J-S57013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM PATRICK MIDDLETON :
:
Appellant : No. 643 MDA 2019
Appeal from the PCRA Order Entered April 9, 2019
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000214-1977
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 26, 2019
William Patrick Middleton appeals from the April 9, 2019 order
dismissing his third petition for collateral relief under the Post-Conviction
Relief Act (“PCRA”) as untimely. We affirm.
The PCRA court has provided a thorough summary of the factual and
procedural background of this case:
On September 29, 1976, [Appellant] escaped from the U.S.
Penitentiary in Lewisburg, Pennsylvania. After his escape, his
female companion, [Frances Hunt (“Hunt”)], picked him up at
some railroad tracks near the Penitentiary and drove him to a
secluded field in Montoursville, Lycoming County, Pennsylvania.
The next day, September 30, 1976, [Appellant] kidnapped and
brutally beat and strangled Wanda Marie Geho, a young woman
who had left her place of employment to pick up lunch for herself
and a coworker at a shopping center in Montoursville. [Appellant]
took Geho’s purse and her automobile, leaving Geho in the same
field where he had been left by Hunt the previous day. When Hunt
returned to check on [Appellant] at around 3:30 p.m. that day,
she found Geho laying in some beaten-down weeds. Thinking that
Geho was dead, Hunt drove to a nearby gas station to notify the
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authorities. When Hunt returned with the police, it was found that
Geho was still alive; however, she died of her injuries at 5:00 p.m.
that afternoon after being transported to a hospital. After leaving
the Montoursville area, [Appellant] drove Geho’s vehicle to
Philadelphia where he committed an armed robbery of a Howard
Johnson’s Motor Lodge.
[Appellant] was arrested in October 1976 and charged with
aggravated assault, homicide, robbery, kidnapping, and theft in
Lycoming County. The matter was transferred to Lebanon County
upon [Appellant’s] request for a change of venue. A jury trial was
commenced in Lebanon County with jury selection occurring on
May 23 and 24, 1977. The Commonwealth proceeded with its
case on May 25, 1977. Hunt was the first witness called to testify
by the Commonwealth on May 25, 1977. The [trial court]
recessed at the completion of Hunt’s direct examination.
When the [trial court] reconvened, an in[-]camera proceeding was
conducted with only counsel, [Appellant], and court personnel
present. At that time, the Commonwealth notified the [trial court]
that a plea agreement had been reached and that [Appellant]
would plead guilty to several offenses. In the presence of defense
counsel and [Appellant], the Commonwealth attorney informed
the [trial court] that the plea bargain included [Appellant]
pleading guilty to second-degree murder, robbery, and kidnapping
and that the Commonwealth would take no position as to whether
the sentence would be concurrent or consecutive to any sentence
[Appellant] was serving at that time. In addition, the
Commonwealth would contact the Federal Bureau of Prisons,
which had already been done, so that [Appellant’s] existing
federal sentence would be served in a Pennsylvania state
correctional institution. In addition, the Commonwealth attorney
represented:
[T]he other charges in the Bills of Information, upon
acceptance of the plea and sentence thereon, will be nol-
prossed by myself upon motion, one of the bas[es] being
that this is part of a plea agreement and the other basis
technically that they would be included in defenses to which
he would be pleading guilty.
N.T., 5/25/77, at 722; Exhibit “A” to PCRA Petition at p.4
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The Commonwealth made arrangements with the federal
authorities for [Appellant] to serve the remainder of his federal
sentence in a state correctional institution. The Commonwealth
also contacted the Philadelphia District Attorney to request that
[Appellant] not be prosecuted for the robbery [Appellant] had
committed in that jurisdiction after he had absconded with Geho’s
vehicle. After the Court conducted a guilty plea colloquy,
[Appellant] pled guilty to second-degree murder, robbery and
kidnapping.
On May 26, 1977, [Appellant] was sentenced to life imprisonment
with no stated minimum for parole eligibility, with concurrent
sentences of ten to twenty years each for the robbery and
kidnapping convictions. A federal escape charge had previously
been lodged against [Appellant] but had been dismissed without
prejudice prior to [Appellant] entering his plea in this action. After
[Appellant] was sentenced in this action, the federal government
prosecuted him for his escape from federal prison and [Appellant]
pled guilty to that charge. [Appellant] represents that a federal
detainer on that charge is still in existence.
PCRA Court Opinion, 6/20/19, at 1-4 (excessive capitalization omitted).
Appellant did not file a direct appeal. Appellant filed his first PCRA
petition on July 20, 1981, arguing that his guilty plea colloquy was fatally
flawed because the trial court did not “advise him on the record that the jury’s
verdict had to be unanimous and of his right to withdraw his guilty plea.”
Commonwealth v. Middleton, 476 A.2d 932, 933 (Pa.Super. 1984).
Appellant also argued that his trial counsel was ineffective for failing to
successfully challenge these alleged oversights. The trial court denied
Appellant’s first PCRA petition, and this Court ultimately filed an opinion
affirming that denial on the grounds that Appellant’s claims lacked merit under
the version of the Pennsylvania Rules of Criminal Procedure that were
operative at the time of Appellant’s guilty plea. Id. at 936-37.
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Appellant filed his second PCRA petition on March 21, 1994. In relevant
part, Appellant argued that: (1) the Commonwealth had violated his plea
agreement by failing to nolle pros the escape charge lodged by federal
authorities; (2) that the trial court had inadequately conducted Appellant’s
guilty plea colloquy under then-Pa.R.Crim.P. 319(b)(2);1 and (3) that both
trial and appellate counsel were ineffective under various theories related to
his guilty plea. On November 7, 1994, the PCRA court denied Appellant’s
second PCRA petition after concluding that all of Appellant’s claims were either
previously litigated or waived. Appellant appealed to this Court. In an
unpublished memorandum dated December 21, 1995, this Court affirmed the
PCRA court’s denial of Appellant’s second PCRA petition after concluding that
Appellant had not made a prima facie demonstration of his right to relief. See
Commonwealth v. Middleton, 674 A.2d 317 (Pa.Super. 1995) (unpublished
memorandum). Appellant filed a petition for allowance of appeal with our
Supreme Court, which ultimately denied it. See Commonwealth v.
Middleton, 675 A.2d 1245 (Pa. 1996).
On February 6, 2019, Appellant filed the instant PCRA petition, his third.
In this petition, Appellant again raises claims related to his plea agreement,
arguing that it was both unlawfully induced and breached by the
Commonwealth. Appellant also asserts that all of his prior counsel were
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1 This Rule has since been renumbered at Pa.R.Crim.P. 590(B)(2) (“The judge
shall conduct a separate inquiry of the defendant on the record to determine
whether the defendant understands and voluntarily accepts the terms of the
plea agreement on which the guilty plea of plea of nolo contendere is based.”).
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ineffective for allegedly failing to raise these issues, and asserts his innocence.
On February 15, 2019, the PCRA court determined that Appellant’s third
petition was untimely as pleaded, and provided Appellant with notice of its
intent to dismiss without a hearing. Appellant filed a response arguing that
his petition satisfied the PCRA’s timeliness requirements by allegedly
producing newly discovered facts in the form of a December 13, 2018 affidavit
from Appellant’s trial counsel, Peter T. Campana, Esq. The PCRA court
dismissed Appellant’s petition without a hearing on April 3, 2019. Appellant
filed a timely notice of appeal to this Court. Both Appellant and the PCRA
court have timely complied with the requirements of Pa.R.A.P. 1925 by,
respectively, filing a concise statement under Rule 1925(b) and an opinion
under Rule 1925(a).
Our standard and scope of review in this context is well-articulated
under existing Pennsylvania precedent: “On appeal from the denial of PCRA
relief, our standard and scope of review is limited to determining whether the
PCRA court’s findings are supported by the record and without legal error.”
Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013). We must view
the evidence of record in the light most favorable to the prevailing party at
the PCRA court level. See Commonwealth v. Koehler, 36 A.3d 121, 131
(Pa. 2012). However, we apply a de novo standard of review with specific
regard to the PCRA court’s legal conclusions. Commonwealth v. Spotz, 18
A.3d 244, 259 (Pa. 2011).
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Before we may address the underlying merits of Appellant’s third PCRA
petition, we must assess whether the petition is timely, or subject to one of
the exceptions to the timeliness requirements under the PCRA. See
Commonwealth v. Walters, 135 A.3d 589, 591-92 (Pa.Super. 2016) (“[T]he
PCRA’s timeliness requirements are jurisdictional in nature and must be
strictly construed; courts may not address the merits of the issues raised in a
petition if it is not timely filed.”).
In pertinent part, the PCRA provides as following regarding timeliness:
(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:
....
(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
....
(3) For purposes of this subchapter, 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.
42 Pa.C.S. § 9545(b). In reviewing these statutory provisions, it is also
important to note that “there is no generalized equitable exception to the
jurisdictional one-year time bar pertaining to post-conviction petitions.”
Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).
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Instantly, Appellant’s judgment of sentence was entered on May 26,
1977, and Appellant did not file a direct appeal. Therefore, Appellant’s
judgment of sentence became final for the purposes of PCRA timeliness on
June 25, 1977, when Appellant’s time in which to file a direct appeal to this
Court expired. See Pa.R.A.P. 903(a) (appeals must be taken within 30 days
from the entry of the appealable order); see also 42 Pa.C.S. § 9545(b)(3).
Thus, Appellant’s third PCRA petition is untimely by more than forty years.
Appellant claims that the exception at 42 Pa.C.S. § 9545(b)(1)(ii)
respecting newly discovered material facts should apply in this case due to the
affidavit submitted by Attorney Campana. In order to successfully invoke this
exception to timeliness under the PCRA, Appellant must plead and prove that:
“(1) the facts upon which the claim [is] predicated were unknown and (2)
could not have been ascertained by the exercise of due diligence.”
Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (emphasis in
original). Due diligence in this context “requires reasonable efforts by a
petitioner, based on the particular circumstances, to uncover facts that may
support a claim or collateral relief,” but does not call for “perfect vigilance [or]
punctilious care.” Id.
The at-issue affidavit primarily recites or describes portions of testimony
from Appellant’s trial and guilty plea colloquy that Appellant either directly
participated in, or directly observed. See Campana Affidavit, 12/13/18, at ¶¶
3-4. Attorney Campana also avers that “[i]t would have been reasonable for
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[Appellant] to have believed that the criminal charge of ‘escape’ from federal
custody would not be pursued by the U.S. Attorney in the Middle District of
Pennsylvania . . . .” Id. at ¶ 5. Finally, Attorney Campana concludes by
stating that he never realized that Appellant had ultimately pleaded guilty to
the federal escape charge and consequently he “never raised the issue of the
apparent violation of the plea agreement by the Commonwealth.” Id. at ¶ 6.
As an initial matter, Attorney Campana’s recital of testimony that
Appellant was already privy to cannot qualify as “newly discovered” facts for
the purposes of evading the PCRA’s timeliness requirements. Since Appellant
witnessed and participated in this testimony, he was fully aware of the content
of that testimony and it cannot possibly be considered “unknown” under the
auspices of § 9545(b)(1)(ii). The mere fact that Appellant has utilized
Attorney Campana as a new conduit for this previously known information is
of no moment. See Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa.
2013) (allegedly new facts for the purposes of PCRA timeliness “must not be
facts that were previously known but are now presented through a newly
discovered source”).
Moreover, Attorney Campana’s opinions regarding Appellant’s desire to
avoid additional federal charges via his plea agreement with the
Commonwealth and Attorney Campana’s acknowledgment of his failure to
raise a claim regarding Appellant’s plea agreement are not “new” facts for the
purposes of this appeal. Rather, Appellant’s complaint that his state plea
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agreement did not encompass his federal escape charge was the primary basis
for his two previous PCRA petitions. As such, that information has been well-
known to Appellant for decades. Furthermore, the second of those PCRA
proceedings also included claims regarding Attorney Campana’s alleged
ineffectiveness, which equally establishes Appellant’s ongoing knowledge of
Attorney Campana’s failure to challenge any alleged violations of Appellant’s
plea agreement. These factual averments are simply not new,2 and their
temporal character is not altered simply by being presented via affidavit. See
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (“[T]he
focus of this exception is on the newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.”).
Overall, we conclude that Appellant has failed to satisfy the timeliness
exception at 42 Pa.C.S. § 42 Pa.C.S. § 9545(b)(1)(ii). As such, we affirm the
trial court’s dismissal of Appellant’s third PCRA petition as untimely.
Order affirmed.
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2 Even assuming, arguendo, that this information constituted “new” facts,
Appellant has failed to establish due diligence. See Commonwealth v.
Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (holding that PCRA due diligence
requirement must be strictly enforced). In relevant part, Appellant avers that
he attempted to contact Attorney Campana in 1977 via telephone and by
writing an unspecified number of letters concerning the federal escape charge.
See Appellant’s brief at 15. However, there is no competent evidence that
Appellant took any meaningful efforts to obtain an affidavit from Attorney
Campana in the intervening four decades. As such, Appellant did not act with
due diligence. See Commonwealth v. Smith, 194 A.3d 126, 135 (Pa.Super.
2018) (holding that defendant did not satisfy due diligence requirement by
offering no reasonable explanation for a 13-year delay in obtaining affidavit).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2019
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