J-S24016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PETER MICHAEL KARENBAUER
Appellant No. 929 WDA 2016
Appeal from the PCRA Order Entered May 27, 2016
In the Court of Common Pleas of Lawrence County
Criminal Division at No: CP-37-CR-0000642-1995
BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JUNE 08, 2017
Appellant, Peter Michael Karenbauer, appeals from the May 27, 2016
order dismissing his petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
On July 31, 1996, at the conclusion of a nine-day trial, a jury found
Appellant guilty of first-degree murder and imposed a sentence of death.
The victim, eight-year-old Lacey Johnson, was repeatedly stabbed and then
drowned in a bathtub. Appellant confessed to the killing and relied on a
diminished capacity defense at trial. Our Supreme Court affirmed the
judgment of sentence on July 22, 1998. Commonwealth v. Karenbauer,
715 A.2d 1086 (Pa. 1998), cert. denied, 526 U.S. 1021 (1999). On
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*
Former Justice specially assigned to the Superior Court.
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September 23, 2002, the trial court resentenced Appellant to life in prison
without parole pursuant to Atkins v. Virginia, 536 U.S. 304 (2002),
wherein the United States Supreme Court held that imposing the death
penalty on a mentally retarded person violates the Eighth Amendment of the
United States Constitution.1 The September 23, 2002 resentencing mooted
many issues Appellant raised in a PCRA petition that was pending at the
time. On September 29, 2004, this Court issued a memorandum affirming
the PCRA court’s denial of relief on the remaining pending collateral issues.
Commonwealth v. Karenbauer, 1119 WDA 2003 unpublished
memorandum (Pa. Super. filed September 24, 2004). Subsequently,
Appellant filed an unsuccessful habeas corpus petition in federal court.
Appellant filed the instant petition on June 19, 2013. Appointed
counsel filed an amended petition on November 8, 2013. Appellant seeks
relief based on alleged newly discovered evidence, a 1995 Lawrence County
Coroner’s report. Appellant alleges his petition is timely because he first
received the report and learned of its contents on April 18, 2013. On May
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1
At trial, the Commonwealth conceded that Appellant was mildly mentally
retarded. Our Supreme Court held that Appellant’s mental impairment was
to be weighed by the jury, along with other pertinent factors, during the
penalty phase. Karenbauer, 715 A.2d at 1091. The jury found several
aggravating factors and several mitigating factors, including Appellant’s
mental impairment, and ultimately imposed the death penalty. The
Commonwealth conceded, based on Appellant’s mental impairment, that he
was entitled to a life sentence under Atkins.
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27, 2016, the PCRA court entered an order dismissing the petition as
untimely. This appeal followed. Appellant raises three assertions of error:
(a) The exception(s) of 42 Pa.C.S.A.
§§ 9545(b)(ii)/(b)(2) apply to fulfill the timeliness
requirement(s) of the PCRA statute for the filing of
Petitioner’s […] PCRA petition.
(b) The Office(s) of the Lawrence County PA
District Attorney and/or the Pennsylvania Attorney General
Office committed prosecutorial misconduct in the refusal to
disclose exculpatory evidence by failing to provide the
1995 Lawrence County PA Coroner Report prior to trial
and/or in previous post-conviction proceeding(s) in this
case.
(c) Prior defense counsel was ineffective in failing
to introduce medical expert evidence from a psychiatric
physician during pre-trial proceeding(s) to evaluate
[Appellant’s] mental health condition as it may have
affected statements made in his false ‘confession(s)’ in
support of a ‘diminished capacity’ defense previously
raised in the case.
Appellant’s Brief at 15-16.
On review, we must determine whether the record supports the PCRA
court’s findings of fact, and whether its order is free from legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). The
PCRA court lacks jurisdiction to entertain any petition filed more than one
year after the finality of the judgment of sentence. 42 Pa.C.S.A.
§ 9545(b)(1). As set forth above, the trial court re-sentenced in 2002. He
filed this facially untimely petition in 2013. The PCRA provides several
exceptions to the one-year time bar, including a petition based on facts
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which “were unknown to the petitioner and could not have been ascertained
by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii).
Appellant bases his petition on a 1995 coroner’s report pertaining to
the victim. The coroner’s report lists the victim’s date of death as July 17,
1995—the date the victim’s body was found—whereas Appellant confessed
to killing her on July 16, 1995. Also, the report does not list drowning as the
cause of death. In this respect, it is inconsistent with the autopsy report and
expert evidence the Commonwealth introduced at trial. At a hearing on
Appellant’s petition, former Lawrence County Cororner Russel Noga
explained that his contemporaneous handwritten report indicates that the
date of death was July 16. N.T. Hearing, 4/4/14, at 39-40. He attributed
the date in the printed report to a secretarial error that he failed to notice
before filing the report. Id. In any event, Appellant believes that the
discrepancies between the coroner’s report and Appellant’s confession
support his argument that he gave a false confession because of his mental
impairment.
We agree with the PCRA court’s conclusion that Appellant’s petition is
untimely. The PCRA court correctly noted that the coroner’s report was not
within the exclusive control of the prosecution. Rather, the report is a public
document, pursuant to 16 P.S. § 1251 (“Every coroner, within thirty (30)
days after the end of each year, shall deposit all of his official records and
papers for the preceding year in the office of the prothonotary for the
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inspection of all persons interested therein.”). Our Supreme Court has held
that matters of public record cannot be previously unknown facts for
purposes of § 9545(b)(1)(ii). Commonwealth v. Chester, 895 A.2d 520,
523 (Pa. 2006). This Court has held, however, that the presumption of
access to public information does not apply if the petitioner is a pro se
prisoner when the information becomes publicly available. Commonwealth
v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015)(en banc), affirmed,
2017 WL 1149203 (Pa. March 28, 2017). Burton does not apply here,
because Appellant was represented by counsel in early 1996 when the
victim’s autopsy report became available.
Given the foregoing, Appellant cannot establish that the facts in the
coroner’s report were unknown to him and/or that he could not have
discovered them sooner through the exercise of due diligence. Appellant
seeks to avoid this result by asserting in his brief that there is “no proof”
that the Lawrence County Coroner’s office complied with its obligation under
§ 1251. Appellant’s Brief at 30. We remind Appellant that the PCRA statute
requires the petitioner to bear the burden of pleading and proving the
applicability of its timeliness exceptions. 42 Pa.C.S.A. § 9545(b)(1).
Appellant therefore bore the burden of proving that the report was not made
available in accord with § 1251, and, if it was not, that Appellant acted with
due diligence in challenging the coroner’s alleged failure to comply with
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§ 1251. Appellant has produced no evidence that the coroner failed to make
the report available.
The PCRA court observed:
Here, it is clear that [Appellant] was aware of the
existence of the coroner’s report for years before the time that
he began his efforts to seek a copy. The reference to the
coroner’s report in police reports established that his trial
counsel was aware of the report at the time of trial. Although
[Appellant] has not cited the governmental interference
exception of § 9545(b)(1)(i) as a basis for his claim of
timeliness, trial counsel’s awareness would preclude the
application of the governmental interference exception since trial
counsel was aware of the report. It is apparent that its
nondisclosure was simply due to the fact that neither the
Commonwealth nor trial counsel viewed it as being exculpatory,
particularly since [Appellant] did not dispute that he killed the
victim[….] Further, [...] the awareness of the report at the time
of trial and [Appellant’s] failure to seek a copy of it for many
years after its creation establishes a lack of due diligence by
[Appellant] in obtaining that evidence. [Appellant] had simply
failed to address why, with the exercise of due diligence, he
could not have obtained the coroner’s report at a much earlier
date.
PCRA Court Opinion, 5/27/16, at 16. Appellant has failed to carry his burden
of pleading and proving the applicability of a timeliness exception. We
therefore affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 6/8/2017
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