Com. v. Brunson, D.

J-S74026-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DWAYNE BRUNSON, :
:
Appellant : No. 838 EDA 2014
Appeal from the PCRA Order July 1, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0134421-1987
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 24, 2014
Dwayne Brunson (“Brunson”) appeals from the July 1, 2013 order of
court dismissing his petition for writ of habeas corpus, which the lower court
treated as a petition filed pursuant to the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). Upon review, we affirm.
The relevant history may be summarized briefly as follows. In 1989,
Brunson was convicted of first-degree murder, aggravated assault, and
conspiracy. On direct appeal, this Court arrested judgment with regard to
the conspiracy conviction but affirmed the murder and aggravated assault
convictions.1 The Pennsylvania Supreme Court denied Brunson’s petition for
allowance of appeal.
1
On direct appeal Brunson challenged the sufficiency of the evidence as to
all three of his convictions. This Court concluded that the evidence was
*Retired Senior Judge assigned to the Superior Court.
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In 1993, Brunson filed his first PCRA petition. Following a hearing, the
PCRA court dismissed that petition in 1999. This Court affirmed the PCRA
court’s ruling on appeal, and the Pennsylvania Supreme Court again denied
Bruson’s petition for allowance of appeal. Brunson then unsuccessfully
sought relief by means of a federal writ of habeas corpus. On December 18,
2012, Brunson filed the petition at issue in the present appeal, which he
styled as a petition for writ of habeas corpus. The lower court elected to
treat Brunson’s petition as a PCRA petition, determined that it was untimely,
and issued notice of its intent to dismiss pursuant to Pa.R.Crim.P. 907.
Brunson filed a response to this notice, objecting to the treatment of his
petition as a PCRA petition. The lower court dismissed the petition on July 1,
2013. This timely appeal followed.
Brunson presents five separate issues on appeal, but they all address
one concern: whether the trial court erred in treating his writ of habeas
corpus as an untimely PCRA petition. Brunson’s Brief at 4. As we consider
the merits of this claim, we note that this Court's standard of review is
limited to determining whether the PCRA court’s determination is supported
by the evidence of record and is free of legal error. Commonwealth v.
Walls, 993 A.2d 289, 294-95 (Pa. Super. 2010) (internal citation omitted).
sufficient to support the murder and aggravated assault convictions, but
insufficient to support the conspiracy conviction.
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As noted above, Brunson argues that his claims are properly raised in
a petition for writ of habeas corpus and consequently that the lower court
erred by treating it as a PCRA petition and subsequently dismissing it upon
finding that it was untimely filed. See Brunson’s Brief at 17-28. In his
petition for writ of habeas corpus, Brunson alleged that his substantive and
procedural due process rights were violated because the Commonwealth
failed to establish the mens rea and actus reus required for a first-degree
murder conviction, and therefore that the trial was “fundamentally unfair
and amount[ed] to a manifest injustice.” Petition for Writ of Habeas Corpus,
12/18/12, at 3. He further argued that his due process rights were violated
when this Court failed to vacate the first-degree murder conviction when we
found that the conspiracy conviction was improper. Id.Brunson is correct in that the writ of habeas corpus continues to exist
separate and apart from the PCRA; however, “both the PCRA and the state
habeas corpus statute contemplate that the PCRA subsumes the writ of
habeas corpus in circumstances where the PCRA provides a remedy for the
claim.” Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008)
(citation omitted). Section 9543 of the PCRA addresses eligibility for relief
under its provisions. It provides, in relevant part, as follows:
§ 9543. Eligibility for relief
(a) General rule.--To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
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***
(2) That the conviction or sentence resulted from
one or more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or laws of the
United States which, in the circumstances of the
particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or
innocence could have taken place.
(ii) Ineffective assistance of counsel which, in
the circumstances of the particular case, so
undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have
taken place.
(iii) A plea of guilty unlawfully induced where
the circumstances make it likely that the inducement
caused the petitioner to plead guilty and the
petitioner is innocent.
(iv) The improper obstruction by government
officials of the petitioner's right of appeal where a
meritorious appealable issue existed and was
properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of
exculpatory evidence that has subsequently become
available and would have changed the outcome of
the trial if it had been introduced.
(vii) The imposition of a sentence greater than
the lawful maximum.
(viii) A proceeding in a tribunal without
jurisdiction.
42 Pa.C.S.A. § 9543(a)(2).
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Brunson argues that his claims of due process violations do not
implicate the truth-determining process underlying his convictions, and
therefore do not fall under the scope of the PCRA. Brunson’s Brief at 23-24.
However, our Supreme Court has called for an expansive, not restrictive,
application of these PCRA’s eligibility requirements, such that there need not
be a strict adherence to the “truth determining process” language upon
which Brunson relies:
[W]e have held that the scope of the PCRA eligibility
requirements should not be narrowly confined to its
specifically enumerated areas of review.
Commonwealth v. Judge, [] 916 A.2d 511, 520
([Pa.] 2007). Such narrow construction would be
inconsistent with the legislative intent to channel
post-conviction claims into the PCRA's framework,
id., and would instead create a bifurcated system of
post-conviction review where some post-conviction
claims are cognizable under the PCRA while others
are not. Commonwealth v. Lantzy, [] 736 A.2d
564, 569–70 ([Pa.] 1999).
Instead, this Court has broadly interpreted the
PCRA eligibility requirements as including within its
ambit claims such as this one, regardless of the
‘truth-determining process’ language … from Section
9543(a)(2)(i). See Commonwealth v. Liebel, []
825 A.2d 630 ([Pa.] 2003) (holding that claim
challenging counsel's effectiveness for failing to file a
petition for allowance of appeal is cognizable under
PCRA); Commonwealth ex. rel. Dadario v.
Goldberg, [] 773 A.2d 126 ([Pa.] 2001) (holding
that claim alleging counsel's ineffectiveness during
the plea bargaining process is cognizable under the
PCRA); Commonwealth v. Chester, [] 733 A.2d
1242 ([Pa.] 1999) (holding that claim alleging
ineffective assistance of counsel during penalty
phase of capital case is cognizable under the PCRA);
Commonwealth v. Lantzy, supra, (holding that
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claim alleging ineffective assistance of counsel for
failing to file an appeal is cognizable under the
PCRA).
Hackett, 956 A.2d at 986.
In Hackett, our Supreme Court considered whether the constitutional
violation at issue in a Batson2 claim is cognizable under the PCRA. Much
like Brunson in the present appeal, Hackett argued that a Batson claim is
not alleging “a constitutional violation that ‘so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.’” Id. at 985. Hackett maintained “that the injury against
which Batson protects is the equal protection right of venirepersons not to
be discriminated against,” which he then argued “is unrelated to the
reliability of the verdict rendered.” Id. The Supreme Court rejected this
argument, concluding that a claim that there was a constitutional violation
with regard to the selection of the jury implicates the validity of the
conviction:
We find that [Hackett’s] Batson claim, which
essentially attacks his underlying murder conviction,
is akin to the aforementioned claims which have
been held to be within the ambit of the PCRA and is
unlike those unique claims which fall outside the
PCRA's statutory scheme. See Commonwealth v.
West, [] 938 A.2d 1034 ([Pa.] 2007) (holding that
substantive due process challenge to continued
validity of defendant's judgment of sentence after a
2
A Batson claim alleges that the Commonwealth engaged in purposeful
discrimination in the selection of jury members, in violation of Batson v.
Kentucky, 476 U.S. 79 (1986).
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nine-year delay is not cognizable under the PCRA);
Commonwealth v. Judge, supra, (holding that
allegation that Canada violated appellant's rights
under the International Covenant for Civil and
Political Rights is not cognizable under the PCRA). As
the PCRA provides a remedy on a Batson claim,
Appellee is not entitled to seek habeas corpus relief.
Id. at 986.
As the Supreme Court did in Hackett, we conclude that at their heart,
Brunson’s claims challenge his murder conviction as wrongful, as they are
premised on his fundamental assertion that the evidence was insufficient to
support his first-degree murder conviction. Stated another way, Brunson’s
claims sound in wrongful conviction, which the PCRA is intended to address.
Commonwealth v. Burkett, 5 A.3d 1260, 1275 (Pa. Super. 2010) (“PCRA
review is limited to defendants who claim that they were wrongfully
convicted and/or are serving an illegal sentence.”). Accordingly, because
Brunson’s claims challenge the validity of his murder conviction, and in light
of the expansive view we must take with regard to the PCRA’s eligibility
requirements, see Hackett, 956 A.2d at 986, we conclude that they are
cognizable under the PCRA.
In support of his position, Brunson cites to both the Judge and West
decisions referenced by our Supreme Court in Hackett. In both of those
cases, the claims raised by the petitioners were found to be beyond the
scope of the PCRA and cognizable as habeas corpus claims. Both of those
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cases are distinguishable, however, in that the claims raised therein cannot
be construed as challenges to the underlying convictions or sentences.
In Judge, the petitioner had been convicted of first-degree murder
and sentenced to death when he escaped from custody and fled to Canada.
Commonwealth v. Judge, 916 A.2d 511, 513 (Pa. 2007). While in Canada,
Judge was convicted of two offenses and sentenced to two concurrent ten-
year terms of imprisonment. Despite having Judge in custody, Canada
refused to extradite him to the United States, citing an extradition treaty
between the two nations that provides that Canada will not extradite a
person to the United States to face the death penalty. Id. Instead, Canada
required Judge to serve his Canadian sentence, and then deported him to
New York.
Judge was subsequently extradited to Pennsylvania. Once in custody in
Pennsylvania, Judge continued to fight his sentence through proceedings
before the United Nations Human Rights Committee, alleging that Canada
had violated his rights under the International Covenant for Civil and Political
Rights (the “ICCPR”). This ultimately resulted in a finding by the Committee
that Canada had violated Judge’s rights under the ICCPR. Following this
decision, Judge filed a petition in the trial court “asserting jurisdiction under
either the PCRA or the statutory and constitutional right to habeas corpus
relief and arguing that Canada's asserted violation of his human rights under
the ICCPR requires that his sentence be reduced to life imprisonment or that
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he be returned to Canada to be deported or extradited in compliance with
the Committee's ruling.” Id. at 517. The trial court assumed that the
claims were cognizable under the PCRA and denied Judge relief.
On review, the Supreme Court considered whether Judge’s claims
regarding Canada’s alleged violation of his rights were cognizable under the
PCRA, and concluded that they were not:
[T]he boundaries of cognizable claims under the
PCRA can only be extended so far as is consistent
with the purposes of the statute, and we believe that
Appellant's claim concerning his deportation from
Canada to face a death sentence falls outside the
intended scope of the PCRA. See 42 Pa.C.S. § 9542
(“This subchapter provides for an action by which
persons convicted of crimes they did not commit and
persons serving illegal sentences may obtain
collateral relief.”); [Commonwealth v.] Peterkin,
[] 722 A.2d [638,] 643 (“The purpose of the law is
not to provide convicted criminals with the means to
escape well-deserved sanctions, but to provide a
reasonable opportunity for those who have been
wrongfully convicted to demonstrate the injustice of
their conviction.”). Appellant is not asserting his
innocence of the underlying crimes or that his
sentence was illegal when imposed; his claim is that
executing him would violate international law
because the Committee found that Canada violated
his rights under the ICCPR by deporting him to face
a sentence of death without obtaining assurances
that the sentence would not be imposed.
Id. at 520.
The basis of Judge’s claim was the Committee’s ruling pursuant to the
ICCPR. In no way could this claim be interpreted as calling into question the
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validity of Judge’s conviction.3 This is in contrast to Brunson’s claims, which
are challenges to the validity of his first-degree murder conviction.
In Commonwealth v. West, 938 A.2d 1034 (Pa. 2007), the
petitioner was sentenced in 1991 to twenty-seven to fifty-four months of
imprisonment but released on bond pending his appeal which was ultimately
unsuccessful. Id. at 1036-37. However, West was never recalled to serve
his sentence. He remained at liberty for nine years until this error was
discovered by the administrative judge of the criminal division of the Court
of Common Pleas of Allegheny County and a warrant was issued for West’s
arrest. Id. at 1037. West subsequently filed a petition for writ of habeas
corpus in the trial court, arguing, of relevance here, “a violation of his
substantive due process rights because of the government's delay in
confining him.” Id. The trial court did not consider whether this claim was
properly brought under the state habeas statute or the PCRA; instead it
denied the claim on its merits. On appeal to this Court, we concluded that
his claim did not fit within the parameters of the PCRA, but that it was a
proper subject for relief under the state habeas corpus statute. The
Supreme Court agreed, characterizing West’s argument as a claim that
“incarcerating him … after the significant delay between the time of
3
Judge did not contest the legality of his sentence. Judge, 916 A.2d at
520.
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sentencing and the time he was recalled is fundamentally unfair and
therefore constitutionally infirm.” Id. at 1044-45.
In the present appeal, Brunson’s claims are not divorced from the
manner of his convictions or the legality of his sentence as was the claim at
issue in West. The issue in West arose out of the irregularities that
followed West’s conviction and sentencing; specifically, the failure of the
courts to recall West so that he could begin to serve his sentence. These
events had no bearing on West’s conviction or his sentence as initially
imposed. In contrast, the irregularities that Brunson alleges implicate the
validity of his convictions, thereby bringing them within the purview of the
PCRA.4
For these reasons, we conclude that the claims Brunson raised in his
petition for writ of habeas corpus are cognizable under the PCRA. We
therefore find no error in the lower court’s decision to treat Brunson’s
petition for writ of habeas corpus as a petition filed under the PCRA.
Having decided to treat Brunson’s filing as a PCRA petition, the lower
court determined that it was untimely and that Brunson failed to establish
any of the exceptions to the PCRA’s time-bar. PCRA Court Opinion, 7/1/13,
4
We also note the case of Commonwealth v. Maute, 397 A.2d 826 (Pa.
Super. 1979), in which this Court found that the petitioner’s claim of cruel
and unusual punishment, based on beatings he was receiving in prison, was
cognizable as a habeas claim rather than as a claim under the Post
Conviction Hearing Act, the forerunner to the present-day PCRA. In that
case, as in West and Judge, it is apparent that the claim was not related to
the validity of the petitioner’s conviction or legality of his sentence.
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at 3-4. It is firmly established that “[t]he PCRA’s timeliness requirements
are jurisdictional in nature, and a court may not address the merits of the
issues raised if the PCRA petition was not timely filed.” Commonwealth v.
Copenhefer, 941 A.2d 646, 648-49 (Pa. 2007). The PCRA provides that
“any petition under this subchapter, including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final” unless one of three exceptions applies. 42 Pa.C.S.A. § 9545(b). The
relevant PCRA provision provides as follows:
(1) Any petition under this subchapter, including a
second or subsequent petition, shall be filed within
one year of the date the judgment becomes final,
unless the petition alleges and the petitioner
proves that:
(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)(emphasis added).
Brunson was convicted and sentenced in 1989. He received partial
relief on direct appeal to this Court, and the Pennsylvania Supreme Court
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denied his petition for allowance of appeal on August 7, 1990. Brunson did
not seek review by the United States Supreme Court, and so his sentence
became final on November 5, 1990.5
The petition at issue was filed on December 18, 2012, far more than
one year after Brunson’s conviction became final. As such, it was incumbent
on Brunson to establish one of the three exceptions to the timeliness
requirement contained in § 9545(b)(1). Commonwealth v. Lusch, 759
A.2d 6, 9 (Pa. Super. 2000) (holding that where habeas corpus petition is
properly treated as PCRA petition and filed more than one year after
judgment became final, petitioner must plead and prove exception to
statutory time-bar to establish timeliness).
Brunson attempted to establish an exception in his response to the
PCRA court’s notice of intent to dismiss. Therein, he stated that even if his
petition were treated as a PCRA petition, his claim of “actual innocence” is
sufficient to overcome any time-bar, pursuant to the United States Supreme
Court’s decision in McQuiggin v. Perkins, 133 S.Ct. 1924 (U.S. 2013).
5
“[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). Following the Pennsylvania Supreme
Court’s denial of his petition for allowance of appeal, Brunson had ninety
days to seek further review by the United States Supreme Court. See
U.S.SUP.CT.R. 13.
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See Objections to Dismissal Notice, 6/20/13, at 26.6 The lower court
rejected this assertion, and we find no error in that conclusion. In
McQuiggin, the United States Supreme Court held that a claim of actual
innocence may, in certain circumstances, overcome the Antiterrorism and
Effective Death Penalty Act’s one-year statute of limitations for filing a
habeas petition. Id. at 1931. It is clear that this holding is limited to
habeas petitions filed in federal court under the Antiterrorism and Effective
Death Penalty Act; as such, it can afford Brunson no relief. Brunson
therefore failed to establish an exception to the PCRA’s jurisdictional time-
bar.
In sum, we find no error in the lower court’s determination that
Brunson’s petition is properly viewed as his second PCRA petition; that it
was untimely filed; and that Brunson failed to establish an exception to the
PCRA’s time-bar. Accordingly, the lower court correctly concluded that it
was without jurisdiction to entertain Brunson’s petition. See Copenhefer,
941 A.2d at 648-49.
Order affirmed.
6
The vast majority of Brunson’s prolix response to the lower’s court notice
of intention to dismiss was dedicated to refuting the conclusion that his
claims fell under the PCRA.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
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