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[U] Commonwealth v. Durkin

Superior Court of Pennsylvania

March 10, 2014



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




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 ...

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