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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
THOMAS REED GALLOWAY, JR.,
Appellant No. 1193 WDA 2015
Appeal from the PCRA Order May 13, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001174-2010
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 07, 2016
Appellant, Thomas Reed Galloway, Jr., 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. §§ 9541-9546. We affirm.
On direct appeal, this Court summarized the facts of this case as
follows:
Appellant’s conviction arises from an incident that occurred
in the early morning hours of February 5, 2010, at ENVY bar in
New Kensington. Trial Court Opinion, 5/9/11, at 13. At
approximately 2:00 a.m., a shooting occurred during which
Appellant, and Raymond “Fat Ray” Board, were shot. Id. At
trial, several eye-witnesses testified to seeing Appellant and
Board involved in a tussle, evidently fighting over a gun. Id. at
14. Additionally, the eye-witnesses testified to hearing several
shots fired during the course of the tussle. Appellant took the
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*
Former Justice specially assigned to the Superior Court.
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stand in his own defense and recounted his recollection of the
altercation prior to being shot in the chest. Appellant admitted
to having a foggy recollection but testified that he assumed the
gun he and Board fought over came from Board’s pocket. N.T.,
12/9/10, at 380. Appellant acknowledged that he could not be
certain. Id.
Commonwealth v. Galloway, 453 WDA 2011, 38 A.3d 929 (Pa. Super.
filed November 22, 2011) (unpublished memorandum at 1-2).
On December 9, 2010, a jury convicted Appellant of persons not to
possess firearms. On March 3, 2011, Appellant was sentenced to serve a
term of incarceration of five to ten years. On November 22, 2011, this Court
affirmed Appellant’s judgment of sentence on direct appeal, and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on July 3, 2012. Commonwealth v. Galloway, 453 WDA 2011, 38
A.3d 929 (Pa. Super. 2011), appeal denied, 47 A.3d 844 (Pa. 2012).
This Court summarized the post-conviction history of this matter as
follows:
On July 17, 2012, Appellant filed a timely pro se PCRA
petition. Thereafter, the PCRA court appointed counsel to
represent Appellant and to file an amended PCRA if warranted.
On July 25, 2012, however, Appellant filed a “Waiver of Counsel
Pa.R.Crim.P. Rule 121(A),” in which he stated that he knowingly,
voluntarily, and intelligently waived counsel and sought to
proceed pro se. On August 24, 2012, the PCRA court held a
waiver of counsel colloquy with Appellant. At the hearing’s
conclusion, the PCRA court determined that Appellant’s waiver of
counsel was valid. Nevertheless, the PCRA court appointed
previously assigned attorney as standby counsel.
The PCRA court held evidentiary hearings with regard to
Appellant’s PCRA petition on January 15, 2013 and February 4,
2013. By opinion and order entered June 13, 2013, the PCRA
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court denied Appellant’s [PCRA] petition. On June 24, 2013,
Appellant filed an “Objection to Opinion of Court Regarding
Petitioner’s Motion for PCRA, Compelling this Court to Address
Subject Matter.” The PCRA court did not act on this filing. On
June 27, 2013, Appellant filed a “Subsequent Petition for PCRA,
Reargument.”[1] By order entered June 28, 2013, the PCRA
court denied Appellant’s subsequent PCRA petition.
On July 15, 2013, Appellant filed a petition for habeas
corpus relief with this Court. By order entered August 14, 2013,
this Court’s prothonotary treated the filing as Appellant’s attempt
to file a notice of appeal from the PCRA court’s June 28, 2013
order denying his second PCRA petition. Thus, we transferred
Appellant’s filing to the PCRA court for processing as a notice of
appeal. The PCRA court did not require Pa.R.A.P. 1925
compliance.
Commonwealth v. Galloway, 1388 WDA 2013, 102 A.3d 538 (Pa. Super.
filed April 22, 2014) (unpublished memorandum at 2-3). On April 22, 2014,
this Court affirmed the determination of the PCRA court. Id.
Appellant filed the instant pro se PCRA petition on September 10,
2014. On April 8, 2015, the PCRA court entered its notice of intent to
dismiss pursuant to Pa.R.Crim.P. 907, and on April 24, 2015, Appellant filed
an objection to the PCRA court’s notice of intent to dismiss. The
Commonwealth filed a response to Appellant’s pro se objection on April 28,
2015. On May 11, 2015, Appellant filed an addendum to his PCRA
pleadings. The PCRA court entered an order dismissing Appellant’s PCRA
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1
This Court considered Appellant’s June 27, 2013, filing to be a second PCRA
petition.
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petition on May 13, 2015. Appellant then filed this timely appeal. Both
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant presents for our review the following twelve issues in his pro
se handwritten brief, which we reproduce verbatim:
I.
Did Det. Dennis Marsili have Prima Facie to gain Probable
cause to arrest appellant. In accord with Rule 560 Information;
Filing, contents, Function (B3-5) (C) (D)? Due Process is clear;
that without Prima Facie there can be no Probable cause to
arrest appellant. 14th amend. Exhibit, A, A1, A2, A3, B1, B2
II
Was the arrest of appellant False without the 3 criteria a
statement must meet to be admissable in a court.
Commonwealth vs. Lively, 610 A2d 7 Pa. supreme 1992 which
means can the affidavit of Probable cause be valid without
support evidence appellant ever possessed a fire arm?
Deprivation of Liberty. A lie is a lie, no matter 360 U.S. 270.
(PCRA H.T. 120-124) Exhibit A, A1, A2, B1. Best evidence Rule
523
III
Is appellant being illegally detain, a False Imprisonment
when the affidavit of probable cause was created with Fraud in
the Facts. Solely created by Det. Dennis Marsili by his own
omission during First PCRA Hearing P. 120-124. See 195 S.W.2d
312, 314 False imprisonment?
IV
Was appellant’s arrest without prima facie unjust oppression and
violation of Due Process? Is arrest consistant with Rudimentary
demands of Fair Procedure? 512. Presumption and burden of
Proof. See 287 U.S. 206 “Totality of Circumstances” Exhibit A,
A1, A3, B1, B2 Best evidence Rule 523 Due Process requires
state to bear burden of proving beyond reasonable doubt each
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element of substantive criminal offense? 14th amendment. Best
evidence Rule 523.
V
Did the trial Jury have all the Facts, For the Fact-Finders to
make a clear Judgment, without the Knowledge of Det. Dennis
Marsili missing notes that were hidden for three years? The
notes that Prove Fraud in the Facts PCRA H.T. 120-124 (119)
Det. Dennis Marsili complete Testimony under oath. Prosecution
had no knowledge of the hidden notes. The denial by a state of
any Judicial process by which a conviction obtained through the
admitted or Proved use by state knowingly or unknowingly of
perjured testimony and the suppression of impeaching evidence,
maybe set aside, is deprivation of Liberty without due process of
Law in violation of 14th amendment. People v. Mooney, 175 Cal.
666 p. 999., Frank vs. Magnum, 237 U.S. 309 59 L.ed 969, 35
S.Ct. 582,. Best evidence Rule 523.
VI
Did Preliminary hearing Counsel Chris Haidze, esq. Render
ineffective assistance of Counsel. When he never investigated
appellant’s case before the Preliminary hearing? Which lead Det.
Dennis Marsili to present fraud to magistrait Judge. PCRA H.T.
12-124 Det. Dennis Marsili perjured himself when lieing under
oath at preliminary hearing that he got statements from Mr. J.
White, Ms. A. Lewis to create Prima facie for probable cause to
exist for the arrest of appellant.
VII
Did the fraud in the Facts Created by Det. Dennis Marsili
violate the Constitutional Rights of appellant’s 14 amendment
right to due process? Constitution violations Render Proceedings
nul and void. See Commonwealth v. Crawford, 333 A.2d 52 (Pa.
1976). Commonwealth v. abrams, 336 A.2d 308., Best evidence
Rule 523
VIII
Did Robert Liotta, esq. Render himself ineffective
assistance of counsel according to Rule of Prof. Conduct; Rule
1.1 competence? By never investigating whether Det. D. Marsili
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had evidence or witness statement to support Probable cause to
detain appellant for person not to possess a Firearm, 18
Pa.C.S.A. 6105 or to arrest appellant. (See Rule 600 H.T. P 12
also I. PCRA H.T. 120-124)
IX
Did Robert Liotta, esq. Render himself ineffective
assistance of counsel? When he never informed the Jury on the
record, that Mr. J. White impeached his self because of
testimony that was untrustworthy? See S.T. P. 17
X
Did the Fraud in the Facts created solely by Det. Dennis
Marsili own omission (I. PCRA H.T. 120-124) Render, the
affidavit of probable cause void abinitio for the arrest of
appellant to be False arrest. 22C J.S. Criminal Law, 167, p.
202., Ralph vs. Police Court of El Corrito 190 P.2d 632 634, 84
Cal. App. 2d 257 (1948). Best evidence Rule 523
XI
Did Lower Court error, Finding no genuine issues
Concerning any material Facts, that Petitioner is not entitled to
PCRA Relief? When the high Courts Ruling in Commonwealth v.
Hopkins, held that portions of the mandatory minimum
sentencing scheme that had been invalidated by a 2013
Supreme Court Ruling could not be severed From the overall
Scheme, and therefore the sentencing scheme as a whole was
unconstitutional?
XII
Did the lower court error, when it sentenced appellant
without a Jury deciding whether the gun was loaded or loaded or
unloaded? 303.17 offense gravity score matrix 2010. Unloaded
is a gravity score of 9 with a P.R.S. 5 which gives a sentence of
57 - 69 months, loaded gravity score of 10 with P.R.S. 5 which
gives a sentence of 69 – 81 months. See S.H.T. 31 exhibit D
Appellant’s Brief at 3-6.
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Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and may not be
ignored in order to reach the merits of the petition. 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, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
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and (iii), is met.2 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). Carr, 768 A.2d at 1167.
Our review of the record reflects that the trial court imposed the
judgment of sentence on March 3, 2011. This Court affirmed Appellant’s
judgment of sentence on November 22, 2011, and the Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal on July 3,
2012. Accordingly, Appellant’s judgment of sentence became final on
October 1, 2012, ninety days after the Pennsylvania Supreme Court denied
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2
The exceptions to the timeliness requirement are:
(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.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
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Appellant’s petition for allowance of appeal and the time for filing a petition
for review with the United States Supreme Court expired. 42 Pa.C.S. §
9545(b)(3); U.S.Sup.Ct.R. 13. Appellant did not file the instant PCRA
petition until September 10, 2014. Thus, the instant PCRA petition is
patently untimely.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §
9545(b)(1). That burden necessarily entails an acknowledgment by the
petitioner that the PCRA petition under review is untimely but that one or
more of the exceptions apply. Commonwealth v. Beasley, 741 A.2d
1258, 1261 (Pa. 1999). If a petitioner asserts one of these exceptions, he
must file his petition within sixty days of the date that the exception could
be asserted. 42 Pa.C.S. § 9545(b)(2). In addition, exceptions cannot be
raised for the first time on appeal. Commonwealth v. Wharton, 886 A.2d
1120, 1126 (Pa. 2005).
Our review of the record reflects that, in the instant PCRA petition,
Appellant attempted to invoke all three of the exceptions to the timeliness
requirement, but he failed to prove that any of the exceptions apply. PCRA
Petition, 9/10/14, at 3. The PCRA court aptly addressed this shortcoming in
its notice of intent to dismiss filed pursuant to Pa.R.A.P. 907 as follows:
21. Within said PCRA [petition], [Appellant] marks all three
exceptions to the timeliness requirement. However, [Appellant]
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offers no facts which support each exception. Rather, within the
space provided in the petition to list facts in support of each
exception, [Appellant] argues that he was sentenced to a
mandatory minimum [sentence] without the necessary elements
being presented to the jury. [Appellant] fails to provide any
facts which support or prove each exception and thus [Appellant]
fails to prove any of the timeliness exceptions. Therefore, this
[c]ourt finds that [Appellant’s] PCRA [p]etition is untimely.
Notice of Intent to Dismiss, 4/8/15, at 4-5, ¶ 21. Upon review of Appellant’s
PCRA petition, we likewise conclude that, although he attempted to invoke
all three of the timeliness exceptions by marking the corresponding boxes on
the PCRA form, Appellant failed to present evidence in his PCRA pleading to
establish that the exceptions apply or that that the PCRA petition was
presented within the applicable sixty-day time frame. Accordingly, none of
the exceptions apply. Thus, the PCRA court was without jurisdiction to grant
relief in this matter and properly dismissed the PCRA petition.
In addition, it appears that Appellant has attempted to invoke the
time-bar exception under section 9545(b)(1)(iii) by maintaining that his
sentence is illegal and needs to be corrected by citing in his PCRA petition to
New Jersey v. Apprendi, 530 U.S. 466 (2000) and Alleyne v. United
States, 133 S.Ct. 2151 (2013), PCRA Petition, 9/10/14, at 3, and in his pro
se brief to Alleyne, Commonwealth v. Newman, and Commonwealth v.
Hopkins,3 Appellant’s Brief at 15. Thus, Appellant’s citations may be
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3
Although Appellant fails to present corresponding citation for Newman and
Hopkins, we presume that he is referring to this Court’s decision in
(Footnote Continued Next Page)
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characterized as a further attempt to assert the “new constitutional right”
exception to the PCRA time-bar based on Apprendi, Alleyne, Newman,
and Hopkins.
This Court has explained the rulings and impact of Apprendi,
Alleyne, and Newman as follows:
In Alleyne, the Supreme Court held that the constitutional jury
trial right requires any fact, other than a prior conviction, that
triggers a mandatory minimum sentence to be proven beyond a
reasonable doubt before the finder of fact. Alleyne is an
application of the Court’s prior pronouncement in Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), which ruled that any fact that increases a maximum
sentence must be found by the factfinder beyond a reasonable
doubt or admitted by the defendant during his guilty plea. In
Alleyne, the United States Supreme Court expressly overruled
Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153
L.Ed.2d 524 (2002), which held that a fact that involves a
mandatory minimum sentence does not implicate jury trial
rights. Alleyne also implicitly abrogated McMillan v.
Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67
(1986), which withstood an Apprendi attack in the Harris
decision.
In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (relying upon Commonwealth v. Watley, 81 A.3d 108,
118 (Pa. Super. 2013) (en banc)), we noted that Alleyne will be
applied to cases pending on direct appeal when Alleyne was
issued.
Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)
(emphasis added).
_______________________
(Footnote Continued)
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), and
our Supreme Court’s decision in Commonwealth v. Hopkins, 117 A.3d
247, 262 (Pa. 2015).
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While this Court has held that Alleyne applies retroactively to cases
that were on direct appeal when Alleyne was issued, we have declined to
construe that decision as applying retroactively to cases during PCRA review.
In concluding Alleyne does not satisfy the new retroactive
constitutional right exception to the PCRA’s one year time bar,
42 Pa.C.S. § 9545(b)(1)(iii), the [Commonwealth v. Miller,
102 A.3d 988, 995 (Pa. Super. 2014)] Court explained:
Even assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, nor
the United States Supreme Court has held that
Alleyne is to be applied retroactively to cases in
which the judgment of sentence had become
final. This is fatal to Appellant’s argument regarding
the PCRA time-bar. This Court has recognized that a
new rule of constitutional law is applied retroactively
to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases.
Id. at 995 (citations omitted) (emphasis supplied).
Commonwealth v. Ruiz, A.3d. , 2015 PA Super 275 at * 3 (Pa.
Super. Dec. 30, 2015) (emphasis original).4
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4
We note that, in issue XI of his pro se brief, Appellant makes reference to
“Commonwealth v. Hopkins” in addition to Alleyne and Newman, in
which he claims the Pennsylvania Supreme Court held that Alleyne applies
retroactively to PCRA petitioners. Appellant’s Brief at 6, 15. Appellant
provides no citation to this decision. If Appellant is indeed referring to
Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015), which was
decided while this appeal was pending, we note that this decision does not
address the issue of retroactive application of Alleyne to a PCRA petition.
We further observe that in Newman, we held Alleyne does not apply
retroactively to all cases, but does apply to cases that were pending on
direct appeal when the United States Supreme Court announced its decision
on June 17, 2013. Newman, 99 A.3d at 90.
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Alleyne was decided on June 17, 2013. As noted, Appellant’s
judgment of sentence was finalized eight months before Alleyne was
decided. Additionally, although a challenge based on Alleyne does implicate
the legality of a sentence, “a legality of sentence claim may nevertheless be
lost should it be raised . . . in an untimely PCRA petition for which no time-
bar exception applies.” Miller, 102 A.3d at 995-996. Thus, the PCRA court
properly dismissed Appellant’s instant PCRA petition as untimely. It was
filed beyond the one-year deadline, and Appellant cannot rely on Alleyne or
its progeny to invoke the timeliness exception at section 9545(b)(1)(iii).
Consequently, because the PCRA petition was untimely and no
exceptions apply, the PCRA court lacked jurisdiction to address the claims
presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d
396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to
hear untimely petition). Likewise, we lack the authority to address the
merits of any substantive claims raised in the PCRA petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
(“[J]urisdictional time limits go to a court’s right or competency to adjudicate
a controversy.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2016
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