Com. v. Boatright, A.

• Court: Superior Court of Pennsylvania
• Decided: October 22, 2021
• Docket: 1193 WDA 2020
• Status: Unpublished

Opinion

J-A20014-21 J-A20015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY DAVID BOATRIGHT : : Appellant : No. 1193 WDA 2020

Appeal from the PCRA Order Entered September 29, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006318-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY DAVID BOATRIGHT : : Appellant : No. 69 WDA 2021

Appeal from the PCRA Order Entered September 28, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009340-2009

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 22, 2021

Anthony David Boatright appeals1 from the order entered in the

Allegheny County Court of Common Pleas on September 29, 2020, dismissing

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1 We have consolidated Boatright’s two appeals sua sponte as they raise identical challenges to the PCRA court’s order. J-A20014-21 J-A20015-21

his “Application For Leave to Appeal Nunc Pro Tunc” as untimely filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546.2 After

careful review, we find the PCRA court properly denied relief and affirm.

In April 2010, a jury convicted Boatright of multiple sexual offenses

involving two minor family members. The court subsequently sentenced him

to an aggregate term of fifty to one-hundred years’ incarceration. Boatright

filed post-sentence motions which were denied. On direct appeal, we vacated

the judgment of sentence and remanded for a hearing to determine if a new

trial was warranted. See Commonwealth v. Boatright, No. 1831 WDA

2010, 38 A.3d 916 (Pa. Super., filed November 9, 2011) (unpublished

memorandum). After a hearing, the trial court ordered a new trial.

On October 18, 2012, after a second jury trial, Boatright was found

guilty of one count each of rape of a child, forcible rape, involuntary deviate

sexual intercourse with a child, involuntary deviate sexual intercourse,

aggravated indecent assault of a child, and two counts each of indecent

assault of a person less than thirteen years of age, endangering the welfare

of children, corruption of minors, indecent exposure and incest.

On December 5, 2012, Boatright was sentenced to an aggregate term

of twenty-five to fifty years’ incarceration. Boatright’s timely post-sentence

2 As discussed in further detail below, while Boatright did not specifically title

his pro se filing as a PCRA petition, the court correctly treated this post- conviction filing as a petition under the PCRA.

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motion was denied. Boatright appealed and this Court affirmed the judgment

of sentence. See Commonwealth v. Boatright, No. 129 WDA 2013, 93 A.3d

506 (Pa. Super., filed December 10, 2013) (unpublished memorandum). Our

Supreme Court denied further review. See Commonwealth v. Boatright,

16 WAL 2014, 92 A.3d 810 (Pa. filed May 21, 2014).

On September 3, 2014, Boatright filed a timely pro se PCRA petition.

PCRA counsel was appointed who subsequently filed a petition to withdraw

and a Finley3 no-merit letter. The PCRA court filed an order permitting counsel

to withdraw and issuing notice of its intent to dismiss the petition without a

hearing pursuant to Pa.R.Crim.P. 907. On April 23, 2015, the PCRA court

dismissed the petition. After Boatright filed a pro se appeal, we affirmed the

dismissal. See Commonwealth v. Boatright, No. 844 WDA 2015, 156 A.3d

334 (Pa. Super., filed August 11, 2016) (unpublished memorandum).

On October 18, 2019, Boatright filed a second pro se PCRA petition. The

PCRA court subsequently issued notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907. On February 26, 2020, the

PCRA court dismissed the petition. Boatright appealed. On May 14, 2020, we

quashed the appeal pursuant to Commonwealth v. Walker, 185 A.3d 969

(Pa. 2018).

3 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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On June 21, 2020, Boatright filed an “Application For Leave to Appeal

Nunc Pro Tunc”, which the trial court treated as a third PCRA petition. On

September 3, 2020, the PCRA court issued notice of its intent to dismiss the

petition without a hearing pursuant to Rule 907. On September 29, 2020, the

PCRA court denied the petition. This appeal followed.

As a prefatory matter, we must address our jurisdiction to entertain this

appeal because appellate courts lack jurisdiction to consider untimely appeals

and may raise the issue sua sponte. See Commonwealth v. Nahavandian,

954 A.2d 625, 629 (Pa. Super. 2008) (“Jurisdiction is vested in the Superior

Court upon the filing of a timely notice of appeal.”).

Generally speaking, Pennsylvania Rule of Appellate Procedure 341(a)

directs that “an appeal may be taken as of right from any final order of a

government unit or trial court.” Pa.R.A.P. 341(a). “An order … denying,

dismissing, or otherwise finally disposing of a petition for post-conviction

collateral relief shall constitute a final order for purposes of appeal.”

Pa.R.Crim.P. 910. “[T]he notice of appeal … shall be filed within 30 days after

the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). As

such, “[t]ime limitations on the taking of appeals are strictly construed and

cannot be extended as a matter of grace.” Commonwealth v. Perez, 799

A.2d 848, 851 (Pa. Super. 2002) (citation omitted); see also Pa.R.A.P. 105(b)

(“An appellate court for good cause shown may upon application enlarge the

time prescribed by these rules or by its order for doing any act, or may permit

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an act to be done after the expiration of such time, but the court may not

enlarge the time for filing a notice of appeal, a petition for allowance of appeal,

a petition for permission to appeal, a petition for review, or a petition for

specialized review.”).

Here, the PCRA court entered its order denying PCRA relief on

September 29, 2020. In the order, the PCRA court advised Boatright of his

right to appeal the dismissal of his petition to this Court within 30 days of the

date of the order. See PCRA Court Order, 9/29/2020. Therefore, Boatright

had until October 29, 2020 to file his notice appeal. A review of the record

reveals Boatright’s notice of appeal was not docketed until November 2, 2020.

Nevertheless, pursuant to the “prisoner mailbox rule,” a pro se

prisoner’s document is deemed filed on the date he delivers it to prison

authorities for mailing. See Pa.R.A.P. 121(a); see Commonwealth v.

Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006). However, to avail oneself

of the mailbox rule, a prisoner must supply sufficient proof of the date of the

mailing. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997)

(accepting any reasonable verifiable evidence of the date a prisoner places his

filing in the control of prison authorities); Commonwealth v. Perez, 799

A.2d 848, 851 (Pa. Super. 2002).

Here, Boatright included, in the certified record, the envelope used to

send the notice of appeal to the department of court records that is stamped

with postage that is dated October 27, 2020, which was within the 30-day

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appeal period. Based on the record, and applying the “prisoner mailbox rule,”

we conclude Boatright has provided sufficient proof that he filed a timely

notice of appeal.

On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court's ruling is free of legal error and supported by the

record. See Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.

2017) (citation omitted). A petition seeking reinstatement of the right to

appeal the denial of a PCRA petition must be considered a subsequent PCRA

petition. See Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa. Super.

2002). Further, “all requests for reinstatement of appellate rights, including

PCRA appellate rights, must meet the timeliness requirements of the PCRA.”

Id.

Accordingly, prior to reaching the merits of Boatright’s claims on appeal,

we must first consider the timeliness of his PCRA petition. See

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

A PCRA petition, including a second or subsequent one, must be filed within one year of the date the petitioner’s judgment of sentence becomes final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final at the conclusion of direct review by this Court or the United States Supreme Court, or at the expiration of the time for seeking such review. The PCRA’s timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions.

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Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations

and footnote omitted).

Boatright’s judgment of sentence became final on September 19, 2014,

ninety days after his petition for allowance of appeal was denied by the

Pennsylvania Supreme Court, when time for filing a petition for writ of

certiorari to the United States Supreme Court expired. The instant petition –

filed more than five years later – is patently untimely. Thus, the PCRA court

lacked jurisdiction to review Boatright’s petition unless he was able to

successfully plead and prove one of the statutory exceptions to the PCRA’s

time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

The PCRA provides three exceptions to its time bar:

(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.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in

the petition, and may not be raised for the first time on appeal. See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also

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Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are

waived and cannot be raised for the first time on appeal). Further,

[a]lthough 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). Even liberally construed, Boatright has failed to plead and

prove that any of his claims constitute a valid exception to the PCRA time-bar.

Boatright attempts to invoke Section 9545(b)(1)(ii), i.e., the newly

discovered fact exception. Section 9545(b)(1)(ii) “requires [a] petitioner to

allege and prove that there were ‘facts' that were ‘unknown’ to him” and that

he could not have ascertained those facts by the exercise of “due diligence.”

See Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). “The

focus of the exception is on the newly discovered facts, not on a newly

discovered or newly willing source for previously known facts.”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (citation and

brackets omitted). “Due diligence demands that the petitioner take reasonable

steps to protect his own interests. A petitioner must explain why he could not

have learned of the new fact(s) earlier with the exercise of due diligence.”

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (citations

omitted).

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Boatright argues this Court’s decision in Commonwealth v. McCauley,

199 A.3d 947 (Pa. Super. 2018), in which we stated the same trial judge

exhibited bias against the Allegheny County Public Defender’s Office and their

clients in sex offense cases at sentencing, somehow constitutes a “new fact”.

Initially, to the extent Boatright relies on McCauley, judicial opinions

do not constitute new “facts” for the purposes of 42 Pa.C.S.A. § 9545(b)(1)(ii).

See Commonwealth v. Reid, 235 A.3d 1124, 1146 (Pa. 2020).

Further, it is clear from a review of the record that Boatright’s underlying

assertions concerning the trial judge’s alleged judicial bias is not a “new fact”

to Boatright, as he previously filed a motion to recuse the trial judge for her

alleged judicial bias against Boatright, and raised the same assertions in both

of his previous PCRA petitions. To the extent Boatright attempts to rely on

cases in which we may have been critical of the sentencing practice of the

same trial judge to bolster his assertion of misconduct, they merely provide a

new source for a previously known fact. See Commonwealth v. Abu-Jamal,

941 A.2d 1263, 1269 (Pa. 2008) (holding that a new conduit for a previously

litigated claim does not qualify for the newly discovered fact exception).

Therefore, Boatright has failed to plead and prove the newly-discovered fact

exception to the PCRA’s timeliness requirement. See id.

Accordingly, the PCRA court did not err when it dismissed Boatright’s

PCRA petition without a hearing.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/22/2021

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