Com. v. Newman, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARRYL NEWMAN :
:
Appellant : No. 177 EDA 2021
Appeal from the PCRA Order Entered October 29, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000730-2012
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 29, 2021
Darryl Newman (Newman) appeals from the October 29, 2020 order of
the Court of Common Pleas of Philadelphia County (PCRA court) dismissing
his second petition filed pursuant to the Post-Conviction Relief Act1 (PCRA) as
untimely. We reverse and remand for further proceedings.
The facts underlying this case are not necessary to our disposition.
Briefly, Newman was convicted of aggravated assault and possession of an
instrument of crime following a jury trial in 2014.2 He was sentenced to 7 to
15 years’ incarceration followed by 5 years’ probation for the count of
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 2702(a) & 907(a).
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aggravated assault. On the count of possession of an instrument of crime, he
was sentenced to 5 years’ probation concurrent to the probation imposed for
the count of aggravated assault. Newman timely filed a direct appeal which
this Court dismissed on May 19, 2015, for failure to file a brief.3 He did not
seek further review in the Supreme Court.
Newman filed his first counseled PCRA petition on April 5, 2016.4 He
argued that trial counsel was ineffective for failing to file a motion to dismiss
pursuant to Pa.R.Crim.P. 600, failing to call character witnesses, and failing to
file a motion to suppress an eyewitness’s identification testimony. The PCRA
court subsequently issued notice of its intent to dismiss the petition without a
hearing pursuant to Pa.R.Crim.P. 907. The petition was formally dismissed on
March 31, 2017, and Newman timely appealed. This Court affirmed the
dismissal on May 17, 2019, and our Supreme Court denied his petition for
allowance of appeal on November 14, 2019. See Commonwealth v.
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3 Newman retained new counsel to represent him on appeal following his trial.
In lieu of filing a concise statement pursuant to Pa. R.A.P. 1925(b), appellate
counsel filed a statement averring that he intended to withdraw the direct
appeal and file a PCRA petition. The docket from the direct appeal reveals
that counsel did not file a motion to discontinue the appeal. See
Commonwealth v. Newman, 1910 EDA 2014 (Pa. Super. May 19, 2014)
(docket sheet). Accordingly, it was dismissed for failure to file a brief.
4The same attorney represented Newman on direct appeal and in his first
PCRA proceeding.
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Newman, 1318 EDA 2017, at *2 (Pa. Super. May 17, 2019) (unpublished
memorandum), allocator denied, 303 EAL 2019 (Pa. Nov. 14, 2019).
On January 6, 2020, Newman filed the instant pro se PCRA petition
pleading the jurisdictional time-bar exception for newly-discovered facts. See
42 Pa.C.S. § 9545(b)(1)(ii). He averred that he did not know that his direct
appeal had been dismissed for failure to file a brief until he received a copy of
the May 9, 2018 opinion the PCRA court filed in response to his appeal from
the dismissal of his first PCRA petition. He stated that appellate counsel chose
to forego the direct appeal in favor of filing the PCRA petition without
consulting Newman and against his wishes. He pled that he was entitled to
substantive relief based on ineffective assistance of counsel and requested
that his direct appeal rights be reinstated nunc pro tunc.
He pled that he and his mother, Tori Taylor (Taylor), would testify at an
evidentiary hearing that they retained appellate counsel to file a motion to
reconsider his sentence and pursue a direct appeal. He included an affidavit
signed by Taylor which stated that she had retained appellate counsel on
Newman’s behalf for the direct appeal. She averred that she received a call
from Newman in late May 2018 and he was upset because he had just learned
that based on the PCRA court’s opinion, that appellate counsel had failed to
file a brief in his direct appeal. See Petition for Post Conviction Collateral
Relief, 1/6/20, Exhibit 1. He also attached several messages he sent to
appellate counsel requesting updates on the status of his case in April 2018
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and March 2019. Id., Exhibits 3-5. In a message dated March 27, 2019, he
expressed frustration that counsel had “put all [his] eggs in one basket…after
skipping over [his] direct appeal (in which [he] believe[d] [he] would have
gotten relief).” Id., Exhibit 5.
The Commonwealth filed a response arguing that the petition was
untimely and should be dismissed. It contended that Newman had not
exercised due diligence to ascertain the alleged new fact and that he had failed
to file his petition within one year of discovering the alleged new fact. See
Response, 6/16/20, at 4. On October 29, 2020, the PCRA court dismissed
Newman’s petition as untimely. Newman appealed and he and the PCRA court
have complied with Pa. R.A.P. 1925.
Before we proceed to the merits of Newman’s claim, we must first
address our jurisdiction over this appeal. Newman’s notice of appeal was
docketed in the PCRA court on December 28, 2020, nearly two months after
the order dismissing his petition was docketed. In his notice of appeal,
Newman wrote: “I, hereby certify that I did not receive said order until
12/4/20 via DOC mail delivery.” Notice of Appeal, 12/28/20. The notice and
attached certificate of service are signed and hand-dated December 5, 2020.
The certified record contains a scanned copy of the envelope in which Newman
sent the notice but the postmark is illegible. In its opinion pursuant to Pa.
R.A.P. 1925(a) the PCRA court stated that Newman’s notice of appeal was
timely filed on December 5, 2020. See PCRA Court Opinion, 4/6/21, at 2.
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On April 21, 2021, this Court issued a Rule to Show Cause why the
appeal should not be quashed as untimely when it was filed over 30 days after
the order dismissing the PCRA petition was entered. See Pa.R.A.P. 903(a).
Due to an extended lockdown at SCI-Somerset occasioned by a COVID-19
outbreak in his unit, Newman sought an extension of time to respond which
this Court granted. Newman filed his brief on appeal on May 17, 2021, and
on the cover noted that it “shall also suffice for the order to show cause.”
However, he did not provide any argument or explanation in the filing in
response to the Rule to Show Cause. In its brief, the Commonwealth does
not contest the timeliness of the appeal and cites the overwhelming volume
of mail processed by the United States Postal Service in October, November
and December 2020 as the likely cause of delay in Newman’s receipt of the
PCRA court’s order dismissing his petition. Commonwealth’s Brief at 13-14.
Because he was incarcerated at the time he filed his notice of appeal,
Newman is entitled to the benefit of the “prisoner mailbox rule.” See Pa.
R.A.P. 121(f) (“A pro se filing submitted by a person incarcerated in a
correctional facility is deemed filed as of the date of the prison postmark or
the date the filing was delivered to the prison authorities for purposes of
mailing. . . .”). “[W]e are inclined to accept any reasonably verifiable evidence
of the date that the prisoner deposits the [filing] with the prison authorities.”
Commonwealth v. Betts, 240 A.3d 616, 619 n.5 (Pa. Super. 2020) (citation
omitted). In Betts, we concluded that a filing that was docketed untimely by
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two days but included a certificate of service indicating that it was timely
delivered to prison authorities was timely filed “[g]iven the inherent delays
associated with mail delivery and the totality of the circumstances.” Id.Here, the order denying Newman’s petition was docketed and mailed to
him by the prothonotary on October 29, 2020. Accordingly, he had until
November 30, 2020, to file his notice of appeal.5 Pa. R.A.P. 903(a). The
certificate of service on the notice indicates that Newman mailed it five days
late after receiving the PCRA court’s order in the mail on December 4, 2020.
The notice was not docketed by the prothonotary until December 28, 2020.
Like the PCRA court, we accept the certificate of service as “reasonably
verifiable evidence” that Newman mailed his notice of appeal on December 5,
2020, and this date serves as the filing date under the prisoner mailbox rule.
Betts, supra; PCRA Court Opinion, 4/6/21, at 2. However, this date renders
the notice of appeal untimely by five days.
“Generally, an appellate court cannot extend the time for filing an
appeal. . . . Nonetheless, this general rule does not affect the power of the
courts to grant relief in the case of fraud or breakdown in the processes of the
court.” Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007)
(citations omitted). Appellate courts may grant nunc pro tunc relief in
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5 The 30th day fell on Saturday, November 28, 2020. As a result, Newman
had until the next business day, or Monday, November 30, 2020, to file his
notice of appeal. See 1 Pa. C.S. § 1908.
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extraordinary circumstances. See Criss v. Wise, 781 A.2d 1156, 1559 (Pa.
2001). An appeal may be permitted nunc pro tunc where the appellant proves
“(1) the appellant’s notice of appeal was filed late as a result of non-negligent
circumstances, either as they relate to the appellant or the appellant’s
counsel; (2) the appellant filed the notice of appeal shortly after the expiration
date; and (3) the appellee was not prejudiced by the delay.” Id. We conclude
that these requirements were met here.
In his notice of appeal, Newman certified that he did not receive the
PCRA court’s order through the prison mail system until December 4, 2020,
and he promptly mailed his notice the following day. Newman could not have
filed his notice of appeal before becoming aware of the PCRA court’s order and
did not delay in filing the notice once he received the order.6 The notice of
appeal was mailed shortly after the expiration date, as it was untimely by five
days. Finally, as the Commonwealth does not contest the timeliness of
Newman’s appeal, it was not prejudiced by the delay. Accordingly, we decline
to quash and move on to the merits of the appeal.
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6 We agree with the Commonwealth that the United States Postal Service was
processing an unprecedented and overwhelming volume of mail in late
October and November 2020, resulting in delivery delays. See
Commonwealth’s Brief at 13-14.
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On appeal, Newman contends that the PCRA court erred in dismissing
his petition as untimely under the PCRA’s jurisdictional time-bar.7 “A PCRA
petition, including a second and subsequent petition, shall be filed within one
year of the date the underlying judgment becomes final.” Commonwealth
v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation omitted); see
also 42 Pa.C.S. 9545(b)(1). “[A] judgment 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). Because the
timeliness requirements of the PCRA are jurisdictional, no court may consider
the merits of an untimely petition. Commonwealth v. Small, 238 A.3d
1267, 1280 (Pa. 2020).
Newman’s sentence became final in 2015 when this Court dismissed his
direct appeal for failure to file a brief. 42 Pa.C.S. § 9545(b)(3). Because he
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7 Whether a PCRA petition is timely filed is a question of law over which our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations
omitted). “The standard of review of an order dismissing a PCRA petition is
whether that determination is supported by the evidence of record and is free
of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.
2017). “[A] PCRA court has discretion to dismiss a PCRA petition without a
hearing if the court is satisfied that there are no genuine issues concerning
any material fact; that the defendant is not entitled to post-conviction
collateral relief; and that no legitimate purpose would be served by further
proceedings.” Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super.
2017) (citations omitted).
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did not file the instant petition until January 6, 2020, his petition is facially
untimely and he must plead and prove one of the exceptions to the PCRA’s
timeliness requirements: that he was prevented from raising the claim earlier
by government interference; that the claim is based on newly-discovered facts
that could not have been ascertained earlier; or that the claim is predicated
on a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
In addition, the petitioner invoking a time-bar exception must file the petition
raising the claimed exception within one year8 of the date the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(2).
Newman asserts that his petition is timely under the exception for
newly-discovered facts. 42 Pa.C.S. § 9545(b)(1)(ii). The newly-discovered
facts exception “does not require any merits analysis of the underlying claim.”
Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (internal quotations
and citation omitted). To establish timeliness pursuant to the newly-
discovered facts exception, “the petitioner must establish only that (1) the
facts upon which the claim was predicated were unknown and (2) they could
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8 As of December 24, 2018, Section 9545(b)(2) states that any PCRA petition
invoking a time-bar exception must be filed within one year rather than 60
days of the date the claim first could have been presented. See Act 2018,
Oct. 24, P.L. 894, No. 146, § 2, effective Dec. 24, 2018. The amendment
applies only to claims arising on or after December 24, 2017. Id. at § 3.
Newman’s claim arises from his receipt of the PCRA court’s Pa. R.A.P. 1925(a)
opinion on May 9, 2018, in response to his first PCRA appeal. Therefore, his
claim is governed by the one-year time limit.
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not have been ascertained by the exercise of due diligence.” Id. “Due
diligence requires neither perfect vigilance nor punctilious care, but rather it
requires reasonable efforts by a petitioner, based on the particular
circumstances, to uncover facts that may support a claim for collateral relief.”
Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en
banc). “Due diligence demands that the petitioner take reasonable steps to
protect his own interests.” Commonwealth v. Brown, 111 A.3d 171, 176
(Pa. Super. 2015).
In dismissing the petition, the PCRA court concluded that Newman had
not exercised due diligence to learn the outcome of his direct appeal because
the dismissal was a matter of public record and his appellate counsel filed a
motion in the trial court indicating his intent to withdraw the direct appeal.
PCRA Court Opinion, 4/6/21, at 5-6. Our Supreme Court has overruled the
presumption that a defendant knows facts that are in the public record, such
as the disposition of an appeal, for the purposes of the newly-discovered facts
exception. Small, supra, at 1285-86. Therefore, we consider whether
Newman has pled sufficient facts to establish that he did not have actual
knowledge of the dismissal of his direct appeal until May 2018 and that he
could not have learned of the dismissal through exercising due diligence.9
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9 On appeal, the Commonwealth concedes that Newman’s petition was filed
within the one-year time limit for raising a time-bar exception and argues that
(Footnote Continued Next Page)
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In his petition, Newman pled that he did not learn of the May 19, 2015
dismissal of his direct appeal until he received a copy of the Pa. R.A.P. 1925(a)
opinion filed in response to his first PCRA appeal in May 2018. In support of
this claim, he attached an affidavit from Taylor averring that she retained
appellate counsel to pursue a direct appeal, and that Newman was upset in
May 2018 when he realized that his direct appeal had been dismissed for
failure to file a brief. Additionally, he attached copies of messages he
allegedly sent to counsel seeking updates on the status of his case. In a
message from March 2019, he expressed frustration that counsel had
discontinued the direct appeal in favor of pursuing a PCRA petition.
However, as noted by the PCRA court, appellate counsel filed a response
in lieu of a Pa. R.A.P. 1925(b) statement in Newman’s direct appeal stating
that he intended to withdraw the appeal. The response stated that “after a
review of the record and consultation with Mr. Newman” counsel would be
withdrawing the direct appeal in favor of pursuing claims of ineffective
assistance of trial counsel. See Appellant’s Response to Court Order Pursuant
to Rule 1925, 11/13/14, at 1. The trial court filed a responsive opinion on
March 6, 2015, noting that counsel had intended to withdraw the direct
appeal, but the certified record does not contain a certificate of service
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he is entitled to an evidentiary hearing regarding whether he met the due
diligence requirement of the exception. See Commonwealth’s Brief at 14-22.
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showing whether this filing was sent directly to Newman. Similarly, there is
no indication in the record that this Court’s May 19, 2015 order dismissing the
appeal for failure to file a brief was served directly on Newman. He remained
represented by appellate counsel at that time.
Additionally, appellate counsel references the completion of Newman’s
direct appeal in his first PCRA petition. See Petitioner’s Memorandum of Law
in Support of PCRA Petition, 4/5/16, at 7 n.2 (“[Newman’s] judgment of
sentence became final on June 19, 2015, thirty days after his appeal in the
Superior Court concluded. The instant petition, filed less than a year later was
thus timely filed.”). The certificate of service indicates only that the pleading
was sent to the Commonwealth. Similarly, the Commonwealth’s motion to
dismiss the petition references the dismissal of the direct appeal, but the
certified record does not contain a certificate of service for that pleading. See
Commonwealth’s Motion to Dismiss, 9/28/16, at 4. Because Newman was
represented by counsel at the time that all of these pleadings were filed, there
is no indication of record that the pleadings were sent directly to him and
Newman disputes whether counsel communicated the outcome of his direct
appeal to him, we cannot conclude based solely on these filings that Newman
knew that his direct appeal was dismissed for failure to file a brief.
The certified record also contains a letter sent from Newman to the
prothonotary docketed August 19, 2019, in which Newman asserts that
appellate counsel failed to file a brief in his direct appeal, communicate that
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his direct appeal had concluded, or forward him relevant pleadings from his
direct appeal and PCRA proceedings. Finally, in its response to the instant
petition, the Commonwealth represented that it had spoken with appellate
counsel and that he “contests defendant’s assertions that defendant was
unaware his appeal was being withdrawn in order for counsel to file a PCRA
petition.” Response, 6/16/20, at 4 n.1.
Under these circumstances, the certified record and Newman’s petition
evidence a question of fact as to when Newman learned that his direct appeal
had been dismissed based on appellate counsel’s failure to file a brief. To
resolve this question, the PCRA court would have to make a credibility
determination weighing the evidence set forth in Newman’s petition and
related testimony, appellate counsel’s recollection of events, and whether and
when Newman actually received the various filings related to his direct appeal
and first PCRA petition. The PCRA court would also have to determine whether
Newman exercised due diligence to learn the outcome of his appellate
proceedings while represented by counsel. Because neither this Court nor the
PCRA court could resolve these factual questions based on the information in
the certified record, we conclude that an evidentiary hearing was necessary
to determine whether Newman had properly invoked the newly-discovered
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facts exception.10 The PCRA court erred by dismissing the petition without a
hearing to resolve this issue. Accordingly, we reverse the order dismissing
the petition and remand for an evidentiary hearing.11
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2021
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10 We note that Newman could not have filed the instant petition while his first
PCRA petition was pending on appeal, from April 24, 2017, through November
14, 2019. See Commonwealth v. Beatty, 207 A.3d 957, 963 (Pa. Super.
2019) (“Where a prior petition is pending on appeal, a subsequent petition
must be filed within the time limits set forth in Section 9545(b)(2) as
measured from the date of the order that finally resolves the appeal in the
prior petition, because that date is the first date the claim could be
presented.”). Accordingly, if the PCRA court concludes that Newman learned
of the dismissal of his direct appeal for failure to file a brief in May 2018, he
would have presented his newly-discovered facts claim “within one year of the
date the claim could have been presented” by filing the instant petition on
January 6, 2020. 42 Pa.C.S. 9545(b)(2).
11 Because we remand for an evidentiary hearing, Newman is entitled to the
appointment of counsel. See Pa.R.Crim.P. 903(D).
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