J-S42041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MICHAEL GEORGE DEEP

                             Appellant                No. 1862 WDA 2015


                   Appeal from the PCRA Order July 31, 2015
     in the Court of Common Pleas of Washington County Criminal Division
                       at No(s): CP-63-CR-0001722-2005

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED SEPTEMBER 27, 2016

        Pro se Appellant, Michael George Deep, appeals from the order

dismissing his fourth petition pursuant to the Post Conviction Relief Act1

(“PCRA”).     Upon review, we affirm, though on different grounds than the

PCRA court.

        The PCRA court recited the relevant procedural history:

              On October 27, 2006, [Appellant] was convicted by a
           jury of two counts each of sexual assault, endangering the
           welfare of children, and corruption of minors relating to his
           abuse of his minor step-daughter. The presiding judge
           was Paul Pozonsky. On March 22, 2007, the trial court
           sentenced [Appellant] to an aggregate term of not less
           than fourteen but not more than forty-four years of
           incarceration. [Appellant] filed post-sentence motions that
           were denied by operation of law. He filed an appeal to the
           Superior Court which, on April 15, 2009, affirmed the

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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       judgment of sentence. [Appellant] then sought an appeal
       to the Pennsylvania Supreme Court. On October 20, 2009,
       the Supreme Court denied review.

          On August 6, 2010, [Appellant] filed his first PCRA
       petition, which was completed with the assistance of
       counsel. After issuing a Rule 907 notice of its intent to
       dismiss the petition without a hearing, see Pa.R.Crim.P.
       907(1), the trial court formally dismissed the petition on
       September 27, 2010.        On September 16, 2011, the
       Superior Court affirmed in part, vacated in part, and
       remanded for an evidentiary hearing on [Appellant’s] claim
       that trial counsel was ineffective for failing to meet with
       him prior to trial. After remand, the PCRA court held the
       ordered hearing on December 19, 2011. On May 22,
       2012, the trial court dismissed [Appellant’s] petition. On
       September 13, 2013, the Superior Court affirmed the
       dismissal.    On February 20, 2014, the Pennsylvania
       Supreme Court denied [Appellant’s] petition for allowance
       of appeal.

          On February 24, 2014, [Appellant] filed a pro se second
       PCRA petition. On March 18, 2014, the PCRA court issued
       a Rule 907 notice of its intent to dismiss [Appellant’s]
       petition without a hearing. [Appellant] filed a response to
       this notice on March 31, 2014, and, on April 8, 2014, the
       court dismissed the petition as untimely. On July 11,
       2014, [Appellant] filed a motion to file an appeal nunc pro
       tunc, which the court granted the same day. On July 31,
       2014, [Appellant] filed a notice of appeal from the court’s
       April 8, 2014 order. On August 21, 2014, while his appeal
       of the PCRA court’s April 8, 2014 order was still pending,
       [Appellant] filed a third PCRA petition pro se. On August
       29, 2014, the court dismissed Appellant’s petition on the
       basis of Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.
       2000). On September 17, 2014, [Appellant] discontinued
       his appeal of the PCRA court’s April 8, 2014 order.

          On September 23, 2014, [Appellant] timely appealed
       from the PCRA court’s August 29, 2014 order dismissing
       his third PCRA petition on the basis of a pending appeal.
       The PCRA court dismissed [Appellant’s] third PCRA petition
       pursuant to Lark, supra because his prior PCRA appeal



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          still was pending in the Superior Court. On May 5, 2015,
          the Superior Court affirmed the PCRA court’s dismissal.

PCRA Ct. Op. at 1-2.

     On June 23, 2015, the court docketed Appellant’s pro se and fourth

PCRA petition. Appellant contended he was eligible for relief only under 42

Pa.C.S.   §   9543(a)(2)(i),   “A   violation   of   the   Constitution   of   this

Commonwealth or the Constitution or laws of the United States which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” Appellant’s PCRA Pet., 6/23/15, at 2. Appellant attached Exhibit 1,

the undated findings of the grand jury convened to review evidence of

Pozonsky’s misconduct during his time as a judge.

     The grand jury findings referenced Pozonsky’s May 1, 2012 court order

to destroy evidence in sixteen separate cases, including a 2004 case

captioned Commonwealth v. Damon Reed. Ex. 1 at 9. According to the

grand jury findings, in that case, the police apprehended Mr. Reed and

retrieved “23.7 grams of cocaine base and 10.1 grams of powder cocaine as

well as 10.2 grams of marijuana.” Id. A district attorney testified that the

police evidence log indicated that the evidence was sent to Pozonsky. Id.

There is no record that the evidence was returned. Id. The next paragraph,

however, states that the box was discovered outside of Pozonsky’s

chambers, contained evidence from a prior homicide trial, and that “no




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controlled substances [were] in the box nor had any been introduced at the

trial.” Id.

      Appellant also attached Exhibit 2, a Pittsburgh Tribune-Review article

dated March 21, 2015, stating Pozonsky had pled guilty to theft by unlawful

taking, obstruction of the administration of law, and misappropriation of

entrusted property and property of government institutions on March 20,

2015, in the Court of Common Pleas of Washington County.              Other

attachments included Exhibit 3, a Pittsburgh Post-Gazette article dated

December 30, 2012, discussing Pozonsky’s resignation and subsequent

investigation by a grand jury; Exhibit 4, a Mud Flats blog post dated

December 11, 2012, discussing political controversies regarding Pozonsky’s

then-new job in Alaska; and Exhibits 5 and 6, articles from the Pittsburgh

Post-Gazette and the Pittsburgh Tribune-Review, both dated May 23, 2013,

discussing charges brought against Pozonsky after the conclusion of the

grand jury investigation.

      On July 8, 2015, the PCRA court entered an order stating its intent to

dismiss Appellant’s petition without a hearing.   The court dismissed the

petition on July 31, 2015.    On November 15, 2015, Appellant filed an

application to appeal nunc pro tunc, attaching a Notice of Appeal mailed on

August 11, 2015, which was not received by the court. The court granted




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the application on November 20, 2015, and filed a Pa.R.A.P. 1925(a) opinion

on December 14, 2015 that incorporated its July 8, 2015 order.2

        Appellant raises the following three issues for our review:

           I. Whether the lower court erred in dismissing Appellant’s
           PCRA petition based on the finding that said petition was
           untimely, where the Appellant was procedurally barred
           from filing said petition until the outcome of a then-
           pending appeal[?]

           II. Whether the lower court erred in dismissing Appellant’s
           PCRA petition based on the finding that Appellant failed to
           show bias or interest in the outcome of the proceedings by
           former judge Paul Pozonsky[?]

           III. Whether the lower court erred in dismissing Appellant’s
           PCRA petition based on the finding that former judge Paul
           Pozonsky’s misconduct began in 2011, long after
           Appellant’s trial, where legal records show that said
           misconduct began as far back as 2004, long before
           Appellant’s trial[?]

Appellant’s Brief at 2.3

        We address the timeliness of the petition as a prefatory matter.

Appellant’s first claim is that he was procedurally barred from bringing the

instant fourth petition until a prior PCRA appeal had been resolved. Id. at 6-

7. The PCRA court dismissed Appellant’s fourth PCRA petition as untimely

because it was filed more than sixty days after Pozonsky entered his guilty

plea. PCRA Ct. Op. at 4.



2
    The PCRA court did not direct Appellant to file a Rule 1925(b) statement.
3
    The Commonwealth did not file a brief.




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      It is well established that the timeliness requirements of the PCRA are

“jurisdictional in nature and must be strictly construed; courts may not

address the merits of the issues raised in a petition if it is not timely filed.”

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted). We may also affirm on any basis. Commonwealth v. Clouser,

998 A.2d 656, 661 n.3 (Pa. Super. 2010).

      The requirements for a timely PCRA petition are governed by 42

Pa.C.S. § 9545(b):

         (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:

                                  *    *    *

            (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 . . .

                                  *    *    *

         (2) Any petition invoking an exception provided in
         paragraph (1) shall be filed within 60 days of the date the
         claim could have been presented.

42 Pa.C.S. § 9545(b). Appellant has an obligation to establish jurisdiction

by alleging and proving (a) the existence of facts that were unknown to him

and (b) his exercise of due diligence in discovering those facts in order to

obtain relief. Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super.

2015). Even if a matter is of “public record,” Appellant must establish due

diligence. Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007).


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      In analyzing whether a petition falls under the Section 9545(b)(1)(ii)

exception, no analysis of the merits of Appellant’s claim is required. Id. at

1271. However, a claim based on inadmissible hearsay does not satisfy the

“new facts” exception under Section 9545(b)(1)(ii).       Commonwealth v.

Abu-Jamal, 941 A.2d 1263, 1269 (Pa. 2008). Newspaper articles, in which

a reporter relays what he or she has been told by another person, are

“double hearsay.” Commonwealth v. Castro, 93 A.3d 818, 826 (Pa.

2014).4

      In determining timeliness under Section 9545(b)(2), “when an

appellant’s PCRA appeal is pending before a court, a subsequent PCRA

petition cannot be filed until the resolution of review of the pending PCRA

petition by the highest state court in which review is sought or upon the

expiration of the time for seeking such review.” Commonwealth v. Lark,

746 A.2d 585, 588 (Pa. 2000). The date of the resolution of review (or the

date of expiration for seeking review) of the initial PCRA petition is therefore

counted as the first “date the claim could have been presented,” and the

subsequent PCRA petition must be filed within sixty days of that date. Id.




4
  Although Castro addressed after-discovered evidence in the context of a
direct appeal, its categorization of newspaper articles as hearsay has been
cited in the context of a PCRA in non-precedential decisions of this Court.
See, e.g., Commonwealth v. Enlow, No. 1969 EDA 2013 at 6 (Pa. Super.
Dec. 22, 2014) (unpublished memorandum).




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        Instantly, because Appellant has attached multiple exhibits spanning

years, we engage in a two-step analysis for determining the instant PCRA

petition’s timeliness. First, under Section 9545(b)(1)(ii), we must consider

whether the facts underlying Appellant’s claim qualify as “new facts,” were

unknown to the petitioner, and could not have been ascertained by the

exercise of due diligence.     If so, then we consider whether the instant

petition is timely filed under the requirements of Section 9545(b)(2) and

Lark.

        Although the facts underlying Appellant’s claim were likely unknown to

him, the vast majority of the exhibits that Appellant attaches are newspaper

articles containing inadmissible hearsay and do not qualify as “new facts”

under Section 9545(b)(1)(ii). See Abu-Jamal, 941 A.2d at 1269; see also

Castro, 93 A.3d at 826.       The sole potential exception is Exhibit 1, the

findings of the state grand jury, which were published sometime before May

23, 2013.5

        However, Exhibit 1 does not fulfill the requirement of Section

9545(b)(2), because Appellant did not file the petition within sixty days of

when the claim could have first been presented on May 23, 2013. Indeed,

Appellant could have incorporated the claims in his second or third PCRA


5
  Although the findings are undated, Exhibits 5 and 6 were published in late
May 2013 and referenced charges being brought against Pozonsky based on
the findings of the grand jury.




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petitions, both of which were filed in 2014. See PCRA Ct. Op. at 1-2; Lark,

746 A.2d at 588. Appellant offers absolutely no explanation as to why he

did not raise these claims in his previous PCRA petitions and presents no

claim that would excuse this untimeliness. See Brown, 111 A.3d at 177.

Therefore, Appellant’s petition does not meet the requirements of Section

9545(b)(1)(ii) for an exception to the one year PCRA time-bar and the PCRA

court lacked jurisdiction over his untimely petition.6    See 42 Pa.C.S. §




6
  Regardless, Appellant failed to establish that the trial court committed two
alleged errors while purportedly under the influence of narcotics. See
Appellant’s Brief at 8-9. First, with respect to his Brady claim, Appellant
does not explain (1) how the photographs were exculpatory or impeaching
evidence and (2) how the Commonwealth withheld or suppressed them, and
thus he waived this argument. See generally Commonwealth v. Cam Ly,
980 A.2d 61, 75 (Pa. 2009). The Commonwealth’s expert testified that for
the past fourteen years, she has not publicly exhibited photographs of the
victim’s genitals because of a strong sense of privacy and because her report
and photographs are peer reviewed. N.T. Trial, 10/25/06, at 59. Regardless,
the Commonwealth introduced other photographs of the victim’s genitals,
and Appellant’s expert viewed those photographs and rendered an opinion.
N.T. Trial, 10/26/06, at 128. Second, Appellant did not establish the trial
court abused its discretion by permitting rebuttal testimony.              The
Commonwealth’s expert was called to rebut Appellant’s expert’s testimony
that “forced penetration would cause . . . lacerations, scarring and
abrasions.” N.T. Trial, 10/27/06, at 20. The Commonwealth’s expert
countered that sexual assaults on young women commonly lack such indicia
of trauma. Id. at 21. She explained the assault is

        done in a way it’s not also a physically violent force. It’s
        intended not to hurt them, and often times the young
        woman doesn’t know what’s going on and often does not
        fight physically. We often will see acute sexual assaults
        where there is not the injury you described.




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9545(b); Walters, 135 A.3d at 591.            Accordingly, having discerned no

abuse of discretion or error of law, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/27/2016




Id. at 21-22. We discern no error by the trial court in permitting this
rebuttal testimony; it was for the jury to evaluate the experts’ competing
testimony.




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