Com. v. Hartage, S.

J-A05039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SILAS HARTAGE :
:
Appellant : No. 202 EDA 2022
Appeal from the PCRA Order Entered January 6, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0505091-2006
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 3, 2023
Silas Hartage (Appellant) appeals from the order dismissing his petition
filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The PCRA court summarized the underlying facts as follows:
On January 12, 2006, Appellant poured lighter fluid on Carol
Ann Cook, his girlfriend, and himself and set her on fire at their
home in the city and county of Philadelphia, Pennsylvania. Both
Ms. Cook and Appellant were pulled, unconscious, from the
burning house by Philadelphia Fire Department. Ms. Cook was
taken to Temple University Hospital where she was intubated and
heavily sedated. At trial, Dr. Hensell, Ms. Cook’s doctor, testified
that Ms. Cook had second and third degree burns on her face,
shoulder, back, and arms. Ms. Cook remained sedated and on a
ventilator for nineteen days, spent fifty-four days in the burn
center, and an additional twenty-one days in the hospital’s
rehabilitation center. Ms. Cook underwent skin grafts and a
tracheotomy so that she could breathe on her own. Ms. Cook’s
permanent injuries include scars, lung problems, and voice
damage.
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[The Commonwealth charged Appellant with multiple crimes
related to the incident. Appellant’s] jury trial beg[an] October 10,
2006. On October 12, 2006, the jury returned a verdict of guilty
of attempted murder, [aggravated assault,] arson, and causing a
catastrophe. On January 30, 2007, the trial court sentenced
Appellant to an aggregate of forty to eighty years of incarceration.
Appellant did not appeal.
PCRA Court Opinion, 7/8/22, at 1-2.
Approximately six months later, Appellant filed a timely PCRA petition
which resulted in the reinstatement of Appellant’s direct appeal rights. See
PCRA Order, 12/15/08. Appellant appealed, and this Court granted partial
relief. Commonwealth v. Hartage, 21 A.3d 1191 (Pa. Super. Nov. 30,
2010) (unpublished memorandum). We determined there was insufficient
evidence to support Appellant’s conviction for causing a catastrophe, and
concluded Appellant’s sentence was illegal because the trial court failed to
merge Appellant’s convictions for attempted murder and aggravated assault
at sentencing. Id. The case was remanded to the trial court following
Appellant’s unsuccessful petition for allowance of appeal. Commonwealth
v. Hartage, 22 A.3d 1082 (Pa. May 12, 2011).
On September 26, 2011, the trial court resentenced Appellant to
consecutive sentences of 10 - 20 years for attempted murder and 10 - 20
years for arson. Appellant timely appealed. This Court affirmed the judgment
of sentence, and the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal. Commonwealth v. Hartage, 80 A.3d 775 (Pa.
Super. May 3, 2013) (unpublished memorandum), appeal denied, 81 A.3d
987 (Pa. Nov. 12, 2013).
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On October 20, 2020, Appellant filed the instant PCRA petition.1 The
PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the petition on
November 1, 2021. Appellant did not file a response. The PCRA court
dismissed Appellant’s petition on January 6, 2022. Appellant filed this timely
appeal and a court-ordered Pa.R.A.P. 1925(b) statement of matters
complained of on appeal.
Appellant presents the following question for review:
Whether dismissal of Appellant’s PCRA petition without an
evidentiary hearing was [] legal error and would result in a
violation of the constitutional right to effective counsel pursuant
to Pa. Const. art. 1, § 9, as per the standard enumerated within
42 Pa. C.S. § 9543?
Appellant’s Brief at v.
We review the PCRA court’s dismissal of Appellant’s PCRA petition for an
abuse of discretion. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.
Super. 2014). In reviewing Appellant’s claim, we must determine whether
the record supports the PCRA court’s findings and the order is free of legal
error. See Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). We
grant great deference to the PCRA court’s findings and will not disturb them
unless they have no support in the certified record. Commonwealth v. Rigg,
84 A.2d 1080, 1084 (Pa. Super. 2014). It is well settled that there “is no
absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA
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1 Appellant is currently represented by Robert B. Mozenter, Esquire.
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court can determine from the record that no genuine issues of material fact
exist, then a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d
903, 906 (Pa. Super. 2008).
Moreover, Pennsylvania law makes clear that no court has jurisdiction
to hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d
1076, 1079 (Pa. Super. 2010). A petitioner must file a PCRA petition within
one year of the date on which the petitioner’s judgment of sentence became
final, unless one of the three statutory exceptions (government interference,
unknown facts, or a newly recognized constitutional right) applies. 2 See 42
Pa.C.S.A. § 9545(b)(1)(i-iii). A petitioner must file a petition invoking one of
these exceptions “within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely and the
petitioner has not pled and proven an exception, “neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007).
Appellant concedes his “petition is untimely filed,” but claims “an
exception applie[s] to the timeliness requirement enumerated within 42
Pa.C.S.A. § 9545(b)(1).” Appellant’s Brief at 3-4. Appellant argues:
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2 “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 time for seeking the
review.’” Monaco, 996 A.2d at 1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)).
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In the case at hand, [Appellant] presented viable claims of
ineffective appellant [sic] counsel layered by claims of ineffective
trial counsel; thus, the [PCRA c]ourt’s dismissal without a hearing
was contrary to the Supreme Court of Pennsylvania’s
interpretation of 42 Pa. C.S.A. § 9545(b)(1)(i)-(iii).
While instant Counsel agrees with the [PCRA c]ourt that
ineffectiveness cannot typically circumvent the time-bar
exceptions enumerated within § 9545, this analysis is shortsighted
in that the [PCRA c]ourt failed to acknowledge the exception
where appellate counsel has essentially abandoned the petitioner.
Appellant’s Brief at 8.3
The Commonwealth correctly observes that Appellant’s claim does not
satisfy an exception to the PCRA’s timeliness requirements. See
Commonwealth Brief at 2. The PCRA court likewise concludes Appellant’s
“current PCRA petition was untimely filed and none of the exceptions to the
time-bar are applicable.” PCRA Court Opinion, 7/8/22, at 3. The PCRA court
reasoned:
Appellant attempted to invoke an exception to the PCRA
time bar[,] stating that there was government interference from
[Attorney Cotter, acting as Appellant’s first] appellate counsel,
failing to inform him he could file a PCRA petition without counsel.
Appellant claims he was led to believe that an attorney was
required to continue exercising his appellate rights. Appellant is
essentially claiming ineffective assistance of counsel and briefly
mentions government interference to invoke an exception under
42 Pa.C.S. § 9545.
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3 John P. Cotter, Esquire represented Appellant for “nearly seven year[s],”
from Appellant’s 2006 trial through his second appeal in 2013. See
Appellant’s Brief at 2. Appellant claims Attorney Cotter was ineffective
because after the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal, Appellant “requested that Mr. Cotter file a PCRA on his
behalf, and Mr. Cotter told Appellant that he could not go any further unless
he was paid; otherwise, [Appellant] would need to finish his appeal and/or
post-conviction process.” Id.
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In order to establish the governmental interference
exception, a petitioner must plead and prove (1) the failure to
previously raise the claim was the result of interference by
government officials and (2) the petitioner could not have
obtained the information earlier with the exercise of due diligence.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 ([Pa.]
2008). In other words, a petitioner is required to show that but
for the interference of a government actor “he could not have filed
his claim earlier.” Commonwealth v. Stokes, 959 A.2d 306,
310 ([Pa.] 2008). …
Appellant has failed to plead that the failure to raise this
claim was the result of government interference or that he could
not have obtained the information earlier with the exercise of due
diligence. The Superior Court found no merit to a claim of
government interference regarding the action of a court appointed
attorney in Commonwealth v. Stanton, 184 A.3d 949, 957 (Pa.
2018). Appellant fails to plead any facts on this issue other than
that he was led to believe he needed an attorney to file a PCRA
petition. Therefore, Appellant failed to meet his burden.
Appellant’s claims regarding ineffective assistance of
counsel fail[] to satisfy an exception. It is well-established that
allegations of ineffectiveness do not meet an exception to the
time-bar. Commonwealth v. Lark, 746 A.2d 585, 589 (Pa.
2000). [An i]neffectiveness claim does not constitute a time-bar
exception[;] it is untimely and unreviewable. Commonwealth v.
Robinson, 139 A.3d 178, 186 (Pa. 2016). [A] PCRA court lacks
jurisdiction to hear an untimely petition.
PCRA Court Opinion, 7/8/22, at 4-5 (some citations omitted).
Appellant nonetheless argues he is entitled to an evidentiary hearing
because he can prove the ineffective assistance (IAC) of Attorney Cotter.
Appellant’s Brief at 10-11. This claim, even if timely and reviewable, would
lack merit.
To prevail on an IAC claim, a PCRA petitioner must plead and
prove by a preponderance of the evidence that (1) the underlying
legal claim has arguable merit; (2) counsel had no reasonable
basis for acting or failing to act; and (3) the petitioner suffered
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resulting prejudice. Commonwealth v. Baumhammers, [] 92
A.3d 708, 719 ([Pa.] 2014) (citing [Commonwealth v.] Pierce,
527 A.2d [973,] 975–76 [(Pa. 1987)]). A petitioner must prove
all three factors of the “Pierce test,” or the claim fails. In
addition, on appeal, a petitioner must adequately discuss all three
factors of the “Pierce test,” or the appellate court will reject the
claim.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)
(en banc) (some citations omitted).
Counsel “is presumed effective, and to rebut that presumption, the PCRA
petitioner must demonstrate that counsel’s performance was deficient and
that such deficiency prejudiced him.” Commonwealth v. Koehler, 36 A.3d
121, 132 (Pa. 2012) (citation omitted). When “evaluating ineffectiveness
claims, judicial scrutiny of counsel’s performance must be highly deferential.”
Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (citation omitted).
Even if Appellant had timely filed his PCRA petition, we would agree with
the Commonwealth’s assessment of Appellant’s IAC claim. The
Commonwealth states:
[Attorney] Cotter clearly had a reasonable basis for not
proceeding with the PCRA petition [Appellant] allegedly
requested: it would have required [Attorney Cotter] to argue his
own ineffectiveness. He did not provide ineffective assistance by
advising [Appellant] to seek out another attorney, and [Appellant]
simply could have filed another pro se PCRA petition seeking to
have counsel appointed if he was eligible. Accordingly, the lower
court properly dismissed [Appellant]’s untimely PCRA petition.
Commonwealth Brief at 14-15.
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For the above reasons, the PCRA court did not abuse its discretion in
dismissing Appellant’s petition for post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2023
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