J-A08026-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT THOMAS NAUSS : : Appellant : No. 997 EDA 2023
Appeal from the PCRA Order Entered April 5, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003770-1977
BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 4, 2024
Appellant, Robert Thomas Nauss, appeals from an order entered on April
5, 2023, in the Criminal Division of the Court of Common Pleas of Delaware
County that dismissed, without a hearing, his petition filed pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Specifically,
the PCRA court concluded that Appellant’s petition was untimely and did not
validly invoke an exception to the PCRA’s jurisdictional one-year time bar. We
affirm.
We obtained the following recitation of the underlying facts and
procedural history in this matter from our prior non-precedential
memorandum decision that affirmed the dismissal of one of Appellant’s earlier
petitions for collateral relief.
On December 9, 1977, a jury found Appellant [] guilty of murder in the first degree [in the death of Elizabeth Lande]. Following the denial of post-trial motions, the trial court sentenced [Appellant] J-A08026-24
to a term of life imprisonment [without parole]. On December 17, 1981, the Pennsylvania Supreme Court affirmed [Appellant’s] judgment of sentence. See Commonwealth v. Nauss, 442 A.2d 661 (Pa. 1981) [(per curiam)].
Appellant escaped from prison in 1982 [and] remained a fugitive until his capture in late 1990. On January 15, 1997, Appellant filed his first pro se PCRA petition. The PCRA court appointed counsel who filed an amended petition. Following a hearing on the merits, the PCRA court denied the petition on December 31, 1997. On November 10, 1998, this Court affirmed the dismissal of the PCRA petition. See Commonwealth v. Nauss, 734 A.2d 438 (Pa. Super. 1998). On June 3, 1999, the Pennsylvania Supreme Court denied leave to appeal. See Commonwealth v. Nauss, 739 A.2d 542 (Pa. 1999).
On March 28, 2016, Appellant filed [a second] pro se PCRA petition.[] On May 20, 2016, the PCRA court issued notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure 907. See Pa.R.Crim.P. 907(1). Appellant did not file a response. On September 19, 2016, the PCRA court dismissed the petition as untimely.
Appellant subsequently filed a timely pro se notice of appeal.[] The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal, but did issue an opinion on October 14, 2016. See Pa.R.A.P. 1925. [This Court affirmed the dismissal of Appellant’s second petition for collateral relief on May 12, 2017].
Commonwealth v. Nauss, 2017 WL 1969741 (Pa. Super. 2017)
(non-precedential decision) (footnotes omitted).
Appellant filed his current PCRA petition on April 6, 2021. As grounds
for relief, Appellant cited the ineffective assistance of trial counsel, together
with constitutional violations which allegedly undermined the
truth-determining process to such an extent that no reliable adjudication of
guilt or innocence could have taken place. Counsel entered an appearance on
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behalf of Appellant and filed an amended petition on June 14, 2022. In the
amended petition, counsel acknowledged that Appellant’s most recent petition
was facially untimely but invoked the governmental interference and the
newly-discovered facts exceptions to the PCRA’s timeliness requirement. See
42 Pa.C.S.A. §§ 9545(b)(1)(i) and (ii). After determining that Appellant’s
petition was untimely, that it did not meet any exception to the PCRA’s
timeliness requirements, and that the court therefore lacked jurisdiction to
entertain Appellant’s claims, the PCRA court, on February 22, 2023, issued
notice pursuant to Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s
petition without a hearing. Thereafter, Appellant filed a response to the Rule
907 notice and the court dismissed Appellant’s petition by order entered on
April 5, 2023. This timely appeal followed.1
Appellant raises two claims on appeal.
Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented to establish violations of Appellant’s constitutional rights under the United States and Pennsylvania Constitutions, where Appellant raised the claims of [] prosecutorial misconduct, willful failure by the government to provide [materials pursuant to Brady v. Maryland, 373 U.S. 83 (1963)], obstruction of justice by the government, and newly discovered evidence that was undiscoverable due to the government’s cover up?
Whether the PCRA court erred by failing to grant an evidentiary hearing? ____________________________________________
1 Appellant filed his notice of appeal on April 20, 2023.Since the PCRA court believed the issues to be raised on appeal were clear from the record, it did not issue an order pursuant to Pa.R.A.P. 1925(b) but filed an opinion on June 20, 2023. See PCRA Court Opinion, 6/20/23, at 2.
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Appellant’s Brief at 4.
We apply a familiar standard of review to Appellant’s challenge to the
order dismissing his petition for collateral relief.
[O]ur standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error. The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(cleaned up). We are also mindful that Appellant alleges that the PCRA court
erred in refusing to convene a hearing on his claims. “[T]o obtain reversal of
a PCRA court's decision to dismiss a petition without a hearing, an appellant
must show that he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise abused its
discretion in denying a hearing.” Commonwealth v. Sneed, 45 A.3d 1096,
1106 (Pa. 2012) (quotation and citation omitted).
“[I]f a PCRA [p]etition is untimely, a trial court has no jurisdiction to
entertain the petition.” Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa.
Super. 2000) (citations omitted). The PCRA provides that “[a]ny petition
under this subchapter, including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final[.]” 42 Pa.C.S.A.
§ 9545(b)(1). A judgment becomes final for PCRA purposes “at the conclusion
of direct review, including discretionary review in the Supreme Court of the
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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).
Here, the Pennsylvania Supreme Court affirmed Appellant’s judgment of
sentence on December 17, 1981. Therefore, Appellant's judgment of sentence
became final on February 15, 1982, after the then-applicable 60-day period
to file a petition for a writ of certiorari with the United States Supreme Court
expired. See U.S.Sup.Ct.R. 20 (former).
Appellant filed his pro se PCRA petition on April 6, 2021. Because
Appellant filed his petition nearly four decades after his judgment of sentence
became final, the petition is facially untimely. Nevertheless, Pennsylvania
courts may consider an untimely PCRA petition if the petitioner pleads and
proves one of three exceptions set forth under Section 9545(b)(1). These
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.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Our Supreme Court has
emphasized that “it is the petitioner who bears the burden to allege and prove
that one of the timeliness exceptions applies.” Commonwealth v. Marshall,
947 A.2d 714, 719 (Pa. 2008) (citation omitted).
As noted above, Appellant’s amended PCRA petition asserted that he
validly invoked the governmental interference exception and the
newly-discovered facts exception to the PCRA's one-year time bar. For these
reasons, Appellant contends that the PCRA court erred in dismissing his
petition as untimely without the benefit of a hearing.
Appellant’s efforts to overcome the PCRA’s jurisdictional timeliness
requirements focus upon the statements of his private investigator, Michael
Riggs, who claims to have interviewed William Standen, a central
Commonwealth witness at Appellant’s 1977 trial, and Albert Goldy, the alleged
victim of a criminal assault perpetrated by Standen in 1971. Appellant
attached Riggs’ statements to his amended petition. According to one of the
statements, Goldy told Riggs that, in 1971, Standen shot Goldy in the back of
the head with a shotgun but that the case was never prosecuted. Goldy also
said that two Delaware County detectives approached him, gave him
$1,000.00, and that he never heard anything more about the charges against
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Standen.2 Another affidavit prepared by Riggs states that the Delaware
County District Attorney’s office “gave Standen a deal” regarding the assault
charges involving Goldy in exchange for his cooperation and testimony in
Appellant’s case.3
____________________________________________
2 Riggs’ affidavit summarizing his interview with Goldy stated in relevant part:
I, [Riggs], a Licensed Private Investigator, in New Jersey, Pennsylvania, and Florida [do] solemnly swear that on March 30, 2022, I interviewed [Goldy at his place of employment, where he works as a salesman]. In the interview[,] Goldy advised me that in December 1971, he got into an argument with [Standen]. The argument escalated and Standen shot him in the back of his head and back with a shotgun. Standen was arrested and charged with what Goldy believed to be Attempted Murder. The case was never prosecuted, as Standen fled the Commonwealth. Several years later, before [Appellant’s] trial began, Goldy stated that two Delaware County Detectives approached him [where he was employed at the time]. They asked him what it would take to drop the charges against Standen. Goldy explained that he wanted $3,500.00 to cover his medical expenses from the shooting. He was told that that was not acceptable and offered him $1,000.00. A few days later, Standen arrived at [Goldy’s place of employment] accompanied by the detectives. Goldy was given $1,000.00 in cash and never heard anything further about the charges.
Appellant’s Amended PCRA Petition, 6/14/22, at Attachment 2.
3 In relevant part, Riggs’ affidavit summarizing his interview with Standen provided:
I, [Riggs], a Licensed Private Investigator, in New Jersey, Pennsylvania and Florida do solemnly swear that on December 2, 2018, accompanied by Robert T. Zimmerman, a Licensed Private Investigator, in New Jersey and Pennsylvania, conducted an interview of [Standen in Hammonton, New Jersey]. In the interview Standen advised of his involvement [in Appellant’s trial] (Footnote Continued Next Page)
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Based upon the statements of his private investigator, Appellant
contends that the Commonwealth violated Brady v. Maryland, 373 U.S. 83
(1963) by concealing material exculpatory and impeachment evidence
regarding Standen and the testimony he offered at trial. 4 According to
Appellant, the Commonwealth: (1) failed to disclose to the defense at the time
of trial the full extent of Standen’s cooperation agreement; (2) failed to correct
Standen’s testimony denying the existence of a “deal” or any cooperation
agreement; and, (3) failed to reveal that police officials allegedly paid Goldy.
Appellant maintains that the Commonwealth’s Brady violations fall
within the exceptions to the PCRA’s one-year jurisdictional filing period which
and stated that he was given a deal by the [Delaware County] District Attorney for his cooperation and testimony [against Appellant].
Appellant’s Amended PCRA Petition, 6/14/22, at Attachment 1.
4 Appellant’s brief also alludes to a claim alleging that the Commonwealth concealed a close relationship between its forensic expert at Appellant’s trial and the Delaware County District Attorney, guarded the expert’s background, and failed to disclose that the expert was the subject of a federal investigation in 1965. See Appellant’s Brief at 7 and 14-15. Appellant, however, nowhere addresses when and how he learned of this previously undisclosed material or why this information could not, with reasonable diligence, have been discovered sooner. Instead, Appellant simply offers generalized assertions of nondisclosure and a governmental cover up aimed at subverting his ability to expose the expert’s alleged bias before the jury. Because this claim is woefully underdeveloped, we deem it to be waived. See Commonwealth v. Arnolt, 294 A.3d 364, 379 (Pa. 2023) (undeveloped claim subject to waiver where it is presented only through generalized assertions that lack cogent legal presentation and argument).
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are set forth at Sections 9545(b)(1)(i) and (ii). With reference to Section
9545(b)(1)(i) (the governmental interference exception), Appellant argues
that his failure to raise his claims previously was the result of interference by
government officials, i.e., the Commonwealth's violation of its continuing
obligation to disclose Brady material. See Appellant’s Brief at 13. With
respect to Section 9545(b)(1)(ii) (the newly-discovered facts exception),
Appellant asserts that Standen’s recent acknowledgement of a “deal” with the
Delaware County District Attorney’s office and Riggs’ disclosure of an alleged
police payment to Goldy constitute previously unknown information which
triggered the newly-discovered facts exception. See id. at 9.
In the proper circumstances, Brady violations can implicate both the
governmental and newly-discovered facts exceptions. Our Supreme Court has
made clear that, “a Brady violation may fall within the governmental
interference exception, [but] the petitioner must [nonetheless] plead and
prove [that] the failure to raise the claim previously was the result of
interference by government officials, and [that] the information could not
have been obtained earlier with the exercise of due diligence.”
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), citing
Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). Moreover, the
newly-discovered facts exception codified at Section 9545(b)(1)(ii) “requires
[a petitioner to allege and demonstrate that] the facts upon which the Brady
claim is predicated were not previously known to the petitioner and could not
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have been ascertained through due diligence.” Abu-Jamal, 941 A.2d at
1268, citing Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa. 2005).5
We now address whether Appellant’s claims surrounding Standen’s
cooperation agreement and the alleged police payment to Goldy (in that order)
validly triggered the timeliness exceptions set forth at Sections 9545(b)(1)(i)
and (ii).
At Appellant’s trial, Standen began his testimony by explaining that,
although no promises were made in exchange for his information in the death
of Elizabeth Lande, the Delaware County District Attorney’s office agreed to
help him resolve outstanding charges that were pending against him. See
N.T., 12/2/77, at 125-126. On cross-examination, Standen explained that he
had been charged with criminal assault on December 17, 1971 for shooting
Goldy. He remained a fugitive on those charges until July 1977 when he was
arrested by officers from the Philadelphia Police Department. Standen then
5 In Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007), our Supreme Court clarified that Section 9454(b)(1)(ii)'s exception does not contain the same requirements as a Brady claim, noting “[the Supreme Court] made clear the exception set forth in [Section 9454](b)(1)(ii) does not require any merits analysis of the underlying claim. Rather, the exception merely requires that the ‘facts' upon which such a claim is predicated must not have been known to [the petitioner], nor could they have been ascertained by due diligence.” Bennett, 930 A.2d at 1271. In practical terms, Bennett’s clarification of Section 9454(b)(1)(ii) precludes us from considering, as part of our jurisdictional analysis, the impact any unknown facts would have upon a new trial.
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approached the Delaware County District Attorney’s office for assistance in
resolving the assault charges. At the time of Appellant’s trial, Standen
confirmed that he was not subject to prosecution for his attack on Goldy. The
subject of a police payment to Goldy was never broached at Appellant’s trial.
We agree with the PCRA court that Appellant’s contentions concerning
the nature and extent of Standen’s cooperation agreement with the Delaware
County District Attorney’s office do not trigger the timeliness exceptions set
forth at Sections 9545(b)(1)(i) and (ii). As stated above, Standen explained
to the jury at Appellant’s trial that he agreed to cooperate with the prosecution
and testify against Appellant in the case sub judice in exchange for the District
Attorney’s assistance in resolving the charges pending against him. Hence,
the factfinder at Appellant’s trial was made aware of the factual underpinning
of Standen’s desire to please the prosecution, his potential bias against
Appellant, and the reasons his testimony might reasonably be called into
question and rejected. Because the nature and extent of Standen’s
cooperation arrangement was disclosed by the Commonwealth and
understood by Appellant, it cannot be used to invoke the governmental
interference or unknown facts exceptions to the PCRA’s timeliness
requirements.
In challenging the PCRA court’s determinations, Appellant emphasizes
that Standen, during his interview with Riggs, characterized his cooperation
arrangement with the Delaware County District Attorney’s office - for the first
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time - as a “deal.” Appellant further notes that Standen denied the existence
of a “deal” at the 1977 trial. Despite these circumstances, Appellant has
neither alleged nor proved how Standen’s first-time characterization, standing
alone, could have altered, supplemented, or enhanced the substance of the
impeachment evidence that was placed before Appellant’s jury over four
decades ago. Accordingly, Appellant’s claims concerning the nature and
extent of Standen’s cooperation agreement with the Delaware County District
Attorney’s office do not resuscitate Appellant’s untimely petition.
The alleged payment to Goldy, however, presents a slightly different
issue. The police payment to Goldy was not addressed at Appellant’s 1977
trial, so we will assume, without deciding, that this fact, at the time of trial,
was neither disclosed by the Commonwealth nor known to Appellant.
Nonetheless, we conclude that the PCRA court did not err in dismissing
Appellant’s petition as untimely since Appellant’s amended petition failed to
plead and prove that he exercised due diligence to discover this fact and,
therefore, did not raise a genuine issue with respect to this claim that required
resolution at an evidentiary hearing.
To properly invoke the governmental interference and the
newly-discovered facts exceptions, a petitioner must plead and prove that
facts which have been identified as previously undisclosed or unknown “could
not have been obtained earlier with the exercise of due diligence.”
Abu-Jamal, 941 A.2d at 1268. Due diligence requires “neither perfect
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vigilance nor punctilious care,” Commonwealth v. Shiloh, 170 A.3d 553,
558 (Pa. Super. 2017), but demands reasonable efforts by a petitioner, under
the particular circumstances, to protect his own interests and “uncover facts
that may support a claim for collateral relief.” Id. “A petitioner must explain
why [he] could not have learned the [unknown or undisclosed] fact earlier
with the exercise of due diligence.” Id., citing Breakiron, 781 A.2d at 98.
Pennsylvania courts strictly enforce this principle. See Commonwealth v.
Monaco, 996 A.2d 1076, 1080 (Pa. Super 2010), appeal denied, 20 A.3d
1210 (Pa. 2011).
In this case, the amended petition does not describe any factual
investigation designed and undertaken by Appellant to uncover the alleged
payment to Goldy. Moreover, the petition alleges no facts to explain why,
despite reasonable diligence, Appellant could not uncover the payment earlier,
particularly in view of the passage of nearly four decades between the original
1977 trial and the filing of the instant petition in 2021. Put differently,
Appellant’s amended petition neither pleads nor proves the efforts he
undertook to discover undisclosed or unknown information or, alternatively,
the pointlessness of undertaking any effort to uncover the facts which are now
central to his claims. Instead, Appellant simply contends on appeal that he
should not be burdened with the obligation to investigate or uncover facts
pertinent to his contentions (or to explain why earlier discovery was not
feasible) where the prosecution has allegedly failed to discharge its obligations
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pursuant to Brady. See Appellant’s Brief at 9. As the Commonwealth
correctly points out, however, Appellant’s argument essentially posits that a
Brady claim displaces the requirement of due diligence, which is a mandatory
component for establishing an exception to the PCRA’s limitations period. See
Commonwealth’s Brief at 6. When a Brady violation has been asserted as
grounds for invoking the governmental interference and newly-discovered fact
exceptions, our Supreme Court has made clear that, in both instances, the
petitioner must expressly plead and prove that the undisclosed or unknown
information “could not have been obtained earlier with the exercise of due
diligence.” Abu-Jamal, 941 A.2d at 1268. Since Appellant neither pled nor
proved any facts that would raise a genuine issue as to the diligence of his
investigative efforts or the futility of reasonable investigation concerning the
payment to Goldy, he did not validly invoke an exception to the PCRA’s
jurisdictional time bar.
We discern no error of law or abuse of discretion in the PCRA court's
dismissal of Appellant's petition without a hearing. The record unambiguously
demonstrates that Appellant's petition is patently untimely. Moreover,
Appellant’s amended PCRA petition did not allege facts which, if resolved in
his favor, would have demonstrated that the circumstances surrounding
Standen’s cooperation arrangement were previously concealed or unknown,
or that the payment to Goldy could not have been discovered earlier despite
due diligence in the four decades that have passed since Appellant’s 1977
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trial. As such, the PCRA court correctly determined that Appellant’s petition
was not subject to a timeliness exception. Without jurisdiction, neither this
Court nor the PCRA court could reach the merits of Appellant's substantive
claims. Accordingly, the PCRA court, even without the benefit of an
evidentiary hearing, did not err in dismissing Appellant’s petition as untimely.
Order affirmed.
Date: 10/4/2024
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