Com. v. Burkett

• Decision Date: 30 September 2010
• Citation: 5 A.3d 1260
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Wayne Paul BURKETT, Appellant.
• Court: Pennsylvania Superior Court

5 A.3d 1260

COMMONWEALTH of Pennsylvania, Appellee

v.Wayne Paul BURKETT, Appellant.

Superior Court of Pennsylvania.

Submitted July 19, 2010.

Filed Sept. 30, 2010.

Wayne P. Burkett, appellant, pro se.

Richard A. Consiglio, Asst. Dist. Atty., Hollidaysberg, for Com., appellee.

BEFORE: BOWES, ALLEN, and FITZGERALD,^* JJ.

OPINION BY BOWES, J.:

Wayne Paul Burkett appeals from the order entered in the Blair County Court of Common Pleas dismissing his first PCRA petition sixteen years after he filed that petition. After careful review, we affirm.

The relevant procedural background of this case is lengthy and complex. On April 12, 1982, Appellant was charged with attempted rape, burglary, recklessly endangering another person, terroristic threats, simple assault and harassment. At the time, Appellant was on bail pending sentencing for two other unrelated criminal cases. In the instant case, Appellant forced his way into the home of a female neighbor. He then began to describe sexual acts that he demanded she perform on him. The victim attempted to escape, but Appellant prevented her first attempt and threatened to slit her throat with a knife he procured from the victim's kitchen. However, the victim again tried to flee and was ultimately successful. She identified Appellant as her attacker from a photographic lineup. The case proceeded to trial and on January 28, 1983, the jury returned guilty verdicts on all charges.

The trial court only sentenced Appellant on June 24, 1985, after Appellant appealed to the federal district court for violations of his speedy trial rights relative to the delay in his sentencing. The federal district court directed the trial court to dispose of Appellant's post-trial motions and sentence Appellant accordingly. Appellant appealed the federal district court determination, seeking his release rather than sentencing.

The Third Circuit Court of Appeals denied his certificate of probable cause to appeal without prejudice to file a new petition in the district court. Subsequently, on August 27, 1985, Appellant filed a federal habeas corpus petition, seeking release based on the delay in sentencing in the case sub judice and in a separate case. The district court and the Third Circuit Court of Appeals determined, relative to the current case, that Appellant had not exhausted his state court remedies.¹ See Burkett v. Cunningham, 826 F.2d 1208 (3d Cir.1987).

The trial court originally sentenced Appellant to sixteen to thirty-two years imprisonment. Appellant filed a direct appeal and this Court affirmed the judgment of sentence. Commonwealth v. Burkett, 364 Pa.Super. 643, 525 A.2d 813 (1987) (unpublished memorandum). Our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Burkett, 517 Pa. 603, 536 A.2d 1328 (1987). Appellant again sought relief via the federal courts and on January 23, 1988, filed a new federal habeas corpus petition. The district court denied Appellant's claims.

The Third Circuit in an unpublished decision, Burkett v. Fulcomer, 914 F.2d 241 (3d Cir.1990), held that the district court erred in reaching its determination. On remand, the federal district court dismissed the habeas corpus petition. Appellant appealed and the Third Circuit reversed and remanded. Accordingly, Appellant was afforded relief in the nature of a reduction of his sentence to twelve and three-quarter years to twenty-eight and three-quarter years imprisonment. See Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir.1991).² The trial court originally re-sentenced Appellant on September 3, 1992; however, the sentence was not in accordance with the Third Circuit's decision. Subsequently, on January 21, 1993, the trial court re-sentenced Appellant to his current term of incarceration.

Thereafter, on February 2, 1993, Appellant filed a pro se PCRA petition. The trial judge recused himself from the matter and a different judge was assigned to the case. The PCRA court eventually appointed a series of nine separate attorneys to the matter. Not until the seventh attorney was appointed was an amended PCRA petition filed. That petition, however, was defective. Prior to that, Appellant's third PCRA counsel filed several motions for discovery. Each time the PCRA court granted those motions, but the Commonwealth either failed to comply or did not submit the correct documentation.

In November 2006, over thirteen years after Appellant originally filed his petition, the PCRA court appointed Appellant's final PCRA attorney. This attorney filed an amended PCRA petition in August 2007. On September 5, 2007, the PCRA court directed the Commonwealth to file an answer, which the Commonwealth failed to do. On April 4, 2008 and August 29, 2008, more than fifteen years after the original filing of Appellant's PCRA, the court conducted an evidentiary hearing. The PCRA court, on March 27, 2009, denied Appellant's PCRA petition. This timely appeal followed. After a Grazier hearing, Appellant was permitted to proceed pro se. Appellant now raises the following issues for our review.

I. Whether Appellant's due process and equal protection rights under the Pennsylvania and Federal Constitution were violated by the Commonwealth's inordinate delay processing and disposing of Appellant's post conviction relief act petition[.]

A.

Whether the PCRA court erred by not applying the four factors in Barker v. Wingo, when determining whether Appellant's due process rights were violated by the post conviction delay[.]

B.

Whether the PCRA court erred [by] attributing the cause of the delay to Appellant, and not to PCRA counsels, the court, and the Commonwealth of Pennsylvania[.]

C.

Whether the PCRA Court erred by failing to treat portion[s] of Appellant's PCRA petition as a habeas corpus petition since Appellant's due process claim was not cognizable under [the] post conviction relief act[.]

II. Whether Appellant was denied due process under law when the Commonwealth failed to provide exculpatory evidence contained in police reports through mandatory discovery and knowingly presented false testimony at trial[.]

A.

Whether the PCRA court erred when failing to determine whether two withheld police reports were favorable evidence and Appellant [was] predjudice[d] thereby, and the prosecution knowingly presented false testimony at trial, violat[ing] Appellant's due process right to a fair trial[.]

III. Whether Appellant was denied effective assistance of appellate counselwhen appellate counsel failed to raise and preserve on appeal trial counsel's ineffectiveness when trial counsel failed to request a mistrial, object, or request a continuance to investigate a highly prejudicial and suggestive photographic identification of the Appellant, which was used without prior notice to the defense[.]

A.

Whether [the] PCRA court erred when concluding Appellant's claim was finally litigated[.]

IV. Whether Appellant was effectively denied a direct appeal and constructively denied the assistance of appellate counsel[.]

V. Whether PCRA counsel was ineffective when failing to present testimony of appellate counsel at [the] PCRA evidentiary hearing[.]

Appellant's brief at 4-5.³

We address Appellant's first issue and its component parts last, since an analysis of the remaining claims affects our examination of that issue. The second claim leveled on appeal by Appellant is whether the PCRA court erred in concluding that he was not denied due process under the law when the Commonwealth failed to provide exculpatory evidence contained in police reports through mandatory discovery and knowingly presented false testimony at trial.

This Court's standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by evidence of record and is free of legal error. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (2009). In evaluating a PCRA court's decision, our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa.2010). We may affirm a PCRA court's decision on any grounds if it is supported by the record. Commonwealth v. Fisher, 582 Pa. 276, 870 A.2d 864, 870 n. 11 (2005).

Appellant's argument is that two favorable police reports, which provided a description of the assailant that did not match his description, were withheld and could have demonstrated that two police officers falsely testified. There is no dispute that the prosecution did not turn over the reports prior to or during Appellant's trial. The reports, according to Appellant, would have been valuable evidence to impeach the victim and the police officers involved. In setting forth his argument, Appellant relies on the seminal case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

"A Brady violation consists of three elements: (1) suppression by the prosecution (2) of evidence, whether exculpatory or impeaching, favorable to the defendant, (3) to the prejudice of the defendant. No violation occurs if the evidence at issue is available to the defense from non-governmental sources. More importantly, a Brady violation only exists when the evidence is material to guilt or punishment, i.e., when 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' "

Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 30 (2008) (citations omitted).

The burden of proof is on the defendant to establish that the Commonwealth withheld evidence. Commonwealth v. Ly, 602 Pa. 268, 980 A.2d 61 (2009). A prosecutor is not required to deliver his entire file to defense counsel, nor is a prosecutor's duty to disclose such that it would provide a defendant with a right to discovery. Id. To satisfy the prejudice element of a Brady violation, the evidence withheld must be material to guilt or punishment. Id....