Com. v. Trivigno, P. (memorandum)
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J-S32022-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PHILIP TRIVIGNO Appellant No. 3277 EDA 2016 Appeal from the PCRA Order Dated September 29, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0100861-1996 BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ. MEMORANDUM BY STABILE, J.: FILED JULY 18, 2017 Appellant Philip Trivigno pro se appeals from the September 29, 2016 order of the Court of Common Pleas of Philadelphia County (“PCRA court”), which dismissed as untimely his serial petitions for collateral relief under the Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm. The facts and procedural history of this case are undisputed. 1 Briefly, on December 19, 1995, Appellant shot and killed Frank Varano and injured his wife, Cheryl Varano. On January 29, 2003, Appellant was sentenced to ____________________________________________ * 1 Former Justice specially assigned to the Superior Court. Unless otherwise specified, these facts come from our July 25, 2013 memorandum affirming the dismissal on timeliness grounds of Appellant’s first PCRA petition. See Commonwealth v. Trivigno, No. 3131 EDA 2011, unpublished memorandum, at 1-3 (Pa. Super. filed July 25, 2013). J-S32022-17 life imprisonment following his jury convictions for first degree murder, aggravated assault, and possession of an instrument of crime. Appellant did not file a direct appeal, and thus, his judgment of sentence became final on February 28, 2003. On October 14, 2014, more than a decade later, Appellant pro se filed the instant, his second, PCRA petition. Appellant thereafter filed four supplemental PCRA petitions: November 20, 2014, December 8, 2015, December 29, 2015 and July 26, 2016. In addition to raising a Brady2 violation and various trial errors, Appellant claims that he recently discovered that a witness to the murder who was believed to be deceased at the time of the trial is actually alive. On September 29, 2016, following a Pa.R.Crim.P. 907 notice, the PCRA court dismissed as untimely Appellant’s serial PCRA petitions. Appellant timely appealed to this Court. 3 On appeal,4 Appellant raises four issues for our review: [I.] Was the PCRA court unreasonable, as a matter of federal law, to find no Brady violations by government exclusions of the primary defense witness’ testimony making clear, another is the actual shooter—to thereby time-bar all relief, by reasoning instead—to find this witness named Trivigno to be the shooter? [II.] Was the PCRA court’s merits ruling contrary to earlier federal law: by holding Trivigno to its heightened standard of ____________________________________________ 2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). 3 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. 4 “On appeal from the denial of PCRA relief, our standard of review requires us to determine whether the ruling of the PCRA court is supported by the record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816, 819 (Pa. Super. 2011). -2- J-S32022-17 evidence—to reject his in limine proffer sworn affidavit offer of proof, regarding excluded Brady material testimony? [III.] Was the opinion’s merits ruling contrary to federal law, and the doctrine of estoppel; if the record shows prosecutorial fraud on the trial court, by requiring Trivigno to show due diligence, by suspecting this was fraud? [IV.] Was the opinion’s merits ruling contrary to federal law; and the doctrine of estoppel, where this record details government frauds on the trial court? Appellant’s Brief at vii (unnecessary capitalization omitted) (sic). After careful review of the record and the relevant case law, we conclude that the PCRA court accurately and thoroughly addressed the untimeliness of Appellant’s petition. See PCRA Court Opinion, 11/2/16, at 3-8. Accordingly, we affirm the PCRA court’s September 29, 2016 order. We further direct that a copy of the PCRA court’s November 2, 2016 opinion be attached to any future filings in this case. Order affirmed. Justice Fitzgerald joins this memorandum. President Judge Gantman concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/18/2017 -3- Circulated 06/29/2017 11:03 AM
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