J-S49004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY J. STEINBURGER :
:
Appellant : No. 222 MDA 2018
Appeal from the Order Entered January 12, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004040-2002
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 23, 2018
Appellant, Troy J. Steinburger, appeals from the order denying his sixth
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
Following a trial conducted November 5-7, 2003, a jury
found [Appellant] guilty of Murder in the First Degree,1 Criminal
Conspiracy[,]2 and Possession of Instrument of Crime3. The Court
imposed sentence as follows:
Count 1 - Murder in the First Degree-Life
imprisonment without parole; Restitution.
Count 2- Criminal Conspiracy: Not less than 10 nor
more than 20 years imprisonment, concurrent with
Count 1 .
Count 3- Possession of Instrument of Crime: Not less
than 1 year nor more than 2 years imprisonment,
Count 3- Possession of Instrument of Crime:
concurrent with Count 1.
____________________________________
* Former Justice specially assigned to the Superior Court.
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1 18 PA.C.S. § 2502(a)
2 18 PA.C.S. § 903
3 18 PA.C.S. § 907(b)
[Appellant] appealed. The Superior Court affirmed the
judgment of sentence on August 9, 2004. [Appellant] did not
request allowance of appeal to the Pennsylvania Supreme Court.
[Appellant] then filed a series of requests for relief under
the Post Conviction Relief Act. On October 28, 2004, [Appellant]
filed his first PCRA request, a pro se petition. The Court appointed
PCRA counsel. On January 12, 2005, we granted PCRA counsel’s
Motion to Withdraw and apprised [Appellant] of our intent to
dismiss the Petition pursuant to Pennsylvania Rule of Criminal
Procedure 907(1) (“Rule 907”). We dismissed the first PCRA
Petition by Final Order filed February 23, 2005. [Appellant] did
not appeal.
On June 27, 2005, [Appellant] filed a second PCRA Petition,
which, following notice pursuant to Rule 907, we dismissed by
Final Order filed September 12, 2005. [Appellant] did not appeal.
On July 21, 2006, [Appellant] filed a third PCRA Petition
which, following notice pursuant to Rule 907, we dismissed by
Final Order filed October 5, 2006. [Appellant] filed a timely
appeal. The Superior Court dismissed [Appellant’s] appeal for
failure to file a docketing statement as required by Pennsylvania
Rule of Appellate Procedure 3517.
On October 4, 2007, [Appellant] filed a fourth PCRA Petition.
Following notice pursuant to Rule 907, [Appellant] filed objections.
We dismissed the fourth PCRA Petition by Final Order filed
November 15, 2007. On December 4, 2007, we filed an Amended
Order. [Appellant] appealed. By Memorandum Opinion and Order
filed July 18, 2008, the Superior Court affirmed the denial of relief.
On January 15, 2013, [Appellant] filed a fifth PCRA Petition.
By Order of February 12, 2013, we provided notice of intent to
dismiss pursuant to Rule 907. On February 21, 2013, [Appellant]
filed pro se correspondence requesting permission to withdraw his
fifth PCRA Petition. By Order filed March 4, 2013, we granted
[Appellant’s] request to withdraw the fifth PCRA Petition.
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On July 24, 2017, [Appellant] filed a Motion to Open and
Vacate Order/Sentence Pursuant to Pa.C.S.A. § 5505,[1] which we
construe as [Appellant’s] sixth PCRA Petition.5
5 See, Commonwealth v. Johnson, 803 A. 2d 1291
(The PCRA provides the sole means for obtaining
collateral review).
PCRA Court Opinion, 12/6/17, at 1-3 (footnote omitted).
On December 6, 2017, the PCRA court issued notice of its intent to
dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed a timely response. The
PCRA court denied Appellant’s petition on January 12, 2018. This timely
appeal followed. On February 7, 2018, the PCRA court issued an order
directing Appellant to file, within twenty-one days, a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(a). On March 7,
2018, the PCRA court received Appellant’s Pa.R.A.P. 1925(b) concise
statement (dated February 26, 2018) and the PCRA court filed its opinion
pursuant to Pa.R.A.P. 1925(a).
Appellant presents the following issues for our review:
1. DID THE TRIAL COURT ERROR BY APPLYING THE P.C.R.A.
TIME-BAR STATUTE WHEN STATUTORY CONSTRUCTION OF THE
P.C.R.A. READS FRAUD IS NOT APPLICABLE UNDER 42 Pa.C.S.A.
§ 9541-9546?
____________________________________________
1 42 Pa.C.S. § 5505 (Modification of orders) provides: “Except as otherwise
provided or prescribed by law, a court upon notice to the parties may modify
or rescind any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been taken
or allowed.”
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2. DID THE TRIAL COURT DENY APPELLANT HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, WHEN IT
ALLOWED THE COMMONWEATH TO COMMIT FRAUD?
3. DID THE COMMONWEALTH COMMIT A NAPUE AND MASSIAH
VIOLATION BY USING KNOWN PERJURED TESTIMONY VIOLATING
APPELLANT’S DUE PROCESS RIGHTS TO A FAIR TRIAL AND HIS
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNTIED
STATES CONSTITUTION?
4. WHETHER APPELLANT IS ACTUALLY AND FACTUALLY
INNOCENT BASED ON, “ON THE RECORD FRAUD” THAT WAS
PERPETRATED BY THE COMMONWEALTH?
5. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN THE
COURT DENIED APPELLANT HIS TRANSCRIPTS “OPENING
STATEMENT?”
Appellant’s Brief at 4 (verbatim) (capitalization in original).
We begin by determining whether Appellant’s “Motion To Open And
Vacate Order/Sentence Pursuant to Pa.C.S.A. § 5505” is properly considered
a PCRA petition. We reject Appellant’s attempt to circumvent the PCRA by
claiming his motion was a request for modification of an order under 42
Pa.C.S. § 5505. Indeed, the very language of the rule itself defeats
Appellant’s argument. See n.1 supra. (setting forth entire context of Section
5505). An aggrieved party may seek modification or rescission of an order
within thirty days of entry of the order if no appeal has been filed.
Here, not only is Appellant’s modification request patently untimely, it was
filed in relation to a judgment of sentence from which Appellant sought a direct
appeal in 2003. Accordingly, Appellant cannot seek relief pursuant to 42
Pa.C.S. § 5505.
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Furthermore, we observe that the scope of the PCRA is explicitly defined
as follows:
This subchapter provides for an action by which persons convicted
of crimes they did not commit and persons serving illegal
sentences may obtain collateral relief. The action established
in this subchapter shall be the sole means of obtaining
collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist
when this subchapter takes effect, including habeas corpus
and coram nobis. This subchapter is not intended to limit the
availability of remedies in the trial court or on direct appeal from
the judgment of sentence, to provide a means for raising issues
waived in prior proceedings or to provide relief from collateral
consequences of a criminal conviction.
42 Pa.C.S. § 9542 (emphasis added).
The plain language of the statute above demonstrates that the General
Assembly intended that claims that could be brought under the PCRA must
be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235
(Pa. 2001) (emphasis in original). Where a defendant’s claims “are cognizable
under the PCRA, the common law and statutory remedies now subsumed by
the PCRA are not separately available to the defendant.” Id. (citations
omitted). By its own language, and by judicial decisions interpreting such
language, the PCRA provides the sole means for obtaining state collateral
relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (citations
omitted). Thus, it is well settled that any collateral petition raising issues with
respect to remedies offered under the PCRA will be considered a PCRA petition.
Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001).
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The question then is whether the multiple claims at issue here, i.e.,
Appellant’s allegations that his constitutional rights to a fair trial were violated
such that the truth-determining process was undermined, are claims that were
available to him under the PCRA. The relevant portion of the PCRA provides
as follows:
(a) General rule.--To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
* * *
(2) That the conviction or sentence resulted from
one or more of the following:
* * *
(i) A violation of the constitution of this
Commonwealth or the Constitution or
laws of the United States which, in the
circumstances of the particular case, so
undermined the truth-determining
process that no reliable adjudication of
guilt or innocence could have taken place.
42 Pa.C.S. § 9543(a)(2)(i). Thus, the statute in this matter clearly provides
that claims raising constitutional violations are cognizable under the PCRA. 42
Pa.C.S. § 9543(a)(2)(i). Hence, because Appellant’s claim is cognizable under
the PCRA regardless of the caption of the petition, the PCRA court had no
authority to entertain the claim except under the strictures of the PCRA.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
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2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment
of sentence “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.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651
(Pa. Super. 2013).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
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(iii), is met.2 A petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented. 42 Pa.C.S.
§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-
year filing deadline, “the petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time frame” under
section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.
Super. 2001).
Our review of the record reflects that the trial court imposed Appellant’s
judgment of sentence on November 7, 2003, and this Court affirmed the
judgment of sentence on August 9, 2004. Appellant did not seek review in
the Pennsylvania Supreme Court. Accordingly, Appellant’s judgment of
sentence became final on September 8, 2004, thirty days after this Court
____________________________________________
2 The exceptions to the timeliness requirement are:
(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. § 9545(b)(1)(i), (ii), and (iii).
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affirmed Appellant’s judgment of sentence, and the time for filing a petition
for allowance of appeal with the Pennsylvania Supreme Court expired. 42
Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Therefore, Appellant had until
September 8, 2005, to file a timely PCRA petition. See 42 Pa.C.S. §
9545(b)(3) (stating that, for purposes of calculating the timeliness of a
petition, 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”). Appellant filed the instant PCRA petition on July 24, 2017, which
was over twelve years after his judgment of sentence became final.
Consequently, the instant PCRA petition is patently untimely.
As previously stated, if a petitioner does not file a timely PCRA petition,
his petition nevertheless may be received under any of the three limited
exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his
petition within sixty days of the date that the exception could be asserted. 42
Pa.C.S. § 9545(b)(2).
Our review of the certified record reflects that Appellant did not
specifically raise the issue of timeliness and did not specifically plead any
exception to the timeliness requirement in his filings with the PCRA court.
Even if Appellant’s allegation that the Commonwealth committed fraud upon
the trial court is construed as an attempt to invoke the exception that the facts
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upon which his claim is predicated were unknown to Appellant, we observe
that Appellant has failed to present evidence to establish that this PCRA
petition was presented within the applicable sixty-day time frame under 42
Pa.C.S. § 9545(b)(2). Thus, Appellant has not carried his burden to plead and
prove applicability of one of the exceptions to the timeliness requirement.
Hence, the PCRA court did not commit any error in dismissing Appellant’s
petition as untimely.3
In summary, the PCRA petition was untimely and no exceptions apply.
Therefore, the PCRA court lacked jurisdiction to address any claims presented.
See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002)
(holding that PCRA court lacks jurisdiction to hear an untimely petition).
Likewise, we lack the authority to address the merits of any substantive claims
raised in the PCRA petition. See Commonwealth v. Bennett, 930 A.2d
____________________________________________
3 We note that after this matter was submitted to this panel for consideration,
Appellant filed with this Court a letter dated August 9, 2018, which we deemed
to be an application for post-submission relief pursuant to Pa.R.A.P. 2501(b).
Within his filing, he asks that we apply to his case the reasoning set forth in
Reeves v. SCI, 897 F.3d 154 (3d Cir. 2018), in which the court addressed
the “actual innocence exception” to the time bar for federal habeas corpus
petitions. Essentially, Appellant seeks to bolster his original arguments
pertaining to the PCRA court’s handling of the timeliness of his PCRA petition.
Generally, we will accept an application for post-submission communication
when there has been a change in authority relied upon in the brief of the party.
Pa.R.A.P. 2501(b). No such change occurred herein. Hence, we deny
Appellant’s application. Furthermore, while Reeves may represent a
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. Accordingly, the ruling in Reeves fails to
provide Appellant an exception to the time bar of the PCRA.
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1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or
competency to adjudicate a controversy.”).
Application for post-submission relief denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2018
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