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[U] Commonwealth v. Lisowski

Superior Court of Pennsylvania

February 6, 2014



Appeal from the PCRA Order April 25, 2013 In the Court of Common Pleas of Wyoming County Criminal Division No(s).: CP-66-CR-0000180-2007




Pro se Appellant, Thomas Michael Lisowski, appeals from the order entered in the Wyoming County Court of Common Pleas dismissing his first Post Conviction Relief Act[1] ("PCRA") petition. He suggests the Commonwealth used perjured testimony to convict him and that the Commonwealth lacked jurisdiction to prosecute him. We affirm.

We adopt the facts and procedural history as set forth by the trial court.[2] Trial Ct. Op., 5/15/13, at 1-3 (unpaginated). On March 26, 2013, the PCRA court held a hearing on Appellant's petition. At the hearing, Appellant admitted he did not raise the issue of perjured testimony at trial. N.T., 3/26/13, at 19-20. The PCRA court subsequently issued a Pa.R.Crim.P. 907 notice. Appellant filed a motion for reconsideration on April 8, 2013, which the PCRA court denied the next day. On April 25, 2013, the PCRA court formally dismissed Appellant's petition. Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

Appellant raises the following issues:

Whether a perjury [sic] testimony was used in gaining a convi[c]tion by the prosecution and w[h]eather this issue has been preserved for PCRA proceeding when [Appellant] used it in his appeal within his argument under insufficient evidence. See (1037 MDA 2010). Again [Appellant] will argue tha[t] the evidence was insufficient to support a conviction for aggravated assault; simple assault; recklessly endangering another person. Does the perjury [sic] testimony [a]ffect the sufficient evidence to convict?
Whether the Commonwealth Court of Pennsylvania [sic] had jurisdiction or venue to prosecute this case within the laws of our United States Constitu[t]ion?

Appellant's Brief at 5 (citations omitted).

For his first issue, Appellant contends the Commonwealth used perjured testimony to obtain his convictions. He insists that he raised this issue on direct appeal to this Court, but it was not addressed in this Court's prior opinion resolving his direct appeal. Appellant references testimony that, in his view, substantiates his allegation of perjured testimony. We hold Appellant is not entitled to relief.

"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267 (Pa. 2008).

To be entitled to PCRA relief, a petitioner must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the errors found in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, id., § 9543(a)(3), and "the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." Id., § 9543(a)(4). . . . 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." Id., § 9544(b).

Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 2012). One of the errors listed in section 9543(a)(2) is a violation of the laws, "which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i). With respect to perjured testimony, perjury is a "deliberate or willful falsehood." Commonwealth v. Pursell, 724 A.2d 293, 307 (Pa. 1999). "Minor discrepancies in the Commonwealth's case will not be considered false evidence." Commonwealth v. Ali, 10 A.3d 282, 294 (Pa. 2010).

Instantly, Appellant has not established that he raised the issue at or before trial, or on direct appeal. See Keaton, 45 A.3d at 1060. Indeed, Appellant admitted he did not raise the issue at trial. See N.T., 3/26/13, at 19-20. Further, we have reviewed the prior appellate decisions in this matter and discern no challenge based on perjured testimony. See Commonwealth v. Lisowski, 111 MDA 2008 (unpublished memorandum) (Pa.Super. Apr. 23, 2009) ("Lisowski I"); see also Commonwealth v. Lisowski, 1037 MDA 2010 (Pa.Super. Aug. 11, 2011) ("Lisowski II").

Appellant refers us to various exchanges in the trial transcript, [3] but nowhere does he explicitly level a charge of perjury. Regardless, we have reviewed Appellant's cited exchanges and fail to discern how they establish "deliberate or willful falsehood[s]." See Pursell, 724 A.2d at 307; see also Ali, 10 A.3d at 294. Furthermore, Appellant has not demonstrated that the reliability of the verdict was undermined given Appellant's own inculpatory statement that he assaulted the officer. See generally Lisowski I, at 1-3 (summarizing facts, including inculpatory testimony); see also Lisowski II, at 1-2, 11 (summarizing testimony establishing aggravated assault). Accordingly, we discern no legal error in the PCRA court's ruling. See Abu-Jamal, 941 A.2d at 1267.

Lastly, Appellant claims that Pennsylvania lacked the constitutional authority to prosecute him due to a lack of a constitutional "Savings Clause."[4] He reasons that because the Pennsylvania Constitution of 1968 lacked a Savings Clause, all statutes are void. We conclude Appellant is not entitled to relief.

Instantly, Appellant's argument pertains to whether Pennsylvania courts had jurisdiction to impose his judgment of sentence. Appellant's argument does not credibly challenge the trial court's jurisdiction to impose judgment of sentence. Pa. Const. art. V, § 5 (bestowing "unlimited original jurisdiction in all cases" on trial court).[5] Accordingly, having discerned no error of law or abuse of discretion, we affirm the order below. See Abu-Jamal, 941 A.2d at 1267.

Order affirmed.

Judgment Entered.


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