Com. v. Wyant, D. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DANIEL CARL WYANT, : No. 337 WDA 2019
:
Appellant :
Appeal from the PCRA Order Entered January 28, 2019,
in the Court of Common Pleas of Erie County
Criminal Division at Nos. CP-25-CR-0000249-1992,
CP-25-CR-0000307-1992
BEFORE: SHOGAN, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 19, 2020
Daniel Carl Wyant appeals, pro se, from the January 28, 20191 order
entered by the Court of Common Pleas of Erie County denying appellant’s sixth
serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The trial court set forth the following procedural history:
[Appellant] was tried by jury on May 12 through
May 14, 1992. On May 14, 1992, he was found guilty
of second degree murder, robbery, criminal
conspiracy to commit robbery, recklessly endangering
another person, terroristic threats, and carrying a
firearm without a license. On June 22, 1992, he was
sentenced to life in prison on the homicide charge and
received additional time on related charges at the
1 While the PCRA court’s order denying appellant’s petition is dated
January 25, 2019, the order was not entered by the Clerk of Courts until
January 28, 2019. We have amended the caption accordingly.
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above two docket numbers.[2] [Appellant] filed a
motion for reconsideration of sentence, which was
denied. [Appellant] failed to file a timely direct
appeal, but pursuant to a [PCRA] petition filed
October 30, 1992, the trial court allowed his request
to file a direct appeal nunc pro tunc. On direct
appeal, the Superior Court affirmed his convictions
but vacated his robbery sentence which merged with
the felony murder charge, therefore no resentencing
was necessary. That Superior Court order was issued
October 4, 1994.
On February 7, 1996, [appellant] filed a PCRA petition
and counsel was appointed. Counsel amended the
petition to solely raise legality of sentence questions.
On October 22, 1996, the petition was dismissed. An
appeal to the Superior Court followed, and the [PCRA]
court opinion was affirmed on March 31, 1998. The
Supreme Court [of Pennsylvania] denied allowance of
appeal. [Appellant] filed four subsequent PCRA
petitions, all of which were denied, appealed and
affirmed or dismissed by the Superior Court.
[Appellant] filed the instant PCRA [petition] on
July 25, 2018 and an amended petition on October 25,
2018. [Appellant] alleges that the first autopsy
performed on the victim showed that the victim died
as a result of injuries sustained in a car accident and
that only after a subsequent autopsy did the coroner
discover [] the bullet hole and bullet embedded in the
victim’s chest cavity. [Appellant] claims that the first
coroner’s report was “intentionally destroyed,” and
that it was not turned over to the defense during
discovery. He further claims that the Commonwealth
“fabricated the discovery of the spent slug found in
the decedent’s body.” He also claims that the
prosecution suppressed “a December 11, 1991
video-taped recording of the decedent.” [Appellant’s]
amended petition challenges the pathologist’s
methodology for determining the pathway of the
2The Commonwealth charged appellant with homicide at Docket No. CP-25-
CR-0000249-1992. The Commonwealth filed the remaining charges at Docket
No. CP-25-CR-0000307-1992.
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bullet through the victim’s heart (by using a coat
hanger to probe the wound pathway) was not
scientifically sound, in light of [appellant’s] recent
internet inquiry to another pathologist.
PCRA court notice of intent to dismiss without a hearing, 12/4/18 at 2-4
(extraneous capitalization and citations to the record omitted).
On December 4, 2018, the PCRA court filed a notice of intent to dismiss
appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant
subsequently filed a response. On January 28, 2019, the PCRA court entered
an order dismissing appellant’s PCRA petition.
Appellant filed a timely notice of appeal on February 27, 2019. On
March 1, 2019, the PCRA court ordered appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and
appellant timely complied. In lieu of filing an opinion pursuant to
Pa.R.A.P. 1925(a), the PCRA court relies upon the analysis set forth its
Rule 907 notice of intent to dismiss appellant’s PCRA petition.
Before we can address appellant’s issues on appeal, we must first
determine whether appellant filed a notice of appeal in compliance with the
requirements set forth in the Pennsylvania Rules of Appellate Procedure and
our supreme court’s directive in Commonwealth v. Walker, 185 A.3d 969
(Pa. 2018). In Walker, our supreme court provided a bright-line mandate
requiring that “where a single order resolves issues arising on more than one
docket, separate notices of appeal must be filed for each case,” or the appeal
will be quashed. Id. at 971, 976-977. The Walker court applied its holding
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prospectively to any notices of appeal filed after June 1, 2018. In the instant
case, the notice of appeal was filed on February 27, 2019, and therefore, the
Walker mandate applies. The appeal before us was from a single order
resolving issues arising on both docket numbers. A review of the record
demonstrates that appellant filed one notice of appeal including both docket
numbers in violation of our supreme court’s mandate in Walker.
Our inquiry cannot end here. A recent en banc panel of this court held
that we may overlook the requirements set forth in Walker in cases where a
breakdown in the court system occurs. Commonwealth v.
Larkin, A.3d , 2020 WL 3869710 at *3 (Pa.Super. July 9, 2020)
(en banc); see also Commonwealth v. Stansbury, 219 A.3d 157
(Pa.Super. 2019). The panels in both Larkin and Stansbury held that a
breakdown in the court system included instances in which the trial or PCRA
court provides appellant with misinformation. Stansbury, 219 A.3d at 160;
Larkin, 2020 WL 3869710 at *3.
Here, our review of the record reveals a breakdown in the court system
similar to the scenarios presented in Larkin and Stansbury. Indeed, the
PCRA court’s order dismissing appellant’s PCRA petition states that,
“[appellant] is hereby notified that he has thirty (30) days from the date of
this order to file his notice of appeal.” (PCRA court order, 1/25/19
(extraneous capitalization omitted; emphasis added).) At no point did the
PCRA court notify appellant that he was required to comply with the mandates
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of Walker. Accordingly, we will overlook the requirements of Walker and
will proceed to review the issues raised by appellant on appeal.
Appellant raises the following issues for our review:
1.) Did appellant’s claims of the Commonwealth’s
intentional destruction/failure to preserve the
decedent’s “autopsy report[,”] and willful
suppression of the “1991 Video-Tape” evidence
raise any genuine issues of material fact?
2.) Did the PCRA [c]ourt abuse its discretion by
failing to consider or address the sworn affidavits
and evidence that were provided by affiants,
Deborah Mongenel and Robert Grinnell as
exhibits to support appellant’s PCRA petition
claims?
3.) Should the untimeliness of appellant’s PCRA
petition be excused since appellant properly
invoked and proved the requirements of
delineated sections 42 Pa.C.S.A. § 9545(b)(1)(i)
and 42 Pa.C.S.A. § 9545(b)(1)(ii) of the
Pennsylvania [PCRA]?
4.) Is the appellant entitled to an opportunity to
demonstrate that his conviction was obtained
from the use of false evidence, and perjury which
was knowingly used by the Commonwealth
bin [sic] violation of article 1, section 8 & 9 of the
Pennsylvania Constitution, and the Fourteenth
Amendment of the United States Constitution?
5.) Was appellant’s defense consel [sic]
constitutionally ineffective under article 1
section 9 of the Pennsylvania Constitution,
mand [sic] the Sixth Amendment to the United
States Constitution?
6.) Did appellant’s defense counsel’s ineffectiveness
deprive appellant of a fair trial proceeding in
violation of the Sixth and Fourteenth
Amendments to the United States Constitution?
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7.) Did the PCRA [c]ourt err when it determined that
appellant’s PCRA petition did not raise any
genuine issues of material fact?
8.) Did the PCRA [c]ourt abuse its discretion when it
failed to consider or address appellant’s request
for issuance of subpoena duces tecum related
to appellant’s PCRA claims?
Appellant’s brief at 6 (emphasis in original).
Preliminarily, we note that appellant failed to divide the argument
section of his brief into as many parts as there are questions to be answered
pursuant to Pa.R.A.P. 2119(a). We have the authority to dismiss appeals for
failing to comply with the Rules of Appellate Procedure and will do so in cases
where such a failure hinders our ability to conduct meaningful appellate
review. In re R.D., 44 A.3d 657, 675 (Pa.Super. 2012), appeal denied, 56
A.3d 398 (Pa. 2012), citing Commonwealth v. Hardy, 918 A.2d 766, 771
(Pa.Super. 2007), appeal denied, 940 A.2d 362 (Pa. 2008); see also
Pa.R.A.P. 2101 (requiring that briefs conform with all material aspects of the
relevant Rules of Appellate Procedure and granting appellate courts the power
to quash or dismiss appeals in cases where defects in the brief are
substantial). Here, because our ability to conduct meaningful appellate review
has not been hindered despite appellant’s violation of Rule 2119(a), we will
not dismiss his appeal.
Based on our reading of appellant’s brief, the following issues for
appellate review can be gleaned from the point headings:
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I. [Whether] the PCRA court’s opinion and
determinations are based on disinformation and
incorrect interpretations of the facts and
evidence presented[?]
II. [Whether] the PCRA court failed to address
affidavits and genuine issues of material facts
raised in [appellant’s] PCRA petition[?]
III. [Whether] the untimeliness of appellant’s PCRA
petition should be excused because appellant
properly established the “after-discovered
facts” and “governmental interference”
exceptions to the timeliness requirement
pursuant to 42 Pa.C.S.[A.] § 9545(b)(1)(i) and
§ 9545(b)(1)(ii)[?]
Appellant’s brief at table of contents (extraneous capitalization omitted).
For ease of discussion, we begin with appellant’s third issue. The PCRA
requires that any petition for collateral relief be filed within one year of the
date that the 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 time for seeking the
review.” Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014),
quoting 42 Pa.C.S.A. § 9545(b)(3).
Here, appellant’s judgment became final on November 3, 1994,
following the conclusion of the period in which appellant could have filed a
petition for an allowance of appeal with the Supreme Court of Pennsylvania.
See Pa.R.A.P. 1113(a). Appellant filed the instant PCRA petition on July 25,
2018—over 24 years after his judgment of sentence because final and over
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23 years after a PCRA petition could be considered timely. See 42 Pa.C.S.A.
§ 9545(b)(1). Accordingly, appellant’s petition is facially untimely.
A petitioner may only file a PCRA petition beyond one year of the date
the judgment of sentence becomes final if:
(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
(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)(i)-(iii).
“[T]he time limitations pursuant to . . . the PCRA are
jurisdictional.” Commonwealth v. Fahy, [] 737 A.2d
214, 222 ([Pa.] 1999). “[Jurisdictional time]
limitations are mandatory and interpreted literally;
thus, a court has no authority to extend filing periods
except as the statute permits.” Id. “If the petition is
determined to be untimely, and no exception has been
pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the
petition.” Commonwealth v. Perrin, 947 A.2d
1284, 1285 (Pa.Super. 2008).
Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012). In cases in which a petitioner is claiming an
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exception to the PCRA time-bar, the petition must be filed within one year of
the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
Here, appellant contends that his claims fall under the after-discovered
evidence exception to the PCRA time-bar. (Appellant’s brief at 13.)
Our Supreme Court has made plain that the analysis
of whether a PCRA petitioner has satisfied the
§ 9545(b)(1)(ii) time-bar exception is analytically
distinct from the merits of any substantive claim
seeking relief. As stated in Commonwealth v.
Bennett, [] 930 A.2d 1264 ([Pa.] 2007):
The text of the relevant subsection
provides that “the facts upon which the
claim is predicated were unknown to
petitioner and could not have been
ascertained by due diligence.”
42 Pa.C.S.[A.] § 9545(b)(1)(ii). . . .
[T]he plain language of subsection
(b)(1)(ii) does not require the petitioner
to allege and prove that there were “facts”
that were “unknown” to him and that he
exercised “due diligence.”
Id. at 1270.
Commonwealth v. Robinson, 185 A.3d 1055, 1059 (Pa.Super. 2018)
(en banc), appeal denied, 192 A.3d 1105 (Pa. 2018).
Here, appellant states in his brief that his “discovery efforts were
triggered by an ‘undated contemporaneous newspaper article[,’] which refers
to the trial [o]f appellant.” (Appellant’s brief at 23.)
The newspaper article indicates that “Erie Patrolmen
Jack Ciecierski and Luke Yates told jurors that a
St. Vincent Health Center doctor initially informed
them that Donald Kremer died from a broken neck[.”]
[T]hus, appellant averred that his receipt of the
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newspaper article in January of 2018 triggered
a pursuit by his family to review discovery
evidence, and autopsy reports of
Donald Kremer, which appellant never
possessed.
Id. (citation omitted; emphasis added).
Based on the averment contained in appellant’s brief, the facts upon
which appellant’s claim is predicated have been known to appellant since
May 12, 1992. Indeed, the record of appellant’s trial reflects that
Officer Ciecierski was initially told that Mr. Kremer “had succumbed from a
broken neck and massive internal chest injuries.” (Notes of testimony,
5/12/92 at 92.) Put another way, appellant did not learn of this testimony
through reading a newspaper article in January of 2018, as he was present
during Officer Ciecierski’s testimony on May 12, 1992. Accordingly,
appellant’s newly discovered evidence claim is without merit.
We further note that on several occasions throughout his brief, appellant
appears to raise an ineffective assistance of counsel claim. (See appellant’s
brief at 12-14, 23.) Ineffective assistance of counsel is not an exception to
the PCRA time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Accordingly, we
do not have jurisdiction to review the merits of appellant’s claims.
Since appellant’s petition is facially untimely and does not meet any of
the enumerated exceptions to the PCRA time-bar, we need not address his
remaining issues.
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Order affirmed.
McLaughlin, J. joins this Memorandum.
Shogan, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2020
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