Com. v. Crawford, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RICHARD MAX CRAWFORD :
:
Appellant : No. 793 WDA 2022
Appeal From the PCRA Order Entered June 3, 2022
In the Court of Common Pleas of Bedford County Criminal Division at
No(s): CP-05-CR-0000109-2005
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: MAY 15, 2023
Appellant, Richard Max Crawford, appeals from the post-conviction
court’s June 3, 2022 order denying his second, untimely petition for collateral
relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
We affirm.
We previously set forth the factual history of this case as follows in our
memorandum decision affirming Appellant’s judgment of sentence:
The charges in this case stem from incidents involving Crawford
and J.M., the minor daughter of his former girlfriend, which
occurred over the course of many years. During the 1990’s,
Crawford lived with J.M., her mother (“Mother”) and her younger
sister. When Mother was at work, Crawford would watch J.M. and
her sister. Crawford began living with J.M. and her family in 1990.
In 1992, Crawford began sexually molesting J.M., who was then
seven years old. The molestation continued until 1996, when J.M.
was 12 years old. It ceased when Crawford and Mother ended
their long and tumultuous relationship[,] and Crawford moved out
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* Retired Senior Judge assigned to the Superior Court.
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of their home permanently. J.M. did not tell anyone about what
Crawford did to her until 2004, when she was 19 years old. J.M.
confided in a boyfriend, who in turn informed Mother. At her
family’s urging, J.M. reported the incidents to the Pennsylvania
State Police. In order to substantiate her claims, the police
suggested that J.M. wear a recording device and speak with
Crawford about these incidents, and J.M. agreed. In late 2004,
J.M. met with Crawford[,] and their conversation was intercepted
and recorded by the police. Based on the content of that
conversation, State Trooper Joseph Kovel (“Kovel”) contacted
Crawford and asked him to come to the police barracks. Crawford
agreed. At the barracks, Kovel informed Crawford of the
allegations being made by J.M., at which point Crawford confessed
that he had engaged in sexual contact with J.M. over the course
of many years. Crawford described these incidents in a written
statement, admitting that these incidents occurred as frequently
as twice a month, or 24 times a year. After providing a written
statement, Crawford left the barracks and returned home.
Commonwealth v. Crawford, No. 1547 WDA 2007, unpublished
memorandum at *1-3 (Pa. Super. filed June 23, 2009). Appellant was
sentenced to a term of 25 to 50 years’ incarceration and was determined to
be a sexually violent predator (“SVP”). Appellant sought review with our
Supreme Court, which denied his petition on December 9, 2009. Appellant
subsequently sought relief under the PCRA, with the PCRA court denying relief
following an evidentiary hearing. We affirmed. Commonwealth v.
Crawford, 1446 WDA 2011, unpublished memorandum (Pa. Super. filed July
10, 2012).
This appeal concerns Appellant’s second, counseled petition seeking
collateral relief, which was originally filed on April 17, 2018. Appellant
thereafter filed a pro se PCRA petition and a motion to proceed pro se. The
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PCRA court granted Appellant’s request to represent himself after a Grazier1
hearing, and counsel withdrew. Appellant was ordered to file an amended
petition, which was filed on September 16, 2021.2 The PCRA petition raised
“issues regarding the legality of his sentences, violation of the rule[s] of
criminal procedure, prejudicial remarks made by the prosecutor,
ineffectiveness of counsel, [and] defective jury instructions.” PCRA Court
Opinion (“PCO”), 6/3/22, at 3-4.
The PCRA court determined that the petition was untimely with respect
to all claims except allegations concerning Appellant’s sexual offender
obligations pursuant to Subchapter I of the Sexual Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.51-9799.75. The PCRA court
entered an order denying relief, concluding that Appellant failed to plead any
of the statutory exceptions to the time-bar and that his arguments regarding
his SORNA obligations were meritless. Appellant filed a timely notice of
appeal3 and complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)
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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
2 The PCRA court’s opinion notes that it granted Appellant’s several requests
to extend deadlines to file the amended petition.
3 Appellant’s notice of appeal was in violation of the appellate rules, as it was
not filed until July 8, 2022, thirty-five days after the order was entered. See
Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, the notice of
appeal required by Rule 902 (manner of taking appeal) shall be filed within 30
days after the entry of the order from which the appeal is taken.”). This Court
issued a rule to show cause why the appeal should not be quashed, and
Appellant’s response included two cash slips dated for June 22, 2022, and July
(Footnote Continued Next Page)
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statement. The PCRA court filed its responsive opinion, and the matter is
ready for review of Appellant’s claims:
1. Did the [Commonwealth] lack jurisdiction to prosecute and
sentence on changed or ‘repealed’ statute/elements before a
conviction occurred in this case?
2. Did the PCRA court err in failing to give relief from the
unconstitutional mandatory sentence statute 9718(a) imposed in
this case?
3. Did the court incorrectly impose Megan’s Law and/or [SVP]
regulations on offenses in this case allegedly committed before
April 22, 1996?
4. Is the [Commonwealth] incorrectly imposing SORNA
[Subchapter I] and/or [SVP] regulations on offenses in this case
allegedly committed before April 22, 1996?
5. Did the [Commonwealth] fail to prove the applicable (5) year
statute of limitations period to prosecute this case beyond a
reasonable doubt?
6. Did the [trial court] err in failing to give a statute of limitations
instruction for the jury to determine in this case?
7. Did the [trial court] lack valid jurisdiction from the beginning of
this case due to defective charging documents?
8. Is the conviction flawed because the wiretap transcripts went
with the jury during their deliberations?
9. Is the conviction flawed because the prosecutor gave his
personal opinion to the jury about the delay of complaint and
credibility of his witness?
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3, 2022, both of which were sent to the Bedford County Clerk of Courts with
the words “Notice of Appeal” at the top. We will therefore consider the appeal
timely. See Pa.R.A.P. 121(f) (“A pro se filing submitted by a person
incarcerated in a correctional facility is deemed filed as of the date of the
prison postmark or the date the filing was delivered to the prison authorities
for purposes of mailing as documented by a properly executed prisoner cash
slip or other reasonably verifiable evidence.”).
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10. Is the conviction flawed because the prosecutor gave his
personal opinion to the jury about the accused defendant’s
testimony?
11. Is the conviction flawed because the wiretap was illegal in this
case?
12. Is the conviction flawed due to an unfair trial or ineffective
counsel?
Appellant’s Brief at 5-6 (reordered for ease of disposition).
Our standard of review regarding an order denying a petition under the
PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan, 923
A.2d 1169, 1170 (Pa. 2007).
All PCRA petitions, including second or subsequent petitions, “shall be
filed within one year of the date the judgment becomes final, unless the
petition alleges and the petitioner proves” one of three statutory exceptions.
See 42 Pa.C.S. § 9545(b)(1)(i-iii). “The General Assembly’s determination
that a PCRA petition must be filed within one year of when a petitioner’s
judgment of sentence becomes final is statutorily described as a jurisdictional
limitation.” Scott v. Pennsylvania Bd. of Prob. & Parole, 284 A.3d 178,
187 (Pa. 2022). Our Supreme Court has held that this jurisdictional
requirement implicates subject-matter jurisdiction, id., and the timeliness of
a petition is “a threshold question implicating our subject matter jurisdiction
and ability to grant the requested relief.” Commonwealth v. Whitney, 817
A.2d 473, 478 (Pa. 2003), overruled on other grounds by Commonwealth v.
Small, 238 A.3d 1267 (Pa. 2020). Accordingly, the question is whether the
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petition is timely and, if not, whether Appellant has pled and proven an
exception.
Appellant’s petition is patently untimely, as his judgment of sentence
became final on March 9, 2010, ninety days after our Supreme Court denied
his petition for review. 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of
sentence becomes final “at the conclusion of direct review … or at the
expiration of time for seeking the review”); U.S. Sup. Ct. Rule 13 (stating that
a petition for a writ of certiorari in the United States Supreme Court must be
filed within 90 days after the entry of judgment of a state court of last resort).
Therefore, Appellant’s time for seeking PCRA review expired on March 9, 2011,
and the petition must satisfy one of the following three statutory exceptions:
(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. § 9545(b)(1)(i-iii).
Appellant offers various arguments as to why his petition is timely.
Initially, we note that Appellant seems to aver that if his PCRA petition were
timely as to any claim, then the PCRA court has jurisdiction over all claims
that could have been raised in an initial PCRA petition. However, the cited
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exception must pertain to the claim that the petitioner seeks to raise. Cf.
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783–84 (Pa. 2000)
(stating that the PCRA court has jurisdiction over an untimely petition only if
one of the exceptions applies “and second, that, in accordance with 42 Pa.C.S.
§ 9545(b)(2), he filed his petition within 60 days of the date that his claims
could have been presented”).4 For example, a petitioner who was sentenced
as a juvenile offender to life imprisonment without the possibility of parole
and was thus entitled to application of the Section 9545(b)(1)(iii) exception
as a result of Montgomery v. Louisiana, 577 U.S. 190 (2016) (holding that
states must give retroactive effect to Miller v. Alabama, 576 U.S. 460(2012)), could not raise garden-variety ineffectiveness claims as those claims
would have no connection to the exception.
Thus, we initially dispose of Appellant’s reordered fifth through twelfth
issues on the basis that he offers no arguments as to why these errors would
satisfy any of the statutory exceptions. Appellant seeks to bootstrap these
claims to others for which he offers some argument as to a statutory
exception. We now address the claims for which Appellant offers an argument
regarding timeliness, which we have reordered as the first, second, third, and
fourth issues.
Appellant’s first issue involves his convictions for involuntary deviate
sexual intercourse (“IDSI”), which the Commonwealth apparently charged
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4The statute now states that a petitioner has one year to file the petition. 42
Pa.C.S. § 9545(b)(2).
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under 18 Pa.C.S. § 3123(a)(6).5 At the time Appellant committed the
offenses, that subsection criminalized “engag[ing] in deviate sexual
intercourse with a complainant … who is less than 13 years of age[.]” That
language was inserted by P.L. 985, No. 10, effective May 30, 1995, and “shall
apply to offenses committed on or after the effective date of this act.”
However, that subsection no longer existed at the time Appellant was charged,
as subsection (6) was deleted by a 2002 amendment and was recodified as
the separate offense of “involuntary deviate sexual intercourse with a child,”
which is where things stand today. 18 Pa.C.S. § 3123(b). Appellant was
apparently charged with violating subsection (6), which no longer exists.
Appellant thus posits that the Commonwealth charged him with a crime that
does not exist, and argues that this implicates subject-matter jurisdiction,
which is never waivable. See Appellant's Brief at 13 (claiming that “this is a
question of statutory jurisdiction of the old statutes and ‘elements’ of the
crimes charged in this case”).
Changes in the law may invalidate a former statute and thereby render
a proceeding void ab initio. A specific application of this principle is set forth
in Commonwealth v. McIntyre, 232 A.3d 609 (Pa. 2020), which involved a
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5 The criminal docket states that Appellant was convicted of “IDSI person less
than 13 years age”. The PCRA court’s opinion states that Appellant “was found
guilty of 97 counts of [IDSI], less than 16 years of age” without a citation to
a particular statutory subsection. PCO at 1. At sentencing, the trial court
determined that all these convictions merged with other offenses. Due to our
resolution of this claim, we need not examine the certified record to determine
if the public docket is erroneous.
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conviction under 18 Pa.C.S. § 4915 for failing to comply with sexual offender
registration obligations. The McIntyre decision addressed the application of
Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), which had held that
the entirety of Act 152, which included Megan’s Law III and Section 4915, was
invalid as the General Assembly violated the single subject rule. In turn, our
Supreme Court’s decision in Commonwealth v. Derhammer, 173 A.3d 723(Pa. 2017), held that the Commonwealth lacked authority to prosecute
violations of Section 4915 due to the Neiman holding and the General
Assembly’s failure to remedy the problem. See id. at 731 (Wecht, J.,
concurring) (“Whether by accident, or because it believed erroneously that its
promulgation of SORNA covered individuals such as Derhammer, the General
Assembly failed to re-enact section 4915, thus creating the gap in
criminalization that compels today’s decision.”) (footnote omitted). The net
effect was that it is as if Section 4915 never existed. The appellant in
McIntyre received relief after raising the issue for the first time on appeal
from the denial of a timely PCRA petition, with our Supreme Court agreeing
that the issue pertained to the legality of McIntyre’s sentence and, thus, was
not subject to issue preservation requirements.
To the extent Appellant is raising an argument along the lines that the
statutory amendment in 2002 rendered his convictions void ab initio by
deleting the Section 3123(a)(6) crime, Appellant cannot overcome the time-
bar, as the PCRA does not include a freestanding exception to raise issues
pertaining to legality of sentence or subject-matter jurisdiction. Compare
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Montgomery, 577 U.S. at 196 (quoting Louisiana statute providing “that [a]n
illegal sentence may be corrected at any time by the court that imposed the
sentence”) (bracketing in original). Indeed, we have determined in an
unpublished memorandum that McIntyre does not apply to untimely PCRA
petitions:
In sum, McIntyre makes it clear that [the a]ppellant is serving
an illegal sentence, and is being imprisoned for violating a statute
that is deemed to have never existed. However, our Supreme
Court has made it equally clear that there are no equitable
exceptions to the PCRA’s time bar, and that unless a defendant is
able to satisfy one of the three PCRA’s enumerated timeliness
exceptions, our courts lack jurisdiction to grant … relief on his
PCRA-cognizable claim.
Commonwealth v. Wadsworth, 525 WDA 2020, unpublished memorandum
at *9-10 (Pa. Super. filed Feb. 8, 2021), appeal denied, 262 A.3d 1257 (Pa.
2021), reconsideration denied (Oct. 15, 2021).
Thus, even if Appellant is correct that the Commonwealth mistakenly
charged the wrong subsection or a former version of the crime, Appellant
failed to meet an exception to the PCRA’s time-bar. The statutory
amendments on which he relies all occurred prior to his trial. As there is
nothing “new” to cite with respect to the PCRA’s statutory exceptions,
Appellant has failed to plead and prove that any exception applies.
We now address Appellant’s second claim of error, which alleges that
several of his mandatory minimum sentences are illegal based on later
caselaw. See Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (holding
that 42 Pa.C.S. § 9718, under which Appellant apparently received a
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mandatory minimum sentence, is unconstitutional). This argument fails, as
Wolfe is simply an application of United States v. Alleyne, 570 U.S. 99(2013). The Alleyne decision does not satisfy the Section 9545(b)(1)(iii)
exception. Commonwealth v. Washington, 142 A.3d 810, 811 (Pa. 2016).
Thus, the PCRA court correctly determined that this claim was not subject to
any timeliness exception.
The remaining two claims are essentially identical, as both involve the
validity of Appellant’s SORNA obligations. We therefore address them
together. The history of the sexual offender laws in Pennsylvania is quite
tortuous, owing to the several iterations of these laws, as well as legislative
responses to cases like Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)
(holding that SORNA was punitive and thus could not be applied retroactively).
Presently, Appellant is required to register under Subchapter I of SORNA,
which applies to individuals who were:
(1) convicted of a sexually violent offense committed on or after
April 22, 1996, but before December 20, 2012, whose period of
registration with the Pennsylvania State Police, as described in
section 9799.55 (relating to registration), has not expired; or
(2) required to register with the Pennsylvania State Police under
a former sexual offender registration law of this Commonwealth
on or after April 22, 1996, but before December 20, 2012, whose
period of registration has not expired.
42 Pa.C.S. § 9799.52.
Briefly, as to proceeding on the merits regarding these claims,
challenges to sexual offender registration requirements need not comply with
the PCRA’s statutory time-bar. See Commonwealth v. Lacombe, 234 A.3d
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602 (Pa. 2020) (“[W]e decline to find the PCRA, or any other procedural
mechanism, is the exclusive method for challenging sexual offender
registration statutes….”); Commonwealth v. Smith, 240 A.3d 654, 658 (Pa.
Super. 2020) (explaining that “the strict jurisdictional requirements of the
PCRA render it unsuitable, because many registrants will be ineligible for relief
on timeliness grounds or because their criminal sentence has expired while
their registration requirements continue”). Thus, challenges to sexual
offender registration laws may be raised outside the PCRA. Commonwealth
v. Elliott, 249 A.3d 1190, 1193 (Pa. Super. 2021).
Appellant argues at length that he cannot be required to register for two
reasons: (1) that all the offenses for which he was convicted occurred before
April 22, 1996, and (2) that applying SORNA violates ex post facto protections.
Appellant’s argument that his last offense occurred before April 22, 1996, is
belied by the record. The Commonwealth charged Appellant with 502 crimes
and filed a bill of particulars alleging that the crimes occurred from 1992
through March of 1997. While Appellant was acquitted of hundreds of the
charges, he was convicted of some crimes occurring in 1996. For instance,
count numbers 482 through 493 “occurred between March 1996 and
September 1996.” Bill of Particulars, 8/9/06, at 20. Appellant was convicted
of counts 482 and 483. While it appears that Appellant was acquitted of all
crimes alleged to have occurred in 1997, the record establishes that he was
found guilty of offenses occurring in 1996.
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Even extending to Appellant the benefit of the doubt that the jury
convicted him only of offenses occurring before April 22, 1996, Appellant’s
claim still fails as he was convicted of rape, which has always been a
registrable offense. See Van Doren v. Mazurkiewicz, 695 A.2d 967, 969
(Pa. Cmwlth. 1997) (quoting original Megan’s Law, which required registration
for offenders convicted of, inter alia, rape). Subchapter I of SORNA includes,
in its scope, offenders who were required to register under former laws. 42
Pa.C.S. § 9799.52(2) (“This subchapter shall apply to individuals who were …
required to register … under a former sexual offender registration law of this
Commonwealth on or after April 22, 1996, but before December 20, 2012,
whose period of registration has not yet expired.”). Appellant has been
continuously incarcerated and thus this would supply a separate basis for
registration.6
Relatedly, Appellant’s ex post facto claim also fails. Muniz, supra, held
that the set of registration obligations imposed under that iteration of SORNA
were punitive measures and thus could not be applied retroactively.
Appellant, however, is required to register under Subchapter I of SORNA. In
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6 While we are not bound by unpublished memorandum decisions, we observe
that in Commonwealth v. Krout, 1574 MDA 2021, 2022 WL 4100974 (Pa.
Super. filed Sept. 8, 2022) (unpublished memorandum), the appellant was
convicted of crimes occurring before 1996 and was incarcerated until 2017.
We rejected his argument that he was not required to register pursuant to
SORNA Subchapter I, concluding that he had to register upon release from his
incarceration due to this statutory subsection, and that his obligation to
register arose upon his conviction. Id. at *4-5 (following C.M. v.
Pennsylvania State Police, 269 A.3d 1280 (Pa. Cmwlth. 2022) (en banc)).
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Lacombe, our Supreme Court held that Subchapter I is nonpunitive. Thus,
those obligations may be imposed retroactively, thereby disposing of
Appellant’s ex post facto claim.7 Lacombe, 234 A.3d at 626-27 (“We hold
Subchapter I does not constitute criminal punishment, and the ex post facto
claims forwarded by appellees necessarily fail.”). Accordingly, Appellant’s
remaining claim, while reviewable on the merits, fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2023
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7 Appellant attempts to distinguish Lacombe on the basis that Lacombe
“committed his crime in 1997 and was not deemed an [SVP].” Appellant’s
Brief at 37. As explained, Appellant’s assertion that he was convicted only of
crimes occurring before April 22, 1996, is mistaken.
We add that Appellant was deemed an SVP following his convictions. As our
Supreme Court held in Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020),
an SVP finding is nonpunitive, and the designation exists to protect “the public
… not from those who have been convicted of certain enumerated crimes, but
instead from those who have been found to be dangerously mentally ill.” Id.
at 992-93. Appellant’s SVP status arguably serves as a separate basis to
impose SORNA obligations, as Subchapter I requires all SVPs to register for
life. 42 Pa.C.S. § 9799.55(b)(3) (“The following individuals shall be subject
to lifetime registration … [s]exually violent predators.”).
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