J-S01026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE A. ROBERTS, JR.
Appellant No. 895 WDA 2014
Appeal from the PCRA Order May 14, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001505-2007
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 27, 2015
George Roberts, Jr. (“Appellant”), appeals from the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. After careful review, we affirm.
This Court previously recited the facts of the underlying crime as
follows:
On April 30, 2007, while smoking crack cocaine in a hotel room,
[Appellant], Donald Law (‘Law’), Kimberly Hamm (‘Hamm’), and
Winter Feathers (‘Feathers’), agreed to call the victim, Edgar
Fazenbaker (‘Fazenbaker’), in an attempt to get more cocaine.
Initially, it was agreed that Hamm and Feathers would induce
Fazenbaker into meeting them along Route 40 in Fayette
County, Pennsylvania. Then, the four of them decided that after
Hamm and Feathers were picked up by Fazenbaker, Hamm
would perform oral sex on Fazenbaker for crack cocaine.
After calling Fazenbaker, Hamm and Feathers learned that he
had a passenger, Kent Pierce, in his vehicle. In order to
accomplish their goal of exchanging cocaine for sex, it was
decided that Hamm would pretend that she had to go to the
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bathroom and then, once outside of the vehicle with Fazenbaker,
she would initiate sex.
Fazenbaker testified that after he received a call on his cell
phone from Feathers requesting a ride, he and his passenger,
Kent Pierce, met Hamm and Feathers outside of Brownsville,
Pennsylvania, near Route 40. While Fazenbaker knew Feathers,
he did not know Hamm. Shortly after entering Fazenbaker’s car
and putting the agreed upon plan into action, Feathers and
Hamm claimed they had to ‘take a pee’ and asked Fazenbaker to
pull off the road so that they could go to the bathroom in the
nearby trees. When Fazenbaker stopped his vehicle, Feathers
and Hamm exited the car.
Within five seconds of Feathers and Hamm exiting the vehicle,
Fazenbaker noticed the headlights of a vehicle approaching from
behind, stopping ten feet behind his car. Expecting to see a
State Police Officer, Fazenbaker looked to his left and, instead,
saw [Appellant] with a gun, the barrel of which was pointed at
Fazenbaker’s window. When [Appellant] discharged the weapon,
the ‘first shot went through Fazenbaker’s nose and blowed [sic]
his nose off his face.’ In all, [Appellant] discharged his gun at
least five times into Fazenbaker’s car, shattering both the
driver’s side window and the passenger’s side window.
After being shot in the face, Fazenbaker tried to escape from
[Appellant] by fleeing the scene in his vehicle. However,
[Appellant] re-entered his automobile and chased Fazenbaker.
As he fled, Fazenbaker called for emergency assistance and later
met ambulance personnel at a local gas station. The ambulance
personnel took Fazenbaker’s nose ‘and put it back on his face
and asked him to hold it there.’
Subsequently, Fazenbaker was flown to Ruby Memorial Hospital,
in Morgantown, West Virginia, where he underwent surgery to
re-attach his nose.
Confirming Fazenbaker’s testimony, Hamm testified that
[Appellant] stood near Fazenbaker’s driver’s side window with a
big black rifle and fired five or six times in the direction of the
vehicle. Hamm stated that after Fazenbaker’s window shattered,
[Appellant] ‘kept shooting.’ After the shooting, [Appellant] told
Hamm that ‘he should have shot Fazenbaker in the face and
killed him.’
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Law also corroborated Fazenbaker and Hamm’s testimony.
Because of his size, Law was ‘supposed to be an intimidator’ and
he and [Appellant] were going to ‘take whatever Fazenbaker
had.’ Although Law denied witnessing [Appellant] fire the rifle,
he did admit that [Appellant] was the only person at the scene
to possess a gun. After the shooting, [Appellant] told Law, ‘I
think I hit Fazenbaker.’
Commonwealth v. Roberts, 1348 WDA 2008 (unpublished memorandum,
June 18, 2009), pp. 1-3 (quoting Trial Court Opinion, September 24, 2008,
pp. 2-4) (text corrections omitted).
A jury convicted Appellant of attempted homicide, 1 aggravated
assault,2 and conspiracy3 to commit both robbery and theft by unlawful
taking. On August 1, 2008, the trial court sentenced Appellant to an
aggregate term of 10 to 20 years’ incarceration. This Court affirmed the
judgment of sentence on June 18, 2009, and the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on December 9,
2009.
Appellant filed a timely PCRA petition on December 1, 2010. The PCRA
court denied the petition on June 29, 2011, and this Court affirmed on
August 21, 2012. See Commonwealth v. Roberts, 1223 WDA 2011
(unpublished memorandum, August 21, 2012).
____________________________________________
1
18 Pa.C.S. § 901.
2
18 Pa.C.S. § 2702.
3
18 Pa.C.S. § 903.
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On March 6, 2014, Appellant filed the instant PCRA petition, his
second. On April 22, 2014, the PCRA court filed an Order in accordance with
Pa.R.Crim.P. 907 notifying Appellant of the court’s intent to dismiss the
petition without a hearing. On May 14, 2014, the PCRA court dismissed
Appellant’s second petition. Appellant timely appealed and complied with
Pa.R.A.P. 1925. The PCRA court filed its Statement In Lieu of Opinion on
July 8, 2014, adopting its April 22, 2014 Order as its Pa.R.A.P. 1925(a)
opinion.
On appeal, Appellant presents the following issues for our review:
1.) Was Appellant’s second PCRA filed timely?
2.) Did Vincet M. Tiberi, Esq. and trial court deny Appellant his
right to appeal to supreme court of Pa., not informing him?
3.) Was Appellant’s counsel Vincent M. Tiberi, Esq. ineffective
for not notifying Appellant of outcome of Appeal of PCRA, June
29, 2011, failing to raise and preserve all constitutional claims of
PCRA counsel Brent Peck, Esq., and trial counsel’s
ineffectiveness Brady violations, violations of Appellant’s 4th, 5th,
6th, and 14th United States Constition Amendments.
4.) Has the Commonwealth denied Appellant a meaningful
review for his appeals, not furnishing with all the records and
transcripts?
Appellant’s Brief, p. 4 (verbatim). In essence, Appellant claims he is entitled
to reinstatement of his right to file a petition for allowance of appeal to the
Pennsylvania Supreme Court because PCRA counsel did not inform him of
this Court’s August 21, 2012 decision affirming the denial of his first PCRA
petition. See id. at 5-7.
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In reviewing an order denying PCRA relief, our well-settled standard of
review is “to determine whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,
191-192 (Pa.Super.2013) (internal quotations and citations omitted).
We must first consider the timeliness of the petition. “It is undisputed
that a PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). “This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of a petition.” Hernandez, 79 A.3d at
651 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). 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.” 42 Pa.C.S. § 9545(b)(3). However, a facially untimely petition
may be received where any of the PCRA’s three limited exceptions to the
time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote
omitted). These exceptions include:
(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. § 9545(b)(1)(i)-(iii). As our Supreme Court has repeatedly
stated, the petitioner maintains the burden of pleading and proving that one
of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008); see also
Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa.Super.2011) (“The
petitioner bears the burden to allege and prove [that] one of the timeliness
exceptions applies.”). Further,
[a] petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, the petitioner
must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame under section
9545(b)(2).
Hernandez, 79 A.3d at 651-652 (internal quotations omitted).
Finally, a heightened standard applies to a second or subsequent PCRA
petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). “A second or
subsequent request for relief under the PCRA will not be entertained unless
the petitioner presents a strong prima facie showing that a miscarriage of
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justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,
1251 (Pa.2006). Additionally, in a second or subsequent post-conviction
proceeding, “all issues are waived except those which implicate a
defendant’s innocence or which raise the possibility that the proceedings
resulting in conviction were so unfair that a miscarriage of justice which no
civilized society can tolerate occurred”. Commonwealth v. Williams, 660
A.2d 614, 618 (Pa.Super.1995).
On December 9, 2009, our Supreme Court denied Appellant’s direct
appeal petition for allowance of appeal. Appellant did not file for a writ of
certiorari to the Supreme Court of the United States, and his sentence
became final at the expiration of his time to seek review ninety days later,
on March 9, 2010. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule 13.
Accordingly, Appellant had until March 9, 2011 to timely file a PCRA petition.
Appellant filed the instant petition on March 6, 2014, nearly three
years after the expiration of his PCRA time limitation. Accordingly,
Appellant’s petition is facially untimely. Thus, he must plead and prove that
his petition falls under one of the Section 9545 exceptions set forth in the
PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
To overcome the PCRA’s time bar, Appellant checked the newly-
discovered evidence box on his petition and argued that his first PCRA
counsel did not inform him of this Court’s August 21, 2012 decision denying
his first PCRA petition, thereby depriving him of the opportunity to challenge
this Court’s decision in the Pennsylvania Supreme Court. See Petition, pp.
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2, 3. Appellant makes the same PCRA counsel ineffectiveness argument in
his brief to this Court. See Appellant’s Brief, pp. 5-7. Appellant’s claim of
PCRA counsel ineffectiveness, however, does not constitute one of the three
enumerated PCRA timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-
(iii). This claim does not allege government interference or a new,
retroactively-applied constitutional right, and does not represent a fact that
Appellant could not have ascertained through the exercise of due diligence.
Id. Further, Appellant does not meet the heightened standard for second or
subsequent PCRA petitions, as his claim of PCRA counsel ineffectiveness
does not implicate his actual innocence or raise the possibility that the
proceedings resulting in his conviction were so unfair as to represent a
miscarriage of justice. See Williams, supra. Accordingly, the petition
remains time-barred.
Because Appellant filed the instant PCRA petition nearly three years
after the expiration of the limitations period and cannot avail himself of any
of the PCRA’s time bar exceptions, the PCRA court did not err in denying this
claim as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 1/27/2015
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Com. v. Roberts, G.
Combined Opinion