November 8, 2013
COMMONWEALTH OF PENNSYLVANIA Appellee
ERIC NIGEL TAULTON Appellant
Appeal from the PCRA Order of November 8, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004611-2003
BEFORE: PANELLA, OLSON and PLATT, [*] JJ.
Appellant, Eric Nigel Taulton, appeals pro se from the order entered on November 8, 2012 dismissing his third petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In February 2003, Appellant purchased one kilogram of cocaine from Edwin Torres ("Torres"). On three separate occasions later that month, Appellant sold in excess of 100 grams of cocaine to a co-conspirator or a confidential informant. On September 24, 2004, a jury convicted Appellant of corrupt organizations,  criminal conspiracy,  multiple counts of criminal use of communication facility,  and three counts of delivery of cocaine in an amount of at least 100 grams. Appellant was sentenced to an aggregate term of 21 to 42 years' imprisonment. Appellant was represented by Attorney Leigh P. Narducci at trial. We affirmed the judgment of sentence on May 2, 2006 and our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Taulton, 903 A.2d 54 (Pa.Super. 2006) (unpublished memorandum), appeal denied, 912 A.2d 1292 (Pa. 2006). Appellant was represented by Attorney Laurence A. Narcisi on his direct appeal.
On August 21, 2007, Appellant filed a PCRA petition and the PCRA court appointed Attorney Joseph J. Hylan to represent Appellant. After reviewing the case, however, Attorney Hylan filed a purported "no merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), and declared that, in his professional judgment, Appellant's attempt at post-conviction collateral relief was meritless. The PCRA court found that this purported "no merit" letter was deficient and, because Attorney Hylan had retired, the PCRA court appointed Attorney Henry S. Hilles, III as new PCRA counsel. Attorney Hilles also filed a "no merit" letter. The PCRA court found that Attorney Hilles' "no merit" letter complied with Turner/Finley. After an independent review of the record, and giving notice pursuant to Pa.R.Crim.P. 907(1), the PCRA court dismissed Appellant's first PCRA petition without a hearing on January 28, 2009. We affirmed the dismissal. Commonwealth v. Taulton, 986 A.2d 1266 (Pa.Super. 2009) (unpublished memorandum), appeal denied, 991 A.2d 312 (Pa. 2010).
Acting pro se, Appellant filed a second PCRA petition on January 3, 2011. The PCRA court dismissed this PCRA petition without a hearing on March 3, 2011. We affirmed the dismissal. Commonwealth v. Taulton, 37 A.3d 1237 (Pa.Super. 2011) (unpublished memorandum).
While that appeal was pending, Appellant filed a "Motion for New Trial – After Discovered Evidence" with the PCRA court. In that filing, Appellant alleged that the Commonwealth had violated Brady v. Maryland, 373 U.S. 83 (1963),  by failing to disclose the extent of Torres' arrest record and allowing Torres to perjure himself at trial with respect to his arrest record. The PCRA court dismissed the motion, finding that the claim must be brought in a PCRA petition and that the filing of a PCRA petition was barred because the appeal from the dismissal of Appellant's second PCRA petition was pending before us. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (when PCRA appeal is pending, subsequent PCRA petition cannot be filed until resolution of appellate review by highest state court, or at expiration of time for seeking such review).
Appellant, again acting pro se, filed this, his third PCRA petition, on January 1, 2012. In his petition, he raised the Brady issue that he had previously raised in his "Motion for New Trial – After Discovered Evidence." He further alleged that the Commonwealth violated Brady by failing to arrest him after he purchased the kilogram of cocaine from Torres. On February 7, 2012, Attorney Narducci entered his appearance on behalf of Appellant. Attorney Narducci did not file an amended PCRA petition. Instead, he requested time to investigate Appellant's claims and, after that investigation concluded, requested a hearing. However, on August 8, 2012 the PCRA court issued notice pursuant to Pa.R.Crim.P. 907(1) that it intended to dismiss the petition without a hearing.
After receiving an extension of time to file a response to the notice, Attorney Narducci, on September 7, 2012, notified the PCRA court that Appellant was requesting the appointment of new counsel as Appellant wished to raise a claim that Attorney Narducci had been ineffective. The PCRA court informed both Attorney Narducci and Appellant that it had determined that a hearing was not required and, therefore, Appellant was not entitled to appointment of counsel pursuant to Pa.R.Crim.P. 904(D). On September 26, 2012, Attorney Narducci filed a petition to withdraw as counsel, which the PCRA court granted with Appellant's consent. Thereafter, Appellant filed a timely pro se response to the PCRA court's Rule 907(1) notice, which included a request for the appointment of counsel. The PCRA court denied Appellant's request for appointment of counsel and dismissed the PCRA petition on November 8, 2012. This timely appeal followed.
In Appellant's brief, he sets forth the following issues for our review:
1. Did the PCRA court err in finding that the Commonwealth did not violate Brady, and that counsel was not ineffective for relying on the open file policy . . . ?
2. Did the PCRA court err in finding that Brady's [progeny] did not cover sentence manipulation [and] entrapment and [Appellant's petition] was not timely filed under Brady and that counsel was ineffective in this regards[?]
3. Did the PCRA court err in finding that counsel was not [ineffective] for advising Appellant not to take the deal offered by the Commonwealth; when [Lafler v. Cooper, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012)] direct re-sentencing because of counsel[']s ineffectiveness[?]
4. Did the PCRA court err in finding that Appellant was not innocent under the statute and that counsel was not ineffective when this claim is timely filed under Brady[?]
5. Did the PCRA court err in finding that counsel was not ineffective in failing to raise the sentence manipulation [and] entrapment defense when the claim is timely filed in light of the Brady claim[?]
6. Did the PCRA court err in finding that counsel was not ineffective in failing to investigate the Commonwealth[']s chief witness Torres when he had pending charges that [were] his motive to implicate Appellant falsely but relied on the open book policy when this claim is timely filed [in light] of the Brady claim[?]
7. Did the PCRA court err in finding counsel not [ineffective] for failing to raise [Crawford v. Washington, 541 U.S. 36 (2004)] at the [trial] level and on direct appeal[?]
8. Did the PCRA court err in finding that counsel was not ineffective for failing to raise the timely claim of the sentence being illegal[?]
9. Did the PCRA court err in finding that there was no conflict of interest when trial counsel entered his appearance as PCRA counsel who could not layer his own ineffectiveness . . . [and] that new counsel was not warranted to raise all prior counsel[s'] ineffectiveness . . . ?
Appellant's Brief at vii (capitalization removed). At the conclusion of each issue presented, Appellant states that "PCRA counsel was ineffective in failing to raise all prior counsels['] ineffectiveness." Id.
"Crucial to the determination of any PCRA appeal is the timeliness of the underlying petition. Thus, we must first determine whether the instant PCRA petition was timely filed." Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012). The timeliness requirement for PCRA petitions "is mandatory and jurisdictional in nature." Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (citation omitted). Thus, we shall forego individual assessment of the merits of the claims set forth in Appellant's brief and, instead, concentrate our attention on whether Appellant timely filed his PCRA petition and, if not, whether he has raised a viable statutory exception to the PCRA's timeliness requirement.
A PCRA petition is timely if it is "filed within one year of the date 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." 42 Pa.C.S.A. § 9545(b)(3). As we have previously recognized in affirming the dismissal of Appellant's second PCRA petition, Appellant's judgment became final on March 13, 2007. Commonwealth v. Taulton, 37 A.3d 1237 (Pa.Super. 2011) (unpublished memorandum) at 5. Appellant's present petition, his third, was filed on January 1, 2012. Thus, the petition was untimely.
An untimely PCRA petition may be considered if one of the following three exceptions applies:
(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). If an exception applies, a PCRA petition may be considered if it is filed "within 60 days of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).
Appellant contends that all the claims raised in his third petition may be considered because the requirements for the (i) "governmental interference exception" and the (ii) "unknown facts exception" are satisfied. See Appellant's Third PCRA Petition at 1-2. The Commonwealth contends that all of the claims raised in Appellant's third petition are time-barred. Commonwealth's Brief at 9-18. In its 1925(a) opinion, the PCRA court found that it could consider Appellant's Brady claim regarding Torres' criminal history as it satisfied the governmental interference exception. The PCRA court reasoned that:
Appellant arguably has satisfied the pleading requirements for the exception to the time requirements of the [PCRA] provided at § 9545(b)(1)(i) in regard to his claim that the Commonwealth suppressed evidence that . . . Torres was a police agent, and his claims that the Commonwealth suppressed the true extent of Torres' arrest history and then failed to act upon Torres' alleged perjury. Such evidence - if it indeed existed – arguably could have been employed by [Attorney] Narducci for impeachment purposes at trial.
[Appellant] also has arguably complied with the requirements of § 9545(b)(2) in regard to [his Brady claim]. [Appellant] has contended that he did not learn of the alleged suppression of evidence and the alleged perjury until receiving - on April 4, 2011 – a report from a private investigator, a copy of which he attached to the instant PCRA petition. [Appellant] filed his Motion for New Trial – After Discovered Evidence" on May 27, 2011, within sixty (60) days of receiving the private investigator's report. [Appellant] subsequently filed the instant PCRA petition on January , 2012, within sixty (60) days of the expiration of the time allowed for him to seek further review of [our] Court's October 19, 2011 order affirming the dismissal of his second PCRA petition.
PCRA Court Opinion, 2/20/13, at 14-15. However, the PCRA court held that the other claims raised in Appellant's third petition (and his response to the PCRA court's Rule 907(1) notice) were time-barred. Id. at 16-28.
"In PCRA proceedings, [our] scope of review is limited by the PCRA's parameters; since most PCRA appeals involve mixed questions of fact and law, the standard of review is whether the PCRA court's findings are supported by the record and free of legal error." Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009) (citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super. 2011), appeal denied, 38 A.3d 823 (Pa. 2012) (citation omitted).
Initially, we address whether Appellant's first issue on appeal, the alleged Brady violation, satisfies an exception to the timeliness requirement. For ease of disposition, we first consider whether Appellant's claim satisfies the unknown facts exception. Under the unknown facts exception, Appellant must "plead and prove that the information on which his claims are based could not have been obtained earlier despite the exercise of due diligence." Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).
In his Brady claim, Appellant argues that the Commonwealth failed to provide information regarding the alleged pending charges in the United States District Court for the Southern District of New York ("SDNY") against Torres. Appellant assumes Torres was out on bond and assumes that Torres was acting as a police agent when the one kilogram cocaine transaction occurred. Appellant also claims that the Commonwealth had a duty to correct Torres when, on cross-examination, Torres did not disclose the alleged SDNY arrest when asked about his criminal history. Appellant argues that he learned of this information when he received the private investigator's report in April 2011.
The PCRA court focused on the date that Appellant received the information about Torres' conviction from the private investigator. PCRA Court Opinion, 2/20/13, at 14-15. However, the date that Appellant received the information from the private investigator is not dispositive. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008). In order for the PCRA court to have jurisdiction to consider his Brady claim, Appellant was required to show that the information regarding Torres' conviction could not have been obtained earlier with the exercise of due diligence. Id.
The judgment against Torres was entered on the docket on February 13, 2009. See Appellant's Brief at Appendix A. The judgment was available on Public Access to Court Electronic Records ("PACER"), an internet site that contains all docket entries in the SDNY, from the date of entry. This was 35 months prior to the filing of Appellant's third petition and pre-dated the filing of Appellant's second petition for collateral relief. Appellant does not aver that he was prevented from hiring a private investigator or accessing PACER during this time period. Appellant could have learned of the information regarding Torres' conviction, the basis of his Brady claim,  much earlier. There is no support in the record for finding that Appellant acted with due diligence to learn of Torres' conviction. Thus, Appellant failed to file his third petition within 60 days of when he could have first learned, with due diligence, of Torres' conviction in the SDNY. Accordingly, the unknown facts exception does not apply.
Having determined that the unknown facts exception does not apply, we next consider whether Appellant has established jurisdiction to hear his Brady claim by demonstrating application of the governmental interference exception. "Although a Brady violation may fall within the governmental interference exception, [Appellant] must plead and prove the failure to previously raise the claim was the result of interference by government officials[.]" Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citation omitted).
As noted above, the PCRA court found that Appellant had satisfied the requirements of the governmental interference exception. We conclude, however, that Appellant did not exercise due diligence to learn of Torres' conviction. Thus, we must determine whether the government interfered with Appellant's filing of the instant petition between the time that Appellant could have first learned of Torres' conviction with due diligence and the filing of the instant petition. See 42 Pa.C.S.A. § 9545(b)(1)(i) (governmental interference exception requires PCRA petitioner to demonstrate 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" Pennsylvania or the United States).
The closest that Appellant comes to alleging that the government interfered with his filing the instant petition is when he asserts that the law library at the prison closed for several days in late 2011. Appellant's Third PCRA Petition at 20. This is insufficient. First, Appellant does not allege that the closure of the prison library was in violation of the constitution or laws of Pennsylvania or the United States. Second, Appellant does not allege that the library closure delayed or prevented his retention of the private investigator whose April 4, 2011 report served as the basis for the claims raised in Appellant's third petition. Appellant makes no other arguments related to the Commonwealth interfering with his filing of the instant PCRA petition. Thus, we conclude that the governmental interference exception does not apply to Appellant's Brady claim. Moreover, as Brady is not a new rule of constitutional law, the new constitutional rule exception does not apply. Accordingly, the PCRA court did not have jurisdiction to consider the merits of Appellant's Brady claim.
As to Appellant's second issue on appeal, Appellant claims that the Commonwealth manipulated his sentence by not arresting him after he purchased the one kilogram of cocaine from Torres. Appellant's Brief at 17-22. The PCRA court found that Appellant was time-barred from raising this issue in his third petition. PCRA Court Opinion, 2/20/13, at 19-21. We agree with the PCRA court, which reasoned that:
[Appellant] attempts to morph his sentencing manipulation claim into a Brady claim by restating his assertion . . . that [Torres] was acting as a government agent when he delivered the cocaine to [Appellant] on February 7, 2003. Even assuming arguendo that [Appellant's] assertion that Torres acted as a government agent is true, this would in no way excuse [Appellant's] failure to timely raise his claim of sentencing manipulation. Regardless of when [Appellant] learned that Torres was supposedly a police agent, [Appellant] knew all along that he had not been arrested "on the spot" on February 7, 2003, but had instead been arrested later and charged with his three subsequent deliveries of cocaine . . . . Nothing prevented [Appellant] from raising a sentencing entrapment/manipulation claim in a timely fashion . . . and the time for him to do so has now long passed. The claim is thus time-barred.
PCRA Court Opinion, 2/20/13, at 21 (emphasis in original).
Appellant's third issue on appeal, the alleged ineffectiveness of his counsel in plea negotiations, is also time-barred. As discussed above, Appellant's judgment became final on March 13, 2007. Appellant's PCRA petition is untimely on its face as it was filed after March 13, 2008. Thus, an exception must apply for the claim to be considered.
The governmental interference exception does not apply as the Commonwealth offered Appellant the plea deal and did not interfere with Appellant bringing forth this claim. The unknown facts exception does not apply because Appellant knew of the plea offer prior to trial, well before the applicable time limit. Finally, the new constitutional rule exception does not apply as "neither Frye nor Cooper created a 'new rule of constitutional law' made retroactive to cases on collateral review by the Supreme Court [of the United States]." In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013) (per curiam) (collecting cases). Likewise, our Supreme Court has not held that Frye and/or Cooper created a new rule of constitutional law that should be applied retroactively. Accordingly, Appellant's third issue on appeal is time-barred.
Appellant's fourth issue on appeal, that he was innocent under the statute and that his counsel was ineffective for failing to argue that he was innocent under the statute, is also time-barred. Appellant makes no cognizable argument as to how the government interfered with his asserting this claim. Appellant also fails to allege that he learned any facts that were unknown to him prior to trial with respect to being innocent under the statute. Likewise, he sets forth no reason why he could not have brought his ineffectiveness claim at an earlier date. Appellant cites no constitutional rule precluding his conviction for the drug offenses with which he was charged; thus, the new constitutional rule exception is inapplicable. Accordingly, we conclude that Appellant's fourth issue on appeal is time-barred.
Appellant's fifth through eighth issues on appeal, all alleging ineffective assistance of counsel, are also time-barred. We agree with the PCRA court that:
None of [Appellant's] underlying claims of ineffectiveness of his prior attorneys appear in his pro se third PCRA petition, but were all raised for the first time in [Appellant's] September 2012 response to the [PCRA] court's Rule 907(1) [n]otice or were previously litigated and decided against him. [Appellant] has raised no cognizable basis for a determination that any of the three statutory exceptions to the time requirements of the [PCRA] apply to any of these claims and no such basis appears on the face of the record. Accordingly, we believe that the time has long passed for consideration of the potential merits of said claims, which are time-barred on the face of the record.
PCRA Court Opinion, 2/20/13, at 27-28 (emphasis in original).
Appellant's ninth issue on appeal, that the PCRA court erred by permitting Mr. Narducci to enter his appearance as retained counsel for Appellant, is without merit. Appellant argues that there was a conflict of interest because he sought to argue that Mr. Narducci was ineffective at trial. Appellant's Brief at 5-9. Appellant did not raise the issue of Mr. Narducci's ineffectiveness in his third pro se PCRA petition. Instead, he first raised the issue after Mr. Narducci had withdrawn his appearance, in his September 2012 response to the PCRA court's Rule 907(1) notice. Thus, the PCRA court had no reason to suspect that a conflict could preclude Mr. Narducci from representing Appellant in this matter. The PCRA court had no duty to independently investigate whether a conflict of interest between Appellant and his retained counsel, Mr. Narducci, might arise. Thus, we find no err in the PCRA court's decision not to intervene when Mr. Narducci entered his appearance on behalf of Appellant.
Appellant also argues that the PCRA court erred by failing to appoint substitute counsel when Mr. Narducci withdrew his appearance. Appellant's Brief at 5-9. Petitioners are only entitled to appointed counsel on second or subsequent PCRA petitions when the petitioner "satisfies the judge that the [petitioner] is unable to afford or otherwise procure counsel, and an evidentiary hearing is required . . . ." Pa.R.Crim.P. 904(D); see Commonwealth v. Rykard, 55 A.3d 1177, 1187 (Pa.Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013). As the PCRA court determined a hearing was not necessary, Appellant was not entitled to appointed counsel. Thus, the PCRA court did not err by refusing to appoint new counsel for Appellant.
Finally, Appellant argues that Mr. Narducci was ineffective for failing to raise prior counsels' ineffectiveness. As discussed above, Appellant's claims that prior counsel were ineffective were time-barred and, therefore, Mr. Narducci was not ineffective for failing to file an amended petition raising the issue of prior counsels' ineffectiveness.