Com. v. Love, B.

• Court: Superior Court of Pennsylvania
• Decided: July 20, 2023
• Docket: 2791 EDA 2022
• Status: Unpublished

Opinion

J-S16008-23 & J-S16009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRYAN RICHARD LOVE : : Appellant : No. 2791 EDA 2022

Appeal from the PCRA Order Entered October 25, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002974-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRYAN RICHARD LOVE : : Appellant : No. 2792 EDA 2022

Appeal from the PCRA Order Entered October 25, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004026-2018

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED JULY 20, 2023

Appellant, Bryan Richard Love, appeals pro se from the October 25,

2022 Orders entered by the Chester County Court of Common Pleas at Docket

Numbers CP-15-CR-0002974-2018 (“Docket No. 2974”) and CP-15-CR-

0004026-2018 (“Docket No. 4026”), dismissing his petitions filed pursuant to J-S16008-23 & J-S16009-23

the Post Conviction Relief Act (“PCRA”)1 as untimely. After careful review, we

affirm.

The relevant facts and procedural history in these consolidated cases

are as follows.2 At Docket No. 2974, the Commonwealth charged Appellant

with Simple Assault and other charges relating to a May 9, 2018 domestic

incident. At Docket No. 4026, the Commonwealth charged Appellant with

three counts of Simple Assault and other charges relating to a July 6, 2018

domestic incident involving the same victim as Docket No. 2974. Relevantly,

Appellant waived his preliminary hearing before Magisterial District Judge

Michael J. Cabry, III (“former MDJ Cabry”), at Docket No. 2974 on August 30,

2018, and at Docket No. 4026 on November 15, 2018.

On March 18, 2019, Appellant entered a negotiated guilty plea to one

count of Simple Assault at each docket, and the Commonwealth withdrew the

other charges. On the same day, Judge Ann Marie Wheatcraft sentenced

Appellant, in accordance with the plea agreement, to 11 1/2-23 months of

incarceration and a consecutive term of two years of probation. Appellant did

not file a post-trial motion or an appeal at either docket. Accordingly, his

judgments of sentence became final on April 17, 2019, 30 days after

sentencing. Thus, Appellant had until April 2020 to file timely PCRA Petitions.

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1 42 Pa.C.S. §§ 9541-46.

2 This Court consolidated these appeals sua sponte as the filings and proceedings before the PCRA court were nearly identical.

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On December 28, 2020, Appellant pro se filed identical, facially untimely

PCRA Petitions at each docket. Appellant sought relief based upon the October

2020 disclosure of former MDJ Cabry’s criminal acts.3 Court-appointed PCRA

counsel filed identical Turner/Finley4 No-Merit letters and motions to

withdraw as counsel on March 23, 2022, at each docket. After review, the

PCRA Court issued Pa.R.A.P. 907 Notices of Intention to Dismiss on May 31,

2022, which differed only as to the relevant facts and intervening parole

violations at Docket No. 4026. Appellant filed separate but identical responses

in June 2022.

The PCRA Court dismissed both PCRA Petitions as untimely for failure to

meet the newly-discovered fact exception on October 25, 2022. In the same

orders, the court also denied Appellant’s request for discovery relating to

former MDJ Cabry’s criminal proceedings and granted counsel’s motion to

withdraw. Appellant filed separate notices of appeal on October 31, 2022,

which were identical other than the docket number. Subsequently, Appellant

and the PCRA Court complied with Pa.R.A.P. 1925(a).

Before this Court, Appellant raises pro se the following questions at both

dockets:

3 As stated by the PCRA Court, former MDJ Cabry pled guilty to theft by unlawful taking and several election law violations related to his improper use of campaign funds on September 22, 2021. PCRA Ct. Ops., 12/29/22, at 4 (citing Commonwealth v. Cabry, III, CP-15-CR-3380-2020).

4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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1. Did the PCRA Court err when it dismissed [Appellant’s] PCRA Petition?

2. Are the fundamental principles of the Constitution under the 5th, 6th, and 14th Amendments and Article I section 9 of the PA Const. willing to find confidence, trust, integrity, and validity under the judicial powers of Michael Cabry, III, after he began to commit crimes (de facto) but before he was caught, arrested and convicted (de jure)?

3. Did the PCRA court err when it dismissed [Appellant’s] PCRA Petition for being untimely after the court did previously concede and admit that the Petition was timely filed under an exception of “previously unknown fact[,]” 42 Pa.C.S. § 9545(b)(1)(ii)?

4. Did the PCRA Court err by adding a “prejudice requirement” to the jurisdictional time exception rule under 42 Pa.C.S. § 9545(b)(1)(ii)?

5. Was [Appellant’s] right to procedural and substantive due process violated under the appearance of judicial impropriety when Judge Cabry began committing crimes on Nov. 13, 2016, and then thereafter authorized [Appellant’s] arrest warrants, and authorized a waiver of his preliminary hearing?

6. Whether Judge Cabry’s Judicial Authority became invalid once he began committing crimes on Nov. 13, 2016?

7. Whether [Appellant’s] arrest warrants, that were authorized by Judge Cabry, are retroactively illegal or void under the appearance of judicial impropriety and corruption, after Judge Cabry pled guilty to committing crimes beginning Nov. 13, 2016?

8. Did Michael J. Cabry, III, have juratical [sic] and juridical authority to authorize [Appellant’s] arrest warrants and waiver of preliminary hearing after Cabry began committing crimes on Nov. 13, 2016?

9. Is Judge Cabry’s juratical [sic] and juridical power and authority void from the date when he admitted to committing his first crime on Nov. 13, 2016, as a matter of judicial impropriety and corruption?

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Appellant’s Briefs at 2 (unnecessary capitalization omitted).5 As summarized

by the trial court, Appellant broadly claims that the PCRA court erred in finding

“that Appellant did not meet his burden to show an exception to the timeliness

provisions of the [PCRA] when it determined there was no nexus between the

newly discovered facts and Appellant’s case.” PCRA Ct. Ops., 12/29/22, at 3.

A.

In reviewing a PCRA court’s denial of relief, we 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.” Commonwealth v. Small, 238

A.3d 1267, 1280 (Pa. 2020). “The scope of our review is limited to the findings

of the PCRA court and the evidence of record, which we view in the light most

favorable to the party who prevailed before that court.” Id. While we are

bound by the PCRA court’s factual findings if supported by the record, we

review its legal conclusions de novo. Id.

For a PCRA court or this Court to have jurisdiction to address the merits

of a PCRA petition, the petitioner must file the petition within one year of when

his or her sentence becomes final or satisfy one of the three exceptions to the

jurisdictional time-bar. 42 Pa.C.S. § 9545(b)(1); Commonwealth v.

5 Appellant does not divide his argument “into as many parts as there are questions to be argued” as required by Pa.R.A.P. 2119. While we may dismiss a case for failure to abide by the briefing requirements, we decline to do so in this case as the defect does not impede our review. See Pa.R.A.P. 2101. We find, however, that Appellant waived any claims relating to the PCRA court’s denial of his request for discovery by not including that issue in the questions presented. Pa.R.A.P. 2116.

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Monaco, 996 A.2d 1076, 1079 (Pa. 2010). As Appellant did not file an appeal,

his sentence became final thirty days after his judgment of sentence. 42

Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). For claims such as Appellant’s arising

after December 24, 2017, any petition invoking a timeliness exception “shall

be filed within one year of the date the claim could have been presented.” 42

Pa.C.S. § 9545(b)(2). “The PCRA petitioner bears the burden of proving the

applicability of one of the exceptions.” Commonwealth v. Reid, 235 A.3d

1124, 1144 (Pa. 2020) (citation omitted).

In this case, Appellant admits that his petition is facially untimely but

contends that he meets the exception for newly-discovered facts set forth in

42 Pa.C.S. § 9545(b)(1)(ii). The newly discovered fact exception applies

where “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.” Id. The Pennsylvania Supreme Court has “explained that the

exception set forth in Section 9545(b)(1)(ii) does not require any merits

analysis of the underlying claim. Rather, the exception only requires a

petitioner to prove that the facts were unknown to him and that he exercised

due diligence in discovering those facts.” Commonwealth v. Cox, 146 A.3d

221, 227 (Pa. 2016) (internal citations and quotation marks omitted).

This Court has interpreted Section 9545(b)(1)(ii) as mandating that

“there be some relationship between” the newly-discovered facts and the

claims asserted by the petitioner. Commonwealth v. Shannon, 184 A.3d

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1010, 1017 (Pa. Super. 2018).6 To explain this requisite nexus, the Court has

observed that a petitioner cannot satisfy the newly-discovered fact exception

by claiming that he recently discovered that the “the Houston Astros won the

2017 World Series” without showing how this fact matters in regard to the

claim he asserts in his PCRA. Commonwealth v. Robinson, 185 A.3d 1055,

1061-62 (Pa. Super. 2018) (en banc).

B.

Appellant seeks to void his convictions, asserting that because former

MDJ Cabry committed crimes in 2016, he did not have judicial authority to

preside over Appellant’s 2018 cases. Appellant’s Brs. at 5. He claims that he

meets the newly-discovered fact exception to the PCRA’s jurisdictional time-

bar based upon the October 2020 disclosure of former MDJ Cabry’s crimes.

Appellant challenges the PCRA court’s insertion of a “‘prejudice prong’ into the

6 In Shannon, this Court relied upon the Supreme Court’s expressions in Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017). Shannon, 184 A.3d at 1017. In more recent decisions, the Supreme Court has divided evenly in defining the contours of the requisite relationship between the asserted newly discovered fact and the claim presented. Compare Commonwealth v. Fears, 250 A.3d 1180, 1189 (Pa. 2021) (Mundy, J., Opinion in Support of Affirmance (“OISA”)) (“While the law provides that Appellant need not provide a nexus between the newly discovered fact and his conviction, he still must provide a connection between the fact and his underlying claim.”), with id. at 1201 (Wecht, J., Opinion in Support of Reversal) (faulting the OISA for “effectively impos[ing] a heightened nexus requirement by engaging in a merits-based inquiry under the guise of a timeliness analysis”); see also Commonwealth v. Robinson, 204 A.3d 326 (Pa. 2018). Absent binding guidance, we apply this Court’s precedent in Shannon.

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language of 42 Pa.C.S. § 9545(b).” Id. at 10. After careful review, we affirm

the PCRA court’s dismissal of Appellant’s PCRA Petitions as untimely.

Applying the newly-discovered fact exception of Section 9545(b)(1)(ii),

the PCRA court properly opined that, by filing his PCRA Petitions in December

2020, Appellant filed within one year of the October 2020 disclosure of

information regarding former MDJ Cabry’s criminal activity. PCRA Ct. Ops. at

4-5. While the PCRA court in its orders denying Appellant’s PCRA Petitions

improperly phrased its reasoning in terms of whether ”prejudice attached to

[Appellant] from [former MDJ Cabry’s] criminal actions[,]” the court in its

Pa.R.A.P. 1925(a) Opinions correctly reasoned that former MDJ Cabry’s

criminal acts, involving his illegal use of campaign funds, lack the requisite

relationship to Appellant’s simple assault and related charges. PCRA Ct.

Orders, 10/25/22, at 2 n.1; PCRA Ct. Ops. at 5. The court emphasized that

the charges against former MDJ Cabry did not challenge the validity of his

judicial election. PCRA Ct. Ops. at 5.

We agree. While Section 9545(b) does not include a “prejudice”

requirement, the statute nevertheless applies where the “claim is predicated”

on the newly discovered fact, which this Court has repeatedly interpreted to

require a relationship between the fact and the underlying claim. 42 Pa.C.S.

§ 9545(b)(1)(ii); Shannon, 184 A.3d at 1017. As the PCRA Court found,

Appellant fails to demonstrate the requisite connection between the newly

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discovered fact of former MDJ Cabry’s criminal activity and Appellant’s claim

that his sentence should be vacated and the charges dismissed.7

Accordingly, as Appellant did not satisfy an exception to the PCRA’s

jurisdictional time-bar, we affirm the PCRA court’s dismissal of Appellant’s

Petitions as untimely.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/20/2023

7 We reject as inapt Appellant’s reliance on cases that do not involve the PCRA’s jurisdictional time-bar. Moreover, the cases cited by Appellant involve a clear connection between the actions of the judge and the pending case, unlike Appellant’s case which is devoid of such nexus. See In re Lokuta, 11 A.3d 427, 436 (Pa. 2011) (summarizing Malinowski v. Nanticoke Micro Technologies, Inc., 2010 Pa. LEXIS 1372, at *5 (Pa. June 24, 2010)); In Int. of McFall, 617 A.2d 707, 713 (Pa. 1992).

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