J-S03015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

KARL K. MYERS,

                          Appellant                   No. 2479 EDA 2018


             Appeal from the PCRA Order Entered July 24, 2018
            In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0004755-2011

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 16, 2019

      Appellant, Karl K. Myers, appeals from the order dismissing, as

untimely, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. After careful review, we vacate the PCRA court’s

order denying relief and remand for further proceedings.

      The facts leading to Appellant’s conviction are not germane to this

appeal.   On November 7, 2013, the trial court sentenced Appellant to an

aggregate term of 14-30 years’ incarceration, following his conviction for

      one count each of corrupt organization, 18 Pa.C.S. § 911(b)(3);
      dealing in proceeds of unlawful activities, 18 Pa.C.S. §
      5111(a)(1); conspiracy, 18 Pa.C.S. § 903(a); three counts of
      criminal use of a communication facility, 18 Pa.C.S. § 7512(a);
      and four counts each of possession of cocaine, 35 P.S. § 780-
      113(a)(16); and possession of cocaine with the intent to deliver
      35 P.S. § 780-113(a)(30).
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Commonwealth v. Myers, No. 3243 EDA 2013, unpublished memorandum

at 1 n.1 (Pa. Super. filed December 23, 2014). This Court affirmed Appellant’s

conviction,   and   our   Supreme   Court   declined   further   review.      See

Commonwealth v. Myers, 116 A.3d 697 (Pa. Super. 2014) (unpublished

memorandum), appeal denied, 114 A.3d 1039 (Pa. 2015).

      Appellant filed a timely, counseled PCRA petition, his first, on September

21, 2015. Therein, Appellant raised claims asserting the ineffectiveness of

trial counsel.   The PCRA court denied his petition.     We affirmed, and our

Supreme Court denied further review. Commonwealth v. Myers, 2017 WL

591216 (Pa. Super. 2017), appeal denied, 170 A.3d 1036 (Pa. 2017).

      Appellant filed the current, facially untimely, pro se PCRA petition on

July 3, 2018. The PCRA court issued notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907 on July 9, 2018. Appellant

filed a timely response thereto on July 19, 2018. On July 23, 2018, the PCRA

court dismissed the petition. Appellant filed a timely notice of appeal, and a

timely, court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued

its Rule 1925(a) opinion on October 22, 2018.

      Appellant now presents the following questions for our review:

      1. Whether the PCRA court erred by dismissing … Appellant’s PCRA
      petition without holding an evidentiary hearing when Appellant
      received ineffective assistance of trial counsel where counsel failed
      to communicate a second plea offer?

      2. Whether the PCRA [c]ourt erred by dismissing … Appellant’s
      PCRA Petition without holding an evidentiary hearing when
      Appellant received ineffective assistance of PCRA [c]ounsel who


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      represented Appellant while burdened under a conflict of interests
      by prosecuting a PCRA action against a member of her law firm?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.        Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition alleges
         and the petitioner proves that:

            (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


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              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).        Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).1

       Regarding Appellant’s first claim, he asserts that he has met the newly-

discovered facts exception set forth in Section 9545(b)(1)(ii), based on the

following:

              Concerning the newly discovered facts exception, Appellant
       states that on or about May 12, 2018, he received a letter dated
       May 9, 2018, from A. Charles Peruto, Jr. Attorney Peruto at this
       point was the former employer of Mr. De[S]ipio and Ms. Capuano.2
       Attorney Peruto had been the trial attorney for one of Appellant’s
       co-defendants, Anthony Dennis, who pled guilty three days before
       trial and received a 10-20 year sentence. The letter provided to
       Appellant [stated that] the previously unknown fact that a second
       plea offer for 4-8 years[’] incarceration had been extended by the
       Commonwealth prior to Appellant[’]s trial and that this offer was
       not communicated to him by Mr. DeSipio.

Appellant’s Brief at 4-5. As noted above, Appellant filed the instant, pro se

PCRA petition on July 3, 2018, thereby satisfying the requirements of Section

9545(b)(2).

       The PCRA court dismissed the petition on jurisdictional grounds, finding

that Appellant failed to meet any of the PCRA statute’s timeliness exceptions.
____________________________________________


1Section 9545(b)(2) was recently amended to extend this deadline from 60
days to one year.

2   Attorney DeSipio was Appellant’s trial counsel.       Attorney Capuano
represented Appellant on the direct appeal and as his PCRA counsel during the
litigation of his first PCRA petition.

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Specifically, the PCRA court ruled that Appellant failed to sufficiently plead and

prove that he acted with due diligence in discovering the existence of the

allegedly uncommunicated plea offer described in Attorney Peruto’s letter.

The PCRA court’s analysis of this matter, in its entirety, is as follows:

      It is this letter that [Appellant] hangs his hat on; however, there
      is no explanation as to how Attorney Peruto, who was never Myers’
      attorney, and was in fact an attorney for [Appellant’s] co-
      defendant at the time of trial, came to write this letter, and there
      is no verification that indeed the author of the letter is Attorney
      Peruto. Not only does his claim suffer this infirmity; but also, that
      because little to nothing is known about the origins and
      authenticity of this letter, [Appellant] cannot establish due
      diligence in obtaining this information.2
         2 Further, although this [c]ourt recognizes that it lacks
         jurisdiction to entertain the substantive merits of the
         underlying claim, the record glaringly contradicts
         [Appellant’s] claim and the testimony of Attorney DeSipio at
         the February 5, 2016[] PCRA hearing in regard to
         [Appellant’s] first PCRA petition, contradicted his claim
         herein. Attorney DeSipio who this [c]ourt found credible at
         that time, stated that there was never any offer by the
         Commonwealth if [Appellant] did not cooperate and testify.
         []PCRA Hearing[,] 2/5/16[, at] 18[].

PCRA Court Opinion (PCO), 10/22/18, at 6.

      We agree with Appellant that the PCRA court’s analysis is neither

“supported by the evidence of record” nor “free of legal error.” Ragan, 923

A.2d at 1170. First, the PCRA court questioned the authenticity of Attorney

Peruto’s letter, but did so without the benefit of an evidentiary hearing.

Hence, there is no evidence of record demonstrating, or even tending to

demonstrate, that the letter is, in fact, not authentic.




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       Second, the PCRA court questions how Attorney Peruto came to discover

the newly-discovered fact conveyed in his letter.          If the PCRA court is

suggesting that Attorney Peruto had no such knowledge, it has come to that

factual conclusion without the benefit of an evidentiary hearing, and based

purely on conjecture.3 Thus, there is also no support in the evidence of record

for the court’s doubts regarding the credibility of the claim set forth in Attorney

Peruto’s letter.

       Third, to the extent that the PCRA court’s conclusion rests on Appellant’s

failure to act diligently in discovering the newly-discovered fact at issue, we

note that: “Due diligence is fact-specific, to be determined case-by-case; it

does not require perfect vigilance and punctilious care, but merely a showing

the [party] has put forth a reasonable effort.” Commonwealth. v. Selenski,

994 A.2d 1083, 1089 (Pa. 2010). Here, Appellant complains that the PCRA

court baldly invoked the due diligence element of Section 9545(b)(1)(ii)

without reference to the facial import of the letter he received from Attorney
____________________________________________


3  To the contrary, Appellant avers that Attorney Peruto has acted as his
attorney “since 1995” in various matters.           Appellant’s Brief at 17.
Furthermore, as the PCRA court acknowledged, Attorney Peruto served as co-
defendant’s counsel at Appellant’s trial. PCO at 6. Moreover, as was revealed
at the prior PCRA hearing, Appellant’s trial attorney, Mr. DeSipio, was
employed by Attorney Peruto at the time of Appellant’s trial. See PCRA
Hearing, 2/5/16, at 6. Indeed, all three co-defendants were represented by
Attorney Peruto’s law firm. Id. at 11. Hence, it would not be remarkable at
all if Attorney Peruto possessed knowledge about plea offers conveyed by the
Commonwealth to Mr. DeSipio prior to Appellant’s trial. Whether or not that
is the case is an issue of material fact to be determined at an evidentiary
hearing.



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Peruto. Appellant asserts that he had “no information that should have alerted

him to be diligent and to begin a search for a second offer.”4 Appellant’s Brief

at 21. We agree.

       This Court cannot imagine what reasonable steps Appellant could have

possibly taken to discover the information contained in Attorney Peruto’s letter

before his receipt of that letter. Notably, the PCRA court fails to suggest any

for our consideration, and offers scant analysis in support of its decision. After

having the first plea offer communicated to him by his trial counsel, there

would be no reason for Appellant to think that another plea offer was conveyed

to, but not disclosed by, that same attorney. Prior to Appellant’s receipt of

the letter, it would have been purely fanciful for him to investigate the

existence of another plea offer. Indeed, to suggest that it would be reasonable

for Appellant, or any other prisoner in similar circumstances, to investigate

such farfetched matters is to invite the constant harassment of witnesses,

prosecutors, and defense attorneys for years or decades after every criminal

case in which a significant term of incarceration is imposed. Accordingly, we

reject, as a matter of law, the PCRA court’s finding that Appellant failed to

exercise due diligence in the discovery of the information contained in

Attorney Peruto’s letter, as due diligence “does not require perfect

vigilance[.]” Selenski, 994 A.2d at 1089.

____________________________________________


4 As was established at the first PCRA hearing, Attorney DiSipio conveyed to
Appellant a plea deal of 3-6 years’ incarceration, conditioned on his
cooperation with the Commonwealth.

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      Finally, because we “may affirm on any legal basis supported by the

certified record[,]” we turn to address the PCRA court’s alternative analysis

that rejects the merits of Appellant’s claim. Commonwealth v. Williams,

125 A.3d 425, 433 n.8 (Pa. Super. 2015). The PCRA court states:

      Further, although this [c]ourt recognizes that it lacks jurisdiction
      to entertain the substantive merits of the underlying claim, the
      record glaringly contradicts [Appellant’s] claim and the testimony
      of Attorney DeSipio at the February 5, 2016[] PCRA hearing in
      regard to [Appellant’s] first PCRA petition, contradicted his claim
      herein. Attorney DeSipio[,] who this [c]ourt found credible at that
      time, stated that there was never any offer by the Commonwealth
      if [Appellant] did not cooperate and testify.

PCO at 6 n.2 (citing PCRA Hearing, 2/5/16, at 18).

      The PCRA court’s alternative analysis is belied by the record.         As

Appellant points out, see Appellant’s Brief at 22-24, the PCRA court has

misconstrued the nature of Attorney DeSipio’s testimony. Attorney DeSipio

did not testify that there was never any other plea offer. Attorney DeSipio

was asked, “if [Appellant] didn't testify … what would have been the plea at

that point … [i]f there was one[?]” PCRA Hearing, 2/5/16, at 18. Attorney

DeSipio answered, “I don’t recall if there even was one.” Id. (emphasis

added). Clearly, Attorney DeSipio testified that he did not remember if such

a plea had been offered, not, as the PCRA court suggests, that no such offer

had been made. Moreover, even if Attorney DeSipio had testified as the court

described, the court’s credibility determination was premised on the absence

of the at-issue, newly-discovered evidence. Accordingly, we reject the PCRA

court’s alternative analysis, and decline to affirm on that basis.


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      Accordingly, we vacate PCRA court’s order denying relief, and remand

for an evidentiary hearing to address the merits of Appellant’s claim that his

trial attorney provided ineffective assistance of counsel by failing to convey a

plea offer made by the Commonwealth.

      In his second issue, Appellant asserts that he received ineffective

assistance of PCRA counsel during the litigation of his first, timely PCRA

petition, because his PCRA attorney, Attorney Capuano, was also a member

of Attorney Peruto’s law firm and, therefore, ostensibly had a conflict of

interest. Appellant attempts to invoke Section 9545(b)(1)(ii) on the basis that

he did not know this constituted a conflict of interest until after he learned of

Attorney Capuano’s relationship       to   Attorney Peruto’s law      firm   in a

conversation he purportedly had with a friend a week after he received

Attorney Peruto’s letter.

      The PCRA court found that this claim could not meet the requirements

of   Section   9545(b)(1)(ii)   because    Appellant   “provided   absolutely   no

explanation as to what he did to protect his own interests to find out if indeed

Attorney DeSipio and Attorney Capuano had be[en] attorneys at the same

firm at the time of his [first] PCRA [petition].” PCO at 7. The court further

opined that: “[I]t is hard to believe that [Appellant] could not have known

this.” Id.

      Appellant concedes that he “knew that both [A]ttorneys [Capuano and

DeSipio] worked for [Attorney] Peruto … and never stated otherwise.”

Appellant’s Brief at 28.    However, in a long-winded (but not ineloquent)

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diatribe, see id. at 28-33, Appellant excoriates the PCRA court for, essentially,

permitting Attorney Capuano to represent him during PCRA proceedings,

given the potential (or actual) conflict of interest presented by her

representation of Appellant while being a member of Attorney Peruto’s law

firm. This begs the question: Was the PCRA court’s ostensibly wrongful

conduct not also known to Appellant at an earlier time? Was he not present

during those proceedings?

      Appellant claims such questions are irrelevant. He asserts:

      What … Appellant didn’t know at the time, and what he was not
      required or expected to know, and what judges and attorneys are
      required and expected to know, was that a PCRA Hearing is illegal,
      and void ab initio if PCRA [c]ounsel and [t]rial [c]ounsel are
      members of the same firm.

Appellant’s Brief at 33. Hence, Appellant’s newly-discovered fact is not that

he was previously unware of Attorney Capuano’s relationship to Attorney

DeSipio and Attorney Peruto, but his discovery of legal rules that pertain to

that relationship. However, it is well-established that the discovery of such

legal knowledge cannot satisfy the newly-discovered fact exception to the

PCRA’s timeliness requirements.

      Appellant is correct in identifying that the appearance of a conflict of

interest existed.   It is true that a PCRA “petitioner alleging ineffective

assistance of counsel may not be represented by an attorney from the same

office as the allegedly ineffective attorney[.]” Commonwealth v. Wright,

374 A.2d 1272, 1273 (Pa. 1977). In Wright, the Supreme Court cited and

approved of this Court’s prior decision in Commonwealth v. Crowther, 361

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A.2d 861 (Pa. Super. 1974).        In Crowther, the appellant alleged the

ineffectiveness of his plea counsel, and further sought the appointment of new

post-conviction counsel because both his post-conviction counsel and his plea

counsel were members of the Lancaster County Public Defenders Office.

Crowther, 361 A.2d at 861.       The post-conviction court denied Crowther’s

request for new counsel. On appeal, the Crowther Court reversed, holding

that the appellant was entitled the appointment of counsel from outside the

Lancaster County Public Defenders Office.       Id. at 862.    Notably, neither

Wright nor Crowther involved the attempted invocation of the newly-

discovered evidence exception to the PCRA’s time bar (or its predecessor in

the Post Conviction Hearing Act).      Rather, the courts remanded for the

appointment of new counsel during the very appeal in which appellate

counsel’s conflict of interest had been raised, pro se, by the appellant in those

cases. Wright and Crowther were decided in the 1970s, decades before

Appellant’s conviction. Thus, they were certainly discoverable by Appellant

long before his current, facially untimely pro se PCRA petition was filed.

Indeed, they were discoverable while he was being represented by Attorney

Capuano.

      Nevertheless, these decisions, and any Rules of Professional Conduct

governing conflicts of interest, are not “facts” within the meaning of Section

9545(b)(1)(ii). As our Supreme Court held in Commonwealth v. Watts, 23

A.3d 980 (Pa. 2011), “judicial determinations are not facts.” Watts, 23 A.3d

at 986. The Watts Court further opined:

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      Black’s Law Dictionary explains the distinction thusly: “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.” Black's Law Dictionary 592 (6th ed.
      1991). 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.” Id.
      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.

Id. at 986–87.

      Indeed, in Watts, the Supreme Court rejected the notion that Section

9545(b)(1)(ii) could be satisfied by a brand new decision of law.            Here,

Appellant asserts that his personal discovery of already well-established legal

precedent and ethical rules should satisfy the newly-discovered fact exception

to the PCRA’s timeliness requirements. Logically, if a wholly new decision or

rule of law cannot satisfy Section 9545(b)(1)(ii), then a relatively ancient one

cannot either. As Appellant concedes that he was previously aware of the fact

that Attorney Capuano worked for Attorney Peruto’s law firm while she

represented him during his prior PCRA proceedings, he cannot meet the

requirements of Section 9545(b)(1)(ii). Accordingly, the PCRA court properly

ruled that it lacked jurisdiction to consider Appellant’s second issue.

      Order vacated.     Case remanded for a PCRA hearing.           Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/19




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