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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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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J-S35038-15


      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

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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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J-S35038-15


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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