Commonwealth v. Beatty

J-S73008-18
2019 PA Super 107COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PAUL WILLIAM BEATTY :
:
Appellant : No. 178 WDA 2018
Appeal from the PCRA Order December 28, 2017
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000666-2010
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
OPINION BY GANTMAN, P.J.: FILED APRIL 08, 2019
Appellant, Paul William Beatty, appeals from the order entered in the
Venango County Court of Common Pleas, which denied his second petition
filed under the Post Conviction Relief Act (“PCRA”).1 For the following reasons,
we hold the court had no jurisdiction to address Appellant’s petition on the
merits. Accordingly, we affirm but on other grounds.
The relevant facts and procedural history of this case are as follows. In
2005, Appellant raped Victim, who was at the time the minor daughter of his
girlfriend. In 2009, Victim told her legal guardian, S.H., about the rape. S.H.
took Victim to a therapist who, as a mandated reporter, informed the police
of the abuse. On August 16, 2011, a jury convicted Appellant of one count
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1 42 Pa.C.S.A. §§ 9541-9546.
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each of rape of a child, indecent assault, endangering the welfare of children,
and corruption of minors. The court sentenced Appellant on January 5, 2012,
to an aggregate term of one hundred eighty (180) to three hundred sixty
(360) months’ incarceration. This Court affirmed the judgment of sentence
on October 28, 2013. See Commonwealth v. Beatty, 87 A.3d 895(Pa.Super. 2013) (unpublished memorandum). Appellant did not seek further
review.
On January 22, 2014, Appellant timely filed pro se his first PCRA petition,
and the court appointed counsel, who filed a Turner/Finley2 letter and a
motion to withdraw as counsel on February 27, 2014. On June 30, 2014, the
court granted counsel’s motion to withdraw and issued notice of its intent to
dismiss the PCRA petition without a hearing, per Pa.R.Crim.P. 907. Appellant
filed a premature pro se notice of appeal on July 21, 2014. On July 23, 2014,
the court dismissed Appellant’s first PCRA petition. Appellant pursued his
appeal from the denial of his first PCRA petition.
Meanwhile, on September 8, 2014, Appellant filed a second PCRA
petition, although the order denying his first petition was still on appeal. The
PCRA court held Appellant’s second petition in abeyance pending resolution of
the appeal. This Court affirmed the denial of Appellant’s first PCRA petition
on December 1, 2015, and our Supreme Court denied allowance of appeal on
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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (1988).
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May 3, 2016. See Commonwealth v. Beatty, 135 A.3d 648 (Pa.Super.
2015) (unpublished memorandum), appeal denied, 635 Pa. 768, 138 A.3d 1(2016).
On July 14, 2016, Appellant filed a motion to “reinstate” his second PCRA
petition, which the court had held in abeyance awaiting the outcome of the
prior appeal. The court “reinstated” Appellant’s second petition on July 22,
2016. After an initial evidentiary hearing on January 31, 2017, Appellant filed
two amended PCRA petitions, adding new claims. The court then held two
supplemental evidentiary hearings on June 8 and 23, 2017. On December 28,
2017, the court denied Appellant’s second PCRA petition on the merits.
Appellant filed a timely notice of appeal on January 22, 2018. On January 31,
2018, the court ordered Appellant to file a concise statement of errors
complained of on appeal, per Pa.R.A.P. 1925(b); Appellant timely complied.
Appellant raises the following issues for our review:
WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
OR ABUSED ITS DISCRETION WHEN THE PCRA COURT
WOULD NOT PERMIT [APPELLANT] TO PRESENT EVIDENCE
ON HIS SECOND PCRA PETITION, SPECIFICALLY THE
COURT DENIED [APPELLANT THE OPPORTUNITY] TO
ESTABLISH EVIDENCE REGARDING THE DISTRICT
ATTORNEY BRIBING…VICTIM FOR HER TESTIMONY[?]
WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
OR ABUSED ITS DISCRETION WHEN THE PCRA COURT
WOULD NOT PERMIT [APPELLANT] TO PRESENT EVIDENCE
ON HIS SECOND PCRA PETITION, SPECIFICALLY…TO
ESTABLISH EVIDENCE REGARDING THE DISTRICT
ATTORNEY KNOWING AT THE TIME OF TRIAL THAT…VICTIM
HAD A DIAGNOSIS OF BEING INCAPABLE OF KNOWING THE
DIFFERENCE BETWEEN TRUTH AND FANTASY[?]
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WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
OR ABUSED ITS DISCRETION WHEN THE PCRA COURT
DETERMINED THAT…VICTIM’S RECANTATION OF THE
CRIME WAS NOT CREDIBLE TO GRANT A NEW TRIAL[?]
(Appellant’s Brief at 5).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74(2007). We do not give the same deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).
Traditionally, credibility issues are resolved by the trier of fact who had the
opportunity to observe the witnesses’ demeanor. Commonwealth v. Abu-
Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120
S.Ct. 41, 145 L.Ed.2d 38 (1999). “A PCRA court passes on witness credibility
at PCRA hearings, and its credibility determinations should be provided great
deference by reviewing courts.” Commonwealth v. Johnson, 600 Pa. 329,
356-357, 966 A.2d 523, 539 (2009).
Preliminarily, Pennsylvania law makes clear the trial court has no
jurisdiction to consider a subsequent PCRA petition while an appeal from the
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denial of the petitioner’s prior PCRA petition in the same case is still pending
on appeal. Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588
(2000). See also Commonwealth v. Montgomery, 181 A.3d 359, 364
(Pa.Super. 2018) (en banc), appeal denied, ___ Pa. ___, 190 A.3d 1134(2018) (reaffirming that Lark precludes consideration of subsequent PCRA
petition while appeal of prior PCRA petition is still pending). A petitioner must
choose either to appeal from the order denying his prior PCRA petition or to
file a new PCRA petition; the petitioner cannot do both, i.e., file an appeal and
also file a PCRA petition, because “prevailing law requires that the subsequent
petition must give way to a pending appeal from the order denying a prior
petition.” Commonwealth v. Zeigler, 148 A.3d 849, 852 (Pa.Super. 2016).
In other words, a petitioner who files an appeal from an order denying his
prior PCRA petition must withdraw the appeal before he can pursue a
subsequent PCRA petition. Id. If the petitioner pursues the pending appeal,
then the PCRA court is required under Lark to dismiss any subsequent PCRA
petitions filed while that appeal is pending. Lark, supra.Pennsylvania law also states unequivocally that no court has jurisdiction
to place serial petitions in repose pending the outcome of an appeal in the
same case. Id. See also Commonwealth v. Porter, 613 Pa. 510, 523, 35
A.3d 4, 12 (2012) (stating that holding serial petitions in abeyance pending
appeal in same case perverts PCRA timeliness requirements and invites
unwarranted delay in resolving cases, as well as strategic litigation abuses).
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As an additional prefatory matter, the timeliness of any PCRA petition is
a jurisdictional requisite. Zeigler, supra. No court has jurisdiction to review
an untimely PCRA petition. Commonwealth v. Albrecht, 606 Pa. 64, 994
A.2d 1091 (2010). “Whether a court has subject matter jurisdiction is a
question of law. … It is not waivable, even by consent, and may be raised by
any party or by the court, sua sponte, at any stage of the proceeding.”
Commonwealth v. Hemingway, 13 A.3d 491, 496 (Pa.Super. 2011).
“[E]ven where the PCRA court does not address the applicability of the PCRA
timing mandate, this Court will consider the issue sua sponte, as it is a
threshold question implicating our subject matter jurisdiction and ability to
grant the requested relief.” Commonwealth v. Whitney, 572 Pa. 468, 475-
76, 817 A.2d 473, 478 (2003). Significantly,
[A] jurisdictional time limitation is not subject to equitable
principles such as tolling except as provided by statute.
Thus, the filing period is only extended as permitted; in the
case of the PCRA, the time limitations are extended upon
satisfaction of the exceptions found in § 9545(b)(1)(i)–(iii)
and timely filing pursuant to (b)(2). As it has been
established that the PCRA’s time restrictions are
jurisdictional, we hold that the period for filing a PCRA
petition is not subject to the doctrine of equitable tolling,
save to the extent the doctrine is embraced by §
9545(b)(1)(i)–(iii).
Commonwealth v. Fahy, 558 Pa. 313, 329, 737 A.2d 214, 222 (1999). In
other words, “The PCRA’s time limitations ‘are mandatory and interpreted
literally; thus, a court has no authority to extend filing periods except as the
statute permits.’” Commonwealth v. Lee, ___ A.3d ___, 2019 PA Super 64-6-
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*8 (filed March 1, 2019) (en banc). See also Commonwealth v. Bennett,
593 Pa. 382, 388, 930 A.2d 1264, 1267 (2007) (stating same).
Any PCRA petition must be filed within one year of the date the
underlying judgment becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment
of sentence 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 time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3). If the petition is not filed within one year
of that date, the petitioner must plead and prove that one of the three
statutory exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies.
Lark, supra at 493-94, 746 A.2d at 588.
The exceptions to the PCRA time-bar allow for very limited
circumstances under which the late filing of a petition will be excused; to
invoke an exception, a petition must allege and the petitioner must prove:
(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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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must
present his claimed exception within sixty days of the date the claim first could
have been presented.3 42 Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA
petition is not filed within one year of the expiration of direct review, or not
eligible for one of the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date that the claim could have
been first brought, the trial court has no power to address the substantive
merits of a petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor,
562 Pa. 70, 77, 753 A.2d 780, 783 (2000). Where a prior petition is pending
on appeal, a subsequent petition must be filed within the time limits set forth
in Section 9545(b)(2) as measured from the date of the order that finally
resolves the appeal in the prior petition, because that date is the first date the
claim could be presented. Lark, supra at 494, 746 A.2d at 588 (citing 42
Pa.C.S.A. § 9545(b)(2)).
In the instant case, Appellant timely filed his first PCRA petition on
January 22, 2014, and court-appointed counsel filed a no-merit letter and
motion to withdraw as counsel on February 27, 2014. On June 30, 2014, the
court granted counsel’s motion to withdraw and issued Rule 907 notice.
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3 As of December 24, 2018, Section 9545(b)(2) now allows that any PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim first could have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment
does not apply to Appellant’s case, which arose before the effective date of
the amendment.
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Appellant filed a premature pro se notice of appeal on July 21, 2014. On July
23, 2014, the court formally denied Appellant’s first PCRA petition. Appellant
continued to pursue his appeal from the denial of his first PCRA petition.
Meanwhile, on September 8, 2014, Appellant filed a second PCRA
petition, although the order denying his first petition was still pending on
appeal. The PCRA court erred in holding Appellant’s second petition in
abeyance during that appeal and in “reinstating” the second petition on July
22, 2016, as the court had no authority to do so. See id. Under Pennsylvania
law, Appellant had the option of either going forward with his appeal from the
order denying his first PCRA petition or filing and pursuing a second PCRA
petition, but he could not do both. See Zeigler, supra. As soon as Appellant
decided to exhaust the appeal from the denial of his first petition, the PCRA
court was required to dismiss any serial PCRA petition that Appellant filed
during the pendency of the appeal. See Lark, supra. The court accurately
noted its inability to proceed with Appellant’s second PCRA petition when filed,
but the court erred when it held the second petition in abeyance, rather than
dismiss it under Lark. The court had no authority to put Appellant’s second
petition on pause until Appellant’s pending appeal concluded. See id.Likewise, the court had no authority to “reinstate” Appellant’s second
petition, after his appeal on his first petition had ended, and then use the
original filing date of the second petition, September 8, 2014, to circumvent
the PCRA timeliness requirements. If the court had properly dismissed
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Appellant’s second petition when filed, then the law would require Appellant
to file a third petition within sixty days of May 3, 2016, upon conclusion of his
appeal, and satisfy a statutory exception to the PCRA time limits. Id.Appellant was originally sentenced on January 5, 2012. This Court
affirmed the judgment of sentence on October 28, 2013. Appellant sought no
further direct review. Therefore, the judgment of sentence became final on
November 27, 2013, upon expiration of the time to file a petition for allowance
of appeal with our Supreme Court. See Pa.R.A.P. 1113 (allowing thirty days
after entry of order of Superior Court to file petition for allowance of appeal).
Appellant filed his motion to “reinstate” his second PCRA petition on July
14, 2016. Using that date as the relevant date for measuring the timeliness
of his second petition, we conclude sua sponte that the current petition was
late on its face. See Whitney, supra. Additionally, Appellant failed to meet
the relevant sixty-day rule, because July 14, 2016 was more than sixty days
after the conclusion of his appeal on May 3, 2016. See Lark, supra; 42
Pa.C.S.A. 9545(b)(2). Moreover, Appellant did not plead and prove a PCRA
timeliness exception. See 42 Pa.C.S.A. § 9545(b)(1). Even though the PCRA
court failed to address the timeliness of Appellant’s second petition, we may
do so sua sponte. See Whitney, supra. Despite the Commonwealth’s failure
to object to the untimeliness of Appellant’s current petition, as well as the
PCRA court’s decision to address the petition on its merits, the timeliness of
the PCRA petition remained at issue and could not be waived or established
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by consent. See Hemingway, supra. By holding Appellant’s second PCRA
petition in abeyance during the pendency of the appeal of his first petition,
the court created a prohibited equitable exception to the PCRA timeliness
requirements, which did not serve to toll the statutory time bar. See Fahy,
supra. Lark precludes courts from “tolling” the PCRA time limits in this
manner, where an appeal is pending in the same case, even if the serial
petition is filed within one year of the date the judgment of sentence became
final.4 This sort of impropriety invites unwarranted delay in resolving cases
and strategic litigation abuses, as denounced in Porter, supra. Instead, Lark
required the court to dismiss Appellant’s serial petition, although dismissal of
the serial petition meant that a later petition would necessarily be untimely
on its face and subject to further qualifications before the court could review
it on the merits. See Lark, supra.Based on the foregoing, we hold the PCRA court erred in holding
Appellant’s second petition in abeyance, pending the outcome of the appeal
of his first petition in the same case, and then reinstating the petition for
review on the merits, without any jurisdictional analysis. The court should
have dismissed the second petition outright under Lark, when Appellant
initially filed it during the appeal from the denial of his prior PCRA petition.
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4 We distinguish the scenario that permits a court to hold a timely-filed PCRA
petition, while awaiting a decision in an unrelated case from a higher court,
or a legislative change, which could potentially impact the court’s decision in
the case before it. See Montgomery, supra at 364
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See id. Accordingly, we affirm the denial of relief on Appellant’s current
petition, albeit on other grounds. See Commonwealth v. Reese, 31 A.3d
708, 727 (Pa.Super. 2011) (en banc) (stating appellate court may affirm on
any basis as long as ultimate decision is correct).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2019
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