J-S56041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KURT MICHAEL DANYSH,

                            Appellant                 No. 954 MDA 2014


                  Appeal from the Order Entered April 23, 2014
             in the Court of Common Pleas of Susquehanna County
               Criminal Division at No.: CP-58-CR-0000132-1996


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 05, 2014

        Appellant, Kurt Michael Danysh, appeals pro se from the order denying

his “Motion to Place Petition (letter to the [c]ourt of March 9, 2000) [sic] in

Active Status for Hearing and Disposition on the Merits.” 1 Appellant, a serial

petitioner, fails to plead or prove any of the three statutory exceptions to the

time bar for collateral relief under the Post Conviction Relief Act (PCRA).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        We summarize only the most relevant portions of the voluminous

history in this case. Our predecessor panel provided a concise but through

recitation of the prior procedural history.        (See Commonwealth v.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Although the order on appeal is dated April 21, 2014, it was not filed until
April 23, 2014. We have amended the caption accordingly.
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Danysh, No. 386 MDA 2009 at 1-3 (Pa. Super. filed November 12, 2009)

(unpublished memorandum)).

        On April 25, 1996, using a stolen handgun, Appellant shot his father in

the back of the head, stole money ($31.00), and took his father’s pick-up

truck. Appellant gave three statements to the police admitting these crimes.

        On October 9, 1997, Appellant entered a negotiated plea of guilty to

third degree murder in the death of his father.2 In exchange for the plea to

murder of the third degree, the Commonwealth agreed to withdraw the

charge of first degree murder, and pursuit of a death penalty sentence. On

November 20, 1997, the trial court sentenced Appellant to an aggregate

term of not less than twenty-two and a half nor more than sixty years’

incarceration. This Court affirmed judgment of sentence on April 7, 1999.

(See Commonwealth v. Danysh, 738 A.2d 1049 (Pa. Super. 1999)

(unpublished memorandum)).

        Thereafter, Appellant embarked on a decade long odyssey in pursuit of

post-sentence relief, pro se as well as counseled.       Most notable among

numerous claims, Appellant alleged that he was entitled to an exception to

the time-bar on the ground of after-discovered evidence, namely, diminished

mental capacity to commit the crimes to which he pleaded guilty, based on




____________________________________________


2
    Appellant also entered an open plea to the charge of robbery.



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his use of Prozac. In a companion argument, he claimed his use of Prozac

precluded a knowing, voluntary and intelligent guilty plea.

       In 2004, this Court vacated a denial of Appellant’s claim for PCRA relief

and remanded for a hearing on Appellant’s various Prozac related claims. In

an extensive, detailed opinion filed after the evidentiary hearing, the PCRA

court explained its reasoning for concluding, after review, that Appellant’s

claims did not plead or prove an exception to the statutory time bar, and

that his petition was, consequently, untimely.          (See PCRA Court Opinion,

5/23/05, at 1-14).

       Specifically, the PCRA court found, inter alia, that undisputed evidence

of a previous history of violence, including a Protection From Abuse Order his

Father had obtained against him, contradicted Appellant’s claim that he was

only acting under the influence of recently prescribed Prozac, (which, in any

event, he took in excess of the prescribed dosage).

       Furthermore, the PCRA court found that prior to entering his guilty

plea, Appellant and several counsel thoroughly investigated the prospects of

a Prozac defense.3 This investigation included the retention of an expert, Dr.

Gary Glass, who evaluated Appellant and determined that he was not insane

and was competent to stand trial.                The PCRA court determined that
____________________________________________


3
   See also Danysh v. Eli Lilly and Co., 2011 WL 4344595, 3 (M.D. Pa.
filed September 15, 2011) (granting summary judgment in favor of Eli Lilly
on Appellant’s claim that use of Prozac caused him to murder his father).




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Appellant’s claim of newly discovered evidence was merely cumulative of a

defense available to him prior to the guilty plea, which he chose not to

pursue. (See id. at 9).

      Additionally, the PCRA court found that even if it accepted Appellant’s

proffered evidence, he would be unable to show that a different verdict

would result. (See id.). Finally, the PCRA court found Appellant’s credibility

to be suspect. (See id. at 13).

      This Court concluded that the PCRA court’s findings were supported by

the record and free of legal error, expressly affirming the denial of PCRA

relief on the basis of the PCRA court opinion.       (See Commonwealth v.

Danysh, No. 1051 MDA 2005 at 5 (Pa. Super. filed June 2, 2006), appeal

denied, 911 A.2d 933 (Pa. filed November 9, 2006)).

      On or about October 16, 2008, Appellant filed what he calculates to be

his third petition for post conviction relief, challenging the “lawfulness” of his

guilty plea and requesting the appointment of counsel.        That petition was

denied as untimely.     Appellant filed a timely, counseled notice of appeal.

This Court, concluding Appellant’s petition was untimely with no statutory

exception to the time bar proven, affirmed the denial of PCRA relief.

(Commonwealth v. Danysh, 988 A.2d 717 (Pa. Super. 2009) (unpublished

memorandum)).

      Appellant filed the instant pro se claim, his “Motion to Place Petition In

Active Status [etc.]” on or about November 8, 2013. This motion purports

to relate back to Appellant’s letter of March 9, 2000, requesting the

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appointment of counsel to file a motion to withdraw his guilty plea. 4       The

PCRA court denied the motion.             (See Order, dated April 21, 2014, and

docketed April 23, 2014). In an opinion accompanying the order, the PCRA

court reasoned that Appellant’s request for appointment of counsel to

withdraw his guilty plea did not constitute a ground for relief cognizable

under the PCRA, concluding that the letter was not a “proper petition for

post-conviction relief.”     (PCRA Court Opinion, 4/23/14, at 2).   This appeal

followed.

       Appellant presents two questions for our review on appeal.

             I. Did the [PCRA] court commit legal error in determining
       that [Appellant’s] timely pro se request for post-conviction relief
       did not raise a ground cognizable under the PCRA?

             II. Did the [PCRA] court commit legal error in failing to
       appoint counsel to represent [Appellant] in response to his
       timely pro se request for post-conviction relief irregardless [sic]
       of whether the request included a ground cognizable under the
       PCRA?

(Appellant’s Brief, at 3).



____________________________________________


4
  Notably, Appellant refers to and even purports to quote from this letter,
but does not provide a copy, and on review there appears to be none in the
certified record. (See Appellant’s Brief, at 4; see also Commonwealth’s
Brief, at 4) (noting absence of March 9, 2000 letter from certified record).
However, the PCRA court does not dispute the accuracy of the copy of its
response letter to Appellant, dated March 28, 2000, which acknowledges
receipt of the March 9, 2000 letter, summarizes the relief requested, and
advises Appellant to file a petition for post conviction collateral relief. (See
Letter of President Judge Kenneth W. Seamans to Kurt Danysh, 3/29/2000).



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      Appellant claims entitlement to PCRA relief pursuant to section

9543(a)(2)(iii), for a conviction or sentence resulting from “[a] plea of guilty

unlawfully induced where the circumstances make it likely that the

inducement caused the petitioner to plead guilty and the petitioner is

innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii); (see Appellant’s Brief, at 6). We

disagree.

      Our standard and scope of review for the denial of PCRA relief are

well-settled.

            On appeal from the denial of PCRA relief, our standard and
      scope of review is limited to determining whether the PCRA
      court’s findings are supported by the record and without legal
      error. Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d
      94, 97 n. 4 (2001). Our review of questions of law is de novo.
      Commonwealth v. Fahy, 598 Pa. 584, 959 A.2d 312, 316
      (2008).

             A PCRA petition, including a second or subsequent petition,
      must be filed within one year of a final judgment, unless the
      petitioner alleges and proves that he is entitled to one of three
      exceptions to this general rule, and that the petition was filed
      within 60 days of the date the claim could have been presented:

                (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;




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               (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.

              (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).

Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013), cert. denied,

134 S. Ct. 639 (2013).

            Before we may address the merits of Appellant’s
     arguments, we must first consider the timeliness of Appellant’s
     PCRA petition because it implicates the jurisdiction of this Court
     and the PCRA court. Commonwealth v. Davis, 86 A.3d 883,
     887 (Pa. Super. 2014) (citation omitted). Pennsylvania law
     makes clear that when “a PCRA petition is untimely, neither this
     Court nor the trial court has jurisdiction over the petition.”
     Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super.
     2014) (citation omitted). The “period for filing a PCRA petition is
     not subject to the doctrine of equitable tolling; instead, the time
     for filing a PCRA petition can be extended only if the PCRA
     permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d
     173, 177 (Pa. 2014) (internal quotation marks and citation
     omitted). This is to “accord finality to the collateral review
     process.” Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980,
     983 (Pa. 2011) (citation omitted).        “However, an untimely
     petition may be received when the petition alleges, and the
     petitioner proves, that any of the three limited exceptions to the
     time for filing the petition, set forth at 42 Pa.C.S.A.
     § 9545(b)(1)(i), (ii), and (iii), are met.” Commonwealth v.
     Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).




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Commonwealth v. Miller, 2014 WL 4783558, at *3 (Pa. Super. filed

September 26, 2014).


      Here, we lack jurisdiction to review the merits of Appellant’s claims.

His petition is untimely, with none of the three statutory exceptions to the

time bar pleaded or proven. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Further, our review of the record confirms that Appellant has already

had the benefit of a counseled PCRA petition, an evidentiary hearing, and,

inter alia, a review of the merits of his Prozac associated claims.     (See

Danysh, No. 1051 MDA 2005 supra). It bears noting, as observed by the

PCRA court, that Appellant does not plead that he ever raised the issue of

his purported claim for relief in 2000 in any of his three previous PCRA

petitions. Therefore, the instant claims, even if otherwise cognizable, would

be waived. See 42 Pa.C.S.A. § 9543(a)(3) (requiring that the allegation of

error has not been previously litigated or waived).

      Moreover, even if we were to assume, contrary to fact, that Appellant

presented a cognizable claim for PCRA relief, not otherwise waived, he failed

to present it within sixty days of the date the claim could have been

presented.   See 42 Pa.C.S.A. § 9545(b)(2).      It would be waived for that

reason as well.

      Our reasoning differs somewhat from that of the PCRA court.

However, “we may affirm the PCRA court’s decision on any basis.”




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Commonwealth v. Charleston, 94 A.3d 1012, 1028 (Pa. Super. 2014)

(citation omitted).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




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