J

- S36034

- 22 2023 PA Super 17

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID FRANK STAHL

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1522 WDA 2021 Appeal from the PCRA Order Entered December 7, 2021 In the Court of Common Pleas of Westmoreland County Criminal Division

at No(s): CP

- 65

- CR

- 0001233

- 2012

BEFORE: STABILE, J., KING, J., and COLINS, J. *
OPINION BY COLINS, J.: FILED: FEBRUARY 7, 2023 Appellant, David Frank Stahl , appeals pro se from the order entered in the Westmoreland County Court of Common Pleas (trial court), which dismissed his second petition filed pursuant to the Post Conviction Relief Act (PCRA) 1 without a hearing. For the reasons set forth be l ow , w e affirm. On June 27 , 2014, a jury convicted Appellant of first

- degree murder for strang ling his wife to death and the trial court the same day sentenced Appellant to life imprisonment without parole

. Following the trial court’s imposition of restitution and denial of Appell ant’s timely post sentence motion , Appellant timely appealed , and this Court on November 29, 2016 affirmed his

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541

– 9546

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judgment of sentence. Commonwealth v. Stahl , 159 A.3d 601 (Pa. Super. 2016) (unpublished memorandum). Appellant filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on May 31 , 2017

. Commonwealth v. Stahl , 169 A.3d 554 (Pa. 201 7 )

. O n August 9 , 2017, Appellant filed a “Petition for Release of Notes of Testimony and Al l Other Related Documents , ” which the trial court treated as

a timely first PCRA petition. The trial court appointed PCRA counsel to represent A p pellant and Appellant’s PCRA counsel on December 8, 2017 filed

a PCRA petition raising the claim that Appellan t ’s two trial counsel w ere ineffective for fail ing to pursue a voluntary intoxication defense

. 2 0 17 PCRA Petition at 7

- 12

. Following a hearing , the trial court o n December 6, 2018 denied that PCRA petition. Appellant timely appealed , and this Court on October 8, 2019 affirmed

. Commonwealth v. Stahl (Stahl III ) , 222 A.3d 818 , No. 35 WDA 2019 (Pa. Super. 201 9 ) (unpublished memorandum). Appellant filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on M ay 1 3 , 20 20

. Commonwealth v. Stahl , 233 A.3d 678 (Pa. 20 20 )

. On Jul y 22 , 2020, Appellant filed the instant second PCRA petition in which he asserted that his PCRA counsel was ineffect ive in representing him with respect to his first PCRA petition and for failing to pur s ue claims that he asked her to assert . 2020 PCRA Petition at 4

. The trial court appointed counsel to represent Appellant on this PCRA petition and that second PCRAJ

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counsel on November 23, 202 0 filed a motion to withdraw an d a no

- merit letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988)

. On February
17 , 2021, the trial court enter ed a Pa.R.Crim. P. 907 notice of its intent to dismiss this PCRA petition without a hearing both on the ground that it was time

- barred and on the ground that Appellant’s claim s of ineffective assistance of PCRA counsel were without merit. Appellant filed a pro se response to the trial court’s Rule 907 notice addressing both the timeliness issue and the nature of the claims that he sought to assert

. In this response, Appellant contend ed that his 2020 PCRA petition was timely under the government interference and newly discovered facts exceptions to the PCRA’s time bar, 42 Pa.C.S. § 9545(b)(1)(i) and (ii) , and that he should be allowed to assert a claim of ineffectiveness of PCRA counsel pro mptly after the completion of appeals from the denial of his first PCRA petition because he had no other opportunity to do so

. Response to Rule 907 Notice at 1

- 10. Appellant also stated in his response that he was
assert ing the following three claims of ineffective assistance of the PCRA counsel appointed to represent him on his first PCRA p etition: 1) failure to pursue a claim that trial counsel was ineffective for not asserting a challenge based on Batson v. Kentucky , 476 U.S. 79 (1986) and J.E.B. v. Alabama , 511 U.S. 127 (1994) to the selection of an all

- female jury; 2) failure to pursue

a claim that trial counsel was ineffective for not seeking a change of venue;J

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and 3) ineffectiveness of PCRA counsel in investigating and litigating the voluntary intoxication ineffectiveness claim that she did pursue . Response to Rule 907 Notice at 1 1

- 19

. On November 17 , 2021, the trial court issued an order dismiss ing Appellant’s second PCRA petition without a hearing and granting second PCRA counsel’s motion to withdraw

. Trial Court Order, 11/17/21. This order , however, was n ot deli v er ed to Appellant , as the copy sent to Appellant was returned to the trial court as undeliverable . Trial Court Order, 12/7/21. On December 7, 2021, the trial court acco rdingly entered an amended order served on Appellant with a copy of the November 17, 2021 order , stating that the November 17, 2021 order remain ed in effect and advising Appellant that he had thirty days fr o m December 7, 2021 to appeal. Id. This timely appeal followed.
A p p ellant argues in this appeal both that his 2020 PCRA petition is not time

- barred and his three claims of ineffectivene ss of PCRA counsel are meritorious . We conclude that Appellant ’s claims of i n effective assistance of PCRA counsel are barred by the PCRA’s time limit and therefore affirm the dismissal of his 202 0 PCRA petition without considering wh ether the trial court was also correct in ruling that those claims could be dismissed on the merits without a hearing

. The PCRA provides that “[a] ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date theJ

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j udgment becomes final .” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be filed beyond the one

- year time period only if the convicted defendant pleads and proves one of the following three exceptions: (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 unknow n 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. Id . In addition, t hese exceptions can apply only if Appellant filed the PCRA petition “ within one year of the date the claim could have been presented. ” 42 Pa.C.S. § 9545(b)(2) ; Commonwealth v. Hipps , 274 A.3d 1263 , 1267 (P a. Super

. 2022) . The PCRA’s time limit is jurisdictional, and a court may not ignore it and reach the merits of an untimely PCRA claim

. Commonwealth v. Fahy , 737 A.2d 214, 22 2

- 2 3 (Pa. 1999) ; Hipps , 274 A.3d at 1267 ; Commonwealth v. Pew , 189 A.3d 486, 488 (Pa. Super. 2018 )

. Appellant's judgment of sentence became final on August 29 , 201 7 , upon expiration of the 9 0

- day period to file a petition for certiorari to the United States Supreme Court following the May 31, 2017 denial o f his petition for allowance of appea l . 42 Pa.C. S. § 9545(b)(3); U.S.Sup.Ct.R. 13 . TheJ

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instant PCRA petition was filed on July 22, 2020, more than two years after the judgment became final and is therefore untimely unless Appellant alleged and proved one of the three limited exceptions set forth in Sec tions 9545(b)(1)(i)

- (iii) and that he filed this PCRA petition within one year after he first could have done so. Appellant argues that the PCRA’s exceptions for government interference and for newly discovered facts , Sections 9545(b)(1)(i) and (ii), make his PCRA claims timely. Neither of t hese exceptions , ho wever, applies to any of the claims in Appellant’s 2020 PCRA petition

. Ineffectiveness of PCRA counsel that does not who l ly deprive the defendant of collateral or appellate review does not satisfy these exception s . Commonwealth v. Gamboa - Taylor , 753 A.2d 780, 785

- 86 ( Pa. 2000) ; Hipps , 274 A.3d at 126 8

- 72

. The only factual basis on which Appellant argues that these exception s apply is that he allegedly has been denied material t hat he contends that he needs to assert claims of ineffecti ve assistance of PCRA counsel with respect to his Batson and J.E.B. all

- female jury claim. Response to Rule 907 Notice
at 2

- 9 ; Appellant’s Brief at 21

- 35 , 66

- 68

. 2 Appellant does not assert any claim

_________________ __________ ______ ____ _______ 2 Appellant has also filed an applicatio n in this appeal seeking an order from this Court compelling his trial counsel, his first PCRA counsel , and his second PCRA counsel to provide him with copies of their files

. T he attorneys against whom Appellant seek s such an order , however, are neither parties to this ap peal nor have they entered any appearance in this appeal. Moreover, (Footnote Continued Next Page)J

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of government interference or newly discovered facts with respect to his claims concerning change of ven ue or inadequate litigation of the voluntary intoxication claim . To the contrary, Appellant bases his claim of ineffective assistance of PCRA counsel in fail ing to raise the change of venue issue on media coverage of his case in the two years l eading up to his 2014 trial

. Appellant’s Brief at 49

- 56

. With respect to PCRA counsel’s litigation of the volunt ary intoxication issue, the information that Appellant contends that PCRA counsel failed to investigate consists of records in a civil case from 2014 and the extent of the evidence that PCRA counsel presented on th e voluntary intoxication issue was known t o Appellant in 2018 , when he was present a t the PCRA hearing and when the trial court denied the PCRA

. Appellant’s Brief
at 54

- 62 ; Stahl III , 222 A.3d 818 , No. 35 WDA 2019 , slip op. at 5, 8

- 13.
A ppellant’s allegations also fail to satisfy the requirements of government interference and newly discovered facts exceptions with respect to the Batson and J.E.B. all

- female jury claim as to which h e attempts t o assert the se exc e p tions

. Appellant admits that he was aware when his trial

_________________ __________ ______ ____ _______ Appellant has not served any of the se attorneys with his application to compel

. See Motion to Compel Proof of Service (stating that Appellant served the a pplication only on this C o urt an d the Commonwealth). Accordingly, this Court denies Appellant’s application, without prejudice to his right to bring a n action in which his former attorneys are parties and have the opportunity to respond to seek an order compelling them to provide him with those documents. Denial of Appellant’s application has no effect on the adjudication of this appeal, as any information obtained from the atto r neys after the filing of this appeal would not be part of the record on which the appeal is decid ed

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occurred in 2014 of the all

- female composition of his jury , that he was present for jury selection , and that he knew at that time that his trial counsel were not raising objections to the Commonwealth ’s p eremptory strikes of male jurors and sought to have female jurors . Appellant’s Brief at 34, 44

- 45 , 49

. Appellant also admits that he knew enough to seek to raise th is claim of ineffective assistance of counsel at the time of his first PCRA, that he asked PCRA counsel in 2018 to assert this claim , and that he knew in 2018 , more than one year before he filed his 2020 PCRA petition, that PCRA counsel declin ed to assert this claim, not based on anything in the transcripts or records of jury selection that he claims that he is being denied , but because trial counsel made a strategic decision that it was desirable to have female jur ors . Id. at 62

- 63

. Indeed, Appellant has not allege d that he learned any new fact supporting his Batson and J.E.B. all

- female j ury claim in the year before he filed the instant PCRA petition in July 2020 or that anything occurred that aff ected his ability to assert that claim during that one

- year period

. Appellant also argues that under our Supreme Court’s decision in Commonwealt

h v. Bradley , 261 A.3d 381 (Pa. 2021) , his PCRA petition is not time

- barred because it was allegedly his first opportunity to raise ineffectiveness of PCRA counsel

. Appellant’s Brief at 36

- 43, 64. We do not
agree. In Bradley , our Supreme Court addressed the dilemma of when a defendant may raise claims of ineffective assistance of PCRA counsel and heldJ

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that such claims may be raised for the first time during an appeal from the denial of a timely filed first PCRA petition where t he PC RA counsel in question represented the defendant until the appeal

. 261 A.3d at 401

- 05

. Here, Appellant did not i nvoke the opportunity to challenge the effectiveness of PCRA counsel that Bradley provides. Appellant never sought to raise his claims of ineffectiveness of PCRA counsel during the course of the appeal from the d eni al of his timely first PCRA petition , although , as discussed above, he was fully aware of those claims of ineffectiveness of PCRA counsel

. While Appellant was still represented by PCRA counsel throughout the appeal and that counsel could not raise her own ineffectiveness , id. at 398; Commonwealth v. Koehler , 36 A.3d 121, 132 (Pa. 2012) , a defendant in that situation who wis hes to assert claims that PCRA counsel was ineffective

can request to have new counsel appointed to permit the assertion of such claims or can seek to represent himself

. See , e.g., Commonwealth v. Greer , No. 386 MDA 2022 , slip op. at 4

- 5 (Pa. Super. filed Oct

. 20, 2022 ) (unpublished memorandum) (remanding for appointment of new counsel to permit defendant to assert cl aims of PCRA counsel ineffectiveness ) ; Commonwealth v. Smith , 2598 EDA 2021 , slip op. at 4 (Pa. Super. filed Oct

. 12, 2022 ) (unpublished memorandum) (same)

. Appellant did not do so at any point during his appeal from the trial court’s denial of his first PCRA petition

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Nothing in Bradley crea t e s 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 or permits recognition of such a right . To the contrary, our Supreme Court in Bradley unam b iguo u sly rejected the filing of a successive untimely PCRA petition as a perm issible meth od of vindicat ing the right to effective representation by PCRA counsel

. 261 A.3d at 403

- 04 & n.18. The Supreme Court not only stated that the opportunity that it allowed to raise claims of ineffective assistance o f PCRA counsel “ does not sanction extra

- statutory serial [ PCRA ] petitions , ” but also expressly held : We decline to adopt the approach, suggested by Appellee and Amicus Pennsylvania Innocence Project, that would deem a petitioner’s “discovery” of initial PCRA counsel’s ine ffective assistance to constitute a “new fact” that was unknown to petitioner, allowing such petitioner to overcome, in a successive petition, the PCRA’s time bar provision under the “new fact” exception. See 42 Pa.C.S. § 9545(b)(1)(ii). We have repeatedl y rejected such an understanding of the “new fact” exception to the PCRA’s one

- year time bar. 261 A.3d at 403 , 4 04 n.18 (citations omitted). See also i d. at 406 (Justice Dougherty concurring) (“ Importantly, our decision today does not create an exceptio n to the PCRA ’ s jurisdictional time

- bar, such that a petitioner represented by the same counsel in the PCRA court and on PCRA appeal could file an untimely successive PCRA petition challenging initial PCRA counsel ’ sJ

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ineffectiveness because it was his ‘ firs t opportunity to do so ’ ” ). Bradley
t herefore can not make Appellant’s 2020 PCRA petition timely. 3 Because Appellant has not shown that any statutory exception to the PCRA’s one

- year time limit applies to the claims of ineffective assistance of PCRA counsel that he asserted in his 2020 PCRA petition and Bradley does not provide an exception to the PCRA’s tim e bar, the trial court correctly held that Appellant’s 2020 PCRA petition w as untimely

. We therefore af firm the trial court’s dismissal of that PCRA petition without a hearing

. Order affirmed. Application to compel denied. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/7/2023

_________________ __________ ______ ____ _______ 3 This conclusion, moreover, is supported by the per suasive non - prece de ntial decisions of other panels of this Court that have addressed this issue and have repeatedly held that Bradley does not permit the filing of a subsequent untimely PCRA petition as a method of rais ing claims of ineffectiveness of PCRA counsel

. See, e.g., Commonwealth v. Bingaman , No. 123 WDA 2022 , slip op. at 5

- 7 (Pa. Super. Oct

. 2 1 , 2022 ) (unpublished memorandum) ; Commonwealth v. Bernal , No. 974 MDA 2021 , slip op. at 4

- 6 & nn.2, 3 (Pa. Super. filed Sep t
. 13 , 2022 ) (unpublished memorandum) ; Commonwealth v. Dennis , No. 1926 EDA 2021 , slip op. at 7

- 9 (Pa. Super. filed Aug. 29 , 2022) (unpublished memorandum)

.