Com. v. Gentilquore, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARREN RICHARD GENTILQUORE :
:
Appellant : No. 981 MDA 2022
Appeal from the PCRA Order Entered April 4, 2022
In the Court of Common Pleas of Susquehanna County Criminal Division
at No(s): CP-58-CR-0000183-2006
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED: MAY 4, 2023
Appellant Darren Richard Gentilquore appeals from the order denying
his second petition filed pursuant to the Post Conviction Relief Act1 (PCRA).
After review, we are constrained to quash.
A prior panel of this Court summarized the relevant facts and procedural
history of this matter as follows:
In 2005, Shaun Bigelow (Shaun), a resident of New Jersey,
purchased property in Susquehanna County, Pennsylvania, that
bordered [Appellant’s] property. Shaun and [Appellant] became
friends. On May 26, 2006, Shaun and his brother, Ryan Bigelow
(Ryan) (collectively, the Bigelows), along with their wives and
children, arrived at Shaun’s property to camp for Memorial Day
[w]eekend.
Tommy McCormick (McCormick), another neighbor of Shaun’s,
invited the Bigelows to come to his property to sit around the fire.
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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After the Bigelows’ wives and children went to bed, Shaun and
Ryan rode their [all-terrain vehicles (ATVs)] to McCormick’s
property. [Appellant] began to follow the Bigelows on his [ATV].
While on the trail to McCormick’s property, Ryan slowed down and
[Appellant] ran his ATV into the back of Ryan’s ATV, causing
damage. [Appellant] agreed to pay for the damage, resolving the
situation without any incident.
The Bigelows, [Appellant], McCormick, Jim Velcheck, and two of
McCormick’s guests sat around the fire and imbibed alcoholic
beverages. After a few hours, Ryan left the McCormick’s
[property] to go back to Shaun’s property. Later in the evening,
[Appellant] started a fight with McCormick’s guest, Anthony
Saverino (Saverino). Saverino and McCormick asked [Appellant]
to leave McCormick’s property and [Appellant] obliged. Shortly
after [Appellant] left, gunshots were fired. The gunshots woke
the Bigelows’ wives and children. Shaun’s wife yelled to
[Appellant] to stop shooting because it was scaring the kids.
There was a pause in the shooting, but shortly thereafter,
gunshots began again. Ryan decided he was going to go to
[Appellant’s] property to tell him to stop.
Ryan went to [Appellant’s] property, began banging on the storm
door, and “told him to cut this s--t.” [Appellant] did not respond
to Ryan. Ryan told [Appellant] to come outside and yelled, “Stop
shooting the f---ing gun, I got kids that are sleeping down there
and you’re scaring the s--t out of them.” [Appellant] did not
respond so Ryan got back on his ATV and began to head towards
McCormick’s property to get Shaun. Ryan believed that Shaun
would be able to get [Appellant] to stop shooting the gun since
they were friends.
The Bigelows rode their ATVs from McCormick’s property to
[Appellant’s] property. Shaun arrived first and quietly knocked on
the door. When Ryan arrived, he ran his ATV into [Appellant’s]
ATV because he was angry and as retaliation for [Appellant]
hitting his ATV earlier in the evening. Ryan proceeded to come to
[Appellant’s] front door to his house and bang on the door.
[Appellant] came to the front door with a gun. Shaun said to
Ryan, “Ryan, let it go he’s got a gun, let it go, we’ll deal with it
tomorrow.” Ryan approached the door, at which time, [Appellant]
told him to get off his property or else he was going to “blow the
barrel.” Ryan told [Appellant] if he did not come outside and face
him without a gun, he would “gut him like a pig” and threatened
to burn his house down.
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[Appellant] proceeded to stick the barrel of the gun out of the
storm door and poked Ryan with the gun. Ryan then called
[Appellant] a [“]f---ing p---y[”] and said, “you don’t have a hair
on your a-- to pull that trigger.” [Appellant] pulled the trigger,
shooting Ryan in the abdomen at point blank range. Shaun began
screaming at [Appellant], “Darren what the f--k are you doing?
It’s Shaun, it’s Shaun, what are you doing.” [Appellant] turned
towards Shaun and shot him in the abdomen.
Appellant was charged with two counts of attempted homicide and
four counts of aggravated assault. Appellant proceeded to a jury
trial, where he testified that he acted in self-defense, but was
convicted on all charges. On December 21, 2006, Appellant was
sentenced to two consecutive terms of twenty to forty years of
imprisonment at the attempted homicide convictions. Appellant
received no further penalty on the remaining charges, which
merged with the attempted homicide counts.
Appellant filed a timely notice of appeal. On appeal, Appellant
sought to challenge the discretionary aspects of his sentence.
However, after counsel failed to file a Pa.R.A.P. 2119(f) statement
and the Commonwealth objected, we deemed Appellant’s
challenges to the discretionary aspects of his sentence waived and
affirmed his judgment of sentence.
Appellant filed a timely pro se PCRA petition and amended it
several times, thereafter. The petition included allegations that,
inter alia, his appellate counsel was ineffective for failing to include
the Rule 2119(f) statement in his appellate brief. After two
hearings, the PCRA court found that Appellant’s PCRA counsel had
a conflict of interest, due to the fact that he shared office space,
sometimes worked with, and often praised the attorney whose
ineffectiveness Appellant sought to attack in his petition. New
counsel filed another amended PCRA petition. On July 12, 2010,
the PCRA court issued an order and opinion denying Appellant’s
motions and amended PCRA petition. On appeal, we issued an
order vacating the PCRA court’s July 12, 2010 dismissal, since it
failed to first give notice of its intention to dismiss the petition
pursuant to Pa.R.Crim.P. 907(1).
On remand, the PCRA court issued a proper Pa.R.Crim.P. 907(1)
notice of its intent to dismiss Appellant’s petition. After several
defense continuances were granted, Appellant filed an amended
PCRA petition and response to the court’s notice of intent to
dismiss. The PCRA court issued an order and opinion, addressing
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Appellant’s fifteen claims of counsel ineffectiveness and
[Appellant’s] allegation that the newly enacted castle doctrine
applied to him, and [the PCRA court denied] the [PCRA] petition
without a hearing.
A timely appeal followed. On appeal, Appellant raised several
allegations of ineffectiveness, including an allegation that
appellate counsel was ineffective for failing to include a Rule
2119(f) statement in his appellate brief. We agreed and found
that appellate counsel’s ineffectiveness compromised Appellant’s
direct appellate rights. Without reaching any other issues, we
reversed the PCRA court’s order and remanded to the case to the
PCRA court, directing it to reinstate Appellant’s direct appeal rights
nunc pro tunc.
On reinstated direct appeal, Appellant challenged the trial court’s
admission of testimony about his state of mind and prior bad acts,
along with its inclusion of color photographs that depicted the
Bigelows’ injuries. We affirmed Appellant’s judgment of sentence,
and our Supreme Court denied Appellant’s petition for allowance
of appeal. Commonwealth v. Gentilquore, 107 A.3d 222 (Pa.
Super. filed Sept. 9, 2014) (unpublished memorandum), appeal
denied 113 A.3d 278 (Pa. filed Apr. 8, 2015).
Appellant filed a timely pro se PCRA petition [on May 29, 2015.
The PCRA court appointed Joseph Gregory McGraw, Esq. (Attorney
McGraw) to represent Appellant. See Order, 11/6/15]. [Attorney
McGraw] filed an amended PCRA petition [on January 3, 2017,]
raising fourteen issues of trial counsel ineffectiveness. After
several continuances, an evidentiary hearing was held on March
29, 2018. At the hearing, Appellant’s trial counsel, Paul Walker
and Matthew Comerford, both testified. After each side submitted
post-hearing briefs, the PCRA court denied the petition [in an
order filed on January 14, 2019].
Commonwealth v. Gentilquore, 295 MDA 2019, 2020 WL 1304173, at *1–
3 (Pa. Super. filed Mar. 18, 2020) (unpublished mem.) (some citations omitted
and formatting altered).
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On February 13, 2019, Appellant filed a timely appeal from the January
14, 2019 order denying his PCRA petition. See id. at *3.2 In that appeal,
Appellant argued that both trial counsel were ineffective for failing to: file
pretrial motions to investigate expert testimony; introduce evidence of the
victims’ intoxication; and object to the introduction of an irrelevant assault
rifle at trial. See id. at *4. After review, this Court concluded that Appellant
failed to establish prejudice with respect to his claim that his trial counsel was
ineffective in failing to establish the extent to which the victims were
intoxicated. See id. Further, this Court concluded that Appellant’s claims
concerning trial counsel’s failure to file pretrial motions to investigate expert
testimony and failure to object to the introduction of the rifle were meritless.
See id. at *4-5. Therefore, on March 18, 2020, this Court affirmed the
January 14, 2019 order denying Appellant’s PCRA petition. See id. at *5.
Appellant did not seek allowance of appeal in our Supreme Court.
On May 14, 2020, Appellant filed a pro se second PCRA petition alleging
that Attorney McGraw was ineffective and challenging the imposition of
restitution. See Pro Se Second PCRA Petition, 5/14/20.3 Specifically,
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2 Attorney McGraw remained Appellant’s counsel of record throughout the
PCRA appeal process. See Notice of Appeal, 2/13/19; Superior Ct. Certificate
of Remittal, 5/21/20.
3 Appellant’s May 14, 2020 PCRA petition was chronologically his third PCRA
petition, but because his first PCRA petition resulted in the reinstatement of
his direct appeal rights nunc pro tunc, the subsequent May 29, 2015 PCRA
petition, which was chronologically his second PCRA petition, was treated as
(Footnote Continued Next Page)
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Appellant claims that Attorney McGraw was ineffective for failing to argue in
Appellant’s PCRA appeal that the castle doctrine (18 Pa.C.S. § 505) should
apply retroactively to Appellant’s case, despite Attorney McGraw’s conclusion
that this claim was baseless. See id. at ¶¶9-14. Moreover, Appellant asserted
that the trial court improperly added a restitution component to Appellant’s
sentence. See id. at ¶¶15-18.
On February 3, 2022, the PCRA court held a hearing, and on April 4,
2022, the PCRA court denied Appellant’s second PCRA petition for lack of
merit. See Order, 4/4/22. Appellant filed a motion for reconsideration on
April 11, 2022, and on April 21, 2022, the PCRA court filed an order scheduling
a hearing for June 10, 2022, on Appellant’s motion for reconsideration.
However, the April 21, 2022 order did not expressly grant reconsideration.
On June 10, 2022, the PCRA court held the hearing, and on June 27,
2022, the PCRA court entered an order purporting to grant in part, and
denying in part Appellant’s reconsideration motion. See Order, 6/27/22.
Specifically, the PCRA court stated it was granting reconsideration with respect
to Appellant’s claim concerning restitution and denied reconsideration of
Appellant’s second PCRA petition in all other respects. See id. Appellant filed
a notice of appeal on July 11, 2022. Both the PCRA court and Appellant
complied with Pa.R.A.P. 1925.
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a first PCRA petition. See Commonwealth v. Vega, 754 A.2d 714, 716 n.3
(Pa. Super. 2000).
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On appeal, Appellant presents the following issues:
1. Whether Appellant is entitled to retroactive application of 18
Pa.C.S. § 505(2.1)(b)(i-ii) (hereinafter the “castle doctrine”)
where he was on direct appeal at the time the castle doctrine
was the controlling law in the Commonwealth; where
appellants on direct appeal are traditionally entitled to the
application of the law at the time of the appeal; and this Court
has found the castle doctrine to be procedural and therefore
subject to retroactive application.
2. Whether the [PCRA] court manifestly abused its discretion in
finding prior counsel was not ineffective where the [PCRA]
court was never properly presented the issue of retroactive
application of the castle doctrine at the March 29, 2018 hearing
and February 3, 2022[] hearing, and therefore has not made a
definitive ruling thereon; where the [PCRA] court considered
the undocketed Second Amended Petition for Post-Conviction
Collateral Relief in rendering its decision; and where prior
counsel did not raise the issue of retroactive application of the
castle doctrine to Appellant’s case outside of the March 29,
2018 hearing and undocketed petition.
3. Whether considerations of equity, truth, and justice call for
Appellant to be awarded a new trial based upon his case’s
tortured history and the litany of errors committed by prior
counsels that have prejudiced his due process rights resulting
in his continued incarceration for the last sixteen (16) years.
Appellant’s Brief at 4-5 (some formatting altered).
In reviewing an order denying a PCRA petition, our standard of review
is well settled:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
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Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(citations omitted and formatting altered).
Moreover, we note that the timeliness of a PCRA petition is a threshold
jurisdictional question. See Commonwealth v. Miller, 102 A.3d 988, 992
(Pa. Super. 2014); see also Commonwealth v. Ballance, 203 A.3d 1027,
1031 (Pa. Super. 2019) (stating that “no court has jurisdiction to hear an
untimely PCRA petition” (citation omitted)). “A PCRA petition, including a
second or subsequent one, must be filed within one year of the date the
petitioner’s judgment of sentence became final, unless he pleads and proves
one of the three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).”
Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (citation and footnote
omitted).4 A judgment of sentence becomes final at the conclusion of direct
review, or at the expiration of time for seeking such review. See id. at 17.
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4 Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final if the petitioner pleads and proves one of
the following three statutory exceptions:
(i) the failure to raise the claim previously was the result of
interference by 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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Before we reach the merits of Appellant’s appeal, we must first
determine whether Appellant’s notice of appeal was timely. It is well settled
that the timeliness of an appeal is jurisdictional, and a notice of appeal must
be filed within thirty days after the entry of the order from which the appeal
is taken. See Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super.
2000); Pa.R.A.P. 903(a).
As noted previously, the PCRA court denied Appellant’s second PCRA
petition on April 4, 2022. Therefore, Appellant had until May 4, 2022, to file
a timely notice of appeal. The appeal period under Pa.R.A.P. 903(a) may only
be tolled if the PCRA court enters an order “expressly grant[ing]
reconsideration within the thirty[-]day appeal period.” Moir, 766 A.2d at
1254; Pa.R.A.P. 1701(b)(3). Indeed, the filing of a motion for reconsideration
alone, in the absence of an order from the PCRA court expressly granting
reconsideration within thirty days, does not toll the appeal period. Moir, 766
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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. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions
must file a petition within one year of the date the claim could have first been
presented. See 42 Pa.C.S. § 9545(b)(2). It is the petitioner’s “burden to
allege and prove that one of the timeliness exceptions applies.”
Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citations
omitted and some formatting altered). Additionally, we note that on October
24, 2018, the General Assembly amended Section 9545(b)(2) and extended
the time for filing a petition from sixty 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. The amendment applies only to claims
arising one year before the effective date of this section, December 24, 2017,
or thereafter.
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A.2d at 1254. Instantly, the PCRA court scheduled a hearing on Appellant’s
motion for reconsideration, but such action by itself does not toll the appeal
period. See id. (holding that the trial court’s action of scheduling a hearing
on a motion for reconsideration was insufficient to toll the appeal period).
Because the PCRA court did not expressly grant Appellant’s motion for
reconsideration of its April 4, 2022 order denying Appellant’s second PCRA
petition within the thirty-day appeal period, the time for filing an appeal was
not tolled. Therefore, the PCRA court’s June 27, 2022 order is a nullity, 5 and
Appellant’s July 11, 2022 notice of appeal was untimely.6 Since Appellant did
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5See Moir, 766 A.2d at 1254; see also See Commonwealth v. Harris, 230
A.3d 1124, 1127 (Pa. Super. 2020) (holding that any “act taken by a court
without proper jurisdiction is null and void.”).
6 In any event, even if Appellant had filed a timely appeal, we would conclude
that his second PCRA petition was untimely. Appellant’s judgment of sentence
became final on July 7, 2015, ninety days after the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal, when the time for
petitioning for a writ of certiorari in the United States Supreme Court expired.
See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule 13. Accordingly, Appellant
had until July 7, 2016, to file a timely PCRA petition. See 42 Pa.C.S. §
9545(b)(1). Here, Appellant’s second PCRA petition was not filed until May
14, 2020, and as such, it is patently untimely. Further, Appellant did not
allege and prove an exception to the time bar pursuant to Section
9545(b)(1)(i)-(iii). Although the PCRA court held a hearing and denied
Appellant’s second PCRA petition for lack of merit, Appellant’s petition was
untimely, and therefore, the PCRA court did not have jurisdiction to address
the merits of his claims. See Ballance, 203 A.3d at 1031. Accordingly, even
if Appellant had filed a timely appeal, we would conclude that Appellant’s
second PCRA petition was untimely, and we would affirm the PCRA court’s
order denying Appellant’s petition on the basis that it was untimely filed. See
Commonwealth v. Beck, 848 A.2d 987, 991 n.8 (Pa. Super. 2004) (holding
that we may affirm the PCRA court’s decision if it is correct on any basis).
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not file a timely appeal preserving his appellate rights, we are without
jurisdiction to address his appeal. See id. For these reasons, we are
constrained to quash.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/04/2023
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