Commonwealth v. Pugh, 112520 PASUP, 1389 EDA 2020

Docket Nº:1389 EDA 2020
Opinion Judge:STEVENS, P.J.E.
Party Name:COMMONWEALTH OF PENNSYLVANIA v. ROBERT M. PUGH Appellant
Judge Panel:BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.
Case Date:November 25, 2020
Court:Superior Court of Pennsylvania

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT M. PUGH Appellant

No. 1389 EDA 2020

Superior Court of Pennsylvania

November 25, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered June 18, 2020 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000303-2010

BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E. [*]

MEMORANDUM

STEVENS, P.J.E.

Appellant Robert M. Pugh appeals from the Order entered in the Court of Common Pleas of Monroe County on June 18, 2020, dismissing as untimely his first petition filed pursuant to the Post Conviction Relief Act.1 We affirm.

In 2011, following a jury trial, Appellant was convicted of rape of an unconscious victim, rape of a substantially impaired person, sexual assault, unlawful contact with a minor (sexual offenses), aggravated indecent assault without consent, aggravated indecent assault (complainant is unconscious or unaware), aggravated indecent assault (person impairs complainant), and incest.2

The victim was Appellant's thirteen-year-old sister who had been diagnosed with a sexually transmitted disease (STD) on January 21, 2010.3This diagnosis prompted the investigation that led to Appellant's eventual arrest and confession to drugging and raping his sister on multiple occasions, which he would later recant.

The trial court sentenced Appellant on December 19, 2011, to a term of 120 months to 240 months in prison, and Appellant timely appealed. In a memorandum decision, a panel of this Court affirmed the judgment of sentence. Appellant sought reargument en banc, which this Court granted. Following review, this Court again affirmed Appellant's judgment of sentence. Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa.Super. 2014) (en banc). The Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on June 17, 2015.

Appellant took no further action until October 23, 2017, at which time he filed a handwritten note wherein he asked the court what action he would need to take to obtain copies of records; several other notes/letters in this vein followed through July 13, 2018. On January 16, 2018, Appellant filed a motion to obtain his trial transcripts wherein he indicated he was in the process of filing an appeal with the Pennsylvania Supreme Court. Following additional correspondence, Appellant ultimately filed a PCRA petition, pro se, on October 17, 2018.

Counsel was appointed on December 3, 2018, and filed an Amended Petition for Relief Pursuant to the Post-Conviction Collateral Relief Act on July 1, 2019. Therein, Appellant presented allegations of trial counsel's ineffectiveness for failing to present a proper expert at trial to testify regarding STDs, the medical testing he received, and the proper manner in which the results thereof should be read. Appellant stated he could not have presented these issues until he received the trial transcripts and also baldly argued trial counsel had been ineffective for failing to challenge SORNA4 as unconstitutional on appeal. In addition, on January 13, 2020, Appellant filed a Motion to Appoint Expert claiming an expert would be needed to review medical records in connection with his PCRA petition and requesting that funds be provided to him to hire Dr. W. Anthony Gerard.

On June 18, 2020, the PCRA court conducted a hearing on both Appellant's PCRA petition and his Motion to Appoint Expert. At the hearing, Appellant testified, and his counsel and the Commonwealth presented argument pertaining to the relevant medical issues at trial. Significantly, no reference to SORNA was made at the hearing. Thereafter, the PCRA court denied both of Appellant's pending motions and stated its reasons for doing so on the record. The PCRA court entered an order denying Appellant's PCRA petition and dismissing his Motion as moot on June 18, 2020.

At the hearing, Appellant testified that he had the trial transcripts as early as August of 2015, but his trial counsel advised Appellant to send the documents to Appellant's home. N.T. PCRA Hearing, 6/18/20, at 12-13. Appellant explained that due to deaths in and the difficult "dynamics of his family," he was unsuccessful in obtaining them, though he tried multiple times. Id. at 13. He and his family also attempted to contact trial counsel, but could not do so. Id. at 14. Appellant then wrote letters to the clerk of courts and received his transcripts on June 7, 2018. Id. at 14-15. He noticed contradictions in the testimony of Commonwealth's medical expert and through research obtained information regarding the STD Trichomoniasis. Id. at 15.

The PCRA court noted that the transcripts had been filed of record on January 17, 2012, for the direct appeal, and Appellant acknowledged as much. Id. at 17-18. Also, on cross-examination, Appellant admitted he had been present during trial and heard live the testimony of Dr. Michael Bulette, one of the Commonwealth's witnesses. Id. at 21. The PCRA court further stressed that although Appellant testified that a family friend, Lisa Albanez, had provided him the medical information which formed the basis of his PCRA petition in 2018, his letters began in 2017, which actions contradicted his statements. Id. at 19, 22. Appellant also did not know if the information existed previously or whether it was new, scientific information. Id. at 22. The Commonwealth stressed this issue was central to both trials, and that Appellant relied upon the testimony of a nurse and his own medial expert. Id. at 25.

Reiterating that Appellant had heard Dr. Bulette's testimony at trial, admitted he had possession of the trial transcripts before sending them to his home, and failed to establish that the documentation provided to him by Ms. Albanez was novel scientific information, the PCRA court found Appellant had failed to meet his burden to prove that an exception to the PCRA time-bar applied. Id. at 24-27.

On July 14, 2020, Appellant filed a timely notice of appeal. On July 16, 2020, the PCRA court directed Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), within twenty-one days. Appellant complied and filed the same on July 23, 2020, raising three alleged errors....

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