Commonwealth v. Trivigno, 1779 EDA 2020

CourtPennsylvania Superior Court
Writing for the CourtOLSON, J.
PartiesCOMMONWEALTH OF PENNSYLVANIA v. PHILIP TRIVIGNO Appellant
Decision Date06 August 2021
Docket Number1779 EDA 2020,J-S13013-21

COMMONWEALTH OF PENNSYLVANIA
v.

PHILIP TRIVIGNO Appellant

No. 1779 EDA 2020

No. J-S13013-21

Superior Court of Pennsylvania

August 6, 2021


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered August 13, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0100861-1996

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J. [*]

MEMORANDUM

OLSON, J.

Appellant, Philip Trivigno, appeals pro se from the August 13, 2020 order dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

A prior panel of this Court summarized the factual history as follows:

[Appellant] was tried before a jury [in] September [] 1996 Appellant was convicted of first[-]degree murder, possession of an instrument of crime[, ] and aggravated assault, and on March 19, 1998, the [trial] court sentenced him to death Appellant appealed, and, on March 24, 2000, [our] Supreme Court reversed Appellant's death sentence and granted a new penalty hearing

Commonwealth v. Trivigno, 2013 WL 11259245, at *1 (Pa. Super. 2013) (unpublished memorandum) (record citations omitted). On January 29, 2003, following a non-jury hearing, the trial court resentenced Appellant to life imprisonment for his first-degree murder conviction. Id. "Appellant did not file a direct appeal[] and[, ] thus, his judgment of sentence became final on February 28, 2003." Commonwealth v. Trivigno, 2017 WL 3037526, at *1 (Pa. Super. 2017) (unpublished memorandum). Appellant filed a writ of habeas corpus on January 6, 2004, his first PCRA petition on February 11, 2009, and his second PCRA petition on October 14, 2014. Ultimately, none of these challenges resulted in relief.

On September 29, 2017, Appellant filed pro se the instant PCRA petition, his third. Between April 2018, and March 2019, Appellant filed three supplemental PCRA petitions and two amended PCRA petitions.[1] On November 1, 2019, the PCRA court notified Appellant pursuant to Pennsylvania Rule of Criminal Procedure 907 of its intent to dismiss as untimely his PCRA petition without a hearing and without exception. Appellant filed pro se a response to the Rule 907 notice on November 13, 2019, and an amended response on December 6, 2019. On August 13, 2020, the PCRA court dismissed Appellant's petition and, thereupon, filed an opinion in support of its decision. Appellant filed pro se a notice of appeal on September 9, 2020, and that same day the PCRA court filed its Pa.R.A.P. 1925(a) opinion wherein it relied on its August 13, 2020 opinion dismissing Appellant's PCRA petition. The PCRA court did not order Appellant to file a Rule 1925(b) statement. Appellant, however, filed pro se a Rule 1925(b) statement on September 18, 2020.

Appellant raises the following issues for our review:

1. Did the PCRA court err when it concluded that [Appellant's] PCRA [petition] was not timely filed
2. Did the PCRA court err in its opinion by rejecting and dismissing [Appellant's] petition [as untimely, despite Appellant's allegations of] newly[-]discovered facts[, namely the] affidavit [] from [Philadelphia] Police Officer Douglas Morrison[, which, if pleaded and proven by a preponderance of the evidence, is an exception to the PCRA jurisdictional time-bar pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii)?]
3. Did the PCRA court err when it refused to address the issue concerning government interference[, which, if pleaded and proven by a preponderance of the evidence, is an exception to the PCRA jurisdictional time-bar pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i)?]
4. Did the PCRA court err when it refused to address the issue concerning records of actual innocence[?]

Appellant's Brief at 7 (extraneous capitalization omitted).[2]

Proper appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations omitted). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court's legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).

Our Supreme Court has instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely, courts lack jurisdiction over the petition. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (holding, courts do not have jurisdiction over an untimely PCRA petition). To be timely filed, a PCRA petition, including second and subsequent petitions, must be filed within one year of the date a petitioner's judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). "A judgment becomes 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 the review." 42 Pa.C.S.A. § 9545(b)(3). The PCRA's jurisdictional time restriction is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004).

Here, Appellant was resentenced on January 29, 2003, and did not pursue direct appeal. Consequently, Appellant's judgment of sentence became final on February 28, 2003, at the expiration of time for filing a direct appeal with this Court. Pa.R.A.P. 903 (stating, a notice of appeal, with limited exception (of which, none apply in the instant case), "shall be filed within 30 days after the entry of the order from which the appeal is taken"); see also 42 Pa.C.S.A. § 9545(b)(3); Trivigno, 2017 WL 3037526, at *1. Therefore, Appellant's PCRA petition filed on September 29, 2017, more than fourteen years after his judgment of sentence became final, is patently untimely.

If a PCRA petition is untimely filed, the jurisdictional time-bar can only be overcome if the petitioner alleges and proves one of the three statutory exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions to the one-year time-bar are as follows: "(1) interference by government officials in the presentation of the claim; (2) newly[-]discovered facts; and (3) an after-recognized constitutional right." Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii). A petition invoking an exception to the jurisdictional time-bar must be filed within 60 days of the date that the claim could have been presented.[3] 42 Pa.C.S.A. § 9545(b)(2) (effective November 17, 1995, to December 24, 2018). If an appellant fails to invoke a valid exception to the PCRA time-bar, courts are without jurisdiction to review the petition and provide relief. Spotz, 171 A.3d at 676.

For purpose of discussion, we note in the case sub judice that Appellant asserts he is eligible for relief because his conviction resulted from, inter alia,

[1.] A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place [and]
[2.] The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

Appellant's PCRA Petition, 9/29/17, at § 4; see also 42 Pa.C.S.A. § 9543(a)(2)(i) and (vi).[4]

Because his PCRA petition is untimely, Appellant invokes the newly-discovered facts exception to overcome the jurisdictional time-bar.[5]Appellant's Amended Supplemental PCRA Petition, 4/20/18; see also Appellant's Brief at 10-18. Appellant avers that a Philadelphia Daily News article dated February 19, 2018, [6] "alerted [Appellant] to misconduct with[in] the [Philadelphia P]olice [D]epartment[, ]" including misconduct by Detective Santiago. Appellant's Supplement to Third PCRA Petition, 4/10/18; see also Appellant's Brief at 10. Appellant...

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