Com. v. Fogel, R.

J-S77011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAYMOND FOGEL
Appellant No. 2921 EDA 2013
Appeal from the Order dated September 18, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0001304-2010
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 09, 2015
Appellant Raymond Fogel appeals from an order of the Court of
Common Pleas of Delaware County (PCRA court), which dismissed without a
hearing his request for collateral relief under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-46. For the reasons set forth below, we
affirm.
The facts underlying this appeal are uncontested. As summarized by
the PCRA court:
On October 2, 2009, [Appellant] was stopped by the
Upland Police Department for a traffic violation. [Appellant] was
subsequently arrested for failure to yield at a stop sign, driving
under the influence, and endangering the welfare of children.
On March 25, 2010, Andrew Goldberg, Esquire, filed his
appearance on behalf of [Appellant].
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*
Retired Senior Judge assigned to the Superior Court.
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On April 26, 2010, [Appellant] entered into a negotiated
plea to endangering the welfare of children [(18 Pa.C.S.A.
§ 4304(a)(1))] and driving under the influence [(75 Pa.C.S.A.
§ 3802(a)(1))]. [Appellant] was sentenced to two years and six
months of probation along with specific conditions. The
remaining charges were dismissed pursuant to the negotiated
plea. On May 27, 2010, [Appellant’s] judgment of sentence
became final. [Appellant] did not file a direct appeal or a post-
sentence motion.
On April 13, 2012, a bench warrant was issued for
[Appellant] due to his failure to comply with several
requirements of his probation, including failing to complete
alcohol safe driving classes, failure to pay outstanding court
fines, and failure to report on several occasions to Parole Officer
James Page of the Upper Darby Office of Adult Probation and
Parole. On April 29, 2013, [Appellant], through Terry Pugh,
Esquire, filed a [PCRA] [p]etition asking for a new evidentiary
hearing. [(The petition contained only one attachment, the
affidavit of Bonita Watkins, the mother of [Appellant’s] children.
The affidavit stated that Ms. Watkins and [Appellant] had a
disagreement on October 5, 2009, that ended with her calling
the police, detailing the argument, and telling the police that
[Appellant] was driving a particular vehicle with her children
inside. [The PCRA court] notes that [Appellant’s] arrest took
place on October 2, 2009, not October 5, 2009 as Ms. Watkin’s
affidavit states.)] The Commonwealth filed its answer on June
14, 2013.
On August 13, 2013, [Appellant] was arrested on his
outstanding bench warrant and a Gagnon II[1] hearing was held
in front of the Honorable Judge Mary Alice Brennan, at which
time [Appellant] was sentenced to an additional term of one year
probation.
On September 5, 2013, minutes before the scheduled
PCRA hearing, [Appellant] filed an amended [PCRA] [p]etition
which added a claim for ineffective assistance of counsel. [The
PCRA court] held a hearing but [Appellant] presented no
witnesses, just argument. After review of the [p]etition and the
argument, [the PCRA court] wrote an [o]rder denying the
[PCRA] [p]etition on September 18, 2013.
On October 17, 2013, [Appellant] filed a timely notice of
appeal and on October 21, 2013, [the PCRA court] issued an
[o]rder requiring Appellant to file a [Pa.R.A.P.] 1925(b)
statement. Appellant filed his 1925(b) statement on November
12, 2013, raising three issues: (1) the [PCRA] court erred by not
granting [Appellant] a new trial after his guilty plea was not
knowing, voluntary and intelligent; (2) trial counsel was
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1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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ineffective for failing to advise [Appellant] that a guilty plea
would adversely impact his employment; and (3) that
after[-]discovered evidence reveals that a guilty plea was
unknowingly, involuntarily, and unintelligently entered into by
[Appellant].
PCRA Court Opinion, 11/25/13, at 1-3 (footnotes moved to text). In
response, the PCRA court issued a Pa.R.A.P. 1925(a) opinion, concluding,
inter alia, that Appellant’s PCRA petition was facially untimely, and that he
failed to prove the after-discovered evidence exception to the one-year time
bar set forth in Section 9545(b)(1)(ii) of the PCRA. Specifically, the PCRA
court found Appellant failed to establish that he exercised due diligence in
discovering the after-discovered evidence at the time of his negotiated guilty
plea. See id. at 5.
On appeal,2 Appellant raises three issues for our review:
1. Whether the PCRA court erred when it failed to grant an
evidentiary hearing or a new trial, and in its determination that
Appellant failed to show due diligence in presenting his newly
discovered testimony claim where the Commonwealth failed to
disclose this evidence in violation of Brady[3]?
2. Whether the PCRA court erred by not granting Appellant’s
motion to withdraw his guilty plea and proceed to trial where he
was induced by trial counsel to enter an unknowing,
unintelligent, and involuntary guilty plea?
3. Whether the PCRA court erred in failing to hold an evidentiary
hearing to determine whether a violation of Appellant’s 6th
Amendment right to counsel under the U.S. Constitution, and
Article 1, § 9 of the Pennsylvania Constitution occurred where
trial counsel was ineffective for advising Appellant to enter a
guilty plea based on insufficient evidence which was further
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2
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
3
Brady v. Maryland, 373 U.S. 83 (1963).
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exacerbated where the Commonwealth failed to provide
exculpatory Brady material constituting no representation or
abandonment at trial?
Appellant’s Brief at 5.4
As a threshold matter, we must determine whether the PCRA court
erred in dismissing as untimely Appellant’s PCRA petition. The PCRA
contains the following restrictions governing the timeliness of any PCRA
petition.
(b) Time for filing petition.--
(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.
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4
To the extent Appellant raises a Brady claim, we must reject such claim as
waived. As the Commonwealth notes, Appellant raises the Brady claim for
the first time on appeal before us. Because Appellant failed to preserve this
claim below, it is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
We disapprove of Appellant’s suggestion that the PCRA court failed to hold a
hearing on his PCRA petition. Our review of the docket indicates that the
PCRA court indeed held a hearing on the petition on September 5, 2013,
where, as the PCRA court noted, “[Appellant] presented no witnesses, just
argument.” PCRA Court Opinion, 11/25/13, at 2.
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(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have
been presented.
(3) For purposes of this subchapter, 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) (emphasis added). Section 9545’s timeliness
provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.
2014).
Here, the record reflects the judgment of sentence became final on
May 27, 2010, i.e., at the expiration of the time for filing a direct appeal in
this Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because
Appellant had one year from May 27, 2010 to file his PCRA petition, the
current filing is untimely on its face given it was filed on April 29, 2013.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the exceptions set forth in Section 9545(b)(1)(i)-
(iii) of the PCRA. Instantly, Appellant alleges the after-discovered evidence
exception under Section 9545(b)(1)(ii). As mentioned earlier, he attached
to his PCRA petition the affidavit of Ms. Watkins, his children’s mother and
former wife. In the petition, Appellant argued that Ms. Watkins’ affidavit
qualifies as after-discovered evidence of why police pulled him over on the
day in question. Based on the affidavit, Appellant argued Ms. Watkins’ 911
call was the reason the police pulled him over and not because he failed to
yield at a stop sign. See Amended PCRA Petition, 9/5/13, at 2.
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It is settled that the timeliness exception set forth in Section
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 exercise of due diligence. See Commonwealth v. Bennett,
930 A.2d 1264, 1271 (Pa. 2007). Due diligence demands that the petitioner
take reasonable steps to protect his own interests. Commonwealth v.
Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner must explain
why he could not have learned the new fact(s) earlier with the exercise of
due diligence. See Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.
2001).
Here, based on our review of the entire record, we discern no basis
upon which to disagree with the PCRA court’s conclusion that Appellant failed
to prove that he acted with due diligence in discovering the after-discovered
evidence, i.e., his former wife’s 911 call resulted in his arrest. See
Bennett, 930 A.2d at 1271 n.10 (citing Commonwealth v. Yarris, 731
A.2d 581, 590 (Pa. 1999) and stating: “Yarris correctly analyzes subsection
(b)(1)(ii) and concludes that the claim fails because the appellant did not
make a sufficient proffer of why it took so long to present the claims, and
therefore, did not show that he acted with due diligence.”).5 As the PCRA
court found, Appellant failed to offer any evidence at the hearing to “show
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5
Based on the outcome in this case, we need not address Appellant’s
remaining arguments.
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why he could not have obtained the new evidence earlier with the use of due
diligence.” PCRA Court Opinion, 11/25/13, at 5.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
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