Com. v. Disco, R.

J-S32023-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD DISCO : : Appellant : No. 3274 EDA 2017 Appeal from the PCRA Order September 15, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1206261-2001 BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J. MEMORANDUM BY NICHOLS, J.: FILED JULY 25, 2019 Appellant Richard Disco appeals pro se from the order dismissing as untimely his second petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant claims that his discovery of new facts provides an exception to the time-bar provisions of the PCRA. We affirm. We adopt the facts and procedural history set forth in the PCRA court’s decision. See PCRA Ct. Op., 1/14/19, 1-5. On May 19, 2003, a jury convicted Appellant of multiple sex offenses related to the abuse of his stepdaughter. On October 2, 2003, the court sentenced Appellant to an aggregate term of fourteen to twenty-eight years’ incarceration. On August 23, 2005, this Court affirmed Appellant’s convictions, but it vacated his judgment of sentence and remanded the case to the trial court for resentencing. Commonwealth v. Disco, 3411 EDA 2003 (Pa. Super. 2005 filed Aug. 23, 2005). On June 8, 2006, the trial court resentenced Appellant J-S32023-19 to an aggregate term of ten to twenty years of incarceration. Appellant filed an appeal to this Court, which he discontinued on February 9, 2007. On June 11, 2007, Appellant timely filed his first pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition. On February 9, 2009, the PCRA court dismissed Appellant’s petition. This Court affirmed the order on August 30, 2010, and the Pennsylvania Supreme Court denied Appellant’s petition for allowance of appeal on March 29, 2011. Commonwealth v. Disco, 606 EDA 2009 (Pa. Super. filed Aug. 30, 2010) (unpublished mem.), appeal denied, 19 A.3d 1049 (Pa. 2011). On March 25, 2015, Appellant filed the current pro se PCRA petition. Appellant subsequently submitted four additional pro se filings, which the PCRA court treated as amendments to the original petition. In his filings, Appellant argued that the PCRA court should consider his petition as timely filed due to newly discovered facts, including (1) a January 15, 2015 newspaper interview with the victim, which raised questions about her mental health and cast doubt on the credibility of her accusations; (2) provocative photos of the victim from a magazine article; and (3) statements in Appellant’s probation and parole board records about his behavior in the courtroom following his conviction.1 Appellant also argued that his sentence was illegal ____________________________________________ 1 Specifically, Appellant’s March 22, 2017 amended PCRA petition asserted that the “supervision history” document prepared by his former parole officer contained false statements, “[t]he most troubling aspect of this issue is, [Appellant] has never been interviewed by the Parole Board,” and the -2- J-S32023-19 pursuant to the United States Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013). On July 14, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing. Appellant did not file a response to the Rule 907 notice. The PCRA court dismissed the petition as untimely on September 15, 2017. Appellant timely filed a pro se notice of appeal, which was postmarked on September 29, 2017. On October 20, 2017, Appellant timely filed a court- ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The PCRA court filed a responsive Rule 1925(a) opinion, concluding that Appellant had failed to overcome the PCRA’s time-bar provisions. Appellant now raises three questions for our review: Did the Honorable PCRA Court err when it dismissed Appellant’s PCRA filed on March 25, 2015 as untimely and without merit? When Appellant would have been able to plead and prove that the alleged victim’s testimony was unreliable to support a conviction of sexual abuse, possibly as a result of her admission of being a woman of many different personalities? Did the Honorable PCRA Court err when it dismissed Appellant’s Amended PCRA Petition filed on August 13, 2015 without a hearing, and where Appellant would have been able to prove that his sentence was illegal? ____________________________________________ document at issue “may have played a big part with all the problems [Appellant] has been having with the Parole Board and the Department of Corrections.” Amended PCRA Pet., 3/22/17, at 5. Consequently, Appellant requested an evidentiary hearing and the issuance of a subpoena to the parole officer “to answer for her actions, which [have] no doubt hindered [Appellant’s] ability to be paroled.” Id. -3- J-S32023-19 Did the Honorable PCRA Court err when it dismissed Appellant’s Amended PCRA Petition as untimely[?] Where Appellant pled and would have been able to prove that a witness for the Commonwealth during his trial, Appellant’s Parole Agent, falsified a Supervision History Report and submitted it to the Pennsylvania Board of Probation and Parole to hinder his ability to be paroled? Appellant’s Brief at 2. After a review of the parties’ briefs, the record, and the PCRA court’s decision, we adopt and affirm based on the PCRA court’s opinion addressing the issues raised on appeal. See PCRA Ct. Op. at 5-11. Specifically, the PCRA court determined that Appellant mischaracterized the information in the newspaper article, which did not indicate that the victim suffered from a mental health disorder. Id. at 6-7. Appellant also failed to demonstrate how the photos refuted the victim’s testimony. Id. at 9. Further, the PCRA court concluded that Appellant’s complaint about the failure to receive an interview with the Parole Board is not cognizable under the PCRA.2 Id. at 10. Additionally, the holding in Alleyne is inapplicable, because Appellant did not receive mandatory minimum sentences.3 Id. at 8-9. Accordingly, having discerned no error of law, we affirm the order denying PCRA relief. ____________________________________________ 2 For the first time on appeal, Appellant argues that the statements in his parole records call into question all of the parole officer’s trial testimony, and Appellant should receive a new trial on this basis. See Appellant’s Brief at 34. Because Appellant failed to raise this argument before the PCRA court, it is waived. See Commonwealth v. Roney, 79 A.3d 595, 611-12 (Pa. 2013) (reiterating that an issue is waived on appeal if it is not presented to the PCRA court in the first instance). 3 We note, however, that the PCRA court’s opinion contains a typographical error in the fourth sentence of the first paragraph on page nine, where the -4- J-S32023-19 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/25/19 ____________________________________________ court should have written that a mandatory minimum sentence was not imposed at the 2006 resentencing hearing. -5- 0046_Opinion Circulated 07/10/2019 10:55 AM IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY .CRIMINAL TRIAL DIVISION COMMONWEALTH OF PENNSYLVANIA CP-51-CR-1206261-2001 CP-51-CR-1206261-2001 Comm v. Disco, Richard � =� = v. Opmion 0 :"'!'j � �.i!!i ; RICHARD DISCO, Appellant C-,'}-,f'} n 7, Q. .......... \..Q 1111111111111111111 111111 O�p·• •• (._ 8213901291 r �if: ;. OPINION OF THE COURT rn 0 Appellant, Richard Disco, appeals from this Court's denial of relief pursuar@toill1e.E.ost- o- C:,. (J) Conviction Relief Act (PCRA), 42 Pa. C.S.A. §9541 et seq. For the reasons set forth below, this Court's Order denying relief should be affirmed. This matter was tried as a jury trial before this Court between May 8, 2003 and May 19, 2003. Appellant was charged with involuntary deviate sexual intercourse and related charges concerning an incident that occurred with the complainant, his step-daughter, in or about 1992, when she was about eleven years old. He also was charged with a May 19, 2001, incident involving the same complainant, when she was twenty years old. On May 19, 2003, the jury returned a verdict of guilty of involuntary sexual intercourse, indecent assault, endangering the welfare of a child and corruption of a minor. On October 27, 2003, this Court sentenced Appellant to an aggregate prison sentence of sentence of fourteen (14) to twenty eight (28) years. 1 On August 23, 2005, the Superior Court affirmed Appellant's convictions, but vacated his judgments of sentence and remanded to this Court for resentencing. Commonwealth v. Richard Disco, 3411 EDA 2003 (Pa. Super. 2005). On June 8, 2006 this Court resentenced Appellant to an 1 Specifically, was sentenced to nine (9) to eighteen ( 18) Y!,!ars for involuntary deviate sexual intercourse; one (I) to two (2) years for indecent assault; two (2) to four ( 4) years for endangering the welfare of a child; and two (2) to four (4) years for corruption ofa minor. All sentences were to run consecutively. 1· ' aggregate term of ten to twenty years of imprisonment. Appellant filed a notice of appeal to the Superior Court, but withdrew it on February 9, 2007. The facts as found by the jury are as follows: the victim, who was twenty-two years old at the time of trial, is Appellant's stepdaughter. She testified to a pattern of sexual behavior towards her by Appellant that began when she was about eleven years old. Specifically, one night when she was about eleven, Appellant came home and took her to look for her mother and sister, who, apparently were out looking for Appellant. As the two were driving, Appellant stated that he wanted to teach her how to kiss. She persistently declined, and Appellant took her back home. (N.T. 5/12/03, 57-68). When they arrived home, the victim testified that she took off her favorite purple winter coat. Appellant then grabbed her and threw her onto the couch, pushing her down into a couch with her head in a pillow. He got on top of her and pulled down her pants. He then began licking inside her vagina and buttocks. Every time she tried to get up, Appellant held her head down. This continued on for about 20 minutes. After he finished, Appellant laid on top of her until he fell asleep. (N.T. 5/12/03, 65-70). The complainant then pushed him off her, and ran up to her room. She cried all night. The following morning, Appellant approached her to discuss what happened last night. As she was getting ready to leave for school, he stated, "No one will believe you, and if they do, I'll hurt you, and you'll break a family up." He also told the complainant that "I'll buy you whatever you want, don't tell your mother, don't tell nobody. It was an accident. It will never happen again." (N.T. 5/12/03, 70-72). She did not tell anyone about what Appellant did to her the previous night because she was scared of what he might do if she told. Yet this incident was not a one-time occurrence. The 2 victim testified to other instances when she would be taking a shower, and Appellant would look in through the shower curtain. However, she continued not to tell anyone because she didn't want her brother to grow up without a father.2 (N.T. 5/12/03, 71- 76). On May 19, 2001, the victim, who at that time was twenty years old, was sleeping on the sofa in their home. She awoke and found Appellant grinding on top of her body with his body. She testified that his penis, through his clothes, was grinding on the victim's vagina. She kicked him, pushed him away and ran into her room. She told her mother and they called the police. Appellant ran out of the house before the police arrived and called the house numerous times stating: "How dare you call the cops; I was trying to wake you up." (N.T. 5/12/03 80-91). As a result of this incident, the complainant testified that she has had nightmares, has been unable to sleep, is afraid of the dark, and is scared to walk down the street at night. Also, she has received counseling because of this incident. (N.T. 5/12/03, 113-114). The complainant's sister, testified that she was awakened in the early morning of May 19, 2001 to find her sister in her bed, rocking back and forth, crying and holding herself. When she asked her sister what was wrong, the complainant said, "Richie touched me." Together, they told their mother3 and the police were called. (N.T. 5/13/03, 41-48.) Police Officer Graber arrived as a result of the call. While Officer Graber was talking to the complainant, Appellant kept calling the house demanding to speak to the complainant. Officer Graber picked up the telephone numerous times and Appellant kept hanging up. (N.T. 5113/03, 176-177). 2 The victim has no blood relationship with Appellant. Her younger brother is the son of her mother and of Appellant. 3 Her mother also testified, among other things, to the victim's prompt complaint concerning this incident. (N.T. 5/13/03, 72-73) 3 After this 200 l incident, the Appellant wrote several letters4 and made dozens of phone calls to the victim's mother, in an attempt to convince and/or threaten the victim and her not to cooperate with any prosecution. In one letter, he wrote that he did not want the victim to come to the hearing so that the case would be thrown out. In another letter addressed to the complainant's mother, he wanted the victim to state that she