Com. v. Beech, T. ( 2022 )

J-A16029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS FRANCIS BEECH :
:
Appellant : No. 2027 EDA 2021
Appeal from the PCRA Order Entered August 31, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0000676-2015,
CP-09-CR-0003138-2015, CP-09-CR-0006115-2014
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 5, 2022
Thomas Francis Beech (Appellant) appeals pro se from the order entered
in the Bucks County Court of Common Pleas dismissing, as untimely filed, his
second petition filed pursuant to the Post Conviction Relief Act (PCRA).1
Because we agree with the PCRA court that Appellant’s petition was untimely
filed and that he failed to prove the applicability of one of the time-for-filing
exceptions, we affirm.
The relevant facts and procedural history underlying this appeal are as
follows. From July 2 to August 14, 2014, Appellant committed, or attempted
to commit, three burglaries in Bucks and Montgomery counties. He was
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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subsequently arrested, and charged at three separate dockets, which were
later consolidated for a jury trial. As we will discuss infra, in this appeal,
Appellant challenges only his conviction at trial docket CP-09-CR-0006115-
2014 (Docket 6115-2014). A prior panel of this Court summarized the facts
underlying Appellant’s conviction at Docket 6115-2014 as follows:
On August 12, 2014, Amanda Paley [Paley], a resident of [Bucks
County], came home with her 10–month[-]old son, and upon
entering her home saw that a window and her bathroom cabinets
were left open. She initially thought her husband was responsible
for opening them before he left the house. She proceeded to take
a shower, and upon finishing, entered her bedroom and noticed
that her [closet] door was open, and some of her belongings,
including an empty jewelry box, were strewn across the floor.
Upon noticing this scene, Paley grabbed her son, exited the house,
got in her car, and called 911.
Shortly after Paley called 911, a park ranger from the adjacent
Bensalem Community Park, Kenneth Buckalew [Buckalew],
arrived and told Paley he would take a walk around the house to
check things out. While walking around the house, Buckalew saw
Appellant climb out of Paley’s window holding a bag. After
Buckalew arrived and proceeded to walk around the house, Paley
witnessed Appellant come around the side of her house, carrying
“the type of bag they normally give a patient in the hospital.”
Paley got out of her car and started yelling at Appellant, at which
point he started running towards the nearby park. Moments later,
Paley observed Appellant “pull out of the driveway of the park in
a car,” which was a blue Ford Focus.
Prior to Buckalew being aware of the incident at Paley’s residence,
he took a photograph of a blue Ford Focus parked in the Bensalem
Community Park parking lot because he found it suspicious, and
at trial Paley identified the car in the photograph as the car in
which she saw Appellant drive away. Paley also subsequently
identified Appellant’s vehicle that was impounded by police as the
vehicle in which Appellant fled.
[T]he Commonwealth’s expert on cellular technology and
forensics, based on Appellant’s cell phone records, proffered
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evidence indicating that Appellant’s cell phone was used in close
proximity to [Paley’s] residence . . . during the time surrounding
the burglary of said residence.
Commonwealth v. Beech, 628 EDA 2016 (unpub. memo. at 2-3) (Pa. Super.
Feb. 13, 2017) (citation omitted & paragraph breaks added).
Appellant was subsequently arrested on August 28, 2014, following a
stop of his motor vehicle. He was charged with burglary, criminal trespass,
theft, and receiving stolen property2 for the Paley home burglary. Paley and
Buckalew later “identified Appellant via photo arrays.” Beech, 628 EDA 2016
(unpub. memo. at 3).
As noted supra, Appellant’s charges at Docket 6115-2014 were
consolidated with two other dockets for trial — CP-09-CR-0000676-2015
(Docket 676-2015) and CP-09-CR00003138-2015 (Docket 3138-2015). At
Docket 676-2015, Appellant was charged with burglary and related offenses
for a July 2, 2014, break-in at a home in Montgomery County. See Beech,
628 EDA 2016 (unpub. memo. at 1). The homeowner arrived to find an
unknown blue Ford Focus in her driveway. Id. She then witnessed a man,
whose arm was “wrapped up,” exit her home and drive off in the vehicle. Id.
Upon further investigation, the homeowner discovered her back window was
broken, and there was “blood all over[.]” Id. (citations & internal quotation
marks omitted). Subsequent testing revealed the DNA of the blood matched
Appellant. Id. at 1-2.
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2 See 18 Pa.C.S. §§ 3502(a)(1), 3503(a)(1)(ii), 3921(a), and 3925(a),
respectively.
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At Docket 3138-2015, Appellant was charged with attempted burglary
and related offenses after a homeowner in Bucks County “encountered
Appellant trying to get into her back door.” See Beech, 628 EDA 2016
(unpub. memo. at 2) (quotation marks & citation omitted). Appellant left
when the homeowner told him she was going to call the police. Id.
Before trial, Appellant’s attorney — Ann P. Russavage-Faust, Esquire —
filed a suppression motion challenging the August 28th stop of his motor
vehicle, and the witnesses’ identification of him via an uncounseled photo
array. See Appellant’s Omnibus Pre-trial Motions, 3/30/15, at 1-3
(unpaginated). Following a hearing, the trial court found the police officer had
reasonable suspicion to justify the investigatory stop of Appellant’s vehicle,
which subsequently led to his identification as the culprit in the burglaries, but
that the Paley and Buckalew’s out-of-court identifications of Appellant must
be suppressed because Appellant was not provided with counsel. See N.T.
Suppression H’rg, 10/6/15, at 17-18, 102-03. However, the trial court
declined to suppress any in-court identification of Appellant by Paley and
Buckalew because it found they both had a sufficient independent basis to
identify Appellant. See id. at 102-03.
Following a consolidated trial, a jury found Appellant guilty of numerous
offenses at each docket, including all of the charges at Docket 6115-2014.
Appellant was sentenced on January 22, 2016, to an aggregate term of six to
15 years’ imprisonment. Specifically, for the Paley burglary, the court
sentenced Appellant to four to 10 years’ imprisonment for burglary, and no
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further punishment for the remaining offenses. This Court affirmed
Appellant’s judgment of sentence on direct appeal, and the Pennsylvania
Supreme Court denied Appellant’s petition for allocatur review on August 2,
2017. See Beech, 628 EDA 2016, appeal denied, 155 MAL 2017 (Pa. Aug. 2,
2017).
Appellant filed a timely, pro se PCRA petition on August 9, 2018, in which
he argued, inter alia, trial counsel’s ineffectiveness for failing to impeach the
officer who arrested him, and failing to correct “errors from [his] suppression
hearing[.]” See Appellant’s Motion for Post Conviction Collateral Relief,
8/9/18, at 4. He also requested the “911 phone calls/transcripts” from the
Paley burglary. Id. at 7. Bonnie Keagy, Esquire, was appointed to represent
Appellant; however, on January 3, 2019, she filed a petition to withdraw and
Turner/Finley3 no-merit letter. Thereafter, the PCRA court issued notice of
its intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. After
being granted additional time to respond to the court’s Rule 907 notice,
Appellant filed a pro se amended PCRA petition on March 28, 2019, in which
he repeated his ineffectiveness challenge to Attorney Russavage-Faust’s
representation during the suppression hearing, and also criticized her for
failing to retain a medical expert or pursue discovery violations. See
Appellant’s Amended Petition for Post-Conviction Collateral Relief, 3/28/19, at
3, 12, 15. On April 15, 2019, Appellant filed a pro se formal motion to compel
____________________________________________
3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (1988) (en banc).
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the disclosure of the Paley burglary 911 calls, noting that Paley testified at
trial that she made two calls to 911. See Appellant’s Motion to Compel
Disclosure of Emergency Response Communications, 4/15/19, at 1.
Thereafter, on April 26th, Attorney Keagy filed a second petition seeking to
withdraw as PCRA counsel. By order entered May 29, 2019, the PCRA court
denied both Appellant’s initial and amended PCRA petitions, denied without
prejudice Appellant motion for disclosure of records, and granted Attorney
Keagy’s petition to withdraw as counsel. See Order, 5/29/19.
However, on June 10, 2019, the PCRA court vacated its May 29th order
after acknowledging it did not provide Appellant with the opportunity to
respond to Attorney Keagy’s second petition to withdraw. See Order,
6/10/19. Appellant filed a response on August 9th, and the PCRA court
entered an order on September 11, 2019, again denying Appellant relief on
his PCRA petitions, and granting Attorney Keagy’s petition to withdraw. See
PCRA Order, 9/11/19. That same day the court entered a second order
directing that Appellant be provided with a trial transcript he requested, and
granting his motion to compel disclosure of the 911 calls. See Discovery
Order, 9/11/19. The order directed: “If the Commonwealth is in possession
of [the 911 emergency response] communications, it shall provide a copy to”
Appellant. Id. Appellant filed an appeal of the order denying PCRA relief,
which was dismissed by this Court on June 17, 2020, when Appellant failed to
file a brief. See Commonwealth v. Beech, 3037 EDA 2019, Order
(6/17/20).
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Meanwhile, in February of 2020, Appellant filed a Petition for Writ of
Mandamus, seeking to compel the Commonwealth to comply with the court’s
September 2019 order directing it to provide Appellant with Paley’s 911 calls.
See Petition for Writ of Mandamus, 2/19/20, at 9. The Commonwealth filed
an answer to the petition on June 11, 2020, averring the following: (1) it
possessed “one call to emergency communications [by Paley] placed on
August 12, 2014, as well as an accompanying dispatch summary[;]” (2) “[a]ll
materials related to this call possessed by the Commonwealth were provided
to [Appellant’s] counsel pre-trial[;]” and (3) “[o]n March 16, 2020, the
Commonwealth recreated a disc” of the 911 call and dispatch summary, and
mailed it to Appellant. Commonwealth’s Answer to Appellant’s Petition for
Writ of Mandamus, 6/11/20, at 2 (unpaginated) (emphasis added). The
Commonwealth further stated that the correspondence was “returned as
refused” and its additional attempts to deliver the package were unsuccessful.
See id. at 3 (unpaginated). After further investigation, the Commonwealth
learned that Appellant was unable to receive any discs in prison because they
were considered to be contraband, but that it could provide a disc to the
Corrections Superintendent Assistant, who would then make arrangements
with Appellant to review its contents. See id. The Commonwealth averred
that it did send such a request to the Corrections Superintendent Assistant.
Id. Thus, it asserted that it had attempted to comply with the court’s order
but was unable to do so for reasons outside of its control. Id. at 5.
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The trial court scheduled a hearing for July 27, 2020, at which time it
dismissed Appellant’s petition as moot. See Bucks County Criminal Court
Sheet, 7/27/20. Appellant claims that he learned for the first time on that
day that the “Commonwealth only possessed one 911 call from [Paley on]
August 12, 2014[.]” Appellant’s Brief at 13.
On September 25, 2020, Appellant filed the present PCRA petition, his
second. He argued, inter alia, that the Commonwealth committed a Brady4
violation when it failed to disclose the fact that the only one 911 call from the
Paley burglary existed, and therefore, it solicited perjury when Paley testified
she made a second call to 911. See Appellant’s Motion for Post Conviction
Collateral Relief, 9/25/20, at 3. On June 9, 2021, the PCRA court issued
Appellant Rule 907 notice of its intent to dismiss the petition. After requesting
and being granted an extension of time to respond, Appellant filed an
Amended Second PCRA petition on August 25, 2021. Appellant asserted, inter
alia, his claim satisfied the governmental interference and newly discovered
facts exceptions to the PCRA’s timing requirements. See Appellant’s Amended
Second Petition for Post Conviction Collateral Relief, 8/25/21, at 6-7.
Furthermore, he attached to his petition a transcript of Paley’s single 911 call
on August 12, 2014, as well as the accompanying Police Dispatch Summary
____________________________________________
4 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”).
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that provided additional information not included in the 911 transcript —
particularly, Paley’s description of the suspect and his vehicle. See id. at
Exhibit 2, Transcript of Paley 911 Emergency Services Phone Call, 8/12/14;
Exhibit 3, Police Dispatch Summary of Paley 911 Call, 8/12/14. On August
31, 2021, the PCRA court denied Appellant’s request for relief. Order,
8/31/21. Appellant filed a timely notice of appeal, and complied with the PCRA
court’s directive to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The PCRA court filed an opinion on December 16,
2021.
As a preliminary matter, we note that Appellant filed a single notice of
appeal listing all three underlying docket numbers, which is violative of the
Pennsylvania Supreme Court’s ruling in Commonwealth v. Walker, 185
A.3d 969, 977 (Pa. 2018) (separate notices of appeal required when a single
order resolves issues arising on more than one docket). See Appellant’s
Notice of Appeal, 9/27/21. Therefore, on November 17, 2021, this Court
issued Appellant a rule to show cause why this appeal should not be quashed
in light of Walker. See Order, 11/17/21. Appellant filed a response asserting
that he is only appealing the denial of relief as to Docket 6115-2014. See
Appellant’s Petition Responding to Superior Court’s [Show Cause] Order,
11/29/21, at 2 (unpaginated). On December 15th, this Court entered an order
referring the issue to the merits panel. Order, 12/15/21.
We note that on December 22, 2021, the Pennsylvania Supreme Court
issued its decision in Commonwealth v. Young, 265 A.3d 462 (Pa. 2021),
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which overruled Walker to the extent it mandated the quashal of appeals that
did not expressly comply with Walker. Rather, the Court held:
[Pa.R.A.P.] 341 requires that when a single order resolves issues
arising on more than one docket, separate notices of appeal must
be filed from that order at each docket; but, where a timely appeal
is erroneously filed at only one docket, [Pa.R.A.P.] 902 permits
the appellate court, in its discretion, to allow correction of the
error, where appropriate.
Young, 265 A.3d at 477. In that case, the appellant — the Commonwealth
— had requested leave to correct its defective notices of appeal, which this
Court denied. See id. at 467-68. The Young Court remanded the appeal
back to this Court to “reconsider the Commonwealth’s request to remediate
its error[.]” Id. at 477-78. Upon remand, this Court remanded the appeal to
the trial court to allow the Commonwealth the correct its procedural error.
See Commonwealth v. Young, 280 A.3d 1049, 1051 (Pa. Super. 2022).
Although we could remand the present appeal to permit Appellant the
opportunity to file a corrected notice of appeal, we decline to do so since
Appellant expressly stated that he is only appealing the PCRA order denying
relief at Docket 6115-2014. See Appellant’s Petition Responding to Superior
Court’s [Show Cause] Order at 2 (unpaginated). Indeed, the issues he raises
on appeal — which pertain only to the 911 phone calls concerning the Paley
burglary — support this assertion. See Appellant’s Brief at 2-3 (challenging
the Commonwealth’s failure to disclose 911 calls related only to Paley
burglary). Accordingly, we will consider Appellant’s appeals at Dockets 676-
2015 and 3138-2015 abandoned and confine our review to Docket 6115-2014.
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See Commonwealth v. Benson, 817 WDA 2021 (Pa. Super. Oct. 5, 2022)
(unpub. memo. at 3-5) (declining to remand for corrected filings when
appellant improperly filed single notice of appeal from sentence imposed at
two dockets; “the crux of his argument is that the court imposed too harsh of
a sentence of imprisonment[,]” no term of imprisonment was imposed at
second docket, so Court would consider claims at second docket abandoned).
Appellant presents the following two claims for our review:
A. Whether [the Commonwealth] rendered prosecutorial
misconduct by actively soliciting false testimony and evidence
about a second . . . 911 phone call admittedly not in their
possession, by allowing . . . Paley to testify falsely without
correcting the errors concerning the second . . . 911 phone call
and it’s [sic] alleged contents, and the knowing exploitation of
the false evidence/testimony during closing arguments
concerning a second . . . 911 phone call resulting in multiple
“Brady” violations because it contained allegedly many multiple
facts violating [Appellant’s] state and federal constitutional
rights to due process of law, a fair trial, and confrontation of
adverse witnesses against him?
B. Whether [trial counsel] rendered ineffective assistance of
counsel in violation of [Appellant’s] Sixth . . . Amendment to
the U.S. Constitution for her failure to investigate pre-trial the
number and contents of . . . Paley’s 911 phone call, her failure
to object to multiple “Brady” violations concerning the use of a
second . . . 911 phone call and it’s [sic] alleged contents, and
her failure to effectively cross-examine . . . Paley concerning
any of the false testimony about the alleged second . . . 911
phone call and/or its alleged contents?
Appellant’s Brief at 2-3.
When reviewing an order denying PCRA relief, “[w]e must determine
whether the PCRA court’s ruling is supported by the record and free of legal
error.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017) (citation
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omitted). A PCRA court may “decline to hold a hearing if the petitioner’s claim
is patently frivolous and has no support either in the record or other evidence.”
Commonwealth v. Hand, 252 A.3d 1159, 1165 (Pa. Super. 2021) (citation
& quotation marks omitted).
The statutory requirement that a PCRA petition be filed within one year
of the date the judgment of sentence becomes final is a “jurisdictional
deadline” and a PCRA court may not ignore the untimeliness of a petition to
address the merits of the issues raised therein. Commonwealth v.
Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019) (citation omitted). See
also 42 Pa.C.S. § 9545(b)(1).
Here, Appellant’s judgment of sentence was final on October 31, 2017
— 90 days after the Pennsylvania Supreme Court denied allocatur review of
his direct appeal, and Appellant declined to petition the United States Supreme
Court for a writ of certiorari. See 42 Pa.C.S. § 9545(b)(3) (for purpose of
PCRA timeliness provisions, “a judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States . . . or at the expiration of time for seeking the review”); U.S.
Sup. Ct. R. 13 (“[A] petition for a writ of certiorari to review a judgment in
any case, . . . is timely when it is filed with the Clerk of this Court within 90
days after entry of the judgment.”). Thus, his current petition, filed nearly
three years later, is facially untimely. See 42 Pa.C.S. § 9545(b)(1).
Nevertheless, an untimely petition may be considered if one of the three
timeliness exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition
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invoking an exception must be filed “within one year of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Presently, Appellant invokes both the governmental interference and the
newly discovered facts exceptions set forth at Section 9545(b)(1)(i) and (ii).
See Appellant’s Amended Second Petition for Post Conviction Collateral Relief
at 6-7; Appellant’s Brief at 11. He combines these exceptions by arguing that
the Commonwealth interfered with his ability to raise this claim when it failed
to timely produce the single Paley 911 phone call it had in its possession,
which contradicted Paley’s testimony at trial that she made two calls. See
Appellant’s Amended Second Petition for Post Conviction Collateral Relief at
6-7. Appellant maintains that despite his due diligence in obtaining the 911
call, the Commonwealth “failed to provide the Second 911 call pre-trial or
disclose that they did not possess it during trial.” Appellant’s Brief at 11-13,
15 (record citation omitted). He avers he discovered the fact that the
Commonwealth possessed only one 911 call from Paley on July 27, 2020, and
filed his second PCRA petition sixty days later. Id. at 13.
The governmental interference exception provides relief if a petitioner
proves that “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[.]” 42 Pa.C.S. § 9545(b)(1)(i).
The proper question with respect to Subsection 9545(b)(1)(i)’s
timeliness exception is “whether the government interfered with
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Appellant’s ability to present his claim and whether Appellant was
duly diligent in seeking the facts on which his claims are based.”
Commonwealth v. Chimenti, 218 A.3d 963, 975 (Pa. Super. 2019) (citation
omitted), appeal denied, 229 A.3d 565 (Pa. 2020). In order to obtain relief
pursuant to the newly discovered facts exception, a petitioner must prove “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[.]” 42
Pa.C.S. § 9545(b)(1)(ii).
The crux of Appellant’s claim is that either Paley lied at trial when she
testified she made two calls to 911 on August 12, 2014, or the Commonwealth
continues to withhold the second 911 call from Appellant. Appellant
emphasizes the importance of the second call, which contained Paley’s
description of the culprit and his vehicle. He states: “Upon reviewing the
contents of the Second 911 call, [A]ppellant realized the witness[’s] ability to
identify [him] was extremely inconsistent with the witness[’s] testimony at
the Preliminary Hearing in a way that afforded the witness a better opportunity
to be able to identify [A]ppellant.” Appellant’s Brief at 15. He focuses on the
information provided in the “Police Dispatch Summary” — which includes the
same information Paley claims she told the dispatcher in the second call —
and compares it to the description of the culprit and vehicle Paley provided in
her preliminary hearing and trial testimony. See id. at 15, 30, 32-33.
Here, the PCRA court found Appellant failed to prove the applicability of
either timing exception. The court opined:
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Appellant contends . . . his [July 2020] receipt of a disc containing
the emergency services phone call and dispatch summary all aided
his discovery that [Paley] made only one 911 phone call on the
date of her burglary. Appellant alleges that this evidence . . .
contradicts [Paley’s] testimony during trial where she stated she
made two 911 phone calls.
Appellant argues that the Commonwealth interfered with his
diligent attempts to obtain [the] possible second phone call to
emergency services which allegedly constitutes newly discovered
evidence. However, two years after his judgment of sentence
became final, Appellant has not supplied any evidence to support
his assertion that the Commonwealth interfered with his ability to
obtain this information. On the contrary, the record shows
Appellant and his attorney were provided with a disc containing
the 911 emergency call recordings and dispatch summary.
Appellant’s own petition[,] which notes that his trial attorney
played an audio clip from another witness that was contained on
the same disc[,] demonstrates that Appellant was aware of such
evidence. Thus, it does not appear that the Commonwealth
interfered with Appellant’s access to evidence nor his ability to
timely file the instant PCRA petitions.
Furthermore, Appellant fails in his attempt to demonstrate
his alleged due diligence in learning this information. Appellant
cannot demonstrate that he was diligent in obtaining information
that had already been provided prior to trial. Moreover, because
Appellant cannot demonstrate that the Commonwealth in any
manner interfered with his access to this information and the
same was known to him prior to trial, he cannot satisfy the due
diligence requirement of the governmental interference exception
to the PCRA time bar. Thus, Appellant’s claim that his petition is
not time barred because it meets the governmental interference
exception is meritless.
Appellant also contends that his petitions are not time
barred because they meet the newly discovered facts exception[.]
Similar to [his] governmental interference claim, Appellant relies
on the 911 communications related to [Paley] as the basis for his
newly discovered facts exception claim. As detailed above,
however, Appellant received copies of the dispatch summary
and 911 call in the Commonwealth’s possession through
discovery before trial and the record shows that Appellant was
aware of these communications. Further, as explained above,
even if such facts were unknown to Appellant, he has failed to
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establish due diligence in discovering the same. Appellant’s
Second PCRA Petition and Amended Second PCRA Petition are thus
time barred.
PCRA Ct. Op. at 10-12 (emphases added).
We agree with the PCRA’s court’s analysis. Although Appellant insists
that he did not personally possess a copy of Paley’s 911 call and dispatch
summary before July of 2020, he concedes that trial counsel was in possession
of the discovery prior to trial. See Appellant’s Motion for Post Conviction
Collateral Relief, 9/25/20, at 8 (unpaginated), and Exhibit A. The
Commonwealth confirmed this in its answer to Appellant’s petition for writ of
mandamus. See Commonwealth’s Answer to Appellant’s Petition for Writ of
Mandamus at 2 (unpaginated) (“All materials related to [Paley’s August 12,
2014, 911 call] possessed by the Commonwealth were provided to
[Appellant’s] counsel pre-trial.”).
Therefore, when Paley testified at trial that she made two 911 calls on
August 12th, trial counsel would have known that the Commonwealth
provided only one recorded call from the date in question. However, the
Dispatch Summary, which was also provided in discovery, included the
relevant information, such as Paley’s description of the suspect and his car.5
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5 It appears that, for some reason, the second 911 call was not recorded.
Appellant attached to his brief a February 2022 email exchange between his
mother and Robbie Cain, Esquire, Assistant Bucks County Solicitor. See
Appellant’s Brief at Exhibit E. Although this email exchange is not part of the
certified record, it sheds some light on the “missing” second 911 call.
(Footnote Continued Next Page)
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See Appellant’s Amended Second Petition for Post Conviction Collateral Relief,
8/25/21, Exhibit 3. Accordingly, at the time of trial, Appellant’s counsel
possessed of all the information necessary to challenge Paley’s statement that
she made two 911 calls, as well as any discrepancies between the descriptions
she provided to the 911 dispatcher and her trial testimony. Thus, we agree
with the PCRA court that Appellant’s petition was untimely filed, and he is
unable to demonstrate that either the Commonwealth interfered with his
ability to present this claim, or he is in possession of newly discovered facts,
which he could not have obtained earlier by the exercise of due diligence. See
42 Pa.C.S. §§ 9545(b)(1)(i)-(ii).
Order affirmed.
____________________________________________
Appellant’s mother requested information concerning the second 911
call under Pennsylvania’s Right to Know Law. See Appellant’s Brief at Exhibit
E. Attorney Cain responded that he “spoke with 911,” who informed him the
second call was “supplemented into the first one since . . . it was still open at
[the] second time.” Id.
A review of the Dispatch Summary reveals Paley’s first call was received
at 1:52 p.m. See Appellant’s Amended Second Petition for Post Conviction
Collateral Relief, 8/25/21, Exhibit 3. The dispatcher noted: “Unk[nown] how
entry was made, jewelry and other belongings missing, has been thru the
house, [advised] to wait outside.” Id. At 1:58 p.m., there is a notation:
“HOLD.” Id. The next notation, entered at 2:07 p.m., states: “Male just ran
away, got into blue Ford Focus, Richlieu twds Galloway[,] WM . . . early 20’s,
black hair, olive green shirt.” Id. More information was provided at 2:09 and
2:12 p.m. See id. Thus, it appears the “HOLD” at 1:58 p.m. indicates the
time between the first and second 911 calls.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2022
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