J-S13004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ROBERT ALLEN BENNEY,
Appellant No. 168 WDA 2018
Appeal from the PCRA Order Entered January 17, 2018
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001104-2008
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 10, 2019
Appellant, Robert Allen Benney, appeals pro se from the post-conviction
court’s January 17, 2018 order dismissing his second petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We
affirm.
The PCRA court summarized the factual background of this case as
follows:
This case arises out of a criminal complaint filed against
[Appellant] on April 17, 2008, whereby [Appellant] was arrested
and charged with Burglary, Criminal Conspiracy, Robbery, Rape,
Involuntary Deviate Sexual Intercourse, Aggravated Assault,
Terroristic Threats, Unlawful Restraint, [and] Theft by Unlawful
Taking.
These charges were filed as a result of an incident on March 22,
2008, when [Appellant] convinced his younger, half-brother,
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* Retired Senior Judge assigned to the Superior Court.
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Kevin Partozoti, to accompany him on what [Appellant] claimed
would be a burglary of an unoccupied house of a man who owed
him money. The house was actually occupied by [the victim], an
elderly widow. [Appellant] was familiar with [the victim] and the
house from a remodeling project that he had worked on in her
home. [The victim] awoke to the sound of Mr. Partozoti[’s]
banging on the back door. When she retreated from the back
door, [Appellant] entered through the front door and accosted her.
[Appellant] forced his way into [the victim’s] home and disabled
her telephone.
[Appellant] subsequently led Mr. Partozoti into the home and
directed Mr. Partozoti to search specific rooms in the home to look
for valuables, while [Appellant] remained in the kitchen with [the
victim]. [Appellant] forced a firearm into [the victim’s] mouth,
forced her to put his penis in her mouth, and told her to “suck on
this, bitch.” [Appellant] raped [the victim] in the kitchen, forcing
her to lower her pants, pouring vinegar down her back, and
placing a plastic bag over his penis, prior to penetrating her anus
with his penis. [The victim] was later tied to a chair in the
basement of her home, where [Appellant] defiled her by pouring
spices and cat litter all over her. [Appellant] continued to abuse
and humiliate [the victim] until Mr. Partozoti yelled down that he
had found some silver. Mr. Partozoti then convinced [Appellant]
to break off his assault and the burglars finally left the home.
PCRA Court Opinion (PCO), 6/26/2018, at 1-2 (footnotes omitted).
In February of 2009, a jury convicted Appellant of all of the offenses
with which he was charged. On May 21, 2009, the trial court sentenced
Appellant to an aggregate term of 47-94 years’ imprisonment. This Court
affirmed Appellant’s judgment of sentence on June 14, 2011. See
Commonwealth v. Benney, 31 A.3d 744 (Pa. Super. 2011). Subsequently,
Appellant filed a petition for allowance of appeal with our Supreme Court,
which was denied on October 25, 2011. See Commonwealth v. Benney,
31 A.3d 290 (Pa. 2011). Thus, Appellant’s judgment of sentence became final
on January 23, 2012, when the time for filing a petition for writ of certiorari
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to the U.S. Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3) (stating
that a judgment of sentence becomes final at the conclusion of direct review
or the expiration of the time for seeking the review); U.S.Sup.Ct.R. 13
(providing that “[a] petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary review by the
state court of last resort is timely when it is filed with the Clerk within 90 days
after entry of the order denying discretionary review”).
On December 30, 2017, Appellant filed pro se his second PCRA
petition.1,2 On January 17, 2018, the PCRA court entered an order dismissing
the petition.3 Appellant filed a timely notice of appeal on January 29, 2018.
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1Review of Appellant’s first PCRA petition concluded on November 1, 2017.
See Commonwealth v. Benney, 176 A.3d 836 (Pa. 2017) (denying
Appellant’s petition for allowance of appeal).
2 Although Appellant’s petition was not docketed until January 5, 2018, it is
dated December 30, 2017. “Pursuant to the prisoner mailbox rule, we deem
a document filed on the day it is placed in the hands of prison authorities for
mailing.” Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super.
2007) (citation omitted). Because Appellant’s petition appears to lack a
certificate of service or postmark, we cannot definitively determine when he
mailed it. However, we note that December 30, 2017 was a Saturday, and
Monday, January 1, 2018, was a holiday with no mail delivery. Since it does
not affect our disposition, we will simply assume Appellant mailed his petition
on December 30, 2017.
3 The PCRA court neglected to give a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s petition, but Appellant has not complained of this
omission. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super.
2013) (“The failure to challenge the absence of a Rule 907 notice constitutes
waiver. Moreover, even if the issue is raised, where the petition is untimely,
it does not automatically warrant reversal.”) (citations omitted).
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On March 19, 2018, the PCRA court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and he timely
complied.4 Thereafter, the PCRA court issued its Rule 1925(a) opinion, stating
that Appellant’s petition was untimely and that none of the timeliness
exceptions to the PCRA applied to his claims. See PCO at 20.
On appeal, Appellant raises two issues for our review:
1. Did the PCRA court err in determining that Appellant did not
meet the after-discovered facts exception to the PCRA timeliness
requirements [for] his claim of [p]rosecutorial [m]isconduct,
where Appellant discovered evidence that the Commonwealth
presented false evidence regarding a pretrial identification?
2. Did the PCRA court err in determining [that] Appellant did not
meet the after-discovered facts exception to the PCRA timeliness
requirements [for his] claim that the Commonwealth destroyed
potentially exculpatory fingerprint evidence, where Appellant
discovered that a Commonwealth witness lied about the
analysis/results of the fingerprint evidence?
Appellant’s Brief at 4.
Initially, we note that our standard of review regarding an order denying
post-conviction relief is whether the findings of the court are “supported by
the record and free of legal error.” Commonwealth v. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010) (citations omitted). We must begin by addressing the
timeliness of Appellant’s petition because “[t]he PCRA’s time restrictions are
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4The PCRA court instructed Appellant to file his Rule 1925(b) statement no
more than 21 days from the date of its order, i.e., on or before April 9, 2018.
Appellant’s Rule 1925(b) statement was not docketed until April 12, 2018;
however, it contains a certificate of service dated April 5, 2018. Thus, we
deem Appellant’s Rule 1925(b) statement timely filed pursuant to the prisoner
mailbox rule. See Patterson, supra.
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jurisdictional in nature. … Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.” Id. (citations omitted).
With respect to timeliness, the PCRA provides, in pertinent part, the following:
(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 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. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant filed his
petition, Section 9545(b)(2) required that any petition attempting to invoke
one of these exceptions “be filed within sixty days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).5
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5 A recent amendment to Section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
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In this case, as stated above, Appellant’s judgment of sentence became
final on January 23, 2012. Therefore, his present petition, filed on December
30, 2017, is patently untimely, and Appellant must meet one of the exceptions
to the timeliness requirement set forth in Section 9545(b)(1)(i)-(iii), supra.
In Appellant’s first issue, he argues that the PCRA court erred in
determining that he did not meet the newly discovered fact exception to the
timeliness requirement “where Appellant discovered evidence that the
Commonwealth presented false evidence regarding a pretrial identification[.]”
Appellant’s Brief at 4.6 By way of background, Appellant explains that the
victim identified and distinguished between her assailants — Mr. Partozoti and
Appellant — by Mr. Partozoti’s unique voice. See id. at 13-14. Appellant
states that the Commonwealth presented evidence at trial that it had played
a voice recording for the victim, who then was able to identify Mr. Partozoti
by his unique voice as the assailant who wore a dark-colored sweatshirt during
the incident versus Appellant who wore a light-colored sweatshirt. See id. at
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6 Appellant refers to Section 9545(b)(1)(ii) as the ‘after discovered facts’
exception to the timeliness requirement. See Appellant’s Brief at 4, 13.
However, our Supreme Court has stated that “the phrase ‘newly-discovered
fact’ timeliness exception … most accurately reflects the requirements of
[S]ection 9545(b)(1)(ii), and is the least likely to be confused with the after-
discovered evidence eligibility-for-relief provision set forth in [S]ection
9543(a)(2).” Commonwealth v. Burton, 158 A.3d 618, 628 (Pa. 2017).
We therefore refer to Section 9545(b)(1)(ii) as the newly discovered fact
exception.
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13-14.7 According to Appellant, based on this identification, police charged
Appellant as the assailant in the light-colored sweatshirt who possessed the
gun and sexually assaulted the victim. See id. at 14 (citing N.T. Trial,
2/2/2009-2/5/2009, at 224-25). However, Appellant avers that he
subsequently “filed [Right to Know] requests to [the] Washington City Police
Department (WPD) and Sergeant [Christopher] Luppino[8] regarding
procedures they use in performing voice identifications. The responses
established that WPD and Sergeant Luppino have never performed these
type[s] of identification procedures.” Id. at 16 (emphasis in original; citations
omitted).9 Thus, Appellant claims that “this pretrial identification of the
codefendant was not performed and therefore not available for Sergeant
Luppino to use as asserted.” Id. at 10.10
Appellant asserts that this claim meets the newly discovered fact
exception pursuant to Section 9545(b)(1)(ii). He claims that “[e]vidence [of]
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7The victim had difficulty physically identifying her assailants because they
wore masks. See Trial Court Opinion (TCO), 4/29/2010, at 15.
8Sergeant Luppino testified that he is a sergeant for the WPD’s detective unit,
and had investigated and filed the charges in this case. N.T. Trial at 213-14.
9Specifically, Sergeant Luppino’s responses indicate that he does not perform
voice line-ups or voice show-ups. See Exhibits R and V to PCRA Petition,
1/5/2018; see also Exhibits F and G to Appellant’s Brief.
10 Appellant also discusses Right to Know requests he made with the district
attorney’s office; however, he acknowledges that he did not receive its
responses until after he filed the instant appeal. See Appellant’s Brief at 17-
18. Therefore, we do not address those responses.
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this claim was not available to Appellant or counsel based upon the lack of
accessibility/entitlement. There was not enough evidence to alert counsel to
research this claim. Therefore, the facts of this claim could not have been
learned by the exercise of due diligence.” Id. at 24. Further, he says
“[t]hrough due diligence, Appellant pro se, did not obtain evidence to support
this claim until after the first PCRA petition was pending appellate review.”
Id. (emphasis in original).
This Court has explained:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence. Due diligence
demands that the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence.
This rule is strictly enforced. Additionally, the focus of this
exception is on the newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.
Commonwealth v. Fennell, 180 A.3d 778, 782 (Pa. Super. 2018) (citation
and emphasis omitted).
Appellant’s claim does not meet the newly discovered fact exception. At
the outset, the Commonwealth played part of the recording of Mr. Partozoti’s
voice at trial, and the victim identified the voice as belonging to the individual
in the dark-colored sweatshirt. See N.T. Trial at 204-05. The recording was
of Mr. Partozoti’s interview with police. Id. at 205. Thus, Appellant’s
suggestion that such a recording does not exist befuddles us. Further, to the
extent Appellant contests the manner in which the victim was presented with
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the recording and who was involved in that process, Appellant could have
inquired about these details earlier in the exercise of due diligence, such as
during the victim’s cross-examination. We reiterate that he has known about
the recording and the victim’s resulting identification since at least the time of
trial. Thus, we conclude that Appellant’s first claim does not meet the newly
discovered fact exception.
In Appellant’s second issue, he asserts that the PCRA court erred in
dismissing his claim that “the Commonwealth destroyed potentially
exculpatory fingerprint evidence and Sergeant Luppino falsely testified
regarding this evidence….” Appellant’s Brief at 26 (unnecessary emphasis and
capitalization omitted). Appellant explains that Sergeant Luppino testified at
trial that “he took a piece of duct tape from the chair that [the victim] was
tied to[,]” and “developed a partial [finger]print off of that duct tape.” Id. at
28 (citations omitted). According to Appellant, Sergeant Luppino said he
examined the fingerprint, determined he could only identify a ‘loop pattern’
within the print, and concluded that the fingerprint could not positively identify
anyone. Id. Appellant further relays that “Sergeant Luppino testified that he
did send the duct tape with the print to the forensic state police, like the rest
of the forensic evidence collected. He did not receive any report on the
findings, but discussed the results verbally with forensic state police.” Id. at
29 (emphasis in original; citations omitted). Subsequently, though, Appellant
alleges that he filed several Right to Know requests, from which he learned
the following:
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Sergeant Luppino was not qualified to analyze fingerprints, or
determine its evidentiary value. He was an evidence technician,
in which he was only qualified to collect and submit evidence to
the proper analytical fields. This then showed he was not qualified
to have compared prints “many times.” Forensic state police
disclosed that neither Sergeant Luppino, nor his police
department, ever sent any duct tape evidence with a fingerprint
to them, in the applicable year. In addition, they disclosed that it
is contrary to forensic policies for examiners to discuss results only
verbally, and there would be reports, regardless of the results.
Id. at 30 (emphasis in original; internal citations omitted). He thereby asserts
this claim meets the newly discovered fact exception and that he could not
have ascertained this fact earlier by exercising due diligence because he “did
not suspect any falsehoods of this claim’s magnitude.” Id. at 31 (citation
omitted).
Again, Appellant’s argument does not meet the newly discovered fact
exception. At trial, the following discussion took place regarding the duct
tape:
[The Commonwealth:] Did you have any findings in the
basement?
[Sergeant Luppino:] At that time[,] I took a piece of duct tape.
We have sometimes success [sic] with duct tape because … you
take a roll of duct tape, obviously you have to touch the other side
to pull the duct tape off. So what we do is a process called sticky
side powder and we actually print the sticky side of the tape and
we have a little success on prints. The problem with this duct tape
was when the victim took it off, as we all know[,] that duct tape
tends to almost stick together. Once the tape sticks together[,]
even when you pull it off[,] the prints are ruined. So there was a
small section of duct tape that I actually packaged and took back
to the station for later process[ing].
[The Commonwealth:] Were you at all successful with that?
[Sergeant Luppino:] I got a partial print. When I say partial print,
it wasn’t a print that I felt I could talk to an expert about. It wasn’t
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good enough to send into the AFUS system.[11] The AFUS system
is a system where you send a fingerprint into. If you’ve ever[]
been arrested, then that’s how you find a match. I couldn’t find
any centers on the print. The centers are points, is how you
compare fingerprints. Normally[,] the[re] are anywhere between
[7] and 12 points. I think there was one point on this partial. So
about all you could tell from the print was the loop pattern of the
fingerprint. That’s the only thing to compare. So you couldn’t
match it up to anybody’s fingerprint. The most you can say is:
you know what, that is their loop pattern. So it ended up not
being any good.
[The Commonwealth:] You didn’t have enough to compare it?
[Sergeant Luppino:] No.
[The Commonwealth:] You’ve done this comparison on
fingerprints before?
[Sergeant Luppino:] Sure. Many times.
[The Commonwealth:] In doing this[,] did you find any other
fingerprints or useable prints in the home?
[Sergeant Luppino:] No. For one, the victim had initially told the
officers and Lieutenant [Daniel] Stanek when he reinterviewed her
that day, that the assailants were wearing gloves. You’re not
going to find fingerprints when they’re wearing gloves.
***
[Appellant’s Attorney:] Your testimony was there was a partial
print on the duct tape that was not useable?
[Sergeant Luppino:] Correct.
[Appellant’s Attorney:] Did you send it to an expert like you did
the DNA?
[Sergeant Luppino:] Yes. I did send it to an expert. I sent it to
Trooper [Robert] Liebhart, Forensic State Police.
[Appellant’s Attorney:] Did he give you a report?
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11We believe Detective Luppino meant to refer to the Automated Fingerprint
Identification System (AFIS).
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[Sergeant Luppino:] No, he did not.
[Appellant’s Attorney:] Did he discuss it with you verbally?
[Sergeant Luppino:] Yes.
[Appellant’s Attorney:] There was no blood at the scene?
[Sergeant Luppino:] No.
[Appellant’s Attorney:] And the rest of the home wasn’t dusted for
fingerprints?
[Sergeant Luppino:] It was unnecessary because of the gloves.
[Appellant’s Attorney:] The glove you found[,] was that sent to an
expert?
[Sergeant Luppino:] It was.
[Appellant’s Attorney:] And the DNA came back inconclusive?
[Sergeant Luppino:] Correct.
N.T. Trial at 215-17, 228-29.
Appellant has not demonstrated that he could not have learned of the
circumstances surrounding the examination of the duct tape earlier with the
exercise of due diligence. Fennell, 180 A.3d at 782. Sergeant Luppino
testified at trial that he was assigned to the detective unit of the WPD, he
collected and submitted evidence from the crime scene, and he determined
that the duct tape did not have a useable fingerprint. See N.T. Trial at 213-
17, 228-29. If Appellant had concerns about Sergeant Luppino’s qualifications
for making that determination, he could have inquired about his training and
certifications then. As far as whether Sergeant Luppino or the police
department sent the duct tape to the forensic state police for testing,
Appellant similarly could have investigated that assertion earlier, along with
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the forensic state police’s reporting policies. Further, with respect to
Appellant’s claim that the forensic state police disclosed that it did not receive
duct tape evidence from either Sergeant Luppino or the WPD, it is unclear to
us if the Right to Know response that Appellant relies on even contradicts
Sergeant Luppino’s testimony at trial. The Right to Know response, which was
from the Pennsylvania State Police, expressed that “there were no
submissions for forensic testing involving fingerprints on duct tape submitted
by [the WPD] and/or [Sergeant] … Luppino between January 200 [sic] thru
December 2008.” Exhibit O to Appellant’s Brief. At trial, Sergeant Luppino
did not testify that the fingerprints were submitted for forensic testing, but
instead conveyed that he sent the duct tape to the forensic state police. N.T.
Trial at 228. Thus, Appellant has not proven that Sergeant Luppino falsely
testified regarding this evidence. Based on the foregoing, we conclude that
Appellant has not met the newly discovered fact exception for this claim.
Accordingly, we affirm the PCRA court’s order dismissing Appellant’s second
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2019
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