Com. v. Wells, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RODNEY WELLS :
:
Appellant : No. 2213 EDA 2019
Appeal from the PCRA Order Entered July 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0734932-1985
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 27, 2020
Rodney Wells (Appellant) appeals pro se from the order dismissing his
fourth petition for relief filed pursuant to the Post Conviction Relief Act (PCRA).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In November 1983, the Commonwealth charged Appellant with third-
degree murder, aggravated assault, criminal conspiracy, and possessing
instruments of crime.1 A grand jury (GJ) investigation was conducted into
Appellant’s crimes and alleged association with a drug trafficking and
racketeering organization in Philadelphia.2 The GJ issued a sealed
recommendation and presentment, and in July 1985, the Commonwealth
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1 See 18 Pa.C.S.A. §§ 2502(c), 2702(a), 903, 907.
2 The underlying facts are not relevant to this appeal.
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charged Appellant with violating Pennsylvania’s Corrupt Organizations Act, 18
Pa.C.S.A. § 911 (“corrupt organization”).
The matter proceeded to a jury trial in March 1986, after which Appellant
was convicted of all counts. The trial court sentenced Appellant to a
mandatory term of life in prison, plus 5 to 10 years. This Court affirmed the
judgment of sentence in May 1988, after which the Supreme Court of
Pennsylvania denied allowance of appeal. See Commonwealth v. Wells,
579 A.2d 421 (Pa. Super. 1990) (unpublished memorandum), appeal
denied, 592 A.2d 44 (Pa. 1990).
In the following years, Appellant filed three PCRA petitions, all of which
were dismissed; the dismissals were affirmed on appeal.3 Appellant filed the
instant PCRA petition, his fourth, on August 12, 2013. He asserted that the
prosecutor in his case, Roger King, Esquire (Attorney King), “fraudulently”
charged Appellant with corrupt organizations, because the offense was never
presented to the jury in the GJ presentment.4 The PCRA court appointed
counsel, who filed an amended PCRA petition. Thereafter, as counsel became
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3 See Commonwealth v. Wells, 953 A.2d 842 (Pa. Super. 2008)
(unpublished memorandum) (“Wells III”); Commonwealth v. Wells, 804
A.2d 63 (Pa. Super. 2002) (unpublished memorandum) (“Wells II”), appeal
denied, 813 A.2d 841 (Pa. 2002); Commonwealth v. Wells, 737 A.2d 813(Pa. Super. 1999) (unpublished memorandum).
4 Appellant raised substantially similar claims in each of his prior PCRA
petitions. Additionally, Appellant has engaged in substantial litigation in the
federal courts concerning this claim.
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unavailable, the court appointed successive substitute counsel, two of whom
filed supplemental PCRA petitions.
The PCRA court described the ensuing procedural history:
On November 8, 2018, [Appellant’s PCRA counsel] filed a
motion for production of [Appellant’s] grand jury file. Thereafter,
the [PCRA] court conducted an in camera review of the grand jury
file. The notes of testimony from the grand jury proceedings
revealed that on July 17, 1985, [Attorney] King did, in fact,
present the charge of corrupt organizations to the grand
jury. In the presentment, [Attorney] King states the following:
“I will ask you to consider recommending a presentment as it
relates to the count of corrupt organization ….” [N.T.,]
7/17/1985[,] at 2. [Attorney] King then reviewed the
presentment with the grand jury. The presentment states in
relevant part the following:
Having read the foregoing testimony, we have concluded
that a corrupt organization known as “The Family”
constituted an enterprise, that is, a group of individuals
who were associated in fact, although not a legal entity,
and who were engaged in commerce. The purpose of the
enterprise was to control the distribution of cocaine and
to make money from the illegal sales of the cocaine. The
profits from the enterprise were secured and protected
through the use of a series of violent physical actions.
These actions constituted a pattern of racketeering
activity. The shooting [and murder of certain individuals]
…, all in violation of 18 [Pa.C.]S.A. [§] 2501 et seq., and
the beating of [another man,] in violation of 18
[Pa.C.]S.A. [§] 2706, were all racketeering activities in
furtherance of the enterprise’s affairs. Therefore, we
recommend that the principal actors in this corrupt
organization, [including Appellant,] be charged with the
violation of 18 [Pa.C.]S.A. [§] 911.
[N.T.], 7/17/1985[,] at 45-46. After [Attorney] King read the
presentment to the grand jury, the grand jury took it under
consideration. Then[, Attorney] King asked “Mr. Foreperson, has
a vote been taken?” [Id.] at 47. The Foreperson responded and
stated, “[a] vote has been taken, fourteen for, one against in this
matter on all charges involving all persons.” Id. The Foreperson
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and [Attorney] King then went to see the supervising judge of the
grand jury…. The following exchange then took place:
The Court: I have read the presentment and I will sign
it. What was the vote?
The Foreperson: Fourteen for, one against. We have a
quorum of fifteen grand jurors.
The Court: All right. The foreperson will sign the
presentment right here.
[Id.] at 47-48.
On January 25, 2019, the [PCRA c]ourt permitted both the
attorney for the Commonwealth and PCRA counsel to inspect the
relevant pages from the grand jury notes of testimony in camera,
and read into the record the above-quoted testimony from the
grand jury notes. That same day, the court issued [Appellant]
notice, pursuant to Pa.R.Crim.P. 907 [(setting forth conditions
whereby a PCRA petition may be dismissed without a hearing),]
(“907 Notice”) of its intention to dismiss [Appellant’s] petition
without a hearing. [Appellant] submitted a response to the court’s
907 Notice [] on February 5, 2019. On March 15, 2019, Edward
J. Foster, Esquire entered his appearance on behalf of [Appellant].
On July 23, 2019, the court dismissed [Appellant’s] petition on the
grounds that it was untimely filed, and, in any event, without
merit. Thereafter, [Appellant] filed a motion to proceed pro se,
which the court granted.
PCRA Court Opinion, 10/22/19, at 3-5 (footnote, capitalization, and some
citations omitted). Appellant timely filed a pro se notice of appeal, followed
by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal.
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Appellant presents four issues in his voluminous, 80-page brief:5
1. Whether the PCRA court’s Rule 907 dismissal of this petition as
untimely and not qualified under the exceptions of 42 Pa.C.S.
§ 9545(b)(1)(i) [and] (ii) is supported by the evidence of
record and free of legal error?
2. Whether the PCRA court’s Rule 907 dismissal of this petition as
untimely and not qualified under the exceptions of 42 Pa.C.S.
§ 9545(b)(1)(i) [and] (ii) without an evidentiary hearing was
an abuse of discretion?
3. Whether the PCRA court’s Rule 907 dismissal of this petition as
without merit, without an evidentiary hearing[,] is supported
by the evidence and free of legal error?
4. Whether [Appellant’s] PCRA counsel were ineffective and
violated [Appellant’s] Sixth Amendment right to counsel?
Appellant’s Brief at 3-4 (some capitalization omitted).
We are mindful of our standard of review:
Appellate review of a PCRA court’s dismissal of a PCRA petition is
limited to the examination of whether the PCRA court’s
determination is supported by the record and free of legal error.
The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. This Court grants
great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a
contrary holding. In contrast, we review the PCRA court’s legal
conclusions de novo.
Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc)
(citations omitted).
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5 Appellant certifies that his brief is 87 words short of the maximum word
count prescribed by Pa.R.A.P. 2135(a)(1) (principal briefs shall not exceed
14,000 words); but see also Commonwealth v. Uderra, 862 A.2d 74, 99
(Pa. 2004) (Castille, J., concurring) (disapproving of prolix briefs and PCRA
claims lacking in substance).
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Additionally, a PCRA court may decline to hold a hearing on a PCRA
petition if the petitioner’s claim is patently frivolous and without a trace of
support in either the record or from other evidence. Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007). Any PCRA petition must
be filed within one year of the date the judgment of sentence becomes final.
42 Pa.C.S.A. § 9545(b)(1). The merits of a PCRA petition cannot be addressed
unless the PCRA court has jurisdiction. Commonwealth v. Albrecht, 994
A.2d 1091, 1093 (Pa. 2010). Jurisdiction does not exist if the PCRA petition
is untimely filed. Id.Here, Appellant’s PCRA petition is facially untimely, as he filed it more
than 22 years after January 1991, when his judgment of sentence became
final. However, Pennsylvania courts may consider an untimely petition if the
petitioner can explicitly plead and prove one of three exceptions set forth in
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) (collectively, the “timeliness exceptions”).
Any PCRA petition invoking one of the timeliness exceptions must be filed
within 60 days of the date the claim could have been presented. Id. §
9545(b)(2).6
Initially, we must address whether Appellant’s claims are cognizable
under the PCRA. To be eligible for PCRA relief, a petitioner’s allegation of error
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6 Section 9545(b)(2) was amended in 2018, and expanded the time for filing
from 60 days of the date the claim could have been first presented, to one
year. The amendment applies to claims arising on or after December 24,
2017. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3. In this case, the one-
year time limit does not apply to Appellant because he filed his petition in
August 2013.
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must not have previously been litigated. Id. § 9543(a)(3). An issue is
previously litigated, in relevant part, if “it has been raised and decided in a
proceeding collaterally attacking the conviction or sentence.” Id.
§ 9544(a)(3). Moreover, a petitioner cannot obtain PCRA review of previously
litigated claims by presenting the same claims in a new petition setting forth
new theories of relief. Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.
Super. 2000); see also Commonwealth v. Fuller, 509 A.2d 364, 366 (Pa.
Super. 1986) (“rephrased” claims presented in a PCRA petition that have
previously been rejected on appeal are not cognizable).
Here, Appellant raised essentially identical claims in his second and third
PCRA petitions, which were rejected by the PCRA court and affirmed on
appeal. See Wells II, supra (unpublished memorandum at 5-6) (rejecting
as previously litigated, Appellant’s claim of “newly-discovered facts”
concerning the Commonwealth not charging Appellant with corrupt
organizations); Wells III, supra (unpublished memorandum at 5-6) (same).
Nevertheless, even if Appellant’s claims were cognizable, we would
determine they lack merit. Appellant contends he met the timeliness
exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i) (governmental
interference with the presentation of claims) and (b)(1)(ii) (newly-discovered
facts). We will address these exceptions, and Appellant’s first three issues
together, since they are related.
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Appellant argues that he has uncovered new facts to support his claim
that Attorney King fraudulently prosecuted him on the corrupt organizations
charge, where the Commonwealth never actually charged Appellant with that
offense. See Appellant’s Brief at 40-64. Appellant contends the corrupt
organizations charge “appears to have been a tool for prosecutorial
misconduct to obtain a murder conviction and seek the death penalty in the
face of blatantly insufficient evidence.” Id. at 64. Appellant further argues
he met the requirements of the governmental interference exception, where
“the Commonwealth controlled and suppressed the information in the grand
jury file, interfering with [Appellant’s] ability to proceed to challenge the
constitutionality of his [corrupt organizations] conviction.” Id. at 53.
First, concerning Appellant’s invocation of the newly-discovered facts
exception, we are mindful that:
Section 9545(b)(1)(ii) requires [a] petitioner to allege and prove
that there were “facts” that were “unknown” to him and that he
could not have ascertained those facts by the exercise of “due
diligence.” The focus of [section] 9545(b)(1)(ii) is on the newly
discovered facts, not on a newly discovered or newly willing source
for previously known facts.
Maxwell, 232 A.3d at 745 (footnotes, citations, brackets, and quotation
marks omitted).
In support of its determination that Appellant failed to meet the newly-
discovered facts exception, the PCRA court reasoned:
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Here, [Appellant] claims that ADA King committed a fraud on
the court by not presenting the corrupt organizations charge to
the grand jury.[FN] [Appellant] presents several documents from
various agencies, in which representatives of the agencies
submitted affidavits regarding their efforts to locate records, such
as an affidavit of probable cause or arrest warrant, related to
[Appellant’s] case. [Appellant] avers that these records are
probative of the alleged fraud committed by ADA King. Each
document will be discussed below.
[FN] The Court recognizes the apparent anomaly in
addressing the timeliness issue when it is now
absolutely clear, from the grand jury notes, that the
factual predicate of all of [Appellant’s] claims is false,
since ADA King did submit the corrupt organization
charge to the grand jury. Still, the PCRA court is
obligated to explore the timeliness issue in every case,
since the court is without jurisdiction to reach the
merits of an untimely petition.
First, [Appellant] made a request to the Office of Open
Records for the City of Philadelphia Law Department to search for
records. See Supplemental Petition, filed 6/4/2018, at p. 24. On
July 1, 2013, Lieutenant Edward Eg[]enlauf, an Open Records
Officer for the City of Philadelphia Police Department, sent
[Appellant] an affidavit, in which he stated that he had “searched
the records of the City of Philadelphia Police Department to the
best of [his] ability for records regarding ‘affidavit of probable
cause/arrest warrant to attached) criminal complaint, criminal
case, no. ep-51-CR-0734932-1985, Commonwealth v. Wells,
or any documents related to the arrest of this charge on July 17,
1985’ (collectively, ‘Requested Records’).” Affidavit of Lt. Edward
Egenlauf, Philadelphia Police Department (“Egenlauf Affidavit”) at
¶ 1; see Supplemental Petition, filed 6/4/2018, at p. 24 & Exhibit
A. The affidavit also stated that “[t]he Requested Records do not
exist to the best of [Lieutenant Egenlauf’s] knowledge,
information and belief” Egenlauf Affidavit at ¶ 2. In addition,
Lieutenant Egenlauf averred that “[i]t is understood that this does
not mean that the records do not exist under another spelling,
another name, or under another classification.” Egenlauf Affidavit
at ¶ 3.
Next, [Appellant] requested that a search be conducted of
the records department at the Criminal Justice Center.
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Supplemental Petition, filed 6/4/2018, at p. 24. On July 8, 2013,
Janine Vinci, Esquire sent an affidavit to [Appellant], in which she
stated the following:
1. I assert that from June through July of 2013, I have
searched for the “affidavit of probable cause/arrest
warrant” regarding the criminal complaint case of
Commonwealth vs. Wells, No.CP-51-CR-0734932-
1985.
2. I requested these records from the record department
at CJC-Criminal Justice Center and also searched the
micro-film records.
3. Through my exhausted search of these records, I
found that these records do not exist to the best of my
legal knowledge and research.
Affidavit/Declaration of Janine E. Vinci Pursuant to 18, Pa.C.S.
[§] 4904 at ¶¶ 1-3; see Supplemental Petition, filed 6/4/2018, at
p. 24 & Exhibit B.
Third, [Appellant] presents the final determination of the
Pennsylvania Office of Open Records, in which the Office stated
that it does not possess the records sought by [Appellant].
Pennsylvania Office of Open Records, Final Determination,
7/19/2013, at pp. 1-2; see Supplemental Petition, filed 6/4/2018,
at p. 24 & Exhibit C.
Finally, [Appellant] presents an affidavit from his father,
Walter Wells, which details his unsuccessful efforts from mid-June
2013 until the date of the affidavit, July 11, 2013, to obtain certain
records, such as an affidavit of probable cause or arrest warrant,
related to [Appellant’s] case, from the Criminal Justice Center
Records Department. Affidavit of Walter Wells, 7/11/2013, at
¶ 3; see Supplemental Petition, filed 6/4/2018, at p. 24 & Exhibit
D. He also stated that he made unsuccessful efforts to obtain said
records from “The Clerk of Court, Police Administration Building,
City Hall Records Department” and the District Attorney’s Office.
Id. at 2.
None of [Appellant’s] submissions reveal relevant “new
facts.” The documents described above do not establish that the
Commonwealth failed to present the charge for corrupt
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organizations to the grand jury. They simply convey that the
agencies and individuals who corresponded with [Appellant] did
not have possession of the requested records and/or did not have
the legal authority to access these records. Moreover, even if the
records did exist, they would not support [Appellant’s] claim.
Accordingly, [Appellant’s] averments do not establish the newly
discovered facts exception to the time bar.
PCRA Court Opinion, 10/22/19, at 9-11 (footnote in original). Our review
discloses that the foregoing analysis is supported by the record, and we agree
with the PCRA court’s determination.
Further, to the extent Appellant invokes the governmental interference
exception, see Appellant’s Brief at 51-55, he likewise fails to meet the
requirements of the exception. See 42 Pa.C.S.A. § 9545(b)(1)(i) (requiring
a petitioner to plead and prove that the failure to previously raise claims of
error was the result of interference by governmental officials, and that the
information could not have been obtained earlier with the exercise of due
diligence). As the evidence of record reflects, there was no government
interference in Appellant’s case; there was no fraud or procedural impropriety
with the corrupt organizations charge. Moreover, it is clear that Appellant
knew of the alleged interference for many years before the expiration of the
period in which he had to raise his claim. See id. § 9545(b)(2) (claims must
be raised within 60 days); see also 42 Pa.C.S.A. § 9545(b)(1)(i).
Accordingly, Appellant’s first three issues fail.
In his fourth and final issue, Appellant contends he is entitled to
collateral relief because his PCRA counsel were constitutionally ineffective for:
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(a) requesting an in camera review of the GJ presentment, which is merely
“advisory in nature”; and (b) acceding to the PCRA court’s rejection of
Appellant’s claim. Appellant’s Brief at 65, 68.
It is well settled that a claim for ineffective assistance of counsel does
not save an otherwise untimely petition for review on the merits. See
Commonwealth v. Mitchell, 141 A.3d 1277, 1285 (Pa. 2016);
Commonwealth v. Lark, 746 A.2d 585, 589-90 (Pa. 2000) (couching an
argument in terms of ineffectiveness cannot save a petition that does not fall
into an exception to the jurisdictional time bar). Accordingly, Appellant’s
ineffectiveness claim is unavailing. Id.However, even if we could address the merits of Appellant’s claim, it
lacks arguable merit as explained by the PCRA court:
The entire premise of all of [Appellant’s] claims for the last
25 years is that the corrupt organizations charge was never
presented to the grand jury. [Appellant] and [PCRA] counsel were
absolutely confident, albeit wrong, that the grand jury notes would
support their position and show that [Attorney] King committed
an outrageous fraud on the court.[7] Because an in camera review
of the grand jury file was the only way to resolve [Appellant’s]
claim, [PCRA counsel] unquestionably made a reasonable request
for the review.
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7 We note that the sentencing court imposed no sentence on the corrupt
organizations conviction. Nevertheless, Appellant, who is serving life in prison
for his murder conviction, has engaged in a tireless, decades-long attack on
his corrupt organizations conviction. Appellant continues to consume judicial
resources in re-litigating this frivolous claim. See, e.g., Commonwealth v.
Hoskins, 432 A.2d 149, 156 (Pa. 1981) (Roberts, J., dissenting)
(disapproving of actions that place “needless strain on already scarce
professional and judicial resources”).
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PCRA Court Opinion, 10/22/19, at 14 (footnote added). Appellant’s final issue
fails.
Accordingly, because Appellant’s fourth PCRA petition is untimely and
no exceptions apply, we affirm the order dismissing the petition.
Order affirmed. Application for extension of time to file reply brief
denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2020
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