J-S25042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FREDERICK ALAN VANTASSEL,
Appellant No. 2026 WDA 2014
Appeal from the PCRA Order August 19, 2014
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0011256-1999
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 06, 2015
Appellant, Frederick Alan Vantassel, appeals pro se from the order1
dismissing his fifth petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take the relevant procedural and factual history of this case from
the PCRA court’s January 9, 2015 opinion and our independent review of the
record. On January 13, 2000, following a three-day trial, a jury found
Appellant guilty of first-degree murder and criminal conspiracy.2 The
conviction stemmed from Appellant’s stabbing to death of the victim,
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*
Retired Senior Judge assigned to the Superior Court.
1
The order appealed from is dated August 18, 2014, but was filed on August
19, 2014. We have amended the caption accordingly.
2
18 Pa.C.S.A. §§ 2502(a) and 903(a)(1), respectively.
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Leonard Kindsvater, using a machete and butcher knife. On February 15,
2000, the trial court sentenced Appellant to a term of life imprisonment.
This Court affirmed the judgment of sentence on July 6, 2001, and our
Supreme Court denied Appellant’s petition for allowance of appeal on
December 31, 2001. (See Commonwealth v. Vantassel, 782 A.2d 1060
(Pa. Super. 2001) (unpublished memorandum), appeal denied, 792 A.2d
1253 (Pa. 2001)).
On September 6, 2002, Appellant, acting pro se, filed his first PCRA
petition. Appointed counsel filed an amended petition on December 17,
2002. The PCRA court dismissed the petition on April 9, 2003, and this
Court affirmed the court’s order on July 1, 2004. Our Supreme Court denied
Appellant’s petition for allowance of appeal on January 11, 2005. (See
Commonwealth v. Vantassel, 858 A.2d 1284 (Pa. Super. 2004)
(unpublished memorandum), appeal denied, 867 A.2d 523 (Pa. 2005)).
On August 4, 2008, Appellant filed his second pro se PCRA petition,
which the court dismissed on November 19, 2008. Appellant did not file an
appeal.
On February 25, 2009, Appellant filed a pro se “Motion in Support of
Mandamus Action,” which the court treated as a third PCRA petition. The
PCRA court dismissed the petition on March 25, 2009, and this Court
affirmed the court’s order on August 25, 2010. Our Supreme Court denied
Appellant’s petition for allowance of appeal on March 30, 2011. (See
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Commonwealth v. Vantassel, 11 A.3d 1038 (Pa. Super. 2010)
(unpublished memorandum), appeal denied, 20 A.3d 487 (Pa. 2011)).
On January 26, 2011, Appellant filed a fourth pro se PCRA petition.
The PCRA court noted that Appellant’s appeal of his third petition was still
pending, and it dismissed the fourth petition on February 17, 2011.
On May 20, 2011, Appellant filed the instant pro se PCRA petition, his
fifth. Appellant’s claims in the petition relate to the allegedly lenient terms
of the January 2000 guilty plea agreement entered by his co-defendant and
former girlfriend Diana Wilson, in exchange for her testimony at Appellant’s
trial.3 The PCRA court issued notice of its intent to dismiss the petition
without a hearing on July 23, 2014, see Pa.R.Crim.P. 907(1), and filed its
order dismissing the petition on August 19, 2014. This timely appeal
followed.4
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3
Ms. Wilson is also referred to by her maiden name, Diana Workman, in the
record. (See N.T. Trial, 1/12/00, at 161; PCRA Court Opinion, 1/09/15, at
4).
4
Appellant did not file a Rule 1925(b) statement as ordered by the PCRA
court. See Pa.R.A.P 1925(b); (see also PCRA Ct. Op., at 3 n.4). On
January 9, 2015, the PCRA court entered an opinion, see Pa.R.A.P 1925(a),
and appended to it a document apparently forwarded to it by Appellant,
titled “Petition for Permission to Amend 1925(b) Statement.” (See PCRA Ct.
Op., attachment). This document is not listed on the criminal docket as a
separate docket entry; it is included only as an attachment to the PCRA
court’s opinion. (See Criminal Docket, at 20). The document does not
resemble a proper Rule 1925(b) statement; is nearly unintelligible, and
lodges various allegations against the PCRA court. (See PCRA Ct. Op.,
attachment at unnumbered page 1) (claiming, inter alia, that the PCRA court
judge “had committed fraud upon the court[.]”).
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Appellant raises the following issue for our review:
1. Whether failure to grant a[n] evidentiary hearing on the
merits of after-discovered evidence under the PCRA filed against
the 2000 opinion of the Hon Daniel [sic] which documents found
by [A]ppellant the court’s [sic] violated his right under the Fifth
and Fourteenth Amendment to the U.S. Constitution and Art. 1,
sec 9&10 of the Pennsylvania Constitution pursuant to the
withholding of pleas arrangement taken a day before witness
was called that wasn’t turned over to defense of his co[-
]defendant plea negotiation in exchange for several years the
Hon. Jo Daniel [sic] defend the prosecution never existed, as
well as trying to dismiss the claim as newly discovered[?]
(Appellant’s Brief, at 3).
Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us 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, 191-92 (Pa. Super. 2013)
(citations and quotation marks omitted).
“[W]e must first consider the timeliness of Appellant’s PCRA petition
because it implicates the jurisdiction of this Court and the PCRA court.”
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation
omitted).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration
of the time for seeking such review. 42 Pa.C.S.[A.] §
9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of
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the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. 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, 16-17 (Pa. 2012) (case citations
and footnote omitted).
In the instant case, Appellant’s judgment of sentence became final on
April 1, 2002, when his time to file a petition for writ of certiorari with the
United States Supreme Court expired.5 See U.S. Sup.Ct. R. 13; 42
Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date to file a
petition for collateral relief, specifically, until April 1, 2003. See 42
Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on May
20, 2011, it is untimely on its face, and the PCRA court lacked jurisdiction to
review it unless he pleaded and proved one of the statutory exceptions to
the time-bar. See id. at § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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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5
The last day of the ninety-day period, March 31, 2002, fell on a Sunday.
Accordingly, Appellant had until that Monday to file a petition for writ of
certiorari. See 1 Pa.C.S.A. § 1908.
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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)(i)-(iii). In addition, a PCRA petition invoking one
of these statutory exceptions must “be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Here, Appellant contends that two of the exceptions to the PCRA’s
timeliness requirement are applicable to his case, specifically, the
governmental interference and after-discovered facts exceptions. (See
Appellant’s Brief, at 8-12; PCRA Petition, 5/20/11, at 2-3); see also 42
Pa.C.S.A. § 9545(b)(1)(i)-(ii). In support of these claims, he points to the
guilty plea agreement entered by his co-defendant, Diana Wilson, and
asserts that the trial court and the Commonwealth withheld from him the
terms agreed to in exchange for her testimony at his trial. (See Appellant’s
Brief, at 9; PCRA Petition, 5/20/11, at 7-8). He claims he first learned of the
terms of the plea agreement on January 23, 2011, and that he is entitled to
an evidentiary hearing on this issue. (See Appellant’s Brief, at 8, 12). We
disagree.
Preliminarily, we “note that a PCRA petitioner is not automatically
entitled to an evidentiary hearing.” Miller, supra at 992 (citation omitted).
“It is within the PCRA court’s discretion to decline to hold a hearing if the
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petitioner’s claim is patently frivolous and has no support either in the record
or other evidence.” Id. (citation omitted).
To fall within the governmental interference exception, a PCRA
“petitioner must plead and prove the failure to previously raise the claim was
the result of interference by government officials, and the information could
not have been obtained earlier with the exercise of due diligence.”
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert.
denied, 555 U.S. 916 (2008) (citation omitted). The after-discovered facts
exception requires the facts upon which the claim is predicated “were not
previously known to the petitioner and could not have been ascertained
through due diligence.” Id. (citation omitted). The PCRA creates a three-
part test for the after-discovered facts exception: “1) the discovery of an
unknown fact; 2) the fact could not have been learned by the exercise of
due diligence; and 3) the petition for relief was filed within 60 days of the
date that the claim could have been presented.” Commonwealth v.
Smith, 35 A.3d 766, 771 (Pa. Super. 2011), appeal denied, 53 A.3d 757
(Pa. 2012) (emphasis omitted).
Here, although Appellant claims that he first learned of the “after-
discovered evidence” of the terms of Wilson’s plea agreement on January
23, 2011, and that his failure to raise the claim previously was the result of
governmental interference, (Appellant’s Brief, at 8; see id. at 8-9), a review
of the record belies these claims. Specifically, the record reflects that
Appellant previously discussed this same issue related to Wilson’s allegedly
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lenient plea agreement in exchange for her testimony at his trial during his
second PCRA proceeding in 2008. (See PCRA Petition, 8/04/08, at 3; see
also Commonwealth’s Brief, at 18). Appended to Appellant’s 2008 PCRA
petition is an affidavit signed by Wilson dated January 23, 2001 averring
that “[i]n return for my testimony in this matter the Commonwealth of
Pennsylvania agreed to reduce my charges[.]” (PCRA Petition, 8/04/08,
Appendix A). Thus, the record shows that Appellant’s alleged date of
discovery of this issue, January 23, 2011, is not credible.
Furthermore, our Supreme Court has held that “matters of public
record are not unknown.” Commonwealth v. Taylor, 67 A.3d 1245, 1248
(Pa. 2013), cert. denied, 134 S.Ct. 2695 (2014) (citations omitted); see
also Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013), cert.
denied, 134 S. Ct. 639 (2013) (“[T]o constitute facts which were unknown to
a petitioner and could not have been ascertained by the exercise of due
diligence, the information must not be of public record[.] . . . ”). Wilson’s
guilty plea proceeding is a matter of public record and was accessible to
Appellant in 2000 when she entered the plea.
Finally, as the PCRA court noted, even accepting as accurate
Appellant’s claimed date of discovery, January 23, 2011, the instant petition
dated May 17, 2011 and filed on May 20, 2011 is still untimely for his failure
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to file it within sixty days, by March 24, 2011. See 42 Pa.C.S.A.
§ 9545(b)(2); (see also PCRA Ct. Op., at 5).6
After review, we conclude that Appellant has not met his burden of
proving his untimely petition fits within one of the three exceptions to the
PCRA’s time-bar. See Jones, supra at 17. Because Appellant presented no
genuine issue of material fact concerning the timeliness of his petition, the
PCRA court properly dismissed it without a hearing based on its
determination that it was untimely with no exception to the time-bar pleaded
or proven. See Miller, supra at 992. Accordingly, we affirm the order of
the PCRA court.7
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6
Appellant’s reliance on Commonwealth v. Davis, 86 A.3d 883 (Pa. Super.
2014), is misplaced. (See Appellant’s Brief, at 10). In Davis, this Court
determined that the appellant proved the applicability of the governmental
interference and after-discovered facts exceptions. See Davis, supra at
891. In that case, the appellant received new evidence in the form of an
affidavit signed by a Commonwealth witness averring that he had fabricated
his testimony that the appellant had confessed to shooting the victim. See
id. at 888. The appellant filed his PCRA petition within sixty days of
receiving the affidavit, and while the petition was pending, he learned that
the witness perjured himself by denying having made any deals with the
Commonwealth in exchange for his testimony. See id. at 888-91. This
Court determined that, although the witness’s sentencing hearing was a
matter of public record, under the specific facts of the case, Davis exercised
due diligence in discovering the evidence at issue. See id. at 890-91. The
facts of the instant case are inapposite to those in Davis, where the record
reflects Appellant was aware of the terms of Wilson’s plea agreement well
before January 23, 2011, and he failed to file his petition within sixty days of
his alleged date of discovery.
7
We note that, even if we had jurisdiction to review the merits of Appellant’s
PCRA petition, he waived all issues on appeal for failure to file a Rule
1925(b) statement as ordered by the PCRA court. See Pa.R.A.P.
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2015
_______________________
(Footnote Continued)
1925(b)(3)(iv), (4)(vii); see also Greater Erie Indus. Dev. Corp. v.
Presque Isle Downs, Inc., 88 A.3d 222, 224-25 (Pa. Super. 2014) (en
banc); Commonwealth v. Hill, 16 A.3d 484, 493 (Pa. 2011) (“[T]here can
be no question that all of appellant’s issues are waived due to [his] failure to
file and serve a Rule 1925(b) statement, as ordered.”).
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