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

v.

MICHAEL DUKES

Appellant : : : : : : : : : 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].

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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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] tel evisions, were waiting from him there. At appro ximately 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 match book cover. Ten minutes later, a U

- Haul truck driven by Appellant e ntered the lot . Wideman opened the door and revealed Rice, w ho was pointing a gun at the Slabys and [the victim]. Rice ordered the three victims to throw down thei r money , and the victims complied . Wideman , who also displayed a gun, ordered the three me n into the back of the truck. Appellant, who had exited the truck and also was displayin g 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] sudden ly 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. P hysicians at that hospital concluded that [the victim] needed thoracic surgery, but the hospital did not ha ve a thoracic surgeon on staff. [The victim] was transported to Mercy Ho spital, where he died. Appellant and Wideman fled to Colorado, where they were apprehended in February 1976. On A ugust 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. f iled June 20, 2001). Appellant eventually learned that t he personal representative of the victim’s estate instituted a wrongful death action against the hospital’sJ

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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 after

discovered evidence that the cause of victim’s death was negligence on the part of the emergency room physicians /paramedics , not a gunshot wound.
O n J uly 12, 1999, t he 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, th e PCRA c ourt addressed the claim as follows: [The PCRA court] finds that the facts surrounding the victim’s treatment were available to petition er and counsel at the time of trial and could have bee n subpoenaed a nd 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 a fter - 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 Ga zette in July of 1983, including that a settlement had been entered into between the victim’s

_________________ __________ ______ ____ _______ 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) th e 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).J

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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 [Ap pellant] admits his access to these newspapers where he states that he learned of Judge M cGregor’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/ 19 99 , 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] te st has not been satisfied.J

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Furthermore, the fourth prong of the [ after

- discovered] test i s 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 defen dant’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

- discovered

eviden ce 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. Du kes , 567 Pa. 736 (Pa. 2001). Appellant filed a PCRA petition on March 29, 2016. The PCRA court denied relief on August 23, 2016. Appellant appe aled 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 overturn ed by new State Supreme Court precedent”

. Appellant’sJ

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Habeas Corpus/PCRA petition, 8/3/21, at 2, referring to Commonwe alth 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 Walker 2 issue 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 ap peal, 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. Th e 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 conclude d that such misstatements as to the manner that the a p pellant could effectuate an appeal from the PCRA court's order amount ed to a breakdown in court operations allowing us to overlook the defective nature of Appellant's timely notice of

_________________ __________ ______ ____ _______ 2 Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018). In Walker , our Supreme Court held that appellants are required to file se pa rate 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.J

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appeal

. See also Commonwealth v. Larkin , 235 A.3d 350, 352

- 54 (Pa. Supe r. 2020) ( en banc ) (reaffir ming Stansbury ). Here, the PCRA court’s December 23, 2021 order dismissing Appellant’s PCRA petition lists two trial court docket numbers and state s , “Petitioner has thirty (30) days from the entry of this o rder 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 c ould file a single notice of appeal , despite its order disposing of two trial court docket s. In light of the foregoing, we conclude these misstatements by the PCRA court constituted a breakdown in the court’s operati ons 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 det ermining 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 anJ

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exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). 3 “The PCRA’s
time restri ctions 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.” Co mmonwealth 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
A ppellant’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 undispute d 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.

_________________ __________ ______ ____ _______ 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 y ear 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 c ertiorari 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 ye ar from September 11, 1987, (Footnote Continued Next Page)J

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The Commonwealth generously notes that while Appellant’s brief is “somew hat” 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 “publi c 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 e xception under Section 9545(b)(1)(ii). Commonwealth’s Brief at 18.
E ven 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 facts 5 or the newly retroactive constitutional right exception s . 6

_________________ __________ ______ ____ _______ 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).J

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In Small, our Supreme Court overruled the "public record presumption" which preclude d a petitioner from establishing the existence of new facts that would support collateral review of an underlying conviction. C iting Commonwealth v. Burton , 158 A.3d 618 (Pa. 2017), the Court held that the plain language of the newly discovered fact except ion 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

exe rcise of due diligence." This language plainly calls for a circumstance

dependent 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, base d 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 newlyJ

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discovered facts to establish a timeliness e xception to the PCRA. 7 T o 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 argu ment 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

_________________ __________ ______ ____ _______ 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 no t 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 co nduct 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 ac tion 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.J

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Court) can be applied retroactively only if our Supreme Court ( or the U.S. Supreme Court ) has recognize d a new constitutional right and has held that

s uch right is applicable retroactively. Small , however, d id not introduce a new constitutional right, let alone one applicable retroactively

. Fi nally , w e 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 c ould not
entertain this claim as it has been previously litigated. S ee Commonwealth v. Williams , 732 A.2d 1167, 1183 (Pa. 1999) (“ A petitioner is precluded f rom 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

.

_________________ __________ ______ ____ _______ 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 fact s excepti on or the newly created constitutional rights exception, we need not address these other issues.J

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Order affirmed. 9
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/24/2023

_________________ __________ ______ ____ _______ 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.