Com. v. Stahl, D.

2023 Pa. Super. 17

• Court: Superior Court of Pennsylvania
• Decided: February 7, 2023
• Docket: 1522 WDA 2021
• Status: Published

Opinion

J-S36034-22

2023 PA Super 17

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID FRANK STAHL : : Appellant : No. 1522 WDA 2021

Appeal from the PCRA Order Entered December 7, 2021 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001233-2012

BEFORE: STABILE, J., KING, J., and COLINS, J.*

OPINION BY COLINS, J.: FILED: FEBRUARY 7, 2023

Appellant, David Frank Stahl, appeals pro se from the order entered in

the Westmoreland County Court of Common Pleas (trial court), which

dismissed his second petition filed pursuant to the Post Conviction Relief Act

(PCRA)1 without a hearing. For the reasons set forth below, we affirm.

On June 27, 2014, a jury convicted Appellant of first-degree murder for

strangling his wife to death and the trial court the same day sentenced

Appellant to life imprisonment without parole. Following the trial court’s

imposition of restitution and denial of Appellant’s timely post sentence motion,

Appellant timely appealed, and this Court on November 29, 2016 affirmed his

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* Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541–9546. J-S36034-22

judgment of sentence. Commonwealth v. Stahl, 159 A.3d 601 (Pa. Super.

2016) (unpublished memorandum). Appellant filed a petition for allowance of

appeal, which the Pennsylvania Supreme Court denied on May 31, 2017.

Commonwealth v. Stahl, 169 A.3d 554 (Pa. 2017).

On August 9, 2017, Appellant filed a “Petition for Release of Notes of

Testimony and All Other Related Documents,” which the trial court treated as

a timely first PCRA petition. The trial court appointed PCRA counsel to

represent Appellant and Appellant’s PCRA counsel on December 8, 2017 filed

a PCRA petition raising the claim that Appellant’s two trial counsel were

ineffective for failing to pursue a voluntary intoxication defense. 2017 PCRA

Petition at 7-12. Following a hearing, the trial court on December 6, 2018

denied that PCRA petition. Appellant timely appealed, and this Court on

October 8, 2019 affirmed. Commonwealth v. Stahl (Stahl III), 222 A.3d

818, No. 35 WDA 2019 (Pa. Super. 2019) (unpublished memorandum).

Appellant filed a petition for allowance of appeal, which the Pennsylvania

Supreme Court denied on May 13, 2020. Commonwealth v. Stahl, 233 A.3d

678 (Pa. 2020).

On July 22, 2020, Appellant filed the instant second PCRA petition in

which he asserted that his PCRA counsel was ineffective in representing him

with respect to his first PCRA petition and for failing to pursue claims that he

asked her to assert. 2020 PCRA Petition at 4. The trial court appointed

counsel to represent Appellant on this PCRA petition and that second PCRA

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counsel on November 23, 2020 filed a motion to withdraw and a no-merit

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On February

17, 2021, the trial court entered a Pa.R.Crim.P. 907 notice of its intent to

dismiss this PCRA petition without a hearing both on the ground that it was

time-barred and on the ground that Appellant’s claims of ineffective assistance

of PCRA counsel were without merit.

Appellant filed a pro se response to the trial court’s Rule 907 notice

addressing both the timeliness issue and the nature of the claims that he

sought to assert. In this response, Appellant contended that his 2020 PCRA

petition was timely under the government interference and newly discovered

facts exceptions to the PCRA’s time bar, 42 Pa.C.S. § 9545(b)(1)(i) and (ii),

and that he should be allowed to assert a claim of ineffectiveness of PCRA

counsel promptly after the completion of appeals from the denial of his first

PCRA petition because he had no other opportunity to do so. Response to

Rule 907 Notice at 1-10. Appellant also stated in his response that he was

asserting the following three claims of ineffective assistance of the PCRA

counsel appointed to represent him on his first PCRA petition: 1) failure to

pursue a claim that trial counsel was ineffective for not asserting a challenge

based on Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B. v. Alabama,

511 U.S. 127 (1994) to the selection of an all-female jury; 2) failure to pursue

a claim that trial counsel was ineffective for not seeking a change of venue;

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and 3) ineffectiveness of PCRA counsel in investigating and litigating the

voluntary intoxication ineffectiveness claim that she did pursue. Response to

Rule 907 Notice at 11-19.

On November 17, 2021, the trial court issued an order dismissing

Appellant’s second PCRA petition without a hearing and granting second PCRA

counsel’s motion to withdraw. Trial Court Order, 11/17/21. This order,

however, was not delivered to Appellant, as the copy sent to Appellant was

returned to the trial court as undeliverable. Trial Court Order, 12/7/21. On

December 7, 2021, the trial court accordingly entered an amended order

served on Appellant with a copy of the November 17, 2021 order, stating that

the November 17, 2021 order remained in effect and advising Appellant that

he had thirty days from December 7, 2021 to appeal. Id. This timely appeal

followed.

Appellant argues in this appeal both that his 2020 PCRA petition is not

time-barred and his three claims of ineffectiveness of PCRA counsel are

meritorious. We conclude that Appellant’s claims of ineffective assistance of

PCRA counsel are barred by the PCRA’s time limit and therefore affirm the

dismissal of his 2020 PCRA petition without considering whether the trial court

was also correct in ruling that those claims could be dismissed on the merits

without a hearing.

The PCRA provides that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

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judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be

filed beyond the one-year time period only if the convicted defendant pleads

and proves one of the following three exceptions:

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

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

Id. In addition, these exceptions can apply only if Appellant filed the PCRA

petition “within one year of the date the claim could have been presented.”

42 Pa.C.S. § 9545(b)(2); Commonwealth v. Hipps, 274 A.3d 1263, 1267

(Pa. Super. 2022). The PCRA’s time limit is jurisdictional, and a court may

not ignore it and reach the merits of an untimely PCRA claim.

Commonwealth v. Fahy, 737 A.2d 214, 222-23 (Pa. 1999); Hipps, 274

A.3d at 1267; Commonwealth v. Pew, 189 A.3d 486, 488 (Pa. Super.

2018).

Appellant's judgment of sentence became final on August 29, 2017,

upon expiration of the 90-day period to file a petition for certiorari to the

United States Supreme Court following the May 31, 2017 denial of his petition

for allowance of appeal. 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. The

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instant PCRA petition was filed on July 22, 2020, more than two years after

the judgment became final and is therefore untimely unless Appellant alleged

and proved one of the three limited exceptions set forth in Sections

9545(b)(1)(i)-(iii) and that he filed this PCRA petition within one year after he

first could have done so.

Appellant argues that the PCRA’s exceptions for government

interference and for newly discovered facts, Sections 9545(b)(1)(i) and (ii),

make his PCRA claims timely. Neither of these exceptions, however, applies

to any of the claims in Appellant’s 2020 PCRA petition. Ineffectiveness of

PCRA counsel that does not wholly deprive the defendant of collateral or

appellate review does not satisfy these exceptions. Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa. 2000); Hipps, 274 A.3d at

1268-72.

The only factual basis on which Appellant argues that these exceptions

apply is that he allegedly has been denied material that he contends that he

needs to assert claims of ineffective assistance of PCRA counsel with respect

to his Batson and J.E.B. all-female jury claim. Response to Rule 907 Notice

at 2-9; Appellant’s Brief at 21-35, 66-68.2 Appellant does not assert any claim

2 Appellant has also filed an application in this appeal seeking an order from this Court compelling his trial counsel, his first PCRA counsel, and his second PCRA counsel to provide him with copies of their files. The attorneys against whom Appellant seeks such an order, however, are neither parties to this appeal nor have they entered any appearance in this appeal. Moreover, (Footnote Continued Next Page)

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of government interference or newly discovered facts with respect to his

claims concerning change of venue or inadequate litigation of the voluntary

intoxication claim. To the contrary, Appellant bases his claim of ineffective

assistance of PCRA counsel in failing to raise the change of venue issue on

media coverage of his case in the two years leading up to his 2014 trial.

Appellant’s Brief at 49-56. With respect to PCRA counsel’s litigation of the

voluntary intoxication issue, the information that Appellant contends that

PCRA counsel failed to investigate consists of records in a civil case from 2014

and the extent of the evidence that PCRA counsel presented on the voluntary

intoxication issue was known to Appellant in 2018, when he was present at

the PCRA hearing and when the trial court denied the PCRA. Appellant’s Brief

at 54-62; Stahl III, 222 A.3d 818, No. 35 WDA 2019, slip op. at 5, 8-13.

Appellant’s allegations also fail to satisfy the requirements of

government interference and newly discovered facts exceptions with respect

to the Batson and J.E.B. all-female jury claim as to which he attempts to

assert these exceptions. Appellant admits that he was aware when his trial

Appellant has not served any of these attorneys with his application to compel. See Motion to Compel Proof of Service (stating that Appellant served the application only on this Court and the Commonwealth). Accordingly, this Court denies Appellant’s application, without prejudice to his right to bring an action in which his former attorneys are parties and have the opportunity to respond to seek an order compelling them to provide him with those documents. Denial of Appellant’s application has no effect on the adjudication of this appeal, as any information obtained from the attorneys after the filing of this appeal would not be part of the record on which the appeal is decided.

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occurred in 2014 of the all-female composition of his jury, that he was present

for jury selection, and that he knew at that time that his trial counsel were

not raising objections to the Commonwealth’s peremptory strikes of male

jurors and sought to have female jurors. Appellant’s Brief at 34, 44-45, 49.

Appellant also admits that he knew enough to seek to raise this claim of

ineffective assistance of counsel at the time of his first PCRA, that he asked

PCRA counsel in 2018 to assert this claim, and that he knew in 2018, more

than one year before he filed his 2020 PCRA petition, that PCRA counsel

declined to assert this claim, not based on anything in the transcripts or

records of jury selection that he claims that he is being denied, but because

trial counsel made a strategic decision that it was desirable to have female

jurors. Id. at 62-63. Indeed, Appellant has not alleged that he learned any

new fact supporting his Batson and J.E.B. all-female jury claim in the year

before he filed the instant PCRA petition in July 2020 or that anything occurred

that affected his ability to assert that claim during that one-year period.

Appellant also argues that under our Supreme Court’s decision in

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), his PCRA petition is

not time-barred because it was allegedly his first opportunity to raise

ineffectiveness of PCRA counsel. Appellant’s Brief at 36-43, 64. We do not

agree.

In Bradley, our Supreme Court addressed the dilemma of when a

defendant may raise claims of ineffective assistance of PCRA counsel and held

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that such claims may be raised for the first time during an appeal from the

denial of a timely filed first PCRA petition where the PCRA counsel in question

represented the defendant until the appeal. 261 A.3d at 401-05. Here,

Appellant did not invoke the opportunity to challenge the effectiveness of

PCRA counsel that Bradley provides. Appellant never sought to raise his

claims of ineffectiveness of PCRA counsel during the course of the appeal from

the denial of his timely first PCRA petition, although, as discussed above, he

was fully aware of those claims of ineffectiveness of PCRA counsel. While

Appellant was still represented by PCRA counsel throughout the appeal and

that counsel could not raise her own ineffectiveness, id. at 398;

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), a defendant in

that situation who wishes to assert claims that PCRA counsel was ineffective

can request to have new counsel appointed to permit the assertion of such

claims or can seek to represent himself. See, e.g., Commonwealth v.

Greer, No. 386 MDA 2022, slip op. at 4-5 (Pa. Super. filed Oct. 20, 2022)

(unpublished memorandum) (remanding for appointment of new counsel to

permit defendant to assert claims of PCRA counsel ineffectiveness);

Commonwealth v. Smith, 2598 EDA 2021, slip op. at 4 (Pa. Super. filed

Oct. 12, 2022) (unpublished memorandum) (same). Appellant did not do so

at any point during his appeal from the trial court’s denial of his first PCRA

petition.

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Nothing 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 or permits recognition of such a right. To the contrary, our Supreme

Court in Bradley unambiguously rejected the filing of a successive untimely

PCRA petition as a permissible method of vindicating the right to effective

representation by PCRA counsel. 261 A.3d at 403-04 & n.18. The Supreme

Court not only stated that the opportunity that it allowed to raise claims of

ineffective assistance of PCRA counsel “does not sanction extra-statutory

serial [PCRA] petitions,” but also expressly held:

We decline to adopt the approach, suggested by Appellee and Amicus Pennsylvania Innocence Project, that would deem a petitioner’s “discovery” of initial PCRA counsel’s ineffective assistance to constitute a “new fact” that was unknown to petitioner, allowing such petitioner to overcome, in a successive petition, the PCRA’s time bar provision under the “new fact” exception. See 42 Pa.C.S. § 9545(b)(1)(ii). We have repeatedly rejected such an understanding of the “new fact” exception to the PCRA’s one-year time bar.

261 A.3d at 403, 404 n.18 (citations omitted). See also id. at 406 (Justice

Dougherty concurring) (“Importantly, our decision today does not create an

exception to the PCRA’s jurisdictional time-bar, such that a petitioner

represented by the same counsel in the PCRA court and on PCRA appeal could

file an untimely successive PCRA petition challenging initial PCRA counsel’s

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ineffectiveness because it was his ‘first opportunity to do so’”). Bradley

therefore cannot make Appellant’s 2020 PCRA petition timely.3

Because Appellant has not shown that any statutory exception to the

PCRA’s one-year time limit applies to the claims of ineffective assistance of

PCRA counsel that he asserted in his 2020 PCRA petition and Bradley does

not provide an exception to the PCRA’s time bar, the trial court correctly held

that Appellant’s 2020 PCRA petition was untimely. We therefore affirm the

trial court’s dismissal of that PCRA petition without a hearing.

Order affirmed. Application to compel denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/7/2023

3 This conclusion, moreover, is supported by the persuasive non-precedential decisions of other panels of this Court that have addressed this issue and have repeatedly held that Bradley does not permit the filing of a subsequent untimely PCRA petition as a method of raising claims of ineffectiveness of PCRA counsel. See, e.g., Commonwealth v. Bingaman, No. 123 WDA 2022, slip op. at 5-7 (Pa. Super. Oct. 21, 2022) (unpublished memorandum); Commonwealth v. Bernal, No. 974 MDA 2021, slip op. at 4-6 & nn.2, 3 (Pa. Super. filed Sept. 13, 2022) (unpublished memorandum); Commonwealth v. Dennis, No. 1926 EDA 2021, slip op. at 7-9 (Pa. Super. filed Aug. 29, 2022) (unpublished memorandum).

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