Com. v. Piazza, P.

J-S33039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PRESTON JOSEPH PIAZZA :
:
Appellant : No. 1055 EDA 2021
Appeal from the PCRA Order Entered May 3, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0006421-2010
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 19, 2022
Preston Joseph Piazza appeals from the order dismissing as untimely his
Post Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
The subject PCRA petition relates to Piazza’s convictions in 2011 for
Intimidation of a Victim, Criminal Solicitation of Aggravated Assault, and
Retaliation against a Witness or Victim.1 Previously, in November 2004, a jury
convicted Piazza of Rape and related offenses. The victim of those crimes was
C.S. One of the witnesses against Piazza in 2004 was Anthony Lehman. The
court sentenced Piazza to 15 to 30 years’ incarceration and ordered him not
to have any contact with C.S. Later, while in prison on that conviction, Piazza
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1 18 Pa.C.S.A. §§ 4952(a)(2), 902(a), and 4953(a), respectively.
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pleaded guilty to stalking C.S. and the court sentenced him to an additional
five years’ probation.
In 2010, the Commonwealth charged Piazza in connection with the case
at issue in this appeal. The victim intimidation charge was as to C.S., and the
solicitation of aggravated assault was as to Lehman.2 At trial, the prosecution
presented the testimony of Mary Quinn that Piazza wanted her to find C.S.
and “get [C.S.] to say that she lied about being raped.” N.T., 4/7/11, at 36.
Quinn said that Piazza wanted her to “try to meet [C.S.], be friends with her,
get her to recant, get her to say that she was coerced by the police.” Id. at
37. Quinn testified she was to attend a beef and beer that C.S. also was
attending and while there, “give [C.S.] a fistful of Xanax and then convince
her to go for a boat ride.” Id. at 87. While on the boat, Quinn “would convince
C.S. to say that [Piazza] never raped her and to recant the statements from
the original trial.” Id. At the same beef and beer, Piazza’s friend Sean Barley,
known as “Shabba,” with whom Quinn had communicated, was going to beat
up Lehman. Id. at 88-90. Quinn took some but not all of the steps Piazza
requested.
On cross-examination, defense counsel asked Quinn if she had been
charged in connection with her actions, and she responded, “Not as of yet.”
Id. 127. She further answered that she had not been told that if she did not
testify in a certain way she would be charged and that she no one threatened
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2 18 Pa.C.S.A. §§ 4952(a)(2), 902(a), and 4953(a), respectively.
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her to testify. Id. She testified that the Commonwealth had not told her that
she potentially could be charged and that she had not asked whether she was
“free and clear.” Id. at 128.
At the trial, the jury also heard testimony from police officers and from
Barley. Barley testified that he understood that Piazza wanted him to beat up
Lehman. Id. at 149-53. The jury received additional evidence of the plot,
including recordings of phone calls between Quinn and Piazza.
During closing arguments, the assistant district attorney stated:
Now, let’s talk about the tough call we had to make in not
charging Mary Quinn and Sean Barley. And maybe that
frustrates you, and that is understandable. In this job
sometimes you have to make tough calls and not everybody
is going to like them. But to get to the main focus and the
real threat -- and you have to get to the main threat -- that
was Preston Piazza. Sometimes you have to forgo the
smaller players in a scheme to get the main threat. And a
colleague shared this saying with me and it is used in this
line of business often, crimes conceived in hell do not have
angels for witnesses.
N.T., 4/8/11, at 97-98
The jury found Piazza guilty and the court sentenced Piazza to 23½ to
47 years’ incarceration. This Court affirmed the conviction in July 2013, and
Piazza did not file a petition for allowance of appeal.
Piazza filed a pro se PCRA petition in August 2018. The court appointed
counsel. Counsel filed a motion for an extension of time and a request to allow
Piazza to proceed pro se. The PCRA court held a Grazier3 hearing, after which
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3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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it found Piazza knowingly, voluntarily, and intelligently waived his right to
counsel and granted his request to proceed pro se. The court granted Piazza
additional time to review discovery and file an amended petition. Piazza filed
a motion in which he stated he was not going to amend the petition.
The PCRA court issued an order finding the petition was not filed within
one year of the date of judgment and Piazza failed to plead an exception to
the one-year filing requirement. It granted Piazza 60 days to file an amended
petition identifying an exception to the one-year filing requirement.
Piazza amended his petition to allege that Quinn had received a deal
from the Commonwealth in exchange for her testimony and the
Commonwealth had not informed him of the deal. He maintained he learned
of this alleged deal in July 2018. See Petition for Leave of Court to File this
Supplement Filing in Support of the Pending PCRA Petition, filed Sept. 12,
2019.
At a PCRA hearing, Piazza testified that in July 2018 he received a letter
from his brother4 that informed him that Mary Quinn told him that “she
received leniency to testify against Piazza” and was told that “[s]he would not
be prosecuted for anything.” N.T., 5/22/2020, at 25, 27. The court adjourned
the hearing to provide Piazza 10 days to find the letter. When the court
reconvened, Piazza advised that he no longer possessed the letter. Piazza
claimed that prison personnel removed letters received due to concerns they
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4 His brother passed away before the hearing.
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were tainted with a drug. N.T., 6/4/2020, at 13-15.5 The court heard
argument on the time bar exception, including whether the PCRA court should
appoint counsel to subpoena Quinn, as Piazza was prohibited from contacting
her. The PCRA court informed Piazza that if it “agreed that [Quinn’s] testimony
[was] necessary for [it] to decide the jurisdiction issue, then [it would] appoint
an attorney to assist” in locating and interviewing her. Id. at 48. However, if
it concluded her testimony as not necessary to determine jurisdiction, it would
enter an order denying the petition. Id. at 48-49.
After the parties filed additional briefs, the court issued notice of its
intent to dismiss the petition as untimely and, in May 2021, it dismissed the
petition. Piazza timely appealed. The court did not order Piazza to file a
statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Piazza raises the following issues:
1. Did the [PCRA] court abuse its discretion when it
dismissed the new evidence PCRA petition as being untimely
filed and not meeting the exception set forth to the time-
bar in 42 Pa.C.S.A. § 9545(b)(1)(ii)[] and (b)(2)[?]
2. Did the Brady v. Maryland[6] violation require a new
trial?
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5 After discovering that letters received by prisoners contained traces of a
drug, the prison started sending mail to a facility in Florida that would
reproduce the mail and return it. Piazza testified that his brother’s letter came
before this procedure was initiated, but after concerns about tainted mail.
N.T., 6/4/20, at 13-15.
6 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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3. Does Commonwealth v. Strong[7] apply to this case?
Piazza’s Br. at 4 (emphasis and unnecessary capitalization omitted).
“When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court’s order is supported by the record and free of legal
error.” Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020).
(quoting Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa.Super. 2018)).
A PCRA petitioner must file a PCRA petition within one year of the date
the judgment of sentence becomes final unless at least one of the statutory
exceptions to the one-year rule applies. See 42 Pa.C.S.A. § 9545(b). 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.A. § 9545(b)(3).
In this case, Piazza’s judgment of sentence became final in August 2013,
after the expiration of the time for Piazza to file a petition for allowance of
appeal with the Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a)
(providing for filing of a petition for allowance of appeal “within 30 days after
the entry of the order of the Superior Court . . . sought to be reviewed.”).
Therefore, the one-year deadline expired in August 2014, and the instant
petition, filed in 2018, is untimely.
A court lacks jurisdiction to review any claim raised in an untimely PCRA
petition unless the petitioner pleads and proves an exception to the time-bar.
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7 Commonwealth v. Strong, 761 A.2d 1167 (Pa. 2000).
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Commonwealth v. Jackson, 30 A.3d 516, 521-22 (Pa.Super. 2011). A
petitioner bears the burden of pleading and proving the applicability of one of
the time-bar exceptions: (i) unconstitutional interference by government
officials; (ii) new facts that the petitioner could not have previously
ascertained with due diligence; or (iii) a newly recognized constitutional right
that has been held to apply retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-
(iii).
Piazza argues that he established the new fact exception to the PCRA
time-bar. He cites his claim that Quinn told his brother that she testified
against Piazza “in exchange for a promise she would not be arrested or
charged with any offense related to the case.” Piazza’s Br. at 10. Piazza claims
Quinn told his brother this information in July 2018 and Piazza learned of it
from a letter received from his brother. He states Quinn was the
Commonwealth’s “star” witness, and it suppressed the leniency promise and
did not reveal it to Piazza. Id. at 7. He contends the court should have issued
a subpoena to have Quinn testify as to the alleged promise.
To qualify for the new fact exception, “a petitioner need only establish
that the facts upon which the claim is based were unknown to him and could
not have been ascertained by the exercise of due diligence.” Commonwealth
v. Burton, 158 A.3d 618, 629 (Pa. 2017).
Here, the PCRA court noted that at trial, Quinn testified that she had not
been charged with a crime and had not been told that she would be charged
if she did not testify in a certain way. Trial Court Op., at 8-9 (citing N.T.,
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4/7/11, at 126-27). She testified that the Commonwealth did not tell her she
was potentially facing charges related to the case and she had not asked
whether she was “free and clear.” Id. (citing N.T., 4/7/11, at 126-27). It
further noted the Commonwealth’s closing argument, including its
acknowledgement that Quinn had not been charged in the case. Id. (citing
N.T., 4/8/11, at 97-98). The PCRA court concluded that because Piazza “was
aware at the time of trial that Ms. Quinn had not been charged and that the
Commonwealth had made the decision not to charge her, he cannot establish
that the fact upon which his Brady claim is predicated, i.e., the decision not
to charge Ms. Quinn, was ‘unknown to [him] and could not have been
ascertained by the exercise of due diligence.’” Id. at 9. The court therefore
found Piazza failed to prove a time-bar exception and it lacked jurisdiction to
review his claim.
The record supports the trial court’s findings of fact, and it did not err
as a matter of law. Here, Piazza knew at least by the time of trial that Quinn
had not been charged in connection with the crimes and that the
Commonwealth did not plan to charge her. To the extent Piazza claims the
new fact is that the decision not to charge Quinn was in exchange for Quinn’s
testimony—which is contrary to Quinn’s trial testimony—Piazza did not prove
that Quinn testified in exchange for leniency. He testified as to the information
Quinn allegedly told his brother but was unable to produce the letter. Further,
even if the court appointed counsel to subpoena Quinn, and Quinn testified as
Piazza claims she would, that is, that the Commonwealth told her it would not
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charge her if she testified against Piazza, he would not prevail. Although this
may qualify for an exception to the time bar, in that it was a new fact that he
could not have discovered with reasonable diligence, the underlying after-
discovered evidence claim would fail.8 See Commonwealth v. Lambert, 884
A.2d 848, 852 (Pa. 2005). Quinn testifying that the Commonwealth told her
she would not be charged in exchange for her testimony would not have
altered the outcome, where the jury knew she was not charged and knew the
Commonwealth was not going to charge her and the other evidence admitted
at trial established Piazza’s guilt. Here, in addition to Quinn’s testimony, the
jury heard substantial evidence of his guilt, including, among other things,
testimony from the person Piazza solicited to assault Lehman, testimony from
police officers, and recordings of phone calls between Quinn and Piazza. See
Commonwealth v. Bomar, 104 A.3d 1179, 1192-93 (Pa. 2014) (concluding
petitioner failed to prove prejudice from Brady violation where witness was
extensively cross-examined, a cautionary instruction was provided, and
substantial other physical and circumstantial evidence established his guilt).
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8 To prove a Brady violation, the petition must establish “the evidence was
favorable to the accused, either because it is exculpatory or because it
impeaches; the evidence was suppressed by the prosecution, either willfully
or inadvertently; and prejudice ensued.” Commonwealth v. Lambert, 884
A.2d 848, 854 (Pa. 2005) (quoting Commonwealth v. Burke, 781 A.2d
1136, 1141 (Pa. 2001)). “To show prejudice, [the petitioner] must
demonstrate a ‘reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.’”
Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013) (quoting
Commonwealth v. Clark, 961 A.2d 80, 89 (Pa. 2008)).
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Order affirmed.
Judge Bowes joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2022
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