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Commonwealth v. Kretchmar

April 8, 2009

COMMONWEALTH OF PENNSYLVANIA
v.
GARY L. KRETCHMAR, APPELLANT



Appeal from the PCRA Order, July 15, 2008, in the Court of Common Pleas of Bucks County Criminal Division at No. CP-09-CR-0001190-1987.

The opinion of the court was delivered by: Ford Elliott, P.J.

Petition for Reargument Filed April 20, 2009

BEFORE: FORD ELLIOTT, P.J., STEVENS AND KELLY, JJ.

OPINION

¶ 1 This is an appeal from an order dismissing without a hearing a petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.§§ 9541-9546, by appellant, Gary L. Kretchmar. We affirm.

¶ 2 On October 6, 1981, at approximately 2:00 p.m., Scott Rosenblum was found dead in his apartment in Bensalem Township, Bucks County, Pennsylvania. The victim suffered three gunshot wounds. Ballistics tests revealed that a .22 caliber firearm was used to inflict the wounds. Despite a contemporaneous investigation, which included the questioning of appellant, the crime was regarded as "unsolved" for many years. However, in January 1987, after a grand jury returned a presentment against appellant, a criminal complaint was filed charging appellant with criminal homicide. Aware of the action taken against him with respect to the homicide, appellant subsequently fled Pennsylvania and was ultimately arrested in San Diego, California, in July 1988, on an unrelated matter. Appellant was subsequently extradited to Pennsylvania and ultimately stood trial on, inter alia, charges of criminal homicide.

¶ 3 Appellant was convicted in a jury trial of first-degree murder on November 22, 1988, and after a penalty phase hearing was held, a sentence of life imprisonment was imposed. Following sentencing, appellant filed a post-sentence motion, which was denied on May 25, 1989. Appellant filed a direct appeal to this court, which resulted in the affirmance of his judgment of sentence on May 8, 1990. Commonwealth v. Kretchmar, 578 A.2d 38 (Pa.Super. 1990). Appellant subsequently filed a petition for allowance of appeal with the Pennsylvania Supreme Court, but that petition was denied on April 30, 1991.

¶4 On or about April 13, 1992, appellant filed a motion for post-conviction collateral relief. Appellant's petition was denied on September 15, 1994 and was affirmed on appeal to this court on December 29, 1995. A petition for allowance of appeal to the Pennsylvania Supreme Court was granted, Commonwealth v. Kretchmar, 545 Pa. 41, 679 A.2d 774 (1996); however, it was later concluded that allowance of appeal had been improvidently granted. Commonwealth v. Kretchmar, 547 Pa. 358, 690 A.2d 234 (1997).

¶ 5 Subsequently, appellant filed two additional petitions under the PCRA, one in 2002 and the other in 2006. Both petitions were denied by the PCRA court and affirmed on appeal. The present petition, appellant's fourth, in which appellant tenders a claim under the "unknown facts" exception to the PCRA,*fn1 was filed on November 29, 2007. This petition was dismissed as untimely on September 15, 2008. The present appeal followed.

¶ 6 Appellant raises four issues. However, all four essentially raise the same matter in slight variation. Issue "C" is most descriptive of appellant's contention on appeal:

C. Was appellant denied a fair and impartial trial as required by the 14th Amendment Due Process Clause when Commonwealth witness, FBI Special Agent John Riley, provided misleading or unreliable bullet lead analysis testimony on November 21, 1988?

Appellant's brief at 2.

¶ 7 Preliminarily, we note that "[o]ur standard of review for an order denying post-conviction relief is limited to whether the [PCRA] court's determination is supported by evidence of record and whether it is free of legal error." Commonwealth v. Jermyn, 551 Pa. 96, 110, 709 A.2d 849, 856 (1998). Appellant's fourth PCRA petition is governed by 42 Pa.C.S.A. § 9545(b), which provides as follows:

(b) Time for filing petition.--

(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;

(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.

(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days from the date the ...


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