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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES W. CRISE
Appellant No. 335 WDA 2015
Appeal from the PCRA Order of February 6, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No.: CP-65-CR-0001899-2008
CP-65-CR-0004502-2008
BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 12, 2015
James Crise appeals pro se the February 6, 2015 order that denied his
petition under Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.
As explained in its detailed opinion, the PCRA court determined that Crise’s
petition was untimely and not subject to any exception to the one-year time
limit that applies to PCRA petitions. Accordingly, the court dismissed his
petition for want of jurisdiction. We affirm.
Because we find, like the PCRA court, that we have no jurisdiction to
review the merits of Crise’s petition, it is necessary only to relate the bare
procedural history of this case. At the above-captioned docket numbers,
Crise was convicted by a jury of interference with custody of children,
criminal conspiracy, corruption of minors, possession of child pornography,
sexual exploitation of children, and criminal use of a communication facility.
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On December 22, 2009, at those two dockets, the trial court sentenced Crise
to an aggregate term of imprisonment of twenty to fifty-five years’
imprisonment. Crise appealed, and this Court affirmed his judgment of
sentence on February 15, 2011. See Commonwealth v. Crise, 24 A.3d
455 (Pa. Super. 2011) (unpublished memorandum). Our Supreme Court
denied Crise’s petition for allowance of appeal on July 19, 2011.
Commonwealth v. Crise, 24 A.3d 863 (Pa. 2011) (per curiam). Crise did
not seek review by the United States Supreme Court. Thus, his judgment of
sentence became final ninety days after our Supreme Court denied his
petition, on October 17, 2011.
Crise filed a timely first PCRA petition on January 26, 2012. The PCRA
court dismissed his petition without a hearing on January 16, 2013. Crise
filed a timely appeal of that ruling, and this Court affirmed on January 31,
2014. See Commonwealth v. Crise, 96 A.3d 1098 (Pa. Super. 2014)
(unpublished memorandum). Crise then filed a petition for allowance to
appeal our decision before our Supreme Court, which that Court denied on
July 16, 2014. Commonwealth v. Crise, 96 A.3d 1025 (Pa. 2014) (per
curiam).
Crise filed the instant PCRA petition on August 18, 2014, nearly three
years after his judgment of sentence became final, but only one month after
our Supreme Court denied his petition for allowance of appeal of the denial
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of his first PCRA petition. In tandem with that PCRA petition, he filed a
“Motion for Recusal on Grounds of Personal Bias.” 1 In this PCRA petition,
Crise asserted that he was entitled to relief because the prosecutor and the
trial judge threatened and intimidated his victim, E.K. Allegedly, authorities
told E.K. that she would serve jail time or lose custody of her then-unborn
child if she failed to testify against Crise. He further alleged that he was
denied pre-trial discovery of the criminal history of a “jailhouse snitch” who
testified against Crise at trial, and that the Commonwealth allowed that
witness to lie about that history on the stand. As well, Crise claimed that his
trial counsel was ineffective. See PCRA Court Opinion (“P.C.O.”), 2/6/2015,
at 5.
The PCRA court next dealt with a “flurry of pleadings” by Crise, and
the Commonwealth’s responses thereto, as well as certain motions and
actions reviewed by this Court, none of which directly implicate our review of
this case. See id. at 5-6. The PCRA court reviewed extensively its
jurisdiction to review Crise’s petition. See id. at 7-14. The court concluded
that Crise’s petition was untimely and not subject to any exception to the
PCRA’s time limit. Accordingly, it found that the court lacked jurisdiction,
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1
The PCRA court denied this motion on February 4, 2015.
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and dismissed Crise’s petition in an opinion and order entered on
February 6, 2015.2
On February 23, 2015, Crise timely appealed the PCRA court’s
dismissal of his PCRA petition. On March 5, 2015, the PCRA court directed
Crise to file a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b). On March 23, 2015, Crise timely complied. On
April 15, 2015, the PCRA court entered a statement pursuant to
Pa.R.A.P. 1925(a), wherein the PCRA court directed this Court to its
February 6, 2015 opinion and order for a full explanation of its reasoning for
denying Crise’s petition.
Our standard of review for a PCRA court’s order denying relief permits
us only to determine whether the record supports the PCRA court’s
determination and whether the PCRA court’s ruling is free from legal error.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
However, before we may address the merits of any of Crise’s arguments, we
first must determine whether we have jurisdiction to do so.
It is well-established that the PCRA time limits are jurisdictional, and
are meant to be both mandatory and applied literally by the courts to all
PCRA petitions, regardless of the potential merit of the claims asserted.
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2
In addition to the PCRA court’s painstaking analysis of the timeliness
issue, and in spite of its determination that it lacked jurisdiction, the court
nonetheless briefly addressed and rejected the merits of Crise’s argument.
See P.C.O. at 14-16.
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Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011);
Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000). “[N]o court
may properly disregard or alter [these filing requirements] in order to reach
the merits of the claims raised in a PCRA petition that is filed in an untimely
manner.” Murray, 753 A.2d at 203; see also Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Despite facial untimeliness, a tardy PCRA petition nonetheless will be
considered timely if (but only if) the petitioner pleads and proves one of the
three exceptions to the one-year time limit enumerated in
subsections 9545(b)(1)(i)-(iii) of the PCRA, which provide as follows:
(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;
(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.
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within 60 days of the date the claim could have
been presented.
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42 Pa.C.S. § 9545(b). When an appellant files a facially untimely petition
under the PCRA, and fails expressly to invoke any of the exceptions to the
PCRA’s one-year jurisdictional time limit, his petition is untimely and we
must deny the appellant relief. See, e.g., Commonwealth v. Wilson,
824 A.2d 331, 336 (Pa. Super. 2003) (“Appellant’s failure to timely file his
PCRA petition, and his failure to invoke any of the exceptions to the
timeliness requirements of the PCRA, results in an untimely PCRA petition
under any analysis.”).
As set forth, supra, Crise’s judgment of sentence undisputedly became
final on October 17, 2011. Crise filed the instant PCRA petition on August
18, 2014. Thus, we have jurisdiction to review his appeal only if he has
pleaded and proved an exception to the PCRA’s time limit.
The PCRA court dispensed quite briefly with Crise’s attempt to invoke
subsection 9545(b)(1)(i)’s government interference exception. In effect, the
PCRA court found that the allegations upon which Crise relied went to
government obstruction associated with trial, and did not directly affect
Crise’s ability to file his PCRA on a timely basis. Thus, the PCRA court
rejected Crise’s timeliness argument in this regard. See P.C.O. at 8.
The PCRA court considered in far greater detail Crise’s reliance in the
alternative upon subsection 9545(b)(1)(ii)’s newly-discovered fact exception
to the PCRA’s time limit. The PCRA court summarized Crise’s allegations as
follows:
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[Crise] alleges that he did not learn of the alleged threats and
intimidation and false testimony that he claims was presented by
E.K. until at least January 2013, when [he] first learned of E.K.’s
alleged recantation through his mother and his former girlfriend.
Because the case was on appeal to the Superior Court (appealing
the denial of [his first PCRA petition]), he could not have raised
the issue until the Superior Court decided that matter (January
31, 2014) and the Supreme court ruled on his subsequent
Petition for Allowance of Appeal (July 16, 2014).
Id. at 8-9. The PCRA court correctly asserted that Crise was precluded from
filing his second petition while his prior petition was pending on appeal.
Thus, because he filed his second PCRA petition within sixty days of the final
disposition of that appeal, he could seek to establish that the timeliness
exception based for newly-discovered facts applied in this case. Id. at 9.
Filing a petition invoking that exception within sixty-days of allegedly
learning of the basis for doing so, however, is only part of Crise’s burden.
He also must plead and prove that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).
In order to sustain an untimely PCRA petition under the [newly-
discovered fact] exception, a petitioner must show that the
evidence: (1) has been discovered after the trial and could not
have been obtained prior to the conclusion of the trial by the
exercise of reasonable diligence; (2) is not merely corroborative
or cumulative; (3) will not be used solely for impeachment
purposes; and (4) is of such a nature and character that a
different verdict will likely result if a new trial is granted.
Commonwealth v. Johnson, 841 A.2d 136, 140-41 (Pa. Super. 2003).
The PCRA court found that Crise failed to satisfy this burden.
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As detailed by the PCRA court, Crise attached to his PCRA petition
and/or his motion seeking recusal letters purportedly written by E.K., the
victim in this case; an unsworn affidavit by Crise’s mother, detailing a
conversation that she allegedly had with E.K. in 2010; another unsworn
affidavit allegedly signed by a former girlfriend of Crise’s, also alluding to a
2010 conversation with E.K.; and, finally, a sworn affidavit signed by Crise,
himself, explaining how he received the information in question from E.K. in
January 2014. See P.C.O. at 10. Crise sought to introduce these
documents into evidence at the hearing, but presented no authenticating
witnesses. Crise had not subpoenaed any witnesses to appear at the
hearing. Although he asserted at the hearing that his mother was in the
courthouse for another matter, attempts to summon her through the public
address system and by in-person checks of several courtrooms were
unsuccessful. Id.
At the same hearing, the Commonwealth called E.K. to testify. She
categorically denied that she had written the letters ascribed to her. She
also flatly contradicted Crise’s claim that the prosecutor or the trial judge
had coerced her to lie or threatened her in any way. Id. at 11-13.
Consequently, the PCRA court found that the documents in question were
inadmissible hearsay or hearsay within hearsay. Id. at 13. Accordingly, the
PCRA court concluded that Crise had failed to establish a basis for the
application of the newly-discovered fact exception.
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As noted supra, we are bound not to disturb a PCRA court’s fact-
finding that is supported by the record. Otherwise, we may intercede only
when the PCRA court commits an error of law. We find that the PCRA court’s
findings of fact are supported by the record and that its ruling is not
erroneous as a matter of law.
As importantly, though, Crise cannot prevail on this appeal because he
has failed to plead and prove in his brief that any timeliness exception
applies. Aside from one brief mention of the governmental interference and
newly-discovered facts, see Brief for Crise at 5, in the context of which it is
not even clear that he intended to rely upon those to establish his petition’s
timeliness, Crise’s brief focuses solely upon the merits of his underlying
claims for PCRA relief.3 We cannot reach those arguments if we lack
jurisdiction to do so, and it is Crise’s burden to establish that jurisdiction.
Moreover, he plainly was on notice of his timeliness problem, because the
PCRA court provided a lengthy, careful review of the foundation for an
exception provided by Crise, concluding only after considerable analysis that
Crise had failed to establish that an exception applied. It was incumbent
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3
These included his claims of witness intimidation, Brief for Crise at 8-
9; the improper exclusion of a prosecution witness’ criminal history, id. at
10-12; the trial court’s alleged failure to rule on a challenge to the
discretionary aspects of Crise’s judgment of sentence, id. at 12-14; an
alleged due process violation in the trial court’s alleged ex parte
communications with the Commonwealth, id. at 14-15; and the trial court’s
alleged imposition of improper limitations upon the scope of Crise’s trial
examination of E.K., id. at 15-16.
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upon him to address that issue in his brief to this Court. See Wirth v.
Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (“It is not the obligation of
an appellate court to formulate appellant’s arguments for him.” (brackets
and ellipses omitted)). Crise’s failure to do so leaves us with no choice but
to conclude that Crise’s instant PCRA petition was untimely and not subject
to any exception. Consequently, the PCRA court and this Court lack
jurisdiction to review its merits.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2015
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