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[U] Commonwealth v. Durkin

Superior Court of Pennsylvania

March 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOSEPH DURKIN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order April 2, 2013 In the Court of Common Pleas of Bucks County Criminal Division at No.: CP-09-CR-0007257-2007

BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Joseph Durkin appeals the April 2, 2013 order dismissing after an evidentiary hearing his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. We affirm.

In an earlier appeal, the trial court summarized the factual and initial procedural history of this case as follows:

[Durkin] was one of thirty-four co-defendants who were arrested and charged in connection with what we will term the James Beal corrupt organization-an extensive drug trafficking network that operated in Bucks and surrounding counties. The police investigation into this corrupt organization began with physical surveillance by law enforcement and the use of confidential informants in February, 2007. With the help of these confidential informants, the Commonwealth was able to conduct 16 controlled buys under police surveillance, some of which included controlled buys between undercover officers and James Beal. Confidential informants also allowed law enforcement to conduct consensual wiretaps on their conversations with James Beal.
In March 2007, upon applications by the Bucks County District Attorney's Office, two orders from the Bucks County Court of Common Pleas were issued to allow the installation of a GPS mobile tracking unit and a live GPS tracking device on one of James Beal's vehicles. The GPS unit on Beal's vehicle was operational for 26 days, wherein law enforcement was able to determine that Beal followed a "regular route" on most of these days, starting in the Bristol/Bensalem area of Bucks County. During the course of travelling on this route, Beal would make the majority of his stops in various retail and commercial parking lots, making a total of 406 stops over a 21-day period.
On May 24, 2007, the Commonwealth submitted an affidavit in support of an application for the interception of wire and electronic communications on two of James Beal's cellular telephones to the Honorable Judge Susan Peikes Gantman of the Superior Court of Pennsylvania. The Superior Court issued an order authorizing interception of communications on the two Beal cellular telephones on May 24, 2007. Police immediately began intercepting telephone calls on Beal's telephones. As a result of the wiretap that was placed on James Beal's two cellular telephones, the police were able to record countless telephone calls between Beal and the thirty-four co-defendants involved in the corrupt organization, including [Durkin]. . . .
The contents of these recorded telephone conversations demonstrate that James Beal, the leader of the corrupt organization, was in the business of buying and selling various controlled substances, including cocaine; powder and crystal methamphetamine; ecstasy, marijuana, and steroids. Beal, [Durkin], and the other members of the corrupt organization spoke of these controlled substances by using code words and other vague references to mask the true nature of the type of drug and amount of drugs in which they were dealing. Recordings of the intercepted calls were played for [the trial court] at [Durkin's] trial, and the use of code words in reference to drugs was particularly evident. In several circumstances, [Durkin] and Beal used words such as "cars"; "that girl"; or "onion", words that could not possibly be understood literally in the context of a coherent and logical conversation. At trial, Detective [Michael] Mosinak . . . was accepted as an expert witness in the field of narcotic trafficking in general and the interpretation of narcotics code words in particular. He interpreted the code words in each call that was played before the court.
[Durkin] had forty-seven telephone conversations with Beal between May 24 and June 14, 2007, the majority of which revolved around the acquisition and distribution of controlled substances. Within these conversations, [Durkin] and Beal used many of the code words to discuss [Durkin's] acquisition of crystal methamphetamine from James Burden, Jr., [Durkin's] drug supplier who held a residence in Texas. [Durkin] and Beal would contact each other to discuss when mailed packages from Burden would arrive from Texas to [Durkin], and when Beal could then pick up his share of these packages from [Durkin]. . . .
On June 14, 2007, James Burden Jr. was arrested at [the] Philadelphia International Airport[.] Burden Jr. admitted to possessing controlled substances, and was found to have, among other controlled substances, seven ounces of crystal methamphetamine strapped to his body at the time of arrest.
Also on June 14, 2007, the Philadelphia Court of Common Pleas approved a search warrant for [Durkin's] residence at 218 Lockart Street, Philadelphia, Pennsylvania. Law enforcement executed the search warrant at [Durkin's] residence and found, among other items, eighteen large pots of marijuana plants; grow lights; assorted marijuana growing equipment and paraphernalia; numerous glassine bags; and an electronic scale. While law enforcement was conducting the search, a UPS package arrived at [Durkin's] residence. The package was opened pursuant to a search warrant which was obtained from the Philadelphia Municipal Court, and was found to contain 7.2 ounces of crystal methamphetamine.
On July 17, 2007, the Commonwealth submitted a 271 page affidavit of probable cause to the District Court, which issued warrants for the arrest of [Durkin] and his co-defendants. On July 18, 2007, [Durkin] was arrested and taken into custody.

Trial Court Opinion ("T.C.O."), 9/16/2008, at 3-6 (citations omitted).

Durkin filed various pre-trial motions, including motions to suppress the evidence obtained pursuant to the interception of Beal's telephone calls and a motion to preclude the Commonwealth from introducing expert testimony to interpret the code words that were used during those calls. Those motions were denied. The matter proceeded to a bench trial, after which Durkin was found guilty of corrupt organizations, criminal use of a communication facility, three counts of possession with intent to deliver a controlled substance ("PWID"), and two counts of attempted PWID.[1] On March 27, 2008, Durkin was sentenced to an aggregate fifteen to forty years' imprisonment and a fine of $150, 000.

On March 30, 2009, we affirmed Durkin's judgment of sentence in an unpublished memorandum. Commonwealth v. Durkin, 1301 EDA 2008, slip op. at 2, 11 (Pa. Super. March 30, 2009). On February 5, 2010, the Pennsylvania Supreme Court denied Durkin's petition for allowance of appeal. Commonwealth v. Durkin, 989 A.2d 7 (Pa. 2010) (per curiam).

On July 6, 2010, Durkin filed a pro se PCRA petition, as well as a motion to have counsel appointed. The PCRA court appointed Attorney Ronald Elgart ("Attorney Elgart") to represent Durkin. Despite being represented by Attorney Elgart, Durkin nonetheless filed a pro se amended PCRA petition on January 24, 2011. On May 13, 2011, Durkin filed a petition to have Attorney Elgart removed from his case, and to proceed pro se. Thereafter, Durkin elected to proceed with another attorney, Stuart Wilder ("Attorney Wilder"), rather than represent himself. However, on November 21, 2011, Durkin filed a pro se supplemental PCRA petition, wherein he again requested to represent himself. On November 30, 2011, Attorney Wilder filed a motion to withdraw as Durkin's counsel. The motion was granted, and another attorney, Elissa Heinrichs ("Attorney Heinrichs"), was appointed.

On March 1, 2012, the PCRA court conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine with finality whether Durkin desired to represent himself for the remainder of the PCRA proceedings. After the Grazier hearing, Durkin continued with Attorney Heinrichs representing him.

On July 18, 2012, Attorney Heinrichs filed an amended PCRA petition alleging that trial counsel was ineffective for failing: (a) to request a pre-sentence investigation report; (b) to call James Beal as a trial witness; (c) to present expert testimony to refute Detective Mosinkiak's expert testimony regarding the use and meaning of the drug-related code words; (d) to challenge the weight of the evidence on direct appeal; (e) to challenge the sufficiency of the evidence of direct appeal; (g) to challenge the trial court's subject matter jurisdiction on appeal; and (h) to call Durkin as a witness in his own defense at trial. On July 19, 2012, the PCRA court conducted a PCRA hearing. Durkin litigated each of the above claims except his claim that trial counsel was ineffective for failing to call him as a witness at trial. Durkin withdrew that claim at the beginning of the PCRA hearing. At the conclusion of the hearing, the PCRA court directed the parties to file briefs in support of their respective positions.

Once more, Durkin requested leave from the PCRA court to represent himself. On December 21, 2012, the PCRA court held a second Grazier hearing, at the conclusion of which Durkin was granted permission to proceed pro se upon the court's determination that Durkin's decision was knowing, intelligent, and voluntary. Durkin was directed to file his brief in support of his PCRA claims within forty-five days.

On February 1, 2013, Durkin filed a "Brief in Support of Defendant's Request to Have his Current Sentence Reconstructed" and a "Brief in Support of Defendant's Request to Have his Appellate Rights Reinstated 'Nunc Pro Tunc.'" On February 26, 2013, the Commonwealth filed its brief in opposition of Durkin's PCRA petition. On March 12, 2013, Durkin filed a reply brief. Finally, on April 2, 2013, the PCRA court entered an order dismissing Durkin's PCRA petition.

On April 13, 2013, Durkin filed a notice of appeal. On May 3, 2013, although not directed by the PCRA court to do so, Durkin filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In his statement, Durkin listed twelve claims of error, many of which were not the subject of his PCRA proceedings. On June 24, 2013, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Presently, Durkin presents the following seven issues for our review:

I. Did the PCRA court err, and commit reversible errors, by not conducting an evidentiary hearing for a proper determination of the issues before it that were presented in a properly presented petition for post-conviction collateral relief?
II. Was PCRA counsel ineffective for failing to present issues on behalf of [Durkin] that were incorporated within a properly recognized petition for post-conviction collateral relief that were both meritorious and would further [Durkin's] legal interests?
III. Was trial counsel ineffective for failing to present issues of legal error to the appellate court for review, after she determined that the issues existed within the prosecution and conviction of [Durkin]?
IV. Did the PCRA court err, and commit reversible error, when [it] determined that both the sufficiency and the weight of the evidence presented at [Durkin's] trial were both sufficient to sustain the conviction of [Durkin]?
V. Did the PCRA court err, and commit reversible error, when [it] determined that the trial court had reasonable jurisdiction of the matter before them?
VI. Was trial counsel ineffective for failing to recognize that the sentence given to [Durkin] was both excessive and unlawfully constructed, and therefore failing to challenge the discretion of the sentencing court through the proper presentation of post[-]verdict motions and a challenge to the discretion of the sentencing court on direct appeal?
VII. Did the PCRA court err, and commit reversible error, by failing to recognize that [Durkin's sentence] was both illegal and excessive, and was further a product of bias, ill will and the prejudice of a pre-disposed trier of fact, that further misapplied the law within the sentencing parameters of the Commonwealth's defined statutes, pertaining to sentencing?

Brief for Durkin at 12-13.

Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (citation omitted). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id. (citation omitted).

In his first assignment of error, Durkin maintains that the PCRA court erred by not holding a hearing to ascertain precisely which issues Durkin sought to litigate during the PCRA process. Durkin's argument borders on incoherence, and we have struggled mightily to ascertain both the factual and legal bases for this claim. From what we can decipher, it appears that Durkin sought to have other claims litigated at his PCRA hearing. Durkin assails each of his appointed attorneys, as well as the PCRA court, for their respective roles in denying him the opportunity to litigate the claims that he wanted to raise and argue.

Durkin's claim falters for a multitude of reasons. First, Durkin has not directed us to a location in the certified record where he requested such a hearing. Not only is this a violation of Pennsylvania Rule of Appellate Procedure 2117(c) (requiring an appellant in the statement of the case section of his appellate brief to direct the Court to the location where issues were preserved in the lower courts), but it also results in waiver of the issue because the issue was not raised in the PCRA court in the first instance. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Second, even if he could establish that the claim was preserved, Durkin does not list the issues that he wanted to raise, or that he was prevented from raising by his attorneys or the PCRA court, in his brief. Thus, he has provided us with no factual or procedural basis to review his claim. Finally, Durkin was provided a PCRA hearing. He was not limited in any way by the PCRA court in the issues that he could present at the hearing. Durkin presented only the six issues listed above, and he did not object, protest, or indicate to the court that he wanted other issues litigated during the hearing. Hence, this claim fails.

In his second claim, Durkin asserts in the statement of the issue that "PCRA counsel was ineffective for failing to present issues on behalf of [Durkin]." Brief for Durkin at 12, 24. The lack of clarity and coherence in Durkin's brief significantly complicates our review. Durkin claims that PCRA counsel was ineffective for failing to raise two issues in his PCRA petition and hearing: (1) that trial counsel was ineffective for failing to raise a challenge to the legality of his sentence; and (2) that direct appeal counsel was ineffective in choosing the issues to raise on direct appeal. Durkin further argues that PCRA counsel was ineffective for failing "to recognize a sufficient matter of injustice within the appellant's conviction." Id. at 28. Durkin cites our well-settled three-part ineffective assistance of counsel test, discussed infra, as well as various standards for attorney conduct from the Pennsylvania Rules of Professional Conduct in support of this argument. Id. 24, 29.

It is now well-settled that a PCRA petitioner may not raise claims of PCRA counsel's ineffectiveness for the first time after he files a notice of appeal. Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012). To properly raise such a claim, a PCRA petitioner either must do so in a timely serial PCRA petition or in a response to a PCRA court's Pa.R.Crim.P. 907 notice of intent to dismiss a PCRA petition without a hearing. Id. at 1200-01; Commonwealth v. Rykard, 55 A.3d 1177, 1186 (Pa. Super. 2012) (holding that claims of PCRA counsel's ineffectiveness were preserved on appeal because they were raised first in a response to PCRA court's Rule 907 notice). Presently, Durkin's challenge to PCRA counsel's stewardship is waived for purposes of this appeal because it is being raised for the first time in this appeal, and not under any of the circumstances set forth in Ford.

In his third issue, Durkin argues that trial/appellate counsel was ineffective for failing to raise the issue of whether the Court of Common Pleas of Bucks County had subject matter jurisdiction over the charges lodged against Durkin. We begin with a summary of the legal framework governing ineffective assistance of counsel claims:

[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). "Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). "If a petitioner fails to prove any of these prongs, his claim fails." Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (citation omitted). Generally, counsel's assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client's interests. See Ali, supra. Where matters of strategy and tactics are concerned, "[a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Colavita, 993 A.2d at 887 (quotation and quotation marks omitted). To demonstrate prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) (quotation, quotation marks, and citation omitted). "'[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.'" Ali, 10 A.3d at 291 (quoting Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008) (citing Strickland, 466 U.S. at 694)).

Commonwealth v. Spotz, ___A.3d __, 2014 WL 185435 at *14 (Pa. Jan. 17, 2014) (citations modified).

Regarding the arguable merit prong, Durkin argues that, because the evidence related to some of his PWID convictions was obtained via a search warrant executed in Philadelphia, only Philadelphia County had subject matter jurisdiction over those claims, not Bucks County. We disagree. In making this argument, Durkin ignores the fact that he also was convicted of conspiracy, and that his PWID convictions were part and parcel of that conspiracy.

The law pertaining to jurisdiction over criminal offenses, particularly where a conspiracy is alleged, is well-settled, and set forth in considerable detail in our decision in Commonwealth v. Tumolo, 299 A.2d 15 (Pa. Super. 1972):

The law is clear that, absent legislation, the jurisdiction of criminal courts extends only to offenses committed within the county of trial. Commonwealth v. Simeone, 294 A.2d 921 (Pa. Super. 1972). Where a conspiracy is involved, however, it is established that overt acts by any one of the conspirators in a county is enough to give jurisdiction to a criminal court in that county. In Commonwealth v. Thomas, 189 A.2d 255, 258 (Pa. 1963), the Court held:
It is well settled that Within the Commonwealth . . . prosecution for criminal conspiracy may be brought in the county where the unlawful combination or confederacy was formed, Or in any county where an overt act was committed by any of the conspirators in furtherance of that unlawful combination or confederacy.
Likewise, as pointed out in Commonwealth v. Prep, 142 A.2d 460, 465 (Pa. Super. 1958), jurisdiction because of overt acts can exist as to substantive crimes wholly or partially committed in the county by any one of the conspirators:
It is a well established theory of the law that, where one puts in force an agency for the commission of crime, he, in legal contemplation, accompanies the same to the point where it becomes effectual; consequently, in many circumstances one may become liable to punishment in a particular jurisdiction while his personal presence is elsewhere, and in this way he may even commit an offense against a state or county upon whose soil he has never set his foot.

Tumolo, 299 A.2d at 16 (citations modified; quotation marks omitted). In Tumolo, based upon the above recitation of the applicable law, we held that Philadelphia County had jurisdiction over various crimes related to filing false insurance claims, even though those crimes were committed by "non-Philadelphians against a non-resident insurer." Id. at 17. We so held because we found that the substantive crimes that occurred outside of Philadelphia were "part and parcel of a broad scheme that [encompassed] Philadelphians and overt conduct in Philadelphia." Id.

Presently, the trial evidence plainly demonstrated that "James Beal, conspirator of [Durkin] had engaged in several drug transactions and telephone conversations in furtherance of the conspiracy in Bucks County." PCRA Court Opinion, 6/24/2013. Multiple overt acts committed in furtherance of Beal's mass conspiracy occurred in Bucks County, establishing jurisdiction over the conspiracy there. In accordance with Tumolo, Durkin's PWID crimes, although occurring solely in Philadelphia County, were "part and parcel" of Beal's "broad scheme." Thus, Bucks County properly had jurisdiction over the PWID charges, and Durkin's claim that trial/appellate counsel was ineffective for failing to pursue a contrary argument on direct appeal lacks arguable merit. Because this prong of the ineffectiveness test fails, the entire claim necessarily fails. See Spotz, supra.

In light of our disposition of Durkin's third claim, we skip forward to his fifth claim, wherein Durkin lodges a direct challenge to the trial court's subject matter jurisdiction over the charges for which he was convicted. Because we have decided that Bucks County properly had jurisdiction above, we reject this challenge as well.

In his fourth issue, Durkin argues that the PCRA court erred in determining that the guilty verdicts were supported by sufficient evidence and were not against the weight of the evidence. Durkin's argument, as presented, is not cognizable under the PCRA. The claims for which the PCRA will provide a remedy are set forth in 42 Pa.C.S. § 9543(a)(2). To be entitled to relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence was the result of one of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2). Challenges to the weight and sufficiency of the evidence do not fall within any of the above categories, and, therefore, are not cognizable under the PCRA. Moreover, such claims are waived for PCRA purposes because they could have been raised on direct appeal. See 42 Pa.C.S. § 9544(b) ("[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.").

We note that, until this appeal, Durkin consistently has argued that trial/appellate counsel was ineffective for failing to pursue weight and sufficiency claims on direct appeal. However, that is not the argument that Durkin presents to this Court. Indeed, Durkin makes no mention of counsel's ineffectiveness in conjunction with this claim. Thus, we will not review the claim as one sounding in ineffectiveness. Because his claims are not cognizable, and otherwise waived, he is not eligible for relief on this issue.

We now turn to Durkin's sixth issue. Durkin argues that trial/appellate counsel was ineffective for failing to file a post-sentence motion challenging the discretionary aspects of his sentence. We find this issue to be waived. Throughout his sporadic filings, Durkin has attempted to litigate the underlying issue challenging the discretionary aspects of his sentence. See e.g. Supplemental Petition for Post[-]Conviction Collateral Relief, 11/10/2011, at 20-22 (unpaginated). However, Durkin first framed the issue as he does here, as a challenge to trial/appellate counsel's effectiveness for not pursuing the claim on direct appeal, in his "Brief in Support of Defendant's Request to Have His Appellate Rights Reinstated Nunc Pro Tunc, " which Durkin filed after his PCRA hearing.

Pursuant to Pennsylvania Rule of Criminal Procedure 905, a PCRA court may grant leave to amend or supplement a PCRA petition. Pa.R.Crim.P. 905(A). The rule further instructs courts to permit liberally requests for leave to amend "to achieve substantial justice." Id. However, the Rule does not permit unlimited amendments or supplements at the pleasure of the petitioner. Leave of court is a necessary prerequisite before any amendment or supplement will be considered. Commonwealth v. Roney, 79 A.3d 595, 615-16 (Pa. 2013) (citing Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012) (reiterating that Rule 905(A) "explicitly states that amendment [of a PCRA petition] is permitted only by direction or leave of the PCRA court")). Where the record clearly does not demonstrate that the PCRA litigant requested, and was granted, leave to amend or supplement a PCRA petition, any issues contained within the unpermitted filings are waived on appeal. Roney, 79 A.3d at 616 (citing Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.")).

Instantly, we have reviewed the record closely. Following the PCRA hearing, the parties were directed to file briefs in support of the claims raised in Durkin's PCRA petition and litigated at the PCRA hearing. Following a Grazier hearing, Durkin was permitted to represent himself. There is no transcript of the Grazier hearing in the certified record. Durkin then filed his "Brief in Support of Defendant's Request to Have His Appellate Rights Reinstated Nunc Pro Tunc." Therein, Durkin raised the claim that trial/appellate counsel was ineffective for failing to file a post-sentence motion challenging the discretionary aspects of his sentence, unquestionably a claim that is cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii). Thus, Durkin clearly was attempting to amend or supplement his PCRA petition with a new claim. However, the certified record is devoid of any indication that, during the time period set forth in this paragraph, Durkin requested or received leave from the PCRA court to file the supplement. Thus, this claim is waived. See Roney, supra.

In his final claim, Durkin presents a multi-layered attack that is centered on the sentence imposed by the trial court. Initially, Durkin renews his claims that trial/appellate counsel and PCRA counsel were ineffective for failing to raise a challenge to the discretionary aspects of his sentence. We have already ruled that neither of these claims are cognizable in this appeal. Specifically, we held above that any issues pertaining to trial/appellate counsel's decision to forego a challenge to the discretionary aspects of Durkin's sentence was not preserved in a PCRA petition below for which Durkin was granted leave of court to file. Also, we held that challenges to PCRA counsel's actions or omissions are not cognizable in this appeal. Moreover, Durkin wholly fails to evaluate these claims under the three-part ineffective assistance of counsel test. See Spotz, supra.

Durkin's argument focuses primarily upon the merits of his challenge to the discretionary aspects of his sentence. Because Durkin does not link this argument to the arguable merit prong of an ineffectiveness analysis, the issue is waived because it could have been raised on direct appeal. See 42 Pa.C.S. § 9544(b).

Finally, Durkin asserts briefly that his sentence was illegal because the trial court imposed distinct sentences on each of his PWID convictions. Durkin argues that the crimes should have merged for purposes of sentencing because they arose from the same criminal episode and because each conviction was predicated upon the same criminal statute. Unlike a discretionary challenge to a sentence, a challenge to the legality of a sentence cannot be waived, and may be raised at any time before a court that properly has jurisdiction over the matter. Commonwealth v. Robinson, 931 A.2d 15, 20 (Pa. Super. 2007). A claim implicating the possible merger of criminal offenses for sentencing purposes constitutes a challenge to the legality of a sentence. Id. at 24. Thus, this issue properly is before this Court.

Whether crimes merge for sentencing purposes is a pure question of law, allowing for plenary review. Id. Pennsylvania's merger statute provides as follows:

No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. The issue in the instant case is whether Durkin's three PWID convictions arise from a single criminal act or from multiple criminal acts. "Our Courts have long held that where a defendant commits multiple distinct criminal acts, concepts of merger do not apply." Robinson, 931 A.2d at 24.

Durkin was convicted of three counts of PWID. Those counts were listed as counts three, four, and nine in Durkin's criminal information. On count four, Durkin was sentenced to seven to twenty years' incarceration. On count nine, Durkin was sentenced to eight to twenty years' incarceration. Count nine was ordered to run consecutively to count four. On count three, Durkin was sentenced to five to ten years' incarceration. This count was ordered to run concurrently to count four and count nine. Durkin maintains that these sentences should have merged for sentencing purposes. However, each was based upon the possession with intent to deliver separate quantities of controlled substances. Count three was predicated upon a shipment of twelve ounces of crystal methamphetamine that Durkin received from his supplier in Texas. Counts four and nine were predicated upon the marijuana plants and distribution paraphernalia obtained from the search warrant executed on Durkin's home and upon the seven ounces of crystal methamphetamine that was delivered to Durkin's home while that search warrant was being executed. Each of Durkin's PWID convictions were based upon his possession of different controlled substances located in different locations. Thus, the PWID offenses are not predicated upon a single criminal act for merger purposes. See Robinson, supra. Durkin's merger argument fails.

Order affirmed.

Judgment Entered.


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