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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HERBERT DALE CONAWAY :
:
Appellant : No. 1877 WDA 2016
Appeal from the PCRA Order November 29, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001863-2011
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 02, 2017
Appellant, Herbert Dale Conaway, appeals pro se from the November
29, 2016, order entered in the Court of Common Pleas of Fayette County
dismissing as untimely his second petition filed under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After a careful review, we
affirm.
The relevant facts and procedural history are as follows: Appellant was
arrested for the rape of a young woman who was volunteering with Habitat
for Humanity. Represented by counsel, Appellant proceeded to a jury trial,
following which the jury convicted him of rape by forcible compulsion, 18
Pa.C.S.A. § 3121(a)(1), and related offenses. The trial court sentenced
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*
Former Justice specially assigned to the Superior Court.
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Appellant to an aggregate of 96 months to 200 months in prison, and
Appellant filed a timely post-sentence motion, which the trial court denied on
August 16, 2012. Thereafter, on August 27, 2012, Appellant filed a timely,
counseled direct appeal to this Court.1
On appeal, Appellant contended (1) he should be granted a new trial
due to the prosecutor’s Brady2 violation, i.e., its failure to produce the
victim’s emergency room examination records until after the start of trial;
(2) the evidence was insufficient to support his conviction under Section
3121(a)(1); (3) the jury’s verdict was against the weight of the evidence;
and (4) he should be granted a new trial due to the Commonwealth’s failure
to present a prima facie case of guilt at the preliminary hearing. This Court
found Appellant was not entitled to relief, and consequently, on February 5,
2013, we affirmed his judgment of sentence. See Commonwealth v.
Conaway, No. 1320 WDA 2012 (Pa.Super. filed 2/5/13) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal with
our Supreme Court.
On or about February 21, 2013, Appellant filed a timely pro se PCRA
petition, counsel was appointed to assist Appellant, and thereafter, counsel
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1
On August 27, 2012, Appellant also filed a pro se PCRA petition; however,
on September 7, 2012, Appellant’s counsel filed a petition discontinuing the
PCRA petition on the basis it had been prematurely filed.
2
Brady v. Maryland, 373 U.S. 83 (1963).
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filed a petition to withdraw and a Turner/Finley3 brief. The PCRA court
granted counsel’s petition to withdraw and, ultimately, dismissed Appellant’s
first PCRA petition on March 30, 2015. Appellant did not file an appeal to
this Court.
On or about October 6, 2016, Appellant filed a pro se PCRA petition,
and the PCRA court provided Appellant with notice of its intent to dismiss
pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response in
opposition to the PCRA court’s notice, and by opinion and order entered on
November 29, 2016, the PCRA court dismissed Appellant’s second petition
on the basis it was untimely filed. This timely pro se appeal followed, and all
Pa.R.A.P. 1925 requirements have been met.
Appellant presents the following claims for our review:
1. The Appellant should be granted collateral relief since the
Commonwealth failed to disclose material, exculpatory
evidence and there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the trial
would have been different.
2. The Appellant should be granted collateral relief since the
Commonwealth failed to present sufficient evidence that the
Appellant committed the crime charged, since there was no
physical evidence of an assault kind [sic] and no threat of
force presented.
3. The Appellant should be granted collateral relief because the
verdict in this case was against the weight of the evidence.
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3
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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4. The Appellant should be granted collateral relief since the
Commonwealth failed to establish prima facie evidence of
Appellant’s guilt at the Omnibus pretrial hearing.
5. The Appellant should be granted collateral relief due to the
ineffectiveness of trial counsel failing to properly investigate
Appellant’s actual claim of innocence.
6. The Appellant should be granted collateral relief due to the
ineffectiveness of trial counsel failing to call material medical
witnesses to confirm Appellant’s medical impossibility to
commit these crimes.
7. The Appellant should be granted collateral relief due to the
ineffectiveness of trial counsel [in] failing to properly locate
and interview witnesses.
8. Did the court err by allowing counsel to withdraw and forcing
Appellant to proceed pro se in spite of the fact that there are
isues [sic] of arguable merit in this case and that the court’s
decision to allow counsel to withdraw constructively denied
Appellant[ ] counsel during his PCRA litigation[.]
9. The Appellant should be granted collateral relief due to the
judicial misconduct of the trial judge when he sentenced
Appellant to a presentence investigation report nor an
evaluation of the State’s Sexual Offender’s Assessment Board
in violation of Rule 32(b) of the Federal Rules of Criminal
Procedure and 42 Pa.C.S.A. § 9794(3).
Appellant’s Brief, Statement of the Questions Presented.
Preliminarily, we must determine whether Appellant’s instant PCRA
petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is
clear; we are limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and
quotation marks omitted).
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Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500,
837 A.2d 1157 (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
(iii) the right asserted is a constitutional right that was
recognized by 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).
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“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, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).
Moreover, “the PCRA limits the reach of the exceptions by providing that a
petition invoking any of the exceptions must be filed within 60 days of the
date the claim first could have been presented.” Commonwealth v.
Walters, 135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42
Pa.C.S.A. § 9545(b)(2).
In the case before us, this Court affirmed Appellant’s judgment of
sentence on February 5, 2013, and Appellant did not file a petition for
allowance of appeal with our Supreme Court. Accordingly, his judgment of
sentence became final on March 7, 2013, when the thirty-day time period for
filing a petition for allowance of appeal with our Supreme Court expired.
See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. Appellant had one year
from that date, or until March 7, 2014, to file a timely PCRA petition. See
42 Pa.C.S.A. § 9545(b). However, Appellant did not file his instant PCRA
petition until October 6, 2016, and thus, it is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1).
Moreover, Appellant has neither recognized that his second PCRA
petition was untimely filed nor set forth any argument concerning the
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Section 9545(b)(1)(i)-(iii) exceptions.4 Consequently, we conclude the PCRA
court properly denied Appellant relief on the basis his second PCRA petition
was untimely filed.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2017
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4
We note that, in his first claim, Appellant presents the same alleged Brady
violation, which this Court rejected on direct appeal. Moreover, to the
extent Appellant presents ineffective assistance of counsel claims, such
claims do not save an otherwise untimely petition for review on the merits.
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000).
Also, to the extent Appellant avers his sentence is illegal, we note that the
Supreme Court has specifically held that “[a]lthough legality of sentence is
always subject to review within the PCRA, [legality of sentencing] claims
must still first satisfy the PCRA’s time limits or one of the exceptions
thereto.” Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223
(1999). Finally, we note that Appellant was not entitled to the assistance of
counsel with regard to his second PCRA petition. Commonwealth v. Haag,
570 Pa. 289, 809 A.2d 271 (2002).
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Com. v. Conaway, H.
Combined Opinion