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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 C riminal 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 or der dismissing his fourth petition pursuant to the Post Conviction Relief Act 1 (“PCRA”). Upon review, we affirm, though on differ ent grounds than the

PCRA court. The PCRA court recited the relevant procedural hist ory: On October 27, 2006, [Appellant] was convicted by a jury of two counts each of sexual assault, endanger ing the welfare of children, and corruption of minors relat ing to his abuse of his minor step-daughter. The presiding ju dge was Paul Pozonsky. On March 22, 2007, the trial co urt sentenced [Appellant] to an aggregate term of not l ess than fourteen but not more than forty-four years of incarceration. [Appellant] filed post-sentence mot ions that were denied by operation of law. He filed an appea l to the Superior Court which, on April 15, 2009, affirmed t he

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.J-S42041-16

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- judgment of sentence. [Appellant] then sought an a ppeal 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 o f counsel. After issuing a Rule 907 notice of its in tent to dismiss the petition without a hearing, see Pa.R.Crim.P. 907(1), the trial court formally dismissed the peti tion on September 27, 2010. On September 16, 2011, the Superior Court affirmed in part, vacated in part, a nd remanded for an evidentiary hearing on [Appellant’s ] claim that trial counsel was ineffective for failing to m eet with him prior to trial. After remand, the PCRA court h eld the ordered hearing on December 19, 2011. On May 22, 2012, the trial court dismissed [Appellant’s] petit ion. On September 13, 2013, the Superior Court affirmed the dismissal. On February 20, 2014, the Pennsylvania Supreme Court denied [Appellant’s] petition for all owance of appeal. On February 24, 2014, [Appellant] filed a pro se second PCRA petition. On March 18, 2014, the PCRA court i ssued a Rule 907 notice of its intent to dismiss [Appella nt’s] petition without a hearing. [Appellant] filed a re sponse to this notice on March 31, 2014, and, on April 8, 201 4, 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 p ending, [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] disconti nued 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 dismiss ing his third PCRA petition on the basis of a pending a ppeal. The PCRA court dismissed [Appellant’s] third PCRA p etition pursuant to Lark , supra because his prior PCRA appealJ-S42041-16

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- still was pending in the Superior Court. On May 5, 2015, the Superior Court affirmed the PCRA court’s dismis sal. 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 Consti tution of this

Commonwealth or the Constitution or laws of the Uni ted States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or i nnocence could have taken place.” Appellant’s PCRA Pet., 6/23/15, at 2. App ellant 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, incl uding a 2004 case captioned Commonwealth v. Damon Reed . Ex. 1 at 9. According to the grand jury findings, in that case, the police appre hended Mr. Reed and retrieved “23.7 grams of cocaine base and 10.1 gram s 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 “noJ-S42041-16

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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 gui lty to theft by unlawful taking, obstruction of the administration of law, a nd misappropriation of entrusted property and property of government insti tutions on March 20, 2015, in the Court of Common Pleas of Washington Co unty. Other attachments included Exhibit 3, a Pittsburgh Post-Gazette article dated December 30, 2012, discussing Pozonsky’s resignatio n and subsequent investigation by a grand jury; Exhibit 4, a Mud Flats blog post dated December 11, 2012, discussing political controversi es regarding Pozonsky’s then-new job in Alaska; and Exhibits 5 and 6, artic les from the Pittsburgh Post-Gazette and the Pittsburgh Tribune-Review, bot h dated May 23, 2013, discussing charges brought against Pozonsky after t he conclusion of the grand jury investigation. On July 8, 2015, the PCRA court entered an order st ating its intent to dismiss Appellant’s petition without a hearing. Th e court dismissed the petition on July 31, 2015. On November 15, 2015, A ppellant filed an application to appeal nunc pro tunc , attaching a Notice of Appeal mailed on August 11, 2015, which was not received by the cour t. The court grantedJ-S42041-16

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the application on November 20, 2015, and filed a P a.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 Appe llant’s PCRA petition based on the finding that said petiti on was untimely, where the Appellant was procedurally barr ed from filing said petition until the outcome of a th enpending appeal[?] II. Whether the lower court erred in dismissing App ellant’s PCRA petition based on the finding that Appellant f ailed to show bias or interest in the outcome of the proceed ings by former judge Paul Pozonsky[?] III. Whether the lower court erred in dismissing Ap pellant’s PCRA petition based on the finding that former judg e Paul Pozonsky’s misconduct began in 2011, long after Appellant’s trial, where legal records show that sa id 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 pref atory matter. Appellant’s first claim is that he was procedurally barred from bringing the instant fourth petition until a prior PCRA appeal h ad been resolved. Id. at 6- 7. The PCRA court dismissed Appellant’s fourth PCR A petition as untimely because it was filed more than sixty days after Poz onsky 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.J-S42041-16

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It is well established that the timeliness requirem ents of the PCRA are “jurisdictional in nature and must be strictly cons trued; courts may not address the merits of the issues raised in a petiti on 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 gov erned by 42 Pa.C.S. § 9545(b):

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one y ear of the date the judgment becomes final, unless the petitio n alleges and the petitioner proves that:

* * * (ii) the facts upon which the claim is predicated w ere 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 discoverin g 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,” App ellant must establish due diligence. Commonwealth v. Bennett , 930 A.2d 1264, 1274 (Pa. 2007).J-S42041-16

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In analyzing whether a petition falls under the Sec tion 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 hears ay 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 articl es, in which a reporter relays what he or she has been told by a nother 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 re view 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 reso lution of review (or the date of expiration for seeking review) of the initi al PCRA petition is therefore

counted as the first “date the claim could have bee n 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 arti cles 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).J-S42041-16

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Instantly, because Appellant has attached multiple exhibits spanning years, we engage in a two-step analysis for determi ning the instant PCRA petition’s timeliness. First, under Section 9545(b )(1)(ii), we must consider whether the facts underlying Appellant’s claim qual ify 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 wer e likely unknown to him, the vast majority of the exhibits that Appella nt 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 publis hed 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 peti tion within sixty days of when the claim could have first been presented on M ay 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 again st Pozonsky based on the findings of the grand jury.J-S42041-16

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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 ex planation as to why he did not raise these claims in his previous PCRA pet itions and presents no

claim that would excuse this untimeliness. See Brown , 111 A.3d at 177. Therefore, Appellant’s petition does not meet the r equirements of Section 9545(b)(1)(ii) for an exception to the one year PCR A time-bar and the PCRA court lacked jurisdiction over his untimely petitio n. 6 See 42 Pa.C.S. §

6 Regardless, Appellant failed to establish that the trial court committed two alleged errors while purportedly under the influenc e of narcotics. See Appellant’s Brief at 8-9. First, with respect to h is Brady claim, Appellant does not explain (1) how the photographs were excul patory or impeaching evidence and (2) how the Commonwealth withheld or s uppressed them, and thus he waived this argument. See generally Commonwealth v. Cam Ly , 980 A.2d 61, 75 (Pa. 2009). The Commonwealth’s exp ert testified that for the past fourteen years, she has not publicly exhib ited photographs of the victim’s genitals because of a strong sense of priv acy and because her report and photographs are peer reviewed. N.T. Trial, 10/2 5/06, at 59. Regardless, the Commonwealth introduced other photographs of th e victim’s genitals, and Appellant’s expert viewed those photographs and rendered an opinion. N.T. Trial, 10/26/06, at 128. Second, Appellant di d 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 . . . lacerati ons, scarring and abrasions.” N.T. Trial, 10/27/06, at 20. The Comm onwealth’s expert countered that sexual assaults on young women commo nly lack such indicia of trauma. Id. at 21. She explained the assault is

done in a way it’s not also a physically violent fo rce. It’s intended not to hurt them, and often times the youn g woman doesn’t know what’s going on and often does n ot fight physically. We often will see acute sexual a ssaults where there is not the injury you described.J-S42041-16

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9545(b); Walters , 135 A.3d at 591. Accordingly, having discerned n o 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.