Com. v. Caffas, D. ( 2018 )

J-S01024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ALLEN CAFFAS :
:
Appellant : No. 276 MDA 2017
Appeal from the PCRA Order January 11, 2017
In the Court of Common Pleas of Perry County Criminal Division at No(s):
CP-50-CR-0000445-2009,
CP-50-CR-0000515-2009
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 05, 2018
David Allen Caffas (“Appellant”) appeals pro se from the order
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We summarize the relevant facts and procedural history of this case as
follows. On August 24, 2010, a jury found Appellant guilty of manufacturing
a controlled substance, simple assault, aggravated assault, recklessly
endangering another person, and involuntary manslaughter.1 On October 8,
2010, the trial court sentenced Appellant to 18 to 60 months of incarceration
for aggravated assault, 24 to 60 months of incarceration for involuntary
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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 2701(a)(2), 2702(a)(4), 2705,
2504(b).
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manslaughter, and five to ten years of incarceration for manufacturing a
controlled substance (an aggregate sentence of 8.5 to 20 years of
incarceration).
This Court affirmed Appellant’s direct appeal except as to his sentence
for manufacturing a controlled substance. This Court held that his
manufacturing of a controlled substance sentence was subject to a five-year,
not a ten-year, maximum, and that the trial court should have sentenced
him to a flat five years for that offense. See Commonwealth v. Caffas,
1214 MDA 2011 at 7-8 (Pa. Super. Apr. 3, 2012) (unpublished
memorandum). On August 8, 2012, the trial court resentenced Appellant on
the manufacturing of a controlled substance charge to a flat five-year
sentence. Appellant did not pursue any further direct appeal.
On January 29, 2013, Appellant filed his first PCRA petition
(counseled), which the PCRA court denied on September 10, 2013.
Appellant appealed the denial of his first PCRA petition, which this Court
quashed on November 5, 2014. On July 21, 2015, Appellant filed the instant
PCRA petition, his second, pro se. On October 29, 2015, the PCRA court
filed a Rule 907 notice of its intent to dismiss Appellant’s second PCRA
petition on the basis that his claims were either meritless, previously
litigated, or could have been raised at trial, on direct appeal or in a prior
PCRA proceeding. On January 11, 2017, after Appellant failed to respond to
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its Rule 907 notice, the PCRA court formally dismissed his second PCRA
petition.
On January 27, 2017, Appellant filed a timely pro se notice of appeal.
On February 7, 2017, the PCRA court ordered Appellant to file a concise
statement of the errors complained of on appeal pursuant to Rule 1925(b) of
the Pennsylvania Rules of Appellate Procedure. On February 24, 2017,
Appellant filed his timely Rule 1925(b) statement.
On appeal, he raises the following issues for our review:
1. Layered Claim, whether trial counsel was
ineffective for denying [Appellant] his Sixth
Amendment right to confrontation, whether appellate
counsel was ineffective for failing to raise and argue
a meritorious issue.
2. Layered Claim, whether trial counsel was
ineffective for failing to challenge/investigate missing
[d]iscovery evidence in violation of Brady v.
Maryland, whether appellate counsel was ineffective
for failing to raise and argue a meritorious issue.
3. Layered Claim, whether trial counsel was
ineffective for failing to introduce victim’s toxicology
report at trial, whether appellate counsel
inadequately argued issue, as stated by the Superior
Court.
4. Whether [Appellant] is serving multiple
illegal/unconstitutional sentences facially invalidated
pursuant to Alleyne, Fennel, and Chatelain,
whether appellate counsel was ineffective for failing
to raise by amended petition to include issue on
[Appellant’s] first PCRA.
5. Layered Claim, whether trial counsel was
ineffective for failing to discover/argue/preserve
multiple instances of prosecutorial misconduct and
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the court’s manifest abuse of discretion, whether
appellate counsel was ineffective for filing to raise
and argue a meritorious issue.
6. Layered Claim, whether trial counsel was
ineffective fo[r] failing to discover/raise/preserve the
court’s manifest abuse of discretion by the trial
judge.
7. Layered Claim, whether trial counsel was
ineffective for failing to quash information’s [m]otion
to [d]ismiss pre-trial, and for failing to challenge as
to the weight/sufficiency of evidence each charge at
multiple states of the judicial proceedings, whether
appellate counsel was ineffective for failing to raise
and argue a meritorious issue.
8. Layered Claim, whether trial counsel was
ineffective for failing to (a) challenge the inclusion of
deadly force in the jury instructions, (B) counsel
failed to clarify jury instructions on deadly/non-
deadly force, and (c) counsel failed to assert
deadly/non-deadly force within the verdict slip,
and/or procure from jury foreman re: jury’s decision
re: deadly/non-deadly force, whether appellate
counsel was ineffective for failing to raise and argue
a meritorious issue.
9. Layered Claim whether public defender and trial
counsel were ineffective for failing to argue/preserve
pre-trial, and at trial a recorded phone message, and
whether trial counsel was ineffective for failing to (a)
conduct a pre-trial investigation of said discovery
evidence/missing evidence (b) failed to interview any
witness[es] at all “pre-trial” (c) failed to compel to
testify at trial, by sub[poena], relevant witnesses,
whether appellate counsel was ineffective for failing
to raise, and argue a merit[or]ious issue.
10. Layered Claim, whether trial counsel was
ineffective for failing to (a) effectively [cross-
examine] Commonwealth witnesses or to rebut any
such witness on perjured/incons[istent] testimony at
trial, and false/incons[istent] statements to law
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enforcement, (b) counsel failed to effectively
examine [Appellant] at trial, on direct and redirect,
(c) counsel failed to introduce at trial “in his
posses[s]ion” evidence relevant to [Appellant’s] self-
defense claim, whether appellate counsel was
ineffective in part for failing to raise and argue a
merit[or]ious issue, and in part for failing to
adequately argue and advance a merit[or]ious issue.
11. Withdrawn.
12. Layered Claim, [whether] trial counsel was
ineffective for failing to oppose a motion to
consolidate charges against [Appellant], whether
appellate counsel was ineffective for failing to
adequately argue a meritious issue.
Appellant’s Brief at XI-XIV.
Prior to determining the merits of Appellant’s claims, we must
determine whether we have jurisdiction to decide his appeal. “Pennsylvania
law makes clear no court has jurisdiction to hear an untimely PCRA petition.”
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)
(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).
A petitioner must file a PCRA petition within one year of the date on which
the petitioner’s judgment became final, unless one of the three statutory
exceptions apply:
(i) the failure to raise the claim previously was the
result of interference by government officials with
the presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws 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
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(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania after
the time period provided in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of
these exceptions “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the
petitioner has not pled and proven any exception, “‘neither this Court nor
the trial court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.’”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
In this case, the Commonwealth filed a motion to dismiss this appeal
on the basis that Appellant’s instant PCRA petition is, inter alia, untimely.
Given that Appellant pursued no further direct appeal following his August 8,
2012 resentencing, his second PCRA petition is facially untimely and he does
not contest this determination. Accordingly, we are without jurisdiction to
decide Appellant’s appeal unless he pled and proved one of the three
timeliness exceptions of section 9545(b)(1). See id.Here, Appellant did not attempt to plead or prove any of the timeliness
exceptions of section 9545(b)(1) in his PCRA petition. See PCRA Petition,
7/21/15. While Appellant does baldly state that his petition satisfies each of
the “exceptional circumstances” of Section 9545(b)(1) on the cover page of
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his PCRA petition, the remainder of his petition offers no further reference to
or discussion of the timeliness exceptions to the PCRA’s time restriction.
See id. at I. Appellant also cryptically attempts to raise the timeliness
exceptions of Section 9545(b)(1)(i) and (ii) in the “Order or Other
Determination in Question” portion of his appellate brief. Appellant’s Brief at
X. He raises these arguments, however, for the first time on appeal and
therefore, has waived them. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
As Appellant has failed to plead and prove an exception under section
9545(b)(1), we are without jurisdiction to address the merits of his appeal. 2
See Derrickson, 923 A.2d at 468.
Order affirmed.3
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2 Although the PCRA court addressed the merits of Appellant’s PCRA
petition, we affirm that decision on jurisdictional grounds. “To the extent
our legal reasoning differs from the [PCRA] court’s, we note that as an
appellate court, we may affirm on any legal basis supported by the certified
record.” Commonwealth v. Sauers, 159 A.3d 1, 7 n.4 (Pa. Super. 2017),
appeal denied, 170 A.3d 1057 (Pa. 2017) (quoting Commonwealth v.
Williams, 125 A.3d 425, 433 n.8 (Pa. Super. 2015)).
3 Because we affirm the PCRA court’s dismissal of Appellant’s second PCRA
petition, the Commonwealth’s motion to dismiss is denied as moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/05/2018
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