Com. v. Strzelczyk, G

• Court: Superior Court of Pennsylvania
• Decided: May 10, 2023
• Docket: 2631 EDA 2022
• Status: Unpublished

Opinion

J-S10014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GEORGE STRZELCZYK : : Appellant : No. 2631 EDA 2022

Appeal from the PCRA Order Entered September 8, 2022 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001032-1986

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY PANELLA, P.J.: FILED MAY 10, 2023

George Strzelczyk appeals, pro se, from the order denying his serial

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We conclude Strzelczyk’s PCRA petition is patently

untimely, and he failed to plead and prove an exception to the PCRA’s

timeliness requirement. We affirm.

In 1987, a jury found Strzelczyk guilty of rape and related charges. The

trial court sentenced Strzelczyk to an aggregate term of 15 to 30 years in

prison.1 This Court affirmed the judgment of sentence on direct appeal, and

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1We note that the record indicates Strzelczyk was free on bail during his direct appeal, and that he subsequently spent several years as a fugitive before he began serving his sentence. As a result, he is still serving this sentence as of April 24, 2023. See www.inmatelocator.cor.pa.gov/, inmate # CQ8248, last accessed 4/24/2023. J-S10014-23

our Supreme Court denied allowance of appeal. See Commonwealth v.

Strzelczyk, 555 A.2d 250 (Pa. Super. filed Oct. 31, 1988) (unpublished

memorandum), appeal denied, 562 A.2d 320 (Pa. 1989). In the decades that

followed, Strzelczyk filed four PCRA petitions, each of which was denied.

On April 28, 2022, Strzelczyk filed a pro se “Concise Statement of

Matters on Appeal,” which the PCRA court construed as his fifth PCRA Petition.

Therein, Strzelczyk argued Attorney Michael Cowley, who had filed an

amended petition on Strzelczyk’s behalf during the litigation of his fourth PCRA

petition, was never permitted to present evidence despite citing newly-

discovered evidence.2 The PCRA court issued Pa.R.Crim.P. 907 notice of its

intention to dismiss Strzelczyk’s fifth petition without a hearing. In response,

Strzelczyk filed a “Notice of Disposition Appeal,” challenging the PCRA court’s

conclusion that his PCRA petition was untimely filed. On September 8, 2022,

the PCRA court denied Strzelczyk’s PCRA petition. This appeal followed.3

2 The record reflects that Attorney Cowley was granted permission to withdraw from representation on May 14, 2012, and the PCRA court directed counsel to deliver the record to the Monroe County Public Defender’s Office. See Order, 5/14/12.

3 The record indicates the PCRA court served the order denying Strzelczyk’s PCRA petition several days later, on September 13, 2022. See Pa.R.A.P. 108(a)(1) (“[T]he day of entry [of an order] shall be the day the clerk of the court … mails or delivers copies of the order to the parties….”). Strzelczyk filed a pro se “Writ of Mandamus” in the Pennsylvania Supreme Court, which he described as an appeal from the PCRA court’s order. The Supreme Court received the filing on October 7, 2022, and transferred it to this Court. See Pa.R.A.P. 905(a)(4) (permitting transmission of a notice of appeal that was (Footnote Continued Next Page)

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“This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.” Commonwealth v. Rizvi,

166 A.3d 344, 347 (Pa. Super. 2017) (citation omitted).

Prior to reaching the merits of Strzelczyk’s claims, we must consider the

timeliness of his PCRA petition. See Commonwealth v. Miller, 102 A.3d 988,

992 (Pa. Super. 2014). The PCRA’s timeliness requirements are jurisdictional

in nature, and a court lacks jurisdiction to address claims raised in an untimely

petition. See Commonwealth v. Liebensperger, 904 A.2d 40, 45 (Pa.

Super. 2006). A PCRA petition “shall be filed within one year of the date the

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

final, for purposes of PCRA review, “at the conclusion of direct review,

including discretionary review in the … Supreme Court of Pennsylvania, or at

the expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

Here, Strzelczyk’s judgment of sentence became final in 1989. The

instant PCRA petition, filed several decades later, is therefore patently

untimely. Accordingly, the PCRA court lacked jurisdiction to review

Strzelczyk’s petition unless he was able to plead and prove one of the statutory

exceptions to the PCRA’s time-bar set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-

originally filed in an incorrect office). Because Strzelczyk filed the pro se document in the Supreme Court within 30 days of the PCRA court’s order, we consider this appeal as timely filed.

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(iii). A petitioner asserting one of these exceptions must file a petition within

one year of the date the claim first could have been presented. See 42

Pa.C.S.A. § 9545(b)(2). “The PCRA squarely places upon the petitioner the

burden of proving an untimely petition fits within one of the three exceptions.”

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).

In his appellate brief, Strzelczyk generally complains that the PCRA

court “seized” Attorney Cowley’s records after replacing him with a public

defender. See Appellant’s Brief at 3. He claims that Attorney Cowley was not

permitted to present his case. See id. at 5. Strzelczyk also baldly asserts that

records from Children and Youth Services confirm the existence of a plea

agreement. See id.

Though Strzelczyk refers to the government interference exception, he

fails to plead and prove that his failure to raise his claims previously was the

result of interference by government officials, or that he could not have

obtained this information sooner through the exercise of due diligence. See

42 Pa.C.S.A. § 9545(b)(1)(i); Commonwealth v. Kennedy, 266 A.3d 1128,

1135 (Pa. Super. 2021). Strzelczyk baldly claims the PCRA court seized

Attorney Cowley’s records, without explaining what records are allegedly

missing or how those records might have impacted his prior PCRA proceeding.

Further, as noted above, Attorney Crowley sought and was granted permission

to withdraw as counsel.

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Moreover, Strzelczyk raised his claim concerning an alleged plea deal in

his fourth PCRA petition, and therefore, this issue was previously litigated.

See 42 Pa.C.S.A. § 9543(a)(3) (a PCRA petitioner must establish the issue

has not been previously litigated); 42 Pa.C.S.A. § 9544(a)(3) (“[A]n issue has

been previously litigated if … it has been raised and decided in a proceeding

collaterally attacking the conviction or sentence.”). Previously, this Court

concluded he failed to establish a timeliness exception because he did not

explain when he received notice of these records. See Commonwealth v.

Strzelczyk, 60 A.3d 864, 615 EDA 2012 (Pa. Super. filed Sept. 28, 2012)

(unpublished memorandum).

Strzelczyk has provided nothing more than bald assertions and

previously litigated claims. Because Strzelczyk has failed to plead and prove

an exception to the PCRA’s time-bar, we affirm the PCRA court’s order denying

his untimely petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/10/2023

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