Com. v. Frey, D.

J-S39015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DUANE LEE FREY :
:
Appellant : No. 722 MDA 2022
Appeal from the PCRA Order Entered April 14, 2022
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001293-2003,
CP-67-CR-0005052-2002
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DUANE LEE FREY :
:
Appellant : No. 723 MDA 2022
Appeal from the PCRA Order Entered April 14, 2022
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001293-2003,
CP-67-CR-0005052-2002
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 25, 2023
Duane Lee Frey appeals, pro se, from the order denying his petition for
relief filed pursuant to the Post Conviction Relief Act (“PCRA”), see 42
Pa.C.S.A. §§ 9541-9546. Because Frey’s PCRA petition is patently untimely
and fails to invoke any of the three exceptions to the PCRA’s time-bar, we
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affirm. Further, as discussed below, we deny Frey’s application seeking an
extension of time to file a reply brief.
The Commonwealth alleged that Frey bought crack cocaine from
Hopethan Johnson and later smoked it with Johnson and another man, Stacey
Farmer, at Farmer’s residence. On May 26, 2002, Johnson left his house to
meet friends for a motorcycle ride, but he was never seen again. Shortly after
Johnson left, one of Farmer’s neighbors called police to report multiple
gunshots in the area of Farmer’s house. Police later found Johnson’s
motorcycle near a building where Frey worked. After his arrest, Frey admitted
to police that he killed the victim and burned the car. Police also found Farmer
dead in his driveway after Frey’s arrest.
In April 2003, a jury convicted Frey of first-degree murder, arson,
receiving stolen property, and tampering with evidence.1 Johnson’s body had
not yet been discovered at the time of trial. The trial court sentenced Frey to
the mandatory term of life in prison. This Court affirmed Frey’s judgment of
sentence, and the Pennsylvania Supreme Court denied allowance of appeal on
December 20, 2005. See Commonwealth v. Frey, 872 A.2d 1270, 953 MDA
2003 (Pa. Super. Jan. 21, 2005) (unpublished memorandum), appeal
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1Criminal homicide had been charged separately at trial court docket No. CP-
67-CR-0005052-2002, but the cases were consolidated for trial.
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denied, 890 A.2d 1056 (Pa. 2005). Frey did not file a petition for writ of
certiorari with the United States Supreme Court.
Frey filed his first, timely PCRA petition on August 7, 2006, which the
PCRA court denied after a hearing.
In 2008, skeletal remains were found near the Susquehanna River, and
DNA testing later identified the remains as those of Johnson. Frey filed a PCRA
petition in July 2010, seeking a new trial based on this after-discovered DNA
evidence. Frey also filed a discovery request related to the petition. The PCRA
court granted Frey’s discovery request and directed the Commonwealth to
provide all requested discovery within 14 days.2 Frey filed a second motion to
compel discovery, which was also granted. Ultimately, the PCRA court
concluded the after-discovered evidence did not entitle Frey to relief under
the PCRA. This Court affirmed the denial of Frey’s PCRA petition, and our
Supreme Court denied allowance of appeal. See Commonwealth v. Frey,
135 A.3d 661, 169 MDA 2015 (Pa. Super. Filed Dec. 16, 2015) (unpublished
memorandum), appeal denied, 136 A.3d 979 (Pa. 2016).
On May 10, 2021, Frey filed a pro se “Motion to Open and Vacate
Order/Sentence Pursuant to 42 Pa.C.S.A. § 5505.” Therein, Frey generally
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2 The Commonwealth appealed the order granting Frey’s request for
discovery. This Court affirmed the PCRA court’s order. See Commonwealth
v. Frey, 41 A.3d 605 (Pa. Super. 2012). Our Supreme Court denied allowance
of appeal.
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referenced the existence of newly-discovered facts and possible Brady3
violations. The PCRA court, construing the pro se filing as a PCRA petition,
issued notice of its intention to dismiss the petition without a hearing,
pursuant to Pa.R.Crim.P. 907. Frey filed objections.
On January 6, 2022, Frey filed the instant, pro se PCRA petition
identifying several challenges to PCRA counsel’s representation. Frey also
cited Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), as a newly-
discovered fact.4 See Bradley, 261 A.3d at 401 (Pa. 2021) (holding that “a
PCRA petitioner may, after a PCRA court denies relief and after obtaining new
counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the
first opportunity to do so, even if on appeal.” (footnote omitted)). Frey later
filed an amended PCRA petition raising several more ineffective assistance of
counsel claims. On April 13, 2022, the PCRA court dismissed Frey’s petition as
untimely filed.5
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3 Brady v. Maryland, 373 U.S. 83 (1963).
4 Frey does not reference our Supreme Court’s decision in Bradley again in
his appellate brief. We nevertheless note that “judicial decisions do not
constitute new ‘facts’ for purposes of the newly-discovered [fact] exception
set forth in Section 9545(b)(1)(ii).” Commonwealth v. Kretchmar, 189
A.3d 459, 467 (Pa. Super. 2018) (citation omitted). Moreover, unlike the
instant case, Bradley involved a timely first PCRA petition.
5 Frey filed a pro se motion asking the court to join the Motion to Open and
Vacate and his PCRA petition for review. In its April 13, 2022 order, the PCRA
court denied the motion for joinder as moot because the order disposed of all
petitions before the court.
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Frey filed a timely notice of appeal at each docket number, as well as a
Pa.R.A.P. 1925(b) concise statement of issues complained of on appeal. This
Court consolidated the appeals sua sponte.
“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.” Commonwealth v. Rizvi,
166 A.3d 344, 347 (Pa. Super. 2017) (citation omitted).
Prior to reaching the merits of Frey’s claims, we must consider the
timeliness of his PCRA petition. See Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014).
Because the time limitations established by the PCRA are
jurisdictional in nature, a court lacks jurisdiction to address the
claims raised in an untimely petition. The PCRA provides that a
petition for relief must be filed within one year of the date final
judgment is entered. A judgment becomes final for purposes of
the PCRA at the conclusion of direct review or after the time
provided for seeking direct review has lapsed, if no direct review
has been taken.
Commonwealth v. Liebensperger, 904 A.2d 40, 45 (Pa. Super. 2006)
(internal citations and quotation marks omitted); 42 Pa.C.S.A. § 9545(b)(1),
(3).
Here, Frey’s judgment of sentence became final in March 2006, when
the time for filing a petition for writ of certiorari with the United States
Supreme Court. See SUP. CT. R. 13. Therefore, Frey had until March 2007 to
file a timely PCRA petition. Because Frey did not file the instant PCRA petition
until January 6, 2022, the petition is patently untimely. Accordingly, the PCRA
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court lacked jurisdiction to review Frey’s petition unless he was able to plead
and prove one of the statutory exceptions to the PCRA’s time-bar:
(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). A petitioner asserting one of these
exceptions must file a petition within one year of the date the claim first could
have been presented. See 42 Pa.C.S.A. § 9545(b)(2). “The PCRA squarely
places upon the petitioner the burden of proving an untimely petition fits
within one of the three exceptions.” Commonwealth v. Jones, 54 A.3d 14,
17 (Pa. 2012).
We will address Frey’s claims together. First, Frey claims the
Commonwealth withheld information about a plea deal offered to one of its
witnesses, Holly Strasbaugh, in exchange for her testimony. See Appellant’s
Brief at 5 (unnumbered). According to Frey, the fact of Strasbaugh’s plea deal
was not known to him because he was in prison. See id. In his second issue,
Frey argues that affidavits submitted by Jody Williams and Akashia Seiple
constitute newly-discovered facts, and the PCRA court incorrectly found that
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he could have discovered these new “facts” sooner. See id. at 6-7
(unnumbered). Additionally, Frey claims his counsel was ineffective for failing
to investigate these issues sooner. See id. at 5-7 (unnumbered). Williams,
Frey’s girlfriend and known as Jody Bair at the time of his arrest, stated in her
affidavit that the police and the assistant district attorney forced her to testify
falsely that Frey had a gun in his truck. See Appellant’s Brief, Exhibit 2.
Seiple’s written statement detailed her recollection of the layout of Farmer’s
home. See id., Exhibit 3.
In both issues, Frey attempts to invoke the newly-discovered fact
exception at 42 Pa.C.S.A. § 9545(b)(1)(ii). This exception “requires that the
facts upon which such a claim is predicated must not have been known to
appellant, nor could they have been ascertained by due diligence.”
Commonwealth v. Burton, 158 A.3d 618, 628 (Pa. 2017) (citation and
quotation marks omitted). “Due diligence demands that the petitioner take
reasonable steps to protect his own interests.” Commonwealth v. Monaco,
996 A.2d 1076, 1080 (Pa. Super. 2010).
Frey fails to establish, as is his burden, that the “facts” of Strasbaugh’s
plea agreement or the content of Williams’s and Seiple’s affidavits were
previously unknown to him and could not have been ascertained sooner
through the exercise of due diligence. As Frey acknowledges in his brief,
counsel asked Strasbaugh whether she had been offered inducement in
exchange for her testimony, and she replied in the negative. See Appellant’s
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Brief at 5. To the extent he believes Strasbaugh offered false testimony, this
“fact” should have been known to him in 2003, and he has failed to establish
he acted with due diligence to raise this issue. Further, Frey fails to establish
that he acted diligently in obtaining the statements from Williams and Seiple
sooner; instead, he reminds us that he has been in prison. See
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (“[T]he
focus of this exception is on newly discovered facts, not on a newly discovered
or newly willing source for previously known facts.” (citation and quotation
marks omitted)). As with Strasbaugh, Frey was aware of the veracity of
Williams’s testimony in 2003. Finally, while we are uncertain as to the
relevance of Seiple’s statement, we note that the significant parts of the
statement place Frey at Farmer’s house and describe the layout of the ground
floor. Even if we accept Seiple’s statement as credible, it establishes that Frey
was equally aware of the layout of Farmer’s house prior to trial.
Frey also vaguely challenges his counsel’s representation, as he did in
his pro se PCRA petition. However, Frey fails to set forth and discuss the three
requirements necessary for evaluating an ineffective assistance of counsel
claim. See Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001)
(stating that “an undeveloped argument, which fails to meaningfully discuss
and apply the standard governing the review of ineffectiveness claims, simply
does not satisfy [an a]ppellant’s burden of establishing that he is entitled to
any relief.”). Moreover, “a claim of ineffective assistance of counsel does not
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save an otherwise untimely petition for review on the merits.”
Commonwealth v. Morris, 822 A.2d 684, 698 (Pa. 2003). Therefore, Frey’s
claims do not entitle him to relief.
Frey’s PCRA petition is facially untimely, and he has failed to successfully
plead and prove any of the timeliness exceptions set forth at 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii). Accordingly, we affirm the denial of PCRA relief.6
Order affirmed. Application for Relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2023
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6 On January 3, 2023, Frey filed with this Court a pro se “Motion for Emergency
Injunctive Relief” arguing that he was never served with a copy of the
Commonwealth’s appellate brief, and therefore, he had been denied his right
to file a reply brief. We recognize appellants have a general right to file a reply
brief, but the contents of a reply brief are limited to matters raised by the
appellee that were not addressed in the appellant’s brief. See Pa.R.A.P.
2113(a) and Note. We have reviewed the Commonwealth’s brief, which raises
no new matters not previously addressed by Frey. Therefore, we deny Frey’s
application for relief.
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