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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

:

DAVID JOSEPH DONAGHY, : No. 3261 EDA 2019

:

 Appellant :

Appeal from the Order Entered October 22, 2019,

in the Court of Common Pleas of Bucks County

Criminal Division at No. CP-09-CR-0008791-2008

BEFORE: BOWES J., KING J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 23, 2020

David Joseph Donaghy appeals pro se from the October 22, 2019 order 

entered in the Court of Common Pleas of Bucks County that dismissed, without 

a hearing, his second petition filed pursuant to the Post Conviction Relief Act, 

42 Pa.C.S.A. §§ 9541-9546. We affirm.

The record reflects that appellant plead guilty to robbery; burglary;

simple assault; recklessly endangering another person; theft by unlawful 

taking – movable property; receiving stolen property; and six counts of 

conspiracy1in connection with a December 19, 2007 home invasion and 

robbery of an 80-year-old victim. On March 5, 2009, appellant was sentenced 

 

1 18 Pa.C.S.A. §§ 3701 (a)(1)(ii), 3701(a)(1)(iv) and (a)(1)(v); 3502 (a); 

2701 (a)(1); 2705; 3921 (a); and 3925, respectively.
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to an aggregate term of not less 9 nor more than 18 years’ imprisonment. No 

post-sentence motions were filed and no direct appeal was taken.

Appellant filed his first pro se PCRA petition on January 21, 2010. 

Counsel was appointed. On September 17, 2010, the PCRA court denied 

appellant’s petition, and he timely appealed claiming that plea counsel was 

ineffective for failing to file a direct appeal. This court agreed. 

Commonwealth v. Donaghy, 33 A.3d 12, 17 (Pa.Super. 2011), appeal 

denied, 40 A.3d 120 (Pa. 2012). On April 27, 2012, the PCRA court issued 

an order reinstating appellant’s direct appeal rights nunc pro tunc.

Appellant, however, failed to file a direct appeal. Rather, on May 7, 

2012, appellant filed a pro se PCRA petition. Counsel was appointed. The 

PCRA court denied relief on September 21, 2012. This court affirmed on 

September 4, 2013, and our supreme court denied discretionary review on 

July 9, 2014. See Commonwealth v. Donaghy, 87 A.3d 371 (Pa.Super. 

2013), appeal denied, 95 A.3d 275 (Pa. 2014).

On May 7, 2019, appellant filed pro se the instant PCRA petition. The 

PCRA court issued a notice of intent to dismiss. Appellant filed a timely 

response. The PCRA court then dismissed the petition. Appellant filed a timely 

notice of appeal. The PCRA court ordered appellant to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant 

timely complied. The PCRA court then filed its Rule 1925(a) opinion.

Appellant raises the following issues for our review:
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1[.] Did the PCRA Court penalize, prejudice, time 

Barr [sic], me [appellant] from this PCRA for an 

erroneously [sic] error, In [sic] witch [sic] the 

Clerk of Courts did not enter the Criminal 

Trespassing charge on case number 

CR-0001517-1998 as Nolle-Prossed [sic] but 

instead, entered the charge as a guilty plea. 

Therefore, raising the petitioners [sic] point 

score buy [sic] a full point and causing the 

petitioner to get a much higher sentence?

2[.] Did the PCRA Court, District Attorney, my Court 

appointed counsel, Mr. William Penglase, Esq. 

and the Clerk of Courts all fail to provide the 

additional discovery of the medical hospital 

report of the victim that would have confirmed 

the exact nature of the victims [sic] injuries and,

bodily harm that the petitioner was accused of 

and pleading guilty to causing?

3[.] On 12-26-2018, the petitioner David Joseph 

Donaghy wrote the Clerk of Courts on case 

number CR-0001517-1998 stating that the 

Criminal Trespassing charge of the felony three 

on this case was in fact nol-prossed [sic] on 

June 16, 1998 but, shows as a guilty plea on the 

most recent requested court summary sheet 

readout that the Clerk of Courts office sent me? 

On January 3, 2018 the Clerk of Courts 

acknowledged this correspondence and 

researched there [sic] records and corrected the 

docket sheet to show the above count of 

Criminal Trespassing was in “fact”

nol-prossed [sic] on June 16, 1998 and there 

was an error on this entry see

exhibit . Therefore, should the PCRA 

Court start the time to file PCRA from January 3, 

2019; the day the Clerk of Courts acknowledged 

and then corrected the error they originally 

caused in this case to get me the sentence I got?

4[.] Did the PCRA Court, District Attorney, my court 

appointed counsel, Mr. William Penglase, Esq. 

and the Clerk of Courts all fail to provide me 
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with the Pennsylvania Commission Sentencing 

Guidelines for case number CR-0008791-2008? 

Therefore, I was unaware that this point was 

erroneously added or, even used against me at 

the sentencing decision or, even aware that 

there was a point system. The District Attorney 

never stated any reference to points in the 

sentencing phase. See exhibit .

5[.] Did the PCRA Court error [sic] in finding no 

violation of s/s [sic] 9781; Appellant [sic]

Review of Sentence (c)(1) that states: The 

sentencing court purported to sentence outside 

the Sentencing guidelines because the Court 

applied the guidelines erroneously by adding a 

full point to my sentencing guidelines by using 

case number CR-0001517-1998 or, the Criminal

Trespassing charge, which is a felony three, 

those [sic] raising guidelines to an erroneously 

higher level?

6[.] Did the PCRA Court prejudice the petitioner by 

applying this erroneously [sic] sentence and 

applying this error?

7[.] Weather [sic] the PCRA Court erred in not

finding the petitioners [sic] counsel at the time, 

Mr. William Penglase, Esq. ineffective for not 

seeing these mistakes, investigating or, not 

taking action a pond [sic] the petitioners [sic] 

statement at the sentencing to him that this 

Criminal Trespassing charge and the Drug 

Passion [sic] charge was dismissed at his 

sentencing hearing or, got A.R.D.?

8[.] Did the PCRA Court error [sic] in not finding the

District Attorney violated Prosecution [sic]

misconduct when prior record was stated and 

introduced to the Court and to Judge Boylan 

that the defendant had a 1986 Passion [sic] of 

Controlled substance charge and not 

investigating or, looking into his prior record 

and introducing Criminal Trespassing charge 

that was indeed dismissed as well?
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9[.] Did the PCRA Court error [sic] in not finding

petitioners [sic] counselor, Mr. William 

Penglase, Esq. ineffective for not allowing a 

pre-sentence investigation to be done before 

the sentencing hearing witch [sic] would have 

changed the outcome of the sentence?

10[.] Did the PCRA Court error [sic] because of the 

recently newly discovered PRS and the

miscalculation on the PRS to the legality of the 

sentence for this is not subjected [sic] to waiver,

should the Court have invoked jurisdiction to 

correct this patent and manifested mistake in 

the petitioner’s sentence?

11[.] Did the PCRA court error [sic] in not finding the 

District Attorney, my counselor, Mr. William 

Penglase, Esq. and the Clerk of Courts 

violating [sic] any Rules, Statues [sic], or State 

or Federal Constitutional rules, etc.

12[.] Does this Court or, the PCRA think if the 

petitioner know about this newly discovered 

error/point system at the time of his sentencing 

or, at any point of his twelve years 

incarcerated [sic] he would not have brought it 

to the Courts [sic] attention?

13[.] The most important question to this Court is: If 

this correct prior record score of four was 

presented at the petitioners [sic] sentencing 

hearing phase would it have changed the 

outcome or, reduced the petitioner’s sentence.

Appellant’s brief at 12, 152 (set forth verbatim; no exhibit numbers in 

original).

 

2 Appellant’s brief is paginated, in part, by small Roman numerals that are 

often repeated. Interspersed throughout the brief are unnumbered 

documents. For ease of reference, starting with the table of contents, we will 

refer to each page in the order of its position in the brief.
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When reviewing the propriety of an order denying PCRA relief, 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.

The PCRA court’s findings will not be disturbed unless there is no support for 

them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa.Super. 2014).

Furthermore, PCRA petitions, “including second and subsequent 

petition[s], shall be filed within one year of the date the judgment becomes 

final[.]” 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). 

The Supreme Court of Pennsylvania has held that the PCRA’s time restriction 

is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of a 

PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).
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Our review of the record reflects that appellant’s direct appeal rights 

were reinstated nunc pro tunc by the PCRA court on April 27, 2012.3

Appellant failed to file a direct appeal within 30 days and, therefore, his

judgment of sentence became final on May 29, 2012.4 See 42 Pa.C.S.A. 

§ 9545(b)(3); Pa.R.A.P. 903(a). Therefore, appellant’s current PCRA petition, 

filed May 7, 2019, is facially untimely. As a result, the PCRA court lacked 

jurisdiction to review appellant’s petition, unless appellant alleged and proved 

one of the statutory exceptions to the time-bar, as set forth in 42 Pa.C.S.A. 

§ 9545(b)(1).

Those three narrow exceptions to the one-year time-bar are: when the 

government has interfered with the appellant’s ability to present the claim,

when the appellant has newly discovered facts upon which his PCRA claim is 

predicated, or when either the Supreme Court of Pennsylvania or the Supreme 

Court of the United States has recognized a new constitutional right and made 

that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v. 

Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The appellant bears the 

burden of pleading and proving the applicability of any exception.

 

3 The order informed appellant he had 30 days to file an appeal. See also 

Commonwealth v. Wright, 846 A.2d 730, 725 (Pa.Super. 2004).

4 As May 27, 2012 fell on a Sunday, and May 28, 2012 was Memorial Day, 

appellant’s judgment of sentence became final on May 29, 2012. See

1 Pa.C.S.A. § 1908 (providing whenever last day of period of time referred to 

in statute falls on Saturday, Sunday, or legal holiday such day is omitted from 

computation).
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42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a valid exception to 

the PCRA time-bar, this court may not review the petition. See 42 Pa.C.S.A. 

§ 9545(b)(1)(i- iii).

Initially, we note that appellant has filed a pro se brief.

[A]ppellate briefs must conform materially to the 

requirements of the Pennsylvania Rules of Appellate 

Procedure, and this Court may quash or dismiss an 

appeal if the defect in the brief is substantial. 

Although this Court is willing to construe liberally 

materials filed by a pro se litigant, a pro se appellant

enjoys no special benefit. Accordingly, pro se

litigants must comply with the procedural rules set 

forth in the Pennsylvania Rules of the Court. This 

[c]ourt will not act as counsel and will not develop 

arguments on behalf of an appellant.

Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.Super. 2017)

(citations and quotation marks omitted); Pa.R.A.P. 2101 (stating appeal may

be quashed for substantial defects in brief).

Appellant’s brief not only fails to provide a cogent legal argument, but 

it also fails to comply with our rules of appellate procedure. First, appellant 

has failed to attach to his brief a copy of his concise statement of errors 

complained of on appeal and the required certificates of compliance. See

Pa.R.A.P. 2111(a)(11) and (a)(12). Second, as can be seen from appellant’s 

issues, set forth verbatim herein, the statement of the questions involved is 

not concise, is not expressed without unnecessary detail, and is not followed 

by an answer simply stating the court’s position on the question. See 

Pa.R.A.P. 2116(a); appellant’s brief at 12, 15. Third, appellant’s statement of 
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the case is rambling, convoluted, contains argument, and does not have 

appropriate references to the record. See Pa.R.A.P. 2117(a)(b) and (c); 

appellant’s brief at 16-31.5 Fourth, the summary of argument is not concise, 

nor an “accurate, summary of the arguments presented in support of the 

issues in the statement of questions involved.” Pa.R.A.P. 2118; see

appellant’s brief at 31. Finally, appellant’s argument is not divided into as 

many parts as there are questions to be argued, does not have at the head of 

each part the particular point addressed therein, and is not followed by 

pertinent discussion or citation of relevant authorities. See

Pa.R.A.P. 2119(a); appellant’s brief at 32-41. These considerable defects in 

appellant’s brief adversely affect this court’s ability to perform appellate 

review.

Therefore, the PCRA court lacked jurisdiction to review appellant’s

second PCRA petition, and we may not review the petition on appeal.6

Order affirmed.

King, J. joins this Memorandum.

Bowes, J. concurs in the result.

 

5 Throughout appellant’s statement of the case, appellant has inserted various 

documents.

6 We note that even if the appellant’s brief was not defective, he has failed to 

invoke an exception to the time-bar. Therefore, he would still not be entitled 

to relief.
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Judgment Entered.

JosephD.Seletyn,Esq.

Prothonotary

Date: 6/23/2020