Com. v. Darby, M.

J-S32026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW ISAIAH DARBY :
:
Appellant : No. 300 WDA 2021
Appeal from the PCRA Order Entered February 1, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0002886-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW ISAIAH DARBY :
:
Appellant : No. 301 WDA 2021
Appeal from the PCRA Order Entered February 1, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0000997-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW ISAIAH DARBY :
:
Appellant : No. 302 WDA 2021
Appeal from the PCRA Order Entered February 1, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0000980-2018
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
J-S32026-21
MEMORANDUM BY MURRAY, J.: FILED: JANUARY 3, 2022
Matthew Isaiah Darby (Appellant) appeals1 from the order denying his
first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. Upon review, we vacate and remand for a hearing.
On September 20, 2017, Appellant broke into the apartment of his
former girlfriend, Alina Sheykhet (the Victim). The Victim and her roommates
told Appellant multiple times to leave, and Appellant eventually “left through
the front door and sped away in his vehicle.” N.T., 10/17/18, at 23. The
Victim then contacted police and the Commonwealth charged Appellant with
criminal trespass at CP-02-CR-997-2018 (the criminal trespass case).
On September 21, 2017, the Victim obtained a temporary protection
from abuse (PFA) order prohibiting Appellant from contacting her or entering
her residence. Police arrested Appellant five days later on an outstanding
warrant in the criminal trespass case. Appellant posted bond the same day,
with the condition that he have no contact with the Victim. Id. at 26.
In violation of the bail condition and PFA order, Appellant broke into the
Victim’s apartment a second time in the early morning hours of October 8,
2017, and murdered the Victim with a hammer and two knives he obtained in
the apartment building. The Commonwealth charged Appellant with criminal
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1 Appellant filed separate notices of appeal at each docket consistent with
Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018). We consolidated
the appeals sua sponte on April 27, 2021.
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homicide, burglary, flight to avoid apprehension, theft by unlawful taking, and
possessing instruments of crime at CP-02-CR-980-2018 (the homicide case).
The Commonwealth also filed a notice of intention to seek the death penalty
and notice of aggravating circumstances.
A few days later, a 17-year-old female contacted police to report that
Appellant had raped her a week prior, on October 3, 2017. The
Commonwealth charged Appellant with rape, sexual assault, indecent assault
without consent, unlawful contact with a minor, and two counts of simple
assault at CP-02-CR-2886-2018 (the rape case).
On October 17, 2018, Appellant entered negotiated guilty pleas at each
of the three dockets. In exchange for the Commonwealth’s withdrawal of its
intent to seek the death penalty, Appellant pled guilty to first-degree murder
and the other charges in the homicide case. That same day, the court
sentenced Appellant to life in prison without parole, followed by a consecutive
aggregate sentence of 18½ - 37 years of incarceration. In the criminal
trespass case, Appellant pled guilty to criminal trespass and the trial court
sentenced Appellant to 3½ - 7 years of incarceration to run concurrent to the
sentence in the homicide case. In the rape case, Appellant pled guilty to two
counts of simple assault and received a sentence of 2 - 4 years of incarceration
to be served consecutive to the sentence in the homicide case. Appellant did
not file post-sentence motions or a direct appeal.
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On October 17, 2019, Appellant filed the underlying counseled PCRA
petition raising claims of plea counsel’s ineffectiveness. However, the petition
did not include signed certifications regarding witnesses and testimony as
required by 42 Pa.C.S.A. § 9545(d).2 On November 13, 2019, the PCRA court3
issued a Memorandum Opinion and Notice of Intention to Dismiss Pursuant to
Pa.R.Crim.P. 907.
Appellant filed a timely response on December 13, 2019 in which he
repeated his claim that he pled guilty as the “result of ineffectiveness of
counsel.” Answer to Notice of Intention to Dismiss PCRA Motion, 12/13/19,
at 7. In more than 20 averments, Appellant alleged ways in which plea
counsel “failed to explain,” “failed to investigate,” and “chose not to perform
the investigation and analysis . . . required for a fair analysis of risk.” Id. at
2-6.
On February 24, 2020, the Commonwealth filed an answer detailing its
argument that Appellant’s claims of ineffective assistance of counsel lacked
merit. Nonetheless, the Commonwealth stated, “in light of the claims
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2 “Where a petitioner requests an evidentiary hearing, the petition shall
include a certification signed by each intended witness stating the witness’s
name, address, date of birth and substance of testimony and shall include any
documents material to that witness’s testimony.” 42 Pa.C.S.A. § 9545(d)(i)
(emphasis added).
3 The Honorable Jeffrey A. Manning, who sat as the trial court, continued to
preside in Appellant’s post-conviction proceedings until January 2021, when
the case was reassigned to the Honorable Edward J. Borkowski.
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presented, the Commonwealth concedes that an evidentiary hearing may be
necessary to resolve this issue.” Answer to Petition for Post Conviction Relief,
2/24/20, at 31. By order entered June 11, 2020, Judge Manning reversed
course and entered an order stating, “upon consideration of the
Commonwealth’s Answer to Post Conviction Relief Act Petition in which the
Commonwealth concedes that an Evidentiary Hearing may be required, it is
ORDERED that a hearing shall be held in this matter.” Order, 6/11/20.
A hearing was scheduled for September 23, 2020. “However, a few
days prior to the hearing,” the PCRA court “received notice from [Appellant’s]
counsel regarding his intention to call out of town witnesses to testify at the
hearing.” See Order, 2/26/21, at 2 (unnumbered). The Commonwealth,
having received no prior notice of Appellant’s intent to call these witnesses
due to Appellant’s failure to include a signed certification pursuant to 42
Pa.C.S.A. § 9545(d), filed a motion to enforce the provisions of 42 Pa.C.S.A.
§ 9545(d). The PCRA court granted the motion and the hearing was
continued. The court instructed:
[Appellant] shall produce a signed certification as to each intended
witness stating the witness’s name, address, date of birth and
substance of testimony and shall disclose any documents material
to that witness’s testimony. Failure to substantially comply with
the requirements shall render the proposed witness’s testimony
inadmissible.
Order, 9/16/20.
There was no further activity until January 2021, when Judge Manning
became unavailable due to health reasons, and the case was reassigned to
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Judge Borkowski. On February 1, 2021, Judge Borkowski issued an order
explaining that he was dismissing Appellant’s petition,
for the reasons set forth in the Memorandum Opinion and Notice
of Intention to Dismiss Pursuant to Pa.R.Crim.P. 907, dated
November 13, 2019, and after review of [Appellant’s] Answer to
Notice of Intention to Dismiss Petition Under the Pennsylvania
Post-Conviction Relief Act and Petitioner/Defendant’s Rule
902(a)(14) Verification of Answer to Notice of Intention to Dismiss
Petition Under the Pennsylvania Post-Conviction Relief Act, the
Commonwealth’s Answer to Post Conviction Relief Act Petition, the
Commonwealth’s Motion to Enforce Provisions of 42 Pa.C.S.A.
§9545(d), and [Appellant’s] failure to comply with the September
15, 2020, Order of Court directing the defendant to comply with
42 Pa.C.S.A. §9545(d).
Order, 2/1/21 (footnote omitted).
Appellant filed a motion for reconsideration on February 23, 2021, which
the PCRA court denied. Order, 2/26/21, at 2 (explaining Appellant “has been
given ample opportunity by the [PCRA c]ourt to comply with the provisions of
42 Pa.C.S.A. § 9545(d), but has blatantly failed to do so”). On February 26,
2021, Appellant filed a second motion for reconsideration, and on March 1,
2021, Appellant filed his certification pursuant to 42 Pa.C.S.A. § 9545(d). The
PCRA court denied Appellant’s second motion for reconsideration, citing the
reasons “set forth in detail . . . in [the court’s] February 26, 2021 Order.”
Order, 3/1/21. Appellant timely appealed at each docket. The PCRA court did
not order Appellant to comply with Pa.R.A.P. 1925(b). The court stated:
The Court set forth in its Notice of Intent to Dismiss, dated
November 13, 2019, the Court’s reasons for denying Appellant’s
Post Conviction Relief Act Petition. Additionally, the Court set forth
its reasons for denying the PCRA Petition in its February 26, 2021
Order of Court denying Appellant’s Motions for Reconsideration
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and its March 1, 2021 Order of Court denying Appellant’s Second
Motions for Reconsideration.
Order, 3/2/21.
On appeal, Appellant presents two issues:
1. Was it legal error for Judge Borkowski to dismiss [Appellant’s]
PCRA petition without a hearing when the predecessor judge,
Judge Manning, had previously ordered a hearing, and the
Commonwealth itself had concluded in a pleading, “However,
in light of the claims presented, the Commonwealth concedes
that an evidentiary hearing may be necessary to resolve this
issue.”?
2. Is it per se ineffective assistance of counsel in violation of the
[Appellant’s] rights guaranteed under Article I, Section 9 of the
Pennsylvania Constitution and the Sixth Amendment to the
United States Constitution for counsel to forgo investigation
and analysis of the case itself, let alone of the aggravating and
mitigating factors set forth in 42 Pa.C.S. § 9711, and advise a
defendant to plead guilty to murder in the first degree with a
sentence of life without the possibility of parole in exchange for
the Commonwealth’s withdrawal of its Notice of Intention to
Seek the Death Penalty?
Appellant’s Brief at 2.
Upon review, we find Appellant’s first issue to be convincing and
dispositive.4
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4 The Commonwealth persuasively advocates for waiver because Appellant
“fails to cite any law or develop any proper legal argument,” “fails to cite or
make cross-reference to the place(s) in the certified record wherein his claim
was preserved,” and “fails to cite the certified record for his assertions of fact.”
Commonwealth Brief at 29, 33. However, we decline to find waiver. “We
must construe the provisions of the PCRA liberally to effect their objects and
to promote justice.” Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa.
2007).
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Appellant argues that under the coordinate jurisdiction rule, Judge
Borkowski, sitting as the PCRA court, was required to hold the hearing ordered
by Judge Manning. The coordinate jurisdiction rule provides that “judges of
coordinate jurisdiction should not overrule each other’s decisions.” Zane v.
Friends Hosp., 836 A.2d 25, 29 (Pa. 2003). The rule, applicable in both civil
and criminal cases, “falls within the ambit of the ‘law of the case doctrine.’”
Riccio v. American Republic Ins. Co., 683 A.2d 1226, 1230 (Pa. Super.
1996) (citing Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)).
The Pennsylvania Supreme Court explained in Starr that the law of the case
“refers to a family of rules which embody the concept that a court involved in
the later phases of a litigated matter should not reopen questions decided by
another judge of that same court or by a higher court in the earlier phases of
the matter.” Id. at 1331. “Among the related but distinct rules which make
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It is well settled that the PCRA provides the “sole means for
obtaining collateral relief” on claims cognizable under the PCRA.
42 Pa.C.S. § 9542; see also Commonwealth v. Chester, 557
Pa. 358, 733 A.2d 1242, 1250 (1999) (offering that the PCRA
subsumes the remedy of habeas corpus with respect to remedies
offered under PCRA). To this end, the PCRA envisions that
persons convicted of a crime be permitted one review of their
collateral claims. 42 Pa.C.S. § 9543; Commonwealth v.
Peterkin, 554 Pa. 547, 722 A.2d 638, 643 (1998) (stating that
the purpose of the PCRA is “to provide a reasonable opportunity
for those who have been wrongfully convicted to demonstrate the
injustice of their convictions”); cf. Commonwealth v. Judge,
591 Pa. 126, 916 A.2d 511, 520 (2007) (quoting same language
from Peterkin).
Id. at 1267.
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up the law of the case doctrine” is that “upon transfer of a matter between
trial judges of coordinate jurisdiction, the transferee trial court may
not alter the resolution of a legal question previously decided by the
transferor trial court.” Id. (emphasis added).
This Court examined the coordinate jurisdiction rule in the context of an
order scheduling a PCRA hearing in Commonwealth v. King, 999 A.2d 598(Pa. Super. 2010), where Judge Cheryl Lynn Allen, sitting as the PCRA court,
ordered a hearing, but left the Court of Common Pleas after being elected to
the Superior Court, and the newly-assigned judge dismissed the petition
without a hearing.
On appeal, the petitioner/appellant argued “that under the coordinate
jurisdiction rule, the PCRA court was required to hold the hearing scheduled
by Judge Allen.” Id. at 600. The Commonwealth argued that the coordinate
jurisdiction rule was not applicable because “the coordinate jurisdiction rule
applies only to decisions rendered upon legal questions,” and Judge Allen’s
order constituted “case management” which “did not dispose of any
substantive legal issues[.]” Id. We agreed with the petitioner/appellant. In
concluding that Judge Allen’s decision to grant a hearing “was more akin to
the disposition of a legal question,” we explained:
[W]hile “[t]here is no absolute right to an evidentiary hearing on
a PCRA petition,” it is only appropriate to deny a petitioner a
hearing where “the PCRA court can determine from the record that
no genuine issues of material fact exist.” Commonwealth v.
Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). Therefore,
Judge Allen’s decision to grant Appellant a hearing indicates that
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she found that there were genuine issues of material fact
necessitating further examination. Accordingly, we conclude that
Judge Allen’s determination in this regard resolved a “legal
question” and, thus, under Starr, the coordinate jurisdiction rule
bound the PCRA court to proceed with the scheduled hearing.
Id. at 601 (emphasis added).
Notably, King appears to be the sole authority on this point. Although
in King we found Judge Allen’s “decision to grant Appellant a hearing indicates
that she found that there were genuine issues of material fact necessitating
further examination,” and here, Judge Manning’s order scheduling a hearing
is based on the Commonwealth’s concession that “a hearing may be
required,” we find King to be controlling. The Commonwealth attempts to
distinguish King, suggesting “Judge Manning’s order appears to have been
based solely on the Commonwealth’s concession that a hearing may have
been necessary” – rather than deciding a substantive legal question – but
concedes “this Court may decide to remand this case for an evidentiary
hearing.” Commonwealth Brief at 30, 41; see also id. at 55-60.5
For the above reasons, we find Judge Manning resolved a legal question
by ordering that a hearing “shall be held.” Order, 6/11/20. Accordingly, Judge
Borkowski was “bound . . . to proceed with the scheduled hearing.” King,
999 A.2d at 601.
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5 The Commonwealth “recognized the advisability of conducting an evidentiary
hearing,” and in its answer to Appellant’s petition, “wrote that ‘based on the
foregoing, the Commonwealth respectfully requests an evidentiary hearing be
scheduled.’” Id. at 57-58. The Commonwealth also references the “principle
undergirding the PCRA which encourages free amendment of petitions in PCRA
proceedings” and the fact that Appellant “did eventually file witness
certifications.” Id. at 58, 60.
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Order vacated. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2022
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