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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVALIN CHARLES BENNETT
Appellant No. 842 WDA 2016
Appeal from the PCRA Order April 12, 2016
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001402-1998, CP-02-CR-0001759-
1998, CP-02-CR-0001761-1998
BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 26, 2017
Appellant, Davalin Charles Bennett, appeals from the order entered
April 12, 2016, denying as untimely his serial petition for collateral relief
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,
following a trial resulting in his conviction for first degree murder and
violations of the Uniform Firearms Act.1 We affirm.
We adopt the following statement of facts from the PCRA court’s
opinion, which in turn is supported by the record. See PCRA Court Opinion
(PCO), 9/28/16, at 1-3. In April 1999, a jury convicted Appellant of criminal
homicide and two counts of unlawful possession of a firearm. He received a
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1
18 Pa.C.S. § 2501, 6106.
*
Former Justice specially assigned to the Superior Court.
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mandatory life sentence for homicide and a consecutive seven to fourteen
years of incarceration for the firearms charges.
Appellant’s judgment of sentence was affirmed on December 20, 2000,
and he did not seek review with the Pennsylvania Supreme Court.2 See
Commonwealth v. Bennett, 901 WDA 1999 (unpublished judgment order
at 1).
Appellant untimely filed his first PCRA petition on July 26, 2011,
averring that he was entitled to relief based upon newly discovered
evidence, namely, an affidavit from a witness recanting the statement he
had given to police. Appointed counsel submitted a Turner/Finley3 “no
merit” letter, which the court granted. The petition was dismissed as
untimely filed. Appellant timely appealed, and the dismissal was affirmed.
See Commonwealth v. Bennett, 69 A.3d 1299 (Pa. Super. 2013)
(unpublished memorandum), appeal denied, 621 A.3d 699 (Pa. 2013).
Appellant pro se filed a second PCRA petition, which the court
dismissed as untimely. Appellant timely appealed, and the dismissal of his
petition was affirmed. See Commonwealth v. Bennett, 125 A.3d 447
(Pa. Super. 2015) (unpublished memorandum).
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2
Appellant waived all of his claims on appeal due to a failure to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b), and his appeal was disposed by judgment order.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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On January 25, 2016,4 Appellant filed the instant PCRA petition,
arguing that his counsel was ineffective for failing to preserve his appellate
rights. Appellant also raised, but did not plead or develop argument, a
boilerplate claim of governmental interference. The PCRA court sent notice
of intent to dismiss pursuant to Pa.R.Crim.P. 907, and dismissed Appellant’s
petition as untimely. Appellant timely appealed.5 The trial court issued an
opinion.
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4
The PCRA court opinion states that Appellant filed his petition on February
5, 2016, however, the docket reflects that the petition was filed January 25,
2016.
5
By order docketed June 24, 2016, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b) on or before September 26, 2016. There is no indication on the
docket or in the record that Appellant filed this statement. See
Commonwealth v. Castillo, 88 A.2d 775, 780 (Pa. 2005) (holding that any
issue not included in a Pa.R.A.P. 1925(b) statement is deemed waived).
Prior to finding waiver, however, we must look to the language of the order.
See Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88
A.3d 222, 225 (Pa. Super. 2014) (en banc). In “determining whether an
appellant has waived his issues on appeal based on noncompliance with
Pa.R.A.P. 1925, it is the trial court’s order that triggers an appellant’s
obligation.” Id.
An examination of the trial court’s order reveals that it does not comply with
Pa.R.A.P. 1925(b)(3), in that it does not specify that 1) the statement shall
be served on the judge pursuant to paragraph (b)(1), or 2) any issue not
properly included in the Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived. See Pa.R.A.P. 1925(b)(3)(i)-(iv).
Accordingly, we decline to find waiver in this instance. See, e.g., Berg v.
Nationwide Mut. Ins. Co. Inc., 6 A.3d 1002, 1010 (Pa. 2010) (declining to
find waiver where appellants substantially complied with language of trial
court order).
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On appeal, Appellant raises the following issue for our review:
Reversible error was committed when [the PCRA] court
dismissed Appellant’s petition nunc pro tunc seeking to restore
his appellate rights under ineffective assistance of counsel claims
that his counsel failed to file a 1925(b) concise statement of
matters complained of on appeal.
Appellant’s Brief at 3.6
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. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(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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6
We further note that Appellant’s Brief does not comply with the Rules of
Appellate Procedure, as it does not include page numbering, a table of
contents, or a table of citations. See Pa.R.A.P. 2173-2174. Nor does his
argument reference the record to support his claims. See Pa.R.A.P.
2119(c).
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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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Appellant admits his petition is patently untimely.7 Accordingly, in
order to reach the merits of his issues, he must plead and prove one of the
exceptions to the time bar. See Bennett, 930 A.2d at 1267. Appellant’s
brief makes reference, in a scattershot fashion, to a number of issues
without particularly developing any of them.
First, Appellant claims that all prior counsel were ineffective for failure
to preserve his appellate rights. See Appellant’s Brief at 6. However, this
issue does not evade the time bar without pleading an applicable exception.
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7
Appellant’s judgment of sentence became final on January 19, 2001, at the
expiration of his thirty days to petition for allowance of appeal to the
Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment of
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking the review). Accordingly, he had until January 2002 to
timely file a petition seeking collateral relief.
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Bennett, 930 A.2d at 1267. Further, it has been previously litigated. See
PCRA Court Opinion (PCO), 10/26/12, at 4; see also Bennett, 69 A.3d at
1299; see also Commonwealth v. Collins, 888 A.2d 564, 570 (noting
that an issue is previously litigated if the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue); see also 42 Pa.C.S. § 9544(a)(2).
Next, Appellant baldly claims that he qualifies for the “after-discovered
facts” exception to the timeliness requirement, though he does not articulate
what those facts might be. See Appellant’s Brief at 7. Accordingly,
Appellant has waived this argument for purposes of appeal. See Pa.R.A.P.
2119(a)-(c); see also Commonwealth v. Knox, 50 A.3d 732, 748 (Pa.
Super. 2012) (“[T]he argument portion of an appellate brief must be
developed with a pertinent discussion of the point which includes citations to
the relevant authority.”)
Further, Appellant claims that the failure to correct appellate counsel’s
failure to file a Pa.R.A.P. 1925(b) statement amounts to governmental
interference. See Appellant’s Brief at 11-12. As noted, supra, Appellant has
previously litigated the issue of counsel’s failure to file his Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Further, he has waived this
issue for failure to properly develop it, as he has not articulated how or
which governmental officials interfered in his right to file his appeal. See
Pa.R.A.P. 2119(a)-(c); see also Commonwealth v. Knox, 50 A.3d 732,
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748 (Pa. Super. 2012) (“[T]he argument portion of an appellate brief must
be developed with a pertinent discussion of the point which includes citations
to the relevant authority.”)
Appellant’s petition is untimely, and he has not satisfied a timeliness
exception to the requirements of the PCRA. Consequently, the PCRA court
was without jurisdiction to review the merits of Appellant’s claim, and
properly dismissed his petition. See Ragan, 932 A.2d at 1170.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2017
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Com. v. Bennett, D.
Combined Opinion