Com. v. Gerald, M.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MIKE GERALD, A/K/A GERALD MIKE, : No. 906 WDA 2014
:
Appellant :
Appeal from the PCRA Order, April 24, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0011398-2003
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 06, 2015
Mike Gerald a/k/a Gerald Mike appeals pro se from the order filed in
the Court of Common Pleas of Allegheny County which dismissed, without a
hearing, his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Because we agree with the PCRA
court that appellant’s facially untimely petition failed to establish a statutory
exception to the one-year jurisdictional time limit for filing a petition under
the PCRA, we affirm.
Following a coroner’s inquest on August 4, 2003, appellant was
charged with one count of criminal homicide in connection with the shooting
* Retired Senior Judge assigned to the Superior Court.
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death of John Mitchell on March 15, 1998.1 Mitchell was shot once in the
chest at close range with a .40 caliber semi-automatic handgun. Appellant
admitted to police officers that he shot the victim but claimed it was an
accident.2 On August 24, 2004, a jury convicted appellant of third-degree
murder.3 On November 11, 2004, the court sentenced appellant to 20 to
40 years’ imprisonment.4 On December 15, 2004, appellant filed a notice of
appeal.5 The judgment of sentence was affirmed by this court on August 24,
2006. On September 22, 2006, appellant, through counsel, filed a petition
1
The facts of this case are set forth in Commonwealth v. Gerald,
No. 2165 WDA 2004, unpublished memorandum (Pa.Super. filed August 24,
2006).
2
Appellant claimed another individual, Jermaine Brown, was playing with the
gun and that he became concerned and asked Brown for the firearm.
Appellant stated that Brown removed the magazine and handed the gun to
appellant. Once appellant had possession of the gun, he pulled the slide
back at which time the gun accidently discharged hitting the victim in the
chest. Appellant also told the detectives that he fled the house and
discarded the gun en route to his girlfriend’s house. (Notes of testimony,
8/19/04 (T.T.) at 277.) At trial, the Commonwealth’s expert criminalist,
Robert Levine, Ph.D., testified that after a magazine is removed from a gun,
if a person pulls back on the slide with a cartridge still in the chamber,
normally the gun would not fire and the live round would be ejected from
the gun. (T.T. at 220-224.)
3
18 Pa.C.S.A. § 2502(c).
4
Appellant’s trial counsel was Robert Foreman, Esq., of the Office of Public
Defender.
5
Appellant’s direct appeal counsel was Scott Rudolf, Esq., also of the Office
of Public Defender.
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for allowance of appeal in the Pennsylvania Supreme Court. On March 6,
2007, the petition was denied.
On March 5, 2010, appellant, through his PCRA counsel, Scott Coffey,
Esq., filed his first (amended) PCRA petition.6 (Docket #56.) The post-
conviction issues raised included: ineffective assistance of trial counsel for
failing to move to suppress appellant’s confession; ineffective assistance of
trial counsel for failing to utilize appellant’s girlfriend, Lisa Fields, at trial to
prove that appellant’s confession was coerced; ineffective assistance of trial
counsel for failing to request a corpus delicti jury instruction; and
ineffective assistance of trial counsel for failing to cross-examine Monte
Nichols regarding his expectation of leniency for testifying against appellant.
An evidentiary PCRA hearing was held on June 8, 2010. The PCRA court
dismissed appellant’s PCRA petition on November 16, 2010, based on its
determination that all claims raised therein were meritless.
On November 22, 2011, the PCRA court appointed Christy Foreman,
Esq., to represent appellant on appeal. Attorney Foreman filed a timely
notice of appeal, and raised the same issues Attorney Coffey had raised in
the PCRA petition. On August 21, 2012, this court affirmed the PCRA court’s
6
Appellant initially requested the court’s permission to represent himself. A
hearing was held pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998). After the trial court issued a notice of intention to dismiss appellant’s
pro se PCRA petition, appellant agreed to counseled representation.
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ruling. Commonwealth v. Gerald, No. 1911 WDA 2010, unpublished
memorandum (Pa.Super. filed August 21, 2012). A petition for allowance of
appeal was filed, and denied by our supreme court on March 13, 2013.
On February 3, 2014, appellant, pro se, filed his second PCRA petition
which is at issue here. (Docket #79.) On March 25, 2014, the court issued
a notice, pursuant to Pa.R.Crim.P. 907, of its intention to dismiss the petition
without a hearing on the grounds that all issues were time-barred.
(Docket #80.) Appellant responded and on April 24, 2014, the PCRA court
dismissed his PCRA petition.
Appellant raises the following issues on appeal:
(A) DID BRIAN WIESMANTLE[] CAUSE A
MISCARRIAGE OF JUSTICE WHEN HE
INTENTIONOLLY [SIC] CHOSE TO LIE AND
FALSIFY EVIDENCE IN ORDER FOR THE GRAND
JURY TO PURSUE CRIMINOL [SIC] CHARGES.
(1) WAS COURT APPOINTED COUNSEL
CHRIST [SIC] P. FOREMAN
ESQUIRE INEFFECTIVE FOR
FAILING TO DEMONSTRATE
MEANINGFULL [SIC] PARTICIPATIN
[SIC] EFFECTIVELY LEAVEING
[SIC] APPEALANT [SIC]
UNCOUNSELED ON ISSUES (1-6).
AND EFFECTIVELY MISLEADING
APPEALANT [SIC] IN REGAURD
[SIC] TO HIS NEXT STAGE OF
APPEAL[?]
(2) WAS MS. FOREMAN ESQUIRE
INEFFECTIVE FOR FAILING TO
REFUTE THE EVIDENTIARY
HEARING TRANSCRIPTS AS
INACURATE [SIC][?]
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(3) WAS MS. FOREMAN, ESQUIRE
INEFFECTIVE IN HER FAILURE TO
ADDRESS PETITIONER[’]S ISSUES
OF INEFFECTIVE WITH PRIOR
PCRA COUNSEL SCOTT COFFY
[SIC], ESQUIRE[?]
(4) WAS MS. FOREMAN, ESQUIRE
INEFFECTIVE FOR FAILING TO
ARGUE, LITIGATE OR SUPPORT
PETITIONER[’]S ISSUES BY THE
RECORD IN REGAURD [SIC] TO
WHETHER TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO
CROSS EXAMINE MONTEE [SIC]
NICHOLS REGAURDING [SIC] THE
SENTENCE AND FINES HE FACED
LEAVEING [SIC] PETITIONER
EFFECTIVELY UNCOUNSELED[?]
(5) WAS MS. FOREMAN, ESQUIRE WAS
[SIC] INEFFECTIVE FOR FAILING
TO ARGUE, LITIGATE OR SUPPORT
PETITIONER[’]S ISSUES BY THE
RECORD IN REGAURD [SIC] TO
TRIAL COUNSEL FAILING TO
SUPPRESS INVOLUNTARY
STATEMENT TO POLICE, FAILING
TO FILE A HABEAS CORPUS
PITITION [SIC] AFTER NO CORPUS
DELECTI INSTRUCTION WAS
PROVIDED MS[.] FOREMAN
FAILING TO SHOW HOW
PETITIONER WAS PREJUDICED BY
THE ABSENCE OF THE JURY
INSTRUCTION FOR FAILING TO
ASSERT TRIAL COUNSEL[’]S
INEFFECTIVENESS THROUGH THE
RECORD LEAVEING [SIC]
PETITIONER EFFECTIVELY
UNCOUNSELED[?]
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(6) WAS MS. FOREMAN, ESQUIRE
INEFFECTIVE FOR FAILING TO
ARGUE, LITIGATE OR SUPPORT
PETITIONER[’]S ISSUE BY THE
RECORD IN REGAURD [SIC] TO
DETECTIVE DALE CONOFARI[’]S
TESTIMONY AT EVIDENTIARY
HEARING LEAVEING [SIC]
PETITIONER EFFECTIVELY
UNCOUSELED [SIC] DUE TO HIS
FALSIFICATION OF EVIDENCE[?]
(B) DID DR. LEVINE FOR THE PROSECUTION
CREATE A MISCARRIAGE OF JUSTICE WHEN
HIS TESTIMONY BLIND SIDED [SIC] THE
DEFENSE WITH DESCOVERY [SIC] VIOLATION
TESTIMONY TO PROVE CASATION [SIC][?]
(C) WAS IT TRIAL COURT ERROR PROSECUTOR
MISCONDUCT INEFFECTIVE ASSISTENCE [SIC]
OF COUNSEL WHEN THE COMMEN WEALTH
[SIC] WITH HELD [SIC] THE PRE[-]SENTENCE
REPORT FROM PETITIONER SENTENCE COURT
ERROR TO NOT SENTENCE DEFENDANT UNDER
GUIDELINES AT THE TIME OF THE CRIME.
[D] TRIAL COURT ERROR, INEFFECTIVE COUNSEL
TO NOT FILE MODIFICATION OF SENTENCE
Appellant’s brief at 2.
All PCRA petitions, including second and subsequent petitions, must be
filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes 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 the review.” 42 Pa.C.S.A. § 9545(b)(3).
The Pennsylvania Supreme Court has held that the PCRA’s time restriction is
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constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004).
In addition, our supreme court has instructed that the timeliness of a PCRA
petition is jurisdictional. If a PCRA petition is untimely, a court lacks
jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118(Pa.Super. 2014) (courts do not have jurisdiction over an untimely PCRA);
Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).
In this case, we affirmed the appellant’s judgment of sentence on
August 24, 2006. Appellant timely petitioned for allowance of appeal which
was denied on March 6, 2007. United States Supreme Court Rule 13
provides that “[a] petition for writ of certiorari seeking review of a judgment
of a lower state court that is subject to discretionary review by the state
court of last resort is timely when filed with the Clerk within 90 days after
entry of the order denying discretionary review.” U.S. Sup.Ct. Rule 13;
28 U.S.C.A. Under this rule, appellant had 90 days (i.e., until June 4, 2007)
to file a petition for certiorari in the United States Supreme Court with
respect to the Pennsylvania Supreme Court’s order. Thus, appellant’s
judgment became final on June 4, 2007. 42 Pa.C.S.A. § 9545(b)(3). See
also Commonwealth v. Owens, 718 A.2d 330 (Pa.Super. 1998). Under
42 Pa.C.S.A. § 9545(b)(1), appellant had one year from this date, until
June 4, 2008, to file his PCRA petition. The instant petition, which the trial
court dismissed as time-barred, was filed on February 3, 2014, nearly seven
years after appellant’s judgment of sentence became final.
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There are three narrow exceptions to the one-year time bar: when the
government has interfered with the defendant’s ability to present the claim,
when the defendant has recently discovered facts upon which his PCRA claim
is predicated, or when either the Pennsylvania Supreme Court or the United
States Supreme Court has recognized a new constitutional right and made
that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v.
Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The defendant has the
burden of pleading and proving the applicability of any exception.
42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a valid exception
to the time bar of the PCRA, this court may not review the petition. See
42 Pa.C.S.A. § 9545(b)(1)(i-iii).
Appellant has failed to specifically invoke any valid exception to what
is a facially untimely PCRA petition. He does not aver or demonstrate that
his various allegations of error were either caused by the interference by
government officials, or that it was unknown or not discoverable by him by
due diligence or that there are any newly recognized constitutional rights
that must be considered. “If the petition is determined to be untimely, and
no exception has been pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are without jurisdiction to
consider the merits of the petition.” Commonwealth v. Perrin, 947 A.2d
1284, 1285 (Pa.Super. 2008).
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As appellant’s second PCRA petition is clearly untimely and appellant
has failed to plead and prove the applicability of any exception to the PCRA’s
time-of-filing requirements, the PCRA court lacked jurisdiction to consider
the merits of appellant’s issues and did not err in dismissing appellant’s
petition without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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