J-S02029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAMIAN A. LAYTON

Appellant No. 1879 EDA 2016

Appeal from the PCRA Order May 9, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No: CP-23-CR-0004081-2005

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 11, 2017

Appellant, Damian A. Layton, appeals from the May 9, 2010 order 

entered in the Court of Common Pleas of Delaware County (“PCRA court”) 

denying his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

This Court previously summarized the factual history of the matter as 

follows.

In December 2004, Newtown Township Police Detective 

John Newell received information from a confidential informant 

that the occupants of 2405 Peoples Street, Chester, 

Pennsylvania, were selling cocaine from inside of the residence. 

The informant indicated that “Larry” and “Damian” were selling 

cocaine, and that the informant had purchased cocaine at the 

residence. This purchase took place two weeks prior to the date 

that police applied for a search warrant of the premises. In 

addition, Detective Newell conducted a controlled purchase of 

narcotics, using the same informant, within 48 hours of the 

application for the search warrant.
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On April 1, 2005, police executed a search warrant at the 

Peoples Street residence. Police Detective Christopher 

Sponaugle proceeded to the second floor of the residence, where 

he observed [Appellant] and co-defendant Kenneth Byrd 

(“Byrd”) run out of a bedroom and move rapidly into the 

bathroom, closing the door behind them. Detective Sponaugle 

and two other officers tried to force the door open. During this 

time, Detective Sponaugle heard the sound of a flushing toilet. 

When the door finally opened, Detective Sponaugle observed 

[Appellant] standing and Byrd squatting next to the toilet. 

According to Detective Sponaugle, both [Appellant] and Byrd 

were wet, a sandwich bag was floating in the toilet, white 

powder residue was on the bathroom floor and there was an 

odor of cocaine in the bathroom. [Appellant] and Byrd 

subsequently were placed under arrest.

After a bench trial, the trial court convicted [Appellant] of 

the above described offenses.[1] The trial court subsequently 

sentenced [Appellant] to an aggregate prison term of 54-108 

months. 

Commonwealth v. Layton, 504 EDA 2007, Unpublished Memorandum at 

1-2 (Pa. Super. filed Feb. 2, 2009). This Court affirmed the judgment of 

sentence on February 2, 2009. See id. Following a PCRA petition to 

reinstate his appellate rights nunc pro tunc, our Supreme Court denied 

Appellant’s petition for allowance of appeal on June 22, 2010. 

Commonwealth v. Layton, 997 A.2d 1176 (Pa. 2010). Therefore, 

Appellant’s judgment of sentence became final on September 20, 2010. 

____________________________________________

1 Appellant was convicted of possession of a controlled substance, 

possession of a controlled substance with the intent to deliver, possession of 

drug paraphernalia, and conspiracy to possess a controlled substance with 

the intent to deliver. 35 P.S. § 780-113(a)(16), (30), (32); 18 Pa.C.S.A. § 

903.
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Appellant filed a pro se PCRA petition on March 22, 2011. The PCRA 

court appointed counsel, and counsel filed a Turner/Finley2 no-merit letter 

contemporaneously with an application to withdraw. The PCRA court 

dismissed Appellant’s PCRA petition on March 8, 2012. Appellant filed a 

notice of appeal, and this Court affirmed the PCRA court’s dismissal on 

August 15, 2014. 

On October 24, 2014, Appellant filed a second pro se PCRA petition, 

the instant petition, asserting an ineffective assistance of counsel claim. The 

Commonwealth filed a response on February 13, 2015, and Appellant filed a 

reply on February 23, 2015. The Commonwealth filed a supplemental 

response on March 4, 2015. On August 5, 2015, Appellant filed a petition to 

amend his PCRA petition to assert an Alleyne3claim. On August 7, 2015, 

the PCRA court appointed Scott Galloway, Esquire, as counsel for Appellant 

after determining that an evidentiary hearing on Appellant’s petition was 

necessary. Counsel filed an amended PCRA petition on November 5, 2015. 

An evidentiary hearing was held on January 22, 2016, during which 

the PCRA court heard testimony from Mary Mann, Esquire, Lawrence Narcisi, 

Esquire, Elliot Cohen, Esquire, and Appellant. On January 28, 2016, 

Appellant and the Commonwealth filed a written stipulation as to the 

____________________________________________

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

3 United States v. Alleyne, 133 S.Ct. 2151 (2013).
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testimony of Rob Levant, Esquire, from a PCRA hearing on September 7, 

2010.4 On May 9, 2016, the PCRA court entered an order denying 

Appellant’s PCRA petition. Appellant filed a timely notice of appeal on June 

6, 2016, and a concise statement on July 11, 2016. The PCRA court issued 

an opinion on September 7, 2016.

Appellant raises a sole issue on appeal.

I. Was the [PCRA] court in error for denying the amended 

post conviction relief act petition alleging ineffectiveness 

on the part of trial counsel for not conveying an offer to 

[Appellant] prior to the commencement of trial[.]

Appellant’s Brief at 4. 

First, we must address whether the PCRA court had jurisdiction to 

reach the merits of Appellant’s petition. This Court “may sua sponte 

consider whether we have jurisdiction to consider the merits of the claims 

presented.” See Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 

2015) (citation omitted). Moreover, “[w]hen a PCRA court lacks jurisdiction 

to consider the merits of a petition, we likewise lack jurisdiction to consider 

an appeal from disposition of the petition.” Id. (citation omitted). 

Applicable to the matter sub judice, in order for a PCRA court to have 

jurisdiction, the petition must “be filed within one year of the date the 

judgment becomes final, unless the petition alleges and the petitioner 

____________________________________________

4 This testimony occurred during a hearing on Appellant’s co-defendant 

Kenneth Byrd’s PCRA petition.
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proves that . . . 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[.]” 42 Pa.C.S.A. § 9545(b). 

While Appellant’s petition is facially untimely, he pled an exception to 

the timeliness requirement. Specifically, that he was unaware of the plea 

offer until April 2013.5 When reviewing an order denying a PCRA petition, 

this Court “must determine whether the ruling of the PCRA court is 

supported by the record and is free of legal error. The PCRA court’s 

credibility determinations, when supported by the record are binding on this 

Court.” Commonwealth v. Spotz, 18 A.3d 244 , 259 (Pa. 20101) (citing 

Commonwealth v. Johnson, 966 A.2d 523, 532, 539 (Pa. 2009); 

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008)). 

The PCRA court held a hearing and found the testimony of Mary Mann, 

Esquire, Lawrence Narcisi, Esquire, and the stipulation entered into on 

January 28, 2016, in which Rob Levant, Esquire, “stated he specifically 

recalled that an offer was conveyed to [Appellant] and Kenneth Byrd in the 

courtroom” to be credible. Trial Court Order, 5/9/2016. The trial court 

“found that a plea offer was made, and that a plea offer was conveyed to 

____________________________________________

5 As Appellant’s first PCRA petition was on appeal at the time he discovered 

this information, he was unable to file a second PCRA petition until the first 

petition had been resolved. See Commonwealth v. Lark, 746 A.2d 585, 

588 (Pa. 2000).
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[Appellant] in this case by counsel.” Id. As this Court is bound by the 

credibility determinations of the PCRA court, and the determinations are 

supported by the record, we find that while Appellant properly pled a 

timeliness exception, he failed to prove such exception. The PCRA court, 

having found that the plea offer was conveyed to Appellant well before April 

2013, was without jurisdiction to address the merits of Appellant’s petition. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2017