appellant’s
ability to call her as a witness at that hearing. Consequently, Appellant has
failed to plead and prove his entitlement to the governmental interference
timeliness exception under Subsection 9545(b)(1)(i).
We next consider Appellant’s invocation of the newly-discovered facts
exception. “The timeliness exception set forth in [Subsection] 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts upon which he
based his petition and could not have learned those facts earlier by the
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exercise of due diligence.” Commonwealth v. Brown, 111 A.3d 171, 176
(Pa. Super. 2015). With regard to due diligence, we are guided by the
following: “Due diligence demands that the petitioner take reasonable steps
to protect his own interests. A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence. This rule is
strictly enforced.” Id. (citations omitted).
In the case sub judice, we conclude Appellant has failed to demonstrate
the necessary due diligence to invoke the newly-discovered facts exception.
Appellant alleged in his petition that he did not learn of Bernard’s date of death
until he was mailed her obituary in February 2019. He argues that he
established due diligence because despite searching for information on his
prior strike convictions since 2010, the law library staff had not provided him
certain information available online per their internal policy.
However, Appellant did not explain how Pastor Guy was able to locate
this information or why it took Appellant nearly ten years to discover Bernard’s
date of death. Consequently, Appellant has failed to plead and prove his
entitlement to the newly-discovered facts timeliness exception under
Subsection 9545(b)(1)(ii).
Finally, Appellant argues that this Court granted him permission to file
the instant petition. See Pro se PCRA Petition Memorandum in Support,
1/20/2020, at 2. Specifically, Appellant relies on our decision to “decline
review of [his premature ineffective assistance of PCRA counsel] claims,
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without prejudice to [Appellant] to raise them in a subsequent, timely PCRA
petition.” McCollister, 225 A.3d 1190 (unpublished memorandum at 10).7
Appellant has misconstrued this Court’s holding, which did not remand
for Appellant to file a PCRA petition raising those claims. Rather, this Court
merely stated the law: that the proper method for Appellant to present these
claims would be in a subsequent, timely PCRA petition.
[O]ur Supreme Court has made it clear that “there is no statutory
exception to the PCRA time-bar applicable to claims alleging the
ineffectiveness of post-conviction counsel.” Commonwealth v.
Robinson, 635 Pa. 592, 139 A.3d 178, 186 (2016). Additionally,
the Robinson Court clarified that it “has never suggested that the
right to effective PCRA counsel can be enforced via an untimely
filed PCRA petition.” Id.Commonwealth v. Laird, 201 A.3d 160, 163 (Pa. Super. 2018).8
7 By way of background, the PCRA court did not file a notice of intent to dismiss
Appellant’s first PCRA petition because it held a hearing. Thus, Appellant was
unable to raise his ineffective assistance of PCRA counsel claims before the
PCRA court and was precluded from doing so for the first time on appeal.
McCollister, 225 A.3d 1190 (unpublished memorandum at 10).
8 Under limited circumstances, a petitioner may plead the newly-discovered
facts exception based upon PCRA counsel’s ineffectiveness. See
Commonwealth v. Petersen, 648 Pa. 313, 192 A.3d 1123, 1130 (2018)
(holding that PCRA counsel’s ineffectiveness may constitute a newly-
discovered fact for purposes of Subsection 9545(b)(1)(ii)’s timeliness
exception “where PCRA counsel’s ineffectiveness per se completely forecloses
review of collateral claims”). In the case sub judice, while Appellant raised
substantive claims of PCRA counsel’s ineffectiveness, he did not base his
invocation of the newly-discovered facts exception on PCRA counsel’s
ineffectiveness. “[A]lthough this Court is willing to construe liberally materials
filed by a pro se litigant, pro se status generally confers no special benefit
upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa.
Super. 2003) (citation omitted). Because Appellant did not plead and prove
the newly-discovered facts exception based on PCRA counsel’s ineffectiveness
(Footnote Continued Next Page)
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Although Appellant’s first opportunity to raise claims challenging the
ineffectiveness of his prior PCRA counsel was in the present petition, we affirm
the dismissal of Appellant’s serial petition because it was untimely filed.9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2021
in his PCRA petition, he has not demonstrated that he is entitled to Subsection
9545(b)(1)(ii)’s timeliness exception on this basis.
9 We may affirm the decision of the PCRA court if there is any basis in the
record to support its action. See Commonwealth v. Wiley, 966 A.2d 1153,
1157 (Pa. Super. 2009).
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