Com. v. Corliss, J. ( 2023 )

J-S30019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN CORLISS :
:
Appellant : No. 1051 EDA 2022
Appeal from the PCRA Order Entered March 7, 2022
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001749-2013
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 6, 2023
Justin Meredith Corliss (Appellant) appeals, pro se, from the order
entered in the Monroe County Court of Common Pleas dismissing his second
petition filed pursuant to the Post Conviction Relief Act1 (PCRA). Appellant
seeks relief from the judgment of sentence of an aggregate 30 to 60 years’
imprisonment imposed following his jury conviction of involuntary deviate
sexual intercourse (IDSI) with a child2 and related offense for the sexual abuse
of his minor daughter, C.C.3 On appeal, Appellant argues the PCRA court
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 See 18 Pa.C.S. § 3123(b).
3As we note infra, the charges at this trial court docket ─ CP-45-CR-0001749-
2013 (Trial Docket 1749-2013) ─ were tried jointly with charges filed at trial
(Footnote Continued Next Page)
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erred and abused its discretion by: (1) concluding his petition was untimely
filed and that he failed to produce prima facie evidence that a miscarriage of
justice occurred; (2) concluding his claims were previously litigated; and (3)
ignoring issues concerning the ineffective assistance of trial counsel. For the
reasons below, we affirm.
The relevant facts and procedural history underlying Appellant’s
convictions were summarized by this Court in the memorandum decision
affirming the denial of his first PCRA petition:
[Appellant] operated a pet store in Monroe County. In 1993,
[Appellant] commenced a romantic relationship with his
coworker, K.V. Shortly thereafter, [Appellant] moved in the
residence K.V. shared with her minor daughter, R.V. In
1995, when R.V. was approximately nine years old,
[Appellant] began to molest R.V. At first, [Appellant] would
tickle R.V. when they played together. [Appellant’s]
behavior escalated, however, and he began placing his
hands down R.V.’s pants. [Appellant] digitally penetrated
R.V. on multiple occasions between 1995 and 1997. The
abuse occurred at K.V.’s residence, often while K.V. was in
another room. On one occasion, [Appellant] inappropriately
touched R.V. during a car trip to New York. The molestation
continued until 1997, when [Appellant] moved out of K.V.’s
residence. R.V. did not immediately report the abuse.
In 1996, fourteen-year old [D.G.] began to work at
[Appellant’s] pet store. . . . After [D.G.] started working at
the pet store, [Appellant] would tickle her. [Appellant's]
behavior escalated, and he began placing his hands down
[D.G.’s] pants. Eventually, [Appellant] and [D.G.] engaged
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court docket CP-45-CR-0002173-2013 (Trial Docket 2173-2013), which
involved sexual offenses committed against another minor victim, R.V. An
appeal from the denial of Appellant’s second PCRA petition filed in that case is
pending before this panel. See Commonwealth v. Corliss, 444 EDA 2022.
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in sexual intercourse. [Appellant] also performed oral sex
on [D.G.] on multiple occasions[ and fondled her during car
trips to New York.]
. . . In 1997, [D.G’s] mother learned about the abuse and
immediately informed the police.
[Appellant was charged] with multiple offenses related to
the molestation of [D.G., and following a jury trial, was]
convicted . . . of two (2) counts of statutory sexual assault
and one (1) count each of aggravated indecent assault,
indecent assault, and corruption of minors. On August 20,
1998, the [trial] court sentenced [Appellant] to an
aggregate term of four (4) to ten (10) years’ imprisonment.
This Court affirmed the judgment of sentence on November
30, 1999. See Commonwealth v. Corliss, 750 A.2d 366(Pa. Super. 1999) (unpublished memorandum).
Prior to the start of the 1998 trial, [Appellant] met C.T. at
the pet store. [Appellant] and C.T. married, and C.T.
became pregnant before [Appellant’s] sentencing hearing.
C.T. gave birth to [Appellant's] daughter, C.C., in 1999
while [Appellant] was incarcerated. [Appellant] remained
incarcerated until 2008. Upon his release, [Appellant]
returned to live with C.T. and C.C. C.T. had no concerns
about [Appellant] being around C.C., because [Appellant]
had convinced C.T. that he was actually innocent of the
charges pertaining to [D.G.] When [Appellant] would play
with C.C., C.T. noticed that [Appellant] tickled the child and
scratched the child’s back. The tickling started to bother
C.C., and she asked [Appellant] not to touch her, but C.T.
did not intervene. [Appellant’s] relationship with C.T. ended
in 2010, after C.T. discovered that [Appellant] was having
an affair with another teenager. In 2013, C.C. informed C.T.
that [Appellant] had molested her. C.C. claimed that
[Appellant] would put his hands down her pants and touch
her vagina, exposed his penis to C.C., and attempted to
force the child to perform oral sex on him.
Police arrested [Appellant] for the offenses against C.C. in
July 2013. The media reported on [Appellant's] arrest, and
R.V. saw the coverage. R.V. decided to contact police and
inform them of the abuse she suffered from 1995 until 1997.
At [Trial Docket 1749-2013], the Commonwealth charged
[Appellant] with sex offenses committed against C.C. At
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[Trial Docket 2173-2013], the Commonwealth charged
[Appellant] with sex offenses committed against R.V.
The two cases involving the allegations of C.C. and R.V. were
tried together, and at that joint trial, the Commonwealth was
permitted to introduce evidence of [Appellant’s] prior conduct
toward D.G. in [the 1998 case.4]
[Appellant] was found guilty of offenses against both C.C.
and R.V., and as to the counts concerning C.C. [at Trial Docket
1749-2013], he was sentenced to a total prison term of 30 to 60
years.[5] The judgment of sentence was affirmed[, and the
Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal]. Commonwealth v. Corliss, 108 EDA 2017
(Pa. Super. Dec. 8, 2017) (unpublished memorandum)[, appeal
denied, 176 MAL 2018 (Pa. Oct. 30, 2018)]. . . .
Commonwealth v. Corliss, 1272 EDA 2020 (Pa. Super. Apr. 30, 2021)
(unpub. memo. at 2-4) (some citations omitted), appeal denied, 433 MAL
2021 (Pa. Nov. 30, 2021). Appellant was represented at trial by Adam W.
Bompadre, Esquire, but requested to proceed pro se following the verdict, and
has continued to represent himself since that time.
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4 Initially, the trial court denied the Commonwealth’s pretrial motion in limine
seeking to introduce evidence of Appellant’s prior bad acts, including the
“molestation of D.G.” See Commonwealth v. Corliss, 2091 EDA 2014, 2105
EDA 2014 (unpub. memo. at 5-6) (Pa. Super. July 14, 2015), appeal denied,
630 MAL 2015 (Pa. Dec. 7, 2015). However, the Commonwealth filed an
interlocutory appeal to this Court, which reversed the court’s ruling. See id.
at 16-18.
5 The trial court imposed a sentence of 9 to 18 years’ imprisonment for the
convictions at Trial Docket 2173-2013, and directed the sentences in that case
run consecutively ─ thus, Appellant’s aggregate sentence was 39 to 78 years’
imprisonment. The court also determined Appellant was a sexually violent
predator under the predecessor to the Sexual Offender Notification and
Registration Act (SORNA). See 42 Pa.C.S. §§ 9799.51-9799.75 (Subchapter
I).
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Appellant filed a timely, pro se, PCRA petition on October 28, 2019,
followed by an amended petition on January 7, 2020. After conducting an
evidentiary hearing, the PCRA court denied Appellant relief on May 27, 2020.
A panel of this Court affirmed on appeal, and on November 30, 2021, the
Pennsylvania Supreme Court denied Appellant’s petition for allocatur review.
See Corliss, 1272 EDA 2020; 433 MAL 2021.
On February 7, 2022, Appellant filed the present PCRA petition, his
second. The PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss
the petition on February 9th. The court concluded: (1) the petition was
untimely filed and Appellant failed to plead any of the timeliness exceptions;
(2) the issues raised were either previously litigated or waived; and (3)
Appellant failed to demonstrate a “strong prima facie showing that the
allegations of error have either resulted in the conviction or affirmance of an
innocent individual or that there has been a miscarriage of justice.” See
Notice Pursuant to Pa.R.C[rim].P. 907, 2/9/22, at 1-2. Appellant did not
respond to the Rule 907 notice; thus, on March 7, 2022, the PCRA court denied
Appellant’s petition.6 This timely appeal follows.7
Appellant presents the following four issues for our review:
1. Whether the PCRA court erred and abused its discretion in
claiming the second PCRA filed was untimely, where a
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6 The court’s order was sent to the parties on March 8, 2022.
7Appellant complied with the PCRA court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
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subsequent PCRA may not be filed while Appellant’s first timely
PCRA was pending on appeal, rendering his second PCRA timely
as it was filed promptly after the first PCRA’s appeal concluded,
and, with the, claimed to be jurisdictional, one year time
frame[?]
2. Whether the PCRA court erred and abused its discretion in
claiming that Appellant had not produced strong prima facie
evidence of both his actual innocence and that the convictions
resulted in a miscarriage of justice[?]
3. Whether the PCRA court erred and abused its discretion in
claiming that any issue raised has truly been “previously
litigated,” and, whether blindly asserting such renders resort to
the strictures of the PCRA fundamentally unfair, resulting in a
violation of due process[?]
4. Whether the PCRA court erred and abused its discretion in
ignoring the issues of: (1) counsel’s failure to pursue the
defense of recent fabrication, (2) counsel’s failure to object to
any reference to Appellant’s unconstitutionally obtained
conviction from 1998; (3) counsel’s failure to compel a jury
determination of mens rea as to any crime of violence, where
no evidence of violence was testified to, (4) counsel’s failure to
object to the constructive amendment of the jury instruction
that redefined penetration, (5) counsel’s failure to pursue
expert testimony regarding the exculpatory DNA results from
1998, and, (6) counsel’s failure to pursue the defense of recent
fabrication with evidence available to him, when, none of these
issues were previously litigated, at no fault of . . . Appellant,
thus resulting in merely an extension of Appellant’s first PCRA
to obtain rulings on issues ignored by the PCRA court[?]
Appellant’s Brief at 4-5.
Our review of an order denying PCRA relief is well-established. “[W]e
examine whether the PCRA court's determination is supported by the record
and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283–
84 (Pa. 2016) (citation and quotation marks omitted). Here, the PCRA court
determined Appellant’s second PCRA petition was untimely filed, and,
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moreover, all of the issues raised therein were either previously litigated or
waived. See Order, 3/7/22, at 1-2. We agree.
The statutory requirement that a PCRA petition must 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 January 28, 2019,
90 days after the Pennsylvania Supreme Court denied his petition for allocatur
review from his direct appeal, and the time for filing a writ of certiorari with
the United States Supreme Court expired. See U.S. Sup. Ct. R. 13. Therefore,
he had until January 28, 2020, to file a timely PCRA petition, which he did on
October 28, 2019. However, the present petition ─ Appellant’s second ─ was
filed more than two years later, on February 7, 2022, and is, therefore,
untimely.
Nevertheless, Section 9545(b)(1) provides three exceptions to the time
for filing requirement:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date
the judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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;
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(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
(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. § 9545(b)(1)(i)-(iii) (emphasis added). It is the petitioner’s
“burden to allege and prove that one of the timeliness exceptions
applies.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
Appellant does not even acknowledge the timeliness exceptions set forth
in Section 9545(b)(1), let alone attempt to plead or prove their applicability
to his claims. Rather, he maintains that his second petition was timely filed
within one year of the date his first PCRA petition was final. See Appellant’s
Brief at 13. Appellant argues that pursuant to the Pennsylvania Supreme
Court’s decision in Commonwalth v. Lark, 746 A.2d 585 (Pa.
2000), overruled on other grounds by Commonwealth v. Small, 238
A.3d 1267 (Pa. 2020), he was not permitted to file a second petition while the
appeal from the denial of his first PCRA petition was pending in this Court.
See Appellant’s Brief at 13. Because “[f]iling and litigating one PCRA petition
in a year’s time is near to impossible,” Appellant insists “it is reasonable to
assume that tolling was implied” by the legislature. Id. at 16.
Appellant’s analysis is simply incorrect. In Lark, the Supreme Court
held that a petitioner may not file a subsequent PCRA petition while a prior
petition is pending. See Lark, 746 A.2d at 588. However, the Court further
acknowledged: “If the subsequent petition is not filed within one year of the
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date when the judgment became final, then the petitioner must plead and
prove that one of the three exceptions to the time bar under 42 Pa.C.S. §
9545(b)(1) applies.” Id. Indeed, the one-year time-for-filing requirement
begins to run from the date the petitioner’s judgment of sentence is final ─
that is, “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 time for seeking the review.” 42 Pa.C.S.
§ 9545(b)(3) (emphasis added). It does not run from the conclusion of
collateral review, nor does the filing of a timely first petition toll the period
to file a second petition. Furthermore, as noted supra, Appellant did not
attempt to plead or prove any of the timeliness exceptions set forth at Section
9545(b)(1). The Supreme Court has recognized that the “jurisdictional time
limitation, as well as the inability to file a new petition while a prior petition
[is] pending, . . . has created a collateral review process under which a
petitioner will be able, as a practical matter, to file only a single, counseled
petition for relief.” Commonwealth v. Bradley, 261 A.3d 381, 391 (Pa.
2021) (citations omitted). Thus, we agree with the PCRA court’s
determination that Appellant’s February 7, 2022, petition was untimely filed.
To the extent Appellant implies we may ignore the timeliness
requirements when a “miscarriage of justice” has occurred, he is again,
mistaken. See Appellant’s Brief at 22-23. In Commonwealth v. Lawson,
549 A.2d 107 (Pa. 1988), the Pennsylvania Supreme Court permitted the filing
of a second or subsequent post-conviction request for relief if the petitioner
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made “a strong prima facie showing . . . that a miscarriage of justice may
have occurred.” Id. at 112. However, Lawson predated the 1995
amendments to the PCRA, which added the jurisdictional time bar. Therefore,
Lawson is no longer binding authority. Indeed, the Supreme Court has
recognized that the timeliness requirements are jurisdictional in nature, the
“time limitations are not subject to equitable exceptions” and “a court may
not address the merits of the issues raised if the PCRA petition was not timely
filed.” See Commonwealth v. Taylor, 283 A.3d 178, 188 (Pa. 2022);
Commonwealth v. Abu-Jamal, 833 A.2d 719, 723–24 (Pa. 2003). Thus,
we conclude, as did the PCRA court, that we have no jurisdiction to consider
Appellant’s February 7, 2022, petition.
Appellant also contends, however, that a “remand is required” because
the PCRA court’s Rule 907 notice was insufficient to inform him “what facts or
pleadings were deficient, [and] what was required to cure, amend or replead
the petition[.]” See Appellant’s Brief at 17, 19. Again, we disagree. The
PCRA court’s Rule 907 notice clearly stated: (1) Appellant’s petition was
untimely filed more than one year after his judgment of sentence was final,
and Appellant failed to raise any of the timeliness exceptions; (2) the issues
raised were “without merit, or were previously litigated, or should have been
previously litigated in [his] direct appeal of the judgment of sentence or first
PCRA petition[;]” and (3) Appellant’s petition failed to make a “prima facie
showing” that he was innocent of the crimes charged or there had been a
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“miscarriage of justice.” Notice Pursuant to Pa.R.C[rim].P. 907 at 1-2. Thus,
no remand is required.
Although we have concluded that Appellant’s petition was untimely filed,
and, thus, we have no jurisdiction to address the claims raised therein, we
nevertheless note that we also agree with the PCRA court’s determination that
the issues Appellant presented in his petition are all either previously litigated
or waived. See 42 Pa.C.S. § 9543(a)(3) (to be eligible for relief, a petition
must plead and prove the “allegation of error has not been previously litigated
or waived”). Pursuant to Section 9544, an issue is previously litigated if either
“the highest appellate court in which the petitioner could have had review as
a matter of right has ruled on the merits of the issue; or . . . it has been raised
and decided in a proceeding collaterally attacking the conviction or sentence.”
42 Pa.C.S. § 9544(a)(2)-(3). Moreover, an issue is waived “if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. §
9544(b).
Despite Appellant’s protestation that “the expiration of the statute of
limitations remains unlitigated,”8 we conclude that his argument was
previously litigated in both his direct appeal and the appeal from the denial of
his first PCRA petition. See Corliss, 108 EDA 2017 (unpub. memo. at 7-10);
Corliss, 1272 EDA 2020 (unpub. memo. at 6-7). Indeed, pursuant to 42
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8 See Appellant’s Brief at 35.
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Pa.C.S. § 5552(c)(3), the two-year limitations period did not begin to run until
C.C. turned 18 years old. As noted above, C.C. was born in 1999, and the
abuse occurred sometime between October 2009 and June 2010, when she
would have been 10 or 11 years old. See Corliss, 1272 EDA 2020 (unpub.
memo. at 3); Criminal Information, 8/16/13. C.C. did not turn 18 years of
age until 2017. Therefore, when the charges were filed in 2013, the statute
of limitations period had not expired.
Lastly, with regard to the myriad of ineffectiveness claims, we conclude,
again, that most of these issues were previously litigated in his first PCRA
petition and addressed by the PCRA court in its lengthy opinion disposing of
Appellant’s claims filed at this docket and Trial Docket 2173-2013. See PCRA
Court Op., 5/27/21, at 24-27, 31-32 (failure to present defense of recent
fabrication); 13, 55-57 (failure to object to evidence of 1998 conviction); 23,
33-43 (failure to present expert testimony regarding 1998 DNA results).
Appellant presents two additional claims ─ criticizing Attorney Bompadre’s
failure to object to a jury instruction which “redefined penetration” and request
a jury determination regarding mens rea ─ which we conclude are waived.
See Appellant’s Brief at 38. Although Appellant challenged the court’s
instruction on penetration in his first PCRA petition, he did not assert prior
counsel was ineffective for failing to raise the claim before the trial court. See
Appellant’s Amended Post-Conviction Relief Act Petition, 1/7/20, at 73-83.
Accordingly, that claim is waived. Furthermore, our review reveals no claim
asserting Attorney Bompadre’s ineffectiveness to failing to request a mens rea
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instruction. Thus, that claim, too, is waived for our review. See 42 Pa.C.S.
§ 9544(b).
Because we conclude Appellant’s second PCRA petition was untimely
filed, and Appellant failed to plead or prove any of the time-for-filing
exceptions, we affirm the order denying PCRA relief.
Order affirmed. Appellant’s Petition to Waive the Right to Counsel on
Appeal and Application to Quash the Commonwealth’s Brief are both denied.9
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2023
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9 Pursuant to Pa.R.Crim.P. 904(C), a petitioner has “a general rule-based right
to the assistance of counsel for their first PCRA Petition.” Commonwealth v.
Cherry, 155 A.3d 1080, 1082 (Pa. Super. 2017). However, an unrepresented
indigent petitioner is entitled to counsel on a second or subsequent petition
only when “an evidentiary hearing is required[.]” Pa.R.Crim.P. 904(D). Thus,
Appellant was not entitled to counsel in the present case, and there was no
need for the PCRA court to conduct a Grazier hearing. See Commonwealth
v. Grazier, 713 A.2d 81 (Pa. 1998). Furthermore, while we note with
disapproval that late filing of the Commonwealth’s Appellee Brief, we decline
to quash the brief.
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