J-A03032-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                  Appellee                  :
                                            :
            v.                              :
                                            :
JOSEPH FRANKENBERRY,                        :
                                            :
                  Appellant                 :   No. 778 WDA 2018

                   Appeal from the PCRA Order May 11, 2018
                in the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0000158 ½-1981
                             CP-26-CR-0000158-1981

BEFORE: SHOGAN, J., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED APRIL 26, 2019

        Joseph Frankenberry (Appellant) appeals from the May 11, 2018 order

dismissing his fourth petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

                                       A.

        We offer the following background.

             On August 19, 1981, a jury found Appellant guilty of first[-
        ]degree murder and criminal conspiracy in connection with a
        November 14, 1980 killing for hire in Uniontown.[1] Judgment of



1   This Court previously summarized the underlying facts as follows.

        The victim’s wife, Phoebe Tomasek[,] engaged in an affair with
        Elmer Younkin. Tomasek and Younkin decided to kill the victim.
        Initially, they met with Ben Wujs to have the victim killed, but
        Wujs referred the job to Appellant. Tomasek and Younkin then
        met with Appellant and Charles Huey to arrange the killing in
(Footnote Continued Next Page)


* Retired Senior Judge assigned to the Superior Court.
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      sentence was imposed on November 15, 1982, with Appellant
      receiving an aggregate term of life plus five to ten years’
      imprisonment. On August 7, 1984, this Court affirmed the
      judgment of sentence and on January 10, 1985, our Supreme
      Court denied appeal. Commonwealth v. Frankenberry, 481
      A.2d 1372 (Pa. Super. 1984) (unpublished memorandum).

             On October 14, 1988, Appellant filed his first PCRA
      petition. The petition was denied on November 4, 1988, and a
      motion for reconsideration was denied on November 17, 1988.
      Appellant appealed the November 17, 1988 decision, but the
      appeal was later quashed as untimely. Appellant filed a second
      PCRA petition on November 18, 1994. Counsel was appointed
      and following a hearing, the petition was denied on January 20,
      1995.      This Court subsequently affirmed the denial.
      Commonwealth v. Frankenberry, 671 A.2d 768 (Pa. Super.
      1995) (unpublished memorandum), appeal denied, 674 A.2d
      1067 (Pa. 1996). On April 12, 2005, Appellant filed [a third]
      PCRA petition. [T]he petition was dismissed as untimely [filed].

Commonwealth v. Frankenberry, 897 A.2d 516 (Pa. Super. 2006)

(unpublished memorandum at 1-2) (footnote omitted). This Court affirmed

the dismissal of Appellant’s third PCRA petition, and our Supreme Court

denied Appellant’s petition for allowance of appeal. Id., appeal denied, 901



(Footnote Continued)   _______________________

      such a way that Tomasek and Younkin could establish alibis
      while Huey and Appellant killed the victim.

             On November 14, 1980, Huey and Appellant drove to the
      victim’s driveway and waited for him to come home. When he
      did, Appellant walked over to the victim and shot him four times,
      killing him. Subsequently, Huey informed the police of the
      events, was granted immunity, and testified at trial as an
      eyewitness.    Younkin and Appellant were tried jointly and
      convicted.

Commonwealth v. Frankenberry, 671 A.2d 768 (Pa. Super. 1995)
(unpublished memorandum at 2).

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A.2d 496 (Pa. 2006).       Additionally, Appellant unsuccessfully sought relief

through the federal habeas system and the Freedom of Information Act.

        Appellant filed the instant, counselled PCRA petition on October 6,

2016, raising several Brady2 claims.       PCRA Petition, 10/6/2016, at 17-18.

As alleged in Appellant’s October 6, 2016 petition, he sought assistance with

pursuing a PCRA petition from the law firm of Leech Tishman in 2012.

Attorney Steve Toprani took on Appellant’s case and hired James Baranowski

to investigate Appellant’s alleged claims of judicial misconduct pertaining to

pre-trial rulings and granting immunity to Huey.        Id. at 10.   Appellant’s

claims evolved following the conclusion of Baranowski’s investigation, and

Appellant ultimately presented four bases for overcoming the PCRA’s time-

bar, including via the newly-discovered facts and governmental interference

exceptions.3 Id. at 8-9.



2 Brady v. Maryland, 373 U.S. 83 (1963). “Under Brady[] and subsequent
decisional law, a prosecutor has an obligation to disclose all exculpatory
information material to the guilt or punishment of an accused, including
evidence of an impeachment nature.” Commonwealth v. Spotz, 47 A.3d
63, 84 (Pa. 2012).

3   These exceptions provide as follows.

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

              (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
(Footnote Continued Next Page)

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         First, Appellant argued that the Commonwealth failed to disclose

tape-recorded conversations between Younkin and Tomasek (Younkin-

Tomasek tapes), wherein they discussed hiring Huey to kill the victims.

These phone conversations were allegedly recorded by Younkin. Appellant

claimed that he learned of the tapes on August 17, 2016, when he received

Baranowski’s report.             Id. at 9; Brief in Support of PCRA Petition,

12/22/2016, at 14.

      Second,     Appellant         claimed      that   he   provided   Attorney   Toprani,

sometime between 2012 and 2016, with an FBI ballistics report. However,

Attorney Toprani failed to file a PCRA petition based on the ballistics report

within 60 days of receipt of that report. Amended PCRA Petition, 5/16/2017,

at 12.     Thereafter, Attorney Toprani left Leech Tishman.                        The firm

subsequently notified Appellant that it could no longer represent him

because the PCRA’s 60-day timeframe would have passed for any facts

discovered while Attorney Toprani was working on Appellant’s case, and

because of a conflict of interest with another client.                     PCRA Petition,



(Footnote Continued)   _______________________

             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…

                                                 ***
42 Pa.C.S. § 9545(b)(1)(i-ii).

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10/6/2016, at 11-12; Attachment C (Leech Tishman Letter, 3/8/2016, at 1-

2).

      Third, Appellant pleaded that he learned in August 2006 of evidence

proving that Huey met with the FBI prior to January 24, 1981, whereas

Huey’s trial testimony was that he had not met with the FBI until

approximately February 5, 1981. PCRA Petition, 10/6/2016, at 15.

      Finally, Appellant argued that the PCRA’s jurisdictional time-bar was

unconstitutional as applied to him because, according to him, he “is factually

innocent, and governmental misconduct precluded [Appellant] from learning

of the Brady evidence discussed herein.” Id. at 16.

      Appellant filed a brief in support of his PCRA petition on December 22,

2016, and an amended PCRA petition on May 16, 2017. Also on December

22, 2016, Appellant sought recusal of the entire Fayette County bench

“based on allegations of prosecutorial misconduct that related to current

Senior Judge Gerald Solomon while he prosecuted the underlying cases.”

Motion for Recusal, 12/22/2016, at 1. Ultimately, the Fayette County bench

recused itself and transferred the case to Judge David Klementik from

Somerset County. See Order, 5/31/2017 (Judge Leskinen recusing); Order,

6/2/2017 (Judge Vernon recusing); Order, 6/5/2017 (Judge Cordaro

recusing); Order, 6/7/2017 (President Judge Wagner recusing); Order,

6/9/2017 (Judge George recusing); Order, 6/12/2017 (Judge Solomon

recusing); Order, 6/13/2017 (Judge Capuzzi recusing).


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J-A03032-19


        The PCRA court held oral argument on October 24, 2017. Notably, the

PCRA court did not explicitly “find the petitions untimely or time-barred, but

rather was willing to grant the relief if the evidence was sufficient.” 4

Pa.R.A.P. 1925(a) Opinion, 8/7/2018, at 2 (unnumbered). On February 1,

2018, the PCRA court held an evidentiary hearing on Appellant’s claim

regarding suppression of the Younkin-Tomasek tapes. During that hearing,

Appellant presented the testimony of Phoebe Tomasek, Attorney Steve

Toprani, Attorney Vincent J. Roskovensky, II, Attorney Steve Irwin, Marshall

Woodley, James Baranowski, Peggy Broadwater, and Montgomery Goodwin.

Appellant also testified.     On May 11, 2018, the PCRA court denied

Appellant’s petition by order and memorandum.

                                      B.

        This timely-filed appeal followed.5 On appeal, Appellant raises seven

issues for our review.    See Appellant’s Brief at 5-6.   Before reaching the

merits of Appellant’s claims, we must first determine whether Appellant has

timely filed his PCRA petition, as neither this Court nor the PCRA court has



4 This was error. As discussed infra, the PCRA’s time-bar is jurisdictional.
Therefore, if the petition was filed untimely and did not meet an exception to
to the time-bar, it did not matter whether the evidence was sufficient
because the PCRA court would have been without jurisdiction to entertain
the merits of any raised claims.         However, this Court “may affirm the
decision of the [PCRA] court if there is any basis on the record to support
the [PCRA] court’s action[.]” Commonwealth v. Wiley, 966 A.2d 1153,
1157 (Pa. Super. 2009) (citation omitted).

5   Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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J-A03032-19


jurisdiction   to   address   the   merits   of   an   untimely-filed   petition.

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011).

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

Furthermore, the petition “shall be filed within 60 days of the date the claim

could have been presented.”         42 Pa.C.S. § 9545(b)(2) (effective 1995-

2018).6

      “For purposes of [the PCRA], a judgment [of sentence] 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).       Here, Appellant’s sentence became final in the 1980s

following the conclusion of direct review.    As such, Appellant’s October 6,

2016 petition is facially untimely and he was required to plead and prove an

exception to the timeliness requirements.

      As discussed supra, Appellant attempted to plead the newly-discovered

facts and governmental interference exceptions. PCRA Petition, 10/6/2016,

at 8-9. Appellant presented three “facts” as the bases for these exceptions:

6 This subsection was recently amended for claims arising one year prior to
the effective date of December 24, 2018, to extend the time for filing from
60 days of the date the claim could have been presented to one year.
However, this amendment does not apply to Appellant’s October 6, 2016
PCRA petition.

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J-A03032-19


(1) the Younkin-Tomasek tapes; (2) the FBI ballistics report; and (3) Huey’s

FBI contact date. Id. at 9, 11-12, 15.

       To qualify for the newly-discovered facts exception to the PCRA’s time-

bar, “a petitioner need only establish that the facts upon which the claim is

based were unknown to him and could not have been ascertained by the

exercise of due diligence.” Commonwealth v. Burton, 158 A.3d 618, 629

(Pa. 2017) (some citations omitted).       “Due diligence demands that the

petitioner take reasonable steps to protect his own interests. A petitioner

must explain why he could not have obtained the new fact(s) earlier with the

exercise of due diligence.” Commonwealth v. Monaco, 996 A.2d 1076,

1080 (Pa. Super. 2010) (citations omitted). “The focus of the exception is

on [the] newly discovered facts, not on a newly discovered or newly willing

source for previously known facts.” Commonwealth v. Lambert, 57 A.3d

645, 648–49 (Pa. Super. 2012) (citation omitted; emphasis in original).

With     regard   to    a   Brady     violation,   “[t]he   newly-discovered

evidence exception requires that the facts upon which the Brady claim is

predicated were not previously known to the petitioner and could not have

been ascertained through due diligence.”      Commonwealth v. Hawkins,

953 A.2d 1248, 1253 (Pa. 2006).

       “Although a Brady violation may fall within the governmental

interference exception, the petitioner must plead and prove that the failure

to previously raise these claims was the result of interference by


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J-A03032-19


government officials, and that the information could not have been obtained

earlier with the exercise of due diligence.” Commonwealth v. Smith, 194

A.3d 126, 133 (Pa. Super. 2018) (citation and quotation marks omitted).

Younkin-Tomasek Tapes

          We first consider the Younkin-Tomasek tapes.     Upon review of the

record, it is clear that Appellant’s trial counsel was aware of, and well-versed

in,   numerous      tapes   of   Younkin’s   phone   conversations,   including

conversations between Younkin and Tomasek, at the time of Appellant’s

trial.7

          Specifically, during a mid-trial hearing on Younkin’s charge of

conspiracy, during which Appellant’s counsel and Appellant were present but

the jury was not, Huey testified that Younkin stated that the state police

were taping his phone conversations, and Younkin was “concerned about the

conversations that he had had with [Tomasek].”        N.T., 8/13/1981, at 99-

100. At the conclusion of this hearing, Appellant’s counsel asked the trial

court to instruct the attorneys for the Commonwealth and Younkin to refrain

from mentioning the tapes during Huey’s testimony in front of the jury. Id.

at 111. Both attorneys acknowledged that they did not intend to elicit any

7 We note that trial counsel testified at Appellant’s PCRA merits hearing that
he did not recall any recordings or transcripts of recordings. N.T., 2/1/2018,
at 18. However, because timeliness is jurisdictional and the exceptions must
be pleaded and proved before a court may review the merits of any
underlying claim, we need not reconcile counsel’s inconsistent testimony
decades later at a merits hearing that the PCRA court lacked jurisdiction to
conduct.

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J-A03032-19


information about the tapes at trial.             Id.     Nonetheless, on direct

examination, Huey, unprompted, mentioned that Younkin was “still upset

over the tapes[.]” Id. at 130.

     A sidebar was immediately held.             Appellant’s counsel asked for a

mistrial and severance from Younkin’s case because he had specifically

asked counsel not to mention the tapes because they were inadmissible

against and prejudicial to Appellant.       Id. at 131.    Additionally, Younkin’s

counsel objected to the mention of the tapes, noting that “the newspaper

prior to impaneling the jury ran articles regarding the tapes, their

suppression, and the fact those tapes are most controversial in nature, most

incriminating in nature.” Id. at 130-31. Consequently, he also moved for a

mistrial. Id. at 131. The trial court denied counsels’ motions, and did not

offer a curative instruction because at that point the jury had no idea what

the passing reference to tapes meant. Id. at 131-32.

     Appellant’s   claim   that   the     Baranowski    report,   which   was   the

culmination of Baranowski’s investigation into Appellant’s proposed PCRA

claims, revealed that these phone conversations were purportedly also

recorded by Younkin is of no moment.             Regardless of whether Younkin

recorded the conversations or the police tapped Younkin’s phone to create

the recordings, the fact remains that counsel and Appellant were aware,

during Appellant’s trial, of the Younkin-Tomasek tapes. A new source for the

same information does not create a newly-discovered fact. See Lambert,


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J-A03032-19


supra.    Additionally, because counsel was aware of the tapes and their

prejudicial content at trial, we conclude that the governmental interference

exception also fails to provide Appellant an avenue around the PCRA’s time-

bar.   See 42 Pa.C.S. § 9545(b)(1)(i) (requiring, among other things, that

“the failure to raise the claim previously was the result of interference by

government officials”).

FBI Ballistics Report

       We next consider the FBI ballistics report, but conclude Appellant has

abandoned this argument on appeal. In his brief, Appellant briefly mentions

the ballistics report within his constitutional argument against the time-bar,

Appellant’s Brief at 35, and discusses it as a basis for merits relief in his fifth

claim, id. at 44-46, but does not argue it as a basis for any of the timeliness

exceptions. Accordingly, this argument is waived. See Commonwealth v.

Puksar, 951 A.2d 267, 293 (Pa. 2008) (holding claim waived where Puksar

failed to make or develop his argument).

       Even if not waived, Appellant failed to allege in his PCRA petition, brief

in support, or amended PCRA petition, when he came into possession of the

ballistics report.   Moreover, because Appellant failed to plead when he

discovered this report, he has likewise failed to prove that he filed the

instant petition within 60 days of its discovery.      42 Pa.C.S. § 9545(b)(2).

Therefore, Appellant’s attempt to invoke the governmental interference

exception in this regard also fails.


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      Further, even assuming that Appellant provided the report to Attorney

Toprani within 60 days of its discovery, 42 Pa.C.S. § 9545(b)(2), Attorney

Toprani’s alleged abandonment and failure to file a petition based thereon

does not turn this document into a newly-discovered fact.

      Like the Younkin-Tomasek tapes, trial counsel was aware of the

information contained in the report at the time of Appellant’s trial.

Specifically, FBI agent Gerald F. Wilkes performed the ballistics testing in

this case and testified at trial as a firearms and ammunitions expert

regarding his findings. Agent Wilkes testified that he examined a .45 caliber

lead bullet, lead bullet fragment, a mutilated lead bullet fragment, and a .45

Colt caliber rifle.   N.T., 8/17/1981, at 81.           Agent Wilkes test-fired the

submitted firearm and determined its characteristics. Id. at 82. Based on

his examination, Agent Wilkes determined that the .45 caliber bullet lacked

“sufficient microscopic characteristics for [him] to make identification.” Id.

As to the fragments, because of mutilation, he was “unable to determine

whether or not that bullet was fired from this particular weapon.”            Id. In

conclusion,   he   testified   that   he   found   no    characteristics   that   were

inconsistent with the characteristics of the firearm, and therefore “it could

have been fired from this weapon[,]” id. at 83, but he “couldn’t arrive at an

opinion that the bullet was, in fact, fired from the weapon[.]” Id. at 90.

      The ballistics report attached to Appellant’s amended PCRA petition is

wholly consistent with Agent Wilkes’s testimony.              See Amended PCRA


                                       - 12 -
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Petition, 5/16/2017, Attachment C.    Therefore, the report is merely a new

source for previously known facts, and cannot constitute a newly-discovered

fact. See Lambert, supra.

Huey’s FBI Informant Timeline

      Finally, as to Huey’s FBI informant timeline, Appellant explicitly states

that he learned of this information in 2006.    PCRA Petition, 10/6/2016, at

15.   Whether Appellant wished to use this information as a basis for the

newly-discovered fact exception or the governmental interference exception,

he was required to file a petition based thereon within 60 days.       See 42

Pa.C.S. § 9545(b)(2).    His October 6, 2016 petition, filed a decade later,

fails to satisfy that requirement. See Commonwealth v. Brown, 111 A.3d

171, 176 (Pa. Super. 2015) (citation omitted) (“[W]hen a PCRA petition is …

entitled to one of the [timeliness] exceptions, but not filed within 60 days of

the date that the claim could have been first brought, the [PCRA] court has

no power to address the substantive merits of a petitioner’s PCRA claims.”).

      Accordingly, we conclude that Appellant has failed to plead and prove

a timeliness exception to the PCRA’s time-bar with respect to all of his

claims.

                                      C.

      Recognizing this possibility, Appellant also argued in his PCRA petition

that the time-bar should not be considered jurisdictional, but if it is, it is

unconstitutional as applied to him because he is innocent and the


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Commonwealth allegedly withheld this evidence. PCRA Petition, 10/6/2016,

at 16.

         Appellant argues on appeal that the PCRA time-bar should be

interpreted as a statute of limitations, and that the cases interpreting it as

jurisdictional are erroneous.    Appellant’s Brief at 34 n.10.   However, “our

Supreme Court has stressed that [t]he PCRA’s timeliness requirements are

jurisdictional in nature and must be strictly construed[.]” Leggett, 16 A.3d

at 1145 (citation and quotation marks omitted).         Accordingly, insofar as

this argument asks us to overrule prior panels of this Court or our Supreme

Court, we cannot do that.       See Commonwealth v. Pepe, 897 A.2d 463,

465 (Pa. Super. 2006).

         Second, Appellant argues on appeal that “[a]pplying the PCRA time[-

]bar in this matter as jurisdictional cannot withstand strict scrutiny” given

the “Brady evidence related to [the] tape recordings” and the “FBI ballistics

report[.]” Appellant’s Brief at 35.

         Our Court has previously rejected a claim that petitioners asserting

actual innocence may overcome the PCRA’s timeliness requirements.           In

Commonwealth v. Brown, 143 A.3d 418 (Pa. Super. 2016), Brown argued

that it was unconstitutional to apply the PCRA’s time-bar to a PCRA petition

alleging a claim of actual innocence under Brady.

               To support this proposition, [Brown] cites to McQuiggin v.
         Perkins, [569 U.S. 383 (2013)], in which the United States
         Supreme Court held that petitioners who assert a convincing
         actual innocence claim may thereby invoke the miscarriage of

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      justice exception to overcome the federal habeas corpus statute
      of limitations. Our jurisprudence, however, has already deemed
      such decisions pertaining to federal habeas corpus law irrelevant
      to our construction of the timeliness provisions set forth in the
      PCRA. While McQuiggin represents a further development in
      federal habeas corpus law, … this change in federal law is
      irrelevant to the time restrictions of our PCRA. Because
      [Brown’s] fourth PCRA is patently untimely, and he has not met
      his burden of establishing an exception to the PCRA’s time-bar,
      the PCRA court … lacked jurisdiction to address the Brady claims
      he raised.

Id. at 420-21 (some citations omitted).

      The same holds true for Appellant.       His fourth petition is patently

untimely, and he has failed to plead and prove an exception to the PCRA’s

time-bar. Accordingly, the PCRA court was without jurisdiction to review the

merits of Appellant’s Brady claims.

      Thus, we conclude that the PCRA court’s dismissal of Appellant’s PCRA

petition was proper and, accordingly, affirm the PCRA court’s May 11, 2018

order.8   Because neither the PCRA court nor this Court has jurisdiction to

consider the merits of claims raised in an untimely PCRA petition, we do not

reach Appellant’s remaining issues.

      Order affirmed.




8 As noted supra, although the PCRA         court dismissed Appellant’s PCRA
petition on the merits instead of its       untimeliness, “we may affirm the
decision of the [PCRA] court if there is   any basis on the record to support
the [PCRA] court’s action[.]” Wiley, 966   A.2d at 1157 (citation omitted).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2019




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