Com. v. Ranalli, A.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

AUGUST A. RANALLI, Appellant No. 2215 MDA 2013

Appeal from the PCRA Order December 4, 2013 in the Court of Common Pleas of York County Criminal Division at No.: CP-67-CR-0001997-2007

BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 16, 2014 Appellant, August A. Ranalli, appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.1 Specifically, he claims an exception to the statutory time-bar under section 9545(b)(ii), for after-discovered facts. We affirm.

On August 6, 2007, Appellant entered a plea of no contest at No.

0001997-2007, Count 2, to charges of possession (cocaine), possession with intent to deliver (PWID) (cocaine), and possession of drug paraphernalia.2

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*

Retired Senior Judge assigned to the Superior Court.

1 Although the order was dated December 3, 2013, it was filed on December 4. We have amended the caption accordingly. 2 As part of the same negotiated plea, Appellant also entered a guilty plea to possession of a small amount of marijuana, false ID to law enforcement; (Footnote Continued Next Page)

The court sentenced him to a term of not less than three nor more than six

3

Appellant did not file a

post-sentence motion or direct appeal.

On April 10, 2013, over five and a half years later, Appellant filed the instant PCRA petition, pro se. The PCRA court appointed counsel, who continues to represent Appellant in this appeal. Counsel did not file an amended petition.

At the PCRA hearing on October 23, 2013, Appellant testified that in 2012 he learned through a friend that one of the detectives who had investigated his case, Steven Crider, subsequently pleaded guilty to evidence tampering in several drug cases, including his own. (See N.T. PCRA Hearing, 10/23/13, at 20 line 8).4

the PCRA court that Crider entered his guilty plea on November 17, 2009,

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(Footnote Continued)

theft by unlawful taking, and harassment. (See N.T. Plea, 8/06/07, at 1-2). These guilty pleas are not at issue in this appeal. 3 After sentencing Appellant to concurrent terms of probation on the remaining counts, and restitution of $25.00, the court closed the remaining cases. (See N.T. Plea, 8/06/07, at 6). 4

conviction in March of 2013. (See Hearing, at 12 [which does not mention a year at all]). The March 2013 date has the benefit of allowing Appellant to argue that he filed his petition within 60 days of learning about Detective See 42

paragraph (1) shall be filed within 60 days of the date the claim could have we need not resolve this apparent discrepancy.

3

and was sentenced on January 15, 2010. (See id. at 17).5 Appellant claims

exception to the statutory time-bar.

At the PCRA hearing, Appellant maintained that, had he known of See id. at 20, 22).

Appellant explained that while incarcerated at SCI Cresson, he did not have access to newspapers, the Internet, or other sources of news. (See id. at 19-20). In effect, Appellant claimed that with limited access to news media he could not ha sentencing any earlier than he did through the exercise of due diligence.

In further explanation, Appellant presented a somewhat convoluted narrative to the effect that shortly before trial was scheduled to begin Detective Crider and his associate Detective Bixler approached Appellant in a back room, and conceded they had no evidence against him. (See id. at 23-24). Nevertheless, he maintained, they forced him to plead with threats

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numerous counts, including six counts of forgery (apparently of laboratory reports), not at issue here, six counts of tampering with or fabricating evidence, and six counts of possession of a controlled substance (a combination of cocaine, marijuana, and heroin). (See N.T. PCRA Hearing, 10/23/13, at 17). In connection with his guilty plea, Crider apparently admitted taking controlled substances from evidence lockers, including one for Appellant, and using the crack cocaine himself.

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that if he did not, they would prosecute Nina Samuel, his then-girlfriend and the mother of his young child. (See id.).

On cross-examination by the prosecutor, and direct questioning by the PCRA court, Appellant held firm that he pleaded no contest to PWID and the related charges even though the police detectives informed him that they did not have a case against him. (See id. at 24, 32, 34).

Although Appellant maintained that he entered his plea to protect Ms.

Samuel, the record established that she was scheduled to be a witness for the prosecution who had originally informed on him and gave the police consent to search her house where the controlled substances were found. (See id. at 26, 35-36).

After the hearing, the PCRA court denied the petition. (See Order, 12/04/13). In a companion opinion to the order, the PCRA court explained that it dismissed the petition because it was untimely without a statutory exception to the time bar. (See Opinion in Support of Order Dismissing , at 8).

This timely appeal followed, on December 12, 2013.6 Appellant filed a

court-ordered statement of errors on December 20, 2013.7 The PCRA court

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6 Appellant filed an amended notice of appeal on December 17, 2013.

7 Because we decide that the PCRA court and this Court lack jurisdiction to review claim would also be waived for the vagueness of the boilerplate allegation raised in his Rule 1925(b) statement of errors.

5

filed a Rule 1925(a) opinion on December 27, 2013, referencing its Opinion in Support of Order filed December 4, 2013. See Pa.R.A.P. 1925.

Appellant raises one question for our review on appeal:

Whether the [PCRA] [c]ourt erred in dismissing

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Id. at 8).9 However, he claims an exception to the statutory time bar, (see id. which the claim is predicated were unknown to the petitioner and could not

Our standard of review of an order denying PCRA relief is

and whether the PCRA error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa.

Super. 2011) (citing Commonwealth v. Berry, 877 A.2d 479,

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8 For the benefit of counsel, we note that we could find Appellan boilerplate question waived for vagueness. See Pennsylvania Rule of

Pa.R.A.P. 2116(a). However, we will address the issue of after discovered facts as suggested in his argument section in the interest of judicial economy. 9 The court sentenced Appellant on August 6, 2007. His judgment of sentence became final thirty days later when the time to file a direct appeal expired, on September 5, 2007. Appellants then had one year, until September 5, 2008, to file a timely PCRA petition, unless he can plead and prove one of the statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b); (see also PCRA Ct. Op., at 5).

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482 (Pa. Super. 2005)), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012). A PCRA petitioner must establish the claim by a preponderance of the evidence. Commonwealth v. Gibson, 592 Pa. 411, 415, 925 A.2d 167, 169 (2007).

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014).

sdictional time-bar raise questions of law; accordingly, our standard of review is de novo Commonwealth v. Chester, 895 A.2d 520, 522 n.1 (Pa. 2006).

[Our Supreme] Court has held that, for purposes of 42 Pa.C.S.

§ 9545(b)(1)(ii), information is not petitioner when the information was a matter of public record.

See Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 n.4 (2000) (holding that the Baldus-Woodworth study is not S.

Commonwealth v. Whitney, 572 Pa. 468, 817 A.2d 473, 476 (2003) (same). . . . Accordingly, the PCRA court

Id. at 523 (footnote omitted).

and could not have been ascertained by the exercise of due diligence, the information must not be of public record and must not be facts that were previously known but are now presented through a newly discovered Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013), cert.

denied, 134 S. Ct. 639 (2013); see Commonwealth v. Aponte, 855 A.2d 800, 811 (Pa. 2004), cert. denied, 543 U.S. 1063 (2005) (noting prior

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conviction is objective fact that becomes matter of public record); see also Commonwealth v. Palmer, 814 A.2d 700, 708 (Pa. Super. 2002), appeal denied, 832 A.2d 436 (Pa. 2003), abrogated on other grounds by Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007) (criminal

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (finding that cases which were docketed, filed with clerk of court, and readily available did not present newly-discovered evidence; PCRA court properly found petition untimely).

Here, there is no dispute that Detecti sentencing were matters of public record. Therefore, they cannot be

discovered evidence exception to the PCRA time-bar. Moreover, his arrest was well-publicized in local news media (as established by the

discovered fact or evidence justifying an exception to the PCRA time-bar.

Additionally, Appellant argues that he was abandoned by counsel, analogously to the appellant in Bennett, supra. (See

question. Accordingly, it is waived. See Pa.R.A.P be considered unless it is stated in the statement of questions involved or is

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reliance on Bennett is misplaced.

In Bennett, our Supreme Court decided that the appellant was entitled to a narrow exception from the statutory time-bar because his counsel had abandoned him by failure to file a requested brief on direct appeal, which the Court considered the functional equivalent of having no counsel at all. See Bennett, supra at 1273-74. Here, there is no suggestion in the record of any such dereliction by defense counsel. Therefore, the holding in Bennett is not pertinent to our review.

Instead, Appellant merely proposes, without citation to any authority whatsoever, that even after his guilty pleas and nolo plea both the Public

could have

been effected [sic] by Detective added). Appellant fails to develop this claim or support it with citation to See Pa.R.A.P.

2119(a), (b).10

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10 Moreover, it would not merit relief. See Chester, supra at 523 (finding

jurisdictional time-bar).

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The PCRA court properly concluded that App untimely filed with no exception to the statutory time-bar proven.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/16/2014