J-A18041-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VITO ALEXANDER PELINO : : Appellant : No. 314 WDA 2024
Appeal from the PCRA Order Entered February 27, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002578-2011
BEFORE: OLSON, J., MURRAY, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: September 12, 2024
Appellant, Vito Alexander Pelino, appeals from the denial of his second
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. Appellant maintains that prior appellate and PCRA counsel were
ineffective. After review, we affirm.
This Court previously summarized the facts of this case as follows:
On the evening of February 12, 2011, [the victim] was socializing with a group of friends at a bar…. Later that night [the victim] met [Appellant’s sister, N.T.]. [N.T.] had come to the bar with [Appellant] after getting off work and ha[d] several drinks[.] … [The victim] and [Appellant] were introduced to each other by [N.T.], and the two men had incidental but friendly contact during the evening. [The victim] and [N.T.] talked, danced and drank for a couple of hours…. [Around 2:00 on February 13th, the victim’s friend drove the victim] and [N.T.] to [N.T.’s residence] and returned to the bar…. [Appellant had] agreed to provide [the victim] with a ride home from [N.T.’s residence] after he took [his friend, Corey] Robert home [because the victim and Appellant] resided [in the same community]. J-A18041-24
[Appellant] arrived at [N.T.’s] residence at approximately 3:00 a.m. and the three of them drank and talked amicably inside. [The victim] at some point excused himself to use the bathroom and [N.T.], by that time intoxicated and tired, told [Appellant] that she needed [the victim] to be out of the residence because her boyfriend would be coming soon. [Appellant] informed [the victim] of the circumstances, and although [the victim] had been excited about the potential of ‘hooking up’ with [N.T., Appellant] persuaded [the victim] to leave with him.
[Appellant] and [the victim] left and drove into [their community] in [Appellant’s] vehicle. During the ride[, the victim] began talking about [N.T.] in a manner that [Appellant] perceived to be disrespectful…. A verbal argument ensued and [Appellant] stopped the vehicle [and] the argument escalated between the two men. [Appellant] then grabbed a knife that he had beside the driver’s side door and began to stab [the victim].
[Appellant] inflicted 72 stab and incised wounds on [the victim], stabbing him until he was certain [the victim] was dead.
Commonwealth v. Pelino, No. 608 WDA 2015, unpublished memorandum
at *3-5 (Pa. Super. filed Oct. 14, 2015) (citations omitted). Thereafter,
Appellant called Robert for help, and together they disposed of the victim’s
body. Id. at *6-7.
On March 15, 2011, Appellant was charged with one count each of
homicide, kidnapping, and abuse of a corpse.1 The kidnapping charge was
eventually dropped. Following the jury’s guilty verdict on the remaining
charges, Appellant was sentenced to life imprisonment, without the possibility
of parole, for the first-degree murder conviction, followed by a consecutive
term of two years of imprisonment for abuse of a corpse. Appellant was
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1 18 Pa.C.S. §§ 2501(a), 2901(a), and 5510, respectively.
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represented at trial by Patrick Thomassey, Esq., and at sentencing by Paul
Gettleman, Esq.
Appellant, with the assistance of Attorney Gettleman, filed a direct
appeal and this Court affirmed the judgment of sentence. Commonwealth
v. Pelino, No. 1005 WDA 2012, unpublished memorandum (Pa. Super. filed
Aug. 27, 2013). Appellant did not file a petition for allowance of appeal with
the Pennsylvania Supreme Court.
On July 18, 2014, Appellant, still represented by Attorney Gettleman,
filed his first, timely petition under the PCRA. Following the denial of his
petition, Attorney Gettleman filed a timely appeal with the Superior Court on
Appellant’s behalf. The Superior Court affirmed the denial of relief. Pelino,
No. 608 WDA 2015, supra. Our Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Pelino, 136
A.3d 980 (Pa. 2016).
Obtaining new counsel, Appellant filed a petition for writ of habeas
corpus in the U.S. District Court on June 14, 2016. Relief was denied on July
6, 2017. Appellant sought further relief with the Third Circuit Court of Appeals,
which denied his Certificate of Appealability on February 5, 2018.
Appellant, pro se, filed the instant, second PCRA petition on September
29, 2022. Therein, Appellant asserted that Attorney Gettleman had been
ineffective for failing to obtain relief on appeal or through litigation of his first
PCRA petition. Appellant argued that he was permitted to raise claims of PCRA
counsel’s ineffective assistance pursuant to Commonwealth v. Bradley, 261
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A.3d 381 (Pa. 2021). The state of the record becomes somewhat confused at
this point, as Appellant, acting pro se, filed numerous items that were not
addressed by the PCRA court.
Specifically, on October 17, 2022, Appellant filed “Petitioner’s motion for
leave to file an amended PCRA petition,” stating that he wished to more fully
argue his ineffective assistance claims. Attached to this motion was an
amended PCRA petition in which Appellant continued to argue that Attorney
Gettleman was ineffective under Bradley. In this amended petition, Appellant
requested a finding of Attorney Gettleman’s ineffectiveness and the
reinstatement of his PCRA rights nunc pro tunc.
After the Commonwealth filed its answer, Appellant filed another
petition for leave to file an amended PCRA petition on June 14, 2023. In this
motion, Appellant claimed for the first time that Attorney Gettleman had a
conflict of interest because he represented Appellant and his alleged co-
defendant, Corey Robert, at the same time.2 Appellant asserts that he had
discovered an online docket sheet for Robert that listed Attorney Gettleman
as his attorney of record. Appellant seemingly argues by implication and
supposition that Attorney Gettleman “procedurally defaulted and/or waived”
his claims on his direct appeal, his first timely PCRA petition and the appeal
therefrom, because he also represented Robert. Amended PCRA petition,
6/14/23, at 1. ____________________________________________
2 Robert and Appellant were not tried together.
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One month later, on July 13, 2023, Appellant filed a new motion, entitled
“Petitioner’s second amended petition for post-conviction relief.” In this
motion, Appellant maintained that his petition was timely under Bradley and
that the recent discovery of a conflict of interest was a newly-discovered fact.
Appellant asked for an evidentiary hearing and asserted that Attorney
Gettleman would have to testify therein.
Then, on November 6, 2023, Appellant filed a document requesting that
the PCRA court take judicial notice of Attorney Gettleman’s conflict of interest.
Appellant attached a letter written by Attorney Gettleman to the Pennsylvania
Disciplinary Board, dated July 6, 2023, in which Attorney Gettleman detailed
the efforts he had made on Appellant’s behalf over the course of his
representation. In this letter, Attorney Gettleman also stated that he has no
recollection of representing Robert, and noted that his entry of appearance,
the last item on Robert’s docket, was entered after Robert’s guilty plea and
sentencing.
The PCRA court filed its notice of intent to dismiss Appellant’s PCRA
petition on January 18, 2024. Appellant filed a second request for judicial
notice, on the same grounds as the first, on February 7, 2024. Appellant also
filed a response to the intent to dismiss on February 12, 2024. The PCRA
court dismissed the petition via the order filed on February 27, 2024.
Appellant filed a timely notice of appeal on March 14, 2024. Both Appellant
and the PCRA court have complied with Pa.R.A.P 1925.
On appeal, Appellant presents the following claims:
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1. Did the PCRA court err/abuse its discretion in finding that Appellant’s conflict of interest claim fails to prevail on the “newly discovered fact exception” pursuant to 42 Pa.C.S. § 9545(b)(1)(ii), because the record does not support the PCRA court’s finding and is not free of legal error?
2. Did the PCRA court err/abuse its discretion in finding that Appellant’s conflict of interest claim was meritless because the record does not support the PCRA court’s finding and is not free of legal error?
3. Did the PCRA court err/abuse its discretion in not ordering an evidentiary hearing in violation of Pa.R.Crim.P. 908(a)(2) where the PCRA petition raised material issues of fact, and was therefore, not free of legal error?
4. Did the PCRA court err/abuse its discretion in failing/refusing to acknowledge, docket, and grant Appellant’s request for judicial notice in violation of Pa.R.E. 201(c)(2)?
Appellant’s Brief at 4 (some formatting altered).
Appellant argues in his first issue that the PCRA court erred in finding
that his PCRA petition was untimely. Appellant suggests that the affidavit
from his prior counsel admitting to the conflict of interest satisfies the newly
discovered evidence exception to the PCRA’s one-year time bar under 42
Pa.C.S. § 9545(b)(1)(ii).
Our standard and scope of review of an order denying a PCRA petition
are well established. Appellate review of a PCRA court’s dismissal of a petition
is limited to an evaluation of whether “the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v.
Branthafer, 315 A.3d 113, 123 (Pa. Super. 2024). This Court will not disturb
the factual findings of the PCRA court unless there is no support for those
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findings in the certified record. Id. “In contrast, we review the PCRA court’s
legal conclusions de novo.” Id.
Before addressing Appellant’s claims, however, we must first determine
which claims from his multiple pro se filings are properly before us. The
Commonwealth suggests that any claims contained in the pleadings filed after
his second pro se PCRA petition which started the instant proceedings — in
other words, the petition filed on October 17, 2022, the petition filed on June
14, 2023, the second amended petition filed on July 13, 2023, and the two
requests for judicial notice, filed on November 6, 2023 and February 7, 2024
— are waived because they were filed without leave of court. The
Commonwealth notes that while Appellant had requested permission from the
PCRA court to file some of these pleadings, the requests had not been granted.
The Commonwealth maintains that these pleadings are legal nullities as they
were filed without permission by the PCRA court. With the exception of the
amended petition filed on October 17, 2022, we agree.
Our Rules of Criminal Procedure dictate the process used to amend a
PCRA petition:
Rule 905. Amendment and Withdrawal of Petition for Post– Conviction Collateral Relief.
(A) The judge may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice.
Pa.R.Crim.P. 905(A); Commonwealth v. Flanagan, 854 A.2d 489, 499 (Pa.
2004) (“PCRA courts are invested with discretion to permit the amendment of
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a pending, timely-filed post-conviction petition[.]”). Moreover, the PCRA
court’s discretion “must be exercised consistently with the command of Rule
905(A) that amendment should be freely allowed to achieve substantial
justice.” Commonwealth v. Crispell, 193 A.3d 919, 930 (Pa. 2018).
Importantly, “Rule 905 amendments are not ‘self-authorizing’ such that
a petitioner may simply ‘amend’ a pending petition with a supplemental
pleading. Rather, the Rule explicitly states that amendment is permitted only
by direction or leave of the PCRA court.” Commonwealth v. Miranda, 317
A.3d 1070, 1076 (Pa. Super. 2024) (citations omitted). Thus, a petitioner’s
attempts to amend their PCRA petition will not preserve a claim if the PCRA
court did not authorize the amendment. Commonwealth v.
Baumhammers, 92 A.3d 708, 730-31 (Pa. 2014). See also
Commonwealth v. Reid, 99 A.3d 470, 520 (Pa. 2014) (stating, “[t]his Court
has condemned the unauthorized filing of supplements and amendments to
PCRA petitions, and held that claims raised in such supplements are subject
to waiver”); Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012) (reiterating
that Rule 905(A) “explicitly states that amendment [of a PCRA petition] is
permitted only by direction or leave of the PCRA court”) (emphasis added).
Here, the PCRA court’s notice of intent to dismiss Appellant’s PCRA
petition stated that the court had reviewed Appellant’s pro se PCRA petition,
his pro se “Second Amended Petition” for PCRA relief, and the
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Commonwealth’s Answer.3 We therefore will only consider the claims
Appellant raised in these documents. See Commonwealth v. Brown, 141
A.3d 491, 503-04 (Pa. Super. 2016) (holding that if a PCRA petitioner files an
amendment to his petition without leave of court, but the PCRA court
nonetheless addresses the arguments raised, the PCRA court has implicitly
permitted the amendment and our review of the claim may proceed).
Appellant’s claims, then, are limited to those raised in the September 29, 2022
petition and the October 17, 2022 amended petition.
In the initial PCRA petition filed on September 29, 2022, Appellant
asserted that Attorney Gettleman was ineffective in his representation on
direct appeal and through litigation of Appellant’s first PCRA petition.
Appellant also argued that his petition should be deemed timely because
Bradley permitted petitioners to raise claims of the ineffective assistance of
PCRA counsel at the first opportunity; Appellant suggested this was a “newly[-
]discovered fact” permitting the litigation of an otherwise untimely PCRA
petition. To this petition, attached as Exhibit 1, is an affidavit from Attorney
Gettleman filed in Appellant’s federal case, whereby Attorney Gettleman
states he “failed to abide by state procedural rules and impeded or otherwise
obstructed [Appellant] in complying with the state’s established procedures
3 The PCRA court’s Pa.R.A.P. 1925(a) opinion directs us to the Rule 907 notice
of intent to dismiss Appellant’s PCRA petition filed on January 18, 2024, for its reasons for denying Appellant’s petition.
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for post-conviction relief, and for this reason [Attorney Gettleman] was
ineffective.”
On October 17, 2022, Appellant filed what he called a “motion for leave
to file an amended PCRA petition,” with the proposed amended petition
attached as Exhibit A. This is a more fulsome petition, not the jail-issued,
pre-printed PCRA form which Appellant had filed a few weeks earlier. In this
amended petition, Appellant expounded upon his claim that Bradley had
instituted a “new procedural rule” that constituted a “newly[-]discovered fact”
which provides an exception to the PCRA’s one-year timeliness requirement.
These are the only claims Appellant has properly presented for review.
Now that we have determined which of Appellant’s claims are properly
before us, we must evaluate whether Appellant’s petition was timely filed.
Typically, a PCRA petition must be filed within one year of the petitioner’s
judgment of sentence becoming final. 42 Pa.C.S. § 9545(b)(1). “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
Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.
§ 9545(b)(3). The timeliness of a PCRA petition is jurisdictional; in other
words, if a PCRA petition is untimely, the court lacks jurisdiction to consider
its merits. Commonwealth v. Reeves, 296 A.3d 1228, 1230-31 (Pa. Super.
2023). “Without jurisdiction, [the court] simply do[es] not have the legal
authority to address the substantive claims.” Commonwealth v. Lewis, 63
A.3d 1274, 1281 (Pa. Super. 2013).
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Here, we calculate that Appellant’s judgment of sentence became final
on September 26, 2013, when the time for filing a petition for allowance of
appeal from this Court’s decision affirming his judgment of sentence expired.4
Accordingly, Appellant had until September 26, 2014, to file a timely PCRA
petition.5 Clearly, his petition filed September 29, 2022, is more than 8 years
too late.
A petitioner may overcome the PCRA’s time-bar if he pleads and proves
one of the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1).
Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The exceptions
are: “(1) interference by government officials in the presentation of the claim;
(2) newly[-]discovered facts; and (3) an after-recognized constitutional right.”
Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012); see
also 42 Pa.C.S. § 9545(b)(1)(i-iii). Moreover, a petition invoking an exception
to the jurisdictional time-bar must be filed within one year of the date that the
claim could have been presented. 42 Pa.C.S. § 9545(b)(2) (effective Dec. 24,
2018). If a PCRA petition is untimely, and the petitioner fails to invoke a valid
exception, the court lacks jurisdiction to review the petition or provide relief.
Spotz, 171 A.3d at 676.
4 See Pa.R.A.P. 1113(a) (providing for 30 days after entry of an order of the
Superior Court to file a timely petition for allowance of appeal).
5 A timely PCRA petition shall be filed within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
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To satisfy the newly-discovered fact exception to the PCRA time bar, a
petitioner must demonstrate that he “did not know the facts upon which he
based his petition and could not have learned those facts earlier by the
exercise of due diligence.” Commonwealth v. Balestier-Marrero, 314 A.3d
549, 554 (Pa. Super. 2024). “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. Myers, 303 A.3d 118, 121-22 (Pa. Super.
2023). Moreover, “[t]his rule is strictly enforced.” Commonwealth v.
Brown, 111 A.3d 171, 176 (Pa. Super. 2015).
Appellant maintained in his PCRA petition that he had recently learned
that prior PCRA counsel was ineffective, providing the newly-discovered fact
to support the untimely petition. However, Appellant has since abandoned
this claim. In a footnote to Appellant’s brief, he notes:
Appellant originally filed his second PCRA petition on September 24, 2022,[6] raising a newly[-]discovered[-]fact exception to the PCRA time[]bar based on the new procedural rule change in [Bradley, supra]. Inasmuch as Appellant originally argued Bradley as a newly[-]discovered fact, that claim is abandoned, and Appellant focuses solely on the ineffective assistance of PCRA counsel for conflict of interest.
Appellant’s Brief at 7 n.1 (emphasis in original). While recognizing that this
claim is abandoned, we note that Appellant would not have been successful in
his claim that the Bradley decision set forth a new procedure for raising claims
6 This petition was filed with the Clerk of Courts on September 29, 2022.
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of PCRA counsel’s ineffectiveness as newly-discovered evidence, as this theory
has been rejected in this Commonwealth in multiple instances. See, e.g.,
Commonwealth v. Stahl, 292 A.3d 1130, 1131 (Pa. Super. 2023)
(concluding that “[n]othing in Bradley creates a right to file a second PCRA
petition outside the PCRA’s one-year time limit as a method of raising
ineffectiveness of PCRA counsel”); Commonwealth v. Edmondson, No. 884
WDA 2023, unpublished memorandum at *6-7 (Pa. Super. filed Feb. 27, 2024)
(same); Commonwealth v. Dixon, No. 1145 EDA 2022, unpublished
memorandum at *6 (Pa. Super. filed Dec. 28, 2022) (same).7 This argument
would not have provided Appellant with an exception to the time bar.
In his brief to this Court, Appellant now claims that his prior PCRA
attorney was ineffective because counsel represented both Appellant and a
witness who had testified against him at trial, Corey Robert, which is evidence
of a conflict of interest. Appellant maintains that this is a newly-discovered
fact. As noted above, this claim was not presented to the PCRA court until
Appellant’s supplemental pleading filed in June 2023, and the PCRA court
neither permitted the June 2023 amendment nor addressed the claim in the
Rule 907 notice. Therefore, Appellant’s issue is waived. Miranda, supra;
Porter, supra.
Further, even if the claim were not waived, it would not garner Appellant
relief. Appellant asserts that Attorney Gettleman represented Appellant’s ____________________________________________
7 We may cite to unpublished memorandum decisions of this Court filed after
May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).
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separately-tried co-defendant, Corey Robert, when Robert agreed to testify
for the Commonwealth at Appellant’s trial in exchange for leniency. Appellant
further claims that this supposed dual-representation caused Attorney
Gettleman to deliberately lose Appellant’s direct appeal and fail to obtain relief
on Appellant’s first PCRA petition. As his only evidence in support of this
theory, Appellant attaches to his June 14, 2023 PCRA petition a page from
Robert’s docket sheet to show that Attorney Gettleman entered his
appearance on behalf of Robert on April 18, 2012. We recognize that the
entry of appearance was a week after Robert had been sentenced, and it was
the same day that Attorney Gettleman entered his appearance for Appellant.
Further, it appears from the docket that the entry of appearance occurred only
after Appellant had already been found guilty,8 and nothing occurred on
Robert’s case following Attorney Gettleman’s entering his appearance. There
is absolutely no evidence of any agreement or deliberate sabotage of
Appellant’s prior appeal and/or PCRA case. Appellant cannot prove his claim
by providing only a line entry in a docket sheet.
Additionally, Appellant seemingly did not file his claim within one year
of discovering this alleged conflict. Appellant has included two letters in the
record, which he claims “prove” Attorney Gettleman’s ineffective assistance.
The first is an affidavit signed by Attorney Gettleman that was included as an
8 Appellant was convicted on March 15, 2012. Attorney Gettleman entered his appearance in both cases on April 18, 2012. Appellant was sentenced, with Attorney Gettleman acting as sentencing counsel, on June 13, 2012.
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attachment to Appellant’s federal habeas case, and is stamped as being filed
with the Third Circuit Court on September 21, 2017.9 The second letter was
Attorney Gettleman’s response to a complaint Appellant filed with the
Pennsylvania Disciplinary Board, and is dated July 6, 2023.10 As noted above,
however, this second letter was not a part of the PCRA petition addressed by
the PCRA court; it had been submitted as an amendment without permission,
and we may not consider it herein. With respect to the first letter, which was
included in Appellant’s federal criminal appeal, it was filed on September 21,
2017. Clearly, Appellant’s petition filed in 2022 was not filed within one year
of discovering this alleged “new” information from 2017. See 42 Pa.C.S.
§ 9545(b)(2) (“Any petition invoking an exception … shall be filed within one
year of the date the claim could have been presented.”).
To summarize, Appellant’s PCRA petition filed on September 29, 2022,
and the amended petition filed on October 17, 2022, are untimely and
Appellant has not proven an exception to the timeliness rule. As there were
no genuine issues of material fact presented in the petitions, the PCRA court
did not abuse its discretion in failing to order an evidentiary hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (stating,
“if the PCRA court can determine from the record that no genuine issues of
9Appellant attached this letter to his PCRA petition filed on September 29, 2022.
10 This document is attached to both of Appellant’s requests for judicial notice
filed with the PCRA Court.
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material fact exist, then a hearing is not necessary”). Finally, Appellant’s
requests for judicial notice are moot in light of our disposition.
Order affirmed.
DATE: 09/12/2024
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