J-S69015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONNELLY JOSEPH LEBLANC

                            Appellant                 No. 548 MDA 2016


              Appeal from the PCRA Order entered March 14, 2016
               In the Court of Common Pleas of Lancaster County
                Criminal Division at No: CP-36-CR-0003488-2008


BEFORE: STABILE, DUBOW, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 23, 2016

        Appellant, Donnelly Joseph LeBlanc, appeals from the order the Court

of Common Pleas of Lancaster County entered on March 14, 2016 dismissing

his second petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-46. Upon review, we affirm.

        The procedural history of the case can be summarized as follows.1

Following a trial, on July 15, 2009, a jury convicted Appellant of two counts

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*
    Retired Senior Judge assigned to the Superior Court.
1
  Unless otherwise specified, the information relating to the procedural
history of the case comes from this Court’s November 1, 2010
memorandum, which was issued in connection with Appellant’s direct appeal
(Commonwealth v. LeBlanc, No. 165 MDA 2010 (Pa. Super. filed Nov. 1,
2010)), the PCRA Court Opinion of March 14, 2016, issued in connection
with the instant appeal, and this Court’s memorandum issued in connection
with Appellant’s appeal from the denial of Appellant’s first collateral relief
(Footnote Continued Next Page)
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of involuntary deviate sexual intercourse, two counts of aggravated indecent

assault on a person less than 16 years of age, and two counts of corruption

of minors.        After a hearing, on December 28, 2009, the trial court

adjudicated Appellant a Sexually Violent Predator.          On the same date, the

trial court sentenced Appellant to an aggregate sentence of 25 to 50 years’

imprisonment. Appellant appealed to this Court on January 26, 2010. We

affirmed    the    judgment      of   sentence    on   November   1,   2010.   See

Commonwealth v. LeBlanc, No. 165 MDA 2010 (Pa. Super. filed Nov. 1,

2010).     Our Supreme Court denied Appellant’s petition for allowance of

appeal on June 7, 2011. See Commonwealth v. LeBlanc, 22 A.3d 1052

(Pa. 2011).

      Appellant filed a pro se PCRA petition on July 13, 2011. Counsel

(Vincent J. Quinn, Esq.) was appointed on July 22, 2011. Appellant filed a

supplemental pro se petition on August 4, 2011, and another one on May

15, 2012.     A counseled amended PCRA petition (“First Amended PCRA

petition”) was filed on June 11, 2012. Appellant filed a pro se supplemental

PCRA petition on September 14, 2012.

      The PCRA court filed a notice of intent to dismiss Appellant’s First

Amended PCRA petition on December 3, 2012. On December 20, 2012, the

PCRA court granted Attorney Quinn’s motion to withdraw.                New counsel

                       _______________________
(Footnote Continued)

petition (Commonwealth v. LeBlanc, No. 2127 MDA 2014 (Pa. Super. filed
September 2, 2015)).



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(Christopher P. Lyden, Esq.) was appointed on January 9, 2013. Appellant

filed a pro se response to the notice on January 17, 2013. The PCRA Court

did not act to dismiss the original and supplemental PCRA petitions or

schedule a hearing.    In the meantime, however, Attorney Lyden filed two

motions to withdraw, one on February 13, 2013, and a second one on April

8, 2013. The PCRA court eventually granted the second request. On April

10, 2013, the PCRA court appointed new counsel (R. Russell Pugh, Esq.).

      On June 3, 2013, new PCRA counsel (same as in this appeal) filed a

request for an extension of time to file an amended PCRA petition.         The

PCRA court granted the request, setting October 1, 2013, as the deadline for

the filing of said amended petition. On October 3, 2013, two days after the

expiration of the deadline, Appellant filed a Second Amended PCRA petition.

A hearing on the Second Amended PCRA petition (the instant petition) was

rescheduled several times in 2014, in part because of repeated motions for

recusal filed by Appellant.

      On June 19, 2014, Appellant filed his third motion for recusal, asking

the presiding court to recuse itself from the deliberation of the merits of

instant PCRA petition given that the instant petition contained allegations of

ineffectiveness against Appellant’s trial counsel, Merrill Spahn, Esq., who had

been recently elected to the bench as Judge of the Court of Common Pleas

of Lancaster County. The third motion for recusal was eventually granted,

and a visiting judge was appointed to hear the instant matter.




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     The new presiding judge scheduled a hearing on the instant PCRA

Petition for October 20, 2014. On that day, following a hearing, noting that

no final order had been entered on Appellant’s First Amended PCRA petition,

the PCRA court entered an order dismissing the First Amended PCRA petition

based on the reasons given by the PCRA court in its opinion accompanying

the Rule 907 notice, see Pa.R.Crim. 907 Opinion, 12/3/12, at 1-29, and

granted Appellant the right to appeal the order.      In the same order, the

PCRA court “also noted a stipulation between the parties that the only

matters for consideration by the [c]ourt in the Second Amended Petition

were those contained in Subparagraphs 5, 6, and 8 of Paragraph 10-A of

that Petition; all other issues raised by [Appellant] were considered

withdrawn.” PCRA Court Opinion, 3/14/16, at 4.

     On November 20, 2014, following correspondence from Appellant

indicating that he wished to appeal from the dismissal of his First Amended

PCRA petition, the PCRA court entered an order staying the proceedings on

the Second Amended PCRA petition until resolution of Appellant’s appeal

from the denial of his First Amended PCRA petition.

     On appeal from the denial of the First Amended PCRA petition, upon

review, we affirmed.   See Commonwealth v. LeBlanc, No. 2127 MDA

2014 (Pa. Super. filed September 2, 2015). Appellant did not seek further

review.   Accordingly, on October 20, 2015, the PCRA court lifted the stay

imposed on the proceedings relating to the Second Amended petition. See

PCRA Court Order, 10/20/15.      After consideration of Appellant’s Second

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Amended PCRA petition, the Commonwealth’s response thereto, and the

evidence and testimony elicited at the October 20, 2014 hearing, the PCRA

court denied Appellant’s Second Amended petition on March 14, 2016. This

appeal followed.

        On appeal, Appellant raises the following issues:

       A. Whether the second [sic] PCRA Court erred in dismissing the
          “Second” Amended PCRA [sic] for untimeliness when the
          original PCRA [sic] was timely and contained all of the issues
          raised in the second amended petition[.]

       B. Whether the [c]ourt erred in dismissing the Second Amended
          PCRA [sic] where trial counsel failed to present an alibi
          witness at trial[.]

Appellant’s Brief at 4.

       We must first determine whether we have jurisdiction to entertain the

instant petition.2 To make such a determination, we must ultimately

establish whether the instant petition (i.e., the Second Amended PCRA

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2
  All PCRA petitions, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final” unless an exception
to timeliness applies.      42 Pa.C.S.A. § 9545(b)(1).     “The PCRA’s time
restrictions are jurisdictional in nature.     Thus, [i]f a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. Chester, 895 A.2d
520, 522 (Pa. 2006) (first alteration in original) (internal citations and
quotation marks omitted). As timeliness is separate and distinct from the
merits of Appellant’s underlying claims, we first determine whether this
PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d
306, 310 (Pa. 2008).




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petition) is separate and distinct from the First Amended PCRA petition, or a

mere refinement of the First Amended PCRA petition. The determination is

important because if the instant petition merely supplemented the First

Amended PCRA petition, then the instant petition is timely.     If it is not a

refinement, but more precisely a separate and distinct petition, then the

instant petition is untimely.

      Appellant argues that the instant petition is merely a “refinement” of

all petitions (counseled and pro se supplements, including the First Amended

PCRA petition) filed up to that point.    Appellant’s Brief at 10.    Indeed,

Appellant notes, the instant petition, which includes all issues raised in the

First Amended PCRA petition, was filed while the First Amended PCRA

petition was still pending.

      A review of the record belies Appellant’s claim, and supports the PCRA

court’s finding that the first and the second amended petitions are distinct

and separate, and that Appellant never challenged how these petitions were

treated. To this end, the PCRA court noted:

      Although [Appellant] has not argued the point, we recognize that
      [Appellant] could have argued the October 3, 2013, Second
      Amended PCRA Petition was not a second or subsequent Petition
      under the Act but rather yet another supplement to his first
      timely Petition filed on July 13, 2011. We emphasize several
      points to rebut that claim.       First, the claims raised by
      [Appellant]’s Second Amended Petition filed October 3, 2013
      addressed none of the claims asserted in [Appellant]’s original,
      timely-filed Petition and supplements. Second, our Order of
      October 20, 2014, which formally dismissed the timely-filed
      petition considered by Judge Wright in his December 3, 2012


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       Opinion, clearly treated [Appellant]’s Second Amended petition
       filed on October 3, 2013 as a second or subsequent petition.

PCRA Court Opinion, 3/14/16, at 6 n.3 (emphasis added).3

       We agree. At the hearing held on the instant petition, the PCRA court

specifically granted Appellant the right to appeal the denial of the First

Amended PCRA petition, if he so wished, and the parties and the court

focused their attention on the issues raised in the instant petition, as orally

amended. Throughout the entire hearing, neither Appellant nor counsel for

Appellant raised an issue with the characterization of the instant petition as

a second petition, the PCRA court’s granting of the right to appeal the First

Amended PCRA petition, and/or the fact that the parties and the court were

proceeding on a limited number of issues. If Appellant had issue with any of

the above, Appellant should have objected at that time.           Not only did

Appellant fail to object at that time, but he also did not object at any time

before the PCRA court. For the foregoing reason, the claim is waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal”); Commonwealth v. Miller,

80 A.3d 806, 811 (Pa. Super. 2013) (“Appellant’s separation of powers


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3
  Despite the PCRA court explicitly stating that Appellant did not raise the
instant issue, Appellant did not deem it necessary to include a statement of
the place of raising or preserving the issue, violating in the process Pa.R.A.P.
2117(c) and Pa.R.A.P. 2119(e).




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claim, which was raised for the first time in his appellate brief before this

Court, is also waived.”).

         The record also supports the PCRA court’s finding that the two

petitions are clearly distinct and separate.           In his First Amended PCRA

petition, Appellant raised the following issues: (1) Direct appeal counsel was

ineffective for not challenging the trial court’s alleged evidentiary ruling error

in preventing trial counsel from impeaching victim on prior instances of

lying;     (2) trial counsel was ineffective for failing to object to police

misconduct; (3) direct appeal counsel was ineffective for failing to challenge

the trial court’s abuse of discretion in imposing consecutive sentences; (4)

trial counsel was ineffective for failing to object or move for dismissal on the

grounds that the Commonwealth had engaged in prosecutorial misconduct

by introducing testimony that was contradicted by the Commonwealth’s

expert witness; (5) trial counsel was ineffective for failing to litigate that

there was prosecutorial misconduct when agents for the Commonwealth

instructed victim’s mother, “a potentially critical defense witness,” that she

should have no contact with Appellant; (6) trial counsel was ineffective for

failing   to   properly   impeach   and    challenge    the   credibility   of   certain

Commonwealth witnesses;         (7) trial counsel was ineffective for failing to

seek and obtain the interview notes of the attorney for the Commonwealth;

and (8) the Commonwealth engaged in prosecutorial misconduct by failing to

disclose exculpatory evidence or, in the alternative, if the Commonwealth


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provided the exculpatory evidence to defense counsel,        trial counsel was

ineffective for failing to utilize said exculpatory evidence.       See First

“Amended Motion for Post-Conviction Collateral” [sic], 6/11/12, at 4-10.

       In his Second Amended petition, as per Appellant’s stipulation, see

PCRA Court Opinion, 3/14/16, at 4 and N.T. Hearing on Appellant’s Second

Amended PCRA Petition, 10/20/14, at 12, Appellant raised three instances of

ineffective assistance of counsel.4 Namely, trial counsel was ineffective for

(1) “expressing ill will and contempt for his client to the District Attorney’s

Office via e-mail; (2) for “failing to employ available evidence to impeach

[the victim];” and (3) for “failing to call Larry S[o]llenberger, as [an alibi]

witness.” Second Amended Petition for Post-Conviction Relief, 10/3/13, at

2.

       The record, therefore, supports the PCRA court’s finding that none of

the issues raised in Appellant’s Second Amended PCRA petition were raised

in Appellant’s First Amended PCRA petition. Thus, for the foregoing reasons,

we conclude the instant petition is distinct and separate from the First

Amended PCRA petition, and the PCRA court did not err in treating them

accordingly.


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4
  While Appellant raised ten issues in the instant petition, at the hearing
scheduled for the instant petition, Appellant abandoned all issues except the
three issues quoted herein.




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       Next, we must determine whether the instant PCRA petition is timely.

We conclude it is not. Appellant’s judgment became final on the expiration

of the time for seeking review before the United States Supreme Court

(September 5, 2011).         See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct. Rule

13. Appellant, therefore, had one year from that date to file a timely PCRA

petition (i.e., by September 5, 2012). The instant petition, which was filed

October 3, 2013,5 is therefore facially untimely.

       An otherwise untimely petition could still be addressed if any of the

three exceptions to the PCRA time-bar are met.        Here, Appellant did not

plead let alone prove he met any of the exceptions. Accordingly, we must

conclude, as the PCRA court, that the instant petition is untimely. 6

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5
 Notably, nowhere does Appellant explain why the instant petition was filed
beyond the October 1, 2013 deadline set by the PCRA court in its June 4,
2013 Order. See PCRA Court Order, 6/4/13.
6
  Even if we were to address the merits of the only challenge raised in this
appeal, namely, whether trial counsel was ineffective for failing to call an
alibi witness, we would have affirmed on the reasons articulated by the PCRA
court. See PCRA Court Opinion, 3/14/16, at 13-15. Specifically, the PCRA
court noted that trial counsel was aware of the alibi witness. However,
based on the interviews with the witness, trial counsel elected not to call
said witness because his testimony would not have been helpful to his case.
Id. at 14-15. We agree. The witness would have testified that Appellant
stayed at one of his apartments in Marietta (approximately 20 minutes away
from Manheim, the location where the abuses took place) for a maximum of
two weeks in early November 2007. N.T. Hearing, 10/10/14, at 17. The
victim, however, indicated that the abuse took place between November 1,
2007 and the end of January 2008. PCRA Court Opinion, 3/8/16, at 14. The
testimony, therefore, would not have been helpful with regard to the
relevant time-frame.      Additionally, even if he were staying at that
(Footnote Continued Next Page)


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      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2016




                       _______________________
(Footnote Continued)

apartment, that fact alone would not have eliminated the possibility of
Appellant’s criminal conduct. Appellant, in fact, was able to come and go
from the Marietta apartment. N.T. Hearing, 10/10/14, at 25-26, 47. In light
of the foregoing, the PCRA court found that “counsel’s decision to not call
Sollenberger was reasonable strategy, and that the failure to call an
unhelpful witness certainly did not prejudice [Appellant].” PCRA Court
Opinion, 3/14/16, at 14-15. In light of the applicable standard for reviewing
challenges of ineffective assistance of counsel, see Commonwealth v.
Reyes-Rodriguez, 111 A.3d 775, 779-80 (Pa. Super. 2015) (en banc), we
would have concluded that Appellant failed to prove his trial counsel was
ineffective for not calling the alibi witness.



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