J-S35038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSEPH DURKIN,

Appellant No. 326 EDA 2015

Appeal from the PCRA Order January 7, 2015

in the Court of Common Pleas of Bucks County

Criminal Division at No.: CP-09-CR-0007257-2007

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 08, 2015

Appellant, Joseph Durkin, appeals from the order of January 7, 2015, 

dismissing, without a hearing, his second petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because the 

petition is untimely without applicable exception, we affirm.

In an earlier appeal, the trial court summarized the factual and initial 

procedural history of this case as follows:

Appellant was one of thirty-four co-defendants who were 

arrested and charged in connection with what we will term the 

James Beal corrupt organization—an extensive drug trafficking 

network that operated in Bucks and surrounding counties. The 

police investigation into this corrupt organization began with 

physical surveillance by law enforcement and the use of 

confidential informants in February[] 2007. With the help of 

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* Retired Senior Judge assigned to the Superior Court.
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these confidential informants, the Commonwealth was able to 

conduct 16 controlled buys under police surveillance, some of 

which included controlled buys between undercover officers and 

James Beal. Confidential informants also allowed law 

enforcement to conduct consensual wiretaps on their 

conversations with James Beal.

In March 2007, upon applications by the Bucks County 

District Attorney’s Office, two orders from the Bucks County 

Court of Common Pleas were issued to allow the installation of a 

GPS mobile tracking unit and a live GPS tracking device on one 

of James Beal’s vehicles. The GPS unit on Beal’s vehicle was 

operational for 26 days, wherein law enforcement was able to 

determine that Beal followed a “regular route” on most of these 

days, starting in the Bristol/Bensalem area of Bucks County. 

During the course of travelling [sic] on this route, Beal would 

make the majority of his stops in various retail and commercial 

parking lots, making a total of 406 stops over a 21-day period.

On May 24, 2007, the Commonwealth submitted an 

affidavit in support of an application for the interception of wire 

and electronic communications on two of James Beal’s cellular 

telephones to . . . the Superior Court of Pennsylvania. The 

Superior Court issued an order authorizing interception of 

communications on the two Beal cellular telephones on May 24, 

2007. Police immediately began intercepting telephone calls on 

Beal’s telephones. As a result of the wiretap that was placed on 

James Beal’s two cellular telephones, the police were able to 

record countless telephone calls between Beal and the thirty-four 

co-defendants involved in the corrupt organization, including 

Appellant . . . .

The contents of these recorded telephone conversations 

demonstrate that James Beal, the leader of the corrupt 

organization, was in the business of buying and selling various 

controlled substances, including cocaine; powder and crystal 

methamphetamine; ecstasy, marijuana, and steroids. Beal,

Appellant, and the other members of the corrupt organization 

spoke of these controlled substances by using code words and 

other vague references to mask the true nature of the type of 

drug and amount of drugs in which they were dealing. . . .

. . . Appellant had forty-seven telephone conversations with Beal 

between May 24 and June 14, 2007, the majority of which 
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revolved around the acquisition and distribution of controlled 

substances. Within these conversations, Appellant and Beal 

used many of the code words to discuss Appellant’s acquisition 

of crystal methamphetamine from James Burden, Jr., Appellant’s

drug supplier who held a residence in Texas. Appellant and Beal

would contact each other to discuss when mailed packages from 

Burden would arrive from Texas to Appellant, and when Beal 

could then pick up his share of these packages from Appellant. . 

. .

On June 14, 2007, James Burden Jr. was arrested at [the] 

Philadelphia International Airport[.] Burden Jr. admitted to 

possessing controlled substances, and was found to have, 

among other controlled substances, seven ounces of crystal 

methamphetamine strapped to his body at the time of arrest. 

Also on June 14, 2007, the Philadelphia Court of Common 

Pleas approved a search warrant for Appellant’s residence at 218 

Lockart Street, Philadelphia, Pennsylvania. Law enforcement 

executed the search warrant at Appellant’s residence and found,

among other items, eighteen large pots of marijuana plants; 

grow lights; assorted marijuana growing equipment and 

paraphernalia; numerous glassine bags; and an electronic scale. 

While law enforcement was conducting the search, a UPS 

package arrived at Appellant’s residence. The package was 

opened pursuant to a search warrant[,] which was obtained from 

the Philadelphia Municipal Court, and was found to contain 7.2 

ounces of crystal methamphetamine.

On July 17, 2007, the Commonwealth submitted a 271[-

]page affidavit of probable cause to the District Court, which 

issued warrants for the arrest of Appellant and his codefendants. On July 18, 2007, Appellant was arrested and taken 

into custody. 

(Trial Court Opinion, 9/16/08, at 3-7) (record citations omitted).

On March 27, 2008, following a bench trial, the trial court found 

Appellant guilty of corrupt organizations, criminal use of a communication 
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facility, three counts of possession with intent to deliver (PWID), and two 

counts of attempted PWID.1 That same day, the trial court sentenced 

Appellant to an aggregate term of incarceration of not less than fifteen nor 

more than forty years, and a fine of $150,000.

On March 30, 2009, we affirmed the judgment of sentence, holding 

that the trial court had properly denied Appellant’s motion to suppress and 

that it did not err in admitting the testimony of a Commonwealth expert 

witness. (See Commonwealth v. Durkin, 974 A.2d 1180 (No. 1301 EDA 

2008, unpublished memorandum at *9 (Pa. Super. filed March 30, 2009))). 

On February 5, 2010, the Pennsylvania Supreme Court denied Appellant’s 

petition for allowance of appeal. (See Commonwealth v. Durkin, 989 

A.2d 7 (Pa. 2010)). 

On July 6, 2010, Appellant, acting pro se, filed a timely PCRA petition. 

On July 19, 2012, following several changes of counsel, attempts by 

Appellant to represent himself, and the filing of multiple amended PCRA 

petitions, the PCRA court held an evidentiary hearing, at which Appellant 

was represented by counsel. At the conclusion of the hearing, the PCRA 

court directed the parties to file briefs in support of their respective 

positions, and Appellant again requested leave to proceed pro se. On 

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1 18 Pa.C.S.A. §§ 911, 7512, 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 

901, respectively.
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December 21, 2012, the PCRA court held a Grazier2 hearing and granted 

Appellant permission to proceed pro se. On April 3, 2013, the PCRA court 

denied Appellant’s first PCRA petition. 

On March 10, 2014, this Court affirmed the denial of Appellant’s first 

PCRA petition, holding, in part, that trial/appellate counsel was not 

ineffective for failing to raise the issue of whether the Court of Common 

Pleas of Buck County had subject matter jurisdiction over the charges and 

that Appellant’s sentence was legal. (See Commonwealth v. Durkin, 100 

A.3d 302 (No. 1527 EDA 2013, unpublished memorandum at **10-13, 18-

20 (Pa. Super. filed March 10, 2014))). Appellant did not seek leave to 

appeal to the Pennsylvania Supreme Court.

On June 5, 2014, Appellant, acting pro se, filed the instant PCRA 

petition. On November 7, 2014, Appellant, through counsel, filed an 

amended PCRA petition. On December 12, 2014, the PCRA court issued 

notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of 

Criminal Procedure 907. On January 7, 2015, the PCRA court dismissed the 

petition as untimely. The instant, timely appeal followed. On February 3, 

2015, the PCRA court ordered Appellant to file a concise statement of errors 

complained of on appeal. See Pa.R.A.P. 1925(b). On February 12, 2015, 

____________________________________________

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Appellant filed his Rule 1925(b) statement; on March 12, 2015, the PCRA 

court issued an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review:

I. Did the P.C.R.A. [c]ourt violate Appellant’s rights 

under the Sixth and Fourteenth Amendments by 

finding that the petition was untimely filed and that 

Appellant failed to raise, allege and plead any valid 

statutory exception to the time bar?

II. Did the P.C.R.A. [c]ourt violate Appellant’s rights 

under the Sixth and Fourteenth Amendments by 

finding that Appellant did not use due/reasonable 

diligence in filing the instant pro se P.C.R.A. petition 

and/or that it was not timely filed within 60 days of 

his learning the newly discovered evidence’[s] 

existence and import?

III. Did the P.C.R.A. [c]ourt violate Appellant’s rights 

under the Sixth and Fourteenth Amendments by 

finding that the claim was previously litigated?

IV. Did the P.C.R.A. [c]ourt violate Appellant’s rights 

under the Sixth and Fourteenth Amendments by 

finding that Appellant[’s] claim was waived[?]

V. Did the P.C.R.A. [c]ourt violate Appellant’s rights 

under the Sixth and Fourteenth Amendments by 

finding that Appellant’s new evidence claim was 

without merit and Appellant was not entitled to 

relief[?]

(Appellant’s Brief, at 4).3

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3 While Appellant claims that the trial court violated his rights under the 

Sixth and Fourteenth Amendments to the United States Constitution in his 

Statement of the Questions Involved, he abandons that argument in the 

(Footnote Continued Next Page)
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Appellant appeals from the denial of his PCRA petition. To be eligible 

for relief pursuant to the PCRA, Appellant must establish that his conviction 

or sentence resulted from one or more of the enumerated errors or defects 

found in 42 Pa.C.S.A. § 9543(a)(2). He must also establish that the issues 

raised in the PCRA petition have not been previously litigated or waived. 

See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “is waived if the 

petitioner could have raised it but failed to do so before trial, at trial, during 

unitary review, on appeal or in a prior state postconviction proceeding.” 42 

Pa.C.S.A. § 9544(b). Our standard of review for an order denying PCRA 

relief is well settled:

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Great deference is granted to the findings of the PCRA court, and 

these findings will not be disturbed unless they have no support 

in the certified record. 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a 

trial court has no jurisdiction to entertain the petition.” Commonwealth v. 

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). 

(Footnote Continued) _______________________

body of the brief. (See Appellant’s Brief, at 4, 9-24). Therefore, we find 

Appellant’s constitutional claims waived. See Commonwealth v. Jones, 

815 A.2d 598, 604 n.3 (Pa. 2002) (claims raised in the Statement of 

Questions Involved but not pursued in the body of the brief are waived).
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In the instant matter, Appellant filed his PCRA petition on June 5, 

2014. The PCRA provides that “[a]ny petition under this subchapter, 

including a second or subsequent petition, 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 for PCRA purposes “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.A. § 9545(b)(3). 

Here, the Pennsylvania Supreme Court denied Appellant’s petition for 

allowance of appeal on February 5, 2010. Therefore, Appellant’s judgment 

of sentence became final on May 6, 2010, ninety days after the Pennsylvania 

Supreme Court denied leave to appeal and Appellant did not file a petition 

for a writ of certiorari with the United States Supreme Court. See 

U.S.Sup.Ct.R. 13. Therefore, Appellant had one year, until May 6, 2011, to 

file a timely PCRA petition. Because Appellant did not file his petition until 

June 5, 2014, the petition is facially untimely. Thus, to obtain PCRA relief, 

he must plead and prove that his claim falls under one of the statutory 

exceptions to the one-year time bar provided at section 9545(b). See 42 

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Section 9545 provides that the court can still consider an untimely 

petition where the petitioner successfully pleads and proves that:

(i) the failure to raise the claim previously was the result 

of interference by government officials with the presentation of 
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the claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws of the United States; 

(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; or 

(iii) 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. 

Id. 

Further, a petitioner who wishes to invoke any of the above exceptions 

must file the petition “within 60 days of the date the claim could have been 

presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court has 

repeatedly stated that it is an appellant’s burden to plead and prove that one 

of the above-enumerated exceptions applies. See, e.g., Commonwealth 

v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 

(2008). 

Here, Appellant contends that he qualifies under the newly discovered 

facts exception. (See Appellant’s Brief, at 9-16). However, Appellant’s 

claim is less than coherent. (See id.). To the extent that Appellant’s claim 

can be determined, he appears to aver that his new evidence consists of this 

Court’s prior opinion affirming the denial of his first PCRA petition (PCRA 

Decision). (See id. at 10). Appellant states that this decision “set[s] forth 

new facts which establish for the very first time that his current sentence is 

illegal.” (Id. at 9) (internal quotation marks omitted). 
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In his appeal from the denial of his first PCRA petition, Appellant 

argued that his sentence was illegal because his three PWID convictions 

should have merged for purposes of sentencing. (See Durkin, supra 1527 

EDA 2013, at 18). We disagreed, holding that “[e]ach of [Appellant’s] PWID 

convictions were based upon his possession of three different controlled 

substances located in different locations. Thus, the PWID offenses are not 

predicated upon a single criminal act for merger purposes.” (Id. at 20) 

(citation omitted). Appellant now argues that by holding that the three 

possessory offenses were independent and not part of one single criminal 

episode, this Court created a new fact. (See Appellant’s Brief, at 15). 

Appellant claims this new fact proves that the Court of Common Pleas of 

Bucks County did not have jurisdiction over the charges against Appellant, 

as they stemmed from drug seizures in Philadelphia County, and, therefore, 

his sentence is illegal. (See id. at 11-16). We disagree. 

It is well-settled that a new judicial opinion does not constitute a newly 

discovered fact for purposes of 42 Pa.C.S.A. § 9545(b)(1)(ii). See 

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). In fact, “[o]ur 

Courts have expressly rejected the notion that judicial decisions can be 

considered newly-discovered facts which would invoke the protections 

afforded by section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 

759, 763 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (case 

citations omitted). In Watts, our Supreme Court stated:
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Law is a principle; fact is an event. Law is conceived; fact 

is actual. Law is a rule of duty; fact is that which has been 

according to or in contravention of the rule. Put another way, A 

‘fact,’ as distinguished from the ‘law,’ . . . [is that which] is to be 

presumed or proved to be or not to be for the purpose of 

applying or refusing to apply a rule of law. Consistent with these 

definitions, an in-court ruling or published judicial opinion is law, 

for it is simply the embodiment of abstract principles applied to 

actual events. The events that prompted the analysis, which 

must be established by presumption or evidence, are regarded 

as fact.

Watts, supra at 986-87 (some internal quotation marks and citations 

omitted). 

Appellant disregards this body of law and instead relies upon an 

unpublished memorandum decision of this Court, Commonwealth v. 

William Barrett, No. 540 EDA 2012 (Pa. Super. filed, May 5, 2013), for the 

proposition that “a new factual determination can be found in the body of 

decisional law.” (Appellant’s Brief, at 11). However, “an unpublished 

memorandum of this Court carries no precedential weight, apart from the 

parties involved in that particular case.” Midwest Financial Acceptance 

Corp. v. Lopez, 78 A.3d 614, 627 n.2 (Pa. Super. 2013) (citation omitted). 

Thus, Appellant has not provided any appropriate legal support for his 

contention that a prior case can constitute a newly discovered fact.4 The 

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4

In any event, Barrett is inapposite. In Barrett, the appellant discovered 

via decisions in the cases of his co-defendants that a key prosecution 

witness had recanted. See Barrett, supra at 3. Thus, the newly 

discovered fact in Barrett was not the decisions in the cases of his codefendants, but the recantation of the witness; the prior cases merely 

(Footnote Continued Next Page)
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decisions in Watts and Cintora are binding precedent, and Appellant has 

failed to show that he falls under the exception enunciated at 42 Pa.C.S.A. § 

9545(b)(1). See Watts, supra at 987; Cintora, supra at 763.

 Moreover, even if we were to hold that our PCRA Decision constituted 

a newly discovered fact, Appellant’s claim would fail because he did not file 

the instant PCRA petition “within 60 days of the date the claim could have 

been presented.” 42 Pa.C.S.A. § 9545(b)(2). Although we issued the PCRA 

Decision on March 10, 2014, Appellant, apparently relying upon the prisoner 

mailbox rule,5claims that he did not receive the decision until March 18, 

2014, and thus that the sixty days should be counted, at the earliest,6from 

that date. (See Appellant’s Brief, at 17-18). 

Firstly, Appellant has not cited to any legal authority to support his 

contention that for purposes of 42 Pa.C.S.A. § 9545(b)(2), the prisoner 

mailbox rule deems “the date the claim could have been presented” as sixty 

days from the date the prisoner received a copy of the decision rather than 

(Footnote Continued) _______________________

served as the vehicle through which Barrett discovered the fact. See id. at 

5-8. 

5

“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is 

deemed filed on the date he delivers it to prison authorities for mailing.” 

Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011), appeal 

denied, 46 A.3d 715 (Pa. 2012) (citation omitted); see Pa.R.A.P. 121.

6 Appellant attempts to argue, without citation to relevant legal authority 

that the sixty-day date should be counted from point the he “gain[ed] an 

understanding . . . [of] the significance” of the decision.” (See Appellant’s 

Brief, at 18-19).
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the date it became available. 42 Pa.C.S.A. § 9545(b)(2); (see Appellant’s 

Brief, at 17-19). In any event, even if we were to use the date of March 18, 

2014, Appellant still filed his petition beyond the sixty-day date. Appellant 

signed his PCRA petition on June 2, 2014, seventy-six days after he received 

the PCRA Decision. (See PCRA petition, 6/05/14, at 58). Thus, his PCRA 

petition was not timely under the sixty-day rule. See 42 Pa.C.S.A. § 

9545(b)(2).

Further, Appellant appears to contend that his petition should be 

considered timely because he challenges the legality of his sentence and 

such a challenge can never be waived. (See Appellant’s Brief, at 20-21). 

However, in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the 

Pennsylvania Supreme Court rejected a similar contention. The Fahy Court 

stated, “[a]lthough legality of sentence is always subject to review within the 

PCRA, claims must still first satisfy the PCRA’s time limits or one of the 

exceptions thereto.” Fahy, supra at 223 (citation omitted). Thus, 

Appellant cannot evade the PCRA timeliness requirements based on a claim 

on an illegal sentence. See id. 

Appellant also appears to claim that his conviction constitutes a 

fundamental miscarriage of justice. (See Appellant’s Brief, at 21-24). This 

Court has held that equitable claims such as a fundamental miscarriage of 

justice do not afford relief from the PCRA’s jurisdictional time-bar. See 

Commonwealth v. Sattazahn, 869 A.2d 529, 536 (Pa. Super. 2005) 
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(there is no legal support for claim that untimely PCRA petition can be 

decided on merits if petitioner claims fundamental miscarriage of justice). 

Therefore, there is no legal support for Appellant’s claim that he can avoid 

the time limit of the PCRA by claiming a fundamental miscarriage of justice. 

Thus, because the record demonstrates that Appellant’s PCRA petition 

is untimely with none of the statutory exceptions to the time bar proven, we 

affirm the order of the trial court dismissing Appellant’s second PCRA 

petition.7

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2015

 

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7 Because we hold that Appellant’s PCRA petition is untimely, we need not 

address his contention that the trial court erred in finding that his claims 

were previously litigated. (See Appellant’s Brief, at 19-20).