J-S42041-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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