Com. v. Parnell, B.

• Court: Superior Court of Pennsylvania
• Decided: June 13, 2016
• Docket: 3779 EDA 2015
• Status: Unpublished

Opinion

J-S49032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BRIAN PARNELL,

Appellant No. 3779 EDA 2015

Appeal from the PCRA Order November 30, 2015 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004554-2001

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 13, 2016

Appellant Brian Parnell appeals pro se the order entered in the Court of

Common Pleas of Chester County on November 30, 2015, by the Honorable

David F. Bortner dismissing as untimely his fourth1 petition filed pursuant to

____________________________________________

1 The PCRA court refers to this as Appellant’s fifth petition; however, in doing so it appears to have considered Appellant’s Motion for Post-Conviction DNA Testing Pursuant to 42 Pa.C.S.A. § 9543.1 filed on July 27, 2011, to have been his fourth PCRA petition. However, this Court has clarified that "[a]n application for DNA testing should be made in a motion, not in a PCRA petition.” Commonwealth v. Weeks, 831 A.2d 1194, 1196 (Pa.Super. 2003) (emphasis in original). We have further stated that:

[t]hough brought under the general rubric of the PCRA, motions for post-conviction DNA testing are “clearly separate and distinct from claims brought pursuant to other sections of the PCRA.” For instance, this Court has consistently held the one-year jurisdictional time bar of the PCRA does not apply to motions for (Footnote Continued Next Page)

*Former Justice specially assigned to the Superior Court. J-S49032-16

the Post Conviction Relief Act (“PCRA”).2 Following a review of the record,

we affirm.

Appellant is serving a term of life imprisonment following his conviction

by a jury of murder in the second degree and burglary on July 11, 2002.

Appellant was sentenced on July 15, 2002, and on August 14, 2002, filed a

timely notice of appeal. On July 1, 2003, this Court affirmed Appellant’s

judgment of sentence, and Appellant did not file a petition for allowance of

appeal with the Pennsylvania Supreme Court thereafter. Commonwealth

v. Parnell, 832 A.2d 541 (Pa.Super. 2003) (unpublished memorandum).

Appellant filed a timely PCRA petition which was denied following an

evidentiary hearing. On June 2, 2006, this Court affirmed the trial court’s

denial of PCRA relief. Commonwealth v. Parnell, 903 A.2d 49 (Pa.Super.

2006) (unpublished memorandum). Appellant did not seek allowance of

appeal with our Supreme Court, and the PCRA court dismissed Appellant’s

previously filed PCRA petitions on the basis of untimeliness.

_______________________ (Footnote Continued)

DNA testing under Section 9543.1. Another distinction of motions for DNA testing is that Section 9543.1 does not confer a right to counsel.

Commonwealth v. Williams, 35 A.3d 44, 50 (Pa.Super. 2011) (citations omitted). As such, we will treat Appellant’s PCRA petition sub judice as his fourth, although, for the reasons set forth infra, this distinction is not determinative herein. 2 42 Pa.C.S.A. §§ 9541-46.

-2- J-S49032-16

Appellant filed the present petition on September 11, 2014.3 On

October 28, 2014, the PCRA court appointed counsel, and on November 25,

2014, Appellant filed a motion to waive counsel. The PCRA court held a

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)

on February 9, 2015, after which it determined Appellant was voluntarily,

knowingly and intelligently waiving his right to counsel. On that same day,

the PCRA court entered an order permitting Appellant to proceed pro se and

appointed standby counsel to assist him. 4

In the instant PCRA petition, Appellant attempted to invoke the

“newly-discovered evidence” exception to the PCRA time-bar, averred his

3 Although Appellant’s PCRA petition is time-stamped September 15, 2014, the petition was postmarked September 11, 2014; therefore, the latter is the effective date of Appellant’s filing of the petition pursuant to the “prisoner mailbox” rule. See Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa.Super. 2001) (providing that where an appellant is acting pro se and incarcerated at the time he or she seeks to file a PCRA petition, justice requires that the petition will be deemed filed on the date the appellant deposited it with prison authorities and/or placed it in the prison mailbox). 4 Our Supreme Court has held that “the right to counsel in a second or subsequent PCRA petition is not co-extensive with the right to counsel in a first PCRA petition. While Pa.R.Crim.P. 904(A) provides for the appointment of counsel in a first PCRA petition when the petitioner satisfies the judge that he is unable to afford or otherwise obtain counsel, Pa.R.Crim.P. 904(B) provides for the appointment of counsel in a second or subsequent PCRA petition only in cases where the petitioner can further establish that an evidentiary hearing is required.”

Commonwealth v. Haag, 570 Pa. 289, 324, 809 A.2d 271, 293 (2002) (footnonte omitted).

-3- J-S49032-16

actual innocence, and claimed the Commonwealth had breached a

contractual agreement into which it had entered with him. The trial court,

after providing the requisite notice pursuant to Pa.R.Crim.P. 907, dismissed

the petition as untimely. This appeal followed in which Appellant sets forth

the following statement of questions involved:5

I. Whether the trial court erred by dismissing the PCRA petition for newly discovered evidence without conducting an evidentiary hearing and/or any contestment [sic] from the Chester County District Attorney.

II. Whether the trial court erred by failing to acknowledge the sufficiency of the newly discovered evidence.

III. Whether the trial court abused its discretion in dismissing the PCRA Petition for newly discovered evidence based upon its own erroneous findings of false facts, deliberately misstated, which are not support[ed] by the record, law, or any material facts from the trial courts[’] “alleged” independent review of Dr. Richard T. Callery.

IV. Whether a miscarriage of justice occurred and actual innocence exist[s].

V. Whether district attorney of Chester County Tom Hogan breached contractual agreement.

Brief for Appellant at 1-2.

Under our well-settled standard of review of the denial of PCRA relief,

we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error. Commonwealth v.

5 Appellant timely complied with the order of the trial court to file a statement of errors complained of on appeal.

-4- J-S49032-16

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008). Initially, we must

determine whether Appellant’s PCRA petition was timely filed. See

Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super. 2000).

Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition. Commonwealth v. Robinson, 837 A.2d 1157

(Pa. 2003). The most recent amendments to the PCRA, effective January

19, 1996, provide that a PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a

petition must allege and the petitioner must prove:

(i) the failure to raise a claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or the law of this Commonwealth or the Constitution or law 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

-5- J-S49032-16

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of Pennsylvania after the time period provide in this section and has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “We emphasize 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) (citations omitted). Additionally, this Court as explained that each of

the time-bar exceptions is subject to a separate deadline:

The statutory exceptions to the timeliness requirements of the PCRA are also subject to a separate time limitation and must be filed within sixty (60) days of the time the claim could first have been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty (60) day time limit ... runs from the date the petitioner first learned of the alleged after-discovered facts. A petitioner must explain when he first learned of the facts underlying his PCRA claims and show that he brought his claim within sixty (60) days thereafter.

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

citations omitted).

Instantly, Appellant was sentenced on July 15, 2002, and this Court

affirmed his judgment of sentence on July 1, 2003. Appellant did not file a

petition for allowance of appeal with the Supreme Court. Therefore,

Appellant’s judgment of sentence became final thirty days thereafter on

August 1, 2003. See 42 Pa.C.S.A. § 9545(b)(3) (providing “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

-6- J-S49032-16

Pennsylvania, or at the expiration of time for seeking the review[ ]”). In

Appellant’s case, a timely first petition for post-conviction relief would have

had to have been filed by August 1, 2004. Appellant filed the instant PCRA

petition over ten years later, on September 11, 2014; therefore, it is

patently untimely.

Notwithstanding, Appellant argues the PCRA court erred in dismissing

his petition without a hearing because newly-discovered evidence became

available to him on July 11, 2014. See Petition for Post Conviction Relief for

Newly Discovered Evidence Pursuant to 42 Pa.C.S.A § 9545(b)(1)(ii), at 5.

Such alleged evidence is a hearsay article published in a Delaware

publication, The News Journal, on July 11, 2014, entitled “Chief Medical

Examiner Out of a Job.” The article discusses an investigation which led to

the termination of Dr. Richard Callery, a forensic pathologist who performed

an autopsy on the victim and testified as a Commonwealth witness at

Appellant’s trial. Dr. Callery, formerly the Chief Medical Examiner of the

State of Delaware, was alleged to have utilized Delaware resources to

perform private forensic pathology work, including “moonlighting as a

contract pathologist for … Chester County, Pa.” It was in that capacity that

Dr. Callery performed the autopsy on the decedent in the instant matter.

At the outset, we note that Appellant’s petition was not filed within

sixty days of the date upon which the information had been reported as is

-7- J-S49032-16

required by 42 Pa.C.S. § 9545(b)(2).6 Notwithstanding, even were the

petition timely filed, it does not provide a basis upon which he could

predicate an untimely claim.

To obtain relief based on after-discovered evidence, appellant must demonstrate that the evidence: (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted. Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (emphasis

provided.

While Dr. Cowley’s apparent abuse and neglect of his office was

detailed in the publication, nowhere in the article is any aspect of Appellant’s

individual case discussed, nor was Dr. Cowley’s methodology in conducting

autopsies and/or ability to testify at trial regarding that work discussed.

Indeed, Appellant views the evidence in terms of a general attack upon Dr.

Crowley’s credibility. As such, Appellant has failed to satisfy his burden of

proving this hearsay article would have likely resulted in a different verdict

were he granted a new trial.

Appellant’s remaining claims of his innocence, challenges to the

veracity of Detective Kenneth W. Beam’s testimony and to the validity of

6 Appellant filed his PCRA petition sixty-two days after the article had been published in The News Journal, although he acknowledged the evidence became available to him on July 11, 2014.

-8- J-S49032-16

fingerprint evidence presented at trial, and reference to an alleged

contractual obligation the Commonwealth breached either have been

previously litigated or do not constitute after-discovered evidence, for the

information upon which they are based was available to Appellant prior to

September 11, 2014. See Petition for Post Conviction Relief for Newly

Discovered Evidence Pursuant to 42 Pa.C.S.A § 9545(b)(1)(ii), Exhibits C-I.

Accordingly, the newly-discovered evidence exception to the PCRA time-bar

cannot apply herein.

Based on the foregoing, we find the PCRA court lacked jurisdiction to

consider the merits of Appellant’s PCRA petition filed on September 11,

2014, and properly dismissed it as untimely filed. Accordingly, we affirm the

PCRA court’s November 30, 2015, Order.

Order affirmed.

Judge Panella joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/13/2016

-9-