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[U] Commonwealth v. Montgomery

Superior Court of Pennsylvania

February 7, 2014



Appeal from the PCRA Order March 11, 2013 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000595-2006

Appeal from the PCRA Order March 11, 2013 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000655-2006




Michael A. Montgomery appeals from the March 11, 2013 orders dismissing his second PCRA petitions filed at two different criminal actions. We affirm.

At criminal action number 595 of 2006, Appellant was charged with burglary, theft, and receiving stolen property after DNA of blood found at the scene of a crime was found to match Appellant's DNA. Specifically, on October 11, 2004, Family Craft Center, which was located at 1003 Wilmington Avenue, New Castle, was burglarized. Approximately $700 in cash was taken from the register, and blood was found on broken glass on the floor inside that establishment. A jury convicted Appellant of those offenses, and Appellant was sentenced in that matter on April 23, 2007, to three to ten years incarceration.

At criminal action number 655 of 2006, Appellant was charged with burglary, theft, and criminal mischief in connection with events occurring sometime during the night of March 10, 2005, or early morning hours of March 11, 2005, at the Bob Evans Restaurant on 2635 West State Street, Union Township. That business was burglarized, steaks were taken, and $900 worth of property damage was caused by someone attempting to forcibly enter the safe. DNA located on a cigarette butt left at the scene of that crime by the perpetrator matched the DNA of Appellant, who subsequently admitted to police that he committed that offense. After he was convicted of burglary and criminal mischief in connection with the Bob Evans burglary, Appellant was sentenced on July 14, 2007, to four and one-half to ten years imprisonment, and that sentence was imposed consecutively to the previous one.

Appellant appealed both sentences, the appeals were consolidated, and we affirmed both sentences on June 27, 2008. Commonwealth v. Montgomery, 959 A.2d 465 (Pa.Super. 2008) (unpublished memorandum). I n that adjudication, we rejected a challenge to a search warrant used to obtain Appellant's blood. The search warrant was obtained after Arthur Page, who was Appellant's accomplice in unrelated burglaries, informed police that Appellant admitted to com mission of the burglaries at issue herein. After we affirmed, Appellant did not seek further review in the Supreme Court.

Appellant thereafter filed a timely PCRA petition as to both criminal action numbers. Counsel was appointed. Appellant's first PCRA petitions were thereafter resolved by mutual agreement. Specifically, the Commonwealth consented to a reduction in the minimum sentence imposed at 655 of 2006 by two years, to two and one-half years imprisonment. In return, Appellant agreed not to seek further PCRA relief at either that action or action number 595 of 2006. The agreement was that, in exchange for the two-year reduction in Appellant's minimum sentence, the outstanding petitions were settled and the accord would "resolve all issues raised in all the pending motions for post conviction collateral relief, and no further petitions could be filed." N.T. Hearing, 5/ 5/ 11, at 5.

The PCRA court ascertained that Appellant understood and agreed to the terms of the agreement outlined in his presence. Appellant represented that he discussed the agreement with counsel in private, was not under the influence of any substances, voluntarily entered the accord, and it was his intent that "once the sentence modification" was completed, he would "not file additional PCRA cases" at 595 of 2006 or at 655 of 2006. Id. at 6.

On February 28, 2012, Appellant filed a second PCRA petition at both actions at issue herein. In those documents, Appellant averred that he recently discovered that State Trooper Eric Weller, who obtained the warrant to obtain samples of Appellant's blood, had filed a false affidavit of probable cause to obtain that warrant. Specifically, Appellant alleged that he just learned that Page denied telling Trooper Weller that Appellant admitted to Page that Appellant committed the burglaries where the DNA evidence was found. Counsel was appointed, and counsel sought permission to amend the petitions. The Commonwealth opposed amendment on the basis that Appellant had agreed not to seek any further PCRA review in these actions in exchange for a reduced sentence.

Counsel then filed amended petitions. The Commonwealth responded by again asserting that the agreement barred the request for PCRA relief at both actions. The court issued notice of intent to dismiss the petitions, which Appellant contested. He maintained that the issue raised in his second petitions was distinct from those raised in the first PCRA petitions. Appellant continued that the contention raised in the second PCRA petitions could be litigated since the agreement encompassed only the issues raised in the first PCRA petitions and counsel's representation of Appellant in connection with litigation of them . These appeals, which were consolidated for disposition, followed the denial of relief. Appellant presents the following issues for our review:

1. Whether the lower court erred in ruling that via an agreement with the Commonwealth, an Appellant may waive the right to pursue any future meritorious claims for post-conviction relief?
2. Whether the lower court erred in ruling that the agreement resolving Appellant's First Petition for Post-Conviction Collateral Relief bars Appellant from seeking any future post-conviction relief where:
a. The meritorious issues raised by Appellant had not accrued at the time of the agreement, and were not contemplated when Appellant and the Commonwealth entered into the agreement?
b. and whether Appellant can knowingly, voluntarily, and intelligently waive his right to pursue future post-conviction relief on meritorious claims which had not yet accrued?
3. Whether the lower court erred in refusing to conduct an evidentiary hearing on Appellant's claims or to address the merits of Appellant's claims when Appellant has raised the following meritorious issues:
a. That the Commonwealth suppressed the Affidavit of Probable Cause at Case No. 142 of 2006, and purposefully failed to prosecute said case, as the facts contained in the Affidavit directly contradicts the testimony the Commonwealth used to secure Appellant's DNA and which led to the convictions at Case No. 595 and 655 of 2006, violating the ruling of the Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), and resulting in a violation of Appellant's right to due process of law.
b. That an ongoing miscarriage of justice has resulted from the Commonwealth's prosecutorial misconduct and that upon a prima facie showing of a miscarriage of just ice, the Appellant is entitled to an evidentiary hearing. See: Commonwealth v. Allen, 557 Pa. 135 (1997).
c. That by allowing false testimony to stand uncorrected at Appellant's Suppression Hearing and First PCRA Hearing, the Commonwealth has violated the Appellant's Fourth Amendment rights and the holding in Franks v. Delaware, 438 U.S. 154 (1978).
4. Whether the lower court erred in denying Appellant's petitions pursuant to Pa.R.Crim .P 907(1) without first conducting an evidentiary hearing or addressing the merits of Appellant's claim s for post-conviction relief?

Appellant's brief at (unnumbered) pages 5-7.[1]

We hold that the PCRA petitions at issue are untimely and that Appellant failed to overcome the time bar; hence, we affirm.[2] We uphold the denial of PCRA relief on this alternative basis because the timeliness of a PCRA petition is "a threshold jurisdictional matter." Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa.Super. 2012). Indeed, "the timeliness of the PCRA petition must be addressed. Even where neither party nor the PCRA court have addressed the matter, 'it is well-settled that we may raise it sua sponte since a question of timeliness implicates the jurisdiction of our Court.'" I d. (partially quoting Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa.Super. 2000)); see also Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) ("The PCRA's timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed.").

All PCRA petitions must be filed within one year after the defendant's judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). In this case, Appellant's judgment of sentence became final on July 27, 2008, thirty days after we affirmed his judgments of sentence and Appellant did not seek review in our Supreme Court. 42 Pa.C.S. § 9545 (a)(3) (For purposes of the PCRA, a judgment of sentence is considered final "at the conclusion of direct review . . . or at the expiration of time for seeking the review."). Appellant thus had until July 27, 2009, to file a timely PCRA petition in these actions, and his February 28, 2012 petitions are patently untimely. "There are three exceptions to this [ one-year] time requirement: (1) interference by government officials in the presentation of the claim; (2) newly discovered facts; and (3) an after-recognized constitutional right." Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012); 42 Pa.C.S. § 9545(b) (1) (i- iii) .

Appellant's position is that he agreed to waive only the right to further litigate the issues raised in his first petitions and any deficiencies in counsel's litigation of those petitions. He continues that the present issue, which pertains to Trooper Weller's false affidavit that Page told him that Appellant admitted to committing burglaries where the DNA was found, arose following resolution of the first petitions. He maintains that his present argument, which is based upon facts he purportedly discovered after the first petitions were settled, is not encompassed by the agreement not to pursue PCRA relief in these cases.

In his PCRA petitions, Appellant invoked the newly-discovered facts exception to the PCRA by averring that he recently learned that Trooper Weller fabricated that Page told Trooper Weller that Appellant admitted to Page that Appellant committed the burglaries where DNA was found. A PCRA petitioner can invoke the newly-discovered facts exception outlined in § 9545(b)(1) (ii) if he can establish that the facts upon which his claim is predicated were unknown to him and could not have been discovered through the exercise of due diligence. Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007); see also Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011). "Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have obtained the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced." Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010) (citations omitted).

Herein, Appellant knew from the inception of these two cases that the warrant utilized to obtain his DNA was procured based upon statements that Trooper Weller attested were made to him by Page. Appellant offers no explanation for his failure to locate and interview Page sooner to ascertain whether Page was the source of the information. Appellant also fails to proffer an excuse for his decision to wait until he chanced upon Page's revelation that Page allegedly did not make the statements imputed to him by Trooper Weller. Hence, Appellant has failed to demonstrate that he exercised due diligence in discovering Trooper Weller's purported falsehood, and his PCRA petitions are untimely. Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013) (defendant claimed PCRA petition was timely due to new information gleaned from Commonwealth witnesses; Supreme Court held that defendant's neglect to explain why he did not interview and obtain newly discovered facts from witnesses sooner rendered his PCRA petition untimely); Commonwealth v. Priovolos, 746 A.2d 621, 626 (Pa.Super. 2000) (long after defendant's judgment of sentence was final, he used a private investigator to uncover purportedly exculpatory evidence; his attempt to come within the parameters of the newly-discovered-facts exception was rejected since the defendant made "no attempt to explain why the information contained in these statements could not, with the exercise of due diligence, have been obtained much earlier") (citation omitted); Monaco, supra (defendant failed to prove that he was diligent in uncovering his mental health diagnosis where he could have obtained a mental health examination when he was tried).

Orders affirmed.



I join in the disposition of the Majority that Appellant's most recent PCRA petition is untimely and subject to dismissal. I write separately to suggest that I can find no basis in the law or any statute or rule which would grant to the PCRA court or the Commonwealth the authority to enter into an agreement for reduction of an established sentence in the context of a PCRA proceeding where such action is unrelated to any meritorious issue presented in the petition itself.

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