J-S36020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER HANSON,
Appellant No. 2919 EDA 2016
Appeal from the PCRA Order of September 1, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000421-1984
and CP-39-CR-0001582-1983
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 27, 2017
Appellant, Christopher Hanson, appeals pro se from the order entered
on September 1, 2016 dismissing his petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9646. We affirm.
The PCRA court summarized the facts and procedural history of this
case as follows:
In June of 1984, following a jury trial, [Appellant] was found
guilty of murder in the [second-]degree, and criminal
conspiracy to commit murder and rape, and was
subsequently sentenced to life imprisonment. [This] Court
affirmed [Appellant’s] judgment of sentence on August 31,
1987, and the Supreme Court denied a petition for
allowance of appeal on March 23, 1988. From 1988 to
2015, [Appellant] filed approximately eleven (11) petitions
pursuant to the [PCRA]. Each petition was denied or
dismissed, and those that were appealed were affirmed by
the appellate courts.
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On September 11, 2015, [Appellant] filed another PCRA
petition, and the case was reassigned [following the
retirement of the original judge]. [Appellant’s] appointed
counsel, Robert Long, Esquire, originally filed a [m]otion to
[w]ithdraw as [c]ounsel alleging [Appellant’s] petition was
untimely, and that he did not meet any of the statutory
exceptions to the time bar. [Appellant] raised an additional
issue and, thereafter, counsel filed an amended PCRA
petition. The parties appeared in court on February 16,
2016, and counsel advised the [PCRA] court that he needed
more time to look into [Appellant’s] new allegation. On
April 19, 2016, Attorney Long filed another [m]otion to
[w]ithdraw as [c]ounsel, indicating there was no merit to
any of [Appellant’s] allegations, including the new claim. A
hearing was held on April 20, 2016, following which [the
PCRA court] granted Attorney Long’s motion to withdraw.
On June 28, 2016, after an independent review of the
record, [the PCRA court] issued a notice to [Appellant,
pursuant to Pa.R.Crim.P. 907,] of [its] intent to dismiss his
petition as untimely, and indicating [the] reasons why.
[Appellant] responded, and after review of the response,
[the PCRA court] denied the petition on September 1, 2016.
This [pro se] appeal followed.
PCRA Court Opinion, 11/15/2016, at 1-2 (footnote omitted).
On appeal, Appellant presents the following issues, pro se, for our
review:
Whether the PCRA [c]ourt erred and committed an abuse of
discretion by denying [A]ppellant’s petition for post[-]
conviction relief despite evidence that the prosecution
withheld exculpatory evidence of a deal for potential
additional leniency for co-defendant Timothy Seip for his
cooperation with the Commonwealth?
Whether the PCRA [c]ourt erred and committed an abuse of
discretion by quashing the subpoena of [the Honorable]
Maxwell E. Davison?
Whether the PCRA [c]ourt erred and committed an abuse of
discretion by denying [A]ppellant the opportunity to present
unheard witnesses at the [h]earing?
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Whether the PCRA [c]ourt erred and committed an abuse of
discretion by denying [A]ppellant the opportunity to present
[his] case, when the PCRA [c]ourt added additional
requirements; i.e. due diligence requirement, timeliness
requirement, defense attorney discovering suppressed
evidence, or that the rest of the evidence was sufficient to
support [his] conviction[s]?
Whether the PCRA [c]ourt erred and committed an abuse of
discretion by violating [A]ppellant’s 6th and 14th
amendment[ rights] to the U.S. Constitution in allowing [e]x
[p]arte communications of [Attorney] Chappelle, Judge
Davison, and Prosecutor Tomsho to go undeveloped
regarding the statements [at the] guilty plea in the []
matter [of Appellant’s co-conspirator] in [a] “handwritten”
note at a “critical stage” making trial counsel ineffective
under [the] 6th amendment and equal protection clause of
the U.S. Constitution[,] 8th amendment?
Whether the PCRA [c]ourt erred and committed an abuse of
discretion by denying [A]ppellant [an] opportunity to amend
his PCRA petition with allegations of [] counsel’s
ineffectiveness?
Whether the PCRA [c]ourt erred and committed an abuse of
discretion by finding [June 18, 2014 was the date the PCRA
court sent Rule 907 notice to Appellant]?
Whether the PCRA [c]ourt erred and committed an abuse of
discretion by denying [A]ppellant[’s request] for transcripts
of these PCRA [p]roceedings?1
Whether the PCRA [c]ourt erred and committed an abuse of
discretion by not granting additional counsel for appeal?
Appellant’s Brief at 2-3.
____________________________________________
1
Upon review of the record, the PCRA court ordered the official court
reporter to transcribe and provide the testimony from the PCRA proceeding.
PCRA Court Order, 11/16/2016, at 1.
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Our Supreme Court has stated our well-settled standard of review over
the denial of a PCRA petition as follows:
In reviewing the denial of PCRA relief, we examine whether
the PCRA court's determination is supported by the record
and free of legal error. A PCRA petition, including a second
or subsequent petition, must be filed within one year of the
date that the judgment of sentence becomes final. For
purposes of the PCRA, 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 Pennsylvania, or at the expiration of time for
seeking the review.
There are three exceptions to the timeliness requirement,
including an exception concerning the discovery of a
previously-unknown fact. Under this exception, a petitioner
must file a PCRA petition within sixty days of the date that
the claim could have been presented. PCRA time limits are
jurisdictional in nature, implicating a court's very power to
adjudicate a controversy. Accordingly, the period for filing a
PCRA petition is not subject to the doctrine of equitable
tolling; instead, the time for filing a PCRA petition can be
extended only if the PCRA permits it to be extended, i.e., by
operation of one of the statutorily enumerated exceptions to
the PCRA time-bar. The court cannot ignore a petition's
untimeliness and reach the merits of the petition. A petition
for post-conviction relief [] may be dismissed without an
evidentiary hearing if there are no genuine issues of
material fact and the petitioner is not entitled to relief.
Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)
(internal citations and quotations omitted).
Moreover,
[t]o be entitled to PCRA relief, appellant must establish, by
a preponderance of the evidence, his conviction or sentence
resulted from one or more of the enumerated errors in 42
Pa.C.S. § 9543(a)(2). These errors include a constitutional
violation or ineffectiveness of counsel, which so undermined
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the truth-determining process that no reliable adjudication
of guilt or innocence could have taken place. Additionally,
appellant must show his claims have not been previously
litigated or waived, and the failure to litigate the issue prior
to or during trial ... or on direct appeal could not have been
the result of any rational, strategic or tactical decision by
counsel. An issue is previously litigated if the highest
appellate court in which appellant could have had review as
a matter of right has ruled on the merits of the issue. An
issue is waived if appellant could have raised it but failed to
do so before trial, at trial, ... on appeal or in a prior state
post[-]conviction proceeding.
Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017) (internal
citations and quotations omitted).
In this case, Appellant was sentenced on January 30, 1986. We
affirmed Appellant’s judgment of sentence on August 31, 1987 and our
Supreme Court denied further review on March 23, 1988. Thus, Appellant’s
judgment of sentence became final on June 21, 1988, when the time for
Appellant to file a petition for writ of certiorari with the United States
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. S. Ct. R. 13.
Thus, Appellant’s latest PCRA petition filed on September 11, 2015 is
patently untimely.
Appellant attempts to invoke the previously unknown fact exception to
the PCRA’s time bar by relying on his allegedly recent discovery of “a secret
plea deal for leniency [that] existed between the Commonwealth and
cooperating star witness[,] co-defendant Timothy Seip.” Appellant’s Brief at
13. Specifically, he argues that Attorney Colie Chappelle (the attorney for
the victim’s family), the Honorable Maxwell E. Davison (the trial court judge
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in the separate criminal prosecution of Timothy Seip, Appellant’s co-
conspirator), and Attorney Richard R. Tomsho (the prosecutor in this matter)
“were actively involved in withholding the secret plea deal evidence from
[A]ppellant’s defense[.]” Id. at 14. Appellant argues that he filed the
September 11, 2015 PCRA petition within 60 days of obtaining an affidavit
from Attorney Chappelle. We reject Appellant’s claim for several reasons.
This Court has previously considered and rejected Appellant’s effort to
invoke the previously unknown fact exception based upon Seip’s plea deal.
In 2009, we determined that Seip’s plea deal agreement:
was placed on the record before the judge, indicating that
Seip in exchange for his open plea to third[-]degree murder
would testify for the prosecution in Appellant’s case.
Attorney Tomsho, the assistant district attorney [(ADA)],
made clear that the agreement did not include any terms
with regard to sentencing, which was entirely left to the
discretion of the court, that is, Seip could receive a term of
imprisonment of 10 to 20 years, which in fact he did receive
subsequent to Appellant’s trial. It is evident from Seip’s
responses at the time of his plea colloquy that he
understood that the sentencing court had discretion with
regard to his sentencing and that he could be given a
sentence of 10 to 20 years.
* * *
We [] conclude[d] that although Seip was hoping that he
would receive a sentence of 5 to 10 years rather than one of
10 to 20 years, which he was fully aware could be the
outcome of his plea, Seip’s “hope” in itself was not enough
to establish a [] violation [of Brady v. Maryland, 373 U.S.
83 (1963)] that would result in a new trial for Appellant.
Commonwealth v. Hanson, 981 A.2d 920 (Pa. Super. 2009) (unpublished
memorandum) (emphasis in original) at 13-15; see also Commonwealth
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v. Hanson, 121 A.3d 1135 (Pa. Super. 2015) (unpublished memorandum)
at 5 (“Because Appellant had knowledge of the alleged plea agreement in
2008, Appellant possessed sufficient information to form the underlying
basis for the time-bar exception he now alleges in 2015.”). Thus, because
this claim was previously litigated, it was already known to Appellant and
cannot form the basis for invoking the timeliness exception found at 42
Pa.C.S.A. § 9545(b)(1)(ii).
Furthermore, this Court previously determined that Appellant’s reliance
on Attorney Chappelle’s affidavit was untimely:
[Review of testimony from a] 2008 PCRA hearing
unequivocally discusse[d] alleged discussions between
Attorney Chappelle and the Commonwealth regarding Seip’s
plea and the disposition of his case. Our review of
Appellant’s [] PCRA petition [filed on February 9, 2010]
contains no discussion as to why Appellant could not have
obtained Attorney Chappelle’s statement earlier, either
during, or immediately after, his 2008 PCRA hearing.
Furthermore, Appellant’s [2010] pro se PCRA petition
acknowledges the [] exchanges between defense counsel,
Seip and ADA Tomsho regarding Attorney Chappelle. As a
result, we conclude[d] that Appellant’s omission as to why
he could not have discovered this information in 2008 [was]
fatal to Appellant’s [2010] PCRA petition. Therefore, [we
concluded] Appellant [] failed to comply with section
9545(b)(2), and the PCRA court lacked jurisdiction to
consider the merits of Appellant’s [claim].
Commonwealth v. Hanson, 82 A.3d 472 (Pa. Super. 2013) (unpublished
memorandum) (internal citations omitted; emphasis in original) at 11-12.
Here, again, because this aspect of Appellant’s current claim was previously
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litigated, Attorney Chappelle’s affidavit did not contain facts that were
unknown to Appellant.2
Appellant also cites various additional affidavits to support his claim.
However, two of these affidavits were not presented within sixty days of the
date that the claims could have been presented. See Appellant’s Brief at 14
and Exhibit A (affidavit of Attorney Dianne M. Dickson dated June 28, 2011);
id. at 23 and Exhibit K (affidavit of Carl George Yost dated June 20, 2015).
Moreover, Appellant does not allege when he became aware of the facts
contained within these affidavits. Finally, Appellant relies upon an affidavit
filed with his amended PCRA petition from Daniel Loikits, dated December
26, 2015. See id. at 23 and Exhibit J. The PCRA court determined that
the “Loikits affidavit does not present a ‘new’ fact [because it was] a
statement made by [Appellant, Appellant was] aware of Mr. Loikits at the
time of trial, and could have called him as a witness.” See PCRA Court
____________________________________________
2
Over the span of approximately 10 years, Appellant has had multiple
opportunities to litigate whether the Commonwealth withheld his
co-conspirator’s plea deal from him, to no avail. We remind him that our
Supreme Court has instructed, “[w]e will not address the same claim,
cloaked in a different theory of relief, in the collateral setting.”
Commonwealth v. Williams, 863 A.2d 505, 512 (Pa. 2004). For this
reason, we also reject Appellant’s suggestion that it was error for the PCRA
court to preclude him from subpoenaing Judge Davison to testify at a PCRA
hearing regarding Seip’s plea deal. We have clearly determined that Seip’s
plea agreement was placed on the record and was not contrived in secret.
Accordingly, Appellant has neither pled nor proven that Judge Davison has
additional information to provide.
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Order, 6/28/2016, at n.1. We agree. Appellant has not explained why he
could not have presented this witness sooner.
In addition, Appellant argues the PCRA court erred or abused its
discretion by denying him the opportunity to amend his PCRA petition to
include allegations of PCRA counsel’s ineffectiveness in failing to interview or
call witnesses. Appellant’s Brief at 26. Because Appellant’s PCRA petition
was untimely, the PCRA court had no jurisdiction to consider Appellant’s
ineffective assistance claims and there was no error in refusing Appellant’s
request to amend his PCRA petition.3 Based upon all of the foregoing, we
agree with the PCRA court that Appellant was not entitled to relief on his
current PCRA claims.
Finally, we remind the PCRA court that indigent pro se PCRA
petitioners are entitled to the appointment of counsel on their first PCRA
petition; however, “[o]n a second or subsequent petition, when an
unrepresented defendant satisfies the judge that the defendant is unable to
afford or otherwise procure counsel, and an evidentiary hearing is
____________________________________________
3
Furthermore, a claim of ineffective assistance of counsel does not save an
otherwise untimely PCRA petition for review on merits. See
Commonwealth v. Zeigler, 148 A.3d 849, 853–854 (Pa. Super. 2016).
We could also find this issue waived for lack of legal development on appeal.
See Commonwealth v. Rainey, 928 A.2d 215, 244-245 (Pa. 2007) (A
“boilerplate, undeveloped argument respecting the ineffectiveness of [] prior
counsel is insufficient to establish an entitlement to post-conviction relief”
where a petitioner “fails to set forth his claim pursuant to the three-prong []
test [under Commonwealth v. Pierce, 786 A.2d 203 (Pa. 2001)].”).
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required as provided in [Pa.R.Crim.P.] 908, the judge shall appoint counsel
to represent the defendant[.]” Pa.R.Crim.P. 904 (emphasis added).
Appellant is not entitled to the appointment of counsel for every subsequent,
serial pro se PCRA petition he files.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
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