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[U] Commonwealth v. Szarewicz

Superior Court of Pennsylvania

March 7, 2014



Appeal from the PCRA Order December 18, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008902-1981




Appellant, Steven Szarewicz, appeals, pro se, from the dismissal of his third petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et seq. Finding the petition to be untimely, and that no valid exception exists to the time requirements of the PCRA, we affirm.[1]

The underlying facts are not germane to this appeal and we shall not recount them. It will suffice to say that Appellant received a sentence of life in prison for the February 23, 1981 contract killing of William Merriweather.

In the years following his trial, Appellant has filed post-sentence motions, a direct appeal, several habeas corpus and PCRA petitions, and multiple civil actions in a tenacious effort to challenge and/or overturn his conviction and sentence. On at least two prior occasions, this Court has recited the procedural history in this matter. See Commonwealth v. Szarewicz, 53 A.3d 931 (Pa.Super. 2012) (unpublished memorandum); see also Commonwealth v. Szarewicz, 903 A.2d 54 (Pa.Super. 2006) (unpublished memorandum). We incorporate those recitations by reference and set forth below only so much of the procedural history of this case as is relevant to the resolution of this appeal.

Appellant filed his second PCRA petition on October 3, 2007. Ultimately, this petition was assigned to the Honorable Kevin G. Sasinoski who appointed counsel on August 12, 2010. On October 21, 2010, Judge Sasinoski granted counsel's motion for leave to withdraw and issued notice pursuant to Pa.R.Crim.P. 907 of his intention to dismiss the petition. The PCRA court dismissed the petition on December 14, 2010.

Appellant, acting pro se, appealed the dismissal of his second petition on December 21, 2010.[2] After Appellant filed a concise statement under Pa.R.A.P. 1925(b), the PCRA court issued its opinion on April 8, 2011. On June 12, 2012, this Court affirmed the PCRA court's denial of relief, finding that Appellant's second petition was untimely. Commonwealth v. Szarewicz, 53 A.3d 931 (Pa.Super. 2012) (unpublished memorandum) at 11. The Supreme Court denied Appellant's petition for allowance of appeal on October 12, 2012. Commonwealth v. Szarewicz, 55 A.3d 523 (Pa. 2012) (table case).

While litigation proceeded on his second PCRA petition, Appellant, on April 23, 2008, filed a pro se petition for writ of habeas corpus in the Court of Common Pleas of Westmoreland County. (It is from this third petition for PCRA relief that the present appeal emerges.) As in his second PCRA petition, Appellant claimed in his third petition that he was serving an illegal sentence because a jury instruction on accomplice liability was erroneous. This petition was denied on May 28, 2008. Thereafter, Appellant filed a pro se notice of appeal with this Court docketed at 813 WDA 2009.[3] On March 2, 2010, a panel of this Court remanded the 813 WDA 2009 case to the Court of Common Pleas of Westmoreland County and directed it to transfer the case to the Court of Common Pleas of Allegheny County. Following a request from Appellant, on December 5, 2011, by per curiam order, this Court directed the Court of Common Pleas of Allegheny County to "confirm and process" in due course Appellant's state habeas corpus petition.

After resolution of the appeal at 1965 WDA 2010, the certified record was remanded on December 3, 2012. On December 18, 2012, Judge Sasinoski considered, within the context of the PCRA, the petition transferred from Westmoreland County and denied relief. Appellant filed a timely notice of appeal and, pursuant to an order of court, submitted a Rule 1925(b) concise statement. Judge Sasinoski issued an opinion on September 23, 2012.

Appellant raises the following claims in his brief:
Did the [PCRA] court commit an abuse of discretion or an error of law by issuing an order of court when jurisdiction over the case existed with [the Superior Court]?
Did Judge Sasinoski error [sic] by failing to recuse from the below proceedings as the Judge issued rulings while under an apparent conflict of interest?

Appellant's Brief at 5.

We follow a well-established standard of review when considering an order that denies collateral relief. "We must examine whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error." Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). We will not disturb the PCRA court's factual findings unless they are without support in the record. Id.

Our initial inquiry focuses upon the timeliness of Appellant's current petition, as the PCRA's time requirements are mandatory and jurisdictional in nature. We have previously summarized the applicable principles as follows:

Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003). Statutory time restrictions are mandatory and jurisdictional in nature, and may not be altered or disregarded to reach the merits of the claims raised in the petition. Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000) (holding court lacks jurisdiction to hear merits of PCRA claim where petition is filed in untimely manner and no exception to timeliness requirements is properly alleged and proved; timeliness requirements do not depend on nature of violations alleged). A PCRA petition, including a second or subsequent petition, must be filed within one year of the date the underlying judgment becomes final.[fn] 42 Pa.C.S.A. § 9545(b)(1). See Commonwealth v. Bretz, 830 A.2d 1273 (Pa.Super. 2003); Commonwealth v. Vega, 754 A.2d 714 (Pa.Super. 2000). A judgment is deemed 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 review." 42 Pa.C.S.A. § 9545(b)(3)[.]
fn The legislature provided a one-year grace period (January 16, 1996–January 16, 1997) to first-time PCRA petitioners whose judgments of sentence became final prior to the effective date of the amended Act. See Commonwealth v. Alcorn, 703 A.2d 1054 (Pa.Super. 1997), appeal denied, 724 A.2d 348 (Pa. 1998). The grace period does not apply in the present case.
The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must allege and the petitioner must prove:
(i) the failure to raise a 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). The PCRA specifically provides that a petitioner raising one of the statutory exceptions to the timeliness requirements must affirmatively plead and prove the exception. Id. See also Commonwealth v. Beasley, 741 A.2d 1258 (Pa. 1999) (stating petitioner's burden is to plead and prove exception applies when PCRA is untimely). The statutory exceptions to the timeliness requirements of the PCRA are also subject to a separate time limitation and must be asserted within sixty (60) days of the date the claim could have been first presented. 42 Pa.C.S.A. § 9545(b)(2). "As such, when a PCRA is not filed within one year of the expiration of direct review, or not eligible for one of the exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner's PCRA claims." Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa. 2000).

Commonwealth v. Taylor 933 A.2d 1035, 1038-1039 (Pa.Super. 2007) (parallel citations omitted).

Appellant's judgment of sentence became final on Tuesday, January 6, 1995, 90 days after the Pennsylvania Supreme Court affirmed Appellant's conviction and the time for filing a petition for writ of certiorari before the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Rule 13, Rules of the United States Supreme Court. Thus, Appellant had until Wednesday, January 6, 1999, to file his PCRA petition. The present petition, filed originally on April 23, 2008 as a petition for a writ of habeas corpus in the Court of Common Pleas of Westmoreland County, is manifestly untimely and cannot be reviewed because Appellant has neither alleged nor proven an exception to the PCRA's timeliness requirement.

Appellant advances two claims to circumvent the time bar and establish that the PCRA court erred in dismissing his petition. First, Appellant alleges that because his prior appeal at 1965 WDA 2010 remained pending, the PCRA court lacked jurisdiction to dismiss his present claims. Appellate review of the appeal docketed at 1965 WDA 2010 concluded on October 12, 2012 when our Supreme Court denied Appellant's petition for further review. In addition, our review of the certified record confirms that, while the PCRA court's Rule 907 notice was dated July 10, 2012, Appellant's claims were not formally dismissed by order of court until December 18, 2012. Our examination further confirms that, after resolution of the appeal docketed at 1965 WDA 2010, the certified record was remanded to the PCRA court on December 3, 2012, prior to the dismissal of the instant petition. Because jurisdiction was restored to the PCRA court before the entry of its dismissal order, Appellant's claim merits no relief.

To avoid application of the PCRA's time bar, Appellant maintains that the PCRA court erred in addressing his habeas corpus petition as a claim for collateral relief. He alleges that our per curiam order in the 813 WDA 2009 case directing the Court of Common Pleas of Allegheny County to "process" his state habeas corpus petition constituted the law of the case and precluded any attempt by the PCRA court to address his claims under the PCRA. This claim is meritless.

It is well-settled that if an individual's claims are cognizable under the PCRA, habeas corpus relief will be unavailable because the PCRA subsumes the remedy of habeas corpus. Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998); 42 Pa.C.S.A. § 6503(b) ("Where a person is restrained by virtue of sentence after conviction for a criminal offense, the writ of habeas corpus shall not be available if a remedy may be had by post-conviction hearing proceedings authorized by law."). Throughout these proceedings, Appellant has claimed that he was wrongly convicted of first-degree murder because of a faulty jury instruction on accomplice liability. Appellant asserts that he should have been convicted of third-degree murder and that he has been confined beyond the lawful maximum for that offense. Because these claims are cognizable under the PCRA, Appellant is not entitled to relief. See 42 Pa.C.s.A. § 9543(a)(2)(ii) and (vii) (defining eligibility for PCRA relief to include convictions or sentences resulting from ineffective assistance of counsel or the imposition of a sentence greater than the lawful maximum).

In his final claim, Appellant asserts that the PCRA court abused its discretion by not recusing itself from the instant collateral proceedings. Appellant alleges that, because the court issued on April 8, 2011 a Rule 1925(a) opinion explaining its grounds for dismissing the claims brought in 1965 WDA 2010, the PCRA court was biased against Appellant and predisposed to dismissal of Appellant's present claims.

Our Supreme Court has expressed a strong preference in allowing the trial judge to preside over any ensuing claims brought under the PCRA. See Commonwealth v. King, 839 A.2d 237, 241 (Pa. 2003). This preference rests on a desire to promote the efficient administration of justice. Id. Judge Sasinoski had experience with Appellant's second petition and, under King, was the appropriate judge to address the present claims. Moreover, we have independently reviewed the submissions of the parties and the certified record and conclude, based upon our review, that the PCRA court's determinations are supported by the record and free from legal error. Accordingly, we reject Appellant's final claim for relief and affirm the order dismissing his PCRA petition.

Order affirmed. Motion to file reply brief denied as moot.

Judgment Entered.

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