J-S72042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
ANTHONY P. PAGLIACCETTI, :
: No. 3410 EDA 2016
Appellant
Appeal from the PCRA Order October 6, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0209511-2003
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 14, 2017
Appellant Anthony Pagliaccetti appeals pro se from the Order entered in
the Court of Common Pleas of Philadelphia County on October 6, 2016,
denying as untimely his second petition filed pursuant to the Post Conviction
Relief Act (PCRA).1 We affirm.
A prior panel of this Court set forth the relevant facts and procedural
history herein as follows:
On Christmas Eve 2002, after an argument concerning a
stolen cell phone, an intoxicated Appellant shot and killed a
lifelong family friend, Jason McFarland, with a .32 caliber revolver.
The shooting occurred in the parking lot of a tavern where
Appellant and his girlfriend, and the victim and his cousin and
uncle, had gathered to celebrate the holiday season. Appellant
immediately fled the scene after the shooting, pulling off and
discarding his sweatshirt, and hiding the handgun in the wheel
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1 42 Pa.C.S.A. §§ 9541-9546.
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* Former Justice specially assigned to the Superior Court.
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well of a car. The victim’s cousin, Michael Piazza, caught up with
Appellant and tackled him to the ground. Piazza then forced
Appellant to return to the tavern where Appellant was arrested by
responding police officers.
Appellant was charged with murder and related crimes. A
jury found him guilty of third-degree murder, possessing an
instrument of crime, and two counts of violating the Uniform
Firearms Act. Appellant was sentenced, on June 10, 2004, to 15-
30 years’ imprisonment. An appeal was filed, judgment of
sentence was affirmed on May 25, 2005, and a petition for
allowance of appeal was denied on September 21, 2005.
Commonwealth v. Pagliaccetti, 880 A.2d 10 (Pa.Super. 2005)
(unpublished memorandum), appeal denied, 885 A.2d 41 (Pa.
2005).
On September 18, 2006, Appellant filed a counseled PCRA
petition alleging ineffectiveness. Certified Record (C.R.) at D1.
On April 8, 2008, the court filed its Rule 907 order providing notice
of its intention to dismiss the petition without a hearing. An
amended notice of intent to dismiss was filed on April 25, 2008.
On September 9, 2008, the PCRA court denied relief. Appellant
failed to file a timely appeal from that order, but did file a petition
asking that his appeal rights be reinstated. By order entered
December 22, 2008, the PCRA court, with the Commonwealth’s
approval, granted Appellant leave to file an appeal nunc pro tunc.
On January 12, 2009, Appellant filed a notice of appeal. . .
Commonwealth v. Pagliaccetti, No. 197 EDA 2009, unpublished
memorandum at 1-2 (Pa.Super. filed March 12, 2010). The Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal on October
14, 2010. See Commonwealth v. Pagliaccetti, 8 A.3d 898 (Pa. 2010)
(Table).
On October 31, 2014, Appellant filed the instant PCRA petition, his
second, and filed Amended Petitions on January 22, 2016, and on August 10,
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2016.2 Therein, Appellant raised general claims of PCRA counsel’s
ineffectiveness in litigating his first PCRA petition and his federal action
requesting habeas corpus relief.
On March 23, 2016, the PCRA court provided notice of its intent to
dismiss Appellant’s PCRA petition without a hearing. On May 13, 2016, the
court granted Appellant’s Motion for Extension of Time and provided Appellant
with an additional twenty (20) days in which to file a response; Appellant filed
the same on June 7, 2016. On October 6, 2016, upon consideration of
Appellant’s second PCRA petition and all supplemental petitions, as well as his
Response to the Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907, the
PCRA court dismissed Appellant’s second PCRA petition as untimely.
Appellant filed a timely notice of appeal on October 24, 2016. The trial
court did not direct Appellant to file a concise statement of the matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did not
do so. The trial court filed its Rule 1925(a) Opinion on December 8, 2016.
In his brief, Appellant presents the following “Statement of the
Questions Involved”:
1. Did the PCRA court abuse is discretion in failing to recognize
that [Appellant’s] claims of PCRA counsel acting under an
active conflict of interest; actual innocence; and miscarriage
of justice are significantly cognizable to warrant entertaining
a second or subsequent PCRA petition.
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2Appellant did not seek leave to amend his PCRA petition prior to filing the
subsequent petitions as is required by Pa.R.Crim.P. 905(A).
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2. Did [Appellant] suffer a miscarriage of justice that no
civilized society can tolerate?
3. Alternatively, this Court should determine whether
supplemental counsel should be appointed because of the
below conflict of interest?
4. The conflict of interest and ineffective assistance of post-
conviction counsel excuse any default?
Brief for Appellant at ix (unnecessary capitalization omitted).3
At the outset, we consider whether this appeal is properly before us.
The question of whether a petition is timely raises a question of law, and where
a petitioner raises questions of law, our standard of review is de novo and our
scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121
(Pa.Super. 2014).
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3 Appellant’s appellate brief, which spans forty pages, fails to conform to the
rules of appellate procedure in numerous ways. See Pa. R.A.P. 2101(a). For
example, the argument portion does not correspond with each question raised
and generally lacks cohesion and clarity. Rule 2119 requires that the
“argument shall be divided into as many parts as there are questions to be
argued” and include “such discussion and citation of authorities as are deemed
pertinent.” Id. at 2119. For this reason, we could find his issues waived for
failure to comply with our briefing requirements. “Where an appellate brief
fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived.” Umbelina v. Adams, 34 A.3d 151, 161 (Pa.Super.
2011), appeal denied, 47 A.3d 848 (Pa. 2012) (quoting In re W.H., 25 A.3d
330, 339 (Pa.Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011)); see also
Pa.R.A.P. 2119(a).
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All PCRA petitions must be filed within one year of the date upon which
the judgment of sentence became final, unless one of the statutory exceptions
set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the
burden to plead and prove an applicable statutory exception. If the petition
is untimely and the petitioner has not pled and proven an exception, the
petition must be dismissed without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the petition. Commonwealth
v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013).
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the
date the judgment of sentence becomes final, unless the
petition alleges and the petitioner proves that:
(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.A. § 9545(b)(1)(i)-(iii). In addition, any petition attempting to
invoke one of these exceptions “shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
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As noted previously, Appellant was sentenced on June 10, 2004, and
this Court affirmed the judgment of sentence on May 25, 2005. The
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on September 21, 2005, and Appellant did not file a writ of certiorari
in the United States Supreme Court. Therefore, Appellant’s judgment of
sentence became final ninety days thereafter on December 21, 2005. See 42
Pa.C.S.A. § 9545(b)(3) (stating, “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[ ]”); U.S.Sup.Ct.R.13.1.
Since Appellant filed the instant petition on October 31, 2014, it is
patently untimely and the burden fell upon Appellant to plead and prove that
one of the enumerated exceptions to the one-year time-bar is applicable. See
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286
(Pa.Super. 2008) (to invoke a statutory exception to the PCRA time-bar, a
petitioner must properly plead and prove all required elements of the
exception). In addition, an Appellant must comply with 42 Pa.C.S.A. §
9545(b)(2) (stating “Any petition invoking an exception provided in paragraph
(1) shall be filed within 60 days of the date the claim could have been
presented”).
Appellant did not acknowledge the untimeliness of his PCRA petition
either in the petition he initially filed on October 31, 2014, or in the subsequent
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amendments thereto, nor did he specifically invoke one of the aforementioned
exceptions to the PCRA time-bar. In his appellate brief, Appellant generally
maintains that his “first PCRA petition was fatally defective (ab initio) because
of the denial of competent counsel to represent petitioner; based upon
counsel’s active conflict of interest that later came to light.” Brief for Appellant
at 4-5. Appellant fails to detail counsel’s alleged conflict of interest or explain
how he is entitled to PCRA relief in light of the same. Moreover, “[i]t is well
settled that allegations of ineffective assistance of counsel will not overcome
the jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 584 Pa. 576, 588, 886 A.2d 1120, 1127 (2005). Thus, his initial
claim is meritless.
Appellant next alleges he suffered an “intolerable” miscarriage of
justice which violated his state and federal due process rights. Brief for
Appellant at 7. In support of this averment, Appellant states the Third Circuit
granted him a “certificate of appealability,” claims trial counsel was
“conflicted,” maintains the trial court had been a former prosecutor whose
daughter was an assistant district attorney, and contends other jurists had
connections with the Fireside Tavern, the scene of the murder. Id. at 8-10.
Initially, we note that in support of its decision to dismiss Appellant’s
writ of habeas corpus petition, the Federal District Court adopted the report
and recommendation of the United States Magistrate Judge and held that an
erroneous jury instruction regarding self-defense was harmless. Pagliaccetti
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v. Kerestes, 948 F.2d 452 (3rd Cir. 2013), aff'd, 581 Fed. Appx. 134 (3rd Cir.
2014), cert denied, 135 S.Ct. 1152 (2015). Also, a federal court’s review of
one’s petition for writ of habeas corpus does not preclude him or her from
filing a timely petition pursuant to the PCRA. Commonwealth v. Jones, 617
Pa. 587, 54 A.3d 14, 18 (2012). Appellant does not aver his remaining
allegations were unknown to him at the time of trial or the filing of his initial
PCRA; thus, they are waived. See 42 Pa.C.S.A. § 9544(b) (providing that,
under the PCRA, “an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state post[-]conviction proceeding.”); see also Commonwealth v.
Rush, 576 Pa. 3, 18, 838 A.2d 651, 660 (2003) (stating that “[a]t the
collateral review stage, allegations of trial court error are waived, since they
were not raised at the first opportunity for review.”).
Appellant further asserts he is entitled to have new counsel appointed
to represent him in the instant PCRA. In doing so, he purports to invoke the
“newly recognized constitutional right” exception to the PCRA time-bar by
citing to a number of United States Supreme Court cases pertaining to federal
habeas law which he alleges announced new constitutional rights to be applied
retroactively. Appellant focuses his argument on the United States Supreme
Court’s decision in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012),
wherein the Court held that:
[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding,
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a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.
Id. at 17, 132 S.Ct. at 1320.
However, this Court has held that the United States Supreme Court's
decision in Martinez has no effect on a petitioner’s ability to assert such
claims in Pennsylvania state courts under the PCRA, and, therefore it provides
no support for an exception to the PCRA's timeliness requirements. 42
Pa.C.S.A. § 9545(b). See Commonwealth v. Saunders, 60 A.3d 162, 165
(Pa.Super. 2013) (“While Martinez represents a significant development in
federal habeas corpus law, it is of no moment with respect to the way
Pennsylvania courts apply the plain language of the time bar set forth in
section 9545(b)(1) of the PCRA.”). Even if Martinez had created a new
constitutional right to be applied retroactively, the Supreme Court decided
that case on March 20, 2012, although Appellant did not file the instant
petition until over two years later, well beyond the sixty-day time period
necessary to invoke the exception under 42 Pa.C.S.A. §§ 9545(b)(1)(iii).
Moreover, although a first-time PCRA petitioner is entitled to appointment of
counsel, there is no such entitlement on second and subsequent petitions.
Commonwealth v. Priovolos, 746 A.2d 621, 624 (Pa.Super. 2000).
For the foregoing reasons, Appellant's second PCRA petition is untimely,
and he has failed to plead and prove an exception to the statutory time-bar.
The PCRA court properly dismissed it, and we discern no other basis on which
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to disturb the PCRA court's dismissal of Appellant's petition as untimely.
Accordingly, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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