Commonwealth v. Andrews, PICS Case No. 14-0255 (C.P. Lawrence Jan. 27, 2014) Motto, P.J. (13 pages).

COURTS OF COMMON PLEAS

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CRIMINAL LAW

Post-Conviction Relief • Timeliness • Effectiveness of Counsel

Commonwealth v. Andrews, PICS Case No. 14-0255 (C.P. Lawrence Jan. 27, 2014) Motto, P.J. (13 pages).

Where defendant fails to file a PCRA petition raising the ineffectiveness of PCRA counsel within the one-year limit, the claim should be dismissed for lack of timeliness; even where defendant was unaware of the legal standard of ineffectiveness, such lack of awareness does not constitute after-discovered facts. Where an ineffectiveness of counsel claim rests on the failure to call inadmissible character witnesses, such claim is without merit. Denied.

After his conviction from charges of aggravated indecent assault, defendant Larry James Andrews filed for post-conviction relief, asserting, among other things, the ineffectiveness of trial counsel in calling character witnesses and pursuing appeal. Although the court restored Andrews' right to appeal, it found no merit in his ineffectiveness of counsel claim, citing his failure to prove the availability of his character witnesses or the beneficialness of their testimony.

After unsuccessfully raising ineffectiveness of counsel again on appeal to the Superior Court, Andrews filed a subsequent petition for post-conviction relief for additional claims of ineffectiveness of both trial counsel and prior PCRA counsel.

The court identified the determinative issue as whether a serial petition raising the ineffectiveness of prior PCRA counsel is subject to the one-year time-bar for PCRA petitions. The court noted the precedent set by the Pennsylvania Supreme Court in Commonwealth v. Ligons, which expressly held that a serial petition raising ineffectiveness of PCRA counsel after one year from final judgment must be barred unless it falls into one of the three statutory exemptions to the time-bar. However, the Ligons court noted that the time bar would prevent petitioners from bringing ineffectiveness of PCRA counsel claims, as the ineffectiveness does not manifest until the conclusion of the initial PCRA proceeding. Therefore, the Ligons court also held that ineffectiveness of PCRA counsel can laos be raised on appeal from the denial of PCRA relief.

In this case, the court found that Andrews simply failed to bring his ineffectiveness claims within the one year period. It rejected his argument that he could avail himself of the exception for claims which were unknown to the petitioner and could not have been ascertained by due diligence. It noted that Andrews was fully aware of his character witnesses and fully aware of his PCRA counsel's failure to call said witnesses; therefore, Andrews could not plausibly claim his unawareness of his claim. Accordingly, the court rejected the claim for lack of timeliness.