J-S27031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    STEVEN WAYNE BENDER                        :
                                               :
                      Appellant                :   No. 1557 WDA 2018

          Appeal from the PCRA Order Entered September 26, 2018
     In the Court of Common Pleas of Fayette County Criminal Division at
                       No(s): CP-26-CR-0000801-2000

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    STEVEN WAYNE BENDER                        :
                                               :
                      Appellant                :   No. 1559 WDA 2018

             Appeal from the Order Entered September 26, 2018
     In the Court of Common Pleas of Fayette County Criminal Division at
                       No(s): CP-26-CR-0000801-2000


BEFORE:      OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                  FILED MAY 24, 2019

       Appellant, Steven Wayne Bender, pro se, appeals from the order

entered September 26, 2018, that dismissed his seventh petition filed under

the Post Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.

____________________________________________


1   42 Pa.C.S. §§ 9541–9546.




*    Retired Senior Judge assigned to the Superior Court.
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        In 2001, a jury convicted Appellant of murder of the second degree2

and related charges for the killing of his estranged wife’s new boyfriend. On

direct appeal,

        Appellant claim[ed] that the trial court erred in denying his
        request for instructions on the use of deadly force for the
        protection of others and to prevent the commission of a crime.
        In both such instances, the charge “must be given upon request
        where the jury would have a possible basis for finding it.”
        Commonwealth v. [Carl] Brown, 421 A.2d 660, 662 (Pa.
        1980). We have reviewed [the trial court]’s opinion, dated
        November 16, 200[1], and we conclude that the trial court was
        correct in determining that there was no basis for the jury
        finding for Appellant on either one of these defenses. We adopt
        that portion of [the trial court]’s opinion discussing this issue for
        purposes of further appellate review.

Commonwealth           v.   Bender     (“Bender   I”3),   No.   1319   WDA      2001,

unpublished memorandum at 16-17 (Pa. Super. filed December 31, 2002).

The above-referenced portion of the trial court opinion is as follows:

        The final issue raised by [Appellant] is that the [trial c]ourt erred
        in not giving the jury instruction of defense of others and
        preventing the commission of a crime. A trial court should not
        instruct the jury on legal principles that have no application to
        the facts presented at trial because it may cause confusion and
        place obstacles in the path of a true verdict. Pa.R.Crim.P. Rule
        647 . . . [Appellant] requested an instruction for defense of
        others based on the Commonwealth v. Stonehouse case.
        521 Pa[.] 41, 555 A.2d 772 (1989). Stonehouse dealt with the
        battered woman syndrome.            The [Supreme] Court [of
____________________________________________


2   18 Pa.C.S. § 2502(b).
3  Our numbering scheme for abbreviated case names only includes
Appellant’s prior cases before this Court; we do not count previous trial court
opinions, petitions for appeal to the Supreme Court of Pennsylvania, or
federal cases for our naming system herein.



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     Pennsylvania] stated that physical and psychological abuse over
     a long period of time might be considered when determining the
     circumstances regarding the reasonableness of defendant’s fear
     to cause provocation. Id[.] at 60. The [C]ourt . . . stated “the
     ultimate test for adequate provocation remains whether a
     reasonable man, confronted with this series of events, became
     impassioned to the extent that his mind was incapable of cool
     reflection.” In this case there is no evidence of physical or
     psychological abuse occurring to either [Appellant] or his
     daughter. There are no series of events leading up to the act.
     The requirements for 18 Pa. Cons. Stat. Ann. Section 506 -
     Justification, use of force for the protection of other persons, are
     that the use of force upon or toward another person is justifiable
     when (1) the defendant would be justified under §505 (self-
     defense) in using such force to protect himself against the injury
     he believes to be threatened to the other person he seeks to
     protect, (2) defendant believes the circumstances would justify
     the person he is seeking to protect to use such protective force,
     and (3) defendant believes intervention is necessary for the
     protection of such other person. Section 505 states that use of
     force toward another is justifiable when defendant believes such
     force is immediately necessary for the purpose of protecting
     himself against the use of unlawful force by such other person.
     18 Pa. Cons. Stat. Ann. §505. Section 505(b)(2) states that
     deadly force is not justifiable under this section unless defendant
     believes such force is necessary to protect himself against death,
     serious bodily injury, kidnapping or sexual intercourse compelled
     by force or threat. Id. [Appellant] testified that when he
     opened the door where his daughter was he saw [the
     murder victim] sleeping and holding [the child]’s hand on
     his penis. (N.T., July 12, 2001, at 107). Then he stated
     [the murder victim] lunged at him and he fired the gun.
     (N.T., July 12, 2001, at 108). These circumstances do not
     meet the requirements for use of force for the protection of
     another. [Appellant’s child] was not in immediate danger of
     death, serious bodily injury, kidnapping or sexual intercourse
     compelled by force or threat nor was unlawful force being used
     against her. Therefore [Appellant]’s request for this instruction
     was properly denied.

Trial Court Opinion, filed November 16, 2001, at 8-9 (emphasis added)

(some formatting).



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        On December 31, 2002, this Court affirmed the judgment of sentence

in its entirety. Bender I, No. 1319 WDA 2001, unpublished memorandum

at 1.

        Appellant thereafter unsuccessfully assailed his conviction in
        state3 and federal4 court.
          3 See Commonwealth v. Bender, 876 A.2d 459 (Pa.
          Super. 2005) (unpublished memorandum) (affirming
          denial of first PCRA petition); Commonwealth v. Bender,
          964    A.2d 428 (Pa.          Super. 2008) (unpublished
          memorandum) (affirming denial of second PCRA petition),
          appeal denied, 971 A.2d 488 (Pa. 2009); Commonwealth
          v. Bender, 22 A.3d 1054 (Pa. Super. 2010) (judgment
          order) (affirming denial of third PCRA petition);
          Commonwealth v. Bender, 47 A.3d 1233 (Pa. Super.
          2012) (unpublished memorandum) (affirming denial of
          fourth PCRA petition); Commonwealth v. Bender, 53
          A.3d 924 (Pa. Super. 2012) (unpublished memorandum)
          (affirming denial of motion for post-conviction DNA
          testing); Commonwealth v. Bender, 82 A.3d 455 (Pa.
          Super. 2013) (unpublished memorandum) (affirming
          denial of fifth PCRA petition).
          4 Bender v. Wydner, No. 05-998, 2006 WL 1788312
          (W.D. Pa. June 28, 2006) (denying petition for writ of
          habeas corpus); Bender v. Wydner, No. 05-998, 2013
          WL 3776746 (W.D. Pa. July 15, 2013) (denying motion for
          relief from judgment), appeal dismissed, No. 13-1174 (3d
          Cir. June 10, 2013), cert. denied sub nom., Bender v.
          Walsh, 134 S. Ct. 2303 (2014).

Commonwealth v. Bender (“Bender VIII”), No. 1637 WDA 2014,

unpublished memorandum at 1-2 (Pa. Super. filed March 17, 2015).

        Amongst those unsuccessful state petitions was Appellant’s motion for

post-conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1 on March 23,

2011. Commonwealth v. Bender (“Bender VI”), 53 A.3d 924, No. 107




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WDA 2012, unpublished memorandum at 1, 4 (Pa. Super. filed June 4,

2012). This Court stated:

     Appellant claimed at trial that the victim was sexually molesting
     his then two-year old daughter, so he entered the house and
     bedroom to take his daughter away, and shot the victim when
     he lunged at Appellant.2 (See id., 7/12/01, at 108).
        2Appellant did not in fact remove his daughter. (See N.T.
        Trial, 7/12/01, at 132).

     ...

     When reviewing an order denying a motion for post-conviction
     DNA testing, this Court determines whether the movant satisfied
     the statutory requirements set forth in PCRA section 9543.1. . . .

        In any motion under subsection (a) [authorizing
        application for DNA testing], under penalty of perjury, the
        applicant shall . . . specify the evidence to be tested; [ ]
        assert the applicant’s actual innocence of the offense for
        which the applicant was convicted; and . . . present a
        prima facie case demonstrating that the:

            (i) identity of or the participation in the crime by the
            perpetrator was at issue in the proceedings that
            resulted in the applicant’s conviction and sentencing;
            and

            (ii) DNA testing of the specific evidence, assuming
            exculpatory results, would establish:

                  (A) the applicant’s actual innocence of
                  the offense for which the applicant was
                  convicted[.]

     42 Pa.C.S.A. § 9543.1(c).

     Here, Appellant argues, in effect, that DNA evidence could link
     the deceased victim to his claim at trial that the victim was
     molesting his then two-year old daughter. (See Appellant’s
     Brief, at 15). Appellant posits that such evidence would warrant
     reconsideration of his claim of “defense of another” at trial. . . .

     [T]he PCRA court properly determined that Appellant’s basic DNA
     claim does not merit relief.    The most obvious defect of

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      Appellant’s argument at the hearing and on appeal is his bald,
      unsupported attempt to use his claimed suspicions of
      molestation by the victim to make the victim the “perpetrator”
      within the meaning of the PCRA DNA testing statute. (See, e.g.,
      Appellant’s Brief, at 9, 11, 24); see also 42 Pa.C.S.A.
      § 9543.1(c)(3)(i) (applicant must “present a prima facie case
      demonstrating that the . . . identity of or the participation in the
      crime by the perpetrator was at issue in the proceedings that
      resulted in the applicant’s conviction and sentencing[.]”).

      In this case, Appellant is the perpetrator, and the only
      perpetrator, of the crimes for which the jury convicted him.
      Appellant’s attempt to make the victim the perpetrator is
      unsupported by law or fact, and is, therefore, frivolous and
      utterly without merit. Indeed, Appellant concedes that he shot
      the victim; he only argues that he had a reason. That is not
      enough to satisfy the statutory requirements. Thus, Appellant
      fails to show that “DNA testing of the specific evidence,
      assuming exculpatory results, would establish . . . the applicant’s
      actual innocence of the offense for which the applicant
      was convicted[.]”      Id. at § 9543.1(c)(3)(i) (ii) (emphasis
      added). . . . DNA evidence, even if found, would not disprove
      Appellant’s conceded identity as the shooter.

Id. at 2, 5-9.

      On March 17, 2015, this Court affirmed the dismissal of Appellant’s

PCRA petition immediately prior to the current one -- his sixth, not counting

the motion for DNA -- in which Appellant had challenged the propriety of the

boilerplate form he had used to file his first pro se PCRA petition. Bender

VIII, No. 1637 WDA 2014, unpublished memorandum at 1, 3.

      On May 23, 2018, Appellant pro se filed the current PCRA petition, his

seventh. Appellant concedes that the petition is untimely, as it “is outside

the one-year statutory limit,” because it was not “filed within one year of the

date that [his] conviction became final[.]” PCRA Petition, 5/23/2018, at 2

(citing   42   Pa.C.S.   §   9545(b)(1)).   However,    he   alleges   that   the

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“governmental interference exception” to the time bar applies, because

“prior district attorneys” interfered with his ability to present evidence, such

as “suppressed” “material DNA discovery” that the murder victim sexually

abused children, including Appellant’s child.         PCRA Memorandum of Law,

05/23/2018, at i-ii (unnecessary capitalization omitted). He continues that

this   “governmental      interference”       prevented   him   from     presenting

“substantive defenses of (1) . . . use of force for the protection of other

persons [and] (2) use of force to prevent the commission of crime.” Id. at

i-ii, 1 (unnecessary capitalization omitted). Appellant summarizes:

       This continuing governmental interference violates deeply rooted
       public policy of the Commonwealth thus not subjecting this
       matter to 42 Pa.C.S. § 9544 (Previous litigation and waiver) as
       this matter is an on-going and continuing governmental
       interference of, inter alia, ignoring, covering-up, suppressing and
       intentionally misstating material evidence and testimony of
       sexual abuse of children in violation of substantive based laws
       enacted by the Pennsylvania legislature and additional
       substantive based laws as demonstrated supra.

Id. at 1.

       On June 25, 2018, the PCRA court entered a notice of intent to dismiss

all claims without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a

response dated July 8, 2018, and entered on the docket on July 12, 2018.

The    response   did   not    request   to   amend    the   PCRA   petition.   On

September 26, 2018,      the    PCRA     court   dismissed   Appellant’s   petition.

According to the certified docket, the dismissal order was not mailed to

Appellant until October 1, 2018.



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       Appellant filed a notice of appeal and a concise statement of errors

complained of on appeal on October 29, 2018, and a second notice of appeal

and concise statement of errors on October 31, 2018.               This Court

consolidated the appeals on November 20, 2018.4

       Appellant presents the following issues for our review:

       1.     Whether the [PCRA] court abused its discretion when the
       [PCRA] court notified Appellant in the 08/28/18[5] order that
       Appellant’s 07/08/18 objections to the court’s 06/25/18 order of
       it “907 Notice of Intent to Dismiss” were not filed where the
       certified docket entry of 07/12/18 patently demonstrate that
       Appellant’s material and pertinent objections were timely filed
       warranting a remand for adjudication of the substantive merits?

       2.    Whether the [PCRA] court abused its discretion in denying
       Appellant’s   subsequent      PCRA     invoking     42     Pa.C.S.
       § 9545(b)(1)(i) (governmental interference exception) and
       ruling on the substantive merits that are demonstrated in the
       pertinent and material pleading and facts of record that implicate
       matter of Federal and Commonwealth deeply rooted public
       policy?

       3.     Should not the [PCRA] court enter an order of recusal in
       the important public policy related matter where the [PCRA]
       court’s action/inaction itself constitutes further governmental
       interference with the presentation of Appellant’s substantive
       based claims?

Appellant’s Brief at 4.



____________________________________________


4 On January 29, 2019, the PCRA court entered a statement in lieu of
opinion.
5 Nothing appears on the certified docket or in the certified record for
August 28, 2018.    We believe that Appellant is referring to the PCRA
dismissal order from September 26, 2018.



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       “We review the denial of PCRA relief to decide whether the PCRA

court’s factual determinations are supported by the record and are free of

legal error.”    Commonwealth v. Medina, 2019 PA Super 119, *8 (filed

April 17, 2019) (quoting Commonwealth v. Lavar Brown, 196 A.3d 130,

150 (Pa. 2018)).

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final, “unless the petition alleges and the petitioner proves”

one of the three exceptions to the time limitations for filing the petition set

forth in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).6 In

____________________________________________


6   The three exceptions to the timeliness requirement are:

       (i) the failure to raise the 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. § 9545(b)(1)(i)-(iii).



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the current action, the PCRA court concluded that it lacked jurisdiction over

Appellant’s seventh PCRA petition, because the petition was untimely and

failed to satisfy any exception to the PCRA’s time bar.

      “[T]he date on which the judgment of sentence became final . . . in

this case is January 30, 2003, one year after Appellant’s time to petition for

allowance of appeal to our Supreme Court expired.           Appellant’s petition

plainly does not meet the time bar.”       Bender VIII, No. 1637 WDA 2014,

unpublished memorandum at 2-3.

      Appellant   attempts   to   invoke     the   “governmental   interference”

exception to the time bar, 42 Pa.C.S. § 9545(b)(1)(i). PCRA Memorandum

of Law, 05/23/2018, at i-ii, 1.    Appellant appears to be arguing that the

district attorney interfered by preventing him from submitting evidence at

his trial that the victim was sexually abusing children, including Appellant’s

daughter. PCRA Memorandum of Law, 05/23/2018, at i-ii; Appellant’s Brief

at 5-6, 11-12, 19, 51. He contends:

      These governmental officials have consistently distorted,
      misstated and deliberately attempt to cover-up and suppress
      material physical, documented and testimonial evidence
      involving sexual abuse of children.        In violation of duly
      promulgated statutes (laws), rules of evidence and deeply rooted
      public policy where this continuing governmental interference is
      “in violation of the U.S. Const. or Pa. Const. or laws” providing
      the [PCRA] court with jurisdiction. It is beyond dispute that an
      untimely PCRA must invoke an exception to 42 Pa.C.S.
      § 9545(b) for a court to have jurisdiction to adjudicate the
      merits of a PCRA.




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Appellant’s   Brief   at   11-12;   see   also   PCRA   Memorandum    of   Law,

05/23/2018, at 1. He additionally argues that he “can present the material

DNA that has been suppressed by these governmental officials that clearly

constitute governmental interference of exposing sexual abuse of children.”

Appellant’s Brief at 21; see also PCRA Memorandum of Law, 05/23/2018, at

i-ii.

        Appellant provides no explanation as to how or why district attorneys

or any other government official interfered in his ability to present evidence.

See generally Appellant’s Brief; PCRA Memorandum of Law, 05/23/2018.

The PCRA requires that “the petitioner proves” one of the three exceptions,

42 Pa.C.S. § 9545(b)(1) (emphasis added), which Appellant has failed to do.

        Additionally, the governmental interference exception to the PCRA

time bar requires that “the failure to raise the claim previously was the

result of interference by government officials . . .”     Id. § 9545(b)(1)(i)

(emphasis added).      Appellant could not have “fail[ed] to raise the claim

previously,” id., because he gave testimony during trial in support of his

allegation that the murder victim sexually abused Appellant’s child, thereby

justifying Appellant’s actions as defense of others and prevention of the

commission of a crime. Trial Court Opinion, filed November 16, 2001, at 8-9

(citing N.T., 7/12/2001, at 107-08).       Appellant also raised this claim on

direct appeal, Bender I, No. 1319 WDA 2001, unpublished memorandum at

16-17, and in a prior post-conviction motion, Bender VI, No. 107 WDA


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2012, unpublished memorandum at 1-2, 4-9; accordingly, again, Appellant

could not have “fail[ed] to raise the claim” pursuant to 42 Pa.C.S.

§ 9545(b)(1)(i). Appellant is merely attempting to re-litigate a claim he lost

on direct appeal over a decade-and-a-half ago and on collateral review over

six years ago.

      Appellant thus has not established an exception to the timeliness

requirement under 42 Pa.C.S. § 9545(b)(1). Consequently, the PCRA court

was without jurisdiction to review the merits of Appellant’s claim and

properly dismissed his petition.

      Having discerned no error of law, we affirm the order below. Medina,

2019 PA Super 119, *8.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019




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