J-S39039-19
2019 PA Super 272
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SALVATORE F CHIMENTI :
:
Appellant : No. 2262 EDA 2018
Appeal from the PCRA Order Entered July 20, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0633651-1982
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 04, 2019
Appellant, Salvatore F Chimenti, appeals from the July 20, 2018, order
entered in the Court of Common Pleas of Philadelphia County dismissing
Appellantâs third petition filed under the Post Conviction Relief Act (âPCRAâ),
42 Pa.C.S.A. §§ 9541-9546. After a careful review, we affirm.
This Court has previously set forth the relevant facts and procedural
history, in part, as follows:
At approximately 11:30 p.m. on May 10, 1982, [Appellant]
shot Andrew Tucker seven times causing his death.
Several days prior to the shooting, [Appellant] and Tucker
had engaged in a verbal altercation, which [Appellant] concluded
made him âlook badâ in the neighborhood. [Appellant] instructed
Bobby Harris to bring the victim to [Appellantâs] home. [O]n May
10, Harris saw the victim in a tavern and offered to drive him to
see [Appellant]. When the two men confronted each other again,
another angry verbal exchange ensued in front of several
witnesses, including Harris, [Appellantâs] brother Mario, and Mike
Cavanaugh. Tucker was unarmed. [Appellant] and Mario both
carried guns. Mario and Cavanaugh were standing on the porch
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S39039-19
of [Appellantâs] house. [Appellant] was on the third step leading
up to the porch. As the argument became more heated,
[Appellant] drew a .38 caliber weapon and fired seven shots at
Tucker, striking him three times in the chest, in the groin, through
his back and into his heart, the back of his knee[,] and the back
of his armpit. Mario also opened fire with a .25 caliber weapon,
which likely caused a wound to Tuckerâs face. Harris was standing
next to Tucker on the pavement when he was shot. When the
police arrived, they found a fully loaded .38 caliber gun lying next
to Tuckerâs left leg. Tucker was right-handed.
No witnesses came forward for several weeks. During that
period, [Appellant] repeatedly left messages for Bobby Harrisâs
family, threatening to harm them if Harris implicated [Appellant].
Harris responded by seeking legal counsel, and [he] gave a full
statement to the police.
[Appellant] testified in his own behalf. He stated that Harris
and Tucker were members of an organized crime family, which
had a âcontractâ on his life because he had not repaid a loan. He
claimed that on the night of the shooting he retrieved a gun for
self-defense, and shot Tucker as he was screaming out of control
and displaying a gun wrapped around a jacket. Additional
evidence was presented that Harris was on the porch and tried to
shoot [Appellant], but Mario deflected the gun away. One of the
several defense eye-witnesses to support the above scenario was
Gregory Spain.
In rebuttal, the Commonwealth produced a witness who
testified that Spain had told her that he [would testify] as a
surprise witness at trial, even though he had not witnessed the
incident.
Commonwealth v. Chimenti, No. 2599 PHL 1995, at *1-2 (Pa.Super. filed
7/3/97) (unpublished memorandum) (citation to PCRA court opinion omitted).
At the conclusion of trial, the jury convicted Appellant of first-degree
murder and possession of an instrument of crime, and Appellantâs trial
counsel, Joel Moldovsky, Esquire, filed post-verdict motions. Thereafter,
Appellant retained new counsel, A. Charles Peruto, Jr., Esquire, who filed
-2-
J-S39039-19
supplemental post-verdict motions. On January 26, 1984, the trial court
denied Appellantâs post-verdict motions; however, four days later, Appellant
filed additional supplemental post-verdict motions, and he retained new
counsel, Michael M. Mustokoff, Esquire, who contacted the Philadelphia District
Attorneyâs Office with information concerning trial counselâs alleged
subornation of perjury, particularly as to Gregory Spain.
[Thereafter, the] Commonwealth and [Appellant] struck a
deal providing that if [Appellant] cooperated in the
Commonwealthâs investigation of trial counsel [and did not file
post-sentence motions raising claims of ineffectiveness with
regard to the subornation of perjury so that trial counsel would
not be âtipped off,â] the parties would enter into a plea agreement
whereby [Appellantâs] conviction would be vacated and he would
plead guilty to murder generally, with a certification that the
degree of guilt would rise no higher than third degree.
On July 9, 1984, the trial court denied [the] supplemental
post-verdict motions and sentenced [Appellant] to life
imprisonment for first-degree murder and to a concurrent two and
one-half yearsâ imprisonment for [possession of an instrument of
crime]. [Appellant did not file post-sentence motions.] Appellant
filed a [protective] direct appeal to this [C]ourt and cooperated in
the Commonwealthâs investigation of trial counsel.
On March 15, 1985, the parties jointly petitioned thenPresident Judge Edmund B. Spaeth, Jr., of [this Court] to
effectuate the agreement between [Appellant] and the
Commonwealth by remanding the case to the Common Pleas
Court for âspecial assignment to a judge who, after sentence has
been vacated, will accept [Appellantâs] negotiated guilty plea.â In
an order dated April 18, 1985, Judge Spaeth granted the petition.
On June 20, 1985, upon application of the trial judge, the
Honorable Lisa Richette, our Supreme Court assumed plenary
jurisdiction of the case to determine âwhether the Superior Court
has the power to entertain a plea bargain after the entry of a
judgment of sentence.â In the Matter of Commonwealth v.
Chimenti, 510 Pa. 149, 151,
507 A.2d 79, 80 (1986). On March
27, 1986, the [Supreme] Court vacated Judge Spaethâs order and
remanded the case to [this Court] for proceedings on [Appellantâs]
-3-
J-S39039-19
direct appeal. [Specifically, our Supreme Court rejected
enforcement of the agreement entered into by the District
Attorneyâs Office and Appellant.] The [Supreme] Court [held] that
the order of Judge Spaeth directed the yet unnamed
hearing judge to vacate the prior judgment of
sentence and to accept the guilty plea of [Appellant]
to murder generally (not to rise higher than third
degree). This order reduced the prospective hearing
judge to a ârubber stamp,â empowered only to
perform a ministerial function. Neither Judge Spaeth,
nor the Superior Court at large, possessed such
power. The order in question was also problematic on
another score in that Judge Spaeth effectively
abrogated a jury verdict without any semblance of a
record. We can in no way condone such an actionâŠ.
Id. at 155-56,
507 A.2d at 83.
On May 6, 1986, through new counsel, Paul Schechtman,
Esquire, [Appellant] petitioned this [C]ourt for a remand to the
trial court for an evidentiary hearing on whether trial counsel
suborned perjury at trial. In an order dated May 20, 1986, this
[C]ourt denied the request âwithout prejudice to renew the
request and argue the issue of ineffectiveness of trial counsel in
briefs and before the panel.â
Chimenti, No. 2599 PHL 1995, at *3-4.
On direct appeal, Appellant relevantly argued Attorney Moldovsky was
ineffective for suborning perjury1 and failing to call two witnesses who would
have truthfully testified to seeing the gun lying next to the decedentâs body
____________________________________________
1 Specifically, Appellant alleged that trial counsel suborned perjury from at
least four witnesses, including Mr. Spain, with the purpose of misleading the
jury into thinking that the decedent and another man pointed weapons at
Appellant, thus attempting to explain to the jury why the police did not find a
weapon next to the decedent (i.e., the other man took it when he ran from
the scene).
-4-
J-S39039-19
immediately after the shooting. In finding Appellant was not entitled to relief
on his ineffectiveness claims,2 we held the two potential witnesses would not
have assisted Appellantâs defense and, in fact, would have impeached aspects
of Appellantâs self-defense theory. Also, we held there was no evidence in the
certified record indicating that trial counsel suborned perjured testimony.3
Consequently, we affirmed the judgment of sentence on April 20, 1987.4
____________________________________________
2 We note Appellant filed his direct appeal prior to our Supreme Courtâs
decision in Commonwealth v. Grant, 572 Pa. 48,
813 A.2d 726 (2002), and
its progeny, which hold that claims of ineffective assistance of counsel are
generally deferred until collateral review.
3 Appellant argued on direct appeal that the District Attorneyâs Office
completed an investigative report acknowledging trial counsel suborned
perjury, and Appellant took polygraph examinations, which suggested he was
telling the truth about trial counsel suborning perjury. However, we noted
that neither the investigative report nor the polygraph examination results
were included in the certified record, and thus, we declined to consider the
documents. Commonwealth v. Chimenti,
524 A.2d 913, 919 (Pa.Super.
1987).
4 Moreover, Appellant additionally argued on direct appeal that the
Commonwealth breached the partiesâ post-verdict agreement by contesting
Appellantâs ineffective assistance of counsel claims on direct appeal.
Chimenti,
524 A.2d at 919 n.2. We found the clam to be meritless.
Specifically, we held:
Pursuant to the agreement, [A]ppellant and the Commonwealth
applied to this Court for an order remanding the case to the trial
court which would vacate [A]ppellantâs sentence and accept
[A]ppellantâs negotiated guilty plea. This Court granted the
requested order. Our Supreme Court, however, vacated the
remand order finding that this Court lacked authority to direct the
trial court to vacate [A]ppellantâs prior judgment of sentence and
to accept [A]ppellantâs guilty plea. See Commonwealth v.
Chimenti, 510 Pa. 149,
507 A.2d 79 (1986). As the
Commonwealth argued in its appellate brief [on direct appeal]:
-5-
J-S39039-19
Commonwealth v. Chimenti, 524 A.2d 913 (Pa.Super. 1987). Appellantâs
petition for allowance of appeal was denied by our Supreme Court on
September 29, 1987.
On September 18, 1990, Appellant filed a counseled petition under the
PCRA, which the lower court denied, and Appellant filed a counseled appeal to
this Court. On appeal, Appellant averred, inter alia, that he was entitled to
specific performance of the agreement he made with the Commonwealth
relating to trial counselâs alleged subornation of perjury, and all prior counsel
were ineffective in failing to raise either trial counselâs ineffectiveness in
allegedly suborning perjury or post-verdict counselâs ineffectiveness in
attempting to enter into an agreement with the Commonwealth that was void
ad initio.
In finding Appellant was not entitled to relief on his claims, we relevantly
held the following:
Appellant first claims he is entitled to specific performance
of a written agreement to vacate his statutorily-mandated
judgment of sentence and enter a guilty plea to, at most, thirddegree murder. However, our Supreme Court invalidated that
agreement, despite the Commonwealthâs advocacy of it, because
it âeffectively abrogated a jury verdict without any semblance of
____________________________________________
âThe Commonwealth did not, as [Appellant] contends, renege on
its plea bargain negotiations, but rather zealously sought to
uphold the plea in the Pennsylvania Supreme Court. That Court
rejected the Commonwealthâs argument, however, and ruled that
the parties could not plea bargain away a valid jury verdict.â
(Reply brief for [A]ppellee at 4).
Chimenti, 524 A.2d at 919 n.2.
-6-
J-S39039-19
a record.â Chimenti, 510 Pa. at 155,
507 A.2d at 83. Indeed,
what the agreement clearly contemplated, though not specifically
spelling it out, was vacating a jury verdict, not on the basis of a
hearing or a record but simply on the basis of allegations in
[A]ppellantâs uncontested PCRA petition. A defendantâs conviction
and mandatory sentence may not be set aside merely by
agreement of the parties. This claim does not entitle [A]ppellant
to PCRA relief.
âŠ
Appellantâs final two claims are related. He argues he is
entitled to a new trial or the opportunity to file post-trial motions
nunc pro tunc because all prior counsel were ineffective for failing
to raise trial counselâs ineffectiveness in allegedly suborning
perjury and post-verdict counselâs ineffectiveness in entering into
an agreement that was void ad initio.
âŠ
The record shows it was [A]ppellant himself who gave
perjured testimony at trial and willingly participated in presenting
a perjured defense. N.T. PCRA, 11/17/92, at 39. Appellant
testified he personally asked Gregory Spain to contact trial counsel
so that both he and Spain could testify Spain drove [A]ppellant to
the crime scene (when in fact Spain had not). Thus, the record
shows [A]ppellantâs own testimony at trial was in furtherance of a
deliberate trial strategy chosen by himself and counsel. Our
Supreme Court has responded to a similar claim defense counsel
compelled his client to offer false testimony:
Having freely and deliberately chosen to offer
testimony which he now asserts was false, [the]
appellee stands before this Court and attempts to reap
a windfall new trial on account of his own perjury. The
criminal justice system cannot and will not tolerate
such an obvious and flagrant affront to the integrity
of the truth determining process thinly disguised
under the rubric of âineffective assistance.ââŠ.
Commonwealth v. McNeil, 506 Pa. 607, 618-19,
487 A.2d 802,
807-08 (1985)[.]
We note [A]ppellant apparently never attempted to
substantiate the allegation that counsel suborned perjury by
calling trial counsel to testify. This claim remains further
unsubstantiated by any record evidence. The PCRA court
appointed counsel for witnesses who testified at trial and who
-7-
J-S39039-19
[A]ppellant claimed would support this allegation. None, however,
did so.
âŠ
Appellantâs claims regarding all prior counselsâ
ineffectiveness are similarly unsupported. Appellant raised no
clear claim of ineffectiveness against [Attorney] Peruto in his
counseled PCRA petition. Even assuming this claim is properly
before us, nothing in the recordâincluding five hearings over
seven monthsâsuggests [Attorney] Peruto refused to pursue the
claim that trial counsel suborned perjury.
âŠ
Regarding [Attorney] Mustokoffâs ineffectiveness in advising
[A]ppellant to enter into an agreement which later was effectively
rendered null and void by our Supreme Court, the law is clear that
counsel is not ineffective in failing to predict future
decisionsâŠ.Since [A]ppellant has no witness willing to
substantiate his claim that trial counsel suborned perjury, no
counsel can be deemed ineffective for failing to pursue, much less
prevail on it.
Chimenti, No. 2599 PHL 1995, at *6-13 (some citations omitted).
Consequently, this Court affirmed the PCRA courtâs denial of relief on
July 3, 1997. Id.
On November 23, 1998, [Appellant] filed a Petition for
Habeas Corpus pursuant to 28 U.S.C. § 2254 of the Antiterrorism
and Effective Death Penalty Act (âAEDPAâ). On July 5, 2000,
Federal District Court Magistrate Clifford Scott Green held an
evidentiary hearing in which the court heard testimony from Frank
Cioffi, Maria Elizabeth Convery (now Dougherty), Frank
Martorano, and Joel Moldovsky, Esquire. Chimenti v. Frank, et
al., 2001 WL 21496 (E.D.Pa. Jan. 9, 2001). The court reviewed
the process by which the Pennsylvania Superior Court evaluated
[Appellantâs] claim that counsel suborned perjury and noted that
it determined the record was âdevoid of any proof that
[Appellantâs] trial counsel suborned perjured testimony.â Even
after holding an evidentiary hearing to allow [Appellant] to add to
the record, [Appellant] failed to offer any evidence that
[Appellantâs] own testimony, which was consistent with the
alleged perjured testimony, was the result of trial counselâs
-8-
J-S39039-19
influence, that counsel suborned perjury from other witnesses, or
that [Appellant] was prejudiced from any of counselâs tactical
decisions or alleged deficiencies.[5]
PCRA Court Opinion, filed 11/30/18, at 11-12 (citations and footnote omitted)
(footnote added).
On March 21, 2016, with the assistance of Jerome M. Brown, Esquire,
Appellant filed a counseled document entitled âExpedited Motion for
Compassionate Release And/Or For Habeas Corpus Relief.â Therein, Appellant
sought compassionate release from prison for the treatment of Hepatitis C,
cirrhosis, and liver cancer. Additionally, he sought âhabeas corpusâ relief and
relevantly averred the following:
4. After trial, [Appellant] hired [Attorney Mustokoff], who at
[Appellantâs] instigation, investigated and presented a claim of
subornation of perjury by [Attorney] Moldovsky, especially as to
Greg Spain, a witness who was not present when the incident
occurred, but had claimed to have been at the scene of the crime
at trial. However, another witness, Elizabeth âCookieâ Harris, met
Spain at a bar and they spent a night together. He told her that
he was going to commit perjury in this case, and this witness
unraveled the self-defense orchestrated by [Attorney] Moldovsky.
5. As a result of the above, the parties entered an agreement,
the substance of which was that [Appellant] agreed to aid the
Commonwealthâs investigation into the subornation of perjury and
agreed to postpone raising this ground of ineffectiveness. If the
Commonwealth found the allegations to be reliable, it would seek
____________________________________________
5 The federal court also concluded Appellantâs claims were exhausted at state
court because the claims were previously litigated in Appellantâs first PCRA
petition and were time-barred. Id. Further, the federal court specifically
indicated Appellantâs jury conviction and mandatory sentence could not be set
aside merely by agreement of the parties.
Id. Finally, the federal court
concluded the District Attorneyâs opposition to Appellantâs first PCRA petition,
which Appellant alleged breached the agreement, did not violate Appellantâs
due process rights.
Id.
-9-
J-S39039-19
a remand to enter into a plea to third degree murder, which
carried a maximum sentence of 20 years, rather than the life
sentence he actually received. If the Commonwealth did not find
this information to be reliable, then the parties agreed to seek a
remand for [Appellant] to litigate the ineffective assistance of
counsel claim.
6. The Commonwealth then conducted its own investigation and
found these claims to be true. Having determined the truth of this
information, the parties agreed that the matter would be
remanded to the trial court so that the judgment could be vacated,
and a plea entered that would rise no higher than third degree
murder, again a 20-year maximum sentence.
7. The Commonwealth entered into this agreement with the
blessings of then District Attorney, Edward Rendell,[6] and
[former] First Assistant District Attorney, Arnold Gordon, who
opined that [it] was fundamentally unfair that [Appellant] was
convicted of first degree murder and serving a life sentence, given
the manner in which [Attorney] Moldovsky handled this case and
also because of the poor quality of the Commonwealthâs
witnesses.
8. In a brief written by Eric B. Henson, Esquire, who was the
[former] Deputy District Attorney in charge of appeals, the
Commonwealth miraculously and uncharacteristically stated:
âThe Commonwealth also reassessed the trial record
and found that the trial court, the prosecutor, and trial
counsel had committed potentially reversible error.
Finally, the Commonwealth evaluated the evidence
which supported defendantâs first degree murder
conviction. It was unable to prove beyond a
reasonable doubt that [Appellant] or his witnesses
had âplantedâ a gun on the victimâs body to fabricate
[Appellantâs] self-defense claim.â
9. What happened next is a travesty of justice.
10. The Commonwealth believed the information to be reliable
and [former] D.A. Rendell was even to assure [Appellant] that
immunity would be granted to any witnesses who would testify at
any future proceedings. [Former Deputy District Attorney]
Henson and [Attorney] Mustokoff appeared before then President
Judge Edmund B. Spaeth, Jr., and worked out the remand to enter
____________________________________________
6 Edward Rendell was later elected as the Governor of Pennsylvania.
- 10 -
J-S39039-19
the plea before a different jurist than Judge Richette. However,
Judge Richette got wind of this agreement, and filed a writ of
prohibition in the Supreme Court. That Court scotched the deal.
11. A change in District Attorney Administrations led to a reneging
on the deal. The District Attorneyâs Office then fought
[Appellantâs] efforts at relief even rescinding the immunity offers.
The failure of post-conviction counsel to file the ineffectiveness
claim as to [Attorney] Moldovsky led to a waiver of that issue on
appeal and many others. The rest is history.
12. In short, what happened was that [Appellant] to his detriment
relied on the D.A.âs agreement. [Attorney DeFino, who was
Appellantâs] attorney [for] the [first PCRA petition], was not even
able to produce the witnesses who would have established that
the gun was on the victim because the new D.A.âs Office objected
that post-trial counsel and appellate counsel had waived these
issues. Thus, the new D.A. not only did not live up to the
agreement, but destroyed any chance [Appellant] had of justice
by obligating him to delay in litigating the ineffectiveness issue.
13. [Appellant] is now serving his 34th year of incarceration for a
sentence that should have risen no higher than 5-10 years.
Moreover, he had a number of witnesses who were intimidated
into not testifying at the [PCRA] hearing. There were ample
witnesses who would have truthfully testified that [Appellant]
acted in self-defense after being stalked by a person who was
hired to perform a âhitâ against him.
14. Indeed, and remarkably, he was standing on the front stoop
of his motherâs home when shots were fired. Who would kill
some[body] at the front door of his motherâs home, unless it was
an act of self-defense? Moreover, there was no area for him to
retreat.
15. Significantly, under the new version ofâŠ18 Pa.C.S. § 505, the
âCastle Doctrine[,]â would have applied to his case and he would
have been found not guilty under this doctrine.
16. There were also a number of witnesses who were scared off
by [Attorney] Moldovskyâs tactics when the case was naturally a
justifiable self-defense case. Moreover, there was other evidence
that the victim, Tucker, had a gun and was out to kill [Appellant].
Indeed, Tuckerâs own roommate testified that Tucker was out to
kill [Appellant] that evening. Other witnesses, Marie Convery and
Frank Cioffi, observed a handgun next to the body of the
- 11 -
J-S39039-19
deceased, which realistically eviscerated the prosecutionâs
âplanted gunâ theory.
17. Unfortunately, they would not deviate from the truth when
[Attorney] Moldovsky requested them to do so, and they did not
testify, despite the obvious importance of their testimony to the
self-defense [claim].
18. Thus, it is respectfully submitted that [Appellant] is an
innocent man. That knowledge has provided him with little solace.
Appellantâs Expedited Motion for Compassionate Release And/Or For Habeas
Corpus Relief, filed 3/21/16, at ¶¶ 4-18 (emphasis omitted) (footnote added).
Despite the fact two well-respected district attorneys, Ronald Castille
and Lynn Abraham, were found by this Court to not have breached any âpost-
verdict agreementâ by contesting Appellantâs ineffective assistance of counsel
claims on direct appeal, Chimenti, 524 A.2d at 919 n.2, Appellant argued in
his motion that, because the District Attorneyâs Office failed to abide by its
agreement, Appellant is serving an illegal sentence. See Appellantâs
Expedited Motion for Compassionate Release And/Or For Habeas Corpus
Relief, filed 3/21/16. Appellant also argued in his motion that his life sentence
without the possibility of parole constitutes âcruel and unusual punishmentâ
since he did not receive the benefit of the âpost-verdict agreement.â See
Appellantâs Expedited Motion for Compassionate Release And/Or For Habeas
Corpus Relief, filed 3/21/16. Accordingly, Appellant requested the lower court
vacate his judgment of sentence and remand for further proceedings.
On April 20, 2017, the lower court held a hearing on the âExpedited
Motion for Compassionate Release And/Or For Habeas Corpus Relief.â At the
- 12 -
J-S39039-19
hearing, Appellantâs counsel acknowledged that Appellant was seeking âPCRA
relief.â N.T., 4/20/17, at 3. Additionally, an Assistant District Attorney
indicated her belief that, since Appellant was seeking PCRA relief, the motion
âwould have to be re-coded as a PCRA in the system and then [the District
Attorneyâs Office] would let Ms. Godfrey[7] know, and one of the attorneys
would be assigned to handle that.â Id. at 6 (footnote added).
The lower court concluded the habeas corpus portion of the petition
sought relief available under the PCRA, and thus, the petition should be âre-
codedâ and/or ârefiledâ as a PCRA petition for a different judgeâs consideration.
Id. at 9-10. The lower court specifically indicated it was unsure as to the
exact procedure the court would use to ensure that the petition was
administratively reassigned and considered as a PCRA petition. Id. at 10-11
(lower court judge indicating âI donât know whether or not theyâre going to
require [Appellant] to actually physically refile itâŠwith this Courtâs
determination, then attach it, Iâm just not sure of what the procedure is. But
itâs my understanding at this timeâŠit is to be re-coded[.]â).
Furthermore, by order entered on April 20, 2017, the lower court
directed the following:
Defense Motion for Compassionate Release which was filed
3/21/2017 is DISMISSED WITHOUT PREJUDICE by agreement of
counsel. After treatment [Appellantâs] Hep C is cured. [Appellant]
has cirrhosis of the liver[.] In the event he needs a liver transplant
in the future and is accepted for a transplant, he may file a Motion
____________________________________________
7 The record is unclear as to whom this is referring.
- 13 -
J-S39039-19
for Compassionate Release. Defense Motion of Habeas Corpus
PCRA should be re-coded and/or refiled as a Petition for PCRA and
reassigned for further proceedings.
Lower Court Order, filed 4/20/17.8
The docket remained without activity until February 23, 2018, when the
District Attorneyâs Office filed a letter, which it sent to Appellantâs attorney,
Todd Mosser, Esquire, regarding the status of Appellantâs case. Despite the
fact our Supreme Court held the âpost-verdict agreementâ is unenforceable,
and thus issues related to the âpost-verdict agreementâ are moot, see
Chimenti, 510 Pa. at 155,
507 A.2d at 83, Assistant District Attorney Andrew
Wellbrock indicated the following:
On February 1, 2018, the new administration in the District
Attorneyâs Office recently reorganized and renamed the Conviction
Review Unit. As a result of that reorganization, the new unit
(Conviction Integrity Unit) reviewed the above referenced case
pursuant to your request. This letter is written to inform you of
the results of that review.
Relying in part on § 9545(b)(1) of the PCRA, the District
Attorneyâs Office agrees your client is entitled to relief. The history
of this case has revealed that your clientâs good faith reliance on
a plea agreement, combined with this officeâs ongoing interference
in effectuating the terms of that agreement, has resulted in an
inability to effectively litigate and prove a violation of the
Constitution or laws of this Commonwealth or the Constitution or
laws of the United States.
In order to remedy the constitutional violation recognized
and agreed to by this office in 1984, we will no longer oppose the
____________________________________________
8 We note the lower court had an obligation to transfer the misfiled/mislabeled
petition to the proper division so that it could be considered under the auspices
of the PCRA. Our review of the record reveals that the lower court has not
entered a final order disposing of the March 21, 2016, petition.
- 14 -
J-S39039-19
original plea agreement offered and entered into by The Honorable
Edward Rendell when he was District Attorney. Accordingly, we
agree [Appellantâs] conviction and sentence should be vacated, a
new trial granted and, pursuant to the terms of the 1984 plea
agreement, he shall then enter a plea to murder (not to rise higher
than third degree) and Possession of an Instrument of Crime. In
turn, the Commonwealth will recommend that your client be
sentenced to the maximum term of imprisonment legally allowed
for those crimes at the time of the offenseâ12.5 to 25 years.
Commonwealthâs Letter, dated 2/23/18.
Three days later, on February 26, 2018, with the assistance of Attorney
Mosser, Appellant filed a counseled document entitled âDefendantâs Petition
Pursuant to the Post Conviction Relief Act.â Therein, Appellant sought to
invoke the governmental interference timeliness exception to the PCRA.
Specifically, Appellant referenced the post-verdict agreement discussed
supra and admitted that former District Attorney Rendell ârigorouslyâ sought
to honor the agreement. However, Appellant further asserted that, thereafter
and for the next thirty years, the government (i.e., the District Attorneyâs
Office) obstructed and interfered with the agreement. He averred that, as
part of the post-verdict agreement, the parties agreed that the District
Attorneyâs Office would not oppose Appellantâs claims of ineffective assistance
of trial counsel; however, thereafter, the District Attorneyâs Office, which was
led by a new administration, breached the agreement by opposing Appellantâs
- 15 -
J-S39039-19
claims of relief in his direct appeal, federal habeas corpus case, and first PCRA
petition.9
Appellant averred the governmental interference ended on February 23,
2018, after the District Attorneyâs Office was assumed by Lawrence Krasner10
and Assistant District Attorney Andrew Wellbrock filed the above letter
indicating the District Attorneyâs Office would not oppose Appellantâs attempts
to litigate his claims of trial counselâs ineffectiveness: suborning perjury and
failing to call Maria Convery and Frank Cioffi as defense witnesses. Appellant
specifically averred that â[u]ntil now, [Appellant] has been precluded from
appropriately litigating these claims because of [former] D.A. Castilleâs and
Abrahamâs refusal to honor the agreement that the D.A.âs Office had
previously executed with [Appellant] to not oppose his claims.â Defendantâs
Petition Pursuant to the Post Conviction Relief Act, filed 2/26/18, at 8-9.
Appellant contended that, under the agreement, he had the right to have his
ineffectiveness claims heard by the court and âagreed to, by the D.A.âs Office
as far back as 1984.â Id. at 9. He further contended the âgovernmental
____________________________________________
9 With regard to the ânew administration,â Appellant indicated that, during the
litigation of his direct appeal, Ronald Castille, who later became the Chief
Justice of the Supreme Court, was elected as the District Attorney and
assumed office. Also, he indicated that, during the litigation of his federal
habeas corpus case, Lynne Abraham was elected as the District Attorney and
assumed office.
10 We note that Lawrence Krasner was elected as the most recent District
Attorney of Philadelphia, and on January 2, 2018, he was sworn into office.
- 16 -
J-S39039-19
inference is now overâ and he is now entitled to âlitigate his claims of
ineffectiveness in this Courtâ without opposition from the District Attorneyâs
Office. Id.
The Commonwealth did not file an answer in opposition to Appellantâs
PCRA petition, and on June 22, 2018, the PCRA court provided Appellant with
notice of its intent to dismiss under Pa.R.Crim.P. 907. Appellant filed a reply
in opposition to the PCRA courtâs dismissal notice, as well as an amended PCRA
petition reiterating the Commonwealth breached the post-verdict agreement
by opposing Appellantâs various attempts at relief. The Commonwealth filed
an answer on July 16, 2018, advocating in favor of the PCRA court granting
Appellant relief.
By order entered on July 20, 2018, the PCRA court dismissed Appellantâs
February 26, 2018, PCRA petition, and this timely, counseled appeal
followed.11 The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)
____________________________________________
11 As indicated supra, although the lower court did not enter a final order as
to Appellantâs March 21, 2016, petition (which constitutes his second PCRA
petition), Appellant subsequently filed, and the PCRA court considered,
Appellantâs February 26, 2018, PCRA petition (which constitutes his third PCRA
petition). However, inasmuch as this Court has held that ânothing bars a PCRA
court from considering a subsequent petition, even if a prior petition is
pending, so long as the prior petition is not under appellate review[,]â there
is no procedural impediment to our review of Appellantâs appeal from the
dismissal of his February 26, 2018, PCRA petition. Commonwealth v.
Montgomery, 181 A.3d 359, 364-65 (Pa.Super. 2018) (en banc) (holding
PCRA courts are not jurisdictionally barred from considering serial PCRA
petitions, provided that there is not a pending appeal of a PCRA petition).
- 17 -
J-S39039-19
statement, Appellant timely complied, and on November 30, 2018, the PCRA
court filed a Pa.R.A.P. 1925(a) opinion.
Preliminarily, we must determine whether Appellantâs instant PCRA
petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
(Pa.Super. 2000). In reviewing the propriety of the PCRA courtâs dismissal of
Appellantâs petition, we are limited to determining whether the PCRA courtâs
findings are supported by the record, and whether the order is free of legal
error. Commonwealth v. Allen,
557 Pa. 135,
732 A.2d 582 (1999).
Pennsylvania law makes it clear that no court has jurisdiction to hear an
untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500,
837
A.2d 1157 (2003). The PCRA provides that a PCRA petition, including a second
or subsequent petition, shall be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed
final âat 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 the time for seeking review.â 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition
must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
- 18 -
J-S39039-19
or the law of this Commonwealth or the Constitution or
law 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.A. § 9545(b)(1)(i)-(iii).
âWe emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.â Commonwealth
v. Marshall, 596 Pa. 587,
947 A.2d 714, 719 (2008) (citation omitted).
Moreover, âthe PCRA limits the reach of the exceptions by providing that a
petition invoking any of the exceptions must be filed within 60 days of the
date the claim first could have been presented.â Commonwealth v. Walters,
135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42 Pa.C.S.A. §
9545(b)(2).12
In the case sub judice, Appellant was sentenced on July 9, 1984, and
this Court affirmed his judgment of sentence on April 20, 1987. Our Supreme
Court denied Appellantâs petition for allowance of appeal on September 29,
____________________________________________
12 As of December 24, 2018, Section 9545(b)(2) now allows that any PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim first could have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146 § 2, effective in 60 days (December 24, 2018). This amendment
does not apply to Appellantâs case, which arose before the effective date of
the amendment.
- 19 -
J-S39039-19
1987. Thereafter, Appellant did not file a petition for a writ of certiorari with
the U.S. Supreme Court, and consequently, his judgment of sentence became
final on or about November 29, 1987, upon expiration of the time to file a
petition for writ of certiorari with the U.S. Supreme Court. See U.S.Sup.Ct.R.
20.1 (effective August 1, 1984; allowing 60 days to file petition for writ of
certiorari).13 Appellant filed his instant PCRA petition on February 26, 2018,
which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
This does not end our inquiry, however, as Appellant contends that he
is entitled to the governmental interference exception of Subsection
9545(b)(1)(i). The proper question with respect to Subsection 9545(b)(1)(i)âs
timeliness exception is âwhether the government interfered with Appellantâs
ability to present his claim and whether Appellant was duly diligent in seeking
the facts on which his claims are based.â Commonwealth v. Edmiston, 619
Pa. 549,
65 A.3d 339, 345 (2013) (citations omitted).
In the case sub judice, as indicated supra, Appellant relies on the District
Attorneyâs Officeâs February 23, 2018, letter as the basis for his claim that he
has met the governmental interference exception. Assuming, arguendo,
Appellant has met the initial threshold of presenting his claim within 60 days
of the date the claim first could have been presented, we conclude Appellant
____________________________________________
13 Effective January 1, 1990, the rule for filing a petition for writ of certiorari
was renumbered and the time-period changed to ninety days under the
current rule, U.S.Sup.Ct.R. 13.
- 20 -
J-S39039-19
has failed to demonstrate that he is entitled to the governmental interference
exception.
Appellant asserts that he met the governmental interference exception
as a result of the Commonwealthâs failure to comply with the 1984 post-verdict
agreement; to wit, he complains the Commonwealth did not âhonorâ the
agreement when it opposed the claims raised by Appellant in his direct appeal,
first PCRA petition, and federal habeas corpus petition. He contends the
Commonwealthâs opposition precluded him from appropriately litigating his
claims, thus constituting governmental interference. He avers the
governmental interference ended on February 23, 2018, when Assistant
District Attorney Wellbrock filed the letter indicating the Commonwealth would
no longer oppose the original post-verdict agreement, as well as agreeing with
Appellant that he is entitled to PCRA relief.
Initially, we note this is not the first time Appellant has argued the
Commonwealth breached the 1984 post-verdict agreement by contesting his
entitlement to relief. Specifically, on direct appeal, Appellant contended that
the Commonwealth should not contest his entitlement to a new trial on
grounds of ineffective assistance of counsel since to do so would constitute a
breach of the partiesâ post-trial agreement. Chimenti, 524 A.2d at 919 n.2.
We found no merit to Appellantâs argument and held:
The Commonwealth did not, as [Appellant] contends,
renege on its plea bargain negotiations, but rather zealously
sought to uphold the plea in the Pennsylvania Supreme Court.
- 21 -
J-S39039-19
That Court rejected the Commonwealthâs argument, however, and
ruled that the parties could not bargain away a valid jury verdict.
Id.
In any event, we hold that, since our Supreme Court specifically
rejected the so-called plea agreement, and rendered it void, Appellantâs
allegations related to the Commonwealthâs failure to abide by any term of the
agreement are moot.
We reject Appellantâs claim of governmental interference that the
Commonwealth should have abided by an alleged agreement which was
voided by the Supreme Court of Pennsylvania.
Furthermore, notwithstanding the fact the current District Attorneyâs
Office âagreesâ its predecessors breached the agreement, and thus Appellant
is entitled to PCRA relief, we reject such an argument as it is beyond the power
of the District Attorney. To adopt the position of the current District Attorney
on the so-called plea agreement would allow the District Attorney to usurp the
power of the judiciary, including that of our Supreme Court.
Therefore, as Appellantâs third PCRA petition is facially untimely, and
Appellant has not demonstrated that he is entitled to any of the timeliness
exceptions, we affirm the PCRA courtâs order dismissing Appellantâs third PCRA
petition.
Order affirmed.
- 22 -
J-S39039-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/19
- 23 -
