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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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