J-S20035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    WILLIAM SCOTT RITTER JR.                   :
                                               :
                      Appellant                :   No. 3333 EDA 2016

                  Appeal from the PCRA Order October 6, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0002238-2009


BEFORE:      BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 12, 2017

        William Scott Ritter, Jr., appeals, pro se, from the order entered

October 6, 2016, in the Monroe County Court of Common Pleas dismissing

his first petition for collateral relief filed pursuant to the Post Conviction

Relief Act (“PCRA”).1      Ritter seeks relief from judgment of sentence of an

aggregate term of 18 to 66 months’ imprisonment imposed October 26,

2011, following his jury conviction of, inter alia, indecent exposure and three

counts of unlawful contact with a minor, based upon sexually explicit

communications he had with a police detective who was posing as a 15-

year-old female.       On appeal, Ritter contends the PCRA court abused its

discretion when it failed to consider newly discovered evidence that would


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1
    42 Pa.C.S. §§ 9541-9546.
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have precluded the Commonwealth from presenting evidence of Ritter’s prior

arrests for similar crimes in New York state. Because we conclude Ritter is

no longer eligible for PCRA relief, we affirm.

      The facts underlying Ritter’s arrest and conviction are well known to

the parties, and were summarized by a panel of this Court in the

memorandum decision affirming Ritter’s sentence on direct appeal.            See

Commonwealth v. Ritter, 91 A.3d 1273 [975 EDA 2012] (Pa. Super.

2013) (unpublished memorandum). Therefore, we need not reiterate them

herein.   The following facts, however, are relevant to the issues raised on

appeal:

             Prior to trial, the Commonwealth uncovered information,
      via a Google search, of Ritter’s prior arrests from online sex sting
      operations in New York. The public internet search yielded news
      articles reporting that, in April 2011, Ritter communicated online
      in a chat room with an undercover police officer posing as a 14–
      year–old female and arranged to meet the “girl” at a local
      business in Albany. Ritter arrived at the designated location and
      was questioned by the authorities; however, he was released
      without any charges being filed. Two months later, Ritter was
      again caught in the same kind of sex sting after he tried to lure
      what he thought was a 16–year–old female to a fast food
      restaurant. Ritter was subsequently charged, but the Albany
      District Attorney placed the case on hold.

             Upon discovery of the publicly available articles regarding
      Ritter’s prior engagement in internet sex stings, the
      Commonwealth requested and later received copies of those
      records from the Albany County District Attorney’s Office. The
      Commonwealth provided Ritter with copies of the records in
      compliance with Pa.R.Crim.P. 573.          Unbeknownst to the
      Commonwealth, the New York state records were sealed at the
      time they were forwarded to the Commonwealth, prompting the
      Commonwealth to return the records to the Albany County
      District Attorney’s Office. A petition to unseal the records was

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J-S20035-17



     subsequently filed and granted by the trial court in Albany
     County[.]1

     __________
     1
       Ritter filed a motion to vacate the order entered unsealing the
     record in Albany County which was denied. Ritter then appealed
     that decision to the Supreme Court of the State of New York,
     Appellate Division.

     __________

            Thereafter, the Commonwealth filed a notice of prior bad
     acts as well as a motion in limine seeking to introduce the New
     York arrest records at trial. In response thereto, Ritter filed a
     motion for dismissal/change of venue as well as a motion in
     limine seeking to preclude this evidence. The trial court held a
     hearing on the motions. At the hearing, the Commonwealth’s
     exhibits, consisting in part of the New York arrest records, were
     admitted under seal. After the hearing, the trial court entered
     an     order    and     accompanying     opinion   granting   the
     Commonwealth's motion in limine, permitting evidence of
     Ritter's prior bad acts in New York to be admitted at trial.

            Following a jury trial, Ritter was found guilty of all but one
     count. Prior to sentencing, the Supreme Court of the State
     of New York, Appellate Division reversed and vacated the
     order of the Albany County court unsealing Ritter’s
     records. Ritter then filed a motion for a new trial pursuant to
     Rule 704(B) or in the alternative to postpone sentencing. The
     trial court sentenced Ritter on October 26, 2011. At the time of
     sentencing Ritter made an oral motion for extraordinary relief.
     After extensive argument regarding the New York records, the
     trial court denied Ritter’s request for a new trial and sentenced
     Ritter to an aggregate period of 18 to 66 months’ imprisonment.
     Ritter filed post-sentence motions, which the trial court denied.

Id. at *2 (emphasis added).

     As noted supra, Ritter’s judgment of sentence was affirmed on direct

appeal.   On appeal, Ritter argued, inter alia, that the trial court erred in

failing to grant a new trial when the Supreme Court of New York Appellate

Division reversed the Albany County court’s order unsealing Ritter’s arrest

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records.   See id. at *3.   The panel determined the information regarding

Ritter’s prior arrests for internet sex crimes was relevant and its “probative

value outweighed any prejudicial effect to Ritter.” Id. Moreover, because

the records were “unsealed at the time of their production to the

Commonwealth … and at that time of Ritter’s jury trial[,]” the panel

concluded the trial court did not err in permitting the Commonwealth to

admit the records into evidence. Id. (emphasis in original). Subsequently,

on May 21, 2014, the Pennsylvania Supreme Court denied Ritter’s petition

for allowance of appeal.     Commonwealth v. Ritter, 92 A.3d 811 (Pa.

2014).

      On April 6, 2015, Ritter filed a timely, pro se PCRA petition, again

challenging the trial court’s admission of his New York arrest records. Ritter

argued that a February 5, 2015, decision of the Albany County, New York

court, precluding any reference to the now-sealed arrest records during his

New York state Sexual Offenders Registration Act (“SORA”) hearing, must be

afforded “full faith and credit” in his Pennsylvania proceedings.     See PCRA

Petition, 4/6/2015, at 12-18. By order dated January 14, 2016, the PCRA

court denied Ritter’s motion without first conducting a hearing.

      Ritter filed a timely appeal.   However, both the PCRA court and the

Commonwealth asked this Court to remand the matter because the PCRA

court failed to provide Ritter with the requisite notice of its intent to dismiss

the petition without first conducting an evidentiary hearing pursuant to



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Pa.R.Crim.P. 907. On July 12, 2016, this Court entered a per curium order

vacating    the   order    denying     PCRA    relief   and   remanding   for   further

proceedings.      See Commonwealth v. Ritter, 380 EDA 2016, Order,

7/12/2016.

       On August 29, 2016, Ritter requested the PCRA court conduct a

Grazier2 hearing, so that he could continue to proceed pro se. Three days

later, Ritter filed a pro se petition for an evidentiary hearing. Thereafter, on

September 9, 2016, the PCRA court conducted a Grazier hearing, and

entered an order granting Ritter’s request to proceed pro se. Subsequently,

on September 15, 2016, the court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss Ritter’s petition without first conducting an evidentiary

hearing. Although Ritter filed a 44-page response, the PCRA court entered

an order dismissing Ritter’s petition on October 6, 2016. This timely appeal

follows.3

       Before we may address the issues Ritter raises on appeal, we must

first determine if Ritter is statutorily eligible for PCRA relief. Although not

addressed by the PCRA court or either party, it is well-established that to be

eligible for PCRA relief, a petitioner must prove that at the time relief is
____________________________________________


2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3
  Although the PCRA court did not direct Ritter to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Ritter,
nevertheless, filed concise statement on November 2, 2016.




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granted he is “currently serving a sentence of imprisonment, probation or

parole for the crime[.]” 42 Pa.C.S. § 9543(a)(1)(i). “Case law has strictly

interpreted the requirement that the petitioner be currently serving a

sentence for the crime to be eligible for relief.” Commonwealth v.

Plunkett, 151 A.3d 1108, 1109 (Pa. Super. 2016), appeal denied, ___ A.3d

___, 2017 WL 2081583 (May 15, 2017).

      This Court’s decision in Plunkett is dispositive.    In that case, the

defendant filed a timely PCRA petition while on probation following a

conviction of theft by deception. See Plunkett, supra, 151 A.3d at 1109.

The PCRA court conducted a hearing on the issues raised in the petition and,

in June of 2015, entered an order denying relief.             The defendant

subsequently filed a timely appeal. Thereafter, in January of 2016, while the

appeal was pending in this Court, the trial court entered an order

terminating the defendant’s probationary sentence. See id. On appeal, this

Court determined the defendant was not entitled to relief because he was no

longer serving a sentence for the conviction at issue.    The panel opined:

“[W]e find the statutory requirement that a PCRA petitioner be currently

serving a sentence is applicable to the instant circumstance where the PCRA

court’s order was issued while petitioner was still serving the required

sentence, but that sentence terminated prior to the resolution of his appeal.”

Id. at 1113. See also Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013)

(“Because individuals who are not serving a state sentence have no liberty



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interest in and therefore no due process right to collateral review of that

sentence, the statutory limitation of collateral review to individuals serving a

sentence of imprisonment, probation, or parole is consistent with the due

process prerequisite of a protected liberty interest.”), cert. denied, 134 S.Ct.

1771 (U.S. 2014); Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa.

Super. 2015) (finding appellant was no longer eligible for relief on DUI

convictions for which he had completed his sentence, but considering

collateral claims with regard to conviction of fleeing while DUI), appeal

denied, 125 A.3d 1201 (Pa. 2015).

       Here, Ritter was sentenced to a maximum term of 66 months’

imprisonment on October 26, 2011. The sentencing transcript reveals that

Ritter was taken into custody immediately following the hearing. See N.T.,

10/26/2011, at 225.            Although, in his post-sentence motion, Ritter

requested bail pending appeal, the court denied his request.        See Order,

3/20/2012. Accordingly, Ritter’s sentence expired on April 26, 2017, and he

is statutorily ineligible for PCRA relief.4




____________________________________________


4
  In fact, Ritter acknowledged this in two prior filings. See Motion for Post-
Conviction Collateral Relief, 4/6/2015, at 5 (stating “Petitioner will complete
his period of parole on April 2[6], 2017”); Letter to PCRA court dated
8/25/2016, at 1 (requesting the court “expeditiously process” his petition
because his “parole expires on April 26, 2017”).




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       Because Ritter is no longer serving a sentence for the convictions that

are the subject of this PCRA petition, he is not entitled to PCRA relief, and

we affirm the order on appeal.5

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2017




____________________________________________


5
  We note that because Ritter was still serving his sentence at the time the
PCRA court issued its Rule 907 notice and accompanying opinion, the court
addressed the merits of the issues raised on appeal. However, it is well-
settled that “we may affirm a PCRA court's decision on any grounds if the
record supports it.” Commonwealth v. Benner, 147 A.3d 915, 919 (Pa.
Super. 2016) (quotation omitted).



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