Opinion
J-S08042-16 No. 1315 WDA 2015
03-16-2016
COMMONWEALTH OF PENNSYLVANIA v. A.J.H., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered on August 12, 2015 in the Court of Common Pleas of Fayette County, Criminal Division, No(s): CP-26-CR-0000707-2005 BEFORE: STABILE, DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
A.J.H. appeals from the Order dismissing his third Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
This Court previously set forth the relevant facts supporting A.J.H.'s convictions as follows:
In February 2005, A.J.H. and his girlfriend were living together with their two children in Dunbar, Fayette County. Their daughter, K.H., born February 1999, had just turned five when the assaults occurred. K.H. started school in Dunbar in the Conne[ll]sville School District that February. She had been previously diagnosed as suffering from developmental delays and a form of autism, so she was enrolled in a life skills support program at the school for children with cognitive impairment. N.T. Trial, 10/06/2005, at 194. The class was taught by Daun Prinkley ["Prinkley"], as well as [] classroom aide[s] .... Id. at 126.
During the summer of 2004, K.H. began to suffer from constipation and fecal impaction. At that time, A.J.H. brought his daughter to the hospital[,] where he was provided with suppositories and instructed to give them to her. K.H. continues to have issues with her bowels and potty training, requiring her
parents and teachers to clean her regularly. Id. at 195.Commonwealth v. A.J.H., 83 A.3d 1059 (Pa. Super. 2013) (unpublished memorandum at 3-4).
Throughout the month of March 2005, K.H. made numerous unsolicited comments to Prinkley and the classroom aides about [A.J.H.], including "My daddy puts his fingers up my butt," and "Daddy whips me all the time and he won't stop," explaining that it "really hurts" and describing further pain in her vaginal area. On March 14, 2005, Prinkley referred K.H. to the school's guidance counselor, Trudy Harvey ["Harvey"]. After hearing [K.H.]'s descriptions, which further included her father "saying yes" when she "said no" and licking her vaginal area, Harvey referred the case to Fayette County Children and Youth Services (FCCYS).
In a conversation with FCCYS caseworker Brian Davis, K.H. described the same instances with [A.J.H.,] and indicated that [A.J.H. had] exposed his penis to her and touched her private area with his penis. K.H. drew pictures for Davis at his request to ensure that he understood her clearly. Id. at 154, 158. Doctor Mary Carrasco, a pediatrician and the Director of International Community Health at Mercy Hospital in Pittsburgh, examined K.H. on March 22, 2005. Doctor Carrasco found an irregularity of K.H.'s hymenal edge and noted that it was an abnormal finding in a child K.H.'s age[,] and was consistent with vaginal penetration. Id. at 42, 46, 48.
Following a jury trial, A.J.H. was convicted of statutory sexual assault, aggravated indecent assault of a person less than 13 years of age, indecent assault of a person less than 13 years of age, and simple assault. In March 2006, the trial court imposed an aggregate sentence of seven to thirty years in prison.
This Court affirmed A.J.H.'s judgment of sentence on February 19, 2008. See Commonwealth v. A.J.H., 951 A.2d 1211 (Pa. Super. 2008) (unpublished memorandum). A.J.H. did not seek allowance of appeal with the Pennsylvania Supreme Court. A.J.H. timely filed his first PCRA Petition in January 2009, which the PCRA court later dismissed. This Court affirmed the dismissal. See A.J.H., 83 A.3d 1059. A.J.H. filed a second PCRA Petition on June 30, 2014, which the PCRA court dismissed as being untimely. A.J.H. did not appeal the dismissal.
As we will discuss below, A.J.H. filed with the Pennsylvania Supreme Court a Petition for allowance of appeal concerning his first PCRA Petition, which the Supreme Court later dismissed.
A.J.H. filed the instant PCRA Petition, his third, pro se, on September 18, 2014, after which his appointed PCRA counsel (and current counsel), James Natale, Esquire ("Attorney Natale"), filed three amended Petitions. In relevant part, Attorney Natale alleged in the third Amended PCRA Petition as follows:
The alleged victim, K.H., has recently made statements to [her paternal grandmother, A.H.], that now that K.H. is older she understands that she was never sexually assaulted, and that any touching of her gentiles [sic] and anus performed by [A.J.H.] was for hygienic or medical purposes. These statements recently made by K.H. constitute exculpatory evidence that was unavailable at the time of trial, which would have changed the outcome of the trial if it had been introduced. [A.J.H.'s] claim is not time barred, because K.H. has only recently made these statements[,] and [A.J.H.] filed [a PCRA] Petition upon learning of [K.H.'s] statements.Third Amended PCRA Petition, 5/5/05, at ¶¶ 20-22 (paragraph breaks and numbering omitted). A.J.H. also raised a claim that his sentence was illegal because the trial court had sentenced him under a mandatory minimum sentencing statute that has been ruled unconstitutional. See id. at ¶¶ 30-36.
On June 16, 2015, the PCRA court conducted a hearing (hereinafter, "the PCRA hearing"), wherein K.H., A.J.H., and Attorney Natale testified. On cross-examination, K.H. initially denied that her paternal grandmother, A.H., had discussed the case with her, but later changed her testimony, stating that A.H. had told K.H. what to say at the PCRA hearing. N.T., 6/16/15, at 8, 10. K.H. then testified that although A.J.H. had, in fact, inserted his finger in her "butt" (i.e., anus) when she was approximately six years old, he did so because he was treating her for constipation, which was causing her significant discomfort. Id. at 14, 16-17. Additionally, K.H. stated that A.J.H. had not put his fingers anywhere in her body other than her "butt," and that he did not use any of his body parts other than his fingers. Id. at 18. K.H. further stated that although she does not remember A.J.H. having ever licked her body with his tongue, she had testified to the contrary at trial. Id. at 12-13. When the prosecutor asked K.H., concerning her testimony at trial, "[a]nd you don't have any reason to believe that it didn't happen at this point, do you?" K.H. responded, "No." Id. at 13. Finally, regarding when the defense first became aware of K.H.'s recantation, A.J.H. and Attorney Natale offered conflicting testimony. See id. at 23, 30, 39.
By an Order entered on August 12, 2015, the PCRA court dismissed A.J.H.'s third PCRA Petition. A.J.H. timely filed a Notice of Appeal. In response, the PCRA court ordered A.J.H. to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. A.J.H. timely filed a Concise Statement, after which the PCRA court filed a Statement In Lieu of Opinion.
On appeal, A.J.H. presents the following questions for our review:
1. Whether the PCRA court erred in finding [that A.J.H.'s PCRA] Petition is untimely when [A.J.H.] delayed filing his Petition, because he believed he had filed a petition for allowance of appeal to the Pennsylvania Supreme Court?Brief for Appellant at 3 (capitalization omitted).
2. Whether the PCRA court erred in finding [that] the statements made by the alleged victim, K.H., that [A.J.H. had] touched her for strictly medical or hygienic reasons[,] did not constitute recently discovered exculpatory evidence?
3. Whether the PCRA court erred [by] denying [A.J.H.'s] claim that the mandatory minimum sentence that he received is unconstitutional, because the court believed that the claim was time[-]barred?
In reviewing an order dismissing a PCRA Petition, we examine whether the PCRA court's determination is supported by the record and free of legal error. Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Mitchell , 105 A.3d 1257, 1265 (Pa. 2014) (citation omitted).
Under the PCRA, a defendant must file any PCRA petition within one year of the date that the judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(1). A.J.H. acknowledges that his instant PCRA Petition is facially untimely, as it was filed well over one year after his judgment of sentence became final in March 2008. See Brief for Appellant at 12-13.
However, Pennsylvania courts may consider a facially untimely PCRA petition if the appellant can explicitly plead and prove one of three exceptions to the time bar: (i) the failure to raise the claim was the result of government interference; (ii) the facts of the new claim were unknown to the petitioner and could not have been discovered with due diligence; or (iii) the right asserted is a constitutional right recognized by the United States Supreme Court or the Pennsylvania Supreme Court after the time period provided in the section and has been held to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i-iii) (collectively "the timeliness exceptions"). Importantly, any PCRA petition invoking one of the timeliness exceptions must be filed within sixty days of the date the claim could have been presented. Id. § 9545(b)(2); Commonwealth v. Albrecht , 994 A.2d 1091, 1094 (Pa. 2010).
We will address A.J.H.'s first two issues simultaneously, as both relate to whether he timely pled and proved the after discovered evidence timeliness exception, 42 Pa.C.S.A. § 9545(b)(1)(ii).
A.J.H. argues that the PCRA court erred in finding that he failed to (1) invoke the after discovered evidence exception within sixty days of the date that the claim first could have been presented, pursuant to section 9545(b)(2); and (2) meet the requirements of this exception. See Brief for Appellant at 13-19. According to A.J.H., K.H.'s testimony at the PCRA hearing that A.J.H. had touched her "butt" for medical or hygienic reasons was of such significance that it would have changed the outcome of his trial, wherein K.H. was the Commonwealth's chief witness. Id. at 18-19. A.J.H. further contends that "K.H.'s recantation of her trial testimony is not merely corroborative or cumulative [of the evidence presented at trial], because K.H. was the alleged victim in the case and no other witness observed the alleged abuse." Id. at 18. According to A.J.H., any finding to the contrary is improper, since it "ignores the impact that this exculpatory testimony would have upon a jury if it was made by the alleged victim." Id.
In its Opinion, the PCRA court thoroughly addressed A.J.H.'s claims, set forth the applicable law concerning the after discovered evidence exception, and determined that (1) A.J.H. failed to invoke the exception within the sixty-day requirement of section 9545(b)(2); and (2) even if he had timely invoked the exception, he failed to meet its requirements. See PCRA Court Opinion, 8/14/15, at 5-12. We agree with the PCRA court's rationale and determination, which is supported by the law and the record, and adopt it for the purpose of this appeal. See id.
To the extent that the PCRA court's ruling concerns its assessment of K.H.'s credibility and the reliability of her recantation, see , e.g., PCRA Court Opinion, 8/14/15, at 9-11, we defer to the PCRA court's assessment, as it is supported by the record. See Mitchell , supra .
We additionally note that A.J.H. contends he had previously invoked the after discovered evidence exception, in his second PCRA Petition, within the sixty-day requirement of section 9545(b)(2). See Brief for Appellant at 10, 13-15. According to A.J.H.,
[a]t the time [that he] received notice that K.H. had made statements recanting her trial testimony[,] he was actively trying
to appeal [the denial of] his First PCRA Petition to the Pennsylvania Supreme Court. [] When [A.J.H.] was notified by the Pennsylvania Supreme Court that his case had been closed, he filed his Second PCRA Petition within sixty [] days of receiving that notice. Therefore, [A.J.H.] complied with the sixty [] day time limitation for filing petitions claiming after discovered evidence.Id. at 10. A.J.H. points out that our Pennsylvania Supreme Court has held that "when an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review." Id. at 13 (quoting Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000)).
The Lark Court went on to hold that if the subsequent PCRA petition is not filed within one year of a final judgment, the petitioner must plead and prove (1) one or more of the timeliness exceptions; and (2) that the petition was filed within 60 days of the date of the order which finally resolved the previous petition, because this is the first date the claim could have been presented. Lark , 746 A.2d at 588.
The PCRA court rejected A.J.H.'s claim in this regard, stating as follows:
[T]he claim that [A.J.H.'s] Petition for Allowance of Appeal to the Pennsylvania Supreme Court delayed the filing of his PCRA is entirely without merit. The Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc was first filed on October 7, 2013[,] at Supreme Court Docket Number 66 WM 2013. At the ... PCRA hearing, [Attorney Natale] testified that he represented [A.J.H.] in October 2013 because it was during this time that Attorney Natale first received word of the supposed exculpatory statements by K.H. [N.T., 6/16/15, at 39]. Attorney Natale further stated that it was [A.J.H.] who "wanted to continue with his appeal to the Pennsylvania Supreme Court" in October 2013. Id. [A.J.H.] then waited until February 2014 to decide [that] he intended to proceed on another PCRA [petition,] and advised Attorney Natale to file the same and to withdraw his appeal to
the Supreme Court. Id. According to the docket at 66 WM 2013, the Supreme Court dismissed the Petition for Leave to File Allowance of Appeal Nunc Pro Tunc on February 3, 2014, which corroborates Attorney Natale's testimony. Upon dismissal, the Supreme Court granted [A.J.H.] forty-five [] days to resolve his attorney representation issues, but the Supreme Court closed the case on February 20, 2014. [A.J.H.] then did not file [his second] PCRA [Petition] until June 30, 2014.PCRA Statement In Lieu of Opinion, 9/17/15, at 2-3 (unnumbered). We agree with the PCRA court's determination, and conclude that Lark is unavailing to A.J.H. Accordingly, the PCRA court did not err in determining that A.J.H. failed to timely plead and prove the after discovered evidence timeliness exception, and A.J.H.'s first two issues thus do not entitle him to relief.
Based on the record before the [PCRA c]ourt, it certainly appears that [A.J.H.] made the ultimate decision to follow through on his Supreme Court appeal, which consequently delayed the filing of [his second] PCRA. According to Attorney Natale, he became aware of the newly-discovered evidence in October 2013. [A.J.H.], at that time, then chose to pursue the appeal instead of filing a new PCRA. If [A.J.H.] wanted to abandon his appeal and file another PCRA, the record demonstrates he surely had the means to do so in October 2013, when the new evidence came to light. Instead, he waited an additional five months, until February 2014, to try and resolve his appeal with the Supreme Court. Moreover, the Supreme Court officially closed its case on February 20, 2014. [A.J.H.] then waited another four months, until June 30, 2014, to file [his second] PCRA [Petition]. Therefore, the [PCRA c]ourt cannot give any credence to the plea that [A.J.H.] delayed [filing] his [second] PCRA [Petition] because of a pending appeal with the Supreme Court, as the record provides no evidence to substantiate the claim.
Next, A.J.H. argues that the PCRA court improperly denied his PCRA Petition because the sentencing court had imposed an illegal sentence by applying the mandatory minimum sentencing provision under 42 Pa.C.S.A. § 9718(a)(3). See Brief for Appellant at 20-24. In support, A.J.H. relies upon this Court's recent decision in Commonwealth v. Wolfe , 106 A.3d 800, 805-06 (Pa. Super. 2014) (holding that section 9718 is void in its entirety and facially unconstitutional based upon the United States Supreme Court's decision in Alleyne v. U.S., 133 S. Ct. 2151 (2013), which held that any "fact" that increases a mandatory minimum sentence must be treated as an element of the crime that must be submitted to a jury, not a sentencing court, and found beyond a reasonable doubt). Though A.J.H. does not specifically so state in his brief, it appears that he believes this claim fulfills the requirements of the newly recognized constitutional right exception to the PCRA time bar set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii).
Section 9718(a)(3) mandates a minimum sentence of five years for a person convicted of, inter alia, aggravated indecent assault of a person less than 13 years of age. 42 Pa.C.S.A. § 9718(a)(3). Notably to A.J.H.'s issue, subsection (c) of section 9718 provides, inter alia, that "[t]he provisions of this section shall not be an element of the crime .... The applicability of this section shall be determined at sentencing. The court ... shall determine, by a preponderance of the evidence, if this section is applicable." Id. § 9718(c).
In its Opinion, the PCRA court addressed A.J.H.'s claim, set forth the applicable law, and determined that the claim does not entitle him to relief because this Court has held that the Alleyne decision is not a sufficient basis to invoke the exception at section 9545(b)(1)(iii), as the decision does not apply retroactively. See PCRA Court Opinion, 8/14/15, at 12-14., We agree with the PCRA court's analysis and determination, and therefore affirm on this basis as to A.J.H.'s final issue. See id.
We observe that A.J.H. concedes that even if Alleyne is interpreted as enunciating a newly recognized constitutional right, such right is not applicable retroactively to cases on PCRA review. See Brief for Appellant at 22-24 (citing Miller , 102 A.3d at 995, and Commonwealth v. Riggle , 119 A.3d 1058, 1067 (Pa. Super. 2015)). Nevertheless, A.J.H. urges us to hold contrary to our precedent and allow Alleyne to apply retroactively. Brief for Appellant at 24; see also id. at 10 (asserting that "the rulings of the Pennsylvania Superior Court finding Alleyne is not entitled to retroactive effect are manifestly unfair in that these rulings require him to serve an illegal sentence without recourse."). We may not overrule our prior precedent. See Commonwealth v. Beck , 78 A.3d 656, 659 (Pa. Super. 2013) (noting that one panel of the Superior Court is not empowered to overrule another panel of the Superior Court).
Moreover, A.J.H. failed to invoke the newly recognized constitutional right exception in a timely manner. Alleyne was decided on June 17, 2013. A.J.H. did not file the instant PCRA Petition until September 18, 2014, well over sixty days after the date the claim could have been presented. Therefore, A.J.H. failed to meet the timeliness requirement of 42 Pa.C.S.A. § 9545(b)(2). See Commonwealth v. Boyd , 923 A.2d 513, 517 (Pa. Super. 2007) (stating that "[w]ith regard to [a newly] recognized constitutional right, this Court has held that the sixty-day period begins to run upon the date of the underlying judicial decision.").
Accordingly, because A.J.H.'s third PCRA Petition is untimely and he failed to meet the requirements of any of the timeliness exceptions, the PCRA court properly dismissed the Petition.
Order affirmed.
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