Com. v. Ratushny, R.

• Court: Superior Court of Pennsylvania
• Decided: December 14, 2020
• Docket: 566 EDA 2020
• Status: Unpublished

Opinion

J-S52034-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD ALLEN RATUSHNY : : Appellant : No. 566 EDA 2020

Appeal from the PCRA Order Entered January 10, 2020 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001847-2008

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

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 14, 2020

Appellant Richard Allen Ratushny appeals the order of the Court of

Common Pleas of Northampton County denying his petition pursuant to the

Post-Conviction Relief Act (PCRA)1 as untimely filed. We affirm.

On March 13, 2009, a jury convicted Appellant of aggravated indecent

assault, indecent assault, and related charges in connection with his repeated

sexual abuse of his girlfriend’s minor daughter over a two-year period. On

September 18, 2009, the trial court sentenced Appellant to an aggregate term

of six to seventeen years’ imprisonment. Appellant filed a post-sentence

motion which was subsequently denied. On April 6, 2011, this Court affirmed

the judgment of sentence. See Commonwealth v. Ratushny, 17 A.3d 1269

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* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541-9546. J-S52034-20

(Pa.Super. 2011). Appellant did not file a Petition for Allowance of Appeal in

the Supreme Court.

On April 9, 2012, Appellant filed his first PCRA petition. After an

evidentiary hearing, the PCRA court denied the petition on December 27,

2012. This Court affirmed the PCRA court’s order on January 28, 2014 and

the Supreme Court denied Appellant’s petition for allowance of appeal on

November 25, 2014. See Commonwealth v. Ratushny, 96 A.3d 1040

(Pa.Super. 2014), appeal denied, 104 A.3d 3 (Pa. 2014).

On March 4, 2014, Appellant filed a petition for writ of habeas corpus in

federal court. On April 19, 2019, the United States District Court for the

Eastern District of Pennsylvania dismissed Appellant’s petition. On June 25,

2018, the Third Circuit Court of Appeals affirmed the dismissal of the habeas

petition. See Ratushny v. Superintendent Huntingdon SCI, 739

Fed.Appx. 104 (3rd Cir. 2018).

On November 25, 2019, Appellant filed the instant pro se PCRA petition.

On December 4, 2019, the PCRA court filed notice of its intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not

respond to the Rule 907 notice and on January 10, 2020, the PCRA court

dismissed Appellant’s petition. Appellant filed a timely appeal and complied

with the PCRA court’s direction to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises two issues for our review on appeal:

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1. Did the Commonwealth violate due process of law when it failed to disclose to [Appellant] and counsel that the star witness for the Commonwealth was previously convicted of welfare fraud, a crimen falsi offense; Brady v. Maryland, 373 U.S. 83 (1983)?

2. Did the Hon. Judge Roscioli error and abuse the court’s discretion in denying the PCRA petition which contended a Brady violation did take place?

Appellant’s Brief, at 2.

Before reaching the merits of this appeal, we must first determine

whether Appellant’s petition was timely filed. It is well-established that “the

PCRA's timeliness requirements are jurisdictional in nature and must be

strictly construed; courts may not address the merits of the issues raised in a

petition if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589,

591 (Pa.Super. 2016) (citations omitted).

Generally, a PCRA petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment of sentence becomes

final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review. 42 Pa.C.S.A. § 9545(b)(3).

However, Pennsylvania courts may consider an untimely PCRA petition

if the petitioner explicitly pleads and proves one of the three exceptions

enumerated in Section 9545(b)(1), which include: (1) the petitioner's inability

to raise a claim as a result of governmental interference; (2) the discovery of

previously unknown facts or evidence that would have supported a claim; or

(3) a newly-recognized constitutional right that has been held to apply

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retroactively by the Supreme Court of the United States or the Supreme Court

of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

In this case, this Court affirmed the judgment of sentence on April 6,

2011 and Appellant did not seek discretionary review in the Supreme Court.

Thus, Appellant’s judgment of sentence became final on May 6, 2011, when

the time period for filing a petition for allowance of appeal in the Supreme

Court expired. See Pa.R.A.P. 1113 (providing that a petition for allowance of

appeal must be filed with the Supreme Court within 30 days of this entry of

this Court’s order).

As a result, Appellant had until Monday, May 7, 2012 to file a timely

PCRA petition. Appellant’s petition filed over seven years later, on November

25, 2019, is facially untimely.

Appellant argues that the newly-discovered facts exception set forth in

42 Pa.C.S.A. § 9545(b)(1)(ii) applies as he alleges that “immediately upon

being made aware of this crimen falsi conviction of the prosecution’s ‘star’

witness the petitioner filed this PCRA petition with the court, and according to

Pa. PCRA requirement set forth in 42 Pa.C.S.A. § 9545(b)(2) (60 days), and

42 Pa.C.S.A. § 9545(b)(1)(ii).” Appellant’s Brief, at 3.

Subsection 9545(b)(1)(ii) of the PCRA provides an exception to the

PCRA's one-year time bar for the filing of petitions for relief if the petition

pleads and proves that “the facts upon which the claim is predicated were

unknown to the petitioner and could not have been ascertained by the exercise

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of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v. Peterson,

648 Pa. 313, 315, 192 A.3d 1123, 1124 (2018).

However, the record refutes Appellant’s claim that he only discovered

the alleged Brady violation sixty days before he filed the instant PCRA

petition. Appellant litigated this claim in his first PCRA petition filed in 2012

and in the federal habeas corpus action. As this issue was known to Appellant

in 2012, he has not satisfied the newly discovered facts exception to the

PCRA’s timeliness requirement. Moreover, this issue cannot be reviewed in

the instant PCRA petition as it was previously litigated in the prior proceedings.

42 Pa.C.S.A. §§ 9543(a)(3), 9544(a)(3).

Our courts have emphasized that a petitioner must specifically plead

and prove that one of the PCRA timeliness exceptions applies to the untimely

petition in order to avoid the PCRA time bar. Commonwealth v. Beasley,

559 Pa. 604, 609, 741 A.2d 1258, 1261 (1999). Accordingly, as Appellant has

not plead or proved that one of the PCRA timeliness exceptions applies to his

petition, we conclude that the PCRA court did not err in dismissing his petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/14/20

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