Com. v. Fraticelli, J.

J-A07043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORGE GEORGE FRATICELLI :
:
Appellant : No. 1870 EDA 2022

Appeal from the PCRA Order Entered June 14, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004827-1994

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED JULY 10, 2023

Jorge George Fraticelli (Appellant) appeals from the order entered in the

Delaware County Court of Common Pleas dismissing as untimely his serial

petition for collateral relief filed pursuant to the Post Conviction Relief Act1

(PCRA). Appellant seeks relief from the judgment of sentence of life

imprisonment imposed on September 26, 1995, following his convictions of

second-degree murder, robbery, criminal conspiracy, and possession of a

firearm without a license2 resulting from his involvement in the December

1994 robbery and murder of a drug dealer in Birmingham Township, Delaware

County. On appeal, he argues the PCRA court erred: (1) in dismissing his

petition as untimely filed when he demonstrated the failure to raise his claim
____________________________________________

1 42 Pa.C.S. §§ 9541-9546.

2 See 18 Pa.C.S. §§ 2502(b), 3701, 903(a)(1), and 6106(a)(1), respectively.
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previously was the result of governmental interference, and (2) in adopting

the Commonwealth’s response to his petition as dispositive of its ruling. For

the reasons below, we affirm.

This Court has previously summarized the facts underlying Appellant’s

convictions:

On December 12, 1994, Paul Wayland, a [26-year-old] Australian
national, arrived in Delaware after a cross-country trip from
California to deliver a large quantity of marijuana. Once in
Delaware, Wayland contacted Matthew DiMaggio [and the two]
met at a local restaurant. Wayland proceeded to DiMaggio’s
house, where DiMaggio removed most of the packages of
marijuana from Wayland’s car and made numerous [telephone]
calls arranging a meeting at the Sentinel Motel, [in] Birmingham
Township, Delaware County, . . . to package and distribute the
drugs.

Later that evening, Wayland and DiMaggio drove to the Sentinel
Motel, where they met Jeffrey Burger, a [26-year-old man that]
DiMaggio had previously used [to distribute drugs]. Before
DiMaggio and Wayland had arrived at the motel room, however,
Burger telephoned [Claudio] Manzanet, whom he knew from drug
dealing, to advise him of the opportunity to steal marijuana from
DiMaggio. Burger was also acquainted with Appellant . . . .
[Indeed, a] few weeks earlier, Burger sold Appellant a gun to give
to Manzanet in exchange for $20.00 and the promise of cocaine.

When DiMaggio and Wayland arrived at the motel, they started to
unpack the drugs and discovered that they needed a scale and
baggies to properly measure and distribute the marijuana. Burger
volunteered to drive to a garage in West Chester where he stored
a scale owned by DiMaggio. While at the garage, [Burger] locked
his keys in the car and called DiMaggio[. DiMaggio drove to the
garage, picked Burger up in his car, and] drove Burger to get a
second set of keys. After DiMaggio returned Burger to the garage,
[DiMaggio] retrieved the scale, and drove back to the motel.
Burger, however, proceeded to Manzanet’s apartment, where he
met Appellant, Manzanet, and Manzanet’s girlfriend, Amy Sortino.
While at [Manzanet’s] apartment, the three men concocted a
scheme to rob the drugs from DiMaggio at the motel room.

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Appellant was in possession of the gun that he had previously
purchased from Burger.

A short time later, the group left Manzanet’s apartment; Burger
drove his car, followed by Sortino, who was driving Appellant’s car
with Appellant and Manzanet as passengers. Appellant was
concerned about his identity, so the two cars stopped at a WaWa
convenience store where Burger purchased a hat and pantyhose
[as a disguise] for Appellant.

The four then proceeded to the Sentinel Motel. [In accordance
with the plan,] Burger re-entered the room where DiMaggio and
Wayland were weighing [the marijuana]. About ten minutes
later[,] there was a rattling at the door of the motel room. Burger
looked out [of] the window and saw Appellant wearing the knit
cap that [Burger] had just purchased [from the convenience store.
Burger also saw] Manzanet in possession of the gun that [Burger]
had provided. . . . [Burger] then opened the door[,] looked out[,]
and saw [Appellant and Manzanet move] away [from the door].
Burger reconsidered the situation[,] stepped back [into] the
[motel] room[,] and shut the door. The banging [on the door]
resumed and the door began to open, then two shots were
discharged through the door. At this point[,] Wayland jumped
into a closet in the motel room and Burger backed away from the
door. The door was then kicked open completely[. DiMaggio] fell
down to the floor behind [the door, with blood streaming from his
face]. Manzanet entered the room with a gun [in hand] and told
Burger to give him the bag of marijuana. A third shot was also
discharged. . . . [Unfortunately, as the participants later learned,
one of the two initial gunshots struck DiMaggio in the left eye].

[After] the assailants departed, . . . Burger, Wayland, and [a
mortally wounded, but alive,] DiMaggio quickly mustered their
belongings, loaded them into the vehicles[,] and departed the
premises. [Since DiMaggio could not see, Wayland drove
DiMaggio’s truck]. Burger drove his own vehicle.

Wayland drove to a gas station and[, although he telephoned 911,
he did not report an emergency. Wayland then left DiMaggio at
the gas station, bleeding on the ground, and hitch-hiked] to a
nearby restaurant. . . .

[A] gas station attendant [telephoned the police regarding]
DiMaggio[.] When the officers arrived at the gas station, they saw
DiMaggio, with a bloodied face, staggering incoherently in circles
near his truck. Despite resistance, DiMaggio was transported to

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the emergency room where it was [ ] determined that he was
blinded by a bullet to his left eye. . . . DiMaggio died [of this
wound] nine days later. . . .

[Back at the restaurant on the night of the shooting, police were
alerted to Wayland’s presence ─ as Wayland was acting franticly
─ and officers thus] arrived at the restaurant to question
Wayland[. Wayland] initially denied any knowledge of DiMaggio[,
but after more questioning, Wayland] admitted [to] his
relationship with DiMaggio[] and explained the circumstances
surrounding the shooting. . . .

Burger was subsequently connected to the shooting through motel
registration and telephone records. Burger, who had been struck
in the calf by a bullet during the episode at the motel, did not
report the incident to police or seek medical treatment.
Ultimately, however, with the assistance of counsel, Burger turned
himself into the police and provided detailed statements regarding
the Sentinel [Motel] shooting[. Burger’s statements implicated]
himself and the others in the robbery and homicide. Burger later
entered open guilty pleas to [third-degree murder], robbery, and
criminal conspiracy. Wayland and Burger both testified for the
Commonwealth at trial.

Commonwealth v. Fraticelli, 316 EDA 2012 (unpub. memo. at 2-4) (Pa.

Super. Jan. 11, 2013) (citation omitted), appeal denied, 94 MAL 2013 (Pa.

Jun. 25, 2013).

Following a joint trial with Manzanet, Appellant was convicted of second-

degree murder, robbery, criminal conspiracy, and possession of a firearm

without a license. On September 26, 1995, he was sentenced to an aggregate

term of life imprisonment.

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Appellant filed a timely direct appeal, raising several claims asserting

trial counsel’s ineffectiveness.3 A panel of this Court rejected his claims and

affirmed the judgment of sentence, and the Pennsylvania Supreme Court

denied review. See Commonwealth v. Fraticelli, 516 PHL 1996 (unpub.

memo.) (Pa. Super. Nov. 3, 1997), appeal denied, 962 MDA 1997 (Pa. Jul.

30, 1998).

Appellant filed his first PCRA petition in July of 1999. Following two

evidentiary hearings, the PCRA court denied relief. See Commonwealth v.

Fraticelli, 2514 EDA 2000 (unpub. memo. at 5) (Pa. Super. May 31, 2001).

Appellant filed an appeal to this Court asserting five challenges to prior

counsels’ ineffectiveness. See id. at 5-6. On May 31, 2001, a panel of this

Court affirmed the order denying Appellant’s petition. See id.

Relevant herein, we note that during one of the PCRA hearings,

Appellant testified and admitted his involvement in the conspiracy to rob the

drug dealers. See N.T., 3/7/00, at 79-80. He stated, however, that while he

knew there was a gun in the room when they planned the robbery, he did not

know Manzanet brought the gun with him. Id. at 80-81. Appellant also

claimed that when he saw Manzanet displaying the gun as they walked from

____________________________________________

3 We note that Appellant’s direct appeal was filed before the Pennsylvania
Supreme Court’s decision in Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002), abrogated by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021),
which held that “as a general rule, a petitioner should wait to raise claims of
ineffective assistance of trial counsel until collateral review.” See Grant, 813
A.2d at 738 (footnote omitted).

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the car to the hotel room, he told Manzanet to “put that gun away[,]” and

when Manzanet refused, Appellant maintained that he “ran back towards the

car.” Id. at 84-85.

Over the ensuing 16 years, Appellant filed four additional PCRA

petitions, all of which the PCRA court dismissed. He appealed the denial of

relief from his third, fourth, and fifth PCRA petitions4 ─ each time, a panel of

this Court affirmed the order on appeal and the Pennsylvania Supreme Court

denied allocator review. See Fraticelli, 3059 EDA 2005, appeal denied, 557

MAL 2006; Fraticelli, 316 EDA 2012, appeal denied, 94 MAL 2013;

Commonwealth v. Fraticelli, 1997 EDA 2016 (Pa. Super. May 23, 2017),

appeal denied, 441 MAL 2017 (Pa. Nov. 1, 2017). In addition, Appellant filed

a petition for writ of certiorari following the denial of this fifth PCRA petition,

which the United States Supreme Court denied. See Fraticelli v.

Pennsylvania, 139 S.Ct. 140 (U.S. 2018).

On June 16, 2021, Appellant filed the present sixth PCRA petition pro

se. The PCRA court appointed counsel, who filed an amended petition on

March 8, 2022. The amended petition acknowledged the facial untimeliness

of the filing. See Appellant’s Amended Petition for Post Conviction Relief

Pursuant to 42 Pa.C.S. § 9541 et seq. (Appellant’s Amended Petition), 3/8/22,

at 5-6. See also 42 Pa.C.S. § 9545(b)(1) (any PCRA petition, including
____________________________________________

4 Appellant filed a second petition in November of 2001, which was denied by
the PCRA court in March of 2002; however, he did not appeal that ruling. See
Commonwealth v. Fraticelli, 3059 EDA 2005 (unpub. memo. at 2) (Pa.
Super. Jun. 30, 2006), appeal denied, 557 MAL 2006 (Pa. Oct. 18, 2006).

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second or subsequent one, must be filed within one year of date judgment of

sentence is final); (b)(3) (judgment of sentence final at “the conclusion of

direct review . . . or at the expiration of time for seeking the review”).

Nevertheless, Appellant asserted that he met the governmental interference

exception to the PCRA’s timing requirements as set forth in Section

9545(b)(1)(i).5 He maintained that in prior petitions, he presented valid

Brady6 claims that were dismissed by this Court based on the “public records

presumption,” that is, Appellant could have discovered the alleged Brady

materials because they were in the public record. See Appellant’s Amended

Petition at 7-11. However, Appellant argued that the Pennsylvania Supreme

Court’s then-recent decision in Commonwealth v. Small, 238 A.3d 1267

(Pa. 2020)7 ─ which disavowed the “public records presumption” with respect

to previously unknown facts ─ “implicitly overruled” the prior decisions of this

____________________________________________

5 See 42 Pa.C.S. § 9545(b)(1)(i) (providing exception to one-year filing
requirement if “the petition alleges and the petitioner proves that . . . 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”).

6 Brady v. Maryland, 373 U.S. 83 (1963).

7 Small was decided on October 1, 2020, which was within one-year of the
filing of Appellant’s sixth pro se PCRA petition. See 42 Pa.C.S. § 9545(b)(2)
(any petition invoking a timeliness exception must be filed within one year of
the date the claim could have been presented).

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Court that applied the presumption to deny Appellant relief.8 See Appellant’s

Amended Petition at 10-11. Appellant requested an evidentiary hearing.

The Commonwealth filed a lengthy and detailed response to Appellant’s

petition, asserting the petition was untimely filed and none of the timeliness

exceptions applied. See Commonwealth’s Response to Appellant’s Facially

Untimely Sixth PCRA Petition, 3/28/22, at 37. On April 5, 2022, the PCRA

court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition

without conducting an evidentiary hearing. See Twenty Day Notice of Intent

to Dismiss PCRA Petition Without a Hearing, 4/5/22, at 1. The court noted

that it considered both Appellant’s pro se and counseled petitions, as well as

the Commonwealth’s response, and after an “independent review,” concluded

the petition was untimely. Id. at 1-2. In doing so, the PCRA court “adopt[ed]

the reasoning set forth in the Commonwealth’s response to [Appellant’s

p]etition[,]” but provided Appellant 20 days to file a response. Id. at 1.

On April 11, 2022, Appellant’s PCRA counsel sought an extension of time

to respond to the court’s Rule 907 notice. See Appellant’s Motion to Extend

Time, 4/11/22, at 1-3 (unpaginated). The PCRA court did not rule on the

____________________________________________

8 Although the amended petition did not specify what Brady material was
allegedly withheld by the Commonwealth, it referred to claims presented in
Appellant’s 2001 and 2009 PCRA petitions. See Appellant’s Amended Petition
at 7, 11. In his pro se petition, Appellant identified a psycho-social evaluation
of Burger, which was dated October 25, 1995, and introduced at Burger’s
sentencing hearing, as the Brady material at issue. See Appellant’s Petition
for Post Conviction Collateral Relief Pursuant to the Post Conviction Collateral
Relief Act under 42 Pa.C.S. §[§] 9541-9546, 6/16/21, at 9.

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motion, but rather, on June 14, 2022, entered an order dismissing Appellant’s

PCRA petition without a hearing. See Order, 6/14/22, at 1. This timely appeal

follows.9 Appellant subsequently complied with the PCRA court’s order to file

a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and the

PCRA court issued an opinion, in which it “adopted the reasoning set forth in

the Commonwealth’s memorandum of law in opposition to the petition” as

dispositive. See PCRA Ct. Op., 8/23/22, at 1.

Appellant presents two issues on appeal:

1. Whether the [PCRA] court erred by finding [Appellant’s] PCRA
petition untimely filed, despite the fact the prior application of
a public records presumption barring review of claims
presented in a previous PCRA petitions amounted to
governmental interference satisfying Section 9545(b)(1)(i), in
light of the Pennsylvania Supreme Court’s decision in [Small]?

2. Whether the [PCRA] court abused its discretion and committed
legal error by adopting the Commonwealth’s position wholesale
which contained material misstatements of fact that conflated
the timeliness exception requirements and misapplied Section
9545(b)(1)(i)?

Appellant’s Brief at 4.

Our review of an order denying PCRA relief is well established: “We

must determine whether the PCRA court’s ruling is supported by the record

and free of legal error.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa.

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9 We note that Appellant filed a pro se notice of appeal on July 6, 2022, two
days before PCRA counsel filed an appeal on July 8th. The pro se appeal was
docketed at 1869 EDA 2022, and later dismissed, sua sponte, as duplicative
of the present appeal. See 1869 EDA 2022, Order, 11/16/22.

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2017). “[W]e review the PCRA court’s legal conclusions de novo.” Small,

238 A.3d at 1280.

The timeliness of a PCRA petition is “jurisdictional in nature” and may

only be “overcome by satisfaction of one of the three statutory exceptions

codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii).” Spotz, 171 A.3d at 678. Here,

Appellant acknowledges that his petition is facially untimely, as it was “not

filed within one year of the date his judgment of sentence became final[.]” 10

See Appellant’s Brief at 13. Nevertheless, he maintains that his claim satisfies

the “governmental interference” exception to the timeliness requirements as

set forth in Section 9545(b)(1)(i). See id. at 12.

The governmental interference exception provides relief if a petitioner

proves that “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[.]” 42 Pa.C.S. § 9545(b)(1)(i).

The proper question with respect to Subsection 9545(b)(1)(i)’s
timeliness exception is “whether the government interfered with
Appellant’s ability to present his claim and whether Appellant was
duly diligent in seeking the facts on which his claims are based.”

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10 Appellant’s judgment of sentence was final on October 28, 1998, 90 days
after the Pennsylvania Supreme Court denied allowance of appeal and the
time for filing a petition for writ of certiorari with the United States Supreme
Court expired. See U.S. Sup. Ct. Rule 13(1). His present petition was filed
nearly 23 years later.

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Commonwealth v. Chimenti, 218 A.3d 963, 975 (Pa. Super. 2019) (citation

omitted), appeal denied, 229 A.3d 565 (Pa. 2020).

Appellant crafts an inventive argument on appeal. He insists that both

the PCRA court and this Court improperly obstructed his “right to collaterally

attack his conviction” and refused to review his “previously presented claims”

by relying on the now-defunct public records presumption. See Appellant’s

Brief at 16. Accordingly, he maintains that this purported obstruction

constituted a “breakdown in the processes of the court[s,]” which resulted “in

a violation of his Fourteenth Amendment due process rights.” Id. No relief is

due.

Our resolution of Appellant’s claim requires consideration of the PCRA’s

newly discovered facts timeliness exception, as well as the governmental

interference exception. By way of background, the newly discovered facts

exception requires proof that “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[.]” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis

added). For many years, the courts of this Commonwealth applied a “public

records presumption” when considering the due diligence requirement in

Subsection 9545(b)(1)(ii). See Commonwealth v. Burton, 158 A.3d 618,

632-633 (Pa. 2017). Courts routinely determined that “information [was] not

unknown to a PCRA petitioner when the information was a matter of public

record[.]” Id. at 633 (citation & quotation marks omitted; emphases added).

See also Small, 238 A.3d at 1271 (explaining the under the presumption, “a

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court [could] find that information available to the public is not a fact that is

‘unknown’ to the petitioner”) (citations omitted).

In Burton, however, the Supreme Court chipped away at its prior

decisions and held the public records presumption “does not apply to pro se

prisoner petitioners.” Burton, 158 A.3d at 638. The Court concluded that

application of the presumption to pro se incarcerated petitioners was “contrary

to the plain language of subsection 9545(b)(1)(ii) and was imposed without

any apparent consideration of a pro se prisoner’s actual access to

information of public record.” Id. (footnote omitted & emphasis added).

Subsequently, in Small, the Supreme Court “disavow[ed] the public

records presumption” entirely. Small, 238 A.3d at 1286. The Court

concluded that the presumption was contrary to the language of the newly

discovered facts exception, which “does not call for any assessment of whether

the asserted facts appear in the public record[,]” and was “engrafted . . . upon

the statutory language . . . without meaningful discussion.” See id. at 1283-

84. Thus, the Court announced: “To the extent that earlier decisions,

including our own, relied upon and applied that presumption to reject a

petitioner’s claim, they are now overruled.” Id. at 1286 (footnote omitted).

Appellant filed his present petition within one year of the Small decision.

See 42 Pa.C.S. § 9545(b)(2) (requiring a petition invoking a timeliness

exception be filed “within one year of the date the claim could have been

presented”). He argues the “PCRA and [a]ppellate [c]ourt’s application of

[the] ‘public records presumption’ [in disposing of his prior PCRA petitions,]

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resulted in an improper obstruction of [his] right to collaterally attack his

conviction, and review of his previously presented claims resulting in a

‘breakdown in the processes of the court’ in violation of his Fourteenth

Amendment due process rights.” Appellant’s Brief at 16. Appellant insists

that the PCRA court and appellate courts which disposed of his earlier petitions

“departed from the obligations specified in the plain language of the PCRA

statute by presuming [he] knew of facts that appear[ed] in the ‘public record.’”

Id. at 17. He maintains the creation of the public record presumption was a

“legal error propagated by the [Supreme] Court that burdened petitioners by

strangling their otherwise viable claims from beyond the grave, and

streamlining the process of denying potentially meritorious claims.” Id. at 18

(citation & quotation marks omitted). Accordingly, Appellant contends that

the application of the presumption in his case denied him due process, that is,

“the opportunity for the presentation of [his] claims at a meaningful time and

in a meaningful manner[.]” See id. at 19 (emphasis omitted).

Appellant’s argument fails for two primary reasons. First, this Court did

not rely solely on the public records presumption when it denied relief

regarding Burger’s psycho-social evaluation in the prior PCRA petition.

Second, even if the PCRA court and this Court did apply the presumption, at

that time, both courts were bound by stare decisis to apply then-controlling

decisions of the Pennsylvania Supreme Court approving of the public records

presumption.

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We note that Appellant first raised concerns about Burger’s sentencing

hearing in his second PCRA petition, filed in 2001. However, neither

Appellant’s petition, nor the PCRA court’s order denying relief, is included in

the certified record.11 Moreover, Appellant did not appeal the PCRA court’s

denial of relief with regard to his second petition, so this Court never

considered any argument concerning the public records presumption.

However, in his fourth petition, filed on April 8, 2009, Appellant

specifically addressed the psycho-social evaluation of Burger. After Appellant

filed the petition pro se, counsel was subsequently appointed and filed a

supplemental memorandum of law on October 16, 2009. Counsel asserted

that Cheryl Herst-Hodgins, “a therapist in private practice and the then

president of the Institute for Human Resources[,] . . . conducted four

interviews of Burger” prior to his sentencing hearing, and prepared a psycho-

social evaluation of him in a report dated October 25, 1995. See Appellant’s

Supplemental Memorandum of Law in Support of Petition Filed Under the Post

Conviction Relief Act, 10/16/09, at 4. Appellant further stated:

The Evaluation . . . was introduced as a defense exhibit at Burger’s
sentencing hearing[ and] contains a detailed recitation by Burger
of the events of December 12, 1994, some of which were
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11 The record does include Appellant’s January 9, 2002, reply to the
Commonwealth’s response to his PCRA petition. See Appellant’s Reply to the
Commonwealth’s Response to Appellant’s Second PCRA Petition, 1/9/02. In
that document, Appellant avers he heard a rumor in late 2000 that Burger
was already out of prison, and began a letter-writing campaign to obtain
information concerning Burger’s plea agreement and sentencing. See id. at
2-3. He further claimed that after filing a federal lawsuit, he finally received
“a small portion of the information” on September 18, 2001. Id. at 3.

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consistent with his trial testimony and many of which are
inconsistent with his trial testimony. Of critical important . . . is [
] Hirst-Hodgins[’] diagnosis of Burger: “[d]ue to the extensive
and long term use of drugs by Mr. Burger, my assessment is that
[he] may have been having a drug induced psychoses on
December 12, 1994.” [She] recommended that the [trial c]ourt
sentence Burger to 2½ to 5 years’ incarceration, significantly
lower than the 27½ to 55 years Burger faced under the plea
agreement. The [c]ourt ultimately adopted [ ] Hirst-Hodgins’
recommendation.

Id. at 4-5 (emphasis & footnote omitted)..

Appellant also alleged that he acted with due diligence in requesting

“information regarding Burger’s sentencing[,]” but was unable to obtain a

copy of Hirst-Hodgins’ report until he hired a private investigator. See

Appellant’s Supplemental Memorandum of Law in Support of Petition Filed

Under the Post Conviction Relief Act, at 5-6. He claimed he first received the

report on February 17, 2009, less than two months before he filed his fourth

PCRA petition. See id. at 6. Appellant maintained the report constituted

newly discovered evidence because Hirst-Hodgins’ “assessment that Burger

may have been having a drug induced psychoses on December 12, 1994 was

unknown at the time of trial and would have been admissible on the issue of

Burger’s ability to accurately perceive, remember and narrate the events”

leading up to the robbery and murder. Id. at 10-11 (footnote & quotation

marks omitted). He also argued that if the Commonwealth “was privy to this

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information prior to [Appellant’s] trial,” its failure to disclose it to Appellant

constituted a Brady violation.12 See id. at 15.

In disposing of Appellant’s petition, the PCRA court relied, in part, upon

the public records presumption, and concluded that Appellant was “on

constructive notice of the matters set forth during Burger’s public sentencing

proceeding” years before he filed his fourth petition. See PCRA Ct. Op.,

1/13/12, at 6. Significantly, the court also emphasized that Appellant

admitted he possessed the transcript from Burger’s sentencing hearing in

2001. Moreover, the court pointed out that during that hearing Hirst-Hodgins

testified concerning her findings, and her report was admitted into evidence.

See id. at 7. The PCRA court further noted that Appellant had filed a second

PCRA petition in November of 2001, which focused only on Burger’s sentencing

and did not address Hirst-Hodgins’ evaluation. Id. at 7 n.4.

On appeal, this Court affirmed the order denying PCRA relief ─ without

even addressing the public record presumption. Rather, the panel determined

that the information upon which Appellant relied was not newly discovered:

Appellant’s attempt to invoke a statutory exception to the
PCRA’s one-year time-bar fails under the weight of Appellant’s
own admissions. Indeed, Appellant’s entire, substantive claim for
relief is predicated upon [ ] Hirst-Hodgins’ expert conclusion that,
at the time of the robbery and murder, Commonwealth witness
Jeffrey Burger suffered from a substance-induced psychotic
disorder. Appellant claims that he is entitled to a new trial
because, if the jury knew of [this] diagnosis, the jury might have
____________________________________________

12We emphasize, however, that Hirst-Hodgins’ report was dated October 25,
1995, which was after Appellant’s July 1995 conviction and September 1995
sentencing.

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questioned Burger’s “ability to perceive events and to truthfully
relate the facts to which he testified at trial.”

Yet, [ ] Hirst-Hodgins rendered her expert opinion in 1995
and, as Appellant has admitted, during Burger’s 1995 sentencing
hearing, [ ] Hirst-Hodgins testified “that she felt in her
professional capacity that [ ] Burger suffered from a [substance-
induced] psychotic disorder at the time of the incident.”
Moreover, during Appellant’s November 21, 2011[,] evidentiary
hearing, Appellant freely admitted that he received the transcript
from Burger’s 1995 sentencing hearing in September 2001.
Therefore, Appellant has admitted that ─ since September 2001 ─
he has known of the facts underlying his current claim. Further,
although Appellant maintains that his fourth PCRA petition is
timely because he only recently received a physical copy of [ ]
Hirst-Hodgins’ expert report, the record is clear that the substance
of the report ─ or, the underlying “facts” upon which Appellant’s
collateral claim is based ─ was set forth in Burger’s 1995
sentencing transcript, which Appellant admitted he received and
reviewed in 2001.

As Appellant’s current petition was filed in April 2009, the
petition was not filed “within 60 days of the date the claim could
have been presented” and Appellant’s attempt to invoke the
“after-discovered facts” and “governmental interference”
exceptions to the time-bar fails.

Fraticelli, 316 EDA 2012 (unpub. memo. at 13-14) (record citations omitted).

Thus, on appeal, this Court denied relief based upon the fact that

Appellant was actually in possession of the purported “newly discovered facts,”

in 2001, eight years before he filed the petition at issue. Because the panel

did not apply the public records presumption, his present argument fails.

Moreover, we note that even if this Court had applied the presumption,

it would have been required to do so at that time. “It is a fundamental precept

of our judicial system that a lower tribunal may not disregard the standards

articulated by a higher court.” Commonwealth v. Randolph, 718 A.2d

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1242, 1245 (Pa. 1998). Indeed, “[b]oth this Court and the trial court are

bound by existing . . . precedent under the doctrine of stare decisis.” Smith

v. A.O. Smith Corp., 270 A.3d 1185, 1194 (Pa. Super. 2022), appeal denied,

283 A.3d 1247 (Pa. 2022). See also Commonwealth v. Shaffer, 734 A.2d

840, 844 n.6 (Pa. 1999) (Supreme Court reminding the Superior Court “of its

duty and obligation to follow the decisional law of” the Supreme Court).

Accordingly, we conclude that Appellant has failed to establish the

governmental interference exception to the PCRA’s timing requirements.

Specifically, in rejecting a prior appeal, this Court did not rely upon the now-

defunct public records presumption. Moreover, even if it had, we would have

been bound to do so by precedent existing before the Supreme Court

disavowed the presumption in Smith. Thus, no relief is warranted on

Appellant’s first claim.

Appellant’s second issue challenges the PCRA court’s decision to rely

solely on the Commonwealth’s response to Appellant’s petition in lieu of filing

an opinion discussing Appellant’s claims. See Appellant’s Brief at 23; see

also id. at 38 (“The Pennsylvania Supreme Court has condemned the practice

of courts making wholesale adoption of a party’s brief, in lieu of filing a

considered opinion.”) (citation & emphasis omitted). Appellant maintains the

Commonwealth’s response “contained material misstatements of fact that

conflated the timeliness exception requirements and misapplied S[ubs]ection

9545(b)(1)(i).” Id. at 23. Indeed, he notes that the Commonwealth argued

that the Smith decision did not constitute either a newly discovered fact or a

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new constitutional right for purposes of the PCRA timeliness exceptions set

forth in Subsection 9545(b)(1)(ii) and (iii) ─ exceptions that he did not rely

upon in his petition. See Appellant’s Brief at 25-27. Accordingly, Appellant

concludes a “remand to the PCRA court is required.” Id. at 39. We disagree.

Preliminarily, we note with disapproval the PCRA court’s wholesale

adoption of the Commonwealth’s memorandum of law in opposition to

Appellant’s petition in lieu of filing a separate opinion. The Pennsylvania

Supreme Court has disapproved of this practice. See Commonwealth v.

Williams, 732 A.2d 1167, 1176 (Pa. 1999) (criticizing PCRA court’s “decision

to incorporate the Commonwealth’s brief to supply the reasons for dismissal

of [appellant’s] petition” in death penalty case, and remanding for the PCRA

court to address claims that required “additional consideration”); see also

Commonwealth v. Fulton, 876 A.2d 342, 345 (Pa. 2002) (applying

Williams rule to non-capital PCRA appeal; recognizing need for “independent

judicial analysis” when first PCRA petition was summarily dismissed without a

hearing).

However, the present appeal arises from Appellant’s sixth attempt to

establish his right to collateral relief from a sentence that was imposed in July

of 1995, nearly 28 years ago. Moreover, our review of Appellant’s claim does

not involve any consideration of fact finding by the PCRA court, but rather,

focuses solely on a statutory analysis of the PCRA’s governmental interference

exception to the timing requirements, based upon the existing certified record.

Therefore, we conclude the lack of a separate statement of reasons by the

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PCRA court does not hamper our review, nor demonstrate a lack of

independent analysis by the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2023

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