Com. v. Lisowski, T. (memorandum)

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J.S07039/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. THOMAS MICHAEL LISOWSKI, Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 781 MDA 2013 Appeal from the PCRA Order April 25, 2013 In the Court of Common Pleas of Wyoming County Criminal Division No(s).: CP-66-CR-0000180-2007 BEFORE: MUNDY, WECHT, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 06, 2014 Pro se Appellant, Thomas Michael Lisowski, appeals from the order entered in the Wyoming County Court of Common Pleas dismissing his first Post Conviction Relief Act1 Commonwealth used perjured testimony to convict him and that the Commonwealth lacked jurisdiction to prosecute him. We affirm. We adopt the facts and procedural history as set forth by the trial court.2 Trial Ct. Op., 5/15/13, at 1-3 (unpaginated). On March 26, 2013, * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 We note that Appellant was sentenced to an aggregate sentence of twelve to twenty-four months in prison consecutive to another sentence. Order, J. S07039/14 Appellant admitted he did not raise the issue of perjured testimony at trial. N.T., 3/26/13, at 19-20. The PCRA court subsequently issued a Pa.R.Crim.P. 907 notice. Appellant filed a motion for reconsideration on April 8, 2013, which the PCRA court denied the next day. On April 25, 2013, the PCRA timely filed a court-ordered Pa.R.A.P. 1925(b) statement. Appellant raises the following issues: Whether a perjury [sic] testimony was used in gaining a convi[c]tion by the prosecution and w[h]eather this issue has been preserved for PCRA proceeding when [Appellant] used it in his appeal within his argument under insufficient evidence. See (1037 MDA 2010). Again [Appellant] will argue tha[t] the evidence was insufficient to support a conviction for aggravated assault; simple assault; recklessly endangering another person. Does the perjury [sic] testimony [a]ffect the sufficient evidence to convict? Whether the Commonwealth Court of Pennsylvania [sic] had jurisdiction or venue to prosecute this case within the laws of our United States Constitu[t]ion? For his first issue, Appellant contends the Commonwealth used perjured testimony to obtain his convictions. He insists that he raised this 10/7/11. Appellant, however, indicated he was released on parole. abundance of caution, we presume we have jurisdiction to entertain See generally 42 Pa.C.S. § 9543(a)(1)(i) of -2- J. S07039/14 prior opinion resolving his direct appeal. Appellant references testimony that, in his view, substantiates his allegation of perjured testimony. We hold Appellant is not entitled to relief. 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. Abu- Jamal, 941 A.2d 1263, 1267 (Pa. 2008). To be entitled to PCRA relief, a petitioner must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the errors found in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, id. failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by Id. the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in Id., § 9544(b). Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 2012). One of the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken Commonwealth v. Pursell, -3- J. S07039/14 case will Commonwealth v. Ali, 10 A.3d 282, 294 (Pa. 2010). Instantly, Appellant has not established that he raised the issue at or before trial, or on direct appeal. See Keaton, 45 A.3d at 1060. Indeed, Appellant admitted he did not raise the issue at trial. See N.T., 3/26/13, at 19-20. Further, we have reviewed the prior appellate decisions in this matter and discern no challenge based on perjured testimony. See Commonwealth v. Lisowski, 111 MDA 2008 (unpublished memorandum) Lisowski I Lisowski see also Commonwealth v. Lisowski II Appellant refers us to various exchanges in the trial transcript, 3 but nowhere does he explicitly level a charge of perjury. Regardless, we have See Pursell, 724 A.2d at 307; see also Ali, 10 A.3d at 294. Furthermore, Appellant has not demonstrated that the statement that he assaulted the officer. See generally Lisowski I, at 1-3 (summarizing facts, including inculpatory testimony); see also Lisowski II, at 1-2, 11 (summarizing testimony establishing aggravated assault). 3 Appellant also referred this Court to testimony taken at the hearing on his motion to modify his bail. See taken on February 5, 2010, the date of hearing on motion to modify bail). We decline to consider that testimony given the procedural posture. -4- J. S07039/14 See AbuJamal, 941 A.2d at 1267. Lastly, Appellant claims that Pennsylvania lacked the constitutional authority to prosecute him due to a lack o 4 He reasons that because the Pennsylvania Constitution of 1968 lacked a Savings Clause, all statutes are void. We conclude Appellant is not entitled to relief. ylvania jurisdiction in all 5 Accordingly, having discerned no error of law or abuse of discretion, we affirm the order below. See Abu- Jamal, 941 A.2d at 1267. Order affirmed. 4 used in a repealing act to preserve rights and claims that would otherwise be 5 We observe that the legislature has the power to enact criminal law pursuant to the Constitutions of 1874 and 1968. -5- J. S07039/14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/6/2014 -6-

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