Com. v. Chimenti, S.

J-S39039-19

2019 PA Super 272

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SALVATORE F CHIMENTI :

:

Appellant : No. 2262 EDA 2018

Appeal from the PCRA Order Entered July 20, 2018

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

No(s): CP-51-CR-0633651-1982

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

OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 04, 2019

Appellant, Salvatore F Chimenti, appeals from the July 20, 2018, order

entered in the Court of Common Pleas of Philadelphia County dismissing

Appellant’s third petition filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After a careful review, we affirm.

This Court has previously set forth the relevant facts and procedural

history, in part, as follows:

At approximately 11:30 p.m. on May 10, 1982, [Appellant]

shot Andrew Tucker seven times causing his death.

Several days prior to the shooting, [Appellant] and Tucker

had engaged in a verbal altercation, which [Appellant] concluded

made him “look bad” in the neighborhood. [Appellant] instructed

Bobby Harris to bring the victim to [Appellant’s] home. [O]n May

10, Harris saw the victim in a tavern and offered to drive him to

see [Appellant]. When the two men confronted each other again,

another angry verbal exchange ensued in front of several

witnesses, including Harris, [Appellant’s] brother Mario, and Mike

Cavanaugh. Tucker was unarmed. [Appellant] and Mario both

carried guns. Mario and Cavanaugh were standing on the porch

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* Former Justice specially assigned to the Superior Court.

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of [Appellant’s] house. [Appellant] was on the third step leading

up to the porch. As the argument became more heated,

[Appellant] drew a .38 caliber weapon and fired seven shots at

Tucker, striking him three times in the chest, in the groin, through

his back and into his heart, the back of his knee[,] and the back

of his armpit. Mario also opened fire with a .25 caliber weapon,

which likely caused a wound to Tucker’s face. Harris was standing

next to Tucker on the pavement when he was shot. When the

police arrived, they found a fully loaded .38 caliber gun lying next

to Tucker’s left leg. Tucker was right-handed.

No witnesses came forward for several weeks. During that

period, [Appellant] repeatedly left messages for Bobby Harris’s

family, threatening to harm them if Harris implicated [Appellant].

Harris responded by seeking legal counsel, and [he] gave a full

statement to the police.

[Appellant] testified in his own behalf. He stated that Harris

and Tucker were members of an organized crime family, which

had a “contract” on his life because he had not repaid a loan. He

claimed that on the night of the shooting he retrieved a gun for

self-defense, and shot Tucker as he was screaming out of control

and displaying a gun wrapped around a jacket. Additional

evidence was presented that Harris was on the porch and tried to

shoot [Appellant], but Mario deflected the gun away. One of the

several defense eye-witnesses to support the above scenario was

Gregory Spain.

In rebuttal, the Commonwealth produced a witness who

testified that Spain had told her that he [would testify] as a

surprise witness at trial, even though he had not witnessed the

incident.

Commonwealth v. Chimenti, No. 2599 PHL 1995, at *1-2 (Pa.Super. filed

7/3/97) (unpublished memorandum) (citation to PCRA court opinion omitted).

At the conclusion of trial, the jury convicted Appellant of first-degree

murder and possession of an instrument of crime, and Appellant’s trial

counsel, Joel Moldovsky, Esquire, filed post-verdict motions. Thereafter,

Appellant retained new counsel, A. Charles Peruto, Jr., Esquire, who filed

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supplemental post-verdict motions. On January 26, 1984, the trial court

denied Appellant’s post-verdict motions; however, four days later, Appellant

filed additional supplemental post-verdict motions, and he retained new

counsel, Michael M. Mustokoff, Esquire, who contacted the Philadelphia District

Attorney’s Office with information concerning trial counsel’s alleged

subornation of perjury, particularly as to Gregory Spain.

[Thereafter, the] Commonwealth and [Appellant] struck a

deal providing that if [Appellant] cooperated in the

Commonwealth’s investigation of trial counsel [and did not file

post-sentence motions raising claims of ineffectiveness with

regard to the subornation of perjury so that trial counsel would

not be “tipped off,”] the parties would enter into a plea agreement

whereby [Appellant’s] conviction would be vacated and he would

plead guilty to murder generally, with a certification that the

degree of guilt would rise no higher than third degree.

On July 9, 1984, the trial court denied [the] supplemental

post-verdict motions and sentenced [Appellant] to life

imprisonment for first-degree murder and to a concurrent two and

one-half years’ imprisonment for [possession of an instrument of

crime]. [Appellant did not file post-sentence motions.] Appellant

filed a [protective] direct appeal to this [C]ourt and cooperated in

the Commonwealth’s investigation of trial counsel.

On March 15, 1985, the parties jointly petitioned then-

President Judge Edmund B. Spaeth, Jr., of [this Court] to

effectuate the agreement between [Appellant] and the

Commonwealth by remanding the case to the Common Pleas

Court for “special assignment to a judge who, after sentence has

been vacated, will accept [Appellant’s] negotiated guilty plea.” In

an order dated April 18, 1985, Judge Spaeth granted the petition.

On June 20, 1985, upon application of the trial judge, the

Honorable Lisa Richette, our Supreme Court assumed plenary

jurisdiction of the case to determine “whether the Superior Court

has the power to entertain a plea bargain after the entry of a

judgment of sentence.” In the Matter of Commonwealth v.

Chimenti, 510 Pa. 149, 151, 507 A.2d 79, 80 (1986). On March

27, 1986, the [Supreme] Court vacated Judge Spaeth’s order and

remanded the case to [this Court] for proceedings on [Appellant’s]

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direct appeal. [Specifically, our Supreme Court rejected

enforcement of the agreement entered into by the District

Attorney’s Office and Appellant.] The [Supreme] Court [held] that

the order of Judge Spaeth directed the yet unnamed

hearing judge to vacate the prior judgment of

sentence and to accept the guilty plea of [Appellant]

to murder generally (not to rise higher than third

degree). This order reduced the prospective hearing

judge to a “rubber stamp,” empowered only to

perform a ministerial function. Neither Judge Spaeth,

nor the Superior Court at large, possessed such

power. The order in question was also problematic on

another score in that Judge Spaeth effectively

abrogated a jury verdict without any semblance of a

record. We can in no way condone such an action….

Id. at 155-56, 507 A.2d at 83.

On May 6, 1986, through new counsel, Paul Schechtman,

Esquire, [Appellant] petitioned this [C]ourt for a remand to the

trial court for an evidentiary hearing on whether trial counsel

suborned perjury at trial. In an order dated May 20, 1986, this

[C]ourt denied the request “without prejudice to renew the

request and argue the issue of ineffectiveness of trial counsel in

briefs and before the panel.”

Chimenti, No. 2599 PHL 1995, at *3-4.

On direct appeal, Appellant relevantly argued Attorney Moldovsky was

ineffective for suborning perjury1 and failing to call two witnesses who would

have truthfully testified to seeing the gun lying next to the decedent’s body

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1 Specifically, Appellant alleged that trial counsel suborned perjury from at

least four witnesses, including Mr. Spain, with the purpose of misleading the

jury into thinking that the decedent and another man pointed weapons at

Appellant, thus attempting to explain to the jury why the police did not find a

weapon next to the decedent (i.e., the other man took it when he ran from

the scene).

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immediately after the shooting. In finding Appellant was not entitled to relief

on his ineffectiveness claims,2 we held the two potential witnesses would not

have assisted Appellant’s defense and, in fact, would have impeached aspects

of Appellant’s self-defense theory. Also, we held there was no evidence in the

certified record indicating that trial counsel suborned perjured testimony.3

Consequently, we affirmed the judgment of sentence on April 20, 1987.4

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2 We note Appellant filed his direct appeal prior to our Supreme Court’s

decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), and

its progeny, which hold that claims of ineffective assistance of counsel are

generally deferred until collateral review.

3 Appellant argued on direct appeal that the District Attorney’s Office

completed an investigative report acknowledging trial counsel suborned

perjury, and Appellant took polygraph examinations, which suggested he was

telling the truth about trial counsel suborning perjury. However, we noted

that neither the investigative report nor the polygraph examination results

were included in the certified record, and thus, we declined to consider the

documents. Commonwealth v. Chimenti, 524 A.2d 913, 919 (Pa.Super.

1987).

4 Moreover, Appellant additionally argued on direct appeal that the

Commonwealth breached the parties’ post-verdict agreement by contesting

Appellant’s ineffective assistance of counsel claims on direct appeal.

Chimenti, 524 A.2d at 919 n.2. We found the clam to be meritless.

Specifically, we held:

Pursuant to the agreement, [A]ppellant and the Commonwealth

applied to this Court for an order remanding the case to the trial

court which would vacate [A]ppellant’s sentence and accept

[A]ppellant’s negotiated guilty plea. This Court granted the

requested order. Our Supreme Court, however, vacated the

remand order finding that this Court lacked authority to direct the

trial court to vacate [A]ppellant’s prior judgment of sentence and

to accept [A]ppellant’s guilty plea. See Commonwealth v.

Chimenti, 510 Pa. 149, 507 A.2d 79 (1986). As the

Commonwealth argued in its appellate brief [on direct appeal]:

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Commonwealth v. Chimenti, 524 A.2d 913 (Pa.Super. 1987). Appellant’s

petition for allowance of appeal was denied by our Supreme Court on

September 29, 1987.

On September 18, 1990, Appellant filed a counseled petition under the

PCRA, which the lower court denied, and Appellant filed a counseled appeal to

this Court. On appeal, Appellant averred, inter alia, that he was entitled to

specific performance of the agreement he made with the Commonwealth

relating to trial counsel’s alleged subornation of perjury, and all prior counsel

were ineffective in failing to raise either trial counsel’s ineffectiveness in

allegedly suborning perjury or post-verdict counsel’s ineffectiveness in

attempting to enter into an agreement with the Commonwealth that was void

ad initio.

In finding Appellant was not entitled to relief on his claims, we relevantly

held the following:

Appellant first claims he is entitled to specific performance

of a written agreement to vacate his statutorily-mandated

judgment of sentence and enter a guilty plea to, at most, third-

degree murder. However, our Supreme Court invalidated that

agreement, despite the Commonwealth’s advocacy of it, because

it “effectively abrogated a jury verdict without any semblance of

____________________________________________

“The Commonwealth did not, as [Appellant] contends, renege on

its plea bargain negotiations, but rather zealously sought to

uphold the plea in the Pennsylvania Supreme Court. That Court

rejected the Commonwealth’s argument, however, and ruled that

the parties could not plea bargain away a valid jury verdict.”

(Reply brief for [A]ppellee at 4).

Chimenti, 524 A.2d at 919 n.2.

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a record.” Chimenti, 510 Pa. at 155, 507 A.2d at 83. Indeed,

what the agreement clearly contemplated, though not specifically

spelling it out, was vacating a jury verdict, not on the basis of a

hearing or a record but simply on the basis of allegations in

[A]ppellant’s uncontested PCRA petition. A defendant’s conviction

and mandatory sentence may not be set aside merely by

agreement of the parties. This claim does not entitle [A]ppellant

to PCRA relief.

***

Appellant’s final two claims are related. He argues he is

entitled to a new trial or the opportunity to file post-trial motions

nunc pro tunc because all prior counsel were ineffective for failing

to raise trial counsel’s ineffectiveness in allegedly suborning

perjury and post-verdict counsel’s ineffectiveness in entering into

an agreement that was void ad initio.

***

The record shows it was [A]ppellant himself who gave

perjured testimony at trial and willingly participated in presenting

a perjured defense. N.T. PCRA, 11/17/92, at 39. Appellant

testified he personally asked Gregory Spain to contact trial counsel

so that both he and Spain could testify Spain drove [A]ppellant to

the crime scene (when in fact Spain had not). Thus, the record

shows [A]ppellant’s own testimony at trial was in furtherance of a

deliberate trial strategy chosen by himself and counsel. Our

Supreme Court has responded to a similar claim defense counsel

compelled his client to offer false testimony:

Having freely and deliberately chosen to offer

testimony which he now asserts was false, [the]

appellee stands before this Court and attempts to reap

a windfall new trial on account of his own perjury. The

criminal justice system cannot and will not tolerate

such an obvious and flagrant affront to the integrity

of the truth determining process thinly disguised

under the rubric of “ineffective assistance.”….

Commonwealth v. McNeil, 506 Pa. 607, 618-19, 487 A.2d 802,

807-08 (1985)[.]

We note [A]ppellant apparently never attempted to

substantiate the allegation that counsel suborned perjury by

calling trial counsel to testify. This claim remains further

unsubstantiated by any record evidence. The PCRA court

appointed counsel for witnesses who testified at trial and who

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[A]ppellant claimed would support this allegation. None, however,

did so.

***

Appellant’s claims regarding all prior counsels’

ineffectiveness are similarly unsupported. Appellant raised no

clear claim of ineffectiveness against [Attorney] Peruto in his

counseled PCRA petition. Even assuming this claim is properly

before us, nothing in the record—including five hearings over

seven months—suggests [Attorney] Peruto refused to pursue the

claim that trial counsel suborned perjury.

***

Regarding [Attorney] Mustokoff’s ineffectiveness in advising

[A]ppellant to enter into an agreement which later was effectively

rendered null and void by our Supreme Court, the law is clear that

counsel is not ineffective in failing to predict future

decisions….Since [A]ppellant has no witness willing to

substantiate his claim that trial counsel suborned perjury, no

counsel can be deemed ineffective for failing to pursue, much less

prevail on it.

Chimenti, No. 2599 PHL 1995, at *6-13 (some citations omitted).

Consequently, this Court affirmed the PCRA court’s denial of relief on

July 3, 1997. Id.

On November 23, 1998, [Appellant] filed a Petition for

Habeas Corpus pursuant to 28 U.S.C. § 2254 of the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). On July 5, 2000,

Federal District Court Magistrate Clifford Scott Green held an

evidentiary hearing in which the court heard testimony from Frank

Cioffi, Maria Elizabeth Convery (now Dougherty), Frank

Martorano, and Joel Moldovsky, Esquire. Chimenti v. Frank, et

al., 2001 WL 21496 (E.D.Pa. Jan. 9, 2001). The court reviewed

the process by which the Pennsylvania Superior Court evaluated

[Appellant’s] claim that counsel suborned perjury and noted that

it determined the record was “devoid of any proof that

[Appellant’s] trial counsel suborned perjured testimony.” Even

after holding an evidentiary hearing to allow [Appellant] to add to

the record, [Appellant] failed to offer any evidence that

[Appellant’s] own testimony, which was consistent with the

alleged perjured testimony, was the result of trial counsel’s

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influence, that counsel suborned perjury from other witnesses, or

that [Appellant] was prejudiced from any of counsel’s tactical

decisions or alleged deficiencies.[5]

PCRA Court Opinion, filed 11/30/18, at 11-12 (citations and footnote omitted)

(footnote added).

On March 21, 2016, with the assistance of Jerome M. Brown, Esquire,

Appellant filed a counseled document entitled “Expedited Motion for

Compassionate Release And/Or For Habeas Corpus Relief.” Therein, Appellant

sought compassionate release from prison for the treatment of Hepatitis C,

cirrhosis, and liver cancer. Additionally, he sought “habeas corpus” relief and

relevantly averred the following:

4. After trial, [Appellant] hired [Attorney Mustokoff], who at

[Appellant’s] instigation, investigated and presented a claim of

subornation of perjury by [Attorney] Moldovsky, especially as to

Greg Spain, a witness who was not present when the incident

occurred, but had claimed to have been at the scene of the crime

at trial. However, another witness, Elizabeth “Cookie” Harris, met

Spain at a bar and they spent a night together. He told her that

he was going to commit perjury in this case, and this witness

unraveled the self-defense orchestrated by [Attorney] Moldovsky.

5. As a result of the above, the parties entered an agreement,

the substance of which was that [Appellant] agreed to aid the

Commonwealth’s investigation into the subornation of perjury and

agreed to postpone raising this ground of ineffectiveness. If the

Commonwealth found the allegations to be reliable, it would seek

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5 The federal court also concluded Appellant’s claims were exhausted at state

court because the claims were previously litigated in Appellant’s first PCRA

petition and were time-barred. Id. Further, the federal court specifically

indicated Appellant’s jury conviction and mandatory sentence could not be set

aside merely by agreement of the parties. Id. Finally, the federal court

concluded the District Attorney’s opposition to Appellant’s first PCRA petition,

which Appellant alleged breached the agreement, did not violate Appellant’s

due process rights. Id.

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a remand to enter into a plea to third degree murder, which

carried a maximum sentence of 20 years, rather than the life

sentence he actually received. If the Commonwealth did not find

this information to be reliable, then the parties agreed to seek a

remand for [Appellant] to litigate the ineffective assistance of

counsel claim.

6. The Commonwealth then conducted its own investigation and

found these claims to be true. Having determined the truth of this

information, the parties agreed that the matter would be

remanded to the trial court so that the judgment could be vacated,

and a plea entered that would rise no higher than third degree

murder, again a 20-year maximum sentence.

7. The Commonwealth entered into this agreement with the

blessings of then District Attorney, Edward Rendell,[6] and

[former] First Assistant District Attorney, Arnold Gordon, who

opined that [it] was fundamentally unfair that [Appellant] was

convicted of first degree murder and serving a life sentence, given

the manner in which [Attorney] Moldovsky handled this case and

also because of the poor quality of the Commonwealth’s

witnesses.

8. In a brief written by Eric B. Henson, Esquire, who was the

[former] Deputy District Attorney in charge of appeals, the

Commonwealth miraculously and uncharacteristically stated:

“The Commonwealth also reassessed the trial record

and found that the trial court, the prosecutor, and trial

counsel had committed potentially reversible error.

Finally, the Commonwealth evaluated the evidence

which supported defendant’s first degree murder

conviction. It was unable to prove beyond a

reasonable doubt that [Appellant] or his witnesses

had “planted” a gun on the victim’s body to fabricate

[Appellant’s] self-defense claim.”

9. What happened next is a travesty of justice.

10. The Commonwealth believed the information to be reliable

and [former] D.A. Rendell was even to assure [Appellant] that

immunity would be granted to any witnesses who would testify at

any future proceedings. [Former Deputy District Attorney]

Henson and [Attorney] Mustokoff appeared before then President

Judge Edmund B. Spaeth, Jr., and worked out the remand to enter

____________________________________________

6 Edward Rendell was later elected as the Governor of Pennsylvania.

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the plea before a different jurist than Judge Richette. However,

Judge Richette got wind of this agreement, and filed a writ of

prohibition in the Supreme Court. That Court scotched the deal.

11. A change in District Attorney Administrations led to a reneging

on the deal. The District Attorney’s Office then fought

[Appellant’s] efforts at relief even rescinding the immunity offers.

The failure of post-conviction counsel to file the ineffectiveness

claim as to [Attorney] Moldovsky led to a waiver of that issue on

appeal and many others. The rest is history.

12. In short, what happened was that [Appellant] to his detriment

relied on the D.A.’s agreement. [Attorney DeFino, who was

Appellant’s] attorney [for] the [first PCRA petition], was not even

able to produce the witnesses who would have established that

the gun was on the victim because the new D.A.’s Office objected

that post-trial counsel and appellate counsel had waived these

issues. Thus, the new D.A. not only did not live up to the

agreement, but destroyed any chance [Appellant] had of justice

by obligating him to delay in litigating the ineffectiveness issue.

13. [Appellant] is now serving his 34th year of incarceration for a

sentence that should have risen no higher than 5-10 years.

Moreover, he had a number of witnesses who were intimidated

into not testifying at the [PCRA] hearing. There were ample

witnesses who would have truthfully testified that [Appellant]

acted in self-defense after being stalked by a person who was

hired to perform a “hit” against him.

14. Indeed, and remarkably, he was standing on the front stoop

of his mother’s home when shots were fired. Who would kill

some[body] at the front door of his mother’s home, unless it was

an act of self-defense? Moreover, there was no area for him to

retreat.

15. Significantly, under the new version of…18 Pa.C.S. § 505, the

“Castle Doctrine[,]” would have applied to his case and he would

have been found not guilty under this doctrine.

16. There were also a number of witnesses who were scared off

by [Attorney] Moldovsky’s tactics when the case was naturally a

justifiable self-defense case. Moreover, there was other evidence

that the victim, Tucker, had a gun and was out to kill [Appellant].

Indeed, Tucker’s own roommate testified that Tucker was out to

kill [Appellant] that evening. Other witnesses, Marie Convery and

Frank Cioffi, observed a handgun next to the body of the

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deceased, which realistically eviscerated the prosecution’s

“planted gun” theory.

17. Unfortunately, they would not deviate from the truth when

[Attorney] Moldovsky requested them to do so, and they did not

testify, despite the obvious importance of their testimony to the

self-defense [claim].

18. Thus, it is respectfully submitted that [Appellant] is an

innocent man. That knowledge has provided him with little solace.

Appellant’s Expedited Motion for Compassionate Release And/Or For Habeas

Corpus Relief, filed 3/21/16, at ¶¶ 4-18 (emphasis omitted) (footnote added).

Despite the fact two well-respected district attorneys, Ronald Castille

and Lynn Abraham, were found by this Court to not have breached any “post-

verdict agreement” by contesting Appellant’s ineffective assistance of counsel

claims on direct appeal, Chimenti, 524 A.2d at 919 n.2, Appellant argued in

his motion that, because the District Attorney’s Office failed to abide by its

agreement, Appellant is serving an illegal sentence. See Appellant’s

Expedited Motion for Compassionate Release And/Or For Habeas Corpus

Relief, filed 3/21/16. Appellant also argued in his motion that his life sentence

without the possibility of parole constitutes “cruel and unusual punishment”

since he did not receive the benefit of the “post-verdict agreement.” See

Appellant’s Expedited Motion for Compassionate Release And/Or For Habeas

Corpus Relief, filed 3/21/16. Accordingly, Appellant requested the lower court

vacate his judgment of sentence and remand for further proceedings.

On April 20, 2017, the lower court held a hearing on the “Expedited

Motion for Compassionate Release And/Or For Habeas Corpus Relief.” At the

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hearing, Appellant’s counsel acknowledged that Appellant was seeking “PCRA

relief.” N.T., 4/20/17, at 3. Additionally, an Assistant District Attorney

indicated her belief that, since Appellant was seeking PCRA relief, the motion

“would have to be re-coded as a PCRA in the system and then [the District

Attorney’s Office] would let Ms. Godfrey[7] know, and one of the attorneys

would be assigned to handle that.” Id. at 6 (footnote added).

The lower court concluded the habeas corpus portion of the petition

sought relief available under the PCRA, and thus, the petition should be “re-

coded” and/or “refiled” as a PCRA petition for a different judge’s consideration.

Id. at 9-10. The lower court specifically indicated it was unsure as to the

exact procedure the court would use to ensure that the petition was

administratively reassigned and considered as a PCRA petition. Id. at 10-11

(lower court judge indicating “I don’t know whether or not they’re going to

require [Appellant] to actually physically refile it…with this Court’s

determination, then attach it, I’m just not sure of what the procedure is. But

it’s my understanding at this time…it is to be re-coded[.]”).

Furthermore, by order entered on April 20, 2017, the lower court

directed the following:

Defense Motion for Compassionate Release which was filed

3/21/2017 is DISMISSED WITHOUT PREJUDICE by agreement of

counsel. After treatment [Appellant’s] Hep C is cured. [Appellant]

has cirrhosis of the liver[.] In the event he needs a liver transplant

in the future and is accepted for a transplant, he may file a Motion

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7 The record is unclear as to whom this is referring.

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for Compassionate Release. Defense Motion of Habeas Corpus

PCRA should be re-coded and/or refiled as a Petition for PCRA and

reassigned for further proceedings.

Lower Court Order, filed 4/20/17.8

The docket remained without activity until February 23, 2018, when the

District Attorney’s Office filed a letter, which it sent to Appellant’s attorney,

Todd Mosser, Esquire, regarding the status of Appellant’s case. Despite the

fact our Supreme Court held the “post-verdict agreement” is unenforceable,

and thus issues related to the “post-verdict agreement” are moot, see

Chimenti, 510 Pa. at 155, 507 A.2d at 83, Assistant District Attorney Andrew

Wellbrock indicated the following:

On February 1, 2018, the new administration in the District

Attorney’s Office recently reorganized and renamed the Conviction

Review Unit. As a result of that reorganization, the new unit

(Conviction Integrity Unit) reviewed the above referenced case

pursuant to your request. This letter is written to inform you of

the results of that review.

Relying in part on § 9545(b)(1) of the PCRA, the District

Attorney’s Office agrees your client is entitled to relief. The history

of this case has revealed that your client’s good faith reliance on

a plea agreement, combined with this office’s ongoing interference

in effectuating the terms of that agreement, has resulted in an

inability to effectively litigate and prove a violation of the

Constitution or laws of this Commonwealth or the Constitution or

laws of the United States.

In order to remedy the constitutional violation recognized

and agreed to by this office in 1984, we will no longer oppose the

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8 We note the lower court had an obligation to transfer the misfiled/mislabeled

petition to the proper division so that it could be considered under the auspices

of the PCRA. Our review of the record reveals that the lower court has not

entered a final order disposing of the March 21, 2016, petition.

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original plea agreement offered and entered into by The Honorable

Edward Rendell when he was District Attorney. Accordingly, we

agree [Appellant’s] conviction and sentence should be vacated, a

new trial granted and, pursuant to the terms of the 1984 plea

agreement, he shall then enter a plea to murder (not to rise higher

than third degree) and Possession of an Instrument of Crime. In

turn, the Commonwealth will recommend that your client be

sentenced to the maximum term of imprisonment legally allowed

for those crimes at the time of the offense—12.5 to 25 years.

Commonwealth’s Letter, dated 2/23/18.

Three days later, on February 26, 2018, with the assistance of Attorney

Mosser, Appellant filed a counseled document entitled “Defendant’s Petition

Pursuant to the Post Conviction Relief Act.” Therein, Appellant sought to

invoke the governmental interference timeliness exception to the PCRA.

Specifically, Appellant referenced the post-verdict agreement discussed

supra and admitted that former District Attorney Rendell “rigorously” sought

to honor the agreement. However, Appellant further asserted that, thereafter

and for the next thirty years, the government (i.e., the District Attorney’s

Office) obstructed and interfered with the agreement. He averred that, as

part of the post-verdict agreement, the parties agreed that the District

Attorney’s Office would not oppose Appellant’s claims of ineffective assistance

of trial counsel; however, thereafter, the District Attorney’s Office, which was

led by a new administration, breached the agreement by opposing Appellant’s

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claims of relief in his direct appeal, federal habeas corpus case, and first PCRA

petition.9

Appellant averred the governmental interference ended on February 23,

2018, after the District Attorney’s Office was assumed by Lawrence Krasner10

and Assistant District Attorney Andrew Wellbrock filed the above letter

indicating the District Attorney’s Office would not oppose Appellant’s attempts

to litigate his claims of trial counsel’s ineffectiveness: suborning perjury and

failing to call Maria Convery and Frank Cioffi as defense witnesses. Appellant

specifically averred that “[u]ntil now, [Appellant] has been precluded from

appropriately litigating these claims because of [former] D.A. Castille’s and

Abraham’s refusal to honor the agreement that the D.A.’s Office had

previously executed with [Appellant] to not oppose his claims.” Defendant’s

Petition Pursuant to the Post Conviction Relief Act, filed 2/26/18, at 8-9.

Appellant contended that, under the agreement, he had the right to have his

ineffectiveness claims heard by the court and “agreed to, by the D.A.’s Office

as far back as 1984.” Id. at 9. He further contended the “governmental

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9 With regard to the “new administration,” Appellant indicated that, during the

litigation of his direct appeal, Ronald Castille, who later became the Chief

Justice of the Supreme Court, was elected as the District Attorney and

assumed office. Also, he indicated that, during the litigation of his federal

habeas corpus case, Lynne Abraham was elected as the District Attorney and

assumed office.

10 We note that Lawrence Krasner was elected as the most recent District

Attorney of Philadelphia, and on January 2, 2018, he was sworn into office.

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inference is now over” and he is now entitled to “litigate his claims of

ineffectiveness in this Court” without opposition from the District Attorney’s

Office. Id.

The Commonwealth did not file an answer in opposition to Appellant’s

PCRA petition, and on June 22, 2018, the PCRA court provided Appellant with

notice of its intent to dismiss under Pa.R.Crim.P. 907. Appellant filed a reply

in opposition to the PCRA court’s dismissal notice, as well as an amended PCRA

petition reiterating the Commonwealth breached the post-verdict agreement

by opposing Appellant’s various attempts at relief. The Commonwealth filed

an answer on July 16, 2018, advocating in favor of the PCRA court granting

Appellant relief.

By order entered on July 20, 2018, the PCRA court dismissed Appellant’s

February 26, 2018, PCRA petition, and this timely, counseled appeal

followed.11 The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)

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11 As indicated supra, although the lower court did not enter a final order as

to Appellant’s March 21, 2016, petition (which constitutes his second PCRA

petition), Appellant subsequently filed, and the PCRA court considered,

Appellant’s February 26, 2018, PCRA petition (which constitutes his third PCRA

petition). However, inasmuch as this Court has held that “nothing bars a PCRA

court from considering a subsequent petition, even if a prior petition is

pending, so long as the prior petition is not under appellate review[,]” there

is no procedural impediment to our review of Appellant’s appeal from the

dismissal of his February 26, 2018, PCRA petition. Commonwealth v.

Montgomery, 181 A.3d 359, 364-65 (Pa.Super. 2018) (en banc) (holding

PCRA courts are not jurisdictionally barred from considering serial PCRA

petitions, provided that there is not a pending appeal of a PCRA petition).

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statement, Appellant timely complied, and on November 30, 2018, the PCRA

court filed a Pa.R.A.P. 1925(a) opinion.

Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000). In reviewing the propriety of the PCRA court’s dismissal of

Appellant’s petition, we are limited to determining whether the PCRA court’s

findings are supported by the record, and whether the order is free of legal

error. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).

Pennsylvania law makes it clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003). The PCRA provides that a PCRA petition, including a second

or subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

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 the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition

must allege and the petitioner must prove:

(i) the failure to raise a claim previously was the result of

interference by government officials with the

presentation of the claim in violation of the Constitution

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or the law of this Commonwealth or the Constitution or

law 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)(1)(i)-(iii).

“We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, “the PCRA limits the reach of the exceptions by providing that a

petition invoking any of the exceptions must be filed within 60 days of the

date the claim first could have been presented.” Commonwealth v. Walters,

135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42 Pa.C.S.A. §

9545(b)(2).12

In the case sub judice, Appellant was sentenced on July 9, 1984, and

this Court affirmed his judgment of sentence on April 20, 1987. Our Supreme

Court denied Appellant’s petition for allowance of appeal on September 29,

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12 As of December 24, 2018, Section 9545(b)(2) now allows that any PCRA

petition invoking a timeliness exception must be filed within one year of the

date the claim first could have been presented. See Act 2018, Oct. 24, P.L.

894, No. 146 § 2, effective in 60 days (December 24, 2018). This amendment

does not apply to Appellant’s case, which arose before the effective date of

the amendment.

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1987. Thereafter, Appellant did not file a petition for a writ of certiorari with

the U.S. Supreme Court, and consequently, his judgment of sentence became

final on or about November 29, 1987, upon expiration of the time to file a

petition for writ of certiorari with the U.S. Supreme Court. See U.S.Sup.Ct.R.

20.1 (effective August 1, 1984; allowing 60 days to file petition for writ of

certiorari).13 Appellant filed his instant PCRA petition on February 26, 2018,

which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

This does not end our inquiry, however, as Appellant contends that he

is entitled to the governmental interference exception of Subsection

9545(b)(1)(i). The proper question with respect to Subsection 9545(b)(1)(i)’s

timeliness exception is “whether the government interfered with Appellant’s

ability to present his claim and whether Appellant was duly diligent in seeking

the facts on which his claims are based.” Commonwealth v. Edmiston, 619

Pa. 549, 65 A.3d 339, 345 (2013) (citations omitted).

In the case sub judice, as indicated supra, Appellant relies on the District

Attorney’s Office’s February 23, 2018, letter as the basis for his claim that he

has met the governmental interference exception. Assuming, arguendo,

Appellant has met the initial threshold of presenting his claim within 60 days

of the date the claim first could have been presented, we conclude Appellant

____________________________________________

13 Effective January 1, 1990, the rule for filing a petition for writ of certiorari

was renumbered and the time-period changed to ninety days under the

current rule, U.S.Sup.Ct.R. 13.

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has failed to demonstrate that he is entitled to the governmental interference

exception.

Appellant asserts that he met the governmental interference exception

as a result of the Commonwealth’s failure to comply with the 1984 post-verdict

agreement; to wit, he complains the Commonwealth did not “honor” the

agreement when it opposed the claims raised by Appellant in his direct appeal,

first PCRA petition, and federal habeas corpus petition. He contends the

Commonwealth’s opposition precluded him from appropriately litigating his

claims, thus constituting governmental interference. He avers the

governmental interference ended on February 23, 2018, when Assistant

District Attorney Wellbrock filed the letter indicating the Commonwealth would

no longer oppose the original post-verdict agreement, as well as agreeing with

Appellant that he is entitled to PCRA relief.

Initially, we note this is not the first time Appellant has argued the

Commonwealth breached the 1984 post-verdict agreement by contesting his

entitlement to relief. Specifically, on direct appeal, Appellant contended that

the Commonwealth should not contest his entitlement to a new trial on

grounds of ineffective assistance of counsel since to do so would constitute a

breach of the parties’ post-trial agreement. Chimenti, 524 A.2d at 919 n.2.

We found no merit to Appellant’s argument and held:

The Commonwealth did not, as [Appellant] contends,

renege on its plea bargain negotiations, but rather zealously

sought to uphold the plea in the Pennsylvania Supreme Court.

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That Court rejected the Commonwealth’s argument, however, and

ruled that the parties could not bargain away a valid jury verdict.

Id.

In any event, we hold that, since our Supreme Court specifically

rejected the so-called plea agreement, and rendered it void, Appellant’s

allegations related to the Commonwealth’s failure to abide by any term of the

agreement are moot.

We reject Appellant’s claim of governmental interference that the

Commonwealth should have abided by an alleged agreement which was

voided by the Supreme Court of Pennsylvania.

Furthermore, notwithstanding the fact the current District Attorney’s

Office “agrees” its predecessors breached the agreement, and thus Appellant

is entitled to PCRA relief, we reject such an argument as it is beyond the power

of the District Attorney. To adopt the position of the current District Attorney

on the so-called plea agreement would allow the District Attorney to usurp the

power of the judiciary, including that of our Supreme Court.

Therefore, as Appellant’s third PCRA petition is facially untimely, and

Appellant has not demonstrated that he is entitled to any of the timeliness

exceptions, we affirm the PCRA court’s order dismissing Appellant’s third PCRA

petition.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/4/19

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