Commonwealth v. Perrego
| Docket Number | 994 MDA 2022,J-A04011-23 |
| Decision Date | 26 May 2023 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. WILLIAM R. PERREGO Appellant |
| Court | Pennsylvania Superior Court |
Appellant William R. Perrego, appeals pro se from the order entered June 28, 2022, in the Court of Common Pleas of Luzerne County, denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The factual and procedural background of the instant appeal is not at issue. See Commonwealth v. Perrego, No. 709 MDA 2008 (Pa. Super. filed November 19, 2009) (unpublished memorandum) (direct appeal); Commonwealth v. Perrego, No. 389 MDA 2013 (Pa. Super. January 30, 2014) (unpublished memorandum) (first PCRA petition). Briefly, on March 5, 2008, following a bench trial, the trial court found Appellant guilty of third-degree murder for beating Lewis Jones to death. On the same day, Appellant was sentenced to a mandatory term of life in prison pursuant to 42 Pa.C.S.A. § 9715.
On November 19, 2009, we affirmed the judgment of sentence. Perrego, No. 709 MDA 2008. The Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Perrego, No. 973 MAL 2009 (Pa. filed May 28, 2010). The United States Supreme Court denied Appellant's petition for writ of certiorari on October 12, 2010. Perrego v. Pennsylvania, 562 U.S. 968 (2010).
In April 2011, Appellant filed a timely PCRA petition alleging, inter alia, that trial counsel was ineffective for failing to call a blood spatter expert. After holding a hearing on the PCRA petition, on January 18, 2013, the PCRA court denied Appellant's first PCRA petition, as supplemented by appointed counsel.
While the first PCRA petition was still pending, on May 17, 2012, appointed PCRA counsel filed a request to appoint an expert in the field of blood spatter,[1] which the PCRA court denied on July 3, 2012, after holding a hearing on the above request. The PCRA court denied the request because Appellant failed to identify a blood spatter expert or provide the PCRA court with any evidence that such an expert existed or was prepared to testify on Appellant's behalf.
On appeal, Appellant argued that the PCRA court erred in not granting his request for the appointment of a blood spatter expert, and that the PCRA court erred in not finding trial counsel ineffective for failing to call a blood spatter expert. We affirmed the order of the PCRA court. Perrego, No. 389 MDA 2013. Our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Perrego, No. 136 MAL 2014 (Pa. filed July 23, 2014).
On March 31, 2022, Appellant filed the instant PCRA petition in which he claims that Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), allows him to overcome the PCRA's timeliness requirements by making a layered claim of ineffectiveness against his counsel. He also raised an "as applied" constitutional challenge to the PCRA's one-year jurisdictional time limit.
The PCRA court appointed counsel to review Appellant's PCRA petition and to file an amended PCRA petition if necessary. Subsequently, appointed counsel filed a Turner/Finley[2] letter advising the PCRA court that Appellant's PCRA petition was untimely and should be dismissed.
On June 1, 2022, the PCRA court filed a notice to dismiss Appellant's petition under Pa.R.Crim. 907, , that Bradley did not announce a constitutional right and, even if it did, that right was not ruled to be retroactive. After granting counsel's petition to withdraw, on June 28, 2022, the PCRA court issued a final order dismissing Appellant's PCRA petition. This appeal followed.
On appeal, Appellant raises several claims for our review. However, some of the claims were not raised in his PCRA petition. As such, we cannot review them for the first time on appeal.[3] Accordingly, our analysis is limited to two claims Appellant properly raised in his PCRA petition at issue here. Appellant claims that (i) the underlying PCRA petition is timely under Bradley, and (ii) the PCRA timeliness requirements are unfair as applied to him. See Notice of Intention to Dismiss, 6/1/22, at 3-5.
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).
All PCRA petitions, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final" unless an exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1).[4] Commonwealth v. (Frank) Chester, 895 A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted) (overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)). As timeliness is separate and distinct from the merits of Appellant's underlying claims, we first determine whether this PCRA petition is timely filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008). If it is not timely, we cannot address the substantive claims raised in the petition. Id.
Appellant is fully aware that the instant petition is facially untimely.[5]However, he claims that he meets the new constitutional right timeliness exception. Specifically, Appellant believes that our Supreme Court in Bradley announced a new constitutional rule that allows PCRA petitioners to raise claims of ineffective assistance of counsel at any time, even on appeal. Under Bradley, he asserts, he can overcome the untimeliness of the instant petition by making a layered claim of ineffective assistance against his prior counsel. To this end, Appellant argues that all prior counsel were ineffective for not pursuing (second PCRA counsel) or for failing to properly pursue (first PCRA counsel) the appointment of a blood spatter expert.
Reliance on Bradley for purposes of overcoming the untimeliness of the underlying PCRA petition is misplaced. In Bradley, our Supreme Court extended the opportunity for a PCRA petitioner to raise claims of PCRA counsel's ineffectiveness. Previously, "the sole method by which a petitioner c[ould] challenge the ineffectiveness of his PCRA counsel [wa]s through the filing of a response to the PCRA court's Rule 907 dismissal notice." Bradley, 261 A.3d at 386. The Bradley Court abandoned that approach, holding "that a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Id. at 401.
Bradley, however, did not announce a new constitutional right, much less one applicable retroactively. Id. at 406 (Dougherty, J. concurring) (); Commonwealth v. Dixon, 2022 WL 17973240 (Pa. Super. 2022) (unpublished memorandum) ().
Furthermore, this Court has continually declined to extend the holding of Bradley to cases involving untimely petitions, like the instant one. See, e.g., Commonwealth v. Mead, 2022 WL 984604 (Pa. Super. 2022) (unpublished memorandum), appeal denied, 284 A.3d 118 (Pa. 2022) (); Commonwealth v. Morton, 2023 WL 118686 (Pa. Super. 2023) (unpublished memorandum) (); Commonwealth v. Gurdine, 2022 WL 576155 (Pa. Super. 2022) (same).
Thus, to the extent Appellant relies on Bradley to overcome the untimeliness of the underlying petition, such reliance is misplaced. Accordingly, we agree with the PCRA court's conclusion that the underlying PCRA petition is facially untimely, and that Appellant has failed to plead and prove the applicability of the new constitutional right exception to the time bar.
Appellant nonetheless argues that PCRA time restrictions are unconstitutional as applied to him. While the claim is difficult to discern in Appellant's 63-page appellate brief, it appears that Appellant is arguing the time restrictions to challenge PCRA counsel's effectiveness are unconstitutional as applied to him. We disagree.
Our Supreme Court has explained:
We have repeatedly found the PCRA's time restrictions constitutional. See Commonwealth v. Cruz, 852 A.2d 287, 292 ([Pa.] 2004) ("this Court has held that the PCRA's time restriction is constitutionally valid."); Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (...
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