J-S47037-20

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

DARNELL LAMONT DOSS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 

 No. 194 MDA 2019

Appeal from the PCRA Order January 8, 2019

in the Court of Common Pleas of Dauphin County 

Criminal Division at No(s): CP-22-CR-0005032-2009

BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 19, 2021

Darnell Lamont Doss (Appellant) appeals from the January 8, 2019

order denying his petition filed under the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546. We affirm.

In light of our disposition of the issues raised in Appellant’s appeal, we 

summarize only the pertinent procedural history and not the underlying 

facts. Following a jury trial where Appellant proceeded pro se supported by 

stand-by counsel, the jury found Appellant guilty of possession with intent to 

deliver a controlled substance (PWID), unlawful possession of drug 

paraphernalia, and possession of marijuana. On October 28, 2010, the trial 

court sentenced Appellant to one-and-a-half to three years of imprisonment 

for the PWID count; one year of intermediate punishment for the 

paraphernalia count consecutive to his incarceration on the PWID count; and 
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no further penalty on the marijuana count. Appellant’s stand-by counsel was 

appointed to represent him post-trial and on appeal. Appellant did not file a 

post-sentence motion. Appellant filed an appeal presenting a challenge to 

the weight of the evidence. On September 19, 2011, this Court dismissed his 

appeal based upon Appellant’s failure to ensure that a necessary video was 

part of the certified record.

Appellant filed pro se a PCRA petition on October 9, 2012. New 

counsel, Jennifer Tobias, Esquire, was appointed. The PCRA court ultimately 

reinstated Appellant’s post-sentence and direct appeal rights nunc pro tunc. 

Following the denial of a post-sentence motion, Appellant filed an appeal 

nunc pro tunc on April 17, 2013. This Court affirmed his judgment of 

sentence on March 27, 2014. Commonwealth v. Doss, 100 A.3d 320 (Pa. 

Super. 2014) (unpublished memorandum). Appellant did not file a petition 

for allowance of appeal to our Supreme Court. 

Appellant filed pro se the instant PCRA petition on April 3, 2017. 

Damian DeStefano, Esquire, was appointed to represent Appellant. Attorney 

DeStefano filed a motion to withdraw and a “no-merit” letter pursuant to 

Turner/Finley.

1

In the “no-merit” letter, counsel explained, inter alia, why 

he believed the current PCRA petition was time-barred. On February 16, 

2018, the PCRA court issued notice of its intent to dismiss the petition as 

 

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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untimely-filed without a hearing per Pa.R.Crim.P. 907, and granted counsel’s 

request to withdraw. Despite Attorney DeStefano’s withdrawal, after 

receiving an email from Appellant with Appellant’s objections to the 

proposed dismissal, Attorney DeStefano filed the objections on Appellant’s 

behalf. Appellant also pro se filed a response on May 8, 2018. Following 

review of the responses, the court entered an order on May 24, 2018 

denying PCRA relief.

For reasons explained infra, Appellant did not receive this dismissal 

order. Thus, approximately six months later on December 24, 2018, 

Appellant filed pro se a petition to compel a ruling on his PCRA petition. The 

PCRA court denied the petition as moot on January 8, 2019, and re-sent the 

May 24, 2018 order to Appellant. Appellant filed a notice of appeal pro se on 

January 30, 2019.2

Before we address the substantive issues raised by Appellant, we must 

determine the timeliness of the filing of Appellant’s notice of appeal. See 

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) 

(explaining that the timeliness of an appeal impacts our jurisdiction). Rule 

902 requires a notice of appeal to be filed within 30 days after the entry of 

the order from which the appeal is taken. Pa.R.A.P. 902(a). Appellant’s 

notice of appeal is untimely-filed on its face, having been filed well past this 

timeframe. In the notice, however, Appellant explained that he initially did 

 

2 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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not receive the PCRA court’s May 24, 2018 order dismissing his petition. He 

asserts that he was unaware the PCRA court had issued a final order 

dismissing his petition until receiving the court’s response to his petition to 

compel a ruling.

Upon review of the record, we determine that Appellant’s untimelyfiled notice of appeal does not impact our ability to review his case. Although 

Rule 105(b) prohibits this Court from enlarging the time for filing a notice of 

appeal, the comment to that rule clarifies that subsection (b) “is not 

intended to affect the power of a court to grant relief in the case of fraud or 

breakdown in the processes of a court.” Pa.R.A.P. 105(b); Note to Pa.R.A.P. 

105. The record makes clear there was a breakdown in the process of the 

PCRA court in this case. 

Our Rules of Criminal Procedure require specific notice of a dismissal of 

a PCRA petition without a hearing. Pa.R.Crim.P. 907(4) provides:

When the petition is dismissed without a hearing, the judge 

promptly shall issue an order to that effect and shall advise the 

defendant by certified mail, return receipt requested, of the 

right of appeal from the final order disposing of the petition and 

of the time limits within which the appeal must be filed. The 

order shall be filed and served as provided in Rule 114.

Pa.R.Crim.P. 907(4) (emphasis added). Pursuant to Rule 114, service shall 

be prompt and in writing by “sending a copy to an unrepresented party by 
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certified, registered, or first class mail addressed to the party’s place of ... 

confinement.” Pa.R.Crim.P. 114(B)(3)(a)(v).3

In this case, although the docket indicates that the clerk of courts 

attempted to serve Appellant, a series of errors and failure to comply with 

Rule 907(4) prevented Appellant from receiving notice of the dismissal. A 

handwritten notation indicates that on May 25, 2018, the clerk of courts sent 

the May 24, 2018 dismissal order to Appellant by “mail” without further 

indication of the method. Order of Court, 5/24/2018, at 1. However, the 

next docket entry indicates the order had been returned to the clerk on May 

31, 2018. An envelope that was returned bears a notation by the United 

States Postal Service that the mail was “attempted – not known - unable to 

forward.” The PCRA court had expressly directed in the order that the clerk 

of courts serve Appellant a copy of the May 24, 2018 order by certified mail, 

return receipt requested as Pa.R.Crim.P. 907(4) requires, but the cancelled 

postage on the envelope reveals that the clerk sent the order via first-class 

mail instead. 

Furthermore, the clerk failed to include Appellant’s inmate number in 

the address and listed Appellant’s address as the address for Federal 

Correctional Institute (FCI) Allenwood in White Deer, PA. However, Appellant 

 

3 Combined, Rules 907 and 114 permit the dismissal order to be mailed via 

first-class mail, but only if a notice of appellate rights and timeframes is sent 

separately via certified mail, return receipt requested. PCRA courts 

frequently include the notice within the order, which then triggers the 

requirement that the combined order and notice be sent via certified mail.
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had informed the court on February 23, 2018, that he had been transferred 

from FCI Allenwood to FCI McKean.4 The record does not indicate that the 

court made any further attempts to provide Appellant with a copy of the May 

24, 2018 order until Appellant inquired about the status in December 2018 

via his petition to compel a ruling. At that point, the clerk mailed the order 

to SCI McKean using both the physical address of the prison and the inmate 

mailing address. 

The failure to comply with Rule 907(4) by sending notice of the 

dismissal and Appellant’s appeal rights via certified mail, return receipt 

requested, the failure to use Appellant’s inmate number in the address, and 

the clerk’s sending of the notice to a correctional institute the court knew or 

should have known no longer housed Appellant all cause us to conclude 

there was a breakdown in the processes of the court. Accordingly, we do not 

quash Appellant’s appeal based upon his untimely-filed notice of appeal. See 

Commonwealth v. Khalil, 806 A.2d 415, 421 (Pa. Super. 2002) (providing 

that failure of trial court to inform appellant of appeal rights was a 

breakdown of court’s processes that caused appellant to file an untimely 

appeal, and this Court had jurisdiction to proceed in untimely-filed appeal). 

 

4 Appellant conveyed the change of address in his request for an extension 

of time to file a response to the Rule 907 notice. The March 5, 2018 order 

granting his request instructed the clerk to send the order to FCI McKean. 

The docket indicates that the March 5, 2018 order was returned to the clerk 

with a checkmark next to a line stating “CANNOT IDENTIFY (NAME AND 

NUMBER).” The returned envelope does not show which address was used. 
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However, before we may proceed to address the merits of Appellant’s 

appeal, he must overcome another obstacle: the untimely filing of his PCRA 

petition. The timeliness of the filing of a post-conviction petition is 

jurisdictional. Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 

2011). Neither this Court nor the PCRA court has jurisdiction to address the 

merits of an untimely-filed petition. Commonwealth v. Leggett, 16 A.3d 

1144, 1145 (Pa. Super. 2011). Any PCRA petition, including second and 

subsequent petitions, must either (1) be filed within one year of the 

judgment of sentence becoming final, or (2) plead and prove a timeliness 

exception. 42 Pa.C.S. § 9545(b). At the time Appellant filed his PCRA 

petition, the PCRA also required a petitioner invoking a time-bar exception to 

plead and prove that he filed his petition within 60 days of the date the claim 

could have been presented. See 42 Pa.C.S. § 9545(b)(2) (effective from 

1995 to 2018).

5 “For purposes of [the PCRA], a judgment [of sentence] 

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 time for seeking the review.” 42 Pa.C.S. 

§ 9545(b)(3). 

 

5 On October 24, 2018, the General Assembly amended subsection 

9545(b)(2) in order to extend the time for filing a petition from 60 days to 

one year from the date the claim could have been presented. See 2018 

Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018. 
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Appellant’s judgment of sentence became final in April 2014. Because

the instant petition was filed approximately three years after his sentence 

became final, the petition is untimely on its face. In his petition, Appellant 

neither pleaded nor proved an exception to the PCRA time bar. This is fatal 

to his claim. Commonwealth v. Brown, 111 A.3d 171, 179 (Pa. Super. 

2015) (holding petitioner must plead and prove a time-bar exception in the 

petition to establish jurisdiction). Appellant later attempted to invoke the 

newly-discovered fact exception to the PCRA’s time bar in his responses to 

counsel’s Turner/Finley letter and the PCRA court’s Rule 907 notice, and in 

his brief on appeal, arguing that he did not learn until early 2017 that his 

Superior Court appeal had been dismissed in 2014. However, to receive the 

benefit of this exception, Appellant must plead and prove that a fact that he 

had newly discovered could not have been ascertained by the exercise of 

due diligence. The PCRA court concluded that there was no dispute of 

material fact over whether Appellant exercised due diligence because 

Appellant offered no reasonable explanation as to why he waited four years 

after his appeal had been filed to inquire about the status of his appeal. 

“Due diligence demands that the petitioner take reasonable steps to 

protect his own interests. A petitioner must explain why he could not have 

learned the new fact(s) earlier with the exercise of due diligence. This rule is 

strictly enforced.” Brown, 111 A.3d at 176. Due diligence “does not require 

perfect vigilance nor punctilious care, but rather it requires reasonable 
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efforts by a petitioner, based on the particular circumstances to uncover 

facts that may support a claim for collateral relief.” Commonwealth v. 

Brensinger, 218 A.3d 440, 449 (Pa. Super. 2019) (en banc) (citation and 

internal quotation marks omitted). “As such, the due diligence inquiry is 

fact-sensitive and dependent upon the circumstances presented.” Id.

Appellant asserts that he did not receive a March 28, 2014 letter from 

Attorney Tobias informing him that his appeal had been decided because he 

transferred to federal prison around that time. He further asserts that 

because he had counsel, he was relying upon her to keep him informed and 

assumed the appeal was still pending. According to Appellant, he requested 

transcripts and documents from this Court in late January 2017 to assist him 

in defending against a sentence enhancement in his federal court case. It 

was around this time that he learned that his appeal had been decided in 

2014. He then filed the PCRA petition asserting that Attorney Tobias 

rendered ineffective assistance of counsel by failing to consult with him 

regarding his appeal options once this Court had affirmed his judgment of 

sentence. Appellant argues he exercised due diligence because he relied 

upon Attorney Tobias to keep him informed and he assumed the appeal was 

pending, and Attorney Tobias failed to keep him informed by following up to 

her initial letter after she did not hear from him or having a direct 

conversation with him.
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This argument does not establish due diligence. This Court has held 

long ago that an allegation regarding ineffectiveness of counsel does not 

save a petition from the PCRA time bar. Commonwealth v. Carr, 768 A.2d 

1164, 1168 (Pa. Super. 2001). Due diligence requires petitioners to take 

steps to protect their own interests such as by contacting their counsel or 

the clerk of courts within a reasonable time. Id.; see also Commonwealth 

v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007) (remanding for factual 

determination of whether petitioner’s written inquiries were sufficient to 

demonstrate his due diligence of learning that his counsel abandoned him 

and that his appeal had been dismissed for counsel’s failure to file a brief). 

Waiting until 2017 to inquire about the status of an appeal filed in 2013 is 

not a reasonable effort to protect one’s own interests. Therefore, Appellant 

has failed to establish that he exercised due diligence, and the PCRA court 

did not err in dismissing without a hearing his petition as untimely filed. 

Based on the foregoing, we affirm the dismissal of Appellant’s PCRA 

petition. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/19/2021