J-A18020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONNIE AUSTIN : : Appellant : No. 1460 WDA 2019
Appeal from the PCRA Order Entered August 30, 2019 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000214-1997
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONNIE AUSTIN : : Appellant : No. 1461 WDA 2019
Appeal from the PCRA Order Entered August 30, 2019 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000213-1997
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 04, 2020
In this consolidated appeal, Appellant, Ronnie Austin, appeals from the
Order entered on August 30, 2019, in the Court of Common Pleas of Fayette
County, dismissing his seventh Petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm. J-A18020-20
On November 19, 1997, a jury convicted Appellant of First-Degree
Murder, Retaliation Against a Witness, and Criminal Conspiracy, 1 related to
the June 1995 murder of Patricia Flo Malec (“the Victim”). The trial court
sentenced Appellant to life in prison. This Court affirmed the Judgment of
Sentence, and our Supreme Court denied allocatur on September 8, 1999.
Commonwealth v. Austin, 737 A.2d 1268 (Pa. Super. 1999) (unpublished
memorandum), appeal denied, 743 A.2d 913 (Pa. 1999). Therefore,
Appellant’s sentence became final on December 7, 1999.2 Since that time,
Appellant has filed numerous PCRA Petitions, none of which have garnered
relief. Appellant filed the instant Petition, his seventh, on June 16, 2017.
The following brief history is necessary to our disposition. The
Commonwealth listed Peggy Franks as a Commonwealth witness for
Appellant’s trial. Ten days before trial, Ms. Franks signed a written statement
that identified someone other than Appellant as the one who killed the Victim
(“the 1997 Statement”).
At trial, however, Ms. Franks testified that it was Appellant and his two
co-defendants who murdered the Victim. PCRA Ct. Op., 8/30/19, at 4-6. When
Appellant’s counsel questioned Ms. Franks about the 1997 Statement, she
denied making it but admitted that a private investigator wrote the 1997
Statement in her presence. Id. at 6-12. ____________________________________________
1 18 Pa.C.S. §§ 2502(a), 4953(a), and 903, respectively.
2 See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13 (petition for writ of certiorari must be filed within 90 days of final judgment).
-2- J-A18020-20
With this background in mind, we move forward in time to the events
leading up to Appellant’s instant Petition. In February 2017, Ms. Franks
contacted a mutual friend she shared with Appellant’s sister. Id. at 18, 20. As
a result of that contact, Appellant’s sister hired a private investigator who, in
April 2017, spoke with Ms. Franks about the Victim’s murder. Ms. Franks gave
the private investigator a new statement (“the 2017 Statement”) in which, in
relevant part, she recanted her trial testimony that identified Appellant as the
person who killed the Victim. Id. at 16-18. Ms. Franks concluded that she did
not believe that Appellant killed the victim. Id.
Appellant filed the instant PCRA Petition on June 16, 2017. Appellant
argued that Ms. Franks’ 2017 Statement contained “new facts” to invoke the
newly-discovered facts exception to the PCRA time-bar. PCRA Petition,
6/16/17, at 7-10. Substantively, Appellant raised an after-discovered
evidence claim and a Brady3 claim based on facts contained in the 2017
Statement. Id. at 11-19, 23.
The court held hearings on November 15, 2017, and February 26, 2018,
at which Ms. Franks affirmed the contents of her 2017 Statement. PCRA Ct.
Op., 8/30/19, at 18-22. Ms. Franks’ son, Aaron Franks, also testified, stating
that he spent “six, seven hours” with Appellant on the day of the Victim’s
death. Id. at 23.
____________________________________________
3 Brady v. Maryland, 373 U.S. 83 (1963).
-3- J-A18020-20
Thereafter, the court denied Appellant’s Petition as untimely, finding
that he failed to satisfy the new fact and due diligence requirements of the
newly-discovered facts exception to the PCRA time-bar. PCRA Ct. Op.,
8/30/19, at 24-26.
Appellant timely filed a Notice of Appeal and complied with Pa.R.A.P.
1925. The PCRA court filed a Statement in Lieu of Opinion, referring this Court
to its Opinion and Order filed August 30, 2019.
Appellant presents three issues for our review:
1. Whether Brady violations, committed at Appellant’s trial and admitted by the Commonwealth at his 2017 PCRA Hearing, warrant a new trial;
2. Whether Aaron Franks’ after-discovered alibi testimony at the 2018 PCRA Hearing warrants a new trial; and
3. Whether Peggy Franks[’] new, exculpatory testimony required a new trial wherein new facts clearly would have resulted in a different verdict had a jury heard this exculpatory new evidence.
Appellant’s Br. at 3 (reordered for ease of analysis and issues 1 and 2
rephrased for clarity).
We review an order denying PCRA relief to determine whether the
evidence of record supports the court’s decision and if the decision is otherwise
free from legal error. Commonwealth v. Paddy, 15 A.3d 431, 441-42 (Pa.
2011). We begin by addressing the timeliness of Appellant’s Petition because
the PCRA time limitations implicate our jurisdiction. Commonwealth v.
Kretchmar, 189 A.3d 459, 462 (Pa. Super. 2018). Our standard of review
-4- J-A18020-20
over jurisdictional questions is de novo, and our scope of review is plenary.
Commonwealth v. Fields, 197 A.3d 1217, 1221 (Pa. Super. 2018).
Initially, we agree with the PCRA court that Appellant’s instant Petition
is patently untimely. Pennsylvania courts may consider an untimely PCRA
petition, however, if the appellant pleads and proves that one of the three
exceptions to the PCRA time-bar applies. 42 Pa.C.S. § 9545(b)(1). The
petitioner must plead and prove that: (1) interference by government officials
in violation of the Constitution or laws of the Commonwealth or the United
States caused the petitioner’s failure to raise the claim earlier; (2) the facts
underlying the claim were unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or (3) the asserted right is a new
constitutional right, recognized and held to apply retroactively by the Supreme
Court of the United States or the Supreme Court of Pennsylvania. 42 Pa.C.S.
§ 9545(b)(1)(i)-(iii).
In his first issue, Appellant presents a Brady claim. Appellant’s Br. at
21-35. He asserts that at the 2017 PCRA Hearing, the Commonwealth
revealed previously undisclosed leniency it provided to Ms. Franks. Id. 23-25,
30. Similarly, in Appellant’s second issue, he argues that he learned about
Aaron Franks’ alibi testimony for the first time at the 2018 PCRA Hearing.
Appellant’s Br.
Free access — add to your briefcase to read the full text and ask questions with AI
J-A18020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONNIE AUSTIN : : Appellant : No. 1460 WDA 2019
Appeal from the PCRA Order Entered August 30, 2019 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000214-1997
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONNIE AUSTIN : : Appellant : No. 1461 WDA 2019
Appeal from the PCRA Order Entered August 30, 2019 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000213-1997
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 04, 2020
In this consolidated appeal, Appellant, Ronnie Austin, appeals from the
Order entered on August 30, 2019, in the Court of Common Pleas of Fayette
County, dismissing his seventh Petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm. J-A18020-20
On November 19, 1997, a jury convicted Appellant of First-Degree
Murder, Retaliation Against a Witness, and Criminal Conspiracy, 1 related to
the June 1995 murder of Patricia Flo Malec (“the Victim”). The trial court
sentenced Appellant to life in prison. This Court affirmed the Judgment of
Sentence, and our Supreme Court denied allocatur on September 8, 1999.
Commonwealth v. Austin, 737 A.2d 1268 (Pa. Super. 1999) (unpublished
memorandum), appeal denied, 743 A.2d 913 (Pa. 1999). Therefore,
Appellant’s sentence became final on December 7, 1999.2 Since that time,
Appellant has filed numerous PCRA Petitions, none of which have garnered
relief. Appellant filed the instant Petition, his seventh, on June 16, 2017.
The following brief history is necessary to our disposition. The
Commonwealth listed Peggy Franks as a Commonwealth witness for
Appellant’s trial. Ten days before trial, Ms. Franks signed a written statement
that identified someone other than Appellant as the one who killed the Victim
(“the 1997 Statement”).
At trial, however, Ms. Franks testified that it was Appellant and his two
co-defendants who murdered the Victim. PCRA Ct. Op., 8/30/19, at 4-6. When
Appellant’s counsel questioned Ms. Franks about the 1997 Statement, she
denied making it but admitted that a private investigator wrote the 1997
Statement in her presence. Id. at 6-12. ____________________________________________
1 18 Pa.C.S. §§ 2502(a), 4953(a), and 903, respectively.
2 See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13 (petition for writ of certiorari must be filed within 90 days of final judgment).
-2- J-A18020-20
With this background in mind, we move forward in time to the events
leading up to Appellant’s instant Petition. In February 2017, Ms. Franks
contacted a mutual friend she shared with Appellant’s sister. Id. at 18, 20. As
a result of that contact, Appellant’s sister hired a private investigator who, in
April 2017, spoke with Ms. Franks about the Victim’s murder. Ms. Franks gave
the private investigator a new statement (“the 2017 Statement”) in which, in
relevant part, she recanted her trial testimony that identified Appellant as the
person who killed the Victim. Id. at 16-18. Ms. Franks concluded that she did
not believe that Appellant killed the victim. Id.
Appellant filed the instant PCRA Petition on June 16, 2017. Appellant
argued that Ms. Franks’ 2017 Statement contained “new facts” to invoke the
newly-discovered facts exception to the PCRA time-bar. PCRA Petition,
6/16/17, at 7-10. Substantively, Appellant raised an after-discovered
evidence claim and a Brady3 claim based on facts contained in the 2017
Statement. Id. at 11-19, 23.
The court held hearings on November 15, 2017, and February 26, 2018,
at which Ms. Franks affirmed the contents of her 2017 Statement. PCRA Ct.
Op., 8/30/19, at 18-22. Ms. Franks’ son, Aaron Franks, also testified, stating
that he spent “six, seven hours” with Appellant on the day of the Victim’s
death. Id. at 23.
____________________________________________
3 Brady v. Maryland, 373 U.S. 83 (1963).
-3- J-A18020-20
Thereafter, the court denied Appellant’s Petition as untimely, finding
that he failed to satisfy the new fact and due diligence requirements of the
newly-discovered facts exception to the PCRA time-bar. PCRA Ct. Op.,
8/30/19, at 24-26.
Appellant timely filed a Notice of Appeal and complied with Pa.R.A.P.
1925. The PCRA court filed a Statement in Lieu of Opinion, referring this Court
to its Opinion and Order filed August 30, 2019.
Appellant presents three issues for our review:
1. Whether Brady violations, committed at Appellant’s trial and admitted by the Commonwealth at his 2017 PCRA Hearing, warrant a new trial;
2. Whether Aaron Franks’ after-discovered alibi testimony at the 2018 PCRA Hearing warrants a new trial; and
3. Whether Peggy Franks[’] new, exculpatory testimony required a new trial wherein new facts clearly would have resulted in a different verdict had a jury heard this exculpatory new evidence.
Appellant’s Br. at 3 (reordered for ease of analysis and issues 1 and 2
rephrased for clarity).
We review an order denying PCRA relief to determine whether the
evidence of record supports the court’s decision and if the decision is otherwise
free from legal error. Commonwealth v. Paddy, 15 A.3d 431, 441-42 (Pa.
2011). We begin by addressing the timeliness of Appellant’s Petition because
the PCRA time limitations implicate our jurisdiction. Commonwealth v.
Kretchmar, 189 A.3d 459, 462 (Pa. Super. 2018). Our standard of review
-4- J-A18020-20
over jurisdictional questions is de novo, and our scope of review is plenary.
Commonwealth v. Fields, 197 A.3d 1217, 1221 (Pa. Super. 2018).
Initially, we agree with the PCRA court that Appellant’s instant Petition
is patently untimely. Pennsylvania courts may consider an untimely PCRA
petition, however, if the appellant pleads and proves that one of the three
exceptions to the PCRA time-bar applies. 42 Pa.C.S. § 9545(b)(1). The
petitioner must plead and prove that: (1) interference by government officials
in violation of the Constitution or laws of the Commonwealth or the United
States caused the petitioner’s failure to raise the claim earlier; (2) the facts
underlying the claim were unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or (3) the asserted right is a new
constitutional right, recognized and held to apply retroactively by the Supreme
Court of the United States or the Supreme Court of Pennsylvania. 42 Pa.C.S.
§ 9545(b)(1)(i)-(iii).
In his first issue, Appellant presents a Brady claim. Appellant’s Br. at
21-35. He asserts that at the 2017 PCRA Hearing, the Commonwealth
revealed previously undisclosed leniency it provided to Ms. Franks. Id. 23-25,
30. Similarly, in Appellant’s second issue, he argues that he learned about
Aaron Franks’ alibi testimony for the first time at the 2018 PCRA Hearing.
Appellant’s Br. at 46-51.
Appellant’s Brady and alibi claims are premature. Since Appellant
claims that he first learned of them at the PCRA Hearings, he could not and
did not allege those claims in his PCRA Petition. It is axiomatic that “[i]ssues
-5- J-A18020-20
not raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302. Thus, Appellant waived our consideration of those
claims.
In his third issue, Appellant presents an after-discovered evidence claim.
Appellant’s Br. at 36-45. The PCRA court found that Appellant failed to
establish the court’s jurisdiction to decide the merits of this issue, because he
failed to plead and prove any of the exceptions to the PCRA time-bar. PCRA
Ct. Op., 8/30/19, at 24-26.
In his question presented, Appellant does not challenge, or even
reference, the PCRA court’s finding that it lacked jurisdiction to review the
merits of his claim. Because Appellant failed to raise any challenge to the PCRA
court’s finding on jurisdiction in his question presented, Appellant waived our
consideration of his third issue.4 See Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”).
In summation, Appellant waived our consideration of his first and second
issues by failing to raise them in the lower court. He waived our consideration
of his third issue because he failed to challenge the PCRA court’s finding that
4 Even if not waived, we agree with the PCRA court that the 2017 Statement did not present a “new fact” for the purposes of the newly-discovered facts exception to the PCRA time-bar. PCRA Ct. Op., 8/30/19, at 24-26. Ms. Franks stated the same fact in her 1997 and 2017 Statements: she does not believe Appellant killed the Victim. Id.
-6- J-A18020-20
it lacked jurisdiction to decide the issue on the merits. We, therefore, discern
no error by the PCRA court in dismissing Appellant’s Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/04/2020
-7-