Com. v. Bender, S.

J-S27031-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN WAYNE BENDER :
:
Appellant : No. 1557 WDA 2018
Appeal from the PCRA Order Entered September 26, 2018
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000801-2000
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN WAYNE BENDER :
:
Appellant : No. 1559 WDA 2018
Appeal from the Order Entered September 26, 2018
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000801-2000
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED MAY 24, 2019
Appellant, Steven Wayne Bender, pro se, appeals from the order
entered September 26, 2018, that dismissed his seventh petition filed under
the Post Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.
____________________________________________
1 42 Pa.C.S. §§ 9541–9546.
* Retired Senior Judge assigned to the Superior Court.
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In 2001, a jury convicted Appellant of murder of the second degree2
and related charges for the killing of his estranged wife’s new boyfriend. On
direct appeal,
Appellant claim[ed] that the trial court erred in denying his
request for instructions on the use of deadly force for the
protection of others and to prevent the commission of a crime.
In both such instances, the charge “must be given upon request
where the jury would have a possible basis for finding it.”
Commonwealth v. [Carl] Brown, 421 A.2d 660, 662 (Pa.
1980). We have reviewed [the trial court]’s opinion, dated
November 16, 200[1], and we conclude that the trial court was
correct in determining that there was no basis for the jury
finding for Appellant on either one of these defenses. We adopt
that portion of [the trial court]’s opinion discussing this issue for
purposes of further appellate review.
Commonwealth v. Bender (“Bender I”3), No. 1319 WDA 2001,
unpublished memorandum at 16-17 (Pa. Super. filed December 31, 2002).
The above-referenced portion of the trial court opinion is as follows:
The final issue raised by [Appellant] is that the [trial c]ourt erred
in not giving the jury instruction of defense of others and
preventing the commission of a crime. A trial court should not
instruct the jury on legal principles that have no application to
the facts presented at trial because it may cause confusion and
place obstacles in the path of a true verdict. Pa.R.Crim.P. Rule
647 . . . [Appellant] requested an instruction for defense of
others based on the Commonwealth v. Stonehouse case.
521 Pa[.] 41, 555 A.2d 772 (1989). Stonehouse dealt with the
battered woman syndrome. The [Supreme] Court [of
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2 18 Pa.C.S. § 2502(b).
3 Our numbering scheme for abbreviated case names only includes
Appellant’s prior cases before this Court; we do not count previous trial court
opinions, petitions for appeal to the Supreme Court of Pennsylvania, or
federal cases for our naming system herein.
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Pennsylvania] stated that physical and psychological abuse over
a long period of time might be considered when determining the
circumstances regarding the reasonableness of defendant’s fear
to cause provocation. Id[.] at 60. The [C]ourt . . . stated “the
ultimate test for adequate provocation remains whether a
reasonable man, confronted with this series of events, became
impassioned to the extent that his mind was incapable of cool
reflection.” In this case there is no evidence of physical or
psychological abuse occurring to either [Appellant] or his
daughter. There are no series of events leading up to the act.
The requirements for 18 Pa. Cons. Stat. Ann. Section 506 -
Justification, use of force for the protection of other persons, are
that the use of force upon or toward another person is justifiable
when (1) the defendant would be justified under §505 (self-
defense) in using such force to protect himself against the injury
he believes to be threatened to the other person he seeks to
protect, (2) defendant believes the circumstances would justify
the person he is seeking to protect to use such protective force,
and (3) defendant believes intervention is necessary for the
protection of such other person. Section 505 states that use of
force toward another is justifiable when defendant believes such
force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other person.
18 Pa. Cons. Stat. Ann. §505. Section 505(b)(2) states that
deadly force is not justifiable under this section unless defendant
believes such force is necessary to protect himself against death,
serious bodily injury, kidnapping or sexual intercourse compelled
by force or threat. Id. [Appellant] testified that when he
opened the door where his daughter was he saw [the
murder victim] sleeping and holding [the child]’s hand on
his penis. (N.T., July 12, 2001, at 107). Then he stated
[the murder victim] lunged at him and he fired the gun.
(N.T., July 12, 2001, at 108). These circumstances do not
meet the requirements for use of force for the protection of
another. [Appellant’s child] was not in immediate danger of
death, serious bodily injury, kidnapping or sexual intercourse
compelled by force or threat nor was unlawful force being used
against her. Therefore [Appellant]’s request for this instruction
was properly denied.
Trial Court Opinion, filed November 16, 2001, at 8-9 (emphasis added)
(some formatting).
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On December 31, 2002, this Court affirmed the judgment of sentence
in its entirety. Bender I, No. 1319 WDA 2001, unpublished memorandum
at 1.
Appellant thereafter unsuccessfully assailed his conviction in
state3 and federal4 court.
3 See Commonwealth v. Bender, 876 A.2d 459 (Pa.
Super. 2005) (unpublished memorandum) (affirming
denial of first PCRA petition); Commonwealth v. Bender,
964 A.2d 428 (Pa. Super. 2008) (unpublished
memorandum) (affirming denial of second PCRA petition),
appeal denied, 971 A.2d 488 (Pa. 2009); Commonwealth
v. Bender, 22 A.3d 1054 (Pa. Super. 2010) (judgment
order) (affirming denial of third PCRA petition);
Commonwealth v. Bender, 47 A.3d 1233 (Pa. Super.
2012) (unpublished memorandum) (affirming denial of
fourth PCRA petition); Commonwealth v. Bender, 53
A.3d 924 (Pa. Super. 2012) (unpublished memorandum)
(affirming denial of motion for post-conviction DNA
testing); Commonwealth v. Bender, 82 A.3d 455 (Pa.
Super. 2013) (unpublished memorandum) (affirming
denial of fifth PCRA petition).
4 Bender v. Wydner, No. 05-998, 2006 WL 1788312(W.D. Pa. June 28, 2006) (denying petition for writ of
habeas corpus); Bender v. Wydner, No. 05-998, 2013
WL 3776746 (W.D. Pa. July 15, 2013) (denying motion for
relief from judgment), appeal dismissed, No. 13-1174 (3d
Cir. June 10, 2013), cert. denied sub nom., Bender v.
Walsh, 134 S. Ct. 2303 (2014).
Commonwealth v. Bender (“Bender VIII”), No. 1637 WDA 2014,
unpublished memorandum at 1-2 (Pa. Super. filed March 17, 2015).
Amongst those unsuccessful state petitions was Appellant’s motion for
post-conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1 on March 23,
2011. Commonwealth v. Bender (“Bender VI”), 53 A.3d 924, No. 107
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WDA 2012, unpublished memorandum at 1, 4 (Pa. Super. filed June 4,
2012). This Court stated:
Appellant claimed at trial that the victim was sexually molesting
his then two-year old daughter, so he entered the house and
bedroom to take his daughter away, and shot the victim when
he lunged at Appellant.2 (See id., 7/12/01, at 108).
2Appellant did not in fact remove his daughter. (See N.T.
Trial, 7/12/01, at 132).
...
When reviewing an order denying a motion for post-conviction
DNA testing, this Court determines whether the movant satisfied
the statutory requirements set forth in PCRA section 9543.1. . . .
In any motion under subsection (a) [authorizing
application for DNA testing], under penalty of perjury, the
applicant shall . . . specify the evidence to be tested; [ ]
assert the applicant’s actual innocence of the offense for
which the applicant was convicted; and . . . present a
prima facie case demonstrating that the:
(i) identity of or the participation in the crime by the
perpetrator was at issue in the proceedings that
resulted in the applicant’s conviction and sentencing;
and
(ii) DNA testing of the specific evidence, assuming
exculpatory results, would establish:
(A) the applicant’s actual innocence of
the offense for which the applicant was
convicted[.]
42 Pa.C.S.A. § 9543.1(c).
Here, Appellant argues, in effect, that DNA evidence could link
the deceased victim to his claim at trial that the victim was
molesting his then two-year old daughter. (See Appellant’s
Brief, at 15). Appellant posits that such evidence would warrant
reconsideration of his claim of “defense of another” at trial. . . .
[T]he PCRA court properly determined that Appellant’s basic DNA
claim does not merit relief. The most obvious defect of
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Appellant’s argument at the hearing and on appeal is his bald,
unsupported attempt to use his claimed suspicions of
molestation by the victim to make the victim the “perpetrator”
within the meaning of the PCRA DNA testing statute. (See, e.g.,
Appellant’s Brief, at 9, 11, 24); see also 42 Pa.C.S.A.
§ 9543.1(c)(3)(i) (applicant must “present a prima facie case
demonstrating that the . . . identity of or the participation in the
crime by the perpetrator was at issue in the proceedings that
resulted in the applicant’s conviction and sentencing[.]”).
In this case, Appellant is the perpetrator, and the only
perpetrator, of the crimes for which the jury convicted him.
Appellant’s attempt to make the victim the perpetrator is
unsupported by law or fact, and is, therefore, frivolous and
utterly without merit. Indeed, Appellant concedes that he shot
the victim; he only argues that he had a reason. That is not
enough to satisfy the statutory requirements. Thus, Appellant
fails to show that “DNA testing of the specific evidence,
assuming exculpatory results, would establish . . . the applicant’s
actual innocence of the offense for which the applicant
was convicted[.]” Id. at § 9543.1(c)(3)(i) (ii) (emphasis
added). . . . DNA evidence, even if found, would not disprove
Appellant’s conceded identity as the shooter.
Id. at 2, 5-9.
On March 17, 2015, this Court affirmed the dismissal of Appellant’s
PCRA petition immediately prior to the current one -- his sixth, not counting
the motion for DNA -- in which Appellant had challenged the propriety of the
boilerplate form he had used to file his first pro se PCRA petition. Bender
VIII, No. 1637 WDA 2014, unpublished memorandum at 1, 3.
On May 23, 2018, Appellant pro se filed the current PCRA petition, his
seventh. Appellant concedes that the petition is untimely, as it “is outside
the one-year statutory limit,” because it was not “filed within one year of the
date that [his] conviction became final[.]” PCRA Petition, 5/23/2018, at 2
(citing 42 Pa.C.S. § 9545(b)(1)). However, he alleges that the
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“governmental interference exception” to the time bar applies, because
“prior district attorneys” interfered with his ability to present evidence, such
as “suppressed” “material DNA discovery” that the murder victim sexually
abused children, including Appellant’s child. PCRA Memorandum of Law,
05/23/2018, at i-ii (unnecessary capitalization omitted). He continues that
this “governmental interference” prevented him from presenting
“substantive defenses of (1) . . . use of force for the protection of other
persons [and] (2) use of force to prevent the commission of crime.” Id. at
i-ii, 1 (unnecessary capitalization omitted). Appellant summarizes:
This continuing governmental interference violates deeply rooted
public policy of the Commonwealth thus not subjecting this
matter to 42 Pa.C.S. § 9544 (Previous litigation and waiver) as
this matter is an on-going and continuing governmental
interference of, inter alia, ignoring, covering-up, suppressing and
intentionally misstating material evidence and testimony of
sexual abuse of children in violation of substantive based laws
enacted by the Pennsylvania legislature and additional
substantive based laws as demonstrated supra.
Id. at 1.
On June 25, 2018, the PCRA court entered a notice of intent to dismiss
all claims without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a
response dated July 8, 2018, and entered on the docket on July 12, 2018.
The response did not request to amend the PCRA petition. On
September 26, 2018, the PCRA court dismissed Appellant’s petition.
According to the certified docket, the dismissal order was not mailed to
Appellant until October 1, 2018.
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Appellant filed a notice of appeal and a concise statement of errors
complained of on appeal on October 29, 2018, and a second notice of appeal
and concise statement of errors on October 31, 2018. This Court
consolidated the appeals on November 20, 2018.4
Appellant presents the following issues for our review:
1. Whether the [PCRA] court abused its discretion when the
[PCRA] court notified Appellant in the 08/28/18[5] order that
Appellant’s 07/08/18 objections to the court’s 06/25/18 order of
it “907 Notice of Intent to Dismiss” were not filed where the
certified docket entry of 07/12/18 patently demonstrate that
Appellant’s material and pertinent objections were timely filed
warranting a remand for adjudication of the substantive merits?
2. Whether the [PCRA] court abused its discretion in denying
Appellant’s subsequent PCRA invoking 42 Pa.C.S.
§ 9545(b)(1)(i) (governmental interference exception) and
ruling on the substantive merits that are demonstrated in the
pertinent and material pleading and facts of record that implicate
matter of Federal and Commonwealth deeply rooted public
policy?
3. Should not the [PCRA] court enter an order of recusal in
the important public policy related matter where the [PCRA]
court’s action/inaction itself constitutes further governmental
interference with the presentation of Appellant’s substantive
based claims?
Appellant’s Brief at 4.
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4 On January 29, 2019, the PCRA court entered a statement in lieu of
opinion.
5 Nothing appears on the certified docket or in the certified record for
August 28, 2018. We believe that Appellant is referring to the PCRA
dismissal order from September 26, 2018.
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“We review the denial of PCRA relief to decide whether the PCRA
court’s factual determinations are supported by the record and are free of
legal error.” Commonwealth v. Medina, 2019 PA Super 119, *8 (filed
April 17, 2019) (quoting Commonwealth v. Lavar Brown, 196 A.3d 130,
150 (Pa. 2018)).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final, “unless the petition alleges and the petitioner proves”
one of the three exceptions to the time limitations for filing the petition set
forth in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).6 In
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6 The three exceptions to the timeliness requirement are:
(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. § 9545(b)(1)(i)-(iii).
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the current action, the PCRA court concluded that it lacked jurisdiction over
Appellant’s seventh PCRA petition, because the petition was untimely and
failed to satisfy any exception to the PCRA’s time bar.
“[T]he date on which the judgment of sentence became final . . . in
this case is January 30, 2003, one year after Appellant’s time to petition for
allowance of appeal to our Supreme Court expired. Appellant’s petition
plainly does not meet the time bar.” Bender VIII, No. 1637 WDA 2014,
unpublished memorandum at 2-3.
Appellant attempts to invoke the “governmental interference”
exception to the time bar, 42 Pa.C.S. § 9545(b)(1)(i). PCRA Memorandum
of Law, 05/23/2018, at i-ii, 1. Appellant appears to be arguing that the
district attorney interfered by preventing him from submitting evidence at
his trial that the victim was sexually abusing children, including Appellant’s
daughter. PCRA Memorandum of Law, 05/23/2018, at i-ii; Appellant’s Brief
at 5-6, 11-12, 19, 51. He contends:
These governmental officials have consistently distorted,
misstated and deliberately attempt to cover-up and suppress
material physical, documented and testimonial evidence
involving sexual abuse of children. In violation of duly
promulgated statutes (laws), rules of evidence and deeply rooted
public policy where this continuing governmental interference is
“in violation of the U.S. Const. or Pa. Const. or laws” providing
the [PCRA] court with jurisdiction. It is beyond dispute that an
untimely PCRA must invoke an exception to 42 Pa.C.S.
§ 9545(b) for a court to have jurisdiction to adjudicate the
merits of a PCRA.
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Appellant’s Brief at 11-12; see also PCRA Memorandum of Law,
05/23/2018, at 1. He additionally argues that he “can present the material
DNA that has been suppressed by these governmental officials that clearly
constitute governmental interference of exposing sexual abuse of children.”
Appellant’s Brief at 21; see also PCRA Memorandum of Law, 05/23/2018, at
i-ii.
Appellant provides no explanation as to how or why district attorneys
or any other government official interfered in his ability to present evidence.
See generally Appellant’s Brief; PCRA Memorandum of Law, 05/23/2018.
The PCRA requires that “the petitioner proves” one of the three exceptions,
42 Pa.C.S. § 9545(b)(1) (emphasis added), which Appellant has failed to do.
Additionally, the governmental interference exception to the PCRA
time bar requires that “the failure to raise the claim previously was the
result of interference by government officials . . .” Id. § 9545(b)(1)(i)
(emphasis added). Appellant could not have “fail[ed] to raise the claim
previously,” id., because he gave testimony during trial in support of his
allegation that the murder victim sexually abused Appellant’s child, thereby
justifying Appellant’s actions as defense of others and prevention of the
commission of a crime. Trial Court Opinion, filed November 16, 2001, at 8-9
(citing N.T., 7/12/2001, at 107-08). Appellant also raised this claim on
direct appeal, Bender I, No. 1319 WDA 2001, unpublished memorandum at
16-17, and in a prior post-conviction motion, Bender VI, No. 107 WDA
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2012, unpublished memorandum at 1-2, 4-9; accordingly, again, Appellant
could not have “fail[ed] to raise the claim” pursuant to 42 Pa.C.S.
§ 9545(b)(1)(i). Appellant is merely attempting to re-litigate a claim he lost
on direct appeal over a decade-and-a-half ago and on collateral review over
six years ago.
Appellant thus has not established an exception to the timeliness
requirement under 42 Pa.C.S. § 9545(b)(1). Consequently, the PCRA court
was without jurisdiction to review the merits of Appellant’s claim and
properly dismissed his petition.
Having discerned no error of law, we affirm the order below. Medina,
2019 PA Super 119, *8.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2019
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