J-S36014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL DUKES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 78 WDA 2022

Appeal from the PCRA Order Entered December 23, 2021

In the Court of Common Pleas of Allegheny County Criminal Division at 

Nos: CP-02-CR-0009497-1975, 

CP-02-CR-0009516-1975

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED: FEBRUARY 24, 2023

Appellant, Michael Dukes, appeals pro se from the December 23, 2021 

order of the Court of Common Pleas of Allegheny County denying as untimely 

his serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546. We affirm.

We previously summarized the background of the instant matter as 

follows.

Appellant conspired with Robert Wideman and Cecil Rice to rob 

the victim[.] To that end, Appellant and Wideman approached 

[the victim] on November 13, 1975, and asked him if he would be 

interested in purchasing some stolen televisions. The following 

day, [the victim] was informed that the televisions would be 

delivered on November 15, 1975; arrangements were made to 

deliver the televisions to a car dealership owned by [the victim]. 

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* Retired Senior Judge assigned to the Superior Court.
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On the appointed day, [the victim] arrived at his dealership at 

5:30 p.m. Ken and James Slaby, who were going to help him 

unload [the] televisions, were waiting from him there.

At approximately 7:00 p.m., Wideman came to the lot and spoke 

with [the victim]. Wideman then called a telephone number that 

was written on a matchbook cover. Ten minutes later, a U-Haul 

truck driven by Appellant entered the lot. Wideman opened the 

door and revealed Rice, who was pointing a gun at the Slabys and 

[the victim]. Rice ordered the three victims to throw down their

money, and the victims complied. Wideman, who also displayed 

a gun, ordered the three men into the back of the truck.

Appellant, who had exited the truck and also was displaying a gun, 

pointed it at the three victims as they began to enter the back of 

the truck. Ken Slaby got into the truck, but as James was entering 

it, [the victim] suddenly began to run away. Appellant shot [the 

victim] in the back as he tried to escape.

The bullet lacerated [the victim]’s pulmonary artery, and 

paramedics transported him to St. Joseph’s Hospital, which is 

located in the Southside section of Pittsburgh. Physicians at that 

hospital concluded that [the victim] needed thoracic surgery, but 

the hospital did not have a thoracic surgeon on staff. [The victim] 

was transported to Mercy Hospital, where he died.

Appellant and Wideman fled to Colorado, where they were 

apprehended in February 1976. On August 11, 1976, Appellant 

was found guilty by a jury of robbery and second degree murder. 

Appellant was sentenced to life imprisonment.

While Appellant did not file a direct appeal, his direct appeal rights

were reinstated nunc pro tunc by order dated June 8, 1984, after 

the filing of a petition requesting the same. We affirmed on

appeal. Commonwealth v. Dukes, 520 A.2d 1212 (Pa. Super. 

1986) (unpublished memorandum).

Commonwealth v. Dukes, 1500 WDA 2000, unpublished memorandum, at 

*1-3 (Pa. Super. filed June 20, 2001).

Appellant eventually learned that the personal representative of the 

victim’s estate instituted a wrongful death action against the hospital’s 
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paramedics and physicians, alleging that the victim’s death had been caused 

by the negligence of medical personnel, and that the parties had settled the 

matter. 

On January 13, 1997, Appellant filed a PCRA petition in which he argued, 

inter alia, that the settlement of the wrongful death action constituted afterdiscovered evidence that the cause of victim’s death was negligence on the 

part of the emergency room physicians/paramedics, not a gunshot wound. 

On July 12, 1999, the PCRA court denied Appellant’s PCRA petition, 

noting that Appellant failed to prove he was entitled to relief on “after 

discovered evidence” grounds.1 Specifically, the PCRA court addressed the 

claim as follows:

[The PCRA court] finds that the facts surrounding the victim’s 

treatment were available to petitioner and counsel at the time of 

trial and could have been subpoenaed and reviewed. The records 

would have revealed at the time of trial, or appeal, the action 

taken or not taken by the emergency room physicians. With the 

facts of the victim’s treatment available, [Appellant] has 

failed to establish the first prong of the after-discovered 

evidence test.

Additionally, the fact of the civil settlement between the 

emergency room doctors and the family of the victim was a public 

record in February of 1981. Further, issues about this case were 

reported in the Pittsburgh Post Gazette in July of 1983, including 

that a settlement had been entered into between the victim’s 

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1 To establish such a claim, a petitioner must prove that “(1) the evidence has 

been discovered after trial and it could not have been obtained at or prior to 

trial through reasonable diligence; (2) the evidence is not cumulative; (3) it 

is not being used solely to impeach credibility; and (4) it would likely compel 

a different verdict.” Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 

2004).
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family and the emergency room physicians. As local newspapers 

are and were available to prisoners in the prison library or through 

personal subscription, and [Appellant] admits his access to these 

newspapers where he states that he learned of Judge McGregor’s 

ruling in co-defendant’s case . . . from an article in the Post 

Gazette, this court finds that [Appellant] could have learned of the 

civil settlement in July of 1983, at the latest.

PCRA Court Opinion, 9/27/1999, at 5 (emphasis added). 

Finally, the PCRA court noted that the after-discovered evidence 

proffered here was “not of a nature that would compel a different result. A 

defendant is criminally liable for the foreseeable consequences of his criminal 

actions.” PCRA Court Opinion, 9/27/1999, at 5. The PCRA court continued 

noting:

In this case, [Appellant] claims that the alleged negligence of 

[victim]’s treating emergency room physicians was the cause of 

his death. However, [victim] would not have required medical 

treatment at all if not for the hole in [victim]’s back and chest 

caused by the gunshot, and the attendant internal damage and 

bleeding. 

PCRA Court Opinion, 9/27/1999, at 6. 

On appeal from the July 12, 1999 order, Appellant argued that the 

settlement of the civil case, which occurred after Appellant’s trial, constituted

after-discovered evidence. We disagreed, noting that the settlement after the 

trial was irrelevant for purposes of the after-discovered test. Specifically, we 

stated:

All the information regarding [the victim]’s medical treatment was 

available at the time of trial. Appellant did not need to learn about 

a settlement of a lawsuit in order to raise this defense at trial. 

Thus, the first prong of the [after-discovered] test has not been 

satisfied.
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Furthermore, the fourth prong of the [after-discovered] test is not 

satisfied. In a criminal homicide case, causation will be found 

even when the defendant’s conduct is not the sole cause of the 

victim’s death as long as the conduct was a direct and substantial 

factor in producing the death. A defendant cannot escape criminal 

liability merely due to foreseeable complications. If the 

defendant’s action began an unbroken chain of events that led to 

death, a defendant is guilty of homicide.

Herein, Appellant shot the victim in the back, and the bullet 

pierced his lung. The injury set into action the chain of the events 

that led to [victim]’s death. The facts that purported negligence 

of medical personnel may have also contributed to the death does 

not relieve Appellant from responsibility. Appellant’s assertions 

fail to fulfill both the first and fourth prong of the after-discoveredevidence test.

Commonwealth v. Dukes, 1500 WDA 2000, unpublished memorandum, at 

*4-5 (Pa. Super. filed June 20, 2001) (internal citations omitted).

Our Supreme Court denied Appellant’s petition for allowance of appeal

on October 3, 2001. See Commonwealth v. Dukes, 567 Pa. 736 (Pa. 2001).

Appellant filed a PCRA petition on March 29, 2016. The PCRA court 

denied relief on August 23, 2016. Appellant appealed to our Court. 

Eventually, the appeal was dismissed for failure to file a brief. See Order, 

4/20/17, in Commonwealth v. Dukes, 1301 WDA 2016 (Pa. Super. 2016). 

On August 3, 2021, Appellant filed another PCRA petition, the one at 

issue here, titled “Habeas Corpus/PCRA Petition,” in which he argued that he 

was entitled to a new trial “based on an ‘after discovered fact’ previously 

litigated/denied in a prior application pursuant to controlling case law that has 

since been overturned by new State Supreme Court precedent”. Appellant’s 
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Habeas Corpus/PCRA petition, 8/3/21, at 2, referring to Commonwealth v. 

Small, 238 A.3d 1267 (Pa. 2020).

On December 23, 2021, the PCRA Court dismissed Appellant’s pro se

serial PCRA petition. This appeal followed.

We preliminarily address a potential Walker2issue affecting the instant 

appeal. Appellant filed a timely notice of appeal on January 10, 2022. The 

notice, however, failed to comply with Walker, as Appellant filed a single 

notice of appeal listing two trial court docket numbers. While a Walker

violation may result in a quashal of appeal, there are exceptions to the rule. 

In Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019), the 

appellant filed a single notice of appeal from a court order disposing of two 

separate dockets. The court advised the appellant that he could appeal the 

dismissal of his PCRA petition by filing within thirty days a notice of appeal 

from its order. The court, referring to its order that disposed of a PCRA petition 

pending at two separate docket numbers, utilized the singular in advising 

Appellant where to file "Said notice of appeal[.]" We concluded that such 

misstatements as to the manner that the appellant could effectuate an appeal 

from the PCRA court's order amounted to a breakdown in court operations 

allowing us to overlook the defective nature of Appellant's timely notice of 

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2 Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). In Walker, our 

Supreme Court held that appellants are required to file separate notices of 

appeal when a single order resolves issues arising on more than one lower 

court docket. The decision applies to all cases filed after June 1, 2018. 
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appeal. See also Commonwealth v. Larkin, 235 A.3d 350, 352-54 (Pa. 

Super. 2020) (en banc) (reaffirming Stansbury).

Here, the PCRA court’s December 23, 2021 order dismissing Appellant’s 

PCRA petition lists two trial court docket numbers and states, “Petitioner has 

thirty (30) days from the entry of this order to appeal to the Superior Court 

of Pennsylvania. The Petitioner may either appeal representing himself or 

retain private counsel.” The defect in the court’s instructions is akin to the 

defective language we found in the Stansbury and Larkin orders. The PCRA 

court advised Appellant that he could file a single notice of appeal, despite its 

order disposing of two trial court dockets. In light of the foregoing, we 

conclude these misstatements by the PCRA court constituted a breakdown in 

the court’s operations thus allowing us to proceed with Appellant’s instant 

appeal.

When reviewing the propriety of an order pertaining to PCRA relief,

we consider the record in the light most favorable to the prevailing 

party at the PCRA level. This Court is limited to determining 

whether the evidence of record supports the conclusions of the 

PCRA court and whether the ruling is free of legal error. We grant 

great deference to the PCRA court’s findings that are supported in 

the record and will not disturb them unless they have no support

in the certified record. However, we afford no such deference to 

the post-conviction court’s legal conclusions. We thus apply a de 

novo standard of review to the PCRA [c]ourt’s legal conclusions.

Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).

All PCRA petitions, “including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final” unless an 
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exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1).3 “The PCRA’s 

time restrictions are jurisdictional in nature. Thus, if a PCRA petition is 

untimely, neither this Court nor the [PCRA] court has jurisdiction over the 

petition. Without jurisdiction, we simply do not have the legal authority to 

address the substantive claims.” Commonwealth v. (Frank) Chester, 895 

A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted) 

(overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267 

(Pa. 2020)). As timeliness is separate and distinct from the merits of 

Appellant’s underlying claims, we first determine whether this PCRA petition

is timely filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008). 

If it is not timely, we cannot address the substantive claims raised in the 

petition. Id.

It is undisputed that the instant petition is facially untimely.4 As such, 

we can entertain it only if Appellant pleads and proves the applicability of one 

the exceptions to the timeliness rule. 

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3 The one-year time limitation can be overcome if a petitioner (1) alleges and 

proves one of the three exceptions set forth in Section 9545(b)(1)(i)-(iii) of 

the PCRA, and (2) files a petition raising this exception within one year of the 

date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

4 Our Supreme Court denied Appellant’s petition for allowance of appeal on 

July 13, 1987. Appellant, therefore, had 60 days from that date to file a 

petition for a writ of certiorari with the United States Supreme Court, under 

what was then U.S. Sup. Ct. R. 20.1. Because Appellant did not file a such a 

petition, his judgment of sentence became final on September 11, 1987. See

42 Pa.C.S.A. § 9545(b)(3). Appellant had one year from September 11, 1987, 

(Footnote Continued Next Page)
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The Commonwealth generously notes that while Appellant’s brief is 

“somewhat” vague and opaque as to 

what exception he is attempting to invoke under the PCRA’s time 

bar . . . it appears that the crux of [A]ppellant’s time bar exception 

analysis is the Pennsylvania Supreme Court’s 2020 decision in 

[Small] (abrogating the “public record presumption”), in 

conjunction with, information regarding the medical treatment of 

the victim[.] These arguments would possibly implicate the 

PCRA’s “new facts” exception under Section 9545(b)(1)(ii) or the 

newly retroactive constitutional right exception under Section 

9545(b)(1)(ii). 

Commonwealth’s Brief at 18. 

Even if we construe Appellant’s argument as generously as suggested 

above by the Commonwealth, we conclude that Appellant failed to prove the 

applicability of either the newly discovered facts5 or the newly retroactive 

constitutional right exceptions.

6

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to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). The instant 

PCRA petition was filed on August 3, 2021, more than three decades from 

September 11, 1987. The instant petition is, therefore, facially untimely. 

 

5 The newly-discovered facts exception reads as follows: “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.” 42 Pa.C.S.A. 

§ 9545(b)(1)(ii). 

6 The newly recognized right exceptions provides as follows: “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.A. § 9545(b)(1)(iii).
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In Small, our Supreme Court overruled the "public record presumption" 

which precluded a petitioner from establishing the existence of new facts that 

would support collateral review of an underlying conviction. Citing 

Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), the Court held that 

the plain language of the newly discovered fact exception does not call for any 

assessment of whether the asserted facts appear in the public record. It 

merely requires that the "facts" upon which a petitioner's claim is predicated 

were "unknown to the petitioner and could not have been ascertained by the 

exercise of due diligence." This language plainly calls for a circumstancedependent analysis of the petitioner's knowledge, not that of the public at 

large. Small 238 A.3d at 1283. To the extent Appellant’s argument can be 

construed as an attempt to prove the timeliness of his claim on newly 

discovered facts, Appellant’s own argument does not support the newly 

discovered facts exception. Indeed, “all of his claims, are in fact, based on . 

. . evidence related to the treatment rendered to the victim after he was 

admittedly shot by [Appellant] during the course of the robbery.” PCRA Court 

Opinion, at 6. We also noted in 2001, and reiterate again here, that “all 

information regarding [the victim]’s medical treatment was available at the 

time of trial.” Dukes, 1500 WDA 2000, at *4. Thus, the information Appellant 

attempts now to proffer is more than 40 years old and cannot qualify as newly 
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discovered facts to establish a timeliness exception to the PCRA.7 To the 

extent Appellant believes that Small itself constitutes a “fact” for purposes of 

the newly-discovered facts exception, our caselaw also does not support 

Appellant’s argument, as “subsequent decisional law does not amount to a 

new “fact” under section 9545(b)(1)(ii) of the PCRA.” See, e.g., 

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).

Appellant’s argument that Small is retroactively applicable to all cases, 

even those closed more than 20 years ago, likewise has no merit. Under the 

PCRA, a decision of our Supreme Court (or of the United States Supreme 

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7 To the extent Appellant argues that the settlement provided information not 

available at the time of trial, we previously noted, and reiterate here, that 

“Appellant did not need to learn about a settlement of a lawsuit in order to 

raise this defense at trial.” Dukes, 1500 WDA 2000, at *4. 

Appellant also appears to mistakenly discount that in “a criminal homicide 

case, causation will be found even when the defendant’s conduct is not the 

sole cause of the victim’s death as long as the conduct was a direct a 

substantial factor in producing the death.” Id. at *4-5. 

A defendant cannot escape criminal liability merely due to 

foreseeable complications. If the defendant’s action began an 

unbroken chain of events that led to death, a defendant is guilty 

of homicide.

Herein, Appellant shot the victim in the back, and the bullet 

pierced his lung. The injury set into action the chain of the events 

that led to [victim]’s death. The facts that purported negligence 

of medical personnel may have also contributed to the death does 

not relieve Appellant from responsibility. 

Id. at *5.
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Court) can be applied retroactively only if our Supreme Court (or the U.S. 

Supreme Court) has recognized a new constitutional right and has held that 

such right is applicable retroactively. Small, however, did not introduce a 

new constitutional right, let alone one applicable retroactively. 

Finally, we note that the question whether Appellant is entitled to PCRA 

relief based upon newly discovered facts, has been raised and addressed in a 

previous, unsuccessful PCRA petition. See Commonwealth v. Dukes, 1500 

WDA 2000, unpublished memorandum (Pa. Super. filed June 20, 2001), 

appeal denied, Commonwealth v. Dukes, 567 Pa. 736 (Pa. 2001). 

Therefore, even if we could consider Appellant’s petition timely, we could not

entertain this claim as it has been previously litigated. See Commonwealth 

v. Williams, 732 A.2d 1167, 1183 (Pa. 1999) (“A petitioner is precluded from 

raising a claim on post-conviction review that was previously and finally 

litigated on direct appeal”); 42 Pa.C.S.A. § 9544(a)(2) (An issue has been 

previously litigated if “the highest court in which the petitioner could have had 

review as a matter of right has ruled on the merits of the issue.”). 8 

In light of the foregoing, we conclude that Appellant’s appeal must be 

dismissed, as his petition was patently untimely.

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8 Appellant raises a plethora of issues, including due process violations and 

ineffective assistance of counsel, among others. In the absence of any 

credible claim that Appellant’s PCRA petition qualifies now under either the 

newly discovered facts exception or the newly created constitutional rights 

exception, we need not address these other issues. 
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Order affirmed.9

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/24/2023

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9 While this appeal was pending, Appellant filed an application for correction 

of the record. In light of our disposition, we deny the application as moot.