Com. v. Pelino, V.

J-A18041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

VITO ALEXANDER PELINO :

:

Appellant : No. 314 WDA 2024

Appeal from the PCRA Order Entered February 27, 2024

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0002578-2011

BEFORE: OLSON, J., MURRAY, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: September 12, 2024

Appellant, Vito Alexander Pelino, appeals from the denial of his second

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. Appellant maintains that prior appellate and PCRA counsel were

ineffective. After review, we affirm.

This Court previously summarized the facts of this case as follows:

On the evening of February 12, 2011, [the victim] was socializing

with a group of friends at a bar…. Later that night [the victim]

met [Appellant’s sister, N.T.]. [N.T.] had come to the bar with

[Appellant] after getting off work and ha[d] several drinks[.] …

[The victim] and [Appellant] were introduced to each other by

[N.T.], and the two men had incidental but friendly contact during

the evening. [The victim] and [N.T.] talked, danced and drank for

a couple of hours…. [Around 2:00 on February 13th, the victim’s

friend drove the victim] and [N.T.] to [N.T.’s residence] and

returned to the bar…. [Appellant had] agreed to provide [the

victim] with a ride home from [N.T.’s residence] after he took [his

friend, Corey] Robert home [because the victim and Appellant]

resided [in the same community].

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[Appellant] arrived at [N.T.’s] residence at approximately 3:00

a.m. and the three of them drank and talked amicably inside. [The

victim] at some point excused himself to use the bathroom and

[N.T.], by that time intoxicated and tired, told [Appellant] that she

needed [the victim] to be out of the residence because her

boyfriend would be coming soon. [Appellant] informed [the

victim] of the circumstances, and although [the victim] had been

excited about the potential of ‘hooking up’ with [N.T., Appellant]

persuaded [the victim] to leave with him.

[Appellant] and [the victim] left and drove into [their community]

in [Appellant’s] vehicle. During the ride[, the victim] began

talking about [N.T.] in a manner that [Appellant] perceived to be

disrespectful…. A verbal argument ensued and [Appellant]

stopped the vehicle [and] the argument escalated between the

two men. [Appellant] then grabbed a knife that he had beside the

driver’s side door and began to stab [the victim].

[Appellant] inflicted 72 stab and incised wounds on [the victim],

stabbing him until he was certain [the victim] was dead.

Commonwealth v. Pelino, No. 608 WDA 2015, unpublished memorandum

at *3-5 (Pa. Super. filed Oct. 14, 2015) (citations omitted). Thereafter,

Appellant called Robert for help, and together they disposed of the victim’s

body. Id. at *6-7.

On March 15, 2011, Appellant was charged with one count each of

homicide, kidnapping, and abuse of a corpse.1 The kidnapping charge was

eventually dropped. Following the jury’s guilty verdict on the remaining

charges, Appellant was sentenced to life imprisonment, without the possibility

of parole, for the first-degree murder conviction, followed by a consecutive

term of two years of imprisonment for abuse of a corpse. Appellant was

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1 18 Pa.C.S. §§ 2501(a), 2901(a), and 5510, respectively.

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represented at trial by Patrick Thomassey, Esq., and at sentencing by Paul

Gettleman, Esq.

Appellant, with the assistance of Attorney Gettleman, filed a direct

appeal and this Court affirmed the judgment of sentence. Commonwealth

v. Pelino, No. 1005 WDA 2012, unpublished memorandum (Pa. Super. filed

Aug. 27, 2013). Appellant did not file a petition for allowance of appeal with

the Pennsylvania Supreme Court.

On July 18, 2014, Appellant, still represented by Attorney Gettleman,

filed his first, timely petition under the PCRA. Following the denial of his

petition, Attorney Gettleman filed a timely appeal with the Superior Court on

Appellant’s behalf. The Superior Court affirmed the denial of relief. Pelino,

No. 608 WDA 2015, supra. Our Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal. Commonwealth v. Pelino, 136

A.3d 980 (Pa. 2016).

Obtaining new counsel, Appellant filed a petition for writ of habeas

corpus in the U.S. District Court on June 14, 2016. Relief was denied on July

6, 2017. Appellant sought further relief with the Third Circuit Court of Appeals,

which denied his Certificate of Appealability on February 5, 2018.

Appellant, pro se, filed the instant, second PCRA petition on September

29, 2022. Therein, Appellant asserted that Attorney Gettleman had been

ineffective for failing to obtain relief on appeal or through litigation of his first

PCRA petition. Appellant argued that he was permitted to raise claims of PCRA

counsel’s ineffective assistance pursuant to Commonwealth v. Bradley, 261

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A.3d 381 (Pa. 2021). The state of the record becomes somewhat confused at

this point, as Appellant, acting pro se, filed numerous items that were not

addressed by the PCRA court.

Specifically, on October 17, 2022, Appellant filed “Petitioner’s motion for

leave to file an amended PCRA petition,” stating that he wished to more fully

argue his ineffective assistance claims. Attached to this motion was an

amended PCRA petition in which Appellant continued to argue that Attorney

Gettleman was ineffective under Bradley. In this amended petition, Appellant

requested a finding of Attorney Gettleman’s ineffectiveness and the

reinstatement of his PCRA rights nunc pro tunc.

After the Commonwealth filed its answer, Appellant filed another

petition for leave to file an amended PCRA petition on June 14, 2023. In this

motion, Appellant claimed for the first time that Attorney Gettleman had a

conflict of interest because he represented Appellant and his alleged co-

defendant, Corey Robert, at the same time.2 Appellant asserts that he had

discovered an online docket sheet for Robert that listed Attorney Gettleman

as his attorney of record. Appellant seemingly argues by implication and

supposition that Attorney Gettleman “procedurally defaulted and/or waived”

his claims on his direct appeal, his first timely PCRA petition and the appeal

therefrom, because he also represented Robert. Amended PCRA petition,

6/14/23, at 1.

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2 Robert and Appellant were not tried together.

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One month later, on July 13, 2023, Appellant filed a new motion, entitled

“Petitioner’s second amended petition for post-conviction relief.” In this

motion, Appellant maintained that his petition was timely under Bradley and

that the recent discovery of a conflict of interest was a newly-discovered fact.

Appellant asked for an evidentiary hearing and asserted that Attorney

Gettleman would have to testify therein.

Then, on November 6, 2023, Appellant filed a document requesting that

the PCRA court take judicial notice of Attorney Gettleman’s conflict of interest.

Appellant attached a letter written by Attorney Gettleman to the Pennsylvania

Disciplinary Board, dated July 6, 2023, in which Attorney Gettleman detailed

the efforts he had made on Appellant’s behalf over the course of his

representation. In this letter, Attorney Gettleman also stated that he has no

recollection of representing Robert, and noted that his entry of appearance,

the last item on Robert’s docket, was entered after Robert’s guilty plea and

sentencing.

The PCRA court filed its notice of intent to dismiss Appellant’s PCRA

petition on January 18, 2024. Appellant filed a second request for judicial

notice, on the same grounds as the first, on February 7, 2024. Appellant also

filed a response to the intent to dismiss on February 12, 2024. The PCRA

court dismissed the petition via the order filed on February 27, 2024.

Appellant filed a timely notice of appeal on March 14, 2024. Both Appellant

and the PCRA court have complied with Pa.R.A.P 1925.

On appeal, Appellant presents the following claims:

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1. Did the PCRA court err/abuse its discretion in finding that

Appellant’s conflict of interest claim fails to prevail on the “newly

discovered fact exception” pursuant to 42 Pa.C.S.

§ 9545(b)(1)(ii), because the record does not support the PCRA

court’s finding and is not free of legal error?

2. Did the PCRA court err/abuse its discretion in finding that

Appellant’s conflict of interest claim was meritless because the

record does not support the PCRA court’s finding and is not free

of legal error?

3. Did the PCRA court err/abuse its discretion in not ordering

an evidentiary hearing in violation of Pa.R.Crim.P. 908(a)(2)

where the PCRA petition raised material issues of fact, and was

therefore, not free of legal error?

4. Did the PCRA court err/abuse its discretion in

failing/refusing to acknowledge, docket, and grant Appellant’s

request for judicial notice in violation of Pa.R.E. 201(c)(2)?

Appellant’s Brief at 4 (some formatting altered).

Appellant argues in his first issue that the PCRA court erred in finding

that his PCRA petition was untimely. Appellant suggests that the affidavit

from his prior counsel admitting to the conflict of interest satisfies the newly

discovered evidence exception to the PCRA’s one-year time bar under 42

Pa.C.S. § 9545(b)(1)(ii).

Our standard and scope of review of an order denying a PCRA petition

are well established. Appellate review of a PCRA court’s dismissal of a petition

is limited to an evaluation of whether “the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v.

Branthafer, 315 A.3d 113, 123 (Pa. Super. 2024). This Court will not disturb

the factual findings of the PCRA court unless there is no support for those

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findings in the certified record. Id. “In contrast, we review the PCRA court’s

legal conclusions de novo.” Id.

Before addressing Appellant’s claims, however, we must first determine

which claims from his multiple pro se filings are properly before us. The

Commonwealth suggests that any claims contained in the pleadings filed after

his second pro se PCRA petition which started the instant proceedings — in

other words, the petition filed on October 17, 2022, the petition filed on June

14, 2023, the second amended petition filed on July 13, 2023, and the two

requests for judicial notice, filed on November 6, 2023 and February 7, 2024

— are waived because they were filed without leave of court. The

Commonwealth notes that while Appellant had requested permission from the

PCRA court to file some of these pleadings, the requests had not been granted.

The Commonwealth maintains that these pleadings are legal nullities as they

were filed without permission by the PCRA court. With the exception of the

amended petition filed on October 17, 2022, we agree.

Our Rules of Criminal Procedure dictate the process used to amend a

PCRA petition:

Rule 905. Amendment and Withdrawal of Petition for Post–

Conviction Collateral Relief.

(A) The judge may grant leave to amend or withdraw a petition

for post-conviction collateral relief at any time. Amendment shall

be freely allowed to achieve substantial justice.

Pa.R.Crim.P. 905(A); Commonwealth v. Flanagan, 854 A.2d 489, 499 (Pa.

2004) (“PCRA courts are invested with discretion to permit the amendment of

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a pending, timely-filed post-conviction petition[.]”). Moreover, the PCRA

court’s discretion “must be exercised consistently with the command of Rule

905(A) that amendment should be freely allowed to achieve substantial

justice.” Commonwealth v. Crispell, 193 A.3d 919, 930 (Pa. 2018).

Importantly, “Rule 905 amendments are not ‘self-authorizing’ such that

a petitioner may simply ‘amend’ a pending petition with a supplemental

pleading. Rather, the Rule explicitly states that amendment is permitted only

by direction or leave of the PCRA court.” Commonwealth v. Miranda, 317

A.3d 1070, 1076 (Pa. Super. 2024) (citations omitted). Thus, a petitioner’s

attempts to amend their PCRA petition will not preserve a claim if the PCRA

court did not authorize the amendment. Commonwealth v.

Baumhammers, 92 A.3d 708, 730-31 (Pa. 2014). See also

Commonwealth v. Reid, 99 A.3d 470, 520 (Pa. 2014) (stating, “[t]his Court

has condemned the unauthorized filing of supplements and amendments to

PCRA petitions, and held that claims raised in such supplements are subject

to waiver”); Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012) (reiterating

that Rule 905(A) “explicitly states that amendment [of a PCRA petition] is

permitted only by direction or leave of the PCRA court”) (emphasis added).

Here, the PCRA court’s notice of intent to dismiss Appellant’s PCRA

petition stated that the court had reviewed Appellant’s pro se PCRA petition,

his pro se “Second Amended Petition” for PCRA relief, and the

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Commonwealth’s Answer.3 We therefore will only consider the claims

Appellant raised in these documents. See Commonwealth v. Brown, 141

A.3d 491, 503-04 (Pa. Super. 2016) (holding that if a PCRA petitioner files an

amendment to his petition without leave of court, but the PCRA court

nonetheless addresses the arguments raised, the PCRA court has implicitly

permitted the amendment and our review of the claim may proceed).

Appellant’s claims, then, are limited to those raised in the September 29, 2022

petition and the October 17, 2022 amended petition.

In the initial PCRA petition filed on September 29, 2022, Appellant

asserted that Attorney Gettleman was ineffective in his representation on

direct appeal and through litigation of Appellant’s first PCRA petition.

Appellant also argued that his petition should be deemed timely because

Bradley permitted petitioners to raise claims of the ineffective assistance of

PCRA counsel at the first opportunity; Appellant suggested this was a “newly[-

]discovered fact” permitting the litigation of an otherwise untimely PCRA

petition. To this petition, attached as Exhibit 1, is an affidavit from Attorney

Gettleman filed in Appellant’s federal case, whereby Attorney Gettleman

states he “failed to abide by state procedural rules and impeded or otherwise

obstructed [Appellant] in complying with the state’s established procedures

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3 The PCRA court’s Pa.R.A.P. 1925(a) opinion directs us to the Rule 907 notice

of intent to dismiss Appellant’s PCRA petition filed on January 18, 2024, for

its reasons for denying Appellant’s petition.

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for post-conviction relief, and for this reason [Attorney Gettleman] was

ineffective.”

On October 17, 2022, Appellant filed what he called a “motion for leave

to file an amended PCRA petition,” with the proposed amended petition

attached as Exhibit A. This is a more fulsome petition, not the jail-issued,

pre-printed PCRA form which Appellant had filed a few weeks earlier. In this

amended petition, Appellant expounded upon his claim that Bradley had

instituted a “new procedural rule” that constituted a “newly[-]discovered fact”

which provides an exception to the PCRA’s one-year timeliness requirement.

These are the only claims Appellant has properly presented for review.

Now that we have determined which of Appellant’s claims are properly

before us, we must evaluate whether Appellant’s petition was timely filed.

Typically, a PCRA petition must be filed within one year of the petitioner’s

judgment of sentence becoming 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 timeliness of a PCRA petition is jurisdictional; in other

words, if a PCRA petition is untimely, the court lacks jurisdiction to consider

its merits. Commonwealth v. Reeves, 296 A.3d 1228, 1230-31 (Pa. Super.

2023). “Without jurisdiction, [the court] simply do[es] not have the legal

authority to address the substantive claims.” Commonwealth v. Lewis, 63

A.3d 1274, 1281 (Pa. Super. 2013).

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Here, we calculate that Appellant’s judgment of sentence became final

on September 26, 2013, when the time for filing a petition for allowance of

appeal from this Court’s decision affirming his judgment of sentence expired.4

Accordingly, Appellant had until September 26, 2014, to file a timely PCRA

petition.5 Clearly, his petition filed September 29, 2022, is more than 8 years

too late.

A petitioner may overcome the PCRA’s time-bar if he pleads and proves

one of the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1).

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The exceptions

are: “(1) interference by government officials in the presentation of the claim;

(2) newly[-]discovered facts; and (3) an after-recognized constitutional right.”

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012); see

also 42 Pa.C.S. § 9545(b)(1)(i-iii). Moreover, a petition invoking an exception

to the jurisdictional time-bar must be filed within one year of the date that the

claim could have been presented. 42 Pa.C.S. § 9545(b)(2) (effective Dec. 24,

2018). If a PCRA petition is untimely, and the petitioner fails to invoke a valid

exception, the court lacks jurisdiction to review the petition or provide relief.

Spotz, 171 A.3d at 676.

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4 See Pa.R.A.P. 1113(a) (providing for 30 days after entry of an order of the

Superior Court to file a timely petition for allowance of appeal).

5 A timely PCRA petition shall be filed within one year of the date the judgment

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).

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To satisfy the newly-discovered fact exception to the PCRA time bar, a

petitioner must demonstrate that he “did not know the facts upon which he

based his petition and could not have learned those facts earlier by the

exercise of due diligence.” Commonwealth v. Balestier-Marrero, 314 A.3d

549, 554 (Pa. Super. 2024). “Due diligence demands that the petitioner take

reasonable steps to protect his own interests. A petitioner must explain why

he could not have learned of the new fact(s) earlier with the exercise of due

diligence.” Commonwealth v. Myers, 303 A.3d 118, 121-22 (Pa. Super.

2023). Moreover, “[t]his rule is strictly enforced.” Commonwealth v.

Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

Appellant maintained in his PCRA petition that he had recently learned

that prior PCRA counsel was ineffective, providing the newly-discovered fact

to support the untimely petition. However, Appellant has since abandoned

this claim. In a footnote to Appellant’s brief, he notes:

Appellant originally filed his second PCRA petition on September

24, 2022,[6] raising a newly[-]discovered[-]fact exception to the

PCRA time[]bar based on the new procedural rule change in

[Bradley, supra]. Inasmuch as Appellant originally argued

Bradley as a newly[-]discovered fact, that claim is abandoned,

and Appellant focuses solely on the ineffective assistance of PCRA

counsel for conflict of interest.

Appellant’s Brief at 7 n.1 (emphasis in original). While recognizing that this

claim is abandoned, we note that Appellant would not have been successful in

his claim that the Bradley decision set forth a new procedure for raising claims

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6 This petition was filed with the Clerk of Courts on September 29, 2022.

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of PCRA counsel’s ineffectiveness as newly-discovered evidence, as this theory

has been rejected in this Commonwealth in multiple instances. See, e.g.,

Commonwealth v. Stahl, 292 A.3d 1130, 1131 (Pa. Super. 2023)

(concluding that “[n]othing in Bradley creates a right to file a second PCRA

petition outside the PCRA’s one-year time limit as a method of raising

ineffectiveness of PCRA counsel”); Commonwealth v. Edmondson, No. 884

WDA 2023, unpublished memorandum at *6-7 (Pa. Super. filed Feb. 27, 2024)

(same); Commonwealth v. Dixon, No. 1145 EDA 2022, unpublished

memorandum at *6 (Pa. Super. filed Dec. 28, 2022) (same).7 This argument

would not have provided Appellant with an exception to the time bar.

In his brief to this Court, Appellant now claims that his prior PCRA

attorney was ineffective because counsel represented both Appellant and a

witness who had testified against him at trial, Corey Robert, which is evidence

of a conflict of interest. Appellant maintains that this is a newly-discovered

fact. As noted above, this claim was not presented to the PCRA court until

Appellant’s supplemental pleading filed in June 2023, and the PCRA court

neither permitted the June 2023 amendment nor addressed the claim in the

Rule 907 notice. Therefore, Appellant’s issue is waived. Miranda, supra;

Porter, supra.

Further, even if the claim were not waived, it would not garner Appellant

relief. Appellant asserts that Attorney Gettleman represented Appellant’s

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7 We may cite to unpublished memorandum decisions of this Court filed after

May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).

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separately-tried co-defendant, Corey Robert, when Robert agreed to testify

for the Commonwealth at Appellant’s trial in exchange for leniency. Appellant

further claims that this supposed dual-representation caused Attorney

Gettleman to deliberately lose Appellant’s direct appeal and fail to obtain relief

on Appellant’s first PCRA petition. As his only evidence in support of this

theory, Appellant attaches to his June 14, 2023 PCRA petition a page from

Robert’s docket sheet to show that Attorney Gettleman entered his

appearance on behalf of Robert on April 18, 2012. We recognize that the

entry of appearance was a week after Robert had been sentenced, and it was

the same day that Attorney Gettleman entered his appearance for Appellant.

Further, it appears from the docket that the entry of appearance occurred only

after Appellant had already been found guilty,8 and nothing occurred on

Robert’s case following Attorney Gettleman’s entering his appearance. There

is absolutely no evidence of any agreement or deliberate sabotage of

Appellant’s prior appeal and/or PCRA case. Appellant cannot prove his claim

by providing only a line entry in a docket sheet.

Additionally, Appellant seemingly did not file his claim within one year

of discovering this alleged conflict. Appellant has included two letters in the

record, which he claims “prove” Attorney Gettleman’s ineffective assistance.

The first is an affidavit signed by Attorney Gettleman that was included as an

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8 Appellant was convicted on March 15, 2012. Attorney Gettleman entered

his appearance in both cases on April 18, 2012. Appellant was sentenced,

with Attorney Gettleman acting as sentencing counsel, on June 13, 2012.

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attachment to Appellant’s federal habeas case, and is stamped as being filed

with the Third Circuit Court on September 21, 2017.9 The second letter was

Attorney Gettleman’s response to a complaint Appellant filed with the

Pennsylvania Disciplinary Board, and is dated July 6, 2023.10 As noted above,

however, this second letter was not a part of the PCRA petition addressed by

the PCRA court; it had been submitted as an amendment without permission,

and we may not consider it herein. With respect to the first letter, which was

included in Appellant’s federal criminal appeal, it was filed on September 21,

2017. Clearly, Appellant’s petition filed in 2022 was not filed within one year

of discovering this alleged “new” information from 2017. See 42 Pa.C.S.

§ 9545(b)(2) (“Any petition invoking an exception … shall be filed within one

year of the date the claim could have been presented.”).

To summarize, Appellant’s PCRA petition filed on September 29, 2022,

and the amended petition filed on October 17, 2022, are untimely and

Appellant has not proven an exception to the timeliness rule. As there were

no genuine issues of material fact presented in the petitions, the PCRA court

did not abuse its discretion in failing to order an evidentiary hearing.

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (stating,

“if the PCRA court can determine from the record that no genuine issues of

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9Appellant attached this letter to his PCRA petition filed on September 29,

2022.

10 This document is attached to both of Appellant’s requests for judicial notice

filed with the PCRA Court.

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material fact exist, then a hearing is not necessary”). Finally, Appellant’s

requests for judicial notice are moot in light of our disposition.

Order affirmed.

DATE: 09/12/2024

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