Com. v. Rorrer, P.

Opinion

J-S71013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PATRICIA LYNNE RORRER : : Appellant : No. 1640 EDA 2019

Appeal from the PCRA Order Entered May 17, 2018 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0002176-1997

BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.: FILED APRIL 22, 2020

Patricia Lynne Rorrer appeals the PCRA court’s dismissal of her fifth

PCRA petition as untimely filed. We affirm.

We previously summarized the factual history of this case as follows:

Appellant is the former girlfriend of Andrew Katrinak. On December 12, 1994, [A]ppellant telephoned the Katrinak residence, where Andrew lived with his wife, Joann, and their infant son, Alex. Joann told [A]ppellant never to call there again. Three days later, Joann and the baby disappeared. Their bodies were discovered in a wooded area where [A]ppellant once stabled and rode her horses. The results of an autopsy established that Joann had been beaten and shot in the face with a .22 caliber handgun. The cause of death of the baby could not be determined conclusively. His death was the result of either suffocation or exposure to the elements. Following an extensive two-year police investigation, [A]ppellant was arrested at her home in North Carolina and charged with kidnapping and murder.

See Commonwealth v. Rorrer, 748 A.2d 776 (Pa.Super. 1999) (“Rorrer

I”) (unpublished memorandum), appeal denied, 757 A.2d 931 (Pa. 2000). J-S71013-19

Notably, the police investigation included DNA testing of hairs found at the

crime scene on the back of the headrest of the driver’s seat (hereinafter

referred to as “the seatback hairs”). Testing results indicated that Appellant

could not be excluded as a contributor to the seatback hairs.

On March 9, 1998, a jury found Appellant guilty of two counts each of

first-degree murder and kidnapping. Appellant was sentenced to two terms

of life imprisonment on the first-degree murder charges, followed by two

consecutive ten-to-twenty-year terms of imprisonment for the kidnapping

convictions. Appellant filed a post-sentence motion, asserting 105 claims of

ineffective assistance of trial counsel and numerous claims of trial court error.

The trial court held multiple hearings, denied the motions, and authored an

opinion addressing all of the issues. On direct appeal, Appellant presented

four ineffectiveness claims, which we rejected. See Rorrer I, supra. Our

Supreme Court also denied her petition for allocatur on April 11, 2000.

Appellant filed a timely PCRA petition, which was denied. On appeal,

Appellant averred that direct appeal counsel was ineffective for not pursuing

all 105 claims of trial counsel’s ineffectiveness that were included in the post-

sentence motion. We rejected that argument and affirmed the denial of PCRA

relief. See Commonwealth v. Rorrer, 844 A.2d 1288 (Pa.Super. 2003)

(“Rorrer II”) (unpublished memorandum).

On June 27, 2005, Appellant filed a petition pursuant to 42 Pa.C.S. §

9543.1, which governs procedures for a person convicted of a criminal offense

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and serving a jail term to obtain forensic DNA testing on specific evidence.

Appellant argued that further DNA testing, using the more reliable DNA

technologies now available, would exonerate her of the murders. A hearing

on the DNA testing claim was held, at which both sides agreed that the

recovered seatback hairs belonged to the killer and that the chain of custody

of those hairs was not in question since they were mounted right after they

were found. N.T. Hearing, 12/1/06, at 60.

The court entered an order compelling the Commonwealth to preserve

the seatback hairs and other items, and authorized a DNA expert to review

the DNA testing conducted prior to trial. The expert was to determine if new

DNA testing procedures now existed which could yield more accurate results.

The court also gave notice of its intent to dismiss all allegations pertaining to

the chain of custody of the hair samples. The items were sent for inspection

to Appellant’s choice of lab, Orchid Cellmark, and in October of 2007, the

Commonwealth agreed to allow nuclear DNA testing of a fingernail fragment,

the seatback hairs, and a cigarette butt. Test results of one of the seatback

hairs revealed that it belonged to Appellant. The laboratory was unable to

recover material from the fingernail that could be tested, and no other items

were DNA tested. Appellant requested mitochondrial DNA testing on the

fingernail, which the Commonwealth opposed and the court denied.

After the DNA results were admitted into evidence, defense counsel

renewed the chain of custody issue, arguing that the Commonwealth failed to

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establish a reliable chain of custody for the seatback hairs tested by Orchard

Cellmark. The Commonwealth countered that the chain of custody issue had

already been dismissed by the court’s order of March 15, 2007, based on the

stipulation of the parties. Moreover, the Commonwealth contended that it

offered evidence at trial that established a reliable chain of custody as to the

forensic items.

While the DNA petition was still being litigated, Appellant filed a second

PCRA petition claiming that the Commonwealth intentionally withheld

exculpatory evidence consisting of a statement that Walter Traupman gave to

police. Since Mr. Traupman’s original statement was not available, the PCRA

court allowed Mr. Traupman to be deposed. At his deposition, Mr. Traupman

claimed that he witnessed a fight between the victim and her husband on a

public street on December 15, 1994, and that, when he went to the police

barracks to tell them, a police officer pushed him out of the door, “shoved him

down the steps,” and injured his neck. N.T. Deposition, 7/27/06, at 9. The

PCRA court denied Appellant’s petition, concluding that Mr. Traupman’s

deposition did not warrant the grant of a new trial in light of the DNA evidence

against Appellant. Appellant did not file an appeal.

On August 24, 2012, Appellant filed her third PCRA petition. In this

petition, she asserted entitlement to additional DNA testing of the fingernail

fragment as on the basis that she had just discovered that the Commonwealth

had tampered with it. Appellant, who was thirty-three years old when she

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committed the murders, also asserted that she was entitled to relief under

Miller v. Alabama, 567 U.S. 460 (2012)(holding “that mandatory life without

parole for those under the age of 18 at the time of their crimes violates the

Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”). The

PCRA court denied relief and on appeal, we affirmed. Commonwealth v.

Rorrer, 93 A.3d 508 (Pa.Super. 2013) (“Rorrer III”) (unpublished

memorandum), appeal denied, 92 A.3d 811 (Pa. 2014).

On September 24, 2015, Appellant filed her fourth PCRA petition with

the assistance of counsel. In this petition, Appellant alleged that the hair

analysis testimony offered at her 1998 trial was unreliable and would be

inadmissible under current professional standards; that the Pennsylvania

State Police deliberately placed her exemplar hairs on the slides that were

sent to the FBI and then, post-conviction, to an independent lab for DNA

testing; that she had after-discovered evidence in the form of Catasauqua

Police Officer Joseph Kicska, who was one of the responders to Mr. Katrinak’s

home after Joann was reported missing, and who told Joseph York that he lied

at trial when he said that an exterior door to the victim’s home was pried

open; and that the Commonwealth withheld exculpatory evidence when it

failed to provide her with the statements that Mr. Trautman made to police.

On December 11, 2015, the PCRA court issued notice of its intent to dismiss

the petition without a hearing. After counsel filed an amended petition and

motion to inspect and copy documents, the Commonwealth filed a motion to

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strike portions of Appellant’s amended petition. On May 26, 2016, after

entertaining oral argument on the timelines of the petition, the PCRA court

dismissed it as untimely.

On appeal, we affirmed the dismissal of Appellant’s fourth PCRA petition,

finding that the record categorically belied Appellant’s arguments.

Commonwealth v. Rorrer, 179 A.3d 605 (Pa.Super. 2017) (“Rorrer IV”)

(unpublished memorandum). First, we found that Appellant’s claim that her

exemplar hairs were switched for the seatback hairs had been previously

litigated in her third PCRA petition. Further, this conspiracy theory was

discredited by the record, which established that the slides were sent to the

FBI before Appellant’s exemplar hairs were secured. Following our decision,

Appellant filed a petition for allowance of appeal in the Supreme Court, which

was denied. Commonwealth v. Rorrer, 179 A.3d 605 (Pa. 2018).

While Appellant’s petition for allocatur was pending, Appellant filed a

fifth petition for PCRA relief citing newly-discovered evidence. She alleged

that she had uncovered new evidence in the form of a letter from the trial

prosecutor indicating definitively, for the first time that the FBI report that

was the subject of her fourth PCRA petition, was never in the Commonwealth’s

possession. Because the fourth PCRA petition was still pending in our

Supreme Court, the PCRA court issued a Rule 907 notice. Appellant filed a

response indicating that she filed the petition while the fourth PCRA was still

pending in order to ensure that she timely raised her claim and that the PCRA

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court should hold the petition in abeyance until the litigation of her fourth

PCRA petition was complete. The Commonwealth filed a motion to dismiss

and, after issuing a Pa.R.Crim.P. 907 notice and after the Supreme Court

denied allocatur on the fourth PCRA petition, the PCRA court dismissed

Appellant’s fifth PCRA petition.

Appellant filed a “notice of reconsideration or notice of appeal to the

Superior Court.” The PCRA court denied the motion and ordered Appellant to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant complied, responding with a concise statement of matters

complained of on appeal and also filed a “motion to correct record including

appellate record,” alleging that the October 26, 2017 Superior Court

memorandum contained a litany of factual inaccuracies that were derived

either from a misleading 2009 PCRA court opinion, or from improper

communication between the Commonwealth and the Superior Court. She

further argued that these inaccuracies had obstructed her access to a fair

appellate process. The PCRA court treated the motion as a sixth PCRA petition

and entered an order giving notice of its intent to dismiss the petition.

Appellant filed a response to the notice, and on July 27, 2018, the PCRA court

dismissed Appellant’s sixth PCRA petition. Appellant filed a “notice of intent

to appeal” dismissal of her motion to correct the record. However, she did

not perfect the appeal by filing an actual notice of appeal, and no further action

was taken by the PCRA court.

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Meanwhile, Appellant filed a petition for a writ of habeas corpus in

federal court. As a result, the federal court ordered the Commonwealth to

provide a status report on any pending state court cases. During its

investigation of the status of Appellant’s case, the Commonwealth became

aware of the unresolved filings regarding the fifth PCRA and motion to correct

the record. The Commonwealth contacted Appellant and stated that it would

not object to a nunc pro tunc reinstatement of her appellate rights with respect

to both filings. Hence, Appellant’s appellate rights were reinstated and this

nunc pro tunc appeal followed. Both Appellant and the PCRA court complied

with the mandates of Rule 1925.

Appellant raises the following issues for our review:

1. Did the honorable trial court err, and abuse [its] discretion, when denying [Appellant’s] “motion to correct the record” without an evidentiary hearing?

2. Did the honorable trial court show clear and obvious bias and prejudice against [Appellant], thereby violating her due process rights because:

a. [It] disregarded and refused to address her appeals until ordered to do so by a magistrate judge;

b. [It] interfered with her appellate process by instructing her to follow procedure they knew to be incorrect;

c. [It] deliberately ignored her appellate rights.

3. Did the Honorable trial court violate [Appellant’s] rights, due process rights and right to a fair trial by:

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a. Failing to investigate and correct errors in her record after they and their officers were provided with documentation proving those errors?

b. Allowing her to be judged on facts [it] and [its] officer know to be untrue?

c. Refusing to review and correct these erroneous facts thereby tying the hands of the higher courts and causing years of irreversible damage?

4. Did the honorable trial court, and [its] officers, show clear and obvious bias against petitioner, thereby violating her appellate rights, right to a fair and impartial review of her case and right to due process by:

a. Failing to investigate why the PA Superior Court added additional false facts to [Appellant]’s DNA record;

b. Failing to inform the PA Superior Court of those errors and;

c. Repeating those errors as fact despite knowing they are untrue?

5. Did the honorable trial court err and abuse [its] discretion, by denying [Appellant] an evidentiary hearing on her PCRA on newly discovered evidence and a Brady violation, thereby violating her constitutional right to due process, a fair trial and her right to confront witnesses since former A.D.A. Michael McIntyre could verify that:

a. The “no roots attached” report is an authentic FBI report;

b. He knows the identity of the FBI agent who wrote the report;

c. He has spoken to the FBI agent who wrote the report;

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d. The “no roots attached” report was never handed over to the defense.

6. Did the honorable trial court err in holding [Appellant] to a higher standard than [its] own officers in the use of due diligence?

Appellant’s brief at 9-11.

Our standard of review examines “whether the PCRA court’s

determination is supported by the evidence of record and free of legal error.

We grant great deference to the PCRA court’s findings, and we will not disturb

those findings unless they are unsupported by the certified record.”

Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super. 2017).

We first turn to the time limits imposed by the PCRA, as they implicate

our jurisdiction to address any and all of Appellant’s claims. Commonwealth

v. Chester, 895 A.2d 520, 522 (Pa. 2006). In order to be timely, a PCRA

petition must be filed within one year of the date that the judgment of

sentence becomes final. 42 Pa.C.S. § 9545(b)(1). “This time constraint is

jurisdictional in nature, and is not subject to tolling or other equitable

considerations.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017)

(citation omitted). The time bar can “only be overcome by satisfaction of one

of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii).”

Id.

Appellant alleges that she has uncovered newly-discovered facts which

exonerate her. See Appellant’s brief at 22. When considering a claim seeking

to invoke the newly-discovered-fact exception, our Supreme Court requires

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that a petitioner establish that: “(1) the facts upon which the claim was

predicated were unknown[,] and (2) they could not have been ascertained by

the exercise of due diligence.” Commonwealth v. Cox, 146 A.3d 221, 227

(Pa. 2016) (citation omitted). Due diligence demands that the petitioner take

reasonable steps to protect her own interests. Commonwealth v. Carr, 768

A.2d 1164, 1168 (Pa.Super. 2001). This rule is strictly enforced.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010).

Additionally, the focus of this exception “is on the newly discovered facts, not

on a newly discovered or newly willing source for previously known facts.”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).

Appellant concedes that her petition is untimely, but asserts that she

has newly discovered evidence in the form of a portion of a letter written from

the trial prosecutor to Tammy O’Reilly1 and received on February 19, 2018,

after Ms. O’Reilly filed a request under the Freedom of Information Act (FOIA).

See Appellant’s brief at Exhibit B. The letter indicates that the Commonwealth

did not have the FBI report pre-trial, but received it after Ms. O’Reilly filed a

request under the Freedom of Information Act (FOIA) in 2015. Id. She

alleges that the letter and FBI report itself support her claim that the

Pennsylvania State Police (PSP) or their DNA lab fabricated evidence by

switching the seatback hairs recovered from the crime scene with Appellant’s

____________________________________________

1 Tammy O’Reilly is a true-crime author who sought out the information from the FBI while researching a book she was writing about Appellant’s case.

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own exemplar hairs, fraudulently implicating her in the murders. Id. at 20.

Importantly, Appellant previously litigated this theory of switched seatback

hairs in her fourth PCRA petition, which was dismissed as untimely, in part,

because the PCRA court found that Appellant failed to show the necessary due

diligence in order to overcome the PCRA time bar. See Rorrer IV, supra.

Appellant alleges that the letter shows that she did in fact exercise the

necessary due diligence, because she managed to uncover something that the

Commonwealth had not discovered.

The Commonwealth responds that the fact that the prosecuting attorney

did not have the FBI reports at the time of trial does nothing to alter the PCRA

court’s prior conclusion that Appellant failed to satisfy the due diligence

requirement of the PCRA time bar. See Commonwealth’s brief at 20.

Appellant was aware of the underlying fact that DNA testing was conducted

by the FBI pre-trial, yet she did not attempt to obtain these reports through

an FOIA request until 2015. Therefore, the fact that Appellant has now

uncovered a new source to attempt to re-litigate the same substantive issue

does nothing to explain why she waited until 2015 to file the FOIA request.

Id. The PCRA court agreed with the Commonwealth’s argument and

concluded that Appellant’s fifth petition was “duplicative [of her fourth PCRA

petition] and did not satisfy any of the exceptions to the timeliness

requirements of the PCRA.” PCRA Court Opinion, 7/23/19, at unnumbered

10. We agree.

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Appellant alleges that this issue was not previously litigated because she

did not previously have the letter. See Appellant’s brief at 22. However, she

misunderstands what the newly discovered facts actually are. As the PCRA

court explained, the facts at issue are whether the chain of custody of the

seatback hairs from the crime scene were erroneously replaced with

Appellant’s exemplar hairs, tainting the resulting DNA tests. See PCRA Court

Opinion, 7/23/19, at unnumbered 10. The letter does not inform that issue.

Moreover, Appellant previously raised this exact allegation in her fourth PCRA

petition.

Consequently, we reject Appellant’s attempt to tailor her previously

litigated newly-discovered-fact analysis as separate and distinct from that

raised in her fourth PCRA petition by linking this petition to her 2018 discovery

of a letter. The fact that Appellant has discovered yet another conduit for the

same allegations of taint does not transform her latest source into evidence

falling within the ambit of § 9545(b)(1)(ii). See Marshall, supra at 720.

Accordingly, we find that the PCRA court did not err when it dismissed

Appellant’s fifth PCRA petition as untimely.2

2 Appellant also challenges the accuracy of the record. Specifically, she attacks a previous memorandum, wherein this Court stated that “Orchid reported that all six seatback hairs belonged to Appellant and that the cigarette butt contained Appellant’s DNA.” Rorrer IV, supra. The Commonwealth concedes that Appellant is correct that Orchid did not test the cigarette butt. See Commonwealth’s brief at 25. However, this inaccuracy had no impact upon our affirmance of the dismissal of Appellant’s petition on jurisdictional grounds. Accordingly, no relief is due.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/22/2020

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