Com. v. Burch, J.

J. S55009/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH WILLIAM BURCH, : No. 1650 WDA 2014
:
Appellant :
Appeal from the PCRA Order, September 16, 2014
in the Court of Common Pleas of Crawford County
Criminal Division at No. CP-20-CR-0000570-2008
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 06, 2015
Joseph William Burch appeals, pro se, from the order of
September 16, 2014, dismissing his third petition for relief under the Post
Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. Finding no error, we
affirm.
The relevant facts and procedural history, as
set forth by the PCRA court, are as follows.
On November 3, 2008, [Appellant]
pled guilty to Aggravated Indecent Child
Assault, 18 Pa.C.S.A. § 3125(b), after
allegedly digitally penetrating the
genitals of victim, O.C. On January 5,
2009, [Appellant] pled guilty to
Prohibited Offensive Weapons,
18 Pa.C.S.A. § 908(a), and Possession of
Drug Paraphernalia, [35] P.S. § 780-113.
[Appellant] was sentenced on February
26, 2009 to serve 120 to 240 months in
prison for the Aggravated Indecent Child
* Retired Senior Judge assigned to the Superior Court.
J. S55009/15
Assault and 14 to 60 months in prison for
the Prohibited Offensive Weapons and
Paraphernalia charges.[Footnote 1]
[Footnote 1] Appellant did
not file a direct appeal.
Subsequently, [Appellant] filed a
pro se PCRA petition alleging ineffective
assistance of counsel against
Mr. Edward J. Hatheway, Esq., a plea of
guilty unlawfully induced, and
unavailability at the time of trial of
exculpatory evidence. [Appellant]
averred that Mr. Hatheway was
ineffective for allegedly failing to discuss
with [Appellant] the negative effects of
Forensic Nurse Rhonda Henderson’s
(hereinafter “Nurse Henderson”) report
on her examination of the victim, failing
to inform [Appellant] of the option of
retaining an expert to independently
examine Nurse Henderson’s findings, and
failing to inform [Appellant] of
publications challenging Nurse
Henderson’s methods and findings in
cases similar to [Appellant’s].
[Appellant]’s PCRA [petition] was
filed on October 18, 2010, approximately
one year and eight months after
[Appellant] was sentenced on
February 26, 2009. Despite the fact that
this petition was filed outside of the
one-year period for filing a PCRA, [the
PCRA court] permitted [Appellant] to
proceed with his petition because Nurse
Henderson’s reports and examinations in
cases similar to [Appellant]’s had been
criticized.[Footnote 2] [The PCRA court]
entered an order on April 7, 2011
granting PCRA counsel, J. Wesley
Rowden, Esq., time to have Nurse
Henderson’s records, reports, and
-2-
J. S55009/15
opinions evaluated by an expert. After
granting a Motion to Continue Status
Conference on August 17, 2011, a status
conference was held on September 26,
2011 to decide the need for an
evidentiary hearing.
[Footnote 2] On October 18,
2010, upon receipt of
Appellant’s pro se petition,
J. Wesley Rowden, Esquire
(Attorney Rowden), was
appointed to represent
Appellant. Additionally,
Attorney Rowden was
granted 60 days to file an
amended PCRA petition on
behalf of Appellant.
Thereafter, on December 17,
2010, Attorney Rowden filed
Appellant’s amended PCRA
petition. On January 10,
2011, upon review of
Appellant’s amended PCRA
petition the PCRA court
determined it was
appropriate “to schedule the
argument on the question of
whether the issues raised are
time-barred and/or whether
an evidentiary hearing should
be held[.]” PCRA Court
Order, 1/10/11. Following
said argument, the PCRA
court determined Appellant’s
petition was untimely but
determined that “the one
issue that is not time-barred
to be the question of whether
there is after-discovered
evidence that may afford
[Appellant] some relief.”
PCRA Court Order, 3/15/11
at 4.
-3-
J. S55009/15
A Memorandum and Order issued
by [the PCRA court] on November 14,
2011 denied [Appellant]’s request for an
evidentiary hearing . . . . In that
Memorandum and Order, [the PCRA
court] allowed [Appellant] 20 days to
respond to the Order, and PCRA counsel
filed a Response to the Judge’s Intention
to Dismiss the PCRA on December 2,
2011. Therein, [Appellant] alleged he
could prove that he learned of the
challenges to Nurse Henderson’s
credibility on August 11, 2010 and
mailed “the required advisory to the
appropriate source,” on October 5,
201[0]. [Appellant]’s Response to
Judge’s Intention to Dismiss at ¶ 2. As a
result, [the PCRA court] scheduled an
evidentiary hearing for April 5, 2012 to
address any new issues in this case and
hear testimony regarding Mr. Hatheway’s
alleged ineffectiveness.
PCRA Court Opinion, 7/5/12, at 1-2.
Commonwealth v. Burch, No. 1198 WDA 2012, unpublished memorandum
at 1-3 (Pa.Super. filed March 8, 2013).
On July 5, 2012, following the April 5, 2012
hearing, the PCRA court denied Appellant’s PCRA
petition on the basis that it was untimely. Id. at 5.
Specifically, the PCRA court held that Appellant’s
PCRA petition was not filed until October 18, 2010,
more than 60 days after Appellant discovered the
alleged new fact on August 11, 2010. Id. at 4.
Therefore, the PCRA court determined Appellant’s
petition was patently untimely, and that it lacked
jurisdiction to address his PCRA petition. Id. On
July 31, 2012, Appellant filed a timely notice of
appeal.
-4-
J. S55009/15
Id. at 3-4 (footnote omitted). On appeal, this court affirmed, finding that
appellant’s petition was untimely filed. According to appellant’s own
testimony, he learned of the issue with Nurse Henderson’s reports on
August 11, 2010. Id. at 9. Therefore, he had until October 10, 2010,
60 days later, to file his PCRA petition. Id. As appellant did not file his
PCRA petition until October 18, 2010, he failed to meet his burden under
Section 9545(b)(1)(ii), the after-discovered facts exception to the PCRA’s
jurisdictional one-year time bar. Id. at 9-10. While appellant alleged, for
the first time on appeal, that he handed his petition to prison officials for
mailing on October 5, 2010, he provided no proof of said filing. Id. at 9-10.
Therefore, we concluded that the PCRA court correctly denied appellant’s
petition as untimely. Appellant filed a petition for allowance of appeal with
the Pennsylvania Supreme Court which was denied on August 15, 2013.
Commonwealth v. Burch, 72 A.3d 600 (Pa. 2013).
Appellant filed a second pro se PCRA petition on September 18, 2013,
which was also dismissed as untimely on October 29, 2013. (Docket #67.)
That order was not appealed. Appellant filed the instant petition, his third,
on August 5, 2014. On August 26, 2014, the PCRA court issued notice of its
intention to dismiss appellant’s petition as untimely, without an evidentiary
hearing, within 20 days pursuant to Pa.R.Crim.P., Rule 907, Pa.C.S.A.
(Docket #69.) Appellant filed a pro se response to Rule 907 notice on
September 12, 2014; and on September 16, 2014, appellant’s PCRA petition
-5-
J. S55009/15
was finally dismissed as untimely. (Memorandum and Order, 9/16/14;
docket #71.) On October 7, 2014, appellant filed a timely pro se notice of
appeal, and the PCRA court filed a Rule 1925(a) opinion, relying on its prior
memoranda and orders dated November 14, 2011, July 5, 2012, and
August 26, 2014, as the reasons for its order. Appellant was not directed to
file a Rule 1925(b) concise statement of errors complained of on appeal.
Appellant has set forth the following issues for this court’s review:
I. WAS APPELLANT’S GUILTY PLEA UNKNOWING,
INVOLUNTARY, AND THEREFORE INVALID AS
IN THAT IT WAS ENTERED AT THE ADVICE OF
COUNSEL WHO HIMSELF WAS INEFFECTIVE AS
A RESULT OF COUNSEL’S FAILURE TO
REQUEST A COMPETENCY HEARING FOR THE
JUVENILE WITNESS/VICTIM IN THIS MATTER?
II. WAS APPELLANT DENIED A FAIR TRIAL AND
DUE PROCESS OF THE LAW IN THAT THE
PROSECUTION INTRODUCED FALSE AND
PERJURED EXPERT WITNESS TESTIMONY IN
ORDER TO INDUCE APPELLANT TO ENTER A
PLEA OF GUILTY?
III. DID A MANIFEST INJUSTICE OCCUR AS A
RESULT OF THE TRIAL COURT’S FAILURE TO
HOLD THE MANDATORY COMPETENCY
HEARING FOR THE JUVENILE WITNESS/VICTIM
BEFORE ACCEPTING APPELLANT’S GUILTY
PLEA?
IV. WAS APPELLANT DENIED EFFECTIVE
ASSISTANCE OF COUNSEL IN THAT COUNSEL
FAILED TO CONDUCT AN INVESTIGATION
THAT WOULD HAVE REVEALED APPELLANT’S
HISTORY OF MENTAL HEALTH ISSUES AND
RAISED QUESTIONS AS TO APPELLANT’S
COMPETENCE TO STAND TRIAL OR ENTER A
GUILTY OF GUILTY [SIC]?
-6-
J. S55009/15
V. WAS APPELLANT ABANDON [SIC] BY COUNSEL
THAT FAILED TO FILE A DIRECT APPEAL AS
REQUESTED ON APPELLANT’S BEHALF?
VI. WAS APPELLANT DENIED EFFECTIVE
ASSISTANCE OF COUNSEL IN THAT PLEA
COUNSEL DID NOT DISCUSS WITH, OR
ADVISE APPELLANT OF THE SENTENCE
BEFORE IT WAS IMPOSED?
VII. DID THE PCRA COURT ABUSE ITS DISCRETION
AND DENY APPELLANT DUE PROCESS OF THE
LAW WHEN [THE] COURT ORDERED AN
EVIDENTIARY HEARING ON APPELLANT’S
NEWLY DISCOVERED EVIDENCE CLAIM, AND
THEN RULED APPELLANT’S PCRA PETITION TO
BE UNTIMELY FILED WITHOUT ADDRESSING
THE MERITS OF APPELLANT’S NEWLY
DISCOVERED EVIDENCE?
VII[I]. WAS APPELLANT DENIED DUE PROCESS OF
THE LAW AND EFFECTIVE ASSISTANCE OF
COUNSEL IN THAT TRIAL COUNSEL FAILED TO
ADVISE APPELLANT OF HIS RIGHT TO HAVE
AND [SIC] EXPERT WITNESS TO TESTIFY IN
HIS DEFENSE?
IX. WAS APPELLANT DENIED DUE PROCESS OF
THE LAW AND EFFECTIVE ASSISTANCE OF
COUNSEL IN THAT PCRA COUNSEL FAILED TO
OBJECT OR PRESERVE ON THE RECORD FOR
FURTHER REVIEW THE PCRA COURT’S FAILURE
TO ADDRESS APPELLANT’S NEWLY
DISCOVERED EVIDENCE CLAIM BEFORE
RULING THAT APPELLANT’S PCRA PETITION
WAS UNTIMELY FILED?
Appellant’s brief at v-vi.
The standard of review for an order denying post-
conviction relief is limited to whether the record
supports the PCRA court’s determination, and
whether that decision is free of legal error. The
-7-
J. S55009/15
PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified
record. Furthermore, a petitioner is not entitled to a
PCRA hearing as a matter of right; the PCRA court
can decline to hold a hearing if there is no genuine
issue concerning any material fact and the petitioner
is not entitled to post-conviction collateral relief, and
no purpose would be served by any further
proceedings.
Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),
appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.
Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). 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); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super.2000). 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).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for 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 petition must allege and
prove:
-8-
J. S55009/15
(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date
that the claim could have been first brought, the trial
court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Id. at 1079-1080. “To invoke an exception, the petitioner must plead it and
satisfy the burden of proof.” Commonwealth v. Geer, 936 A.2d 1075,
1077 (Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008), citing
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
“The PCRA’s time restrictions are jurisdictional in
nature. Thus, [i]f a PCRA petition is untimely,
neither this Court nor the trial court has jurisdiction
-9-
J. S55009/15
over the petition. Without jurisdiction, we simply do
not have the legal authority to address the
substantive claims.” Commonwealth v. Albrecht,
606 Pa. 64, 994 A.2d 1091, 1093 (2010) (quoting
Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
520, 522 (2006)). Statutory time limitations “are
mandatory and interpreted literally; thus, a court has
no authority to extend filing periods except as the
statute permits.” [Commonwealth v.] Fahy, 737
A.2d [214] at 222 [Pa. 1999].
Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014).
Instantly, appellant was sentenced on February 26, 2009, and did not
file a direct appeal. As a result, appellant’s judgment of sentence became
final on March 30, 2009, when the 30-day period to file a direct appeal with
this court expired. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a); Geer,
supra. Therefore, appellant had until March 30, 2010, to file a timely PCRA
petition and the instant petition, filed August 5, 2014, is manifestly untimely.
Many of appellant’s claims relate to newly discovered evidence in the
form of Nurse Henderson’s reports, which have already been litigated. As
summarized above, on appeal from the denial of appellant’s first PCRA
petition, this court affirmed the PCRA court’s order denying appellant’s
petition as untimely. We determined that appellant did not file his petition
within 60 days of discovering the information regarding Nurse Henderson’s
reports. Furthermore, in appellant’s current petition, his third, he has failed
to plead any exception to the one-year filing requirement. (Memorandum
and Order, 8/26/14 at 2.)
- 10 -
J. S55009/15
Appellant raises several claims of trial counsel ineffectiveness,
including failure to request a competency hearing for the child
victim/witness, failure to investigate appellant’s alleged history of mental
health issues, failure to advise appellant of his right to direct appeal, and
failure to consult with appellant regarding the sentence to be imposed. It is
well settled that claims of trial counsel ineffectiveness do not operate as an
independent exception to the one-year jurisdictional time bar of the PCRA.
See Gamboa-Taylor, 753 A.2d at 783 (holding a claim of ineffective
assistance of counsel does not save an otherwise untimely petition for
review on the merits); see also Commonwealth v. Breakiron, 781 A.2d
94, 97 (Pa. 2001) (allegations of ineffective assistance of counsel will not
avoid the timeliness requirement of the PCRA). Cf. Commonwealth v.
Bennett, 930 A.2d 1264 (Pa. 2007) (where appointed counsel had
abandoned the appellant by failing to file an appellate brief, resulting in
dismissal of the appeal, this allegation brought the appellant’s claim within
the ambit of Subsection 9545(b)(1)(ii)).
In his brief on appeal, appellant claims that the government
interference exception, 42 Pa.C.S.A. § 9545(b)(1)(i), applies because the
Commonwealth withheld exculpatory and impeachment evidence.
(Appellant’s brief at 21.) According to appellant, the Commonwealth knew
in July 2011 that Nurse Henderson had given false and perjured testimony in
other cases. (Id. at 21-22.) As described above, this issue concerning
- 11 -
J. S55009/15
Nurse Henderson’s expert reports was already litigated in appellant’s first
PCRA petition. Appellant attempted to invoke the after-discovered facts
exception to the one-year filing requirement, and we determined that it was
inapplicable where appellant failed to file his petition within 60 days. The
analysis is the same with regard to the government interference exception.
As appellant’s petition, his third, is patently untimely and appellant has
failed to plead and prove the applicability of any exception to the PCRA’s
time-of-filing requirements, the PCRA court lacked jurisdiction to consider
the merits of appellant’s issues and did not err in dismissing appellant’s
petition without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
- 12 -