J-S04007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WILLIAM M. REEDER,

                            Appellant                No. 968 MDA 2014


                    Appeal from the PCRA Order May 12, 2014
                 In the Court of Common Pleas of Centre County
    Criminal Division at No(s): CP-14-CR-0000153-2005, CP-14-CR-0000252-
           2004, CP-14-CR-0000257-2005, CP-14-CR-0001594-2005


BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 16, 2015

        William M. Reeder appeals from the May 12, 2014 order denying a

PCRA petition. We affirm.

        The present matter involves four criminal actions. A recitation of the

procedural history of each one is needed in order to properly dispose of this

appeal.    At criminal action number 252-2004, Appellant was charged with

two counts of conspiracy and one count of theft after he allegedly took $400

in cash from Harold Reeder. On January 17, 2005, he entered a negotiated

guilty plea to theft in exchange for a sentence of two years probation and

dismissal of the other two charges at this action as well as all charges filed

at a prior criminal action.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      At criminal action number 153-2005, Appellant pled guilty on April 1,

2005 to theft and was sentenced to five years probation, which was to be

served consecutively to that imposed at 252-2004.       The facts underlying

that guilty plea follow.   On November 8, 2004, Appellant went to William

Comley’s home in Centre County.       Mr. Comley knew that at one time,

Appellant worked in automobile sales, and Appellant offered to sell Mr.

Comley a used car for $500.     Mr. Comley gave Appellant the cash, which

Appellant took, but the victim never received a car from Appellant.

      At criminal action number 257-2005, Appellant pled guilty on April 1,

2005, to one count each of theft and receiving stolen property, and he was

given a five year probationary term that was concurrent with the probation

imposed at 252-2004 and 153-2005. On October 12, 2004, Appellant gave

Todd Fischer of Fischer’s Market a check to cash. The check was payable to

Appellant in the amount of $450 and purportedly executed by Jason Dixon.

Mr. Fischer cashed the check for Appellant and gave him the $450.        The

check was subsequently returned to the victim because the account upon

which it was written was closed.     Police interviewed Mr. Dixon, and he

denied signing a check payable to Appellant.

      At criminal action number 1594-2005, Appellant was convicted by a

jury of theft and receiving stolen property.     Those charges arose from

Appellant’s sale of a truck that he did not own for $5,000 in cash. Appellant

obtained the truck with the consent of an employee of the owner, and his

convictions in that case rested upon his receipt of $5,000 in cash from the

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person to whom he sold the truck, which the victim returned to its rightful

owner. Appellant represented himself before the jury. On March 9, 2006,

Appellant was sentenced at 1594-2005 to three to six years incarceration.

      Due to Appellant’s convictions at 1594-2005, his probation was

revoked at cases 252-2004, 153-2005, and 257-2005. On April 24, 2006, a

consolidated revocation hearing was held.          At that time, Appellant’s

probation was revoked and he was sentenced to a total term of

imprisonment of seven and one-half to fifteen years incarceration. The April

24, 2006 sentence was also imposed consecutively to the term of

imprisonment imposed at 1594-2005, for a total of ten and one-half to

twenty-one years in jail.

      Appellant did not file direct appeals in any of the four criminal actions.

On July 17, 2006, Appellant filed a pro se PCRA petition that was timely as

to the violation-of-probation sentences imposed on April 24, 2006 as well as

the March 9, 2006 sentence imposed at 1594-2005 following his jury trial.

Counsel was appointed, and he filed an amended PCRA petition on June 25,

2007; all four docket numbers were included in the caption of that

document.

      After an evidentiary hearing held on February 7, 2008, Appellant’s

right to file a post-sentence motion and an appeal at each of the four

criminal action numbers was reinstated on October 14, 2008.         On appeal,

Appellant claimed that he was improperly permitted to proceed pro se at the

jury trial that transpired at 1594-2005.    We rejected that contention and

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affirmed.   Commonwealth v. Reeder, 4 A.3d 702 (Pa.Super. 2010)

(unpublished memorandum).

     Appellant then filed a PCRA petition on October 19, 2010. Since his

prior PCRA petition had reinstated his direct appeal rights at the four

criminal action numbers, this PCRA petition was considered a first one. See

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014)

(quoting Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super.

2013)) (“This Court has explained that when a PCRA petitioner's direct

appeal rights are reinstated nunc pro tunc in his first PCRA petition, a

subsequent PCRA petition will be considered a first PCRA petition for

timeliness purposes.”).   The PCRA court failed to appoint counsel for

Appellant to litigate the October 19, 2010 petition and then denied relief on

January 14, 2011.      On appeal, we reversed and remanded for the

appointment of counsel under well-settled precedent requiring that relief for

purposes of a PCRA petitioner’s first PCRA petition.    Commonwealth v.

Reeder, 37 A.3d 1235 (Pa.Super. 2011) (unpublished memorandum)

(“Reeder II”).

     On remand, counsel, Steven P. Trialonas, Esquire, was appointed, but

he petitioned to withdraw under Commonwealth v. Turner, 544 A.2d 927

(Pa. 1998) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)

(en banc), which outline the requirements for counsel to withdraw in the

post-conviction setting. Appellant’s pro se October 19, 2010 PCRA petition

failed to set forth any discernable claim and merely asserted that appellate

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counsel was ineffective for failing to present unnamed issues in the prior

appeal to this Court at 1594-2005.

      Mr. Trialonas reported in his no-merit letter that he had consulted with

Appellant and that Appellant wanted to raise the following issues in his post-

conviction proceeding: 1) appellate counsel should not have submitted his

direct appeal at 1594-2005 on the briefs; 2) Appellant’s April 24, 2006

revocation sentence was illegal since the sentences at each of the three

criminal actions should have been imposed concurrently rather than

consecutively; 3) that his signatures were forged on the guilty plea

agreements entered at 252-2004, 153-2005, and 257-2005; and 4)

transcripts in the records of the four criminal cases were altered and that

Appellant had proof of the tampering since he received unaltered transcripts.

In his no-merit letter, Mr. Trialonas established that Appellant was not

entitled to PCRA relief as to the first three issues. Mr. Trialonas also reported

that he had repeatedly asked Appellant for the unaltered transcripts, but

Appellant had failed to forward them to him.

      The no-merit letter was served on Appellant on February 21, 2014.

Counsel also served on Appellant his petition for leave to withdraw as

counsel, which was filed on February 24, 2014. In the petition to withdraw,

Mr. Trialonas set forth that he had conducted a review of the records and the

issues that Appellant sought to raise. Counsel concluded that there were no

meritorious issues to raise. On March 25, 2014, the PCRA court examined

the petition to withdraw and no-merit letter and conducted an independent

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review of the record. It found that the October 19, 2010 petition was

meritless and permitted Mr. Trialonas to withdraw. On March 26, 2014, the

court issued notice, as required by Pa.R.Crim.P. 907, that it intended to

dismiss the PCRA petition without a hearing.

     On April 15, 2014, Appellant filed a document objecting, with a single

exception, to the validity of the proceedings at criminal action numbers 252-

2004, 153-2005, and 257-2005. With respect to case number 1594-2005,

Appellant did raise one issue: “The court erred by denying Petitioner a

mistrial after Comm. solicited Testimony that the value of the Truck was

above $5000. Before the start of Trial[,] Petitioner made a[n] oral motion to

preclude the Comm. of eliciting Testimony. CP-1594.” Letter, 4/15/14, at 1.

     On May 12, 2014, the PCRA court indicated that the issue raised in the

April 15, 2014 document as to the trial conducted at 1594-2005 had been

previously raised and rejected as grounds for a new trial.    The court also

denied the October 19, 2010 petition. Appellant filed his notice of appeal.

Appellant raises eleven issues for our review.      Initially, we outline the

applicable principles regarding our review of the PCRA court’s determinations

herein:

         An appellate court reviews the PCRA court's findings of fact
     to determine whether they are supported by the record, and
     reviews its conclusions of law to determine whether they are free
     from legal error. The scope of review is limited to the findings of
     the PCRA court and the evidence of record, viewed in the light
     most favorable to the prevailing party at the trial level.




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Commonwealth v. Freeland, 2014 WL 6982658, 4 (Pa.Super. 2014)

(citation omitted).

      On appeal, Appellant challenges both the judgment of sentence

imposed in criminal action 1594-2005 following his jury trial as well as his

guilty pleas and probation revocation sentence involved in criminal action

numbers 252-2004, 153-2005, and 257-2005.           We conclude that the

October 19, 2010 PCRA petition was not timely in criminal action numbers

252-2004, 153-2005, and 257-2005. To be timely, a PCRA petition must be

filed within one year of the date a judgment of sentence becomes final. 42

Pa.C.S. § 9545(b)(1). “[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)(3).

      The probation revocation sentence at action numbers 252-2004, 153-

2005, and 257-2005 was imposed on April 24, 2006. On October 14, 2008,

Appellant was accorded the right to appeal nunc pro tunc from the April 24,

2006 judgment of sentence. He had until November 13, 2008, thirty days

after grant of the right to appeal to initiate his direct appeal. Callahan,

supra. Therefore, his judgment of sentence of April 24, 2006 became final

on November 13, 2008, when he did not appeal. Id.        Appellant had until

November 13, 2009, to file a timely PCRA petition at cases 252-2004, 153-

2005, and 257-2005, and his October 19, 2010 petition was untimely in




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those criminal action numbers. On appeal, he fails to set forth how he has

overcome the one-year time bar in those three cases.

     We observe that the untimeliness of the petition for purposes of action

numbers 252-2004, 153-2005, and 257-2005 is law of the case. In Reeder

II, we expressly ruled that the October 19, 2010 petition was untimely in

those three cases:

          The record reveals that Appellant’s judgment of sentence
     with respect to Nos. CP-14-CR-0252-2004, CP-14-CR-0153-
     2005, and CP-14-CR-0257-2005 became final on November 13,
     2008, 30 days after the PCRA court reinstated his right to
     directly appeal his probation revocation sentences, and the time
     for filing said notice of appeal with this Court expired. See 42
     Pa.C.S.A. § 9545(b)(3). Therefore, in order to comply with the
     filing requirements of the PCRA, Appellant’s petition had to be
     filed by November 13, 2009. As the petition was not filed until
     October 19, 2010, more than 11 months late, it is patently
     untimely. See 42 Pa.C.S.A. § 9545(b)(1). Moreover, Appellant
     fails to make any mention of his petition’s timeliness in the
     argument section of his appellate brief, nor does he assert any of
     the time-bar exceptions in the two issues he raises. See 42
     Pa.C.S.A. § 9545(b)(1)(i-iii). Without a pled and successfully
     proven exception to the time bar, we are precluded from
     addressing the merit of the argument raised.                  See
     Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa. Super.
     2008).

Reeder II, supra (unpublished memorandum at n.7).

     In accordance with the law of the case, it is clear that the October 19,

2010 PCRA petition at issue was untimely as to action numbers 252-2004,

153-2005, and 257-2005. Appellant fails to plead and prove that one of the

exceptions to the one-year time bar applies. Hence, we are precluded from

addressing any claims relating to the April 24, 2005 revocation sentence as



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we lack jurisdiction over them.    Callahan, supra (courts lack jurisdiction

over untimely PCRA petitions).

      As to action number 1594-2005, we affirmed the judgment of

sentence imposed in that case on June 29, 2010. Hence, the PCRA petition

filed on October 19, 2010 was timely as to that action number.             The

allegations that Appellant raises are quoted from his brief as follows:

      1. Did appointed Counsel Trialonas [PCRA counsel] egregiously
      disregard the Order of this Court dated October 18, 2011 Court
      [sic] via his submission of a Turner/Finley letter on Grounds that
      the "claims have no merit"/"were already argued" despite
      contrary evidence of the record that only one (1) of the eleven
      complaints argued and the record clearly reflecting a litany of
      complaints holding arguable merit. Conduct of which has clearly
      prejudiced appellant among violating his entitled right to
      assistance of legally trained Counsel in litigating first PCRA?

      2. Did trial Court err and prejudice appellant in ignoring the
      genuine material fact that appellant was not properly arraigned
      on CR-1594-05, in that Officers did not serve a warrant, knock
      or announce their presence prior to breaking down door and
      arresting him. Further, that the officers did not present any
      papers to District Judge Lundsford at his preliminary-
      arraignment thus Counsel prejudiced appellant in failing to
      allege/address said defects/infringements?

      3. Did trial Court Abuse it's [sic] Discretion and prejudice
      appellant in denying his motion for New Trial on the Grounds
      that D.A. Boob repeatedly announced the value of the truck
      despite certifying for the record that he would "leave that out of
      the record". N.T. 1/31/06 P-21?

      4. [Relates to the validity of the guilty pleas entered at 252-
      2004, 153-2005, and 257-2005.]

      5. Did the Court err and prejudice appellant in ignoring the
      genuine material fact of a legitimate conflict of interest in that
      appellant was represented by the Centre County P.Ds. Office in


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      all the above cited cases, yet, had members of the former
      appointed to represent him though the P.Ds. office had entities
      testify against him in a previous case?

      6. Did the Court/Stand-by Counsel Lisko [Appellant’s stand-by
      counsel at the trial at action number 1594-2005] err and
      prejudice appellant in failing to insure he had a copy of timely
      related Informations/Discoveries to use in trial?

      7. [Relates to plea counsel’s ineffectiveness in connection with
      the guilty pleas entered at 252-2004, 153-2005, and 257-2005.]

      8. Was appellant denied Due Process of Law/Prejudiced when
      PCRA Counselor Trialonas was aware of plea agreement for 2-4
      Years for CR-1594 (That Counselor Lisko falsely certified to the
      Court Appellant did not want.) Which record of February 7, 08
      evidentiary hearing validated offer of. Yet, Trialonas failed to
      retrieve those records for review prior to submission to withdraw
      on claim of "no merit". Further that Counsel failed to perform an
      exhaustive reading of the record to uncover all possible issues
      for review and in doing so lacked candor/perjured himself via his
      certified account that he did in fact perform?

      9. [Relates to counsel’s actions in connection with the April 24,
      2006 revocation sentence.]

      10. Did the Court/Counselor Lisko err/prejudice appellant in not
      providing a list of witnesses the Commonwealth intended to call
      in it's [sic] case-in-chief and due to said failure appellant was
      denied Due Process of Law?

      11. Did Counselor Parvis err/prejudice appellant in telling the
      Court that "There's not a whole lot I can tell the Court about it,
      or Mr. Reeder, but I'm hoping the Court will A: accept the plea
      and B: Go along with sentencing". N.T. 4-1-05. That Parvis did
      so conflictively [sic] to the certification to the Court as
      documented on N.T. id. P-4 where D.A. Boob clearly certifies
      that Appellant entered a negotiated plea?

Appellant’s brief at 4-5.

      Appellant’s first complaint is that Mr. Trialonas improperly followed our

prior directive when he sought to withdraw. We disagree. In Reeder II, we


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merely remanded for the appointment of counsel, which occurred herein.

Our decision cannot be construed as prohibiting counsel from seeking to

withdraw.

       We cannot address issues four, seven, and nine as they relate to the

cases where the October 19, 2010 PCRA petition was untimely and where we

lack jurisdiction. We also cannot address issues two, five, six, eight, 1 ten,

and eleven2 because they are waived.               None of these contentions was

presented in Appellant’s PCRA petition filed on October 10, 2010. Likewise,

Appellant failed to raise these averments when he responded to the PCRA

court’s Pa.R.Crim.P. 907 notice and PCRA counsel’s petition to withdraw.

Since the issues were not raised during the PCRA court proceedings at any

point, they are waived and cannot be presented for the first time on appeal,

even under the guise of PCRA counsel’s ineffectiveness for failing to raise

them. Commonwealth v. Rigg, 84 A.3d 1080 (Pa.Super. 2014).


____________________________________________


1
  In connection with this averment, Appellant suggests that a plea offer was
not conveyed to him before he proceeded to trial at 1594-2005. This
averment directly contradicts his testimony at the PCRA hearing conducted
on his first PCRA.       At that proceeding, Appellant testified that the
Commonwealth offered to allow him to plead guilty in exchange for a
sentence of two to four years incarceration and that he rejected that offer.
N.T. Hearing, 2/7/08, at 20. Counsel confirmed that Appellant refused to
plead guilty. Id. at 62.
2
  We are unable to comprehend the nature of allegation eleven and cannot
decipher whether it pertains to 1594-2005. To the extent that it does, it
was not preserved.



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       The only preserved allegation that concerns the trial proceedings at

1594-2005 is the one relating to the value of the truck. The following facts

are pertinent.     As noted, Appellant was permitted to represent himself at

trial.3 The evidence was that Appellant had sold a truck for $5,000 to Carol

McCully and kept the cash.           Ms. McCully had a family business wherein

trucks were utilized to deliver products. One of the trucks was experiencing

problems with its transmission.          Appellant, whom Ms. McCully knew from

attending school with him, was aware of the problem with the truck. On July

28, 2005, Appellant called Ms. McCully and said that he could sell her a truck

for $5,000.       He came to her residence and sold her the truck for

approximately $5,000 in cash.

       Appellant was not the legal owner of the truck, which actually was

owned by Stocker Chevrolet (“Stocker”). Stocker sold both new and used

vehicles.   The Commonwealth established that Appellant did not have the

authority to sell that truck and was not an employee of Stocker.       He had

custody of the truck by permission. Specifically, he was given the truck and

its keys by Terry Stephens. Mr. Stephens worked for Autobuffs, which is an

auto-detailing shop owned by Stocker. Mr. Stephens testified that Appellant

telephoned him on July 28, 2005, and wanted to know how much a certain

truck on the Stocker lot cost. Mr. Stephens called the sales manager and

____________________________________________


3
  On direct appeal, we concluded that he properly was permitted to do so
and that the colloquy was compliant with applicable law. Reeder II, supra.



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was told that Stocker wanted at least $13,000 for the truck. Appellant said

he had a buyer for the truck and represented that he would be selling the

truck on behalf of Stocker.

      Appellant was charged with theft and receiving stolen property at

action number 1594-2005 in connection with his receipt of the $5,000 from

Ms. McCully. He was not charged with stealing the truck from Stocker, and

the jury was so informed. N.T. Trial, 1/31/06, at 186 (“Mr. Reeder, just so

you’re clear and just so the jury is clear, the information in this case does

not involve the theft of a motor vehicle.     It does not involve a theft from

Stocker Chevrolet.”). When Mr. Stephens said that Stocker wanted at least

$13,000 for the truck, Appellant objected because the value of the truck was

not supposed to be mentioned at trial.        At that time, the court issued a

lengthy cautionary instruction to the effect that the value of the truck was

not relevant to the jury’s deliberation.

      As the trial court noted when it resolved this issue during Appellant’s

first PCRA proceeding, the value of the truck was not relevant at trial since

Appellant was accused of taking the money from Ms. McCully rather than

stealing the truck itself. The court concluded that the evidence in question

was innocuous, that any prejudice inuring to Appellant from mention of the

truck’s value was cured by jury instruction, and that Appellant was not

entitled to a new trial due to introduction of the proof in question.




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      Since the issue was not raised on appeal, the question herein is

whether appellate counsel was ineffective for failing to present that

contention as grounds for a new trial.

             To establish trial counsel's ineffectiveness, a petitioner
      must demonstrate: (1) the underlying claim has arguable merit;
      (2) counsel had no reasonable basis for the course of action or
      inaction chosen; and (3) counsel's action or inaction prejudiced
      the petitioner. See Strickland v. Washington, 466 U.S. 668,
      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v.
      Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Freeland, supra 2014 WL 6982658 at 4 (citation omitted).          Herein, we

concur that the jury verdict was not affected by admission of the testimony

that Stocker wanted at least $13,000 for the truck.       Its value was not

pertinent, and the jury was so instructed.       Appellant would not have

obtained a new trial based upon the testimony in question, and appellate

counsel was not ineffective for failing to present this claim on direct appeal

in action 1594-2005.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2015




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