J-S49039-20
2020 PA Super 283
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY FRAME :
:
Appellant : No. 146 WDA 2020
Appeal from the PCRA Order Entered January 7, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
949 A&B of 1986
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 11, 2020
Appellant, Gary Frame, appeals from the order entered in the Court of
Common Pleas of Erie County dismissing his petition for collateral relief filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546, as untimely. He contends his PCRA petition, filed 31 years after his
judgment of sentence became final, qualifies for an exception to the PCRA
timeliness requirements that vests the PCRA court with jurisdiction to
entertain his appeal. After careful review, we find Appellant’s argument is at
odds with a recent precedential decision of the Pennsylvania Supreme Court,
and for that reason, we affirm.
In 1987, Appellant was tried and convicted of Homicide and Aggravated
Assault in a jury trial before the Honorable Shad Connelly. At the conclusion
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* Former Justice specially assigned to the Superior Court.
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of Appellant’s sentencing hearing, Judge Connelly sentenced Appellant to life
without the possibility of parole.
Five years earlier, in a previous matter unrelated to Appellant’s
Homicide/Aggravated Assault case, Appellant had been charged and convicted
with Loitering and Prowling, misdemeanors of the third-degree. The
prosecutor at the time was then-Assistant District Attorney Shad Connelly.
Appellant claims his own youthful indiscretion caused him to openly ridicule
and embarrass ADA Connelly after the trial court had admonished the
prosecution during that particular trial.
Thirty-one years after Appellant’s Homicide/Aggravated Assault
judgment of sentence became final,1 he filed the present PCRA petition, his
second, and cites to the United States Supreme Court’s decision in Williams
v. Pennsylvania, 136 S.Ct. 1899 (2016), which held that Pennsylvania
Supreme Court Justice Ron Castille, who as district attorney had given
approval to seek the death penalty against defendant Williams, violated due
process by failing to recuse himself and participating in the decision to
reinstate Williams’ death sentence.2 Appellant claims Judge Connelly similarly
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1 Appellant’s direct appeal became final on October 17, 1988, when the United
States Supreme Court denied Appellant’s Petition for Allowance of Appeal. In
1992, Appellant filed an unsuccessful petition under the former Post
Conviction Hearing Act (“PCHA”), 42 Pa.C.S.A. §§ 9541 et seq.
2 Williams, in pertinent part, held “under the Due Process Clause there is an
impermissible risk of actual bias when a judge earlier had significant, personal
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violated Appellant's due process rights by not recusing himself given the
personal animosity Judge Connelly had allegedly formed during the previous
criminal matter. Appellant conceded his petition was patently untimely, but
he alleged it qualified for a PCRA timeliness exception at 42 Pa.C.S.A. §
9545(b)(1)(iii) (right asserted is a Constitutional right recognized by the
United States Supreme Court or Pennsylvania Supreme Court and is intended
to be applied retroactively).
The PCRA court issued its Notice of Intent to Dismiss Appellant’s petition
pursuant to Pa.R.Crim.P. 907 and held that Williams did not apply
retroactively because the United States Supreme Court did not hold it to do
so. See 42 Pa.C.S.A. § 9545(b)(1)(iii) (indicating retroactivity of decision
depends upon deciding court to so hold).
The PCRA court further discussed, in the alternative, that even if the
Supreme Court intended Williams to apply retroactively, Williams was
factually distinguishable from the present matter, for it involved a jurist who
previously as D.A. had authorized prosecution of the very death penalty case
before him on appeal. In contrast, the PCRA court opined, the trial judge in
the case sub judice was no longer in the District Attorney’s Office when
Appellant’s Aggravated Assault/Homicide case arose. Appellant filed pro se
Objections to the court’s Rule 907 Notice.
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involvement as a prosecutor in a critical decision regarding the defendant's
case.” Id. at 1905.
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By its Order of January 7, 2020, the PCRA court dismissed Appellant’s
petition as untimely. Appellant filed a timely pro se notice of appeal to this
Court and subsequently filed a court-ordered Concise Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).
In his Concise Statement, Appellant raised two claims coalescing to
assert that he was entitled to appointment of counsel because this was his
first petition since the 1995 amendments to the PCRA, and he raised an
additional claim asserting that Williams applies retroactively to invalidate his
conviction because the trial judge’s failure to recuse violated Appellant’s due
process rights. See Appellant’s Concise Statement of Matters Complained of
on Appeal, 2/18/20, at 1-2. The PCRA court filed a responsive Rule 1925(a)
opinion rejecting both claims.
In Appellant’s brief, he abandons his right-to-counsel claim3 and focuses
exclusively on his Williams-based claim in the Statement of Questions
Involved, which asks:
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3 “[W]here an indigent, first-time PCRA petitioner was denied his right to
counsel—or failed to properly waive that right—this Court is required to raise
this error sua sponte and remand for the PCRA court to correct that mistake.”
Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.Super. 2011)
(emphasis added). Here, Appellant had no right to appointed counsel for the
present PCRA petition, his second. Appellant argued before the PCRA court
that he was entitled to appointment of counsel because the present petition
was his first since the 1995 amendments to the PCRA. It is well-settled,
however, that the statutory right under the 1995 amendments to the
appointment of counsel applies only to a first PCRA petition, where the
petitioner also satisfies the judge that he is unable to afford or otherwise
procure counsel. Commonwealth v. Austin,
721 A.2d 375, 378–79
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I. Should the United States Supreme Court decision in
Williams v. Pennsylvania, 136 S.Ct. 1899 (2016), be
applied retroactively, thereby satisfying the requirements of
42 Pa.C.S.A. § 9541(b)(1), thereby allowing Appellant to
bring his issue of whether Appellant was denied due process
when his trial judge failed to recuse himself after
prosecuting Appellant in a previous case and having a clear
bias, violating the edicts of Williams [ ].
Appellant’s brief, at 4.
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 1995 amendments to the PCRA, which became
effective on January 19, 1996, provide 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 “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 the time for seeking review.” 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
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(Pa.Super. 1998) (holding PCRA petitioner who filed first PCRA petition in 1988
possessed no right to appointment of counsel for his post-amendments,
second PCRA petition filed in 1996).
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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
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 Pennsylvania after
the time period provide in this section and has been held
by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
As noted above, Appellant’s PCRA petition is patently untimely, but he
attempts to invoke the timeliness exception of 42 Pa.C.S.A. § 9545(b)(1)(iii)
relating to a new constitutional right that applies retroactively. To this effect,
he argues that the United States Supreme Court’s 2016 decision in Williams
provides such a retroactive right in his case. A recent decision handed down
by the Pennsylvania Supreme Court after party briefs and the PCRA court’s
opinion were filed in the case sub judice, however, controls this matter to the
demise of Appellant’s position.
In Commonwealth v. Reid, ––– Pa. ––––, 235 A.3d 1124 (filed
8/18/2020), appellee Reid, a death penalty petitioner, had invoked Williams
in his patently untimely, second PCRA petition seeking reinstatement of his
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right to appeal the denial of his first PCRA petition. The second petition
claimed that Justice Castille violated Reid’s due process rights when he did not
recuse himself from hearing Reid’s prior PCRA appeal, despite his having been
involved in Reid’s criminal trial, as then-district attorney, by approving the
prosecutor's request to seek the death penalty. The PCRA court granted Reid’s
petition, and the Commonwealth appealed to the Pennsylvania Supreme
Court.
Our Supreme Court concluded the PCRA court, in reinstating Reid’s
appeal rights, had misapprehended the strict jurisdictional mandates of the
PCRA, which left the PCRA court without jurisdiction to consider Reid’s
untimely and waived due process claims. Specifically, it observed that
Williams announces a new rule of constitutional law that is procedural, and
not substantive, and thus does not apply retroactively on collateral appeal.
The Court explained:
Nothing in the Williams decision remotely suggests the Court
intended for its holding to apply retroactively to cases on collateral
appeal, and the mere fact that the due process violation at issue
in Williams happened to arise in the context of a PCRA appeal did
not somehow render the decision affording Williams relief
“collateral” or “retroactive.” At this point in time, there is
absolutely no basis for concluding Williams announced a new
constitutional right that has been held by the United States
Supreme Court to apply retroactively to cases on collateral appeal.
Accordingly, appellant's petition could not successfully invoke the
new constitutional right exception to the PCRA's time bar.
Reid, 235 A.3d at 1155–56.
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As Reid controls the issue before us, we apply its rationale to uphold
the PCRA court’s determination that Appellant’s untimely petition fails to
invoke an exception to the PCRA time bar. Accordingly, Appellant’s appeal
affords him no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2020
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