Com. v. Stossel, L. (memorandum)
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J-S23019-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. LEONARD F. STOSSEL Appellant No. 1262 WDA 2012 Appeal from the PCRA Order July 19, 2012 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0002497-2005 BEFORE: GANTMAN, J., OTT, J., and FITZGERALD, J.* MEMORANDUM BY OTT, J.: FILED: May 22, 2013 Leonard F. Stossel brings this appeal from the order entered on July 19, 2012, in the Court of Common Pleas of Blair County, denying and dismissing his first petition filed under the Post Conviction Relief Act (PCRA),1 after an evidentiary hearing. Based upon the following, we affirm. Since the facts underlying the charges against Stossel for criminal attempt/unlawful contact with a minor, and criminal use of a communication facility,2 to which he pleaded nolo contendere, have been recounted by this Court, and the procedural history of this case has been aptly summarized by ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541 9546. 2 18 Pa.C.S. §§ 901(a); 6318(a)(1), and 7512(a), respectively. J-S23019-13 the PCRA court, we need not further discuss the background of this case.3 See Commonwealth v. Stossel, 944 A.2d 805 (Pa. Super. 2007) (unpublished memorandum); PCRA Court Opinion, 7/19/2012, at 1 2. See also Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011). The sole contention raised by Stossel is that the PCRA court erred in dismissing his PCRA petition as untimely.4 See Stossel s Brief at 2. The PCRA court has provided a thorough and well-reasoned discussion in support of its decision. See PCRA Court Opinion, supra, at 3 6 (explaining that Stossel failed to satisfy the PCRA s timeliness exception, set forth at 42 Pa.C.S. § 9545(b)(1)(ii),5 as follows: (1) The decision in Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004), upon which Stossel relies, involved a defendant who had suffered a serious brain injury, and the Pennsylvania Supreme Court held that in some circumstances, claims that were defaulted due to the PCRA petitioner s mental incompetence may qualify under the statutory after-discovered evidence exception. Id. at ____________________________________________ 3 We simply note that Stossel s PCRA petition, filed on June 2, 2010, was patently untimely. 4 When Stossel filed his notice of appeal, he also filed a Pa.R.A.P. 1925(b) statement, contending that the PCRA court erred in dismissing his petition as untimely. See Stossel s Rule 1925(b) Concise Statement, 8/14/2012. 5 Section 9545(b)(1)(ii) provides an exception to the one-year time bar of the PCRA where the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence[.] 42 Pa.C.S. § 9545(b)(1)(ii). -2- J-S23019-13 293; (2) As evidenced by the language of the Cruz holding, however, this exception is limited and has not been expanded, i.e., Commonwealth v. Monaco, 996 A.2d 1076 (Pa. Super. 2010), appeal denied, 20 A.3d 1210 (Pa. 2011), and Commonwealth v. Liebensperger, 904 A.2d 40 (Pa. Super. 2006); (3) While medical records confirm that Stossel suffered from serious eye problems that impeded his vision, Stossel unlike the defendant in Cruz was able to understand what was occurring and meaningfully participate in his defense, and could have filed, or sought counsel to file, a timely PCRA petition; and (4) Even if there was merit to Stossel s claim that his temporary blindness prevented him from filing his PCRA petition, Stossel testified he regained his vision in June, 2008, and his June, 2010 PCRA petition was not filed within 60 days6 from the discovery of additional evidence). As we agree with the PCRA court s sound rationale, we adopt its opinion as dispositive of the issue raised in this appeal. Accordingly, we affirm. Order affirmed. Judgment Entered. ____________________________________________ 6 See 42 Pa.C.S. 9545(b)(1) ( Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. ). -3- J-S23019-13 Deputy Prothonotary Date: 5/22/2013 -4-
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