Com. v. Steward, N.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NORMAN T. STEWARD :
:
Appellant : No. 1634 EDA 2022
Appeal from the PCRA Order Entered June 9, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002043-2006
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED MAY 10, 2023
Normand Steward (Appellant) appeals pro se from the June 9, 2022,
order entered in the Lehigh County Court of Common Pleas, which denied his
serial petition for relief under the Post Conviction Relief Act (PCRA), 1 without
a hearing. Appellant seeks relief from the judgment of sentence of life
imprisonment without the possibility of parole, imposed on November 15,
2007, following his jury convictions of second-degree murder, robbery, and
conspiracy to commit robbery.2 On appeal, Appellant raises several claims
regarding ineffective assistance of counsel and prosecutorial misconduct.
Because we conclude Appellant’s PCRA petition was filed in an untimely
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1 42 Pa.C.S. § 9541-9546.
2 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), and 903(a)(1) respectively.
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manner and he failed to plead and prove that any of the exceptions to the
PCRA’s jurisdictional time-bar applied, we affirm.
The pertinent facts and prolonged procedural history are as follows.
Appellant’s convictions stem from the shooting death of Michelle Vasquez on
July 31, 2005, at the victim’s apartment building in Allentown, Pennsylvania.
On October 24, 2007, a jury found Appellant guilty of the above-stated
crimes.3 See Verdict Slip, 10/25/07, at 1-2 (unpaginated). On November 15,
2007, the trial court imposed the following concurrent sentences: (1) life
imprisonment with parole for the murder conviction; (2) six to 12 years for
the robbery offense; and (3) five to ten years for conspiracy conviction.
Appellant filed timely post sentence-motions,4 which the trial court denied on
April 14, 2008. Appellant filed a direct appeal, and a panel of this Court
affirmed his judgment of sentence on August 13, 2010. See Commonwealth
v. Steward, 1293 EDA 2008 (Pa. Super. Aug. 13, 2010).
On May 2, 2011, Appellant filed a pro se PCRA petition, requesting
permission to file a petition for allowance of appeal (PAA) nunc pro tunc with
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3The jury found Appellant not guilty of criminal conspiracy to commit murder.
See Verdict Slip at 2 (unpaginated).
4 In his post-sentence motions, Appellant raised, inter alia, claims that there
was insufficient evidence to support his convictions, the verdict was against
the weight of the evidence, and that the trial court improperly admitted certain
testimony and evidence. See Appellant’s Post-Sentence Motions, 11/26/07,
at 1-6.
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the Pennsylvania Supreme Court. Counsel was appointed, who then filed an
amended PCRA petition. The PCRA court granted Appellant relief and
permitted him to file a PAA nunc pro tunc with the Supreme Court. See Order,
3/26/12. On April 25, 2012, Appellant filed a PAA seeking discretionary review
with the Supreme Court.5 See Trial Ct. Op., 9/9/22, at 2. The Supreme Court
denied the petition on March 1, 2013. See Commonwealth v. Steward,
330 MAL 2012 (Pa. March 1, 2013).
The case went dormant for several years until August 27, 2019, when
Appellant filed a pro se PCRA petition.6 On September 10, 2019, the PCRA
court treated the filing as a second PCRA petition and issued notice, pursuant
to Pa.R.Crim.P. 907, of its intent to dismiss the petition without conducting an
evidentiary hearing. Appellant filed a pro se response. On October 9, 2019,
the court denied his petition. See Order, 10/9/19, at 1-2 (unpaginated).
Appellant subsequently appealed.
While this appeal was pending, Appellant filed a “Petition of Newly
D[i]scovered Evidence.” See Petition of Newly Discovered Evidence, 3/24/20,
at 1-4. In the petition, Appellant alleged that the Commonwealth failed to
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5 We note that this petition was not included in the certified record.
6 Appellant made evidentiary claims regarding the testimony of witnesses that
were presented at trial. See Appellant’s PCRA Petition, 8/27/19, at 4. He
insisted that he was eligible for relief because he was mentally incompetent
and had been admitted to a psychiatric hospital. Id. at 3.
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provide him with evidence concerning the chain of custody that would have
helped his defense at trial, and the Commonwealth improperly withheld that
information. See id. at 1-2. The PCRA court treated this document as a PCRA
petition and denied it as “untimely.” Order, 4/7/20, at 1 n.1 (unpaginated).
Additionally, the court stated that “even if the [c]ourt was inclined to respond
to this [p]etition, this [c]ourt’s denial of [Appellant 2019 PCRA petition], which
raises substantially the same issues, is currently under review by” this Court,
and therefore, it did “not have jurisdiction to consider” the petition. Id.
In May 2020, Appellant filed a response7 to the PCRA court’s April 7,
2020, order, which the court again treated as a PCRA petition and dismissed
on May 6, 2020, stating that Appellant’s first PCRA petition was still pending
on appeal and therefore, it did not have the jurisdiction to review the matter.
See Order, 5/6/20, at 1 n.1 (unpaginated). Appellant filed an appeal, but the
PCRA court “did not take immediate action to address the appeal.” See
Commonwealth v. Steward, 1210 EDA 2020 (Pa. Super. Dec. 21, 2021)
(unpub. memo. at 3).
Turning back to the appeal concerning Appellant’s 2019 petition, a panel
of this Court vacated the PCRA court’s October 9, 2019, order “and remanded
the matter for the appointment of counsel and further proceedings pursuant
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7 Appellant raised similar allegations to those in his “Petition of Newly
Discovered Evidence.” See Appellant’s Response to PCRA Court’s April 7,
2020, Order, 5/1/20, at 1-2.
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to the PCRA.” See Commonwealth v. Steward, 3009 EDA 2019 (Pa. Super.
June 22, 2020) (unpub. memo. at 1). The panel explained:
[T]he PCRA court determined that this is [A]ppellant’s second
PCRA petition. That conclusion, however, is erroneous. When the
PCRA court granted the relief that [A]ppellant requested in his
PCRA, which was [a] reinstatement of his right to seek
discretionary review with our [S]upreme [C]ourt with respect to
his direct appeal, that reset[s] the clock for the calculation of the
finality of [A]ppellant’s judgment of sentence for PCRA purposes.
See Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa.
Super. 2008) (determining that where a successful PCRA petition
neither restores petitioner’s direct appeal rights nor disturbs the
conviction, clock is not reset for the calculation of judgment of
sentence for PCRA purposes). As such, the instant petition must
be deemed [A]ppellant’s first PCRA petition.
Steward, 3009 EDA 2019 (unpub. memo. at 1) (record citation omitted). The
panel further determined that Appellant was entitled to have counsel
appointed to represent him for his first PCRA petition, even if the petition was
facially untimely. See Steward, 3009 EDA 2019 (unpub. memo. at 5).
Following this Court’s decision, the PCRA court appointed Matthew Rapa,
Esquire, to represent Appellant. The assigned PCRA court judge then retired
before taking any action regarding Appellant’s 2020 PCRA petition. The case
was assigned to a new judge, who only addressed Appellant’s 2019 PCRA
petition.
On October 1, 2020, Attorney Rapa submitted a motion to withdraw as
counsel and a “no-merit” letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
1988). Counsel averred that Appellant’s PCRA petition was “untimely, and
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therefore, the [PCRA] court is without jurisdiction to hear [his] claims.” Motion
to Withdraw as Counsel, 10/1/20, at 1 (unpaginated).8 “The PCRA court held
a hearing on the timeliness of Appellant’s first petition and, afterwards,
allowed counsel to withdraw.” Steward, 1210 EDA 2020 (unpub. memo. at
4). Thereafter, on February 10, 2021, the court denied Appellant’s 2019 PCRA
petition, and Appellant did not appeal that decision.9
Subsequently, on December 15, 2021, a panel of this Court affirmed the
PCRA court’s May 6, 2020, order, which disposed of Appellant’s outstanding
2020 PCRA petition. See Steward, 1210 EDA 2020 (unpub. memo. at 1).
The panel determined:
Appellant continue[d] to argue issues that were the subject of his
first PCRA petition, which PCRA counsel addressed in his no-merit
letter, and which was ultimately denied as untimely by the PCRA
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8 In Attorney Rapa’s “no-merit” letter, he observed that “the only possible
exception [Appellant] raised to the one-year time period for filing a PCRA
pertain[ed] to after-discovered facts or evidence.” Motion to Withdraw as
Counsel at Exhibit A, October 1, 2020, “No-Merit” Letter at 2 (unpaginated).
Nevertheless, after reviewing the evidence and allegations, Attorney Rapa
concluded that Appellant failed to meet his burden in establishing that this
exception applied. Id. at 3-4.
9 During this time, Appellant filed a document titled, Motion for Counsel and
Relief. See Appellant’s Motion for Counsel and Relief, 12/7/20, at 1-8. The
PCRA court denied this motion on January 8, 2021, explaining that the
appointed counsel, Attorney Rapa, was permitted to withdraw from
representation of Appellant on his PCRA motion. See Order, 1/7/21.
Appellant appealed the denial of that motion on January 26, 2021. The PCRA
court dismissed Appellant’s notice of appeal because it was an interlocutory
appeal, that was not appealable as of right, and it made no determination that
an immediate appeal would facilitate resolution of the entire case. See Order,
2/9/21, at 2, n. 1.
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court on February 10, 2021. Instead, the instant appeal, filed long
before the PCRA court rendered its February 10, 2021[,] decision,
pertains solely to the May 6, 2020[,] order dismissing Appellant’s
third PCRA petition due to a lack of subject matter jurisdiction.
It is well-established that “a PCRA court may not entertain
a new PCRA petition when a prior petition is still under appellate
review and, thus, is not final.” Commonwealth v. Montgomery,
181 A.3d 359, 364-65 (Pa. Super. 2018) (en banc) (citing
Commonwealth v. Porter, 35 A.3d 4 (Pa. 2012)). Accordingly,
the PCRA court correctly noted that it lacked jurisdiction to
consider a serial PCRA petition until the first appeal concluded.
See Montgomery, supra at 364-65. We find that the PCRA court
did not err when it dismissed Appellant’s third PCRA petition due
to the absence of subject-matter jurisdiction.
See id. (unpub. memo. at 5-6). Appellant did not file a PAA with the
Pennsylvania Supreme Court.
Instead, on April 29, 2022, Appellant filed another pro se PCRA petition,
which is the subject of the present appeal. In his petition, Appellant raised
several allegations of trial counsel’s ineffectiveness and prosecutorial
misconduct. See Appellant’s PCRA Petition, 4/29/22, at 4A-4E.
On May 5, 2022, the PCRA court issued a Rule 907 notice. Appellant
filed a pro se response on June 1, 2022. Eight days later, the PCRA court
denied Appellant’s petition as untimely filed. This pro se appeal followed.10
Appellant raises the following issues for our review:
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10 On July 18, 2022, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
to which Appellant complied. On September 9, 2022, the PCRA court filed an
opinion stating that its May 5, 2022, Rule 907 Notice order adequately
addressed Appellant’s concise statement. See PCRA Ct. Op., 9/9/22., at 3.
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A) Trial Counsel was ineffective for not submitting to the jury the
record of [the] victim[’s] cellphone that was on her person when
found. The cellphone records [proved] that she was alive over an
hour pas[t] the time witness Nathan Petruska stated [Appellant]
confessed to him. [This means] Petrusa has to be lying about the
confession at 12 to [one] o[’]clock when the cellphone records
show on [the] night of [the] crime [that] the victim had a[n] active
phone call at around [two] o[’]clock [in the morning].
B) Trial Counsel was ineffective for not objecting to the admission
of testimony of [the] recovered firearm to the crime without the
actual [firearm] being turned over to the Commonwealth by
witnesses. Meaning their testimony was [h]earsay which is
inadmissible, doing nothing but being prejudicial to a fair trial.
C) Trial [C]ounsel was ineffective for not objecting to the
testimony of Jarret Hursh denying the truth of his [out-of-court]
statement giving a new version of what happened[,] inculpating
[Appellant,] which is inadmissible [ ] due to the fact the prejudicial
[effect outweighed] the probative [value] which [would result in
the] automatic retrial of the entire case. [See]
[Commonwealth] v. Wright, 321 A.2d 625 [(Pa. 1974).]
D) Trial [C]ounsel was ineffective for not bringing to the jury[’]s
attention that Petruska and [Appellant were] not friends but [in
fact] had a fall out by Petruska then [Girlfriend] Daniel Corcoran
while on the stand[,] which would discredit Petruska to be telling
the truth that he and [Appellant were] friends and [Appellant
confessed] to him.
E) Prosecution committed a misconduct when submitting to the
jury all [t]estimony of recovered [firearm] to the crime and no
gun in evidence[,] this is [v]ouching which is a misconduct.
Appellant’s Brief at 1-3 (grammatical errors in original; some spacing &
paragraph breaks omitted).
The standard by which we review PCRA petitions is well settled:
Our standard of review in a PCRA appeal requires us to determine
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. The scope of our review is limited to the findings of the
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PCRA court and the evidence of record, which we view in the light
most favorable to the party who prevailed before that court. . . .
The PCRA court’s factual findings and credibility determinations,
when supported by the record, are binding upon this Court.
Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. Super. 2020).
Before we may address the merits of Appellant’s argument, we must
determine if his PCRA petition was properly filed. It is undisputed that:
The timeliness of a PCRA petition is a jurisdictional requisite.
[T]he PCRA time limitations implicate our jurisdiction and may not
be altered or disregarded in order to address the merits of the
petition. In other words, Pennsylvania law makes clear no court
has jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019)
(emphasis, citations, & quotation marks omitted).
Accordingly,
[a] PCRA petition is timely if it is filed within one year of the date
the judgment of sentence becomes final. 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 time for
seeking the review.
Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018)
(citations & quotation marks omitted).
Here, Appellant’s judgment of sentence became final on May 30, 2013,
90 days after the Pennsylvania Supreme Court denied his PAA nunc pro tunc,
and the time for filing a petition to the United States Supreme Court for a writ
of certiorari expired. See 42 Pa.C.S. §9545(b)(3); U.S. Sup. Ct. R. 13.1 (“[A]
petition for a writ of certiorari to review a judgment in any case, . . . is timely
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when it is filed with the Clerk of this Court within 90 days after entry of the
judgment.”). Appellant generally had one year, or until May 30, 2014, to file
a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Accordingly, his petition —
filed more than seven years late — is facially untimely.
Nevertheless, we may still consider an untimely petition if a petitioner:
(1) alleges and proves one of the three exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i) to (iii); and (2) files a petition raising the exception within one
year of the date the claim could have been presented. 42 Pa.C.S. §
9545(b)(2). The three time-for-filing exceptions are as follows:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). It is the appellant’s “burden to allege and
prove that one of the timeliness exceptions applies.” Commonwealth v.
Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
Here, the PCRA court found Appellant’s petition was untimely and
dismissed it. See Rule 907 Notice Order, 5/5/22, at 2; see also Order,
9/9/22. The court stated:
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[T]he petition will [only] be entertained [if] a strong prima facie
showing is offered to demonstrate that a miscarriage of justice
may have occurred; it further appearing that [Appellant] has
failed to establish a prima facie showing that the proceedings
which resulted in his conviction were so unfair that a miscarriage
of justice occurred which no civilized society could tolerate, or that
he was innocent of the crimes for which he was charged; it further
appearing that [Appellant]is attempting to relitigate the claims
decided[.]
Rule 907 Notice Order, 5/5/22, at 2 (footnotes & quotation marks omitted).
We agree with the court’s conclusions. A review of Appellant’s brief
reveals he fails to address, or even dispute, the untimeliness of his PCRA
petition. See Appellant’s Brief at 1-5. Instead, he focuses on substantive
claims of ineffective assistance of trial counsel and prosecutorial misconduct.
See id. at 1-3. He also maintains his actual innocence, disputing evidence
that was presented at his 2007 trial. See id. at 4-5. Accordingly, Appellant
has not proved, or even asserted, that his claims meet any of the timeliness
exceptions.
Moreover, as the PCRA court recognizes, since this is Appellant’s fourth
PCRA petition, he bears a higher burden in seeking PCRA relief. See Order,
5/5/22, at 2 The Pennsylvania Supreme Court has previously stated:
A second or subsequent petition for post-conviction relief will not
be entertained unless a strong prima facie showing is offered to
demonstrate that a miscarriage of justice may have occurred. A
prima facie showing of entitlement to relief is made only by
demonstrating either that the proceedings which resulted in
conviction were so unfair that a miscarriage of justice occurred
which no civilized society could tolerate, or the defendant's
innocence of the crimes for which he was charged.
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Commonwealth v. Ali, 86 A.3d 173, 176-77 (Pa. 2014) (citations omitted).
Here, Appellant’s arguments fail to demonstrate that “a miscarriage of justice
may have occurred.” Id. at 176. As such, we conclude the PCRA court lacked
jurisdiction to review the petition and it properly denied relief.11 See
Montgomery, 181 A.3d at 365.
Order affirmed. Jurisdiction relinquished.
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11 It merits mention that
although this Court is willing to construe liberally materials filed
by a pro se litigant, pro se status generally confers no special
benefit upon an appellant. Accordingly, a pro se litigant must
comply with the procedural rules set forth in the Pennsylvania
Rules of the Court. This Court may quash or dismiss an appeal if
an appellant fails to conform with the requirements set forth in
the Pennsylvania Rules of Appellate Procedure.
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003)
(citations omitted).
Here, Appellant’s brief violates the Rules of Appellate Procedure by
failing to include a statement of jurisdiction, a statement of both the scope
and standard of review, a statement of the case, and a summary of the
argument. See Pa.R.A.P. 2111(a), 2114, 2117-2118. Moreover, the
argument section of his brief consists of one sentence: “All claims therein are
miscarriages of justice and shall be heard.” Appellant’s Brief at 4. To extent
that Appellant raises challenges in the “Claims” section of his brief, these
arguments are simply bald assertions with no citations to legal authority and
reference to the record. See Pa.R.A.P. 2119(b)-(c). Accordingly, even if we
were to conclude that Appellant’s petition was timely filed, we would find the
appeal quashed or dismissed for failure to conform to the requirements set
forth in the Pennsylvania Rules of Appellate Procedure. See Lyons, 833 A.2d
at 251-52.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2023
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