J-S57013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 WILLIAM PATRICK MIDDLETON               :
                                         :
                   Appellant             :    No. 643 MDA 2019

            Appeal from the PCRA Order Entered April 9, 2019
   In the Court of Common Pleas of Lebanon County Criminal Division at
                     No(s): CP-38-CR-0000214-1977


BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 26, 2019

     William Patrick Middleton appeals from the April 9, 2019 order

dismissing his third petition for collateral relief under the Post-Conviction

Relief Act (“PCRA”) as untimely. We affirm.

     The PCRA court has provided a thorough summary of the factual and

procedural background of this case:

     On September 29, 1976, [Appellant] escaped from the U.S.
     Penitentiary in Lewisburg, Pennsylvania. After his escape, his
     female companion, [Frances Hunt (“Hunt”)], picked him up at
     some railroad tracks near the Penitentiary and drove him to a
     secluded field in Montoursville, Lycoming County, Pennsylvania.
     The next day, September 30, 1976, [Appellant] kidnapped and
     brutally beat and strangled Wanda Marie Geho, a young woman
     who had left her place of employment to pick up lunch for herself
     and a coworker at a shopping center in Montoursville. [Appellant]
     took Geho’s purse and her automobile, leaving Geho in the same
     field where he had been left by Hunt the previous day. When Hunt
     returned to check on [Appellant] at around 3:30 p.m. that day,
     she found Geho laying in some beaten-down weeds. Thinking that
     Geho was dead, Hunt drove to a nearby gas station to notify the
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     authorities. When Hunt returned with the police, it was found that
     Geho was still alive; however, she died of her injuries at 5:00 p.m.
     that afternoon after being transported to a hospital. After leaving
     the Montoursville area, [Appellant] drove Geho’s vehicle to
     Philadelphia where he committed an armed robbery of a Howard
     Johnson’s Motor Lodge.

     [Appellant] was arrested in October 1976 and charged with
     aggravated assault, homicide, robbery, kidnapping, and theft in
     Lycoming County. The matter was transferred to Lebanon County
     upon [Appellant’s] request for a change of venue. A jury trial was
     commenced in Lebanon County with jury selection occurring on
     May 23 and 24, 1977. The Commonwealth proceeded with its
     case on May 25, 1977. Hunt was the first witness called to testify
     by the Commonwealth on May 25, 1977. The [trial court]
     recessed at the completion of Hunt’s direct examination.

     When the [trial court] reconvened, an in[-]camera proceeding was
     conducted with only counsel, [Appellant], and court personnel
     present. At that time, the Commonwealth notified the [trial court]
     that a plea agreement had been reached and that [Appellant]
     would plead guilty to several offenses. In the presence of defense
     counsel and [Appellant], the Commonwealth attorney informed
     the [trial court] that the plea bargain included [Appellant]
     pleading guilty to second-degree murder, robbery, and kidnapping
     and that the Commonwealth would take no position as to whether
     the sentence would be concurrent or consecutive to any sentence
     [Appellant] was serving at that time.            In addition, the
     Commonwealth would contact the Federal Bureau of Prisons,
     which had already been done, so that [Appellant’s] existing
     federal sentence would be served in a Pennsylvania state
     correctional institution. In addition, the Commonwealth attorney
     represented:

        [T]he other charges in the Bills of Information, upon
        acceptance of the plea and sentence thereon, will be nol-
        prossed by myself upon motion, one of the bas[es] being
        that this is part of a plea agreement and the other basis
        technically that they would be included in defenses to which
        he would be pleading guilty.

     N.T., 5/25/77, at 722; Exhibit “A” to PCRA Petition at p.4




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      The Commonwealth made arrangements with the federal
      authorities for [Appellant] to serve the remainder of his federal
      sentence in a state correctional institution. The Commonwealth
      also contacted the Philadelphia District Attorney to request that
      [Appellant] not be prosecuted for the robbery [Appellant] had
      committed in that jurisdiction after he had absconded with Geho’s
      vehicle.   After the Court conducted a guilty plea colloquy,
      [Appellant] pled guilty to second-degree murder, robbery and
      kidnapping.

      On May 26, 1977, [Appellant] was sentenced to life imprisonment
      with no stated minimum for parole eligibility, with concurrent
      sentences of ten to twenty years each for the robbery and
      kidnapping convictions. A federal escape charge had previously
      been lodged against [Appellant] but had been dismissed without
      prejudice prior to [Appellant] entering his plea in this action. After
      [Appellant] was sentenced in this action, the federal government
      prosecuted him for his escape from federal prison and [Appellant]
      pled guilty to that charge. [Appellant] represents that a federal
      detainer on that charge is still in existence.

PCRA Court Opinion, 6/20/19, at 1-4 (excessive capitalization omitted).

      Appellant did not file a direct appeal.     Appellant filed his first PCRA

petition on July 20, 1981, arguing that his guilty plea colloquy was fatally

flawed because the trial court did not “advise him on the record that the jury’s

verdict had to be unanimous and of his right to withdraw his guilty plea.”

Commonwealth v. Middleton, 476 A.2d 932, 933 (Pa.Super. 1984).

Appellant also argued that his trial counsel was ineffective for failing to

successfully challenge these alleged oversights.        The trial court denied

Appellant’s first PCRA petition, and this Court ultimately filed an opinion

affirming that denial on the grounds that Appellant’s claims lacked merit under

the version of the Pennsylvania Rules of Criminal Procedure that were

operative at the time of Appellant’s guilty plea. Id. at 936-37.



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       Appellant filed his second PCRA petition on March 21, 1994. In relevant

part, Appellant argued that: (1) the Commonwealth had violated his plea

agreement by failing to nolle pros the escape charge lodged by federal

authorities; (2) that the trial court had inadequately conducted Appellant’s

guilty plea colloquy under then-Pa.R.Crim.P. 319(b)(2);1 and (3) that both

trial and appellate counsel were ineffective under various theories related to

his guilty plea.     On November 7, 1994, the PCRA court denied Appellant’s

second PCRA petition after concluding that all of Appellant’s claims were either

previously litigated or waived.         Appellant appealed to this Court.   In an

unpublished memorandum dated December 21, 1995, this Court affirmed the

PCRA court’s denial of Appellant’s second PCRA petition after concluding that

Appellant had not made a prima facie demonstration of his right to relief. See

Commonwealth v. Middleton, 674 A.2d 317 (Pa.Super. 1995) (unpublished

memorandum).         Appellant filed a petition for allowance of appeal with our

Supreme Court, which ultimately denied it.             See Commonwealth v.

Middleton, 675 A.2d 1245 (Pa. 1996).

       On February 6, 2019, Appellant filed the instant PCRA petition, his third.

In this petition, Appellant again raises claims related to his plea agreement,

arguing    that it    was both unlawfully        induced and   breached by the

Commonwealth.         Appellant also asserts that all of his prior counsel were
____________________________________________


1 This Rule has since been renumbered at Pa.R.Crim.P. 590(B)(2) (“The judge
shall conduct a separate inquiry of the defendant on the record to determine
whether the defendant understands and voluntarily accepts the terms of the
plea agreement on which the guilty plea of plea of nolo contendere is based.”).

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ineffective for allegedly failing to raise these issues, and asserts his innocence.

On February 15, 2019, the PCRA court determined that Appellant’s third

petition was untimely as pleaded, and provided Appellant with notice of its

intent to dismiss without a hearing. Appellant filed a response arguing that

his petition satisfied the PCRA’s timeliness requirements by allegedly

producing newly discovered facts in the form of a December 13, 2018 affidavit

from Appellant’s trial counsel, Peter T. Campana, Esq.           The PCRA court

dismissed Appellant’s petition without a hearing on April 3, 2019. Appellant

filed a timely notice of appeal to this Court. Both Appellant and the PCRA

court have timely complied with the requirements of Pa.R.A.P. 1925 by,

respectively, filing a concise statement under Rule 1925(b) and an opinion

under Rule 1925(a).

      Our standard and scope of review in this context is well-articulated

under existing Pennsylvania precedent: “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. Edmiston, 65 A.3d 339, 345 (Pa. 2013). We must view

the evidence of record in the light most favorable to the prevailing party at

the PCRA court level. See Commonwealth v. Koehler, 36 A.3d 121, 131

(Pa. 2012). However, we apply a de novo standard of review with specific

regard to the PCRA court’s legal conclusions. Commonwealth v. Spotz, 18

A.3d 244, 259 (Pa. 2011).




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      Before we may address the underlying merits of Appellant’s third PCRA

petition, we must assess whether the petition is timely, or subject to one of

the exceptions to the timeliness requirements under the PCRA.               See

Commonwealth v. Walters, 135 A.3d 589, 591-92 (Pa.Super. 2016) (“[T]he

PCRA’s timeliness requirements are jurisdictional in nature and must be

strictly construed; courts may not address the merits of the issues raised in a

petition if it is not timely filed.”).

      In pertinent part, the PCRA provides as following regarding timeliness:

      (b) Time for filing petition.—

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

      ....

          (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

      ....

      (3) For purposes of this subchapter, a judgment becomes 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 the
      review.

42 Pa.C.S. § 9545(b).        In reviewing these statutory provisions, it is also

important to note that “there is no generalized equitable exception to the

jurisdictional one-year time bar pertaining to post-conviction petitions.”

Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).

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      Instantly, Appellant’s judgment of sentence was entered on May 26,

1977, and Appellant did not file a direct appeal.          Therefore, Appellant’s

judgment of sentence became final for the purposes of PCRA timeliness on

June 25, 1977, when Appellant’s time in which to file a direct appeal to this

Court expired. See Pa.R.A.P. 903(a) (appeals must be taken within 30 days

from the entry of the appealable order); see also 42 Pa.C.S. § 9545(b)(3).

Thus, Appellant’s third PCRA petition is untimely by more than forty years.

      Appellant claims that the exception at 42 Pa.C.S. § 9545(b)(1)(ii)

respecting newly discovered material facts should apply in this case due to the

affidavit submitted by Attorney Campana. In order to successfully invoke this

exception to timeliness under the PCRA, Appellant must plead and prove that:

“(1) the facts upon which the claim [is] predicated were unknown and (2)

could not have been ascertained by the exercise of due diligence.”

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (emphasis in

original).   Due diligence in this context “requires reasonable efforts by a

petitioner, based on the particular circumstances, to uncover facts that may

support a claim or collateral relief,” but does not call for “perfect vigilance [or]

punctilious care.” Id.

      The at-issue affidavit primarily recites or describes portions of testimony

from Appellant’s trial and guilty plea colloquy that Appellant either directly

participated in, or directly observed. See Campana Affidavit, 12/13/18, at ¶¶

3-4. Attorney Campana also avers that “[i]t would have been reasonable for


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[Appellant] to have believed that the criminal charge of ‘escape’ from federal

custody would not be pursued by the U.S. Attorney in the Middle District of

Pennsylvania . . . .”    Id. at ¶ 5. Finally, Attorney Campana concludes by

stating that he never realized that Appellant had ultimately pleaded guilty to

the federal escape charge and consequently he “never raised the issue of the

apparent violation of the plea agreement by the Commonwealth.” Id. at ¶ 6.

        As an initial matter, Attorney Campana’s recital of testimony that

Appellant was already privy to cannot qualify as “newly discovered” facts for

the purposes of evading the PCRA’s timeliness requirements. Since Appellant

witnessed and participated in this testimony, he was fully aware of the content

of that testimony and it cannot possibly be considered “unknown” under the

auspices of § 9545(b)(1)(ii).        The mere fact that Appellant has utilized

Attorney Campana as a new conduit for this previously known information is

of no moment. See Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa.

2013) (allegedly new facts for the purposes of PCRA timeliness “must not be

facts that were previously known but are now presented through a newly

discovered source”).

        Moreover, Attorney Campana’s opinions regarding Appellant’s desire to

avoid    additional   federal    charges    via   his   plea   agreement   with   the

Commonwealth and Attorney Campana’s acknowledgment of his failure to

raise a claim regarding Appellant’s plea agreement are not “new” facts for the

purposes of this appeal.        Rather, Appellant’s complaint that his state plea


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agreement did not encompass his federal escape charge was the primary basis

for his two previous PCRA petitions. As such, that information has been well-

known to Appellant for decades.           Furthermore, the second of those PCRA

proceedings also included claims regarding Attorney Campana’s alleged

ineffectiveness, which equally establishes Appellant’s ongoing knowledge of

Attorney Campana’s failure to challenge any alleged violations of Appellant’s

plea agreement. These factual averments are simply not new,2 and their

temporal character is not altered simply by being presented via affidavit. See

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (“[T]he

focus of this exception is on the newly discovered facts, not on a newly

discovered or newly willing source for previously known facts.”).

       Overall, we conclude that Appellant has failed to satisfy the timeliness

exception at 42 Pa.C.S. § 42 Pa.C.S. § 9545(b)(1)(ii). As such, we affirm the

trial court’s dismissal of Appellant’s third PCRA petition as untimely.

       Order affirmed.


____________________________________________


2  Even assuming, arguendo, that this information constituted “new” facts,
Appellant has failed to establish due diligence. See Commonwealth v.
Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (holding that PCRA due diligence
requirement must be strictly enforced). In relevant part, Appellant avers that
he attempted to contact Attorney Campana in 1977 via telephone and by
writing an unspecified number of letters concerning the federal escape charge.
See Appellant’s brief at 15. However, there is no competent evidence that
Appellant took any meaningful efforts to obtain an affidavit from Attorney
Campana in the intervening four decades. As such, Appellant did not act with
due diligence. See Commonwealth v. Smith, 194 A.3d 126, 135 (Pa.Super.
2018) (holding that defendant did not satisfy due diligence requirement by
offering no reasonable explanation for a 13-year delay in obtaining affidavit).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




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