J-S35038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JOSEPH DURKIN,
Appellant No. 326 EDA 2015
Appeal from the PCRA Order January 7, 2015 in the Court of Common Pleas of Bucks County Criminal Division at No.: CP-09-CR-0007257-2007
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 08, 2015
Appellant, Joseph Durkin, appeals from the order of January 7, 2015,
dismissing, without a hearing, his second petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because the
petition is untimely without applicable exception, we affirm.
In an earlier appeal, the trial court summarized the factual and initial
procedural history of this case as follows:
Appellant was one of thirty-four co-defendants who were arrested and charged in connection with what we will term the James Beal corrupt organization—an extensive drug trafficking network that operated in Bucks and surrounding counties. The police investigation into this corrupt organization began with physical surveillance by law enforcement and the use of confidential informants in February[] 2007. With the help of ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S35038-15
these confidential informants, the Commonwealth was able to conduct 16 controlled buys under police surveillance, some of which included controlled buys between undercover officers and James Beal. Confidential informants also allowed law enforcement to conduct consensual wiretaps on their conversations with James Beal.
In March 2007, upon applications by the Bucks County District Attorney’s Office, two orders from the Bucks County Court of Common Pleas were issued to allow the installation of a GPS mobile tracking unit and a live GPS tracking device on one of James Beal’s vehicles. The GPS unit on Beal’s vehicle was operational for 26 days, wherein law enforcement was able to determine that Beal followed a “regular route” on most of these days, starting in the Bristol/Bensalem area of Bucks County. During the course of travelling [sic] on this route, Beal would make the majority of his stops in various retail and commercial parking lots, making a total of 406 stops over a 21-day period.
On May 24, 2007, the Commonwealth submitted an affidavit in support of an application for the interception of wire and electronic communications on two of James Beal’s cellular telephones to . . . the Superior Court of Pennsylvania. The Superior Court issued an order authorizing interception of communications on the two Beal cellular telephones on May 24, 2007. Police immediately began intercepting telephone calls on Beal’s telephones. As a result of the wiretap that was placed on James Beal’s two cellular telephones, the police were able to record countless telephone calls between Beal and the thirty-four co-defendants involved in the corrupt organization, including Appellant . . . .
The contents of these recorded telephone conversations demonstrate that James Beal, the leader of the corrupt organization, was in the business of buying and selling various controlled substances, including cocaine; powder and crystal methamphetamine; ecstasy, marijuana, and steroids. Beal, Appellant, and the other members of the corrupt organization spoke of these controlled substances by using code words and other vague references to mask the true nature of the type of drug and amount of drugs in which they were dealing. . . .
. . . Appellant had forty-seven telephone conversations with Beal between May 24 and June 14, 2007, the majority of which
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revolved around the acquisition and distribution of controlled substances. Within these conversations, Appellant and Beal used many of the code words to discuss Appellant’s acquisition of crystal methamphetamine from James Burden, Jr., Appellant’s drug supplier who held a residence in Texas. Appellant and Beal would contact each other to discuss when mailed packages from Burden would arrive from Texas to Appellant, and when Beal could then pick up his share of these packages from Appellant. . ..
On June 14, 2007, James Burden Jr. was arrested at [the] Philadelphia International Airport[.] Burden Jr. admitted to possessing controlled substances, and was found to have, among other controlled substances, seven ounces of crystal methamphetamine strapped to his body at the time of arrest.
Also on June 14, 2007, the Philadelphia Court of Common Pleas approved a search warrant for Appellant’s residence at 218 Lockart Street, Philadelphia, Pennsylvania. Law enforcement executed the search warrant at Appellant’s residence and found, among other items, eighteen large pots of marijuana plants; grow lights; assorted marijuana growing equipment and paraphernalia; numerous glassine bags; and an electronic scale. While law enforcement was conducting the search, a UPS package arrived at Appellant’s residence. The package was opened pursuant to a search warrant[,] which was obtained from the Philadelphia Municipal Court, and was found to contain 7.2 ounces of crystal methamphetamine.
On July 17, 2007, the Commonwealth submitted a 271[- ]page affidavit of probable cause to the District Court, which issued warrants for the arrest of Appellant and his co- defendants. On July 18, 2007, Appellant was arrested and taken into custody.
(Trial Court Opinion, 9/16/08, at 3-7) (record citations omitted).
On March 27, 2008, following a bench trial, the trial court found
Appellant guilty of corrupt organizations, criminal use of a communication
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facility, three counts of possession with intent to deliver (PWID), and two
counts of attempted PWID.1 That same day, the trial court sentenced
Appellant to an aggregate term of incarceration of not less than fifteen nor
more than forty years, and a fine of $150,000.
On March 30, 2009, we affirmed the judgment of sentence, holding
that the trial court had properly denied Appellant’s motion to suppress and
that it did not err in admitting the testimony of a Commonwealth expert
witness. (See Commonwealth v. Durkin, 974 A.2d 1180 (No. 1301 EDA
2008, unpublished memorandum at *9 (Pa. Super. filed March 30, 2009))).
On February 5, 2010, the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal. (See Commonwealth v. Durkin, 989
A.2d 7 (Pa. 2010)).
On July 6, 2010, Appellant, acting pro se, filed a timely PCRA petition.
On July 19, 2012, following several changes of counsel, attempts by
Appellant to represent himself, and the filing of multiple amended PCRA
petitions, the PCRA court held an evidentiary hearing, at which Appellant
was represented by counsel. At the conclusion of the hearing, the PCRA
court directed the parties to file briefs in support of their respective
positions, and Appellant again requested leave to proceed pro se. On
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1 18 Pa.C.S.A. §§ 911, 7512, 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 901, respectively.
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December 21, 2012, the PCRA court held a Grazier2 hearing and granted
Appellant permission to proceed pro se. On April 3, 2013, the PCRA court
denied Appellant’s first PCRA petition.
On March 10, 2014, this Court affirmed the denial of Appellant’s first
PCRA petition, holding, in part, that trial/appellate counsel was not
ineffective for failing to raise the issue of whether the Court of Common
Pleas of Buck County had subject matter jurisdiction over the charges and
that Appellant’s sentence was legal. (See Commonwealth v. Durkin, 100
A.3d 302 (No. 1527 EDA 2013, unpublished memorandum at **10-13, 18-
20 (Pa. Super. filed March 10, 2014))). Appellant did not seek leave to
appeal to the Pennsylvania Supreme Court.
On June 5, 2014, Appellant, acting pro se, filed the instant PCRA
petition. On November 7, 2014, Appellant, through counsel, filed an
amended PCRA petition. On December 12, 2014, the PCRA court issued
notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of
Criminal Procedure 907. On January 7, 2015, the PCRA court dismissed the
petition as untimely. The instant, timely appeal followed. On February 3,
2015, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On February 12, 2015,
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Appellant filed his Rule 1925(b) statement; on March 12, 2015, the PCRA
court issued an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
I. Did the P.C.R.A. [c]ourt violate Appellant’s rights under the Sixth and Fourteenth Amendments by finding that the petition was untimely filed and that Appellant failed to raise, allege and plead any valid statutory exception to the time bar?
II. Did the P.C.R.A. [c]ourt violate Appellant’s rights under the Sixth and Fourteenth Amendments by finding that Appellant did not use due/reasonable diligence in filing the instant pro se P.C.R.A. petition and/or that it was not timely filed within 60 days of his learning the newly discovered evidence’[s] existence and import?
III. Did the P.C.R.A. [c]ourt violate Appellant’s rights under the Sixth and Fourteenth Amendments by finding that the claim was previously litigated?
IV. Did the P.C.R.A. [c]ourt violate Appellant’s rights under the Sixth and Fourteenth Amendments by finding that Appellant[’s] claim was waived[?]
V. Did the P.C.R.A. [c]ourt violate Appellant’s rights under the Sixth and Fourteenth Amendments by finding that Appellant’s new evidence claim was without merit and Appellant was not entitled to relief[?]
(Appellant’s Brief, at 4).3
3 While Appellant claims that the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution in his Statement of the Questions Involved, he abandons that argument in the (Footnote Continued Next Page)
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Appellant appeals from the denial of his PCRA petition. To be eligible
for relief pursuant to the PCRA, Appellant must establish that his conviction
or sentence resulted from one or more of the enumerated errors or defects
found in 42 Pa.C.S.A. § 9543(a)(2). He must also establish that the issues
raised in the PCRA petition have not been previously litigated or waived.
See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state postconviction proceeding.” 42
Pa.C.S.A. § 9544(b). Our standard of review for an order denying PCRA
relief is well settled:
This Court’s standard of review regarding a PCRA court’s order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
_______________________ (Footnote Continued)
body of the brief. (See Appellant’s Brief, at 4, 9-24). Therefore, we find Appellant’s constitutional claims waived. See Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002) (claims raised in the Statement of Questions Involved but not pursued in the body of the brief are waived).
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In the instant matter, Appellant filed his PCRA petition on June 5,
2014. The PCRA provides that “[a]ny petition under this subchapter,
including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A
judgment becomes final for PCRA purposes “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 the review.” 42 Pa.C.S.A. § 9545(b)(3).
Here, the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on February 5, 2010. Therefore, Appellant’s judgment
of sentence became final on May 6, 2010, ninety days after the Pennsylvania
Supreme Court denied leave to appeal and Appellant did not file a petition
for a writ of certiorari with the United States Supreme Court. See
U.S.Sup.Ct.R. 13. Therefore, Appellant had one year, until May 6, 2011, to
file a timely PCRA petition. Because Appellant did not file his petition until
June 5, 2014, the petition is facially untimely. Thus, to obtain PCRA relief,
he must plead and prove that his claim falls under one of the statutory
exceptions to the one-year time bar provided at section 9545(b). See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully pleads and proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of
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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.
Id.
Further, a petitioner who wishes to invoke any of the above exceptions
must file the petition “within 60 days of the date the claim could have been
presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court has
repeatedly stated that it is an appellant’s burden to plead and prove that one
of the above-enumerated exceptions applies. See, e.g., Commonwealth
v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916
(2008).
Here, Appellant contends that he qualifies under the newly discovered
facts exception. (See Appellant’s Brief, at 9-16). However, Appellant’s
claim is less than coherent. (See id.). To the extent that Appellant’s claim
can be determined, he appears to aver that his new evidence consists of this
Court’s prior opinion affirming the denial of his first PCRA petition (PCRA
Decision). (See id. at 10). Appellant states that this decision “set[s] forth
new facts which establish for the very first time that his current sentence is
illegal.” (Id. at 9) (internal quotation marks omitted).
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In his appeal from the denial of his first PCRA petition, Appellant
argued that his sentence was illegal because his three PWID convictions
should have merged for purposes of sentencing. (See Durkin, supra 1527
EDA 2013, at 18). We disagreed, holding that “[e]ach of [Appellant’s] PWID
convictions were based upon his possession of three different controlled
substances located in different locations. Thus, the PWID offenses are not
predicated upon a single criminal act for merger purposes.” (Id. at 20)
(citation omitted). Appellant now argues that by holding that the three
possessory offenses were independent and not part of one single criminal
episode, this Court created a new fact. (See Appellant’s Brief, at 15).
Appellant claims this new fact proves that the Court of Common Pleas of
Bucks County did not have jurisdiction over the charges against Appellant,
as they stemmed from drug seizures in Philadelphia County, and, therefore,
his sentence is illegal. (See id. at 11-16). We disagree.
It is well-settled that a new judicial opinion does not constitute a newly
discovered fact for purposes of 42 Pa.C.S.A. § 9545(b)(1)(ii). See
Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). In fact, “[o]ur
Courts have expressly rejected the notion that judicial decisions can be
considered newly-discovered facts which would invoke the protections
afforded by section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d
759, 763 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (case
citations omitted). In Watts, our Supreme Court stated:
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Law is a principle; fact is an event. Law is conceived; fact is actual. Law is a rule of duty; fact is that which has been according to or in contravention of the rule. Put another way, A ‘fact,’ as distinguished from the ‘law,’ . . . [is that which] is to be presumed or proved to be or not to be for the purpose of applying or refusing to apply a rule of law. Consistent with these definitions, an in-court ruling or published judicial opinion is law, for it is simply the embodiment of abstract principles applied to actual events. The events that prompted the analysis, which must be established by presumption or evidence, are regarded as fact.
Watts, supra at 986-87 (some internal quotation marks and citations
omitted).
Appellant disregards this body of law and instead relies upon an
unpublished memorandum decision of this Court, Commonwealth v.
William Barrett, No. 540 EDA 2012 (Pa. Super. filed, May 5, 2013), for the
proposition that “a new factual determination can be found in the body of
decisional law.” (Appellant’s Brief, at 11). However, “an unpublished
memorandum of this Court carries no precedential weight, apart from the
parties involved in that particular case.” Midwest Financial Acceptance
Corp. v. Lopez, 78 A.3d 614, 627 n.2 (Pa. Super. 2013) (citation omitted).
Thus, Appellant has not provided any appropriate legal support for his
contention that a prior case can constitute a newly discovered fact. 4 The
4 In any event, Barrett is inapposite. In Barrett, the appellant discovered via decisions in the cases of his co-defendants that a key prosecution witness had recanted. See Barrett, supra at 3. Thus, the newly discovered fact in Barrett was not the decisions in the cases of his co- defendants, but the recantation of the witness; the prior cases merely (Footnote Continued Next Page)
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decisions in Watts and Cintora are binding precedent, and Appellant has
failed to show that he falls under the exception enunciated at 42 Pa.C.S.A. §
9545(b)(1). See Watts, supra at 987; Cintora, supra at 763.
Moreover, even if we were to hold that our PCRA Decision constituted
a newly discovered fact, Appellant’s claim would fail because he did not file
the instant PCRA petition “within 60 days of the date the claim could have
been presented.” 42 Pa.C.S.A. § 9545(b)(2). Although we issued the PCRA
Decision on March 10, 2014, Appellant, apparently relying upon the prisoner
mailbox rule,5 claims that he did not receive the decision until March 18,
2014, and thus that the sixty days should be counted, at the earliest, 6 from
that date. (See Appellant’s Brief, at 17-18).
Firstly, Appellant has not cited to any legal authority to support his
contention that for purposes of 42 Pa.C.S.A. § 9545(b)(2), the prisoner
mailbox rule deems “the date the claim could have been presented” as sixty
days from the date the prisoner received a copy of the decision rather than _______________________ (Footnote Continued)
served as the vehicle through which Barrett discovered the fact. See id. at 5-8. 5 “[T]he prisoner mailbox rule provides that a pro se prisoner’s document is deemed filed on the date he delivers it to prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012) (citation omitted); see Pa.R.A.P. 121. 6 Appellant attempts to argue, without citation to relevant legal authority that the sixty-day date should be counted from point the he “gain[ed] an understanding . . . [of] the significance” of the decision.” (See Appellant’s Brief, at 18-19).
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the date it became available. 42 Pa.C.S.A. § 9545(b)(2); (see Appellant’s
Brief, at 17-19). In any event, even if we were to use the date of March 18,
2014, Appellant still filed his petition beyond the sixty-day date. Appellant
signed his PCRA petition on June 2, 2014, seventy-six days after he received
the PCRA Decision. (See PCRA petition, 6/05/14, at 58). Thus, his PCRA
petition was not timely under the sixty-day rule. See 42 Pa.C.S.A. §
9545(b)(2).
Further, Appellant appears to contend that his petition should be
considered timely because he challenges the legality of his sentence and
such a challenge can never be waived. (See Appellant’s Brief, at 20-21).
However, in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the
Pennsylvania Supreme Court rejected a similar contention. The Fahy Court
stated, “[a]lthough legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.” Fahy, supra at 223 (citation omitted). Thus,
Appellant cannot evade the PCRA timeliness requirements based on a claim
on an illegal sentence. See id.
Appellant also appears to claim that his conviction constitutes a
fundamental miscarriage of justice. (See Appellant’s Brief, at 21-24). This
Court has held that equitable claims such as a fundamental miscarriage of
justice do not afford relief from the PCRA’s jurisdictional time-bar. See
Commonwealth v. Sattazahn, 869 A.2d 529, 536 (Pa. Super. 2005)
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(there is no legal support for claim that untimely PCRA petition can be
decided on merits if petitioner claims fundamental miscarriage of justice) .
Therefore, there is no legal support for Appellant’s claim that he can avoid
the time limit of the PCRA by claiming a fundamental miscarriage of justice.
Thus, because the record demonstrates that Appellant’s PCRA petition
is untimely with none of the statutory exceptions to the time bar proven, we
affirm the order of the trial court dismissing Appellant’s second PCRA
petition.7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/8/2015
7 Because we hold that Appellant’s PCRA petition is untimely, we need not address his contention that the trial court erred in finding that his claims were previously litigated. (See Appellant’s Brief, at 19-20).
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