Com. v. Troop, J.

J-S60041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EARL TROOP :
:
Appellant : No. 459 WDA 2017
Appeal from the PCRA Order March 3, 2017
In the Court of Common Pleas of Crawford County
Criminal Division at No(s): 229-1988
BEFORE: OLSON, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 21, 2017
Appellant, James Earl Troop, appeals from the order entered in the
Court of Common Pleas of Crawford County dismissing his fifth petition filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as
untimely filed. We affirm.
This Court has previously recounted the factual and procedural history
of the Appellant’s case.
On April 14, 1988, Appellant and his accomplice decided to rob a
jewelry store. Before the robbery, Appellant stated that he
intended to shoot the two men who were inside the store, and
that is just what Appellant did. He forced the two men to lie face
down upon the floor, and before leaving the store with the stolen
jewelry (approximately $37,000.00 worth) and cash, he shot
each man two times in the back of his head with a twenty-two
caliber pistol from a distance of one or two feet. Miraculously,
both men survived, albeit with permanent mental and physical
impairments.
____________________________________
* Former Justice specially assigned to the Superior Court.
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On April 14, 1988, Appellant was convicted of two counts of
[attempted murder], two counts of aggravated assault, two
counts of robbery, and one count of criminal conspiracy. On
April 7, 1989, Appellant was sentenced to an aggregate sentence
of thirty to sixty years of imprisonment….
[The Pennsylvania Superior Court affirmed judgment of sentence
and the Pennsylvania Supreme Court denied allocatur. A first
PCRA petition afforded Appellant no relief, but his second PCRA
petition challenging the stewardship of counsel prevailed, and,
on May 29, 1996, Appellant was awarded a new trial.
The Court of Common Pleas of Crawford County awarded
Appellant a new suppression hearing, which took place on
August 15, 1996, but the court denied Appellant’s motion on
September 19, 1996.] On that same day, Appellant pleaded
guilty to the charges sub judice…. On November 7, 1996,
Appellant was sentenced again to serve an aggregate sentence
of thirty to sixty years of imprisonment.
Commonwealth v. Troop, No. 02291 WDA 1996, unpublished
memorandum at 2-3 (Pa.Super. filed July 7, 1997).
Thereafter, the Pennsylvania Superior Court affirmed judgment of
sentence on July 7, 1997, and the Pennsylvania Supreme Court denied
allocatur on December 10, 1997. Appellant’s judgment of sentence
therefore became final on or about March 10, 1998.
Since that time, Appellant has filed four prior PCRA petitions, all of
which have been dismissed for lack of merit or for failure to file a brief, and
this, his fifth PCRA petition, which Appellant filed, pro se, on December 29,
2016. In his petition, Appellant alleged there was exculpatory evidence
unavailable at the time of trial that subsequently became available. Had
such evidence been available, Appellant asserted, he would not have
pleaded guilty. On February 1, 2017, the PCRA court issued notice pursuant
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to Pa.R.Crim.P. 907(1) of its intent to dismiss Appellant’s petition without a
hearing. Appellant filed a Motion in Response to the Court’s Intent to
Dismiss PCRA, but the court denied Appellant’s motion and entered its Order
of March 3, 2017, dismissing Appellant’s petition without a hearing. This
appeal followed.
Preliminarily, we must determine whether Appellant's instant PCRA
petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is
clear; we are limited to determining whether the PCRA court's findings are
supported by the record and without legal error.” Commonwealth v.
Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and
quotation marks omitted).
The most recent amendments to the PCRA, effective January 19, 1996,
provide that 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). 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
the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
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 the petitioner must prove:
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(i) the failure to raise a claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or the law of this
Commonwealth or the Constitution or law 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 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).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).
Further, a petitioner asserting a timeliness exception must file a petition
within sixty days of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2).
Appellant contends that the PCRA court erroneously dismissed his
patently untimely petition1 where the petition raised a claim qualifying for
the newly-discovered facts exception to the PCRA time-bar as delineated in
Section 9545(b)(1)(ii). This Court has explained the requirements attendant
to a newly-discovered fact claim under Section 9545(b)(1)(ii):
____________________________________________
1
Appellant filed the present PCRA petition over 26 years after his judgment
of sentence became final on or about Monday, April 16, 1990, when the
thirty-day time period for filing a petition for allowance of appeal with our
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113.
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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.
Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
1271 (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. Commonwealth v.
Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001);
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super.
2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). This
rule is strictly enforced. Id. Additionally, the focus of this
exception “is on the newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.”
Commonwealth v. Marshall, 596 Pa. 587, 596, 947 A.2d 714,
720 (2008) (emphasis in original).
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015).
In his petition, Appellant asserted that Detective Dominick DiPaolo of
the Erie Police Department had recently published a book in which the
detective admitted that he contacted Meadville authorities in Crawford
County and told them that he suspected Appellant was involved in the
robbery and shootings at the Meadville jewelry store. DiPaolo claims in his
book that he immediately had Appellant arrested on the Meadville charges.
See infra. DiPaolo’s “admission,” Appellant claimed, proves that his arrest
was prompted not by probable cause but by the detective’s hunch that
Appellant was somehow involved in the robberies.
In Appellant’s brief, Appellant argues the following facts were
previously unknown to him:
(1)That the arresting officer in this case would publish a book,
nearly thirty (30) years later, and basically admit to what this
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defendant was alleging at trial, that he was arrested and charged
with three counts of robbery over twelve (12) hours prior to any
evidence linking this defendant to any robberies! [Detective]
DiPaolo also admits in the book that this petitioner was arrested
for crimes that happened in Meadville, PA ….
(2)The petitioner raised the claims of being arrested without
probable cause and that the arresting officer was framing this
petitioner because of his involvement in the Frank Rotunda case.
DiPaolo’s book is the source of this newly discovered evidence.
(3)In the book DiPaolo is admitting that he contacted the
Meadville authorities on the evening of April 14, 1988 and told
them that he suspected that this petitioner and his brother was
responsible for the robbery and shooting in Meadville. (The book
is the source of this petitioners [sic] claim that DiPaolo contacted
the Meadville authorities on 4/14/88).
(4)DiPaolo states in the book that he “immediately had this
petitioner arrested on the Meadville charges on his own
suspicion.” (See exhibit #1).
Appellant’s brief at 3.
In Appellant’s “Exhibit 1,” he presents an excerpt from the book co-
authored by DiPaolo, entitled “The Unholy Murder of Ash Wednesday: The
Stained Life and Rude Times of Mob Wannabe ‘Bolo’ Dovishaw.” As
indicated, Appellant claims the excerpt reveals new facts that were
previously unknown and unknowable through the exercise of due diligence.
The excerpt reads as follows:
DiPaolo was later assigned to investigate a rash of armed
robberies. He quickly developed the Troops and their pals as
prime suspects. After DiPaolo served search warrants at homes
where the Troops were known to stay, the brothers fled town. A
short time later, while DiPaolo watched the local evening news,
he learned the owner of a Meadville, Pennsylvania, jewelry store
was shot, along with a customer, during an armed robbery.
After hearing the description of the robbers, the Erie cop
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contacted Meadville Police. The robbery M.O. was similar to that
used by the Troops. He did not hesitate to arrest the brothers.
Appellant’s Exhibit 1 (excerpt from “The Unholy Murder of Ash Wednesday:
The Stained Life and Rude Times of Mob Wannabe ‘Bolo’ Dovishaw,” p. 337).
Initially, we address whether Appellant filed the present claim within
sixty days of the date the claim could have been presented as he was
required to do in order to preserve his claim pursuant to Section 9545(b)(2).
The source of Appellant’s purported new evidence is Detective DiPaolo’s
memoir, which was first published on June 27, 2014. Appellant filed the
instant PCRA petition on December 29, 2016, over two and one-half years
after the book became available to the public.
Appellant baldly alleged in his petition that he first learned of the
DiPaolo’s book on December 14, 2016. We take judicial notice of the fact
that the memoir discussing, inter alia, Appellant’s arrest has been available
for purchase on Amazon.com since June of 2014, and that the Amazon
webpage presently offering the book for sale contains numerous reviews
from Amazon customers who purchased the book in 2014 and 2015. As
Appellant, therefore, failed to plead and prove that he filed his petition
within 60 days of the date that the memoir became available to him through
the exercise of due diligence, he does not qualify for the newly discovered
evidence exception. Consequently, we may affirm the order of the PCRA
court on this basis.
Even if we were to address the merits of Appellant’s claim, it is
apparent that the above excerpt does not, as Appellant contends, contain an
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admission by Detective DiPaolo that Appellant was arrested prior to the
formation of probable cause. The statement “He did not hesitate to arrest
the [Troop] brothers” does not describe the timeline leading to Troop’s
arrest in any detail. At most, DiPaolo offers a generalized, broadly stated
summary of Appellant’s arrest devoid of any meaningful discussion about the
formation of probable cause.
Moreover, the inference Appellant attempts to draw from the excerpt
merely duplicates defense evidence previously offered at Appellant’s August
15, 1996, suppression hearing. Appellant argues herein that the excerpt
shows that DiPaolo and other investigators obtained accomplice Bess
Brown’s written statement implicating Appellant only after his arrest such
that the statement could not have supplied probable cause to support his
arrest. However, DiPaolo previously admitted that Brown was arrested after
Appellant, N.T. (Suppression Hearing II) 8/15/96 at 36-42, and maintained
that probable cause derived from their recovery of bank bags and checks
that came out of a robbery occurring in Erie County. N.T. at 42.
Additionally, Appellant attaches to his brief both the police report detailing
his arrest and a criminal complaint indicating that officers obtained Ms.
Brown’s implicating statement at a time subsequent to Appellant’s arrest.
Accordingly, the record establishes that the purported revelation in DiPaolo’s
memoir was, in fact, previously available to Appellant and utilized by him in
prior proceedings. The memoir, therefore, did not provide new evidence but
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only a new source of previously known evidence. For this reason,
Appellant’s claim fails.
Order is AFFIRMED.
Dubow, J. joins the memorandum.
Olson, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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