Com. v. Davis, J.

J-S24039-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JASON JOHN DAVIS :

:

Appellant : No. 39 WDA 2021

Appeal from the PCRA Order Entered December 1, 2020

In the Court of Common Pleas of Washington County Criminal Division at

No(s): CP-63-CR-0000345-2009,

CP-63-CR-0000346-2009, CP-63-CR-0000347-2009,

CP-63-CR-0000348-2009, CP-63-CR-0000349-2009,

CP-63-CR-0000350-2009, CP-63-CR-0000351-2009

BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 13, 2021

Appellant, Jason John Davis, appeals from the December 1, 2020, order

entered in the Court of Common Pleas of Washington County dismissing his

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546, without an evidentiary hearing. After a careful review, we affirm.

The relevant facts and procedural history are as follows: After

Appellant’s arrest in connection with a string of burglaries occurring in the

Nottingham Township area from November 6, 2008, to December 22, 2008,

Appellant was charged with various offenses at seven separate lower court

docket numbers. The trial court consolidated the cases, and on August 13,

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* Former Justice specially assigned to the Superior Court.

J-S24039-21

2008, Appellant, who was represented by counsel, proceeded to a bench trial

before the former judge Paul Pozonsky.1 The trial court summarized the

evidence presented at Appellant’s bench trial as follows:2

At trial, the evidence revealed that, from November 6, 2008,

to December 22, 2008, numerous home burglaries were reported

in the Nottingham Township area. Seven victims testified that

items were taken from their home during the daytime hours while

they were out of the home.

One of the victims was Thomas Jerko, whose home was

burglarized [on] November 14, 2008. Mr. Jerko and his wife came

home and, as they pulled onto their street, they noticed a Lincoln

Continental parked across the street. When they got into their

home, the Jerkos discovered that they had been robbed. Mr. Jerko

immediately went outside, but the Lincoln was already gone. Mr.

Jerko told [the] police that there was a small man or woman sitting

in the car, and that he would be able to identify the car if he saw

it again.

In December 2008, Trooper David Vanderaar (“Tpr.

Vanderaar”) became aware of several daytime burglaries, which

had occurred in the Nottingham Township area. Tpr. Vanderaar

then met with [the] police from Nottingham and the surrounding

jurisdictions to discuss these burglaries. After looking at various

reports, the police connected several reports that had multiple

things in common, such as the time of day when the crimes were

committed and what items were stolen. These cases all occurred

during the day and involved stolen handguns, [as well as] jewelry.

On December 29, 2008, a Lincoln Continental similar to the

one described by Mr. Jerko was seen in the Nottingham area.

Police made contact with the vehicle and asked the two occupants

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1 As discussed infra, the judge who presided over Appellant’s bench trial

retired in 2012, and he subsequently entered guilty pleas to criminal charges

stemming from his theft of narcotics from evidence packs. After the litigation

of Appellant’s first PCRA petition, the judge was disbarred from the practice

of law in this Commonwealth.

2 On direct appeal, this Court specifically adopted the trial court’s summary of

the evidence presented at trial. See Commonwealth v. Davis, No. 2091

WDA 2009, at *1 (Pa.Super. filed 12/16/11) (unpublished memorandum).

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to come to the police barracks. The occupants were Jesika Gray

and [Appellant]. Mr. Jerko then came to the [police] station and

positively identified the Lincoln as the car he had seen outside of

his home.

[After] Mr. Jerko identified the car, Tpr. Vanderaar

interviewed Jesika Gray. Ms. Gray changed her story a number

of times during the interview. When Tpr. Vanderaar confronted

her with the inconsistencies in her statement, she said that she

would cooperate with the investigation, at which time she was

read her Miranda[3] rights.

At trial, Tpr. Vanderaar testified at length to the statements

that Ms. Gray gave to him….His testimony was then corroborated

by Ms. Gray, who testified later that day.

Ms. Gray explained that there was a set plan to the

burglaries. Ms. Gray and [Appellant] would drive around during

the day [while] people [were] at work. Then the pair followed a

similar pattern at each home:

MS. GRAY: He would pull up to a house. I would get

out, knock to see if one of the residents was home,

get back to the car, and tell him if they were home or

not.

[DISTRICT ATTORNEY]: That happened with the first

incident?

MS. GRAY: It happened with every incident.

The next day, Ms. Gray went with Tpr. Vanderaar on a ride-

along to point out various homes that were robbed. Tpr.

Vanderaar drove, and Ms. Gray directed him to various homes.

To test her veracity, Tpr. Vanderaar would occasionally stop in

front of a random home and ask if it was one of the homes she

assisted [Appellant] in robbing, and she always denied that those

homes were involved. Throughout the day and after a second

ride-along, Ms. Gray identified nine homes that she robbed with

[Appellant]. She was able to recall what was taken from four of

the homes.

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3 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

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Trial Court Opinion, filed 7/8/11, at 1-3 (citations to record omitted) (footnote

added).

At the conclusion of all testimony, the trial court convicted Appellant of

nine counts each of burglary, conspiracy (burglary), criminal trespass, theft,

and receiving stolen property, four counts of conspiracy (theft), and one count

of criminal mischief.4 On October 28, 2009, the trial court sentenced Appellant

to consecutive prison terms of three years to six years for each burglary

conviction, and consecutive three-year terms of probation for each conspiracy

conviction. Appellant’s sentence resulted in an aggregate term of twenty-

seven years to fifty-four years in prison to be followed by twenty-seven years

of probation.

Appellant filed a timely, counseled direct appeal. On appeal, he

challenged the sufficiency and weight of the evidence. See Davis, supra. He

also averred the trial court abused its discretion in permitting hearsay

testimony from Ms. Gray and in imposing an excessive sentence. Id. This

Court found all claims to be meritless and/or waived.5 Id. Thus, we affirmed

Appellant’s judgment of sentence. Appellant filed a petition for allowance of

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4 See 18 Pa.C.S.A. §§ 3502, 903, 3503, 3921, 3925, 3921, and 3304,

respectively. The trial court nol prossed two burglary charges at lower court

number CP-63-CR-0000347-2009.

5 Appellant also presented an ineffective assistance of counsel claim, which

we deferred without prejudice to Appellant’s right to raise the issue in a PCRA

petition.

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appeal, which our Supreme Court denied on April 17, 2012. Appellant did not

file a petition for writ of certiorari with the United States Supreme Court.

On May 31, 2012, Appellant filed a timely pro se PCRA petition, counsel

was appointed to represent Appellant, and counsel filed a petition to withdraw,

along with a Turner/Finley6 no-merit letter. The PCRA court granted

counsel’s petition to withdraw and gave Appellant thirty days to amend his

PCRA petition. In August of 2013, Appellant filed a supplemental pro se PCRA

petition.

On April 17, 2014, the PCRA court filed notice of its intent to dismiss the

petition without an evidentiary hearing, and on June 10, 2014, the PCRA court

dismissed Appellant’s PCRA petition. Appellant did not timely appeal;

however, he filed a motion to reinstate his appeal rights nunc pro tunc,

averring that he had not received the PCRA court’s dismissal order. Appellant

attached a copy of his legal mail registry from State Correctional Institution-

Frackville, and the order was not listed as received. Thereafter, the PCRA

court granted Appellant’s request and reinstated his appeal rights. Appellant

then filed a notice of appeal to this Court.

On appeal, Appellant presented numerous claims, including that, since

he was unaware that his trial judge was engaged in criminal activity or under

the influence of a controlled substance at the time he sat for Appellant’s trial,

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6 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and

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

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Appellant was denied his constitutional right to a trial before a fair and

impartial tribunal, as well as failed to enter a knowing waiver of his right to a

jury trial.

In an unpublished memorandum, this Court found all of Appellant’s

issues to be meritless, waived, or previously litigated. See Commonwealth

v. Davis, No. 985 WDA 2016 (Pa.Super. filed 5/5/17) (unpublished

memorandum). Specifically, as it pertains to Appellant’s issues related to

former judge Pozonsky, we held the following:

Appellant contends…that he could not have entered a

knowing and intelligent waiver of his right to a jury trial because

he did not know the trial judge was engaging in criminal activity

and under the influence of illegal narcotics while presiding over

Appellant’s trial. Here, Appellant was tried and sentenced years

before the allegations of wrongdoing against the trial judge

surfaced and prior to a criminal investigation of the judge. See

Commonwealth v. Dozier, 99 A.3d 106, 111-13 (Pa.Super.

2014) (requiring a nexus between presiding judge’s alleged

criminal activity and a defendant’s proceedings). We agree with

the sound reasoning of the PCRA court:

Appellant’s trial judge pled guilty to theft by

unlawful taking, obstruction of the administration of

law and misappropriation of entrusted property. The

[Appellant] makes no allegation of a nexus between

[the judge’s] illegal activity and the case at bar. No

allegation was made that [the trial judge] would have

an interest in the outcome of this case. In the

[criminal] prosecution of [the trial judge], there was

no allegation or inference that he was under the

influence of drugs while he was presiding as a judge

in any case. Without any nexus between the judge’s

conduct and this case, [Appellant’s] claim fails.

PCRA Court Opinion, 10/11/2016, at 7-8.

In light of our disposition of Appellant’s issue, we need not

reach the merits of his [remaining] issue, which is also predicated

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on the allegation of the trial judge stealing and using narcotics

while conducting Appellant’s trial….No relief is due to Appellant.

Davis, No. 985 WDA 2016, at *8-9 (citations to briefs omitted).

Thus, we affirmed the PCRA court’s order dismissing Appellant’s first

PCRA petition. Appellant filed a petition for allowance of appeal, which our

Supreme Court denied on November 28, 2017.

On January 17, 2019, Appellant filed a pro se PCRA petition,7 and the

PCRA court appointed counsel to represent Appellant. PCRA counsel filed a

petition to withdraw, along with a Turner/Finley no-merit letter. On August

21, 2020, the PCRA court granted counsel’s petition to withdraw and provided

Appellant with notice of its intent to dismiss the PCRA petition without an

evidentiary hearing. By order entered on December 1, 2020, the PCRA court

dismissed Appellant’s PCRA petition, and this timely appeal followed on

December 27, 2020.8, 9

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7 Although this pro se document was time-stamped January 23, 2019, we shall

deem it to have been filed on January 17, 2019, when it was handed to prison

authorities. See Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa.Super.

2006) (holding under the prison mailbox rule a pro se document is deemed

filed on the date a prisoner deposits the document with the proper prison

authority).

8 Although this pro se document was time-stamped January 4, 2021, we shall

deem it to have been filed on December 27, 2020, when it was handed to

prison authorities. See Wilson, supra.

9 We note that, in contravention of our Supreme Court’s decision in

Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969 (2018), Appellant

(Footnote Continued Next Page)

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On appeal, Appellant sets forth the following issue in his “Statement of

Questions Involved” (verbatim):

I. Did the PCRA court err by dismissing the PCRA petition based

on a purported failure to prove prejudice relating to judicial

misconduct?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

Initially, we note the following:

On appeal from the denial of PCRA relief, our standard of

review calls for us to determine whether the ruling of the PCRA

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

court’s findings will not be disturbed unless there is no support for

the findings in the certified record. The PCRA court’s factual

determinations are entitled to deference, but its legal

determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quotation

marks and quotations omitted).

Pennsylvania law makes clear no court has jurisdiction to

hear an untimely PCRA petition. The most recent amendments to

the PCRA, effective January 16, 1996, provide a PCRA petition,

including a second or subsequent petition, shall be filed within one

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filed a single notice of appeal listing the seven lower court docket numbers

captioned above. However, our review reveals that, in its December 2, 2020,

dismissal order, the PCRA court informed Appellant he had “the right to file an

appeal[.]” PCRA Order, filed 12/2/20. Accordingly, due to this breakdown in

the PCRA court’s operations, we excuse Appellant’s non-compliance with

Walker. See Commonwealth v. Larkin, 235 A.3d 350 (Pa.Super. 2020)

(en banc) (declining to quash a defective notice of appeal when the defect

resulted from an appellant’s acting in accordance with misinformation from

the trial court, deeming the situation a breakdown in court operations);

Commonwealth v. Stansbury, 219 A.3d 157, 160 (Pa.Super. 2019)

(holding there was a breakdown in the PCRA court’s operations when the

appellant was informed he could file “a notice of appeal” from an order

disposing of multiple cases).

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year of the date the underlying judgment becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)

(citations omitted).

[There are] three statutory exceptions to the timeliness

provisions in the PCRA [that] allow for the very limited

circumstances under which the late filing of a petition will be

excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a

petitioner must allege and prove:

(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 of Pennsylvania after the time period provided in

this section and has been held by that court to apply retroactively.

Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)).

Any petition invoking a timeliness exception must be filed within one

year of the date the claim could have been presented.10 42 Pa.C.S.A. §

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10 42 Pa.C.S.A. § 9545(b)(2) previously provided that a petition invoking a

timeliness exception was required to be filed within sixty days of the date the

claim could first have been presented. However, effective December 24,

2018, the legislature amended Subsection 9545(b)(2) to read: “Any petition

invoking an exception provided in paragraph (1) shall be filed within one year

(Footnote Continued Next Page)

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9545(b)(2). “We emphasize that it is the petitioner who bears the burden to

allege and prove that one of the timeliness exceptions applies.”

Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008)

(citation omitted).

Here, Appellant was sentenced on October 28, 2009, and this Court

affirmed his judgment of sentence on December 16, 2011. Our Supreme

Court denied Appellant’s petition for allowance of appeal on April 17, 2012,

and Appellant did not file a petition for a writ of certiorari with the United

States Supreme Court. Accordingly, Appellant’s judgment of sentence

became final 90 days later, on or about July 17, 2012. See U.S. Supreme

Court Rule 13 (effective January 1, 1990) (stating that a petition for writ of

certiorari to review a judgment of sentence is deemed timely when it is filed

within 90 days). Appellant filed the instant PCRA petition on January 17, 2019,

and consequently, it is facially untimely.

However, this does not end our inquiry as Appellant seeks to invoke the

“newly-discovered facts” exception set forth in Subsection 9545(b)(1)(ii).

To establish the newly discovered fact timeliness exception

in [Sub]section 9545(b)(1)(ii), a petitioner must demonstrate he

did not know the facts upon which he based his petition and could

not have learned those facts earlier by the exercise of due

diligence. Due diligence demands that the petitioner take

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of the date the claim could have been presented.” See 42 Pa.C.S.A. §

9545(b)(2) (effective December 24, 2018). The amendment to Subsection

9545(b)(2) only applies to “claims arising on [December] 24, 2017, or

thereafter.” See id., cmt. We shall assume, arguendo, the amended version

of Subsection 9545(b)(2) is applicable to the instant matter.

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reasonable steps to protect his own interests. A petitioner must

explain why he could not have learned the new fact(s) earlier with

the exercise of due diligence. This rule is strictly enforced.

Additionally, the focus of this exception is on the newly discovered

facts, not on a newly discovered or newly willing source for

previously known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations

and quotation marks omitted).

With regard to his “newly-discovered facts” claim, Appellant alleges he

recently discovered that his trial judge, former judge Paul Pozonsky, admitted

he had been using cocaine recreationally since the 1980s. Specifically,

Appellant avers:

Pozonsky revealed [during his disciplinary hearing that] “he

had used cocaine recreationally since the 1980s, including during

his prior service as a magisterial district judge and during his

tenure on the bench of the Court of Common Pleas.” Office of

Disciplinary Counsel v. Pozonsky, [644 Pa. 537, 177 A.3d 830,

832 (2018)11]. The fact that Pozonsky’s [drug use] spanned a

period of over thirty years was unknown to Appellant. In fact,

[the Superior] Court [in reviewing the order denying Appellant’s

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11 In Pozonsky, supra, our Supreme Court set forth in detail the

circumstances of former judge Pozonsky’s criminal activities and the reasons

for his disbarment. Relevantly, from late October to early November 2010,

and continuing through January 2012, which was well after Appellant’s trial

and sentencing, Pozonsky exploited his position as a judge to steal powdered

cocaine, which was the principal evidence in criminal and delinquency

hearings. Id. His theft of the illegal controlled substance was discovered in

early 2012, and on March 20, 2015, he pled guilty to various crimes. Id.

Thereafter, on August 19, 2015, our Supreme Court suspended Pozonsky’s

law license, the Office of Disciplinary Counsel filed a petition for discipline, and

on March 15, 2016, Pozonsky proceeded to a disciplinary hearing, following

which the Hearing Committee recommended disbarment from the practice of

law. Id. The Disciplinary Board agreed disbarment was the appropriate

sanction, and on January 18, 2018, our Supreme Court ordered Pozonsky be

disbarred from the practice of law in this Commonwealth. Id.

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first PCRA petition] found there was no nexus between Pozonsky’s

wrongdoing and Appellant’s trial proceedings stating: “[H]ere,

Appellant was tried and sentenced years before the allegations of

wrongdoing against the trial judge surfaced and prior to a criminal

investigation of the judge.” [Commonwealth v. Davis, No. 985

WDA 2016, *9 (Pa.Super. filed May 5, 2017) (unpublished

memorandum) (citation omitted)]. The fact Pozonsky was

engaging in [illegal drug use] during Appellant’s trial was unknown

to everyone, including [the Superior] Court. It was not until the

former judge confessed to the Disciplinary Board he had been

using cocaine since the 1980s that [the] fact became known.

Of course, no amount of diligence could have unearthed the

factual predicate before Pozonsky himself revealed it. By its very

nature, the former jurist was able to keep his secrets hidden for

over thirty years.

Appellant’s Brief at 9-10 (footnote added) (underline in original).

Essentially, Appellant contends that former judge Pozonsky’s admission

to the Disciplinary Board, as revealed by the Supreme Court in its Opinion,

that “he had used cocaine recreationally since the 1980s, including during his

prior service as a magisterial district judge and during his tenure on the bench

of the Court of Common Pleas,” Pozonsky, supra, 177 A.3d at 834, is a

newly-discovered fact, which Appellant could not have discovered sooner with

the exercise of due diligence.

Assuming, arguendo, Appellant has met the initial one-year threshold,

as well as the newly-discovered facts timeliness exception with regard to

former judge Pozonsky’s admission, we conclude Appellant has not met the

requirements for the four-part after-discovered evidence test.

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Once a petitioner has established the newly-discovered fact exception,

he must satisfy the four-part test for after-discovered evidence. Specifically,

he must establish that the evidence

(1) could not have been obtained prior to the conclusion of the

trial by the exercise of reasonable diligence; (2) is not merely

corroborative or cumulative; (3) will not be used solely to impeach

the credibility of a witness; and (4) would likely result in a different

verdict if a new trial were granted.

Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008) (citation

omitted). Our Supreme Court has noted that each of these elements, “if

unproven by the petitioner, is fatal to the request for a new trial.”

Commonwealth v. Small, 647 Pa. 423, 189 A.3d 961, 972 (2018).

Initially, with regard to the admission Pozonsky made during his

testimony at the disciplinary hearing, upon which Appellant now relies, we

note that our Supreme Court relevantly summarized Pozonsky’s testimony as

follows:

Pozonsky testified on his own behalf and recounted the details of

his legal career, during which he was never subject to disciplinary

proceedings. He acknowledged that he had used cocaine

recreationally since the 1980s, including during his prior service

as a magisterial district judge and during his tenure on the bench

of the Court of Common Pleas, but he denied that he ever took

the bench or adjudicated cases while under the influence

of cocaine.

Pozonsky, supra, 177 A.3d at 834 (bold added).

We conclude that neither former judge Pozonsky’s testimony nor our

Supreme Court’s lengthy opinion ordering disbarment supports the premise

that Pozonsky was under the influence of a controlled substance while

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performing his courtroom duties, including during Appellant’s trial. See

Commonwealth v. Urwin, 219 A.3d 167 (Pa.Super. 2019) (holding the

appellant’s proposition that Pozonsky was under the influence of cocaine

during the appellant's trial is a premise unsupported by the Supreme Court’s

opinion in Pozonsky, supra).

In fact, our Supreme Court’s opinion ordering Pozonsky’s disbarment

emphasized that Pozonsky did not have an uncontrollable addiction.

Pozonsky, supra, 177 A.3d at 846. “Rather, the Court dismissed any

characterization of Pozonsky’s criminal acts as driven by addiction given that

he ‘presented no expert testimony to the Disciplinary Board establishing that

he had an addiction to cocaine, or any other psychiatric disorder, which caused

him to engage in his thefts and personal use of drug evidence.’” Urwin, 219

A.3d at 171 (quoting Pozonsky, supra, 177 A.2d at 845) (italics in original).

Aside from pointing to former judge Pozonsky’s admission about his

former recreational cocaine use, as set forth in our Supreme Court’s opinion,

Appellant has proffered no other evidence. Appellant’s suggestion that

Pozonsky was intoxicated during Appellant’s trial is speculative, at best. Id.

Therefore, since he has failed to demonstrate that his proffered evidence

would likely result in a different verdict if a new trial were granted, Appellant

is not entitled to relief. Pagan, supra.

For all of the foregoing reasons, we affirm.

Affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/13/2021

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