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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRIAN PARNELL,
Appellant No. 3779 EDA 2015
Appeal from the PCRA Order November 30, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004554-2001
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 13, 2016
Appellant Brian Parnell appeals pro se the order entered in the Court of
Common Pleas of Chester County on November 30, 2015, by the Honorable
David F. Bortner dismissing as untimely his fourth1 petition filed pursuant to
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1
The PCRA court refers to this as Appellant’s fifth petition; however, in
doing so it appears to have considered Appellant’s Motion for Post-Conviction
DNA Testing Pursuant to 42 Pa.C.S.A. § 9543.1 filed on July 27, 2011, to
have been his fourth PCRA petition. However, this Court has clarified that
"[a]n application for DNA testing should be made in a motion, not in a PCRA
petition.” Commonwealth v. Weeks, 831 A.2d 1194, 1196 (Pa.Super.
2003) (emphasis in original). We have further stated that:
[t]hough brought under the general rubric of the PCRA, motions
for post-conviction DNA testing are “clearly separate and distinct
from claims brought pursuant to other sections of the PCRA.” For
instance, this Court has consistently held the one-year
jurisdictional time bar of the PCRA does not apply to motions for
(Footnote Continued Next Page)
*Former Justice specially assigned to the Superior Court.
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the Post Conviction Relief Act (“PCRA”).2 Following a review of the record,
we affirm.
Appellant is serving a term of life imprisonment following his conviction
by a jury of murder in the second degree and burglary on July 11, 2002.
Appellant was sentenced on July 15, 2002, and on August 14, 2002, filed a
timely notice of appeal. On July 1, 2003, this Court affirmed Appellant’s
judgment of sentence, and Appellant did not file a petition for allowance of
appeal with the Pennsylvania Supreme Court thereafter. Commonwealth
v. Parnell, 832 A.2d 541 (Pa.Super. 2003) (unpublished memorandum).
Appellant filed a timely PCRA petition which was denied following an
evidentiary hearing. On June 2, 2006, this Court affirmed the trial court’s
denial of PCRA relief. Commonwealth v. Parnell, 903 A.2d 49 (Pa.Super.
2006) (unpublished memorandum). Appellant did not seek allowance of
appeal with our Supreme Court, and the PCRA court dismissed Appellant’s
previously filed PCRA petitions on the basis of untimeliness.
_______________________
(Footnote Continued)
DNA testing under Section 9543.1. Another distinction of
motions for DNA testing is that Section 9543.1 does not confer a
right to counsel.
Commonwealth v. Williams, 35 A.3d 44, 50 (Pa.Super. 2011) (citations
omitted). As such, we will treat Appellant’s PCRA petition sub judice as his
fourth, although, for the reasons set forth infra, this distinction is not
determinative herein.
2
42 Pa.C.S.A. §§ 9541-46.
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Appellant filed the present petition on September 11, 2014.3 On
October 28, 2014, the PCRA court appointed counsel, and on November 25,
2014, Appellant filed a motion to waive counsel. The PCRA court held a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)
on February 9, 2015, after which it determined Appellant was voluntarily,
knowingly and intelligently waiving his right to counsel. On that same day,
the PCRA court entered an order permitting Appellant to proceed pro se and
appointed standby counsel to assist him. 4
In the instant PCRA petition, Appellant attempted to invoke the
“newly-discovered evidence” exception to the PCRA time-bar, averred his
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3
Although Appellant’s PCRA petition is time-stamped September 15, 2014,
the petition was postmarked September 11, 2014; therefore, the latter is
the effective date of Appellant’s filing of the petition pursuant to the
“prisoner mailbox” rule. See Commonwealth v. Castro, 766 A.2d 1283,
1287 (Pa.Super. 2001) (providing that where an appellant is acting pro se
and incarcerated at the time he or she seeks to file a PCRA petition, justice
requires that the petition will be deemed filed on the date the appellant
deposited it with prison authorities and/or placed it in the prison mailbox).
4
Our Supreme Court has held that “the right to counsel in a second or
subsequent PCRA petition is not co-extensive with the right to counsel in a
first PCRA petition. While Pa.R.Crim.P. 904(A) provides for the appointment
of counsel in a first PCRA petition when the petitioner satisfies the judge that
he is unable to afford or otherwise obtain counsel, Pa.R.Crim.P. 904(B)
provides for the appointment of counsel in a second or subsequent PCRA
petition only in cases where the petitioner can further establish that an
evidentiary hearing is required.”
Commonwealth v. Haag, 570 Pa. 289, 324, 809 A.2d 271, 293 (2002)
(footnonte omitted).
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actual innocence, and claimed the Commonwealth had breached a
contractual agreement into which it had entered with him. The trial court,
after providing the requisite notice pursuant to Pa.R.Crim.P. 907, dismissed
the petition as untimely. This appeal followed in which Appellant sets forth
the following statement of questions involved:5
I. Whether the trial court erred by dismissing the PCRA
petition for newly discovered evidence without conducting an
evidentiary hearing and/or any contestment [sic] from the
Chester County District Attorney.
II. Whether the trial court erred by failing to acknowledge the
sufficiency of the newly discovered evidence.
III. Whether the trial court abused its discretion in dismissing
the PCRA Petition for newly discovered evidence based upon its
own erroneous findings of false facts, deliberately misstated,
which are not support[ed] by the record, law, or any material
facts from the trial courts[’] “alleged” independent review of Dr.
Richard T. Callery.
IV. Whether a miscarriage of justice occurred and actual
innocence exist[s].
V. Whether district attorney of Chester County Tom Hogan
breached contractual agreement.
Brief for Appellant at 1-2.
Under our well-settled standard of review of the denial of PCRA relief,
we are limited to determining whether the PCRA court’s findings are
supported by the record and without legal error. Commonwealth v.
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5
Appellant timely complied with the order of the trial court to file a
statement of errors complained of on appeal.
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Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008). Initially, we must
determine whether Appellant’s PCRA petition was timely filed. See
Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super. 2000).
Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 837 A.2d 1157
(Pa. 2003). The most recent amendments to the PCRA, effective January
19, 1996, provide that a PCRA petition, including a second or subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 the time for seeking review.” 42 Pa.C.S.A. §
9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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
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(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of Pennsylvania after
the time period provide in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “We emphasize that it is the petitioner
who bears the burden to allege and prove that one of the timeliness
exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa.
2008) (citations omitted). Additionally, this Court as explained that each of
the time-bar exceptions is subject to a separate deadline:
The statutory exceptions to the timeliness requirements of the
PCRA are also subject to a separate time limitation and must be
filed within sixty (60) days of the time the claim could first have
been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty (60)
day time limit ... runs from the date the petitioner first learned
of the alleged after-discovered facts. A petitioner must explain
when he first learned of the facts underlying his PCRA claims and
show that he brought his claim within sixty (60) days thereafter.
Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.Super. 2011) (some
citations omitted).
Instantly, Appellant was sentenced on July 15, 2002, and this Court
affirmed his judgment of sentence on July 1, 2003. Appellant did not file a
petition for allowance of appeal with the Supreme Court. Therefore,
Appellant’s judgment of sentence became final thirty days thereafter on
August 1, 2003. See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment
becomes final at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
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Pennsylvania, or at the expiration of time for seeking the review[ ]”). In
Appellant’s case, a timely first petition for post-conviction relief would have
had to have been filed by August 1, 2004. Appellant filed the instant PCRA
petition over ten years later, on September 11, 2014; therefore, it is
patently untimely.
Notwithstanding, Appellant argues the PCRA court erred in dismissing
his petition without a hearing because newly-discovered evidence became
available to him on July 11, 2014. See Petition for Post Conviction Relief for
Newly Discovered Evidence Pursuant to 42 Pa.C.S.A § 9545(b)(1)(ii), at 5.
Such alleged evidence is a hearsay article published in a Delaware
publication, The News Journal, on July 11, 2014, entitled “Chief Medical
Examiner Out of a Job.” The article discusses an investigation which led to
the termination of Dr. Richard Callery, a forensic pathologist who performed
an autopsy on the victim and testified as a Commonwealth witness at
Appellant’s trial. Dr. Callery, formerly the Chief Medical Examiner of the
State of Delaware, was alleged to have utilized Delaware resources to
perform private forensic pathology work, including “moonlighting as a
contract pathologist for … Chester County, Pa.” It was in that capacity that
Dr. Callery performed the autopsy on the decedent in the instant matter.
At the outset, we note that Appellant’s petition was not filed within
sixty days of the date upon which the information had been reported as is
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required by 42 Pa.C.S. § 9545(b)(2).6 Notwithstanding, even were the
petition timely filed, it does not provide a basis upon which he could
predicate an untimely claim.
To obtain relief based on after-discovered evidence, appellant
must demonstrate that the evidence: (1) 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 to impeach the credibility
of a witness; and (4) would likely result in a different verdict if a
new trial were granted.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (emphasis
provided.
While Dr. Cowley’s apparent abuse and neglect of his office was
detailed in the publication, nowhere in the article is any aspect of Appellant’s
individual case discussed, nor was Dr. Cowley’s methodology in conducting
autopsies and/or ability to testify at trial regarding that work discussed.
Indeed, Appellant views the evidence in terms of a general attack upon Dr.
Crowley’s credibility. As such, Appellant has failed to satisfy his burden of
proving this hearsay article would have likely resulted in a different verdict
were he granted a new trial.
Appellant’s remaining claims of his innocence, challenges to the
veracity of Detective Kenneth W. Beam’s testimony and to the validity of
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6
Appellant filed his PCRA petition sixty-two days after the article had been
published in The News Journal, although he acknowledged the evidence
became available to him on July 11, 2014.
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fingerprint evidence presented at trial, and reference to an alleged
contractual obligation the Commonwealth breached either have been
previously litigated or do not constitute after-discovered evidence, for the
information upon which they are based was available to Appellant prior to
September 11, 2014. See Petition for Post Conviction Relief for Newly
Discovered Evidence Pursuant to 42 Pa.C.S.A § 9545(b)(1)(ii), Exhibits C-I.
Accordingly, the newly-discovered evidence exception to the PCRA time-bar
cannot apply herein.
Based on the foregoing, we find the PCRA court lacked jurisdiction to
consider the merits of Appellant’s PCRA petition filed on September 11,
2014, and properly dismissed it as untimely filed. Accordingly, we affirm the
PCRA court’s November 30, 2015, Order.
Order affirmed.
Judge Panella joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2016
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