Com. v. Yerger, W.

• Court: Superior Court of Pennsylvania
• Decided: May 23, 2023
• Docket: 1673 EDA 2022
• Status: Unpublished

Opinion

J-S03041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WARREN E. YERGER : : Appellant : No. 1673 EDA 2022

Appeal from the PCRA Order Entered June 8, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002650-2013

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED MAY 23, 2023

Warren E. Yerger (Yerger”) appeals pro se from the order dismissing his

untimely petition under the Post Conviction Relief Act (“PCRA”).1 We affirm.

Between 1989 and 1993, Yerger raped his stepdaughter and stepson on

an almost daily basis, beginning when they were three- and four-years-old,

on threat of violence. He also forced them to have sexual relations with each

other and one of his two biological daughters, and severely beat his

stepchildren’s mother when she refused to participate in the abuse. Yerger

also physically and emotionally abused his stepchildren. See

Commonwealth v. Yerger, 168 A.3d 319, 2017 WL 1041501 (Pa. Super.

2017) (unpublished memorandum at *2).

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1 See 42 Pa.C.S.A. §§ 9541-9546. J-S03041-23

When the stepchildren’s mother left him, Yerger gained custody of his

two biological daughters. Yerger subjected those daughters to one and one-

half decades of rape and other sexual abuse with the participation of his new

wife, Leslie Yerger (“Leslie”), during the later years of that abuse. The abuse

finally ceased when Yerger’s daughters left home. See Yerger, 168 A.3d 319,

2017 WL 1041501 (unpublished memorandum at *2-3).

A jury convicted Yerger of 158 counts of rape, attempted rape, and

related crimes. At sentencing, the trial court noted that the jury had heard

the testimony of his conspirator, Leslie, and another woman who had been in

a relationship with Yerger. The court imposed an aggregate sentence of 339

to 690 years of incarceration. See id. This Court affirmed Yerger’s judgment

of sentence. See id. On August 29, 2017, the Pennsylvania Supreme Court

denied Yerger’s petition for allowance of appeal. See Commonwealth v.

Yerger, 170 A.3d 1020 (Pa. 2017).

Yerger filed a first PCRA petition which the PCRA court denied. Thirty-

four days after the PCRA court dismissed his petition, Yerger filed a notice of

appeal in this Court. While that appeal was pending, Yerger filed a second

PCRA petition which the PCRA court dismissed. This Court quashed Yerger’s

appeal of denial of the first PCRA petition as untimely, see Commonwealth

v. Yerger, 219 A.3d 212 (Pa. Super. 2019) (unpublished memorandum), and

the Supreme Court denied his petition for allowance of appeal. See

Commonwealth v. Yerger, 226 A.3d 565 (Pa. 2020).

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On January 26, 2022, Yerger filed the instant PCRA petition, his third.

Relevant to this appeal, Yerger claimed that his conspirator, Leslie, who pled

guilty and testified against him at trial, wrote a letter to the Pennsylvania

Attorney General in 2021 claiming the Commonwealth and her attorney

coerced her false trial testimony. He alleged that he discovered the letter in

2022, the letter contained new facts, and he could not have discovered those

facts sooner with the exercise of due diligence. See Yerger’s PCRA Petition,

1/26/22, at 4-5.2 The court issued a Notice of Intent to Dismiss the PCRA

petition and Yerger filed a response. The PCRA court dismissed the petition.

Yerger filed a timely notice of appeal and he and the PCRA court complied with

Pa.R.A.P. 1925.3

On appeal, Yerger presents the following issue for our review:

Whether the [PCRA] erred when it ruled [Yerger’s] PCRA [petition] was untimely filed and it did not have jurisdiction to entertain the petition?

Yerger’s Brief at 4.

2 The petition also argued that the letter established the Commonwealth’s violation of Brady v. Maryland, 373 U.S. 83 (1963). See Yerger’s PCRA Petition, 1/26/22, at 4-5.

3 Concerning the claim at issue on this appeal, the trial court’s opinion relied on the reasoning in its May 12, 2022 Notice of Intent to Dismiss PCRA Petition Pursuant to Pa.R.Crim.P. 907(1) (“Notice of Intent to Dismiss”) to explain its dismissal of that claim. See PCRA Court Opinion, 8/18/22, at 6.

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Our standard of review of an order dismissing a PCRA petition is well-

settled:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

Under the PCRA, any petition including a second or subsequent petition

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

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

at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review. See 42 Pa.C.S.A.

§ 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the PCRA petition

was not timely filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093

(Pa. 2010).

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Yerger’s judgment of sentence became final on November 27, 2017,

ninety days after the August 29, 2017 denial of his petition for Pennsylvania

Supreme Court review when his time for filing a petition for writ of certiorari

expired. See 42 Pa.C.S.A. § 9545(b)(3); see also U.S. Sup. Ct. R. 13.1.

Yerger had until November 28, 2018 to file a facially timely petition, but did

not file the instant PCRA petition until January 2022. Thus, Yerger’s petition

is facially untimely under the PCRA, precluding review of the merits of the

issues raised in the petition unless he proves a time-bar exception. See

Albrecht, 994 A.2d at 1093.

Yerger’s issue asserts that the PCRA court abused its discretion in finding

that his serial PCRA petition was untimely filed and did not establish a time-

bar exception, depriving the court of jurisdiction. Pennsylvania courts may

consider an untimely PCRA petition if the petitioner explicitly pleads and

proves one of three exceptions set forth under section 9545(b)(1), which

provides:

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

(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;

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(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.

42 Pa.C.S.A. § 9545(b)(1). “The focus of the 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) (citation, quotations, and brackets omitted) (emphasis in original).

To obtain review of an otherwise time-barred claim, an appellant must

also file his claim within one year of the date the claim could have been

presented. See 42 Pa.C.S.A. § 9545(b)(2). To satisfy that independent

requirement a petitioner must demonstrate he did not know the facts upon

which he based his petition and could not have learned those facts earlier by

the exercise of due diligence, which requires him to take reasonable steps to

protect his own interests. See Commonwealth v. Cox, 204 A.3d 371, 391

(Pa. 2019). This rule is strictly enforced. See Commonwealth v. Monaco,

996 A.3d 1076, 1080 (Pa. Super. 2010).

Yerger claims that in January 2021, as Leslie was about to be paroled,

she wrote a letter to the Pennsylvania Attorney General in which she asserted

that one month before one of Yerger’s daughter’s reported Yeager’s and

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Leslie’s sexual abuse, Yeager and Leslie had told her that she had to make her

own car and rent payments. See Yerger’s PCRA Petition Exhibit “A.” The

letter also asserted that the prosecutor and her attorney coerced Leslie to

testify falsely against Yerger. See id. Yerger claims that he filed his PCRA

petition two days short of one year after the letter was written; he could not

have discovered that information sooner, and Leslie had nothing to gain and

everything to lose by making her assertions. See Yerger’s Brief at 10-11.

The PCRA court found that Yerger did not establish new facts that were

unknown to him or that he could not have discovered earlier through the

exercise of reasonable diligence. See Notice of Intent to Dismiss, 5/12/22, at

7 n.1.4

After a review of the record, we determine that the PCRA court’s factual

findings have record support and that its legal conclusions are free of error.

See Ford, 44 A.3d at 1194. Yerger did not demonstrate that he discovered

4 The PCRA court also found that even if Yerger had invoked the new facts exception, his claim would be meritless. To prevail on an after-discovered evidence claim in a timely PCRA petition, an appellant must prove, inter alia, that the evidence is not being used solely to impeach credibility and would likely compel a different result. See Notice of Intent to Dismiss, 5/12/22, n.1 at 8, citing Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004). The PCRA court found that the letter constituted recantation, the least reliable form of proof, would be used to impeach Leslie’s credibility at trial and at her own guilty plea hearing, and was unlikely to compel a different result because none of the victims recanted their testimony and Yerger committed most of his crimes before he met Leslie. See Notice of Intent to Dismiss, 5/12/22 n.1 at 8.

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and presented the alleged new facts that could not have been discovered with

the exercise of due diligence. To the contrary, Yerger was well aware that

Leslie had given prior statements to the police investigating the abuse that

were not consistent with her trial testimony, had reached a plea agreement

with the Commonwealth, and was expecting leniency based on her testimony.

See N.T., 12/19/14, 83, 123-27. Moreover, Yerger raised similar claims

concerning the Commonwealth’s coercion of Leslie’s perjured testimony in his

first PCRA petition. See PCRA Petition, 10/6/17, at 6a5 (alleging that Leslie

gave false testimony in exchange for leniency). Thus, Leslie’s letter is a new

source of previously known information. See Marshall, 947 A.2d at 720.

Similarly, Yerger’s Brady assertion fails. He did not demonstrate that

the allegedly exculpatory information in the letter was not available to him or

that he could not have discovered it with the exercise of reasonable diligence.

See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008)

(stating that newly-discovered time-bar claim based on Brady requires proof

that the facts were not known to petitioner and could not have been known

with the exercise of reasonable diligence). Finally, Yerger’s assertion that

Leslie had everything to lose and nothing to gain from the letter, even if it

5 Yerger’s numbered PCRA petition has interspersed unnumbered pages. For convenience, we designate the unnumbered page follow page 6, page 6a.

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were true, would be irrelevant to his lack of due diligence in discovering the

alleged new facts.

Because Yerger did not establish a valid time-bar exception, the PCRA

court properly dismissed his petition as untimely.6

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/23/2023

6 The PCRA court also correctly explains that even if Yerger had established the existence of a time-bar exception, his claim would be meritless, given that Leslie’s alleged recantation contradicts her sworn statements at her guilty plea and at Yerger’s trial, none of the victims have recanted, and most of Yerger’s abuse occurred before Leslie participated in his crimes. See Notice of Intent to Dismiss, 5/12/22, n.1 at 8.

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