J-S24016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

PETER MICHAEL KARENBAUER

                            Appellant                  No. 929 WDA 2016


               Appeal from the PCRA Order Entered May 27, 2016
               In the Court of Common Pleas of Lawrence County
                Criminal Division at No: CP-37-CR-0000642-1995


BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                               FILED JUNE 08, 2017

        Appellant, Peter Michael Karenbauer, appeals from the May 27, 2016

order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        On July 31, 1996, at the conclusion of a nine-day trial, a jury found

Appellant guilty of first-degree murder and imposed a sentence of death.

The victim, eight-year-old Lacey Johnson, was repeatedly stabbed and then

drowned in a bathtub.         Appellant confessed to the killing and relied on a

diminished capacity defense at trial.          Our Supreme Court affirmed the

judgment of sentence on July 22, 1998. Commonwealth v. Karenbauer,

715 A.2d 1086 (Pa. 1998), cert. denied, 526 U.S. 1021 (1999).                On
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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September 23, 2002, the trial court resentenced Appellant to life in prison

without parole pursuant to Atkins v. Virginia, 536 U.S. 304 (2002),

wherein the United States Supreme Court held that imposing the death

penalty on a mentally retarded person violates the Eighth Amendment of the

United States Constitution.1 The September 23, 2002 resentencing mooted

many issues Appellant raised in a PCRA petition that was pending at the

time. On September 29, 2004, this Court issued a memorandum affirming

the PCRA court’s denial of relief on the remaining pending collateral issues.

Commonwealth            v.   Karenbauer,         1119   WDA   2003     unpublished

memorandum (Pa. Super. filed September 24, 2004).                    Subsequently,

Appellant filed an unsuccessful habeas corpus petition in federal court.

       Appellant filed the instant petition on June 19, 2013.           Appointed

counsel filed an amended petition on November 8, 2013.           Appellant seeks

relief based on alleged newly discovered evidence, a 1995 Lawrence County

Coroner’s report.      Appellant alleges his petition is timely because he first

received the report and learned of its contents on April 18, 2013. On May


____________________________________________


1
   At trial, the Commonwealth conceded that Appellant was mildly mentally
retarded. Our Supreme Court held that Appellant’s mental impairment was
to be weighed by the jury, along with other pertinent factors, during the
penalty phase. Karenbauer, 715 A.2d at 1091. The jury found several
aggravating factors and several mitigating factors, including Appellant’s
mental impairment, and ultimately imposed the death penalty.          The
Commonwealth conceded, based on Appellant’s mental impairment, that he
was entitled to a life sentence under Atkins.



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27, 2016, the PCRA court entered an order dismissing the petition as

untimely. This appeal followed. Appellant raises three assertions of error:

                   (a) The      exception(s) of    42   Pa.C.S.A.
            §§ 9545(b)(ii)/(b)(2) apply to fulfill the timeliness
            requirement(s) of the PCRA statute for the filing of
            Petitioner’s […] PCRA petition.

                   (b) The Office(s) of the Lawrence County PA
            District Attorney and/or the Pennsylvania Attorney General
            Office committed prosecutorial misconduct in the refusal to
            disclose exculpatory evidence by failing to provide the
            1995 Lawrence County PA Coroner Report prior to trial
            and/or in previous post-conviction proceeding(s) in this
            case.

                  (c)    Prior defense counsel was ineffective in failing
            to introduce medical expert evidence from a psychiatric
            physician during pre-trial proceeding(s) to evaluate
            [Appellant’s] mental health condition as it may have
            affected statements made in his false ‘confession(s)’ in
            support of a ‘diminished capacity’ defense previously
            raised in the case.

Appellant’s Brief at 15-16.

      On review, we must determine whether the record supports the PCRA

court’s findings of fact, and whether its order is free from legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).                 The

PCRA court lacks jurisdiction to entertain any petition filed more than one

year after the finality of the judgment of sentence.             42 Pa.C.S.A.

§ 9545(b)(1). As set forth above, the trial court re-sentenced in 2002. He

filed this facially untimely petition in 2013.   The PCRA provides several

exceptions to the one-year time bar, including a petition based on facts




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which “were unknown to the petitioner and could not have been ascertained

by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii).

      Appellant bases his petition on a 1995 coroner’s report pertaining to

the victim. The coroner’s report lists the victim’s date of death as July 17,

1995—the date the victim’s body was found—whereas Appellant confessed

to killing her on July 16, 1995. Also, the report does not list drowning as the

cause of death. In this respect, it is inconsistent with the autopsy report and

expert evidence the Commonwealth introduced at trial.         At a hearing on

Appellant’s   petition,   former   Lawrence   County   Cororner   Russel   Noga

explained that his contemporaneous handwritten report indicates that the

date of death was July 16. N.T. Hearing, 4/4/14, at 39-40. He attributed

the date in the printed report to a secretarial error that he failed to notice

before filing the report.    Id.   In any event, Appellant believes that the

discrepancies between the coroner’s report and Appellant’s confession

support his argument that he gave a false confession because of his mental

impairment.

      We agree with the PCRA court’s conclusion that Appellant’s petition is

untimely. The PCRA court correctly noted that the coroner’s report was not

within the exclusive control of the prosecution. Rather, the report is a public

document, pursuant to 16 P.S. § 1251 (“Every coroner, within thirty (30)

days after the end of each year, shall deposit all of his official records and

papers for the preceding year in the office of the prothonotary for the


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inspection of all persons interested therein.”). Our Supreme Court has held

that matters of public record cannot be previously unknown facts for

purposes of § 9545(b)(1)(ii). Commonwealth v. Chester, 895 A.2d 520,

523 (Pa. 2006).    This Court has held, however, that the presumption of

access to public information does not apply if the petitioner is a pro se

prisoner when the information becomes publicly available. Commonwealth

v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015)(en banc), affirmed,

2017 WL 1149203 (Pa. March 28, 2017).         Burton does not apply here,

because Appellant was represented by counsel in early 1996 when the

victim’s autopsy report became available.

      Given the foregoing, Appellant cannot establish that the facts in the

coroner’s report were unknown to him and/or that he could not have

discovered them sooner through the exercise of due diligence.       Appellant

seeks to avoid this result by asserting in his brief that there is “no proof”

that the Lawrence County Coroner’s office complied with its obligation under

§ 1251. Appellant’s Brief at 30. We remind Appellant that the PCRA statute

requires the petitioner to bear the burden of pleading and proving the

applicability of its timeliness exceptions.     42 Pa.C.S.A. § 9545(b)(1).

Appellant therefore bore the burden of proving that the report was not made

available in accord with § 1251, and, if it was not, that Appellant acted with

due diligence in challenging the coroner’s alleged failure to comply with




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§ 1251. Appellant has produced no evidence that the coroner failed to make

the report available.

      The PCRA court observed:

             Here, it is clear that [Appellant] was aware of the
      existence of the coroner’s report for years before the time that
      he began his efforts to seek a copy. The reference to the
      coroner’s report in police reports established that his trial
      counsel was aware of the report at the time of trial. Although
      [Appellant] has not cited the governmental interference
      exception of § 9545(b)(1)(i) as a basis for his claim of
      timeliness, trial counsel’s awareness would preclude the
      application of the governmental interference exception since trial
      counsel was aware of the report.         It is apparent that its
      nondisclosure was simply due to the fact that neither the
      Commonwealth nor trial counsel viewed it as being exculpatory,
      particularly since [Appellant] did not dispute that he killed the
      victim[….] Further, [...] the awareness of the report at the time
      of trial and [Appellant’s] failure to seek a copy of it for many
      years after its creation establishes a lack of due diligence by
      [Appellant] in obtaining that evidence. [Appellant] had simply
      failed to address why, with the exercise of due diligence, he
      could not have obtained the coroner’s report at a much earlier
      date.

PCRA Court Opinion, 5/27/16, at 16. Appellant has failed to carry his burden

of pleading and proving the applicability of a timeliness exception.       We

therefore affirm the PCRA court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


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Date: 6/8/2017




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