Com. v. Dean, F. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FREDERICK DEMON DEAN :
:
Appellant : No. 575 WDA 2021
Appeal from the PCRA Order Entered April 16, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003379-2014
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: December 10, 2021
Frederick Demon Dean appeals pro se from the order, entered in the
Court of Common Pleas of Erie County, denying as untimely his third petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Upon review, we affirm.
This Court previously summarized the facts of this case as follows:
The record reflects that shortly before 9:00 p.m. on August 26,
2014, SWAT officers on a vehicle patrol detail observed
[Dean] walking northbound on a sidewalk in the 1100 block
of Wayne Street in Erie. The sidewalk runs alongside the parking
lot of TJ’s bar. The officers observed [Dean] walking toward a
house located next to that parking lot. Immediately after
the patrol vehicle passed [Dean], officers heard a gunshot
coming from the direction where they had just observed [Dean].
No other individuals were in the area. The officers stopped the
cruiser, exited, and began looking for [Dean]. The officers then
found a gun in the backyard of the house that they observed
[Dean] walking toward. A grass strip measuring approximately
10 to 15 feet separates the parking lot of TJ’s bar from that
particular house. The officers then went into TJ’s bar to look
for [Dean]. The bartender told the officers that [Dean] was
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in the back of the kitchen hiding in a closet. The officers found
[Dean] sitting in a utility closet. The utility closet contained
a sink. [Dean] was completely wet. Officers instructed
[Dean] to show them his hands. [Dean] refused and began
kicking the officers. [Dean] was tased and then taken into
custody. During this incident, [Dean], without provocation,
stated, “I wasn’t shooting at you guys. If this goes away[,] I'll
give you whatever you want. I know several drug dealers from
Detroit.” Surveillance footage corroborated law enforcement’s
version of events. It also revealed that [Dean] was wearing a hat
when police officers initially observed him prior to the shot being
fired. When he entered TJ’s bar, however, [Dean] was no longer
wearing the hat. Surveillance footage established that prior to
entering TJ’s bar, [Dean] walked into the area where the gun was
found and made a “throwing motion” over a 6–foot stockade
fence. Officers subsequently recovered the hat on the ground on
the other side of the stockade fence from where officers observed
[Dean] making the “throwing motion.” A baggie of heroin was
tucked inside the hat.
Commonwealth v. Dean, 159 A.3d 590, (Table) [2016 WL 6805459, at *1]
(Pa. Super. filed Nov. 17, 2016) (unpublished memorandum).
On June 17, 2015, following a jury trial, Dean was convicted of persons
not to possess firearms, carrying a firearm without a license, resisting arrest,
possession of an instrument of crime (PIC), possession of controlled
substances, and possession of drug paraphernalia.1 On August 17, 2015, the
court sentenced Dean to a term of 60 to 120 months’ imprisonment for
persons not to possess firearms, a consecutive term of 12 to 24 months’
imprisonment for possession of controlled substances, and a consecutive
term of nine to 24 months’ imprisonment for resisting arrest. The court
imposed concurrent sentences on the remaining charges. Dean subsequently
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1See 18 Pa.C.S.A. §§ 6105, 6106, 5102, and 907, and 35 P.S. §§ 780-
113(a)(16) and (a)(32), respectively.
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filed a pro se post-sentence motion on August 18, 2015, a waiver of counsel
on August 31, 2015, and a pro se notice of appeal on September 10, 2015.
Following Dean’s request for appointment of counsel on March 18, 2016, and
a trial court colloquy on the same, trial counsel was permitted to withdraw,
and new counsel was appointed. On direct appeal, Dean challenged the
sufficiency of the evidence for his firearms and PIC convictions. A panel of
this Court affirmed, concluding the issue was waived for being undeveloped in
Dean’s appellate brief. See Dean, supra. Two judges filed a concurring
statement indicating that the issues, even if they were not waived, were
meritless. See id. The Pennsylvania Supreme Court denied Dean’s petition
for allowance of appeal on June 1, 2017.
On August 2, 2017, Dean, pro se, filed a timely PCRA petition. Following
a Grazier2 hearing on August 28, 2017, the PCRA court issued notice of its
intent to dismiss Dean’s petition without a hearing pursuant to Pa.R.Crim.P.
907; Dean filed three pro se responses. On November 9, 2017, the PCRA
court entered an order denying relief, and Dean timely appealed to this Court.
On August 28, 2019, this Court affirmed the denial of PCRA relief. Specifically,
we concluded that Dean’s challenges to the sufficiency and weight of the
evidence were previously litigated and waived, respectively, and that Dean’s
bald assertion that trial counsel was ineffective for failing “to use . . . [gunshot
residue] testing of his clothing” was insufficient to warrant relief where the
record contained no support for his allegation that the police tested his
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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clothing for gunshot residue. See Commonwealth v. Dean, 37 WDA 2018,
at 8-9 (Pa. Super. filed Aug. 29, 2018) (unpublished memorandum) (Dean
II). We further noted that, although Dean’s claim that counsel’s failure to cite
any authority in the appellate brief, resulting in waiver of his sufficiency
challenge, was of arguable merit, and counsel could have had no reasonable
basis for his actions, Dean failed to demonstrate the third prong of the
ineffectiveness test, prejudice, where two of the three judges on direct appeal
concluded that even if Dean’s sufficiency claim were not waived, he would be
entitled to no relief. Id. at 9-10.
On December 7, 2020, Dean filed a second, albeit untimely, PCRA
petition pro se, alleging ineffective assistance of trial counsel and an illegal
sentence. That same day, the PCRA court filed its Rule 907 notice of intent to
dismiss the petition without a hearing, finding that Dean failed to plead and
prove an exception to the PCRA’s time-bar. On January 15, 2021, the PCRA
court issued a final order dismissing the petition. Dean timely filed an appeal
to this Court, but discontinued the appeal on March 9, 2021.
On March 17, 2021, Dean filed the instant petition, his third, pro se.
Therein, Dean alleged eligibility for PCRA relief based on his innocence, after-
discovered exculpatory evidence, ineffective assistance of counsel, an illegal
sentence, and a Brady3 violation. On March 22, 2021, the PCRA court issued
its Rule 907 notice of intent to dismiss the petition, and on April 16, 2021, the
petition was dismissed. Dean filed a notice of appeal to this Court on May 6,
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3 Brady v. Maryland, 373 U.S. 83 (1963).
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2021, followed by a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal raising the following issues for our review:
1. [Whether t]rial counsel was ineffective for stipulating to the
forensic report prepared by forensic expert Corporal
Burlingame without him being physically present to be
effectively confronted and cross-examined as guaranteed in
the 6th Amendment of the United States Constitution and also
the Pennsylvania Constitution.
2. Did the Commonwealth fail[] to disclose evidence favorable to
[Dean] [by] not submitting item TAG #55191 AG . . . as
required by Brady?
3. Did the sentence[ing] court err[] in giv[ing Dean] an illegal
sentence[ where] the sentence to count[s five] and [six] fell
outside of [] legal parameters, [and] did the sentenc[ing] court
err when it did not appl[y] merger/double jeopardy [to] counts
[five through ten]?
Rule 1925(b) Statement, 5/18/21. In his appellate brief, however, Dean
purports to raise the following issues:
1. The evidence in this case was insufficient to prove . . . [PIC]
and firearms to be carried without a license[.]
2. Whether the Commonwealth . . . committed a Brady violation
in failing to disclose the very exculpatory scientific evidence
that demonstrates his actual innocence?
3. Whether [counsel was ineffective for] fail[ing] to produce/present
exculpatory scientific evidence [of] the DNA swab sample [and] touch
DNA testing compared to the allege[d] handgun?
4. Whether the sentenc[ing] court erred when it handed down an illegal
sentence and when it did not appl[y] merger/Double Jeopardy to
counts [five through ten and] failed to appl[y] the Blockburger
Double Jeopardy analysis?
5. Whether [the PCRA court] err[ed] in failing to address the clams that
were [] incorporated in [Dean’s pro se second PCRA petition].
Brief of Appellant, at 3-4.
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When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court’s order is supported by the record and free of legal
error. Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018).
We are bound by a PCRA court’s credibility determinations, but with regard to
a court’s legal conclusions, we apply a de novo standard. Id. Before reaching
the issues that Dean raises in his appellate brief, however, we must first
ascertain whether the PCRA court correctly determined that his PCRA petition
was untimely filed. See Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.
2000) (PCRA time limit is jurisdictional; court may only review untimely
petition if statutory exception applies).
Generally, a petition for relief under the PCRA must be filed within one
year of the date the judgment of sentence becomes final unless the petitioner
alleges, and proves, an exception to the time for filing the petition, set forth
at 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).4 A PCRA petition invoking one of these
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4 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of government officials with the presentation of 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
(Footnote Continued Next Page)
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statutory exceptions must be filed within sixty days from the date the claim
arises. See id. at § 9545(b)(2).5 Under 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 of
Pennsylvania, or at the expiration of time for seeking the review.” Id. at §
9545(b)(3). “When a PCRA [petition] is not filed within one year of the
expiration of direct review, or not eligible for one of the exceptions, the [PCRA]
court has no power to address the substantive merits of a petitioner’s PCRA
claims.” Commonwealth v. Shiloh, 170 A.3d 553, 557 (Pa. Super. 2017).
Here, Dean’s judgment of sentence became final upon the expiration of
the 90-day period following the Pennsylvania Supreme Court’s denial of his
petition for allowance of appeal on June 1, 2017, when the time for seeking
discretionary review with the United States Supreme Court expired. See U.S.
Sup. Ct. R. 13.6 Therefore, Dean had until August 30, 2018, to file a timely
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of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).
5 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. Here, Dean raises claims stemming from his
2015 jury trial and sentencing. Therefore, the 60-day deadline applies.
6 See also 42 Pa.C.S.A. § 9545(b)(3) (judgment is deemed final “at the
conclusion of direct review . . . or at the expiration of time for seeking
review.”); Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (judgment is
(Footnote Continued Next Page)
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PCRA petition. The instant petition, filed over two years later, is patently
untimely. Accordingly, Dean must plead and prove that one of the statutory
timeliness exceptions applies, and he must have filed the instant petition
within sixty days of the date the claim could have been brought. 42 Pa.C.S.A.
§§ 9545(b)(1)-(2).
Instantly, we note, as we did upon review of Dean’s second pro se PCRA
petition, that Dean’s pro se brief contains a “rambling and disjointed
argument.” See Dean II, supra at 6; see also Brief of Appellant, at 9-21.
We previously cautioned Dean that:
“[A]lthough this Court is willing to construe liberally materials filed
by a pro se litigant, pro se status generally confers no special
benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d
245, 252 (Pa. Super. 2003)[.] “[A]ny layperson choosing to
represent himself in a legal proceeding must, to some reasonable
extent, assume the risk that his lack of expertise and legal training
will prove his undoing.” Commonwealth v. Gray, 608 A.2d
534, 550 (Pa. Super. 1992), quoting Vann v. Commonwealth
Unemployment Compensation Bd. of Review, 494 A.2d 1081,
1086 (Pa. 1985). We cannot serve as Dean’s counsel, and will
not litigate claims for him.
Dean II, supra at 6-7.
In both his pro se PCRA petition and appellate brief, Dean fails to plead
and prove an exception to the PCRA’s time-bar under section 9545(b). His
sole argument relating to the timeliness of his petition is that “[Dean] has an
actual innocence claim of arguable merit [and there] is no time bar on a[n]
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deemed final ninety days after Pennsylvania Supreme Court denies petition
for allowance of appeal, since defendants have ninety days to seek review
with United States Supreme Court).
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actual innocence claim.” Brief of Appellant, at 21. We disagree. See 42
Pa.C.S.A. §§ 9545(b).
It is well-settled that “[the PCRA’s] time requirement is mandatory
and jurisdictional in nature, and the court may not ignore it in order to reach
the merits of the petition.” Commonwealth v. Hernandez, 79 A.3d 649,
651 (Pa. Super. 2013). Because Dean has failed to plead and prove an
exception to the PCRA’s time-bar under section 9545(b), the PCRA court
properly dismissed his serial petition as untimely. Id.; see also Murray,
supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2021
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