SUBMITTED: December 21, 2017
from the Order dated January 31, 2017, entered on February 2,
2017 in the Court of Common Pleas, Blair County, Criminal
Division at No. CP-07-0001850-2005.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
Andre Staton, appeals from the February 2, 2017 order of the
Court of Common Pleas of Blair County, dismissing as
untimely, his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. After careful review, we affirm.
Court has previously recited the underlying facts of
Staton's case in our opinions disposing of his direct
appeal, as well as his first PCRA appeal. See generally
Commonwealth v. Staton, 38 A.3d 785 (Pa. 2012)
(Staton I); Commonwealth v. Staton, 120
A.3d 277 (Pa. 2015) (Staton II), cert.
denied, 136 S.Ct. 807 (2016). For the purposes of the
instant appeal, we summarize the relevant underlying factual
and procedural history as follows.
in 2003, Staton began dating the victim, Beverly Yohn. In the
fall of 2003, one of Beverly's friends observed injuries
on her person. Later on, in January 2004, Beverly called
the local police, asserting that Staton had attacked her.
Beverly obtained a temporary protection from abuse (PFA)
order against Staton on January 27, 2004, and a final PFA
order on February 19, 2004.
morning of February 25, 2004, Beverly and her three sons were
staying at the home of Penny Lantz, Beverly's mother.
Lantz had left the house to go to work. One of Beverly's
sons, Justin Yohn, was outside starting the car for her to
take him to school, when he saw Staton rush up to the house.
Staton told Justin to keep quiet, and Staton kicked in the
back door. Jeremy Yohn, also Beverly's son, was in the
kitchen. Jeremy observed his mother lock the back door, but
shortly afterwards saw Staton kick the door down and enter
the kitchen. Jeremy saw Staton pull a knife out of his jacket
and watched Staton stab Beverly until she collapsed onto the
floor. Staton ran out of the house through the same back
door, threw Justin out of the car he had started, and drove
away in it. Beverly was taken to Altoona Hospital Trauma
Center and was pronounced dead later that day.
was apprehended, and the Commonwealth filed an information on
October 6, 2005, charging him with one count each of criminal
homicide, burglary, criminal trespass, theft by unlawful
taking, and receiving stolen property, as well as two counts
of aggravated assault. Staton proceeded to a jury trial, at
the conclusion of which, the jury convicted him of all
charges, with the criminal homicide graded as first-degree
murder. At the penalty phase, the jury found two aggravating
factors and four mitigating factors, but concluded the
aggravating factors outweighed the mitigating factors, and
returned a death sentence, which the trial court formally
imposed on June 1, 2006. Staton filed a timely post-sentence
motion, which the trial court denied. This Court affirmed the
judgment of sentence on February 21, 2012. See Staton
I, 38 A.3d at 796. Staton did not seek a writ of
certiorari from the Supreme Court of the United States.
9, 2012, Staton filed a timely pro se PCRA petition. On May
11, 2012, the PCRA court appointed counsel, Timothy Burns,
Esquire. Petitioner filed an amended pro se PCRA petition on
August 20, 2012. On May 13, 2013, the parties appeared before
the PCRA court. At this proceeding, the parties discussed
Staton's then-pending motion to proceed pro se. Both
Attorney Burns, and the Commonwealth opposed the motion on
several grounds. Staton voiced his continued desire to
represent himself, and his dissatisfaction with Attorney
Burns' representation. The PCRA court denied Staton's
motion to proceed pro se. As the PCRA court hearing drew to a
close, Staton got up from his chair and swung at Attorney
Burns. Staton struck Attorney Burns in the head, causing him
to be temporarily unconscious. Attorney Burns suffered a
severe concussion and was taken to a nearby
28, 2013, the PCRA court entered an order and opinion.
Therein, the PCRA court vacated its order appointing Attorney
Burns in light of the assault, and further concluded Staton
had waived his right to counsel under Pennsylvania Rule of
Criminal Procedure 904(H)(1). The PCRA court further stated
it had reviewed all of Staton's issues in his August 20,
2012 amended pro se petition and concluded no issues of
material fact existed. It therefore notified Staton of its
intent to dismiss his petition without a hearing and
explained why none of his claims entitled him to relief.
See generally Pa.R.Crim.P. 909(B)(2)(a). Staton
filed a timely pro se response. On September 25, 2013, the
PCRA court entered an order denying Staton's PCRA
petition. Petitioner filed a timely notice of appeal to this
Court affirmed on July 20, 2015. Relevant to the instant
appeal, this Court concluded that Staton had not waived his
right to counsel, but rather forfeited his right to counsel.
We explained that wavier of a right involves intentional or
voluntary abandonment of a right, whereas forfeiture involves
serious or dilatory conduct, even if one did not intend to
abandon the right. Staton II, 120 A.3d at 286
(citation omitted). We concluded that Staton's unprovoked
attack on Attorney Burns constituted "extremely serious
conduct" that met the threshold of forfeiting his right
to PCRA counsel, and the PCRA court did not err in proceeding
to adjudicate the merits of Staton's amended pro se
petition. Id. This Court then rejected Staton's
remaining six issues. The Supreme Court of the United States
denied Staton's petition for a writ of certiorari on
January 11, 2016.
February 22, 2016, Staton filed the instant pro se PCRA
petition. Therein, Staton alleged that he had been deprived
of "a full, fair, adequate, and properly amended first
PCRA petition." Staton's Second PCRA Petition,
2/22/16, at ¶ 3. Specifically, Staton alleged that on
December 23, 2015, he reviewed a counseled pleading filed on
his behalf in his federal habeas proceeding, in which he
purportedly learned for the first time that Attorney Burns
never filed an amended first PCRA petition on his behalf.
Id. at ¶ 50. In his view, this deprived him of
his constitutional rights insofar as he did not have an
opportunity to be heard on the merits of his previous state
and federal constitutional claims. Id. at ¶ 51.
timeliness, Staton acknowledged his petition was facially
untimely, but alleged that the newly-discovered fact time-bar
exception applied. Id. at ¶ 55. He also alleged
that he had complied with the 60-day rule at Section
9545(b)(2). Id. The alleged newly-discovered fact
was that the PCRA court had adjudicated his August 20, 2012
pro se amended PCRA petition on the merits. Id. In
Staton's view, his own filing violated the rule against
hybrid representation, since at the time of filing, Attorney
Burns was still ...