Com. v. Derk, S.

• Court: Superior Court of Pennsylvania
• Decided: March 13, 2023
• Docket: 49 MDA 2022
• Status: Unpublished

Opinion

J-S18032-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN CARL DERK : : Appellant : No. 49 MDA 2022

Appeal from the PCRA Order Entered November 24, 2021 In the Court of Common Pleas of Snyder County Criminal Division at No(s): CP-55-CR-0000153-1993, CP-55-CR-0000306-1992

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 13, 2023

Steven Carl Derk (Appellant) appeals1 pro se from the order entered in

the Snyder County Court of Common Pleas dismissing his serial petition filed ____________________________________________

1 Under Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), an appellant is required to file separate notices of appeal when a single order resolves issues arising on more than one trial court docket. See Walker, 185 A.3d at 977, overruled in part, Commonwealth v. Young, 265 A.3d 462, 477, (Pa. 2021) (reaffirming Walker, but holding Pa.R.A.P. 902 permits appellate court to, in its discretion, allow correction of the error where appropriate). However, quashal is not required where non-compliance with Walker results from a breakdown in the courts. See Commonwealth v. Stansbury, 219 A.3d 157, 160 (Pa. Super. 2019) (declining to quash an appeal where the PCRA court mistakenly informed the petitioner he could file “a” notice of appeal when there were two trial dockets); Commonwealth v. Larkin, 235 A.3d 350, 352-54 (Pa. Super. 2020) (en banc) (reaffirming Stansbury and holding we may overlook the requirements of Walker where a breakdown occurs in the court system and a defendant is misinformed of his appeal rights).

Here, the PCRA court issued an order dismissing Appellant’s petition, but did not inform him of his appeal rights. Order, 11/24/21. On that same (Footnote Continued Next Page) J-S18032-22

pursuant to the Post-Conviction Relief Act (PCRA).2 He advances arguments

related to due process, ineffective assistance of trial, appellate, and first PCRA

counsel, and Brady3 violations. As we agree with the PCRA court that the

present petition is untimely, we affirm.

A detailed recitation of the underlying facts is not necessary for this

appeal. Briefly, we note that in September 1993, Appellant, represented by

counsel, was convicted of, inter alia, first-degree murder4 of the two-year-old

son of his then girlfriend, Tamie Gates.5

On July 24, 1996, this Court affirmed his judgment of sentence.

Commonwealth v. Derk, 374 HBG 1995 (unpub. memo.) (Pa. Super. July

24, 1996). The Pennsylvania Supreme Court granted limited review of

Appellant’s claim challenging trial counsels’ failure to request a corrupt source

jury instruction. Commonwealth v. Derk, No. 0541 M.D. Allocatur Docket

____________________________________________

day, the court filed a “Notice of Disposition,” wherein it did inform Appellant of his right to appeal, but not of the implications of Walker. Notice of Disposition, 11/24/21. Appellant then filed a single notice of appeal listing two trial court docket numbers. We conclude there was a breakdown of the courts and apply the exception detailed in Stansbury. See Stansbury, 219 A.3d at 160. Thus, we review the present appeal.

2 42 Pa.C.S. §§ 9541-9546.

3 Brady v. Maryland, 373 U.S. 83 (1963) (government cannot withhold exculpatory evidence from defense).

4 18 Pa.C.S. § 2502(a).

5 The record indicates Gates was separately charged related to this incident.

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1996 (Pa. March 12, 1997). However, the Court was evenly divided and

affirmed Appellant’s judgment of sentence on October 7, 1998.

Commonwealth v. Derk, No. 25 Middle District Appeal Docket 1997, at 332-

33 (Pa. Oct. 7, 1998) (concluding counsel was not ineffective for failing to

request a corrupt source jury instruction as it was inconsistent with Appellant’s

trial strategy). Appellant filed a petition for reargument with the Supreme

Court, which denied it on December 11, 1998. Commonwealth v. Derk, No.

25 Middle District Appeal Docket 1997 (Dec. 11, 1998). He did not seek

certiorari with the United States Supreme Court.

On July 13, 1999,6 Appellant filed a timely counseled PCRA petition, his

first, which the PCRA court granted,7 affording him a new trial. The court

opined that trial counsel was ineffective for failing to request cautionary

instructions that the jury: “(1) could not consider [the victim child’s mother’s]

guilty plea as substantive evidence of [Appellant]’s guilt[;] and (2) could

6 The certified trial docket does not include an entry that a PCRA petition was filed on this date. However, Appellant, the Commonwealth, and a prior opinion filed by another panel of this Court all agree Appellant filed his first timely PCRA petition in July of 1999. See Appellant’s Brief at 4; Commonwealth Brief at 4; Commonwealth v. Derk, 913 A.2d 875, 879 (Pa. Super. 2006), appeal denied, 185 MAL 2007 (Pa. Oct. 2, 2007), respectively.

7 It appears from the certified trial docket that the PCRA court permitted Appellant to amend his 1999 PCRA petition in April of 2004. See Certified Criminal Docket CP-55-CR-0000306-1992, at 4. The docket then indicates the PCRA court entered an order granting relief on this petition on June 2, 2005. See id. at 5. The docket does not reflect why there was a several year lapse between Appellant’s initial filing and the eventual relief. This does not impact our review.

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consider a purportedly inconsistent statement made by [her] to be substantive

evidence of [Appellant’s] innocence.” Derk, 913 A.2d at 880. The

Commonwealth appealed from this decision, and, on November 30, 2006, a

panel of this Court vacated the order. The panel reasoned that Appellant’s

PCRA claims were “simply alternative theories in support of one discrete legal

ground[,]” which was previously litigated on direct appeal. Id. at 883-84. On

October 2, 2007, the Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal.

Appellant then filed pro se petitions for PCRA relief in 2010 and 2014,

which were both dismissed. Order, 10/5/10; Order, 4/4/14.

On August 10, 2021, Appellant filed the present PCRA petition. On

September 30, 2021, the PCRA court filed a Pa.R.Crim.P. 907 notice of intent

to dismiss without a hearing, finding the petition was untimely. Appellant filed

a response on October 22, 2021, which baldly asserted the following:

1. After discovered evidence in the form of “exculpatory” evidence or witness testimony that proves “Actual innocence.” [sic.]

2. “Brady Violation” for abuse of investigation, and Disclosure[.] Newly Discovered evidence. [sic.]

Appellant’s Response to Notice of Dismissal, 11/12/21, at 2.8 Appellant did

not explain which evidence was allegedly “after” or “newly” discovered, or

when he learned of it, nor did he assert that he filed his petition within one

8Appellant’s response to the court’s Rule 907 notice was dated October 22, 2021, but it was not docketed until November 12th.

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year of learning of the evidence. The court dismissed the petition on

November 24, 2021.

Appellant filed this timely9 appeal,10 where he raises the following

claims:11 ____________________________________________

9 The 30th day after the court’s order fell on December 24, 2021, which was a court holiday. As such, Appellant’s appeal period was extended to Monday, December 27th. See 1 Pa.C.S. § 1908 (whenever the last day of a filing period falls on a weekend or on any legal holiday, such day shall be omitted from the computation of time). The PCRA court received Appellant’s notice of appeal on December 28th.

On January 4, 2022, the PCRA court filed an order stating any notice of appeal filed after December 24, 2021, would be untimely. Order, 1/4/22. However, we deem Appellant’s notice of appeal was timely filed per the prisoner mailbox rule. See Commonwealth v. Patterson, 931 A.2d 710 (Pa. Super. 2007) (even without postmark definitively noting date of mailing, panel may avoid quashal where date of receipt indicates that the appellant likely placed notice of appeal in hands of prison authorities before expiration of 30 days).

10The PCRA court did not order Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).

11 While the present matter was pending on appeal, Appellant continued to file, inter alia, serial pro se PCRA petitions, which raised claims of governmental interference. These petitions reiterated Appellant’s assertions that the Commonwealth, his former attorneys, the Department of Corrections, and the judicial system were spearheading conspiracies to prevent him from gaining relief.

The PCRA court properly stated it did not have jurisdiction to review the above filings as his August 8, 2021, petition was pending appellate review, and thus, dismissed them. Order, 8/31/22 (dismissing Appellant’s March 17th and April 7th filings); Order, 9/16/22 (dismissing Appellant’s September 13th and April 7th filings). See Pa.R.A.P. 1701(a) (“[A]fter an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.”); Commonwealth v. (Footnote Continued Next Page)

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A. Did . . . Trial Counsel violate [Appellant’s 14th] Amendment Constitutional right to “Due Process Clause[,”] by not requesting the appointment of forensic specialist for the defense?

B. Were Trial Counsel Hugh Benson Jr., and George Hepner ineffective for failure to search, and locate one Ms. Jean Toth, that surfaced, held valuable, and crucial information that not only would’ve altered the outcome of the first trial in Sept[ember] 1993, or the [second] trial [Appellant] was ordered in 2005, but appealed by [the Attorney General’s Office] in 2005-06, and then taken by the [Pennsylvania] Superior Court in Dec[ember] 2006[?]

C. Were [Attorneys] Hugh Benson, George Hepner, Michael G. Leonard (on direct), and Edward J. Rymsza PCRA Counse[,] ineffective for their outright refusal, and prejudice toward [Appellant], to bring forth the evidence that existed of the mother [of the child victim] Tamie Lynn Gates off, and on relation with one Phil Kegris?

D. Were [Appellant’s] constitutional rights violated by the . . . Synder [County District Attorney’s] Office . . . for failure to disclose testimony prepared by then Chief Investigator Officer James Hartley of the Selinsgrove Police Department of a 10 year old [witness, G.T.]? Brady Right Violations Violated?

E. Were [Appellant’s] constitution[al] rights violated by the Snyder [County District Attorney’s] Office[’s failure] to disclose testimony, and identity of 911 dispatcher Ronald Nolder to the defense at the time during jury selection, when the Commonwealth submitted a supplemental witness list Sept[ember] 9, 1993? Brady right violations violated?

F. Were [Appellant’s] constitutional rights violated, and Brady violations by the Snyder [County District Attorney’s] Office, and the [Pennsylvania Attorney General’s Office], by refusing to turn over “exculpatory” evidence results to [Appellant]?

Bishop, 829 A.2d 1170, 1172 (Pa. Super. 2003) (a court may not entertain a subsequent petition where a prior one is still subject to an appeal).

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Appellant’s Brief at 3 (some capitalization and punctuation omitted)12

Before we may address the merits of Appellant’s argument, we must

determine if his PCRA petition was properly filed.

The timeliness of a PCRA petition is a jurisdictional requisite. [T]he PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of the petition. In other words, Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. The PCRA requires a petition, including a second or subsequent petition, to be filed within one year of the date the underlying judgment becomes final. A judgment of sentence is final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review.

Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019)

(citations, quotation marks, and emphasis omitted); see also 42 Pa.C.S. §

9545(b)(1), (3).

Here, Appellant’s judgment of sentence became final on March 11, 1999

— 90 days after the Pennsylvania Supreme Court denied his application for

reargument and the time for filing a writ of certiorari with the United States

Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13(1)

(requiring the filing of a petition for writ of certiorari within 90 days of entry

of judgment). Generally, Appellant then had one year from that date to file a

PCRA petition. See 42 Pa.C.S. § 9545(b)(1). He filed the present petition on

12 Appellant’s claims have been reordered for ease of review.

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August 10, 2021 — more than 20 years later — and as such, it is facially

untimely.

The PCRA, however, allows for an appellant to file a petition after this

period where they plead and prove one of the following timeliness 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 unknown 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition pleading any of the above

exceptions must be filed within one year of the date the claim could have been

presented. 42 Pa.C.S. § 9545(b)(2).

Preliminarily, we note Appellant’s pro se brief and PCRA petition are

difficult to follow. See Appellant’s Petition of Allowance Post-Conviction

Habeas Corpus, 8/10/21. The PCRA court also stated its November 24, 2021,

order dismissing Appellant’s petition, it had “difficulty” in understanding the

document, as he stated his arguments “in a blended and repetitive manner[.]”

Order, 11/24/21, at 2. We remind Appellant that “although this Court is willing

to construe liberally materials filed by a pro se litigant, pro se status generally

confers no special benefit upon an appellant.” See Commonwealth v.

Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003) (some citations omitted).

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In Appellant’s present serial PCRA petition and Rule 907 response, he

does not raise any of the above exceptions to the time bar of the PCRA. See

generally Appellant’s Petition of Allowance Post-Conviction habeas Corpus,

8/10/21; Appellant’s Response to Notice of Dismissal, 11/12/21; see also

Order 11/24/21 (noting Appellant did not establish any of the timeliness

exceptions). We note he did cite to Commonwealth v. Bradley, 241 A.3d

1091 (Pa. 2020), which granted a petition for allowance of appeal on the

limited issue of how to enforce the right of effective counsel on a first PCRA

proceeding.13 However, Appellant was not represented by an attorney in the

filing of the present serial petition. We agree with the PCRA court that it did

not have jurisdiction to address any of his potential claims. See Ballance,

203 A.3d at 1031; 42 Pa.C.S. § 9545(b)(1)(i)-(iii). As such, we affirm the

court’s order on this basis.

Appellant’s brief includes a section titled “Claim of Argument of

Timeliness.” Appellant’ Brief at 11-16. Though labeled as such, this portion

of his brief also does not plead or prove any timeliness exception set forth in

the PCRA. Instead, it details a narrative of his time while incarcerated. See

id. Generally, Appellant puts forth, inter alia, the following “arguments” he

believes supports the timeliness of his petition: (1) his treatment by the ____________________________________________

13 The Pennsylvania Supreme Court has since decided Bradley, holding an appellant may “raise claims of ineffective PCRA counsel at the first opportunity, even if on appeal.” Commonwealth v. Bradley, 261 A.3d 381, 405 (Pa. 2021). This does not, however, amount to an exception to the timeliness requirements under the Act.

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Department of Corrections staff and other inmates while incarcerated; (2)

being transferred into different facilities and placed into restricted housing

after witnessing, inter alia, “sexual harassment” and the delivery of

“contraband;” (3) his difficulty “at times” to access the facility’s law library,

and his presence in there “becom[ing] an issue[;]” (4) the lack of aid he

received from PCRA Counsel Rymsza after making complaints of negative

treatment; (5) several medical issues spanning over the time of his

incarceration; and (6) the circumstances surrounding the death of two family

members while he was incarcerated. See id.

These assertions do not support a timeliness exception under the PCRA.

Further, regarding his claims of mistreatment in prison, the PCRA is not the

proper vehicle for Appellant to obtain relief for this conduct. See 42 Pa.C.S.

§ 9543(a)(2)-(4) (eligibility for relief under the PCRA). Moreover, none of the

seven claims in Appellant’s brief warrant relief. As best as this Court can

decipher in his brief, we list his arguments below.

In his first claim, Appellant asserts the trial court “should have appointed

[him] forensic assistance” at his 1993 trial to rebut the expert witness

evidence presented by the Commonwealth.14 Appellant’s Brief at 5. In his

next two claims, Appellant alleges trial, appeal, and PCRA counsels were

14 We note that in his questions presented, Appellant alleged it was trial counsel who violated his right to due process, where they did not request a forensic specialist, but in his argument section he alleges the trial court violated his rights where it did not appoint one. Appellant’s Brief at 3, 5.

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ineffective for the following reasons: (1) “failure to bring forth the identity of

. . . Jean Toth to the [c]ourts”; and (2) the “intentional failure to bring forth

the existence” of Phil Kegris, an alleged ex-boyfriend of the victim’s mother.

Id. at 8-10. In his last three claims, Appellant asserts the Commonwealth

committed Brady violations where it: (1) did not disclose testimony from

minor witness, G.T., until jury selection; (2) did not disclose testimony from

and the identity of 911 dispatcher Ronald Nolder until jury selection; and (3)

did not hand over requested “‘exculpatory’ evidence” involving “a condom test

result. Id. at 5-7, 10.

Notably, Appellant acknowledges he either knew of this information at

trial or previously raised these claims in prior PCRA petitions. Id. at 5-8, 10.

As such, to the extent Appellant may argue he has newly discovered evidence,

by his own admission, he has either previously raised each of the above claims

or was aware of the allegations he wished to bring well before his 2021

petition. See 42 Pa.C.S. § 9545(b)(2).

Because Appellant filed a facially untimely PCRA petition and failed to

plead or prove any exception to the time bar, we affirm the PCRA court’s order.

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Order affirmed.

President Judge Emeritus Bender has joined this memorandum.

Judge McLaughlin files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/13/2023

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