J-S07022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RUSSELL CHRUPALYK                         :
                                           :
                    Appellant              :   No. 440 EDA 2017

                Appeal from the PCRA Order January 24, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0302471-2004,
                           CP-51-CR-0302491-2004


BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY PANELLA, J.                        FILED AUGUST 21, 2018

      Russell Chrupalyk appeals from the order entered in the Philadelphia

County Court of Common Pleas, denying his first petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court accurately summarized the history of this case. See

Trial Court Opinion, filed 4/13/17, at 1-4. Therefore, a detailed recitation of

the factual and procedural history is unnecessary.

      Briefly, on October 21, 2005, Appellant was convicted of two counts

each of first-degree murder, criminal solicitation, and criminal conspiracy. This

Court affirmed his judgment of sentence, and following the Pennsylvania

Supreme Court’s denial of an allowance of appeal, Appellant’s judgment of

sentence became final on January 16, 2009.
J-S07022-18



      Appellant filed his first pro se PCRA petition on February 10, 2011. While

Appellant acknowledged his petition was untimely, he asserted he met the

after-discovered facts exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), to the PCRA

time-bar. Specifically, Appellant claimed he was mentally incompetent during

the relevant PCRA filing period, and therefore, pursuant to Commonwealth

v. Cruz, 852 A.2d 287 (Pa. 2004), satisfied the requirements of §

9545(b)(1)(ii). Despite this claim, the PCRA court denied Appellant’s petition

without a hearing.

      Following an appeal, a panel of this Court determined that the PCRA

court lacked the necessary factual record to determine if Appellant was

incompetent during the relevant PCRA filing period. See Commonwealth v.

Chrupalyk, 1686 EDA 2012, at 6 (Pa. Super., filed April 4, 2013) (unpublished

memorandum). Therefore, the case was remanded to the PCRA court to give

Appellant the “opportunity to attempt to prove that he was incompetent at the

relevant times and that that incompetence qualifies under the after-discovered

evidence exception to the PCRA time-bar.” Id. (citing Cruz, 852 A.2d at 297).

      On remand, the PCRA court held a hearing. Appellant presented the

testimony of Dr. Frank M. Dattilio, P.D., ABPP. Dr. Dattilio testified that

Appellant suffered from paranoid schizophrenia. However, following the

hearing, the PCRA court once again denied Appellant’s PCRA petition as

untimely, finding that Appellant failed to prove his paranoid schizophrenia

rendered him incompetent during the relevant times. This appeal follows.




                                     -2-
J-S07022-18



      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id.

      On appeal, Appellant contends that he proved his incompetence during

the relevant time-period through the testimony of Dr. Dattilio. Therefore,

Appellant asserts he has met the after-discovered facts exception to the PCRA

time bar, entitling him to review of his underlying PCRA issues.

      The PCRA court, in its April 13, 2017 opinion, has methodically reviewed

this claim and disposed of Appellant’s argument on the merits. We have

reviewed the parties’ briefs, the relevant law, the certified record, and the

well-written opinion of the Honorable Shelia Woods-Skipper. Judge Woods-

Skipper’s opinion comprehensively disposes of Appellant’s argument with

appropriate references to the record and without legal error. Accordingly, we

affirm the PCRA court’s order based on Judge Woods-Skipper’s opinion filed

April 13, 2017.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/18

                                    -3-
                                                                                     Circulated 07/31/2018 03:02 PM




                       IN THE COURT OF COMMON PLEAS
                  FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                           CRIMINAL TRIAL DIVISION                                            FILED·
                                                                                           APR is 20Jf
                                                                                     Criminal Appaalb unir'
COMMONWEALTH OF PENNSYLVANIA                                                        Arst Judiciat Oistnc, of PA
                                                            CP-51-CR-03024 71-2004
                      v.                                    CP-51-CR-0302491-2004


RUSSELL CHRUPALYK                                           PCRA Appeal
w » 784288                                                       I
                                                                                    -- --·-·· ·-. ···-·-'\
                                                                   CP-51.CR-0302471-2004 Comm v Chrupalyk, Russell I
                                                                 \                      Opinion                    ,

Appeal No. 440 EDA 2017                                          I
                                                                 I
                                                                 I
                                 OPINION POST REMAND
                                                                 l        111111111111111 I I I IIII Ill
                                                                                   7933594011 ______            __/


       Appellant, Russell Chrupalyk, appeals the May 25, 2012 dismissal of his

petition for post-conviction relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa. C.S. §§ 9541 - 9546, et seq. (PCRA). A summary of the facts and

procedural history is as follows.

       On October 21, 2005, following a jury trial, appellant was convicted of

two counts each of first degree murder, criminal solicitation and conspiracy for

the murder of Christopher Jastrzebski and Fernando Rodriguez, and sentenced

to two consecutive terms of life imprisonment. I Appellant timely filed a direct

appeal complaining that the verdicts were against the weight and sufficiency of

the evidence, that the Court committed numerous evidentiary errors, and that

the prosecutor engaged in several instances of misconduct. On April 29, 2008,


1
 18 Pa.C.S. § 2502, 18, Pa.C.S.§ 902, 18 Pa.C.S. § 903. In addition to the life sentence,
appellant received 5-10 years for conspiracy and 5-10 years for criminal solicitation on each
conviction, to run concurrently with each life sentence. Appellant was tried along with two co-
defendants.
the Superior Court affirmed the judgment of sentence (31 71 EDA 2005).

Appellant's Petition for Allowance of Appeal to the Supreme Court of

Pennsylvania was denied on October 16, 2008 (292 EAL 2008). Accordingly,

appellant's judgment of sentence became final on or about January 16, 2009,

and he had until January 16, 2010 to file a timely PCRA petition.

      On February 10, 2011, appellant filed a first prose petition for PCRA

relief complaining that trial counsel was ineffective for failing to make the

Court aware that he was incompetent at the time of,trial. Appellant

acknowledged that his petition was untimely, but claimed that his petition

should be considered timely because he was mentally incompetent throughout

the period during which his right to file a petition for collateral relief lapsed.

PCRA counsel was appointed and, on March 29, 2012, counsel filed a Finley

letter indicating that appellant's petition was untimely and that, even if not

untimely, the issues raised in the prose petition were without arguable merit

and there were no other issues of arguable merit which could be raised in an

amended petition. On April 13, 2012, a Rule 907 Notice was filed and served on

appellant indicating that, after twenty days his petition would be dismissed

without further proceedings because it was untimely. Appellant responded to

the 907 Notice, reiterating his claim that he was mentally incompetent and

unable to file a timely PCRA. The Court thoroughly reviewed appellant's claims

and response to the 907 Notice, counsel's submissions and the applicable law,

and determined that the petition was untimely and failed to properly invoke an

exception to the timeliness requirement. On May 25, 2012, appellant's petition

                                                                                     2
was formally dismissed and counsel was permitted to withdraw. By order dated

April 4, 2013, the Superior Court vacated the dismissal and remanded

appellant's case with instructions to develop a factual record in order to afford

[appellant] the opportunity to attempt to prove that he was mentally

incompetent at the relevant times and that that incompetence qualifies under

the after-discovered evidence exception the PCRA time bar.

      On November 4, 2016, the Court conducted an evidentiary hearing as

ordered by the Superior Court. Appellant presented clinical and forensic

psychologist, Dr. Frank M. Dattilio Ph.D., ABPP, whose forensic expertise was

predominantly in the area of criminal responsibility, competency matters,

juvenile decertification and waiver. Dr. Dattilio also performed independent

evaluations for both the prosecution and defense. Dr. Dattilio testified that, he

examined appellant on March 24, 2014, and based upon the records he

reviewed and the results of the tests he administered, appellant suffered from

paranoid schizophrenia, a chronic condition that tends to wax and wane and

can be affected by medication, in addition to limited intellectual functioning.

The hallmark of appellant's disorder is that the person is lucid at times and not

at other times. The doctor noted that the psychiatry progress notes indicated

that appellant's condition began to deteriorate in 2010. Dr. Dattilio testified

further that appellant's condition had a profound effect on his ability to

knowingly and intelligently remain focused enough to file a PCRA or to work

effectively with his attorney, and that he could relate appellant's state of mind,

to a reasonable degree of psychological or psychiatric certainty, to the time

                                                                                     3
during which appellant should have filed a PCRA because there was clear

indication in the records that appellant really began to experience symptoms

that got worse in 2010.

      On cross-examination Dr. Dattilio acknowledged that an individual with

the kind of illness appellant suffers (schizophrenia) could be in remission for as

long as a year depending upon whether he is medicated, free of stressors,

occupationally involved or in a safe environment. He also acknowledged that

the psychiatric progress notes he reviewed indicated that, in March 2008

appellant was placed on antipsychotic medication. The next psychiatric

progress note entry was in September of 2009 indicating that appellant was

hearing voices telling him not to talk to his cellmate. Appellant was admitted to

an inpatient unit from September 22, 2009 until September 25, 2009, then

returned to general population and medications were not changed. There was

no psychiatric progress notes between 3/2008 and 9/2009, and the next entry

indicating that appellant began having psychiatric concerns was in October

2010. Dr. Dattilio conceded that there were certainly periods of time when

appellant was lucid enough to file his legal papers, but based upon the records

he reviewed, he could only infer the periods of time when appellant may not

have been lucid. After presentation of all of the evidence, the Court reviewed

the notes of testimony and the applicable law, and concluded that appellant

was not entitled to PCRA relief. His petition was formally dismissed. This

appeal followed.




                                                                                  4
         On appeal from the denial of PCRA relief, the standard and scope of

review is limited to determining whether the PCRA court's findings are

    supported by the record and without legal error. Commonwealth v. Medina,

2014 PA Super 108, 92 A.3d 1210, 1214 (2014). The timeliness of a PCRA

petition implicates the jurisdiction of the PCRA court as Pennsylvania law

makes clear no court has jurisdiction to hear an untimely PCRA petition. Id. A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment becomes final. Commonwealth v.

Brown, 2015 PA Super 24, 111 A.3d 171, 175 (2015) citing42 Pa.C.S.A. §

9545(b)(l). An untimely petition may be received when the petition alleges, and

the petitioner proves, that any of the three limited exceptions to the time for

filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(l)(i), (ii), and (iii), are met.

Commonwealth v. Miller, 2014 PA Super 214, 102 A.3d 988, 993 (2014).2

          Appellant's petition, filed February 10, 2011, was untimely on its face.

Appellant acknowledged that the petition was untimely, but claimed that he

was mentally incompetent during the time period when the PCRA petition

would have been timely. The general rule is that mental illness or psychological

condition, absent more, will not serve as an exception to the PCRA's


2
  To invoke an exception, a petition must allege and the petitioner must prove: (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.A. §
9545(b)(l)(i)-(iii). Additionally, a PCRA petitioner must present his claimed exception within
sixty days of the date the claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(2)

                                                                                                  5
jurisdictional time requirements. Commonwealth v. Monaco, 996 A.2d 1076,

1081 (2010). However, mental incompetence at the relevant times, if proven,

may (emphasis in original) satisfy the requirements of 42 Pa.C.S.A. §

9545(b)(l)(ii), thereby permitting the claims defaulted by operation of that

incompetence to be addressed. Commonwealth v. Cruz, 578 Pa. 325, 327-328

(2004). As indicated above, appellant had from January 16, 2009, until

January 16, 2010 to file a timely PCRA petition. The instant petition was filed

on February 10, 2011, a full year after the expiration of the statutory period.

Therefore, to be successful on his claim, appellant must demonstrate that he

was and remained incompetent throughout the period during which his right to

file a PCRA petition lapsed and that his current petition was timely filed within

60 days of his becoming sufficiently competent to ascertain the facts upon

which his underlying claims are predicated. Id. Appellant has not met this

burden.

      At the evidentiary hearing, Dr. Dattilio testified that the hallmark of

appellant's condition, schizophrenia, is that it is chronic, could go into

remission for as long as one year, and is affected by his medication. (N.T.

11/04/ 16 pg. 33, 61) The psychiatric notes introduced at the hearing indicated

that appellant was given antipsychotic medication in March of 2008. Between

March 2008, and September 22, 2009, there was no record of mental health

concerns for appellant. In September 2009, appellant complained of hearing

voices, was given inpatient treatment for three days, then returned to the

general prison population. The next record of psychotic behavior occurred in


                                                                                    6
October 2010. (N.T. 11/4/ 16 pg. 118, 121-124) Based upon the information

available to him, Dr. Dattilio could only ascertain the times that appellant was

likely not lucid. (N.T. 11/4/ 16 pg. 126-127) Therefore, appellant has not

demonstrated that he was mentally incompetent and remained incompetent

throughout the period during which his right to file a PCRA petition lapsed. As

such, he is unable to satisfy the requirements of 42 Pa.C.S.A. § 9545(b)(l)(ii).

Accordingly, appellant's petition is untimely.

      For the foregoing reasons, appellant's petition for PCRA relief was

properly denied.



                                      BY THE COURT:




                                      SHEILA WOODS-SKIPPER, PJ




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