Filed 3/11/15 Maiello v. LA Digitial Post CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN

RAYMOND MAIELLO,                                                     B255029

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. EC058784)
         v.

LA DIGITAL POST,

         Defendant and Respondent.

         APPEAL from a judgment of the Superior Court of Los Angeles County,
Samantha P. Jessner, Judge. Affirmed.
         McGuire Coats and Wendy McGuire Coats; The Simon Law Group and Brad M.
Simon for Plaintiff and Appellant.
         Slack and Associates, Chad M. Slack and Janelle M. White for Deborah Callaway
as Amicus Curiae on behalf of Plaintiff and Appellant.
         Bragg & Kuluva and Christina Y. Morovati for Defendant and Respondent.

                                        _________________________
       Appellant Raymond Maiello was involved in a car accident with Deborah
Callaway, an employee of LA Digital Post. At the time of the collision, Callaway was
returning to work from a doctor’s appointment that she had attended while on her lunch
break. Maiello filed a negligence claim against LA Digital under the doctrine of
respondeat superior. LA Digital moved for summary judgment arguing that it could not
be held vicariously liable for Callaway’s conduct because she was attending a personal
errand on her lunch break when the accident occurred. In opposition, Maiello contended
that all of Callaway’s travel to and from work fell within the scope of her employment
because she regularly used her car for job-related activities. The trial court granted the
motion and entered judgment in favor of LA Digital. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

       A. The Traffic Accident and Maiello’s Complaint1
       Deborah Callaway was employed by LA Digital Post as a credit and collections
manager. Callaway traveled to work in her own car and was not compensated for her
commute time. As part of her job duties, Callaway regularly stopped at a bank during her
commute home to make deposits on behalf of LA Digital.
       On July 18, 2011, Callaway arrived at work sometime between 8:00 a.m. and 9:00
a.m. At approximately 10:00 a.m., Callaway left the office and drove to a doctor’s
appointment that had no relation to her employment. Callaway obtained permission to
attend the appointment, which was treated as her lunch break. She did not engage in any
work-related activity during the appointment. While driving back to the office, Callaway
collided with a vehicle driven by Raymond Maiello.
       Maiello filed a negligence action against Callaway for injuries he suffered in the
accident. He later added LA Digital as a “Doe defendant,” alleging that the company was
vicariously liable for Callaway’s conduct under the doctrine of respondeat superior.

1      The background facts regarding Callaway’s employment at LA Digital and the
events that preceded the incident that gave rise to Maiello’s negligence action are
undisputed.

                                             2
       B. LA Digital’s Motion for Summary Judgment
       LA Digital filed a motion for summary judgment arguing that the undisputed
evidence demonstrated Callaway was not acting within the scope of her employment
when the accident occurred because she was traveling back to the office from a personal
errand while on her lunch break. In support, LA Digital cited numerous prior decisions
holding that an employer is generally not liable for negligence of its employees that
occurs while traveling during a lunch break.
       Maiello conceded that the accident had occurred while Callaway was returning
from a personal errand during her lunch break. He further conceded that an employee’s
travel to and from work during a commute or break period is generally deemed to be
outside the scope of employment. Maiello argued, however, that LA Digital could
nonetheless be held liable under the “required-vehicle” exception, which places an
employee’s commute within the scope of employment when the employer requires the
employee to drive to and from work as a condition of employment. Maiello theorized
that because Callaway regularly used her vehicle to make bank deposits for LA Digital,
she was “‘on the clock’ anytime she [drove] to or from work.”
       The trial court granted LA Digital’s motion for summary judgment, concluding
that the “required-vehicle” exception only applied to an employee’s commute to and from
work and did not extend to personal travel during a lunch break. On February 10, 2014,
the court entered judgment in favor of LA Digital.

                                       DISCUSSION

       A. Legal Standards Governing Summary Judgment

       Summary judgment is appropriate when a defendant establishes through
undisputed material facts that the plaintiff cannot prove a necessary element of his or her
case, or that an affirmative defense bars the cause of action, and the plaintiff fails to
present admissible evidence to the contrary. (Code Civ. Proc., § 437c, subd. (o)(2).)
“[I]f there is no material fact to be tried and the sole question is whether the claim of the

                                               3
moving party is tenable on the undisputed facts, the trial court’s obligation is to
determine that issue of law. [Citation.] On appeal, the reviewing court determines de
novo whether an issue of material fact exists and whether the moving party was entitled
to summary judgment as a matter of law. [Citation.]” (Redevelopment Agency v.
International House of Pancakes, Inc. (1992) 9 Cal.App.4th 1343, 1348.)
       “Whether a tort was committed within the scope of employment is generally a
question of fact. [Citation.] But when the material facts are undisputed and no
conflicting inferences are possible, as here, the question becomes one of law for our
independent consideration.” (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1558
(Bailey); see also Halliburton Energy Services, Inc. v. Department of Transportation
(2013) 220 Cal.App.4th 87, 94 (Halliburton); Tryer v. Ojai Valley School (1992) 9
Cal.App.4th 1476, 1480 (Tryer).)

       B. The Doctrine of Respondeat Superior

           1. General principles governing respondeat superior
       “Under the theory of respondeat superior, an employer is vicariously liable for an
employee’s torts committed within the scope of employment. [Citations.] This theory is
justified as ‘“a deliberate allocation of a risk. The losses caused by the torts of
employees, which as a practical matter are sure to occur in the conduct of the employer’s
enterprise, are placed upon that enterprise itself, as a required cost of doing business.”’
[Citations.] The employer is liable not because the employer has control over the
employee or is in some way at fault, but because the employer’s enterprise creates
inevitable risks as a part of doing business. [Citations.] Under this theory, an employer
is liable for ‘the risks inherent in or created by the enterprise.’ [Citation.]” (Bailey,
supra, 48 Cal.App.4th at p. 1558.)
       “[F]or respondeat superior liability to attach there must be ‘a nexus between the
employee’s tort and the employment to ensure that liability is properly placed upon the
employer.’ [Citation.]” (Halliburton, supra, 220 Cal.App.4th at p. 95.) “‘The nexus
required for respondeat superior liability -- that the tort be engendered by or arise from

                                               4
the work -- is to be distinguished from “but for” causation. That the employment brought
tortfeasor and victim together in time and place is not enough. [Our courts] have used
varied language to describe the nature of the required additional link . . .: the incident
leading to injury must be an “outgrowth” of the employment . . .; the risk of tortious
injury must be “‘inherent in the working environment’” . . . or “‘typical of or broadly
incidental to the enterprise [the employer] has undertaken.’” . . .’ [Citation.) Yet another
way to describe the necessary linkage is the employee’s tort must be ‘foreseeable in light
of [the employee’s] duties.’ [Citation.]” (Bailey, supra, 48 Cal.App.4th at p. 1558
[italics in original].)

               2. Special rules governing break periods and commute travel

       Applying the principles above, our courts have held that an employer is generally
not liable for negligent acts its employees commit while traveling outside the office
during break periods: “It is well settled . . . that an employee, while taking time away
from his work for meals, is not in the service of his employer and that the latter therefore
is not responsible for negligence of the employee during such periods of absence from
work.” (Peccolo v. City of Los Angeles (1937) 8 Cal.2d 532, 539.) As “a general rule, . .
. when an employee travels to and from lunch in the employee’s own car and is not
engaged in furthering any end of the employer, the employee is not acting within the
scope of employment.” (Bailey, supra, 48 Cal.App.4th at p. 1566; Halliburton, supra,
220 Cal.App.4th at p. 95; Tryer, supra, 9 Cal.App.4th at pp. 1482-1483; Gipson v. Davis
Realty Co. (1963) 215 Cal.App.2d 190, 209-210 [“it is the general rule that an employee
on his way to lunch, even though he is driving an automobile which is the property of the
master, is not engaged in furthering any end of the employer, and that therefore under
such circumstances, the servant is not acting within the scope of his employment”].)
       This “‘lunch break’ rule” (Tryer, supra, 9 Cal.App.4th at p. 1482) has been
extended to travel for personal errands conducted during other types of break periods.
For example, in Bailey, supra, 48 Cal.App.4th 1552, the court held that an employee was
not acting within the scope of her duties when she traveled to a store to purchase cookies

                                              5
while “on her morning break.” (Id. at p. 1564.) The court reasoned that there was no
nexus between the employee’s duties as a sales cashier and her decision to “le[ave] the
premises to buy cookies during her break, when she was essentially on her own time.”
(Id. at p. 1565.) The court found “guidance” in “[c]ases involving lunch time travel,”
noting that while “there are differences between a lunch period and a mere break, . . . the
employment nexus is similar in both the lunch and break contexts when the employee
uses his or her own car to travel during these periods [for personal errands].” (Id. at
pp. 1566-1567.)
       Our courts have similarly held that an employee’s commute “to and from work is
ordinarily considered outside the scope of employment so that the employer is not liable
for his torts.” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961 (Hinman).)
“The reason for this ‘going and coming’ rule is that ‘the employment relationship is
“suspended” from the time the employee leaves until he returns [citation], or that in
commuting he is not rendering service to his employer [Citation].’ [Citation.]” (Tryer,
supra, 9 Cal.App.4th at p. 1481 [citing and quoting Hinman, supra, 2 Cal.3d at p. 961.)
There are, however, several “exceptions to the rule.” (Hinman, supra, 2 Cal.3d at
p. 962.)
       One exception “‘arises where the use of the [employee’s] car gives some
incidental benefit to the employer. . . . [T]he key inquiry is whether there is an incidental
benefit derived by the employer. [Citation.]’ [Citation.] This exception to the going and
coming rule . . . has been referred to as the ‘required-vehicle’ exception. [Citation.] The
exception can apply if the use of a personally owned vehicle is either an express or
implied condition of employment [citation], or if the employee has agreed, expressly or
implicitly, to make the vehicle available as an accommodation to the employer and the
employer has ‘reasonably come to rely upon its use and [to] expect the employee to make
the vehicle available on a regular basis while still not requiring it as a condition of
employment.’ [Citation.]” (Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301; see also
Hinman, supra, 2 Cal.3d at p. 962 [recognizing the required-vehicle exception].)

                                               6
       The theory underlying the required vehicle exception is that “ordinary members of
[an employer’s] work force would not be required to use their vehicles in company
business and would not, therefore, be required to drive their vehicles to and from work.
The means by which they travel to and from work is a matter of complete indifference to
[the employer].” (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810
(Huntsinger).) In contrast, when an employer requires an employee to have a personal
vehicle available at work, the employee’s commute to and from the workplace in that
vehicle is “incidentally beneficial to [the employer] in a manner not common to commute
trips by ordinary members of its work force. In other words, when a business enterprise
requires an employee to drive to and from its office in order to have his vehicle available
for company business during the day, accidents on the way to or from the office are
statistically certain to occur eventually, and, the business enterprise having required the
driving to and from work, the risk of such accidents are risks incident to the business
enterprise.” (Ibid.)
       The exception normally applies to “the employee’s commute directly between
work and home” and to “[m]inor deviations from a direct commute.” (Halliburton,
supra, 220 Cal.App.4th at p. 97.) For example, in Lazar v. Thermal Equipment Corp.
(1983) 148 Cal.App.3d 458, the court held the exception was applicable despite the fact
that the employee had stopped at a store during his commute home. The court concluded
that because the employer required the employee to use his own vehicle when
commuting, the employer should be held responsible for “accidents occurring during . . .
minor and foreseeable deviations” from the commute. (Id. at p. 466.) Similarly, in
Moradi v. Marsh USA (2013) 219 Cal.App.4th 886, the court held the exception applied
where the employee had stopped to get frozen yogurt on his drive home and had planned
to attend a yoga class. Although the court acknowledged that the employee “was
pursuing, at least in part, a personal objective by stopping for frozen yogurt and planning
to attend a yoga class,” it reasoned that “those activities did not constitute an
unforeseeable, substantial departure from her commute.” (Id. at pp. 904-905.)

                                              7
       Two additional exceptions to the “going and coming” rule apply when the
employee’s travel involves a business-related purpose. Under the “‘special-errand
exception,” an employee’s travel falls within the scope of employment if he or she “is not
simply on his way from his home to his normal place of work or returning from said
place to his home for his own purpose, but is coming from his home or returning to it on
a special errand either as part of his regular duties or at a specific order or request of his
employer.” (Moradi, supra, 219 Cal.App.4th at p. 906; see also Felix v. Asai (1987) 192
Cal.App.3d 926, 931-932.) Similarly, under the “‘dual’” or “‘combined purposes’”
exception, employee travel to and from work is within the scope of employment
“‘[w]here the [employee] is combining his own business with that of his [employer], or
attending to both at substantially the same time.” (Tryer, supra, 9 Cal.App.4th at
p. 1483.)

       C. The “Required-Vehicle” Exception Does not Apply to Personal Errands
          Conducted During Meal Breaks

       Maiello concedes that an employer is generally “not responsible for an employee’s
torts committed while going and coming to the work place during a break period or lunch
period.” He also does not dispute that the accident occurred while Callaway was
returning from a personal errand (a doctor’s appointment) conducted during her lunch
break. He argues, however, that because Callaway regularly used her vehicle for an
employment-related purpose―making bank deposits during her commute home―all of
her vehicular travel to and from the office fell within the scope of her duties, including
travel to and from personal errands during break periods.2
       LA Digital does not challenge Maiello’s assertion that Callaway’s use of her
vehicle to deposit business checks is sufficient to trigger the “required-vehicle”
exception. LA Digital argues, however, that the exception merely brings an employee’s
commute to and from the workplace within the scope of employment; it does not extend

2      Deborah Callaway, acting as amicus curiae, raises essentially identical arguments
in her amicus brief.

                                               8
to travel during a break period for a purely personal errand. We agree that the “required-
vehicle” exception does not apply under the circumstances presented here.
         Maiello has failed to cite any decision that has applied the “required-vehicle”
exception to employee travel to and from the office during a break period. Rather, our
courts have “only” applied the exception in cases involving “the employee’s commute to
and from work.” (Halliburton, supra, 220 Cal.App.4th at p. 105; Felix, supra, 192
Cal.App.3d at p. 932 [“If an employer requires an employee to furnish a vehicle as an
express or implied condition of employment, the employee will be in the scope of his
employment while commuting to and from the place of his employment”].) Our courts
have also emphasized that the exception is generally inapplicable if the employee was
“engaged in a purely personal activity at the time of the tortious injury” (Halliburton,
supra, 220 Cal.App.4th at p. 97) or “if the employee’s entire trip serve[d] only his or her
own personal purposes.” (Id. at p. 102.) In this case, Callaway was not commuting from
her home when the accident occurred. Instead, she was engaged in a purely personal
activity (attending a doctor’s appointment during a lunch break) that served her interests
alone.
         The rationale underlying the “required-vehicle” exception is inapplicable to
employee travel conducted for personal reasons during a break period. As explained
above, the exception is predicated on the theory that while employers are generally
“indifferen[t]” to the means their employees use to travel to work, an employer that
requires (or induces) its employees to commute in their own vehicles is properly assigned
the risks associated with that particular form of transit. (See Huntsinger, supra, 22
Cal.App.3d at p. 810; see also Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8
Cal.3d 150, 157 [explaining basis for required-vehicle exception in context of workers’
compensation ].) Here, LA Digital did not require or induce Callaway to attend the
medical appointment during her break period nor did it influence the means by which
she chose to travel to the appointment. There is simply no logical reason why the

                                               9
“required-vehicle” exception should apply where the employer did not cause the
employee’s travel nor influence the employee’s mode of travel.3
       Extending the scope of employment to include travel to and from personal errands
during a break period would also be inconsistent with the broader principles underlying
respondeat superior. For employer liability to attach, there must generally be some
“nexus” between the employee’s “activities at the time of the accident” and the
employer’s “business enterprise.” (Halliburton, supra, 105.) In other words, the
“employee’s tort must be ‘foreseeable in light of [the employee’s] duties.’ [Citation.]”
(Bailey, supra, 48 Cal.App.4th at p. 1560 [italics in original].) This “nexus” requirement
is intended to “ensure that liability is properly placed upon the employer.’ [Citation.]”
(Halliburton, supra, 220 Cal.App.4th at p. 95.) Here, there is no connection between
Callaway’s activities at the time of the accident―driving back from a personal errand
during a permitted break period―and LA Digital’s business enterprise. Nor did her job
duties make it foreseeable she would commit a tort while pursuing her own interests
during a break period. There is simply no basis to impose vicarious liability where the
employee’s “entire trip serves only his or her own personal purposes.” (Id. at p. 102.)4

3      Maiello argues that “[b]y driving a required vehicle to [LA Digital’s] offices
following her doctor’s appointment, a jury could find that Callaway was [benefitting] her
employer . . . by bringing the vehicle back to the office for [LA Digital’s subsequent use
and benefit].” This argument ignores that LA Digital did not cause Callaway to take her
vehicle from the workplace to the doctor’s appointment, which had no relation to her
duties at LA Digital. Based on the parties’ evidence, whether and how Callaway attended
her personal errand during her lunch break was a matter of total “indifference” to LA
Digital. (Huntsinger, supra, 22 Cal.App.3d at p. 810 [employer is not liable for torts
committed during employee’s commute when “[t]he means by which [the employee]
travel[s] to and from work is a matter of complete indifference to [the employer”].)

4      Maiello argues for the first time on appeal that there is a triable issue of material
fact whether the “dual” or “combined purpose” exception to the “going and coming” rule
applies here. According to Maiello, a jury could reasonably infer that, when returning
from her personal errand, Callaway was “combining her own business (returning from a
doctor’s appointment) with that of [LA Digital] (driving a required vehicle to [LA

                                             10
                                      DISPOSITION

       The judgment is affirmed. The respondent shall recover its costs on appeal.

                                                  ZELON, J.

We concur:

       PERLUSS, P. J.

       FEUER, J.

Digital’s workplace for its use and benefit).” Maiello did not raise this argument in the
trial court. Indeed, his trial court memorandum opposing LA Digital’s motion for
summary judgment does not even reference the dual purpose exception. He has therefore
forfeited the argument on appeal. (Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015)
233 Cal.App.4th 882, 897. [“‘“‘“‘[I]t is fundamental that a reviewing court will
ordinarily not consider claims made for the first time on appeal which could have been
but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority and facts
not presented and litigated in the trial court. Generally, issues raised for the first time on
appeal which were not litigated in the trial court are [forfeited]. [Citations.]’”’
[Citation.]” [Citation.]’ [Citation.]”].)

        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                             11


175 Cal.App.3d 146 (1985)
220 Cal. Rptr. 549
RICHARD CAPLAN, Plaintiff and Appellant,
v.
FIREMAN'S FUND INSURANCE COMPANY, Defendant and Respondent.
Docket No. B007800.
Court of Appeals of California, Second District, Division One.
December 2, 1985.
*147 COUNSEL
Rose, Klein & Marias and Anthony A. Trendacosta for Plaintiff and Appellant.
Haight, Dickson, Brown & Bonesteel, Harold H. Brown, Roy G. Weatherup, John R. Seashore and Robert M. Dato for Defendant and Respondent.
OPINION
HANSON (Thaxton), J.
Appellant Richard Caplan (Plaintiff) filed an action in the superior court naming as defendant Fireman's Fund Insurance Company (Fireman's Fund), respondent herein. Plaintiff was injured in the course and scope of his employment with Columbia Pictures whose workers' compensation carrier was Fireman's Fund. In his complaint, Plaintiff prays for general damages, punitive damages in the sum of $5 million and attorney fees for the alleged "wrongful refusal to pay insurance benefits," "bad faith," violation of Insurance Code section 790.03, subdivision (h), and intentional and negligent infliction of emotional distress all essentially based upon an alleged unreasonable delay in paying workers' compensation benefits, including failure to notify him of an available rehabilitation program.
The superior court (Hon. Charles E. Jones, Judge Presiding) granted defendant Fireman's Fund's motion to dismiss concluding that exclusive jurisdiction over the claims pursued by plaintiff rests with the Workers' Compensation Appeals Board (WCAB). Plaintiff appeals. We affirm.
(1) The sole issue on appeal is whether or not the claims alleged by Plaintiff against Fireman's Fund rests exclusively within the jurisdiction of the WCAB.
Plaintiff's reliance on Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616 [102 Cal. Rptr. 815, 498 P.2d 1063] is grossly misplaced. The *148 conduct complained of in the instant case is markedly distinguishable from that in Unruh. Here, the conduct complained of falls a country mile short of the type of "outrageous and extreme" conduct contemplated by Unruh.
We flat-out hold that the trial court correctly dismissed the instant action. It is unnecessary to belabor the point or rehash the matter in view of the clear statutory mandate (see Lab. Code, §§ 3600, 3601, 5300 and 5814) as construed ad nauseam and ad infinitum by a spate of Court of Appeal decisions, many of which petitions for hearing have been denied by the state Supreme Court. (See Everfield v. State Comp. Ins. Fund (1981) 115 Cal. App.3d 15 [171 Cal. Rptr. 164] (petn. for hg. den., Apr. 2, 1981); Fremont Indemnity Co. v. Superior Court (1982) 133 Cal. App.3d 879 [184 Cal. Rptr. 184] (petn. for hg. den., Aug. 18, 1982); Cervantes v. Great American Ins. Co. (1983) 140 Cal. App.3d 763 [189 Cal. Rptr. 761] (petn. for hg. den., May 18, 1983); Ricard v. Pacific Indemnity Co. (1982) 132 Cal. App.3d 886 [183 Cal. Rptr. 502] (petn. for hg. den., Aug. 11, 1982); Depew v. Hartford Acc. & Indem. Co. (1982) 135 Cal. App.3d 574 [185 Cal. Rptr. 472]; Droz v. Pacific National Ins. Co. (1982) 138 Cal. App.3d 181 [188 Cal. Rptr. 10] (petn. for hg. den., Apr. 13, 1983); Denning v. Esis Corp. (1983) 139 Cal. App.3d 946 [189 Cal. Rptr. 118] (petn. for hg. den., Apr. 13, 1983); Argonaut Ins. Co. v. Superior Court (1985) 164 Cal. App.3d 320 [210 Cal. Rptr. 417]; and Santiago v. Employee Benefits Services (1985) 168 Cal. App.3d 898 [214 Cal. Rptr. 679].)
"In these days of ever shrinking judicial resources, the plaintiffs' bar would be well advised to heed these rules [re exclusive jurisdiction of the WCAB] and to concentrate its energy on securing swift and simple compensation for the injured employee in the forum which has exclusive jurisdiction over the claims. Its continual efforts to make end-runs around the exclusivity provisions of the workers' compensation system would be more appropriately addressed to the Legislature in which is vested the plenary power to create and enforce the workers' compensation system. (Cal. Const., art. XIV, § 4.)" (United States Borax & Chemical Corp. v. Superior Court (1985) 167 Cal. App.3d 406, 411 [213 Cal. Rptr. 155]; fn. omitted.)
The judgment of dismissal is affirmed.
Spencer, P.J., and Baffa, J.,[*] concurred.
NOTES
[*]   Assigned by the Chairperson of the Judicial Council.


     Case: 18-20548      Document: 00514853144         Page: 1    Date Filed: 02/27/2019

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                    No. 18-20548                           FILED
                                  Summary Calendar                  February 27, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
EMMANUEL ADWALE ADEYINKA,

                                                 Plaintiff-Appellant

v.

HARRIS COUNTY JAIL; STATE OF TEXAS; ANNISE DANETTE PARKER;
LARRY NGUYEN; DANIEL JOSPH, JR.; B. SANDERSON; HOUSTON
POLICE DEPARTMENT OFFICER WERLINGER,

                                                 Defendants-Appellees

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CV-2161

Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Emmanuel Adwale Adeyinka, proceeding pro se and in forma pauperis,
appeals the dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i).         We review that dismissal for abuse of
discretion. Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013); Green v.
Atkinson, 623 F.3d 278, 279-80 (5th Cir. 2010).

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-20548     Document: 00514853144      Page: 2   Date Filed: 02/27/2019

                                  No. 18-20548

      On appeal, Adeyinka fails to address the district court’s determination
that his claims were barred by the applicable statute of limitations or by Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994). Even pro se litigants must brief
arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). By failing to identify any error in the district court’s analysis,
it is the same as if Adeyinka had not appealed the dismissal of his complaint.
See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Because he has therefore abandoned any argument that the dismissal
of his complaint was an abuse of discretion, we affirm the judgment of the
district court.   See Rogers, 709 F.3d at 407; Yohey, 985 F.2d at 224-25;
Brinkmann, 813 F.2d at 748.             Furthermore, Adeyinka’s motion for
appointment of counsel on appeal is denied because he has not shown that this
case presents exceptional circumstances. See Naranjo v. Thompson, 809 F.3d
793, 799 (5th Cir. 2015).
      AFFIRMED; MOTION DENIED.

                                        2


948 F.2d 1282
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.MOBIL OIL COMPANY DE VENEZUELA, Plaintiff-Appellant,v.Jose F.P. JIMENEZ, Defendant-Appellee.
No. 91-2012.
United States Court of Appeals, Fourth Circuit.
Argued June 3, 1991.Decided Nov. 15, 1991.As Amended Dec. 9, 1991.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.   Albert V. Bryan, Jr., Chief District Judge.  (CA-90-1204-A)
Argued:  Bridget Maloney Bush, Debevoise & Plimpton, Washington, D.C., for appellant;  Alexander Arandia, Curi & Arandia, Flushing, N.Y., for appellee.
On Brief:  Loren Kieve, Paul C. Palmer, Debevoise & Plimpton, Washington, D.C., for appellant;  Marcello Curi, Curi & Arandia, Flushing, N.Y., for appellee.
E.D.Va.
REVERSED AND REMANDED.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and DONALD RUSSELL and WILKINSON, Circuit Judges.
OPINION
PER CURIAM:

1
The plaintiff, Mobil Oil Company of Venezuela, a corporation chartered under the laws of Delaware (hereinafter "Mobil" or "MOCV"), filed in the state court of Virginia against Jose Francisco Parada Jiminez (hereinafter "Parada") a declaratory judgment action challenging the validity of a Venezuelan judgment recovered by Parada against Mobil.   Parada removed the action to the federal court and, after removal, sought dismissal of the action for lack of personal jurisdiction over him.   The district court granted the motion to dismiss and Mobil has appealed.   We reverse.

2
The controversy grew out of an assignment of three concessions for the exploration of oil in the State of Barinas in Venezuela.   Under the terms of this initial assignment, the assignors retained a 2.5% royalty participation in any production obtained from the concession.   Parada acquired either by assignment or inheritance a small interest (.003472) in the royalty due the initial assignors as a result of a viable exploration of the tracts.

3
In 1966, after determining that two of the concessions were not commercially productive, Mobil, with the consent of its own assignors (who had obtained their interest from the initial assignors), relinquished its interest in those two concessions in accordance with what it contends to have been Venezuelan law.   Parada, asserting his status as the successor in part of the original assignor, filed an action in Venezuela to recover for a theoretical loss to which he was entitled under his share of the royalty interest granted the original assignors.   It was his contention that Mobil had failed to secure his consent to the abandonment of the leases and that he was entitled to recover the theoretical royalty he would have received had the concession been exploited as a productive oil field.   Under circumstances said by Mobil to be illegal, Parada obtained judgment against Mobil for more than $2.3 million together with costs of $234,675.

4
Mobil filed this action in the state court of Virginia (that being the site of its main office) for a declaratory judgment finding "(1) that MOCV has no obligation to make any payments to defendant Parada, (2) that the purported judgment of The Venezuelan First Court of First Instance in Civil Matters, as ordered by the Tenth Superior Court in Civil and Mercantile Matters, is null and void as violative of fundamental justice and fairness and the procedural due process rights of MOCV and therefore may not be enforced, (3) that MOCV be awarded the damages it has incurred as a result of the unconstitutional and improper acts described above, together with its costs and attorneys fees, and (4) such other relief as may be appropriate."  (J.A. at 15-16.)   Service on Parada was by publication in conformity with State procedure.

5
Following the filing of this state action, Parada filed in the state court a "Notice of Intention to Remove [the cases] to the U.S. District Court for the Eastern District of Virginia."   After this statement of his intention to remove, Parada added a separate "Notice":

6
4. This Notice is intended to act as an affirmative response herein;  defendant requests notice to its counsel of any further motions of plaintiff in this court.  (J.A. at 22.)

7
The next day after the filing of this "Notice," Parada filed, again in the state court, a motion "for leave to file a late answer/response to the Motion for (Declaratory) Judgment," saying he "intends to file an answer/response in the appropriate Court immediately upon determination of its Removal Petition."  (J.A. at 24.)   Parada attached to his motion a proposed order.   That motion was granted by the presiding judge in the state court in an Order that followed the Order proposed by Parada:

8
THIS MATTER having come before this Court upon Motion of Defendant for leave to file late his response to the Motion for Declaratory Judgment filed by Plaintiff herein,

9
and

10
IT APPEARING that Defendant's request is timely filed and is reasonable, it is

11
ORDERED that Defendant is granted leave to file his response to Plaintiff's Motion for Declaratory Judgment on or before September 17, 1990.

12
(J.A. at 25.)   The action was thereafter removed to the federal court on Parada's application.

13
On removal, Parada moved to dismiss the action for want of personal jurisdiction.   The district court granted the motion, finding that there was a lack of the requisite contacts for personal jurisdiction over Parada.   Though counsel for Mobil raised the point that the defendants had entered "an appearance ... in [the] Virginia State court," (J.A. at 91) the district court entered its order without considering the claim that Parada had waived the right to object to jurisdiction herein.   Mobil has appealed.   We reverse.

14
While Mobil has raised a number of claims of error by the court below, we find it necessary to consider only the contention that Parada had appeared in the State court prior to removal and thereby waived any objection to jurisdiction.   Whether Parada, by his action prior to removal, waived objection to personal jurisdiction is to be resolved by Virginia law, since in a removal case, State rules and procedures control the procedure for the filing of the action until removal to the federal court has been effected.   The federal court, upon removal, simply "takes the case up where the State court left it,"  Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 436 (1974);   Kirby v. Allegheny Beverage Corp., 811 F.2d 253, 257 (4th Cir.1987).   Thus, during this period between filing of the action in state court and its removal to the federal court, a defendant may lose his right to challenge personal jurisdiction if he has taken any action which under state law will qualify as a waiver of such rights on his part.   See Nationwide Eng'g & Control Sys., Inc. v. Thomas, 837 F.2d 345, 347-8 (8th Cir.1988).   We accordingly look to Virginia law in order to ascertain whether Parada waived the right to contest jurisdiction by his actions in the state court.

15
Virginia distinguishes between a special and a general appearance by a defendant.   Under Virginia law, the line of distinction between the two categories of appearance often has been declared by that State's courts.   Under Virginia law, the only permissible purpose of a special appearance by a defendant is to challenge the court's jurisdiction and if the appearance goes beyond such purpose, that appearance will be considered a general appearance operating as a waiver of personal jurisdiction.   Fisher v. Globe Brewing Co., 170 Va. 509, 197 S.E. 490, 491-92 (Va.1938);   Norfolk & O.V. Ry. Co. v. Consolidated Turnpike Co., 111 Va. 131, 68 S.E. 346, 348 (Va.1910).   And even though the defendant may denominate his appearance as "only special," it will still be treated as a general appearance if his appearance assumes "such shape as will admit the jurisdiction of the court."   Shepherd v. Starbuck, 118 Va. 682, 88 S.E. 59, 60 (Va.1916).   Because of this rule, the court has cautioned a party seeking to make only a special appearance "to be particular" in confining his appearance to this purpose.  Shepherd, id.   Moreover, in keeping with this principle, a general appearance will arise by implication as a result of any objective manifestation of an intent to defend or contest the action on the part of the defendant.   Roland v. W & L Motor Lines, Inc., 231 S.E.2d 685, 687 (N.C.App.1977);   New River Mineral Co. v. Painter, 100 Va. 507, 42 S.E. 300, 301 (Va.1902);   Heleasco Seventeen, Inc. v. Drake, 102 F.R.D. 909, 912 (D.Del.1984);   Trust Co. Bank v. Tingen-Milford Drapery Co., 119 F.R.D. 21, 22-23 (E.D.N.C.1987).   Thus, when a defendant makes or accepts a motion for a continuance or makes any other motion that does not involve the court's jurisdiction, that action will be treated as a general appearance.   Shepherd, 88 S.E. at 60.

16
Parada in this case, never once stated any intention on his part to contest personal jurisdiction.   Instead, he manifested an intention in his "Notice" and "Motion for an Extension" to defend the action without limiting his action in any way to a challenge to the jurisdiction.   And he did this on not one but on two occasions.   The first of these acts was his initial appearance to file a "Notice of Intention" with two parts.   In that appearance he first gave notice of his intention to remove.   But he did not end his appearance with this mere notice to remove, a perfectly superfluous and innocuous act since such notice did not effect a removal.   He added another separate notice to the effect that "[t]his notice is intended to act as an affirmative response herein" and to demand "notice to [its] counsel of any further motions of plaintiff in this court."  (J.A. at 22.)  (Emphasis added).   The plaintiff, after this appearance, made a second appearance in the form of a motion "for leave to file a later answer/response to the Motion for (Declaratory) Judgment."  (J.A. at 24.)   In that notice of motion for continuance, the defendant reiterated his intention to file an answer after his motion "to file an answer/response in the appropriate court immediately upon determination of its Removal Petition."   Id.  Parada attached to this motion to continue a proposed Order granting his motion for "leave to file his response to Plaintiff's motion for Declaratory Judgment on or before September 17, 1990."  (J.A. at 25.)   The State court granted the motion as requested by Parada.

17
There is not the slightest suggestion in any of these motions or in the proposed order of extension that the defendant was making a special appearance solely for the purpose of challenging personal jurisdiction.   On the contrary, Parada's statement of his intention to file "an answer/response" as soon as his motion to remove was acted on gave positive and affirmative evidence that he expected to answer.   Under the Virginia rule of implication already stated, Parada thereby waived any right to contest the jurisdiction of the Court.   See New River Mineral Co., 42 S.E. at 301.

18
Beyond this, the federal rule under which a defendant by his action will be held to have waived by his appearance any right to contest jurisdiction is substantially the same as the Virginia rule, and provides "An appearance 'may arise by implication from defendant's seeking, taking, or agreeing to some step or proceeding in the cause beneficial to himself or detrimental to plaintiff other than one contesting only the jurisdiction***.' "  10 Charles A. Wright, Arthur R. Miller, Mary K. Kane, Federal Practice & Procedure, § 2686 (2d ed. 1983) (citing 6 C.J.S. Appearances § 12 [1955].

19
A further exposition of the federal rule is correctly set forth in Heleasco Seventeen, Inc. v. Drake:

20
Normally, an appearance is used to signify the overt act by a party involving some presentation or submission to the Court's jurisdiction.   A defendant, however, need not respond directly to the complaint in order for his conduct to constitute an appearance.   The appearance required by Rule 55(b)(2) has been broadly defined and it is not limited to a "formal" court appearance.   An appearance may arise by implication from defendant's seeking, taking or agreeing to some steps or proceedings in the cause beneficial to himself of detrimental to plaintiff.

21
102 F.R.D. 909, 912 (D.Del.1984) (citations omitted).   It follows that, if we were to look to the federal, instead of the Virginia, rule in this connection, the result would be similar:  Parada waived personal jurisdiction by his actions in the State court and he came to the federal court on removal burdened by that waiver in State court.

22
The defendant's answer is that in federal court the distinction between special and general appearances have been abolished.   However, the plaintiff's position is that the waiver by the defendant of personal jurisdiction resulted from actions taken by the defendant while the case was pending in the State court.   Whether those actions were sufficient to constitute such a waiver is to be resolved under Virginia law since federal procedural rules became involved only after removal had been perfected.   This is our holding in  Kirby, 811 F.2d at 257, a holding which accords with the federal rule that a removed case "goes to the federal court laden with whatever proceedings have properly attached thereto before transfer."   See also Nationwide Eng'g & Control Sys., Inc., 837 F.2d 345, 347 (8th Cir.1988);   Goade v. Vollrath, 81 F.Supp. 971, 973 (W.D.Mo.1948).   Thus the issue here is not one governed by federal law, as we have already observed;  it is resolvable by Virginia law and under Virginia law, it seems quite clear that Parada has waived any right to challenge.   We therefore conclude that the district judge erred in not finding as a matter of law that the defendant had by his actions and particularly by his motion for an extension of time without reservation waived any right to challenge jurisdiction.*

23
The judgment of dismissal below is vacated and the cause is remanded to the district court for further action consistent with this opinion.

24
REVERSED AND REMANDED.

*
 It was stated during argument that Parada had filed an action in his own name in the District Court of New York against Mobil on his Venezuelan judgment.   Similarly, it was said that even while this controversy was going on, Parada had filed a suit against Mobil on its Venezuelan judgment in the Virginia courts.   Though this conduct may be argued to be somewhat inconsistent with Parada's position in this case, the point is mooted by our decision herein.   Moreover, all the motions herein for supplementing the record and for motions for summary judgment, attorney's fees and costs, are similarly dismissed in view of the decision herein


556 F.2d 570
Vuonov.Weinberger
No. 76-1870
United States Court of Appeals, Third Circuit
3/8/77

1
W.D.Pa.

AFFIRMED


673 F.Supp. 1097 (1987)
UNITED STATES of America, Plaintiff,
v.
Katrine Teresa RUSH, Defendant.
No. CR 87-0241.
United States District Court, District of Columbia.
November 10, 1987.
Theodore Shmanda, Asst. U.S. Atty., Washington, D.C., for plaintiff.
Edward Sussman, Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER
SPORKIN, District Judge.

I. SUMMARY
This matter is now before me on defendant's motion to suppress both physical and testimonial evidence. An evidentiary hearing was held on September 18, 1987. After a careful review of the facts and the relevant caselaw I have concluded that the motion to suppress should be denied.
This case raises two questions. First, I must determine whether the government had a sufficient basis to "stop" Ms. Rush. I find that the government agents' initial stop of Ms. Rush was justified and measures up to the "articulable suspicion" standard.
Second, I must decide whether the government agents properly searched Ms. Rush's bags. After the government agents had made their initial, legitimate investigative stop of defendant, I find that they received defendant's voluntary consent to search her baggage. In reaching that conclusion, I find that at the time the defendant gave her consent to a search of her baggage she was free to leave the premisesthat at all times leading up to the agents' discovery of the cocaine in her suitcase she could have walked away had she chosen to do so. In short, Ms. Rush was not "seized," nor was her freedom to walk away restrained by the government agents until after her voluntary consent to search had led to the discovery of a large quantity of cocaine in her baggage.

II. FACTS
Based on the testimony of Inspector Calvin Burns, Detective Mike Bernier, Special Agent Paul Kozich and the defendant, Ms. Katrine Rush, and my review of both the government's brief and defendant's two briefs, I find the following relevant facts took place on May 11-12, 1987:
*1098 1) On Monday, May 11, Detective Claudo Noriga of the Metro-Dade Police Department's Organized Crime Unit called Inspector William Pearson of the Amtrak Police Drug Enforcement Unit with information about a passenger boarding train 98 in Miami, Florida on Monday, May 11, 1987 at 8:24 a.m. That train was scheduled to arrive in Washington, D.C. on Tuesday, May 12, 1987 at 6:20 a.m. It actually arrived there at approximately 3:00 p.m. that day.
2) The information concerned Katrina ("Trina") Rush, who was described by Detective Noriga as a black female, approximately 5'6", 140-150 pounds, wearing a pink jogging suit and carrying a beige coat bag, a beige handbag and a yellow shopping bag. According to Detective Noriga, Ms. Rush's clothing and baggage all appeared to be new. She was observed arriving at the Miami train station by taxi approximately thirty minutes before the scheduled departure of her train.
3) The Miami agents described Ms. Rush as "very nervous." The agents' check of the passenger list for train 98 revealed that Ms. Rush paid for her one-way $118.00 ticket in cash.
4) The agents telephoned the Miami number which Ms. Rush had provided to Amtrak as a "call back" number. A male answered the telephone. In response to the agent's inquiries about Katrina Rush, he became angry. He wondered why Ms. Rush had given out his number. According to the uncontradicted account of the government agent, the unknown male then stated, "don't ever call this number again."
5) The agents in Miami determined that it would be appropriate to conduct an interview of Ms. Rush upon her arrival in Washington, D.C.
Their suspicion that Ms. Rush was a drug courier and their decision therefore to interview Ms. Rush was based on a number of factors, including: A) Ms. Rush purchased a one-way ticket and she paid for it in cash; B) Ms. Rush arrived at the train station only a half hour before the scheduled departure of her train; C) Ms. Rush arrived at the station by public transportation a taxicab; D) Ms. Rush made her reservation only the night before the train's departure and was very nervous when she arrived at the Miami train station; E) Ms. Rush listed a home telephone number in Miami, Florida; F) The individual who answered the telephone at the call back number Ms. Rush provided Amtrak made it clear that he did not want to be associated in any way with Ms. Rush and that he was upset that Ms. Rush had given out his telephone number.
6) The Miami agents contacted their counterparts in Washington, D.C. and conveyed to them the information they had gathered. The principal agent in Washington was Investigator Calvin Burns, who was a Baltimore City policeman for six years prior to becoming a special drug enforcement agent for Amtrak in 1976.
7) When Ms. Rush arrived at Union Station in Washington, D.C. she was approached at the top of the track escalator by Investigator Burns and another agent. Investigator Burns asked Ms. Rush if he could talk with her for a few minutes. She gave her assent. Investigator Burns asked her if he could see her ticket and she handed him a one-way ticket stub from Miami to Washington, D.C. in the name of Trina Rush. He then asked for and received some other form of identification. She handed him her Washington, D.C. driver's licensewhich was issued in the name of Katrine Rush. Investigator Burns testified that it is his routine practice immediately to return such documents to suspects but that he has no specific recollection exactly when in this instance he gave Ms. Rush back her license and ticket stub.
8) Investigator Burns further testified that he identified himself as a police officer and that he then informed Ms. Rush that he had information from Miami which indicated she "may be carrying drugs." He also testified that he asked her permission for a dog to sniff her luggage and that Ms. Rush agreed to allow the dog to sniff her bags. Upon his request, she moved her bags off to the side away from the flow of exiting passengers and set them on the ground. Then Detective Bernier brought over his narcotic-detecting dog, Max-25 *1099 who sniffed the bags and indicated that drugs were inside the large canvas bag. According to the testimony of Max-25's handler, Detective Bernier, of the Mass Transportation Detail of the DEA, Max-25 has found narcotics 53 times and he has been correct better than 96 percent of the time.
Investigator Burns stated that he then asked Ms. Rush if they could search the large canvas bag. She permitted them to do sosignalling her assent by opening her bagand their search led to the discovery of approximately one kilogram of cocaine in a plastic bag marked "LUCKY."
9) Ms. Rush testified that at no time during her encounter with Investigator Burns did he tell her that she could leave the premises and that he did not inform her of her right to refuse his request to search her bags.
10) While there are some discrepancies between Ms. Rush's testimony and that of Investigator Burns, they are in agreement about many fundamental facts. Where they are in disagreement, I credit the testimony of Investigator Burns. Specifically, I find that Investigator Burns asked Ms. Rush if he could search her bags and that she voluntarily gave her consent. Investigator Burns did not "command" Ms. Rush to unzip her bagsrather, he asked for her consent, which he received.
11) After field testing the white powdery substance found in Ms. Rush's bag and determining that it was cocaine, Investigator Burns and Detective Bernier arrested Ms. Rush. Subsequent to her arrest, the agents discovered a small amount of cocaine concealed in her wallet.

III. ANALYSIS

A. Introduction

As Justice Powell asserted in United States v. Mendenhall:
The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs, including heroin, may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.
446 U.S. 544, 100 S.Ct. 1870, 1881, 64 L.Ed. 2d 497 (1980). Since Justice Powell penned those words, our nation's drug problem has grown considerably worse. I appreciate the efforts being made by our law enforcement community to fight the growing and destructive drug trade while striving to stay within the limits of the Fourth Amendment.
Regardless of the pace of the growth of the drug trade, however, the Fourth Amendment places important limits on the methods law enforcement officers can utilize to identify concealed drugs. The right of American citizens to travel freely cannot be trampled in the effort to stem the flow of drugs into and around our country.
This case presents difficult, albeit fairly common, issues about what actions law enforcement officers are permitted to take to uncover concealed drugs under the present state of Fourth Amendment jurisprudence.
There are two issues in this case. First, did the government agents possess sufficient information to justify their initial stop of Ms. Rush? Second, did the agents obtain Ms. Rush's voluntary consent to search her bags?

B. The Stop

The government agents in this case "stopped" Ms. Rush in Union Station when they first approached her at the top of the escalator. In order to stop Ms. Rush and ask her the questions they posed, the agents did not need to have "probable cause." Rather, I find that the agents' conduct must measure up to the "reasonableness" standard articulated by Justice Powell in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1880, 64 L.Ed. 2d 497 (1980) (Powell, J., Burger, J. and Blackmun, J. concurring). See also Terry *1100 v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968) (reasonable investigative stop does not offend the Fourth Amendment).
In Mendenhall, in the process of finding the specific stop in that case reasonable, the concurring Justices laid down general guidelines for evaluating the reasonableness of any stop. In order to comply with those guidelines, first, I must examine the public interest served by the stop; second, I must consider "the nature and scope of the intrusion"; and third, I must evaluate the "objective facts upon which the law enforcement officer relied in light of his knowledge." See Mendenhall, 100 S.Ct. at 1881 (citing cases).
There is no question that the public interest in stopping the drug trade is compelling. The Court found it compelling seven years ago in Mendenhall and the problem has worsened. In addition, as the Court recognized in Mendenhall, and as the Drug Enforcement Agency has repeatedly stressed, Miami, where Ms. Rush originated her trip, is one of the four major drug "source" cities in this nation. See Mendenhall at 1881. I find that when Investigator Burns stopped Ms. Rush he was "carrying out a highly specialized law enforcement operation designed to combat the serious societal threat posed by narcotics distribution." Mendenhall, 100 S.Ct. at 1881.
In this case, the scope of the intrusion was minimal indeed. Two agents approached Ms. Rush in a public place where there was no reason for her to feel insecure or nervous. Investigator Burns identified himself as a police officer and asked Ms. Rush if she would show him some identification. As was the case in the initial stop in Mendenhall, the agents did not physically restrain Ms. Rush in any wayin fact it seems they did not even physically touch her. Neither agent displayed any weapon and the questions they asked were simple, direct and brief. Thus, there was no reason for Ms. Rush to feel nervous, frightened, isolated or in any way threatened.
The third part of the Mendenhall test "the objective facts upon which the law enforcement officer relied in light of his knowledge and expertise"has essentially been boiled down to whether the officer had "articulable suspicion." See generally United States v. Cortez, 449 U.S. 411, at 421-422, 101 S.Ct. 690, 696-97, 66 L.Ed.2d 621 (1981); Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (plurality opinion). As the Supreme Court has instructed, in determining whether the police had "articulable suspicion," I am permitted to take into account Investigator Burns' extensive law enforcement expertise especially that he has worked in the drug enforcement field for over a decade. In addition, Investigator Burns was an exceptionally credible witness; he exhibited competence and clear thinking on the stand.
Based on Investigator Burns' testimony, I have no doubt that there was sufficient basis to make the stop. All the factors listed at paragraph number five combine to create an articulable suspicion that Ms. Rush may be transporting concealed contraband. Furthermore, I find that the unknown male's hostile response to the telephone call made by the Miami agents is an especially powerful contributing factor to the establishment of articulable suspicion. In addition, Ms. Rush's nervous appearance at the train station provided a further basis for arousing the suspicion of the experienced Miami drug enforcement officials. In short, the factors listed at paragraph five, when taken as a whole, provided the agents with an adequate legal basis to approach Ms. Rush.
When evaluating the objective criteria I believe it is appropriate to consider the results produced by the use of those criteria. In this case, there was a defined, self-contained universe of persons who could have been the subject of a stop. Hundreds of people rode on Train 98 and the agents testified that only oneMs. Rushwas designated to be questioned. The adequacy of the objective criteria used by the agents to identify suspects is thus buttressed by the fact that they chose only one person from the entire train who met their criteria and that this person was indeed in possession of a sizeable quantity of *1101 drugs.[1] It is obvious to me that these police officers knew their business.
I find that the officers in this case possessed articulable suspicion and that the stop of Ms. Rush did not violate the Fourth Amendment.

C. The Search

Both parties agree that the validity of the search of Ms. Rush's bags hinges on whether or not Ms. Rush gave her voluntary consent to such a search.
My review of the law in this area reveals there has been a great deal of discussion about the concept of consent. There are, however, several guideposts that mark the way to a reasoned decision. The Supreme Court provided the framework for a consent to search analysis in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973), when it stated:
... the question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent ... [I]t is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In this passage, the Court plainly refused to require the government to show that a consent to search is "knowing"that is, made with an awareness that the Fourth Amendment provides a basis for refusing consent to search. See generally W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1987) at § 8.2. Rather, the Court deliberately chose to require only that the consent be voluntary or free of coercion.
Schneckloth provides two other helpful directives. First, the Schneckloth Court asserted that:
Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.
Schneckloth, 93 S.Ct. at 2059. Hence, according to Schneckloth, valid consent to a search may be established without a showing that the police advised an individual that he or she had the right to refuse a search. In addition, Schneckloth provides that the government bears the burden of proving the voluntariness of an individual's consent to a search. Schneckloth, 93 S.Ct. at 2045.
I am satisfied that the consent given by Ms. Rush in this case satisfies the standard laid down in Schneckloth. I have no doubt that her consent was not coerced. She gave her consent in a public place. At all times she was free to walk away from the agents. The officers never displayed their weapons or threatened her in any way. Moreover, the agents never even suggested that they would apply for a search warrant if she refused to consent to a search. The agents did not engage in any type of trickery or form of deception. The agents' conduct leaves no doubt that Ms. Rush's consent was given voluntarily.[2]
*1102 Of course, the defendant's knowledge of her right to refuse to be questioned or searched is a factor to be taken into account in determining whether a consent is voluntary, but the prosecution need not prove such knowledge as a prerequisite to establishing that consent was given voluntarily.
In light of the amount of cocaine found in Ms. Rush's bag, unless the drugs were planted in her luggage without her knowledge, it can be reasonably inferred that she was acting as a courier for a business involved in the sale of illegal drugs. Those involved in illegal drug trafficking are engaged in a very hazardous enterprise and it is incumbent on them to know or learn of the perilous risks of their illicit business. There should be no requirement that government officials charged with the eradication of this unlawful activity have a duty to educate those that choose to participate in it. I am not prepared to create a form of Miranda warning to be given to drug couriers. The drug trade involves great risksand the government should not be put in the position of reducing those risks. It is always incumbent on a court to scrutinize a consent to search to insure that it was indeed voluntary. But valid consents to searches should not be thrown out simply because the defendant claims he or she was not warned by the police officer of the right to refuse consent.
For the foregoing reasons, I find that Ms. Rush gave her voluntary consent to the search conducted in Union Station on May 12, 1987. This Memorandum Opinion represents my findings of fact and conclusions of law on this issue.
It is therefore
ORDERED that the motion to suppress is hereby denied.
NOTES
[1]  Because this case involves a self-defined and limited "pool," it is distinguishable from those cases where it is appropriate for defense counsel to maintain that the court "never sees all the mistakes." Generally speaking "bad searches" do not come to a court's attention. Here, however, because the agents could have chosen to question others on the train, and only chose Ms. Rushthat argument is inapposite.
[2]  The Court also provided helpful, albeit general guidance in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1880, 64 L.Ed.2d 497 (1980), where it explained how consent can be "voluntary" yet opposed to one's self-interest:

And in response to the argument that the respondent would not voluntarily have consented to a search that was likely to disclose the narcotics that she carried, we repeat that the question is not whether the respondent acted in her ultimate self-interest, but whether she acted voluntarily.
This passage helps explain the Court's conception of how consent can be "voluntary" and "consensual" even though it almost inevitably must lead to the discovery of drugs.


Matter of Anderson v New York State Dept. of Corr. & Community Supervision (2018 NY Slip Op 03786)

Matter of Anderson v New York State Dept. of Corr. & Community Supervision

2018 NY Slip Op 03786

Decided on May 24, 2018

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 24, 2018

525066

[*1]In the Matter of JAMES E. ANDERSON, Respondent,
vNEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Appellants.

Calendar Date: April 23, 2018

Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey and

	 Pritzker, JJ.

Barbara D. Underwood, Attorney General, Albany (Frank Brady of counsel), for appellants.

Egan Jr., J.

MEMORANDUM AND ORDER
Appeal from an judgment of Supreme Court (Schick, J.), entered April 20, 2017 in Sullivan County, which, among other things, in a proceeding pursuant to CPLR article 78, remanded the matter to the Board of Parole for a de novo hearing.
Following the Board of Parole's denial of his request for parole release in November 2015, and an unsuccessful administrative appeal therefrom, petitioner commenced this CPLR article 78 proceeding challenging the Board's determination. In October 2016, following joinder of issue, Supreme Court annulled the Board's determination, finding that it had failed to consider the relevant statutory factors, and remitted the matter to the
Board to conduct de novo hearing with new Board members (see Executive Law § 259-i). The Board held a new hearing and issued a determination again denying petitioner parole release, and petitioner filed an administrative notice of appeal therefrom. Petitioner also moved, by order to show cause, for an order finding, among other things, respondents to be in contempt for violating Supreme Court's October 2016 order and directing remittal for yet another de novo hearing. Finding that the Board had still failed to properly conduct petitioner's parole hearing, Supreme Court held that petitioner was entitled to a third hearing, but otherwise denied petitioner's motion for contempt. Respondents appeal.
Initially, there is no dispute that respondents' appeal should be dismissed as moot [*2]because the Board has since granted petitioner parole release (see Matter of Cummings v Regan, 36 NY2d 969, 969 [1975]; Matter of Franco v New York State Bd. of Parole, 157 AD3d 1150, 1151 [2018]; Matter of Sanchez v Stanford, 152 AD3d 854, 854-855 [2017]) and the exception to the mootness doctrine does not apply (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). Respondents urge, however, that we should exercise our discretion to vacate the underlying order to avoid confusion of law.
Although "there is no question that it is the general policy of the courts of this [s]tate to simply dismiss an appeal that has been rendered moot, occasionally, however, courts have also vacated the order [or judgment] appealed as a matter of discretion in order to prevent [it] from engendering adverse legal consequences or precedent" (Matter of Lichtel v Travis, 287 AD2d 837, 838 [2001] [internal quotation marks, ellipses, brackets and citations omitted]; see E-Z Eating 41 Corp. v H.E. Newport L.L.C., 84 AD3d 401, 401 [2011]; Matter of Marinaccio v Boardman, 303 AD2d 896, 897 [2003]; Matter of Finkelstein v New York State Bd. of Law Examiners, 241 AD2d 728, 729 [1997]; compare Matter of Sarbro IX v McGowan, 271 AD2d 829, 830 [2000]). That said, under the circumstances presented here, we are not inclined to deviate from our general practice of dismissing the appeal in cases that have been rendered moot.
McCarthy, J.P., Aarons, Rumsey and Pritzker, JJ., concur.
ORDERED that the appeal is dismissed, as moot, without costs.


J-S42009-19

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

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BERNARD JACKSON                            :
                                               :
                       Appellant               :   No. 2414 EDA 2018

               Appeal from the PCRA Order Entered July 10, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0600971-1985

BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 05, 2019

        Bernard Jackson appeals, pro se, from the order entered July 10, 2018,

in the Philadelphia County Court of Common Pleas, dismissing as untimely his

serial petition for collateral relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1       Jackson seeks relief from the judgment of sentence of life

imprisonment, followed by an aggregate consecutive term of 2½ to 5 years’

imprisonment, imposed on December 2, 1986, following his jury conviction of

murder in the first degree, burglary, and conspiracy.2 On appeal, he asserts

____________________________________________

*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. §§ 2502(a), 3502, and 903, respectively.
J-S42009-19

the PCRA court erred in dismissing the petition as untimely because he has

newly discovered evidence. For the reasons discussed below, we affirm.

      We take the underlying facts and procedural history in this matter from

this Court’s February 5, 2016 memorandum denying Jackson’s second PCRA

petition.

      This Court previously summarized the facts of [Jackson’s] case,
      as follows:

            On November 20, 1984, [Jackson], . . . along with
            codefendants, Gregory        Campbell     and Veleda
            Broaddus, forcibly entered the apartment of Alvin
            Gass, shot and murdered him. [Jackson] was not the
            actual triggerman. Present in the apartment at the
            time of the shooting were the victim’s wife, Freda
            Dowling, their thirteen year old daughter, Lydia[,] and
            other children of the couple. Broaddus, known to the
            victim’s family as “Miss Marie,” was positioned outside
            the apartment door. Broaddus asked the victim’s
            daughter, Lydia[,] whether her parents were home.
            Lydia replied that they were not. Soon thereafter,
            Broaddus was joined by Campbell, known by the
            victim’s family, and [Jackson], later identified, who
            were seen by the victim’s daughter conversing outside
            the apartment building moments earlier.

            Again, following a knock on the door, Lydia was asked
            from outside the apartment door whether her parents
            were home and again she stated that they were not.
            When Lydia refused to open the door to the apartment
            for the perpetrators, the door was kicked open.
            [Jackson] was identified as the male who entered the
            apartment and pushed Freda Dowling to the floor
            while his co-defendant, Campbell, fired on the victim,
            Alvin Gass[,] from the doorway.

            [Jackson] was identified by the victim’s wife, Freda
            Dowling, by photo array conducted four days after the
            shooting. . . . [Jackson] was again identified by
            Dowling at the time of the trial.

                                     -2-
J-S42009-19

     Commonwealth v. Jackson, No. 3216 Philadelphia 1986,
     unpublished memorandum at 1–2 (Pa. Super. filed May 17, 1988).

     Following a jury trial alongside co-defendants Campbell and
     Broaddus, [Jackson] was convicted of first-degree murder,
     burglary, and criminal conspiracy.

           [Jackson] appealed from the judgment of sentence
           and on May 17, 1988, the Superior Court affirmed the
           judgement of sentence.       [ ] Jackson, [supra].
           [Jackson] thereafter filed a pro se PCRA petition in
           August [of] 1988. On March 5, 1991, the lower court
           dismissed [Jackson’s] PCRA petition. The Superior
           Court subsequently affirmed the dismissal of
           [Jackson’s] petition. [Commonwealth v. Jackson,
           No.     00894    Philadelphia   1991,     unpublished
           memorandum (Pa. Super. filed October 8, 1992) ]. . .
           . On May 23, 2014, [Jackson] filed [his second] pro se
           PCRA petition. Pursuant to Pennsylvania Rule of
           Criminal Procedure 907, [Jackson] was served with
           notice of the court’s intention to dismiss his PCRA
           petition on September 26, 2014. [Jackson] filed a
           [pro se] response to the court’s Rule 907 notice on
           October 14, 2014.        The lower court dismissed
           [Jackson’s second PCRA] petition as untimely on
           March 23, 2015. . . .

     PCRA Court Opinion (PCO), 4/24/15, at 1–2.

Commonwealth v. Jackson, 2016 WL 490180, at **1-2 (Pa. Super. Feb. 5,

2016) (unpublished memorandum).

     On February 5, 2016, this Court affirmed the dismissal of Jackson’s

second PCRA petition. Id. at *1. On October 13, 2016, the Pennsylvania

Supreme Court denied leave to appeal. Commonwealth v. Jackson, 158

A.3d 1242 (Pa. 2016).

     On March 24, 2017, Jackson filed a third pro se PCRA petition.    In

September 2017, he filed a supplemental PCRA petition. On April 26, 2018,

                                   -3-
J-S42009-19

the PCRA court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1). Jackson filed a response on

May 16, 2018. On July 10, 2018, the PCRA court dismissed the petition as

untimely filed. This timely appeal follows.3

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, that Jackson’s petition was untimely. We agree. A petitioner must

file a PCRA within one year of the date the underlying judgment becomes final.

See 42 Pa.C.S.A. § 9545(b)(1).

       The PCRA timeliness requirement, however, is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
       753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
       untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

       Jackson’s judgment of sentence was final on June 16, 1988, 30 days

after this Court affirmed the judgment of sentence and Jackson failed to seek

____________________________________________

3 The PCRA court did not order Jackson to file a concise statement of errors
complained of on appeal. Despite this, Jackson filed a Rule 1925(b) statement
on August 23, 2018. On November 6, 2018, the PCRA court filed an opinion.

                                           -4-
J-S42009-19

leave to appeal to the Pennsylvania Supreme Court.        See 42 Pa.C.S.A. §

9545(b)(3); Pa.R.A.P. 113(a). Therefore, he had until June 16, 1989, to file

a timely PCRA petition. His third petition, filed March 24, 2017, is patently

untimely.

       Nevertheless, we may still consider an untimely PCRA petition if one of

the following three exceptions applies:

        (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.

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

       Here, Jackson attempts to invoke the previously unknown facts

exception set forth in Subsection 9545(b)(1)(ii).4 Until recently, a petitioner

____________________________________________

4 In his PCRA petition, Jackson also sought to invoke the governmental
interference exception; however, he has abandoned this claim on appeal.

                                           -5-
J-S42009-19

invoking an exception had to file his petition within 60 days of the date he or

she could have presented the claim.5

       This Court has previously explained the interplay between the newly

discovered facts exception to the timeliness requirements and a substantive

collateral claim of after-discovered evidence as follows:

       The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to 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 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.

       The timeliness exception set forth at Section 9545(b)(1)(ii) has
       often mistakenly been referred to as the “after-discovered
       evidence” exception. This shorthand reference was a misnomer,
       since the plain language of subsection (b)(1)(ii) does not require
       the petitioner to allege and prove a claim of “after-discovered
       evidence.” Rather, as an initial jurisdictional threshold, Section
       9545(b)(1)(ii) requires a petitioner to allege and prove that there
       were facts unknown to him and that he exercised due diligence in
       discovering those facts. Once jurisdiction is established, a PCRA
       petitioner can present a substantive after-discovered-evidence
       claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
       eligible for relief under PCRA, petitioner must plead and prove by
       preponderance of evidence that conviction or sentence resulted
       from, inter alia, unavailability at time of trial of exculpatory
       evidence that has subsequently become available and would have
____________________________________________

5 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.

                                           -6-
J-S42009-19

     changed outcome of trial if it had been introduced).      In other
     words, the “new facts” exception at:

           [S]ubsection (b)(1)(ii) has two components, which
           must be alleged and proved. Namely, the petitioner
           must establish that: 1) the facts upon which the
           claim was predicated were unknown and 2) could not
           have been ascertained by the exercise of due
           diligence. If the petitioner alleges and proves these
           two components, then the PCRA court has jurisdiction
           over the claim under this subsection.

     Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
     require any merits analysis of an underlying after-discovered-
     evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) (some

citations and quotation marks omitted, emphases in original), appeal denied,

125 A.3d 1197 (Pa. 2015).     Accordingly, before we may consider whether

Jackson’s substantive claim of after-discovered evidence merits relief, we

must first determine whether he has established “there were facts unknown

to him and that he exercised due diligence in discovering those facts.” Id. at

176. Here, Jackson has failed to do so.

     Jackson first contends that the unsworn “Letter-Statement” of Wanda

Campbell, his co-defendant’s sister, constitutes a new fact.    In the letter,

Campbell contends that her mother told her that Jackson had an alibi for the

night in question, namely that he and co-defendant Broaddus were together

in their home at the time of the murder.         Letter-Statement of Wanda

Campbell, 1/23/2017, at unnumbered page 1. Jackson argues that the PCRA

court improperly assessed the merits of his substantive claim of after-

                                    -7-
J-S42009-19

discovered evidence in finding that the Letter-Statement did not constitute a

new fact. Jackson’s Brief, at 15, 19. We disagree.

      Initially, we note that the record does not support Jackson’s contention

that the trial court improperly assessed the merits of the underlying claim.

Rather, the record demonstrates that it properly assessed whether the Letter-

Statement was sufficient to constitute a new fact meriting either an

evidentiary hearing or relief and concluded it did not. We agree.

      Even assuming, arguendo, that the averments in this letter were not

hearsay, this Court has already held that any claims that Jackson had a viable

alibi defense do not constitute a new fact. See Jackson, supra at **3-4. In

his second PCRA petition, Jackson contended that an affidavit by Broaddus,

which also stated that she and Jackson were watching television at her home

at the time of the murder, constituted a newly discovered fact. Id. at *3. In

rejecting this claim, we stated:

      In Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714
      (Pa.2008), our Supreme Court explained that,

            [e]xception (b)(1)(ii) “requires petitioner to allege
            and prove that there were ‘facts’ that were ‘unknown’
            to him” and that he could not have ascertained those
            facts by the exercise of “due diligence.”
            [Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d
            1264, 1271-1272 (Pa. 2007)] (emphasis added). The
            focus of the exception is “on [the] newly discovered
            facts, not on a newly discovered or newly willing
            source for previously known facts.” Commonwealth
            v. Johnson, 580 Pa. 594, 863 A.2d 423, 427 (2004)
            (emphasis in original). In Johnson, this Court
            rejected the petitioner’s argument that a witness’s
            subsequent admission of alleged facts brought a claim

                                    -8-
J-S42009-19

            within the scope of exception (b)(1)(ii) even though
            the facts had been available to the petitioner
            beforehand. Relying on Johnson, this Court more
            recently held that an affidavit alleging perjury did not
            bring a petitioner’s claim of fabricated testimony
            within the scope of exception (b)(1)(ii) because the
            only “new” aspect of the claim was that a new witness
            had come forward to testify regarding the previously
            raised claim. [Commonwealth v.] Abu–Jamal, [941
            A.2d 1263,] 1267 [Pa. 2008)]. Specifically, we held
            that the fact that the petitioner “discovered yet
            another conduit for the same claim of perjury does not
            transform his latest source into evidence falling within
            the ambit of [Section] 9545(b)(1)(ii).” Id. at 1269.

      Marshall, 947 A.2d at 720 (footnote omitted).

      In this case, even if we presume that Ms. Broaddus’ alibi is
      credible, [Jackson] obviously became aware of the ‘fact’ of this
      alibi defense on the day he was arrested and informed that he was
      charged with the November 20, 1984 murder of Alvin Gass.
      Therefore, Ms. Broaddus’ admission of this alibi in her affidavit is
      merely a new source of a fact that Appellant previously knew. See
      Johnson, 863 A.2s at 602.

Id.

      The current affidavit is no different.    Our review of the record, the

parties’ briefs, and the relevant statutory and case law, reveals no basis to

disturb the PCRA court’s ruling.

      Jackson also maintains that a sworn affidavit by David Mack both

constitutes a new fact and that the PCRA court improperly rejected it on the

merits. We disagree.

      In the affidavit, Mack, who was twelve-years-old at the time of the

murder, claims that he overheard the victim’s wife saying that she

misidentified   Jackson   as   one   of   the   participants   in   the   murder.

                                     -9-
J-S42009-19

Declaration/Affidavit, 8/30/2017, at unnumbered pages 1 and 2. Mack also

maintains that, when he met Jackson for the first time in August 2017, he

realized that he was not one of the two men he saw leaving the area at the

time of the murder. Id. at unnumbered page 3.

     As the PCRA court correctly notes, Mack’s statement regarding Dowling

constitutes inadmissible hearsay because it is an out-of-court statement

offered for the truth of the matter asserted. See Pa.R.Evid. 801(c); PCRA

Court Opinion, 10/31/2018, at n.11.

     Mack’s statement that Jackson was not one of the men he saw in 1984

also does not constitute a new fact meriting either relief or an evidentiary

hearing. As the PCRA court stated:

     With respect to Mack’s visual claim, the purported fact that
     [Jackson] did not resemble either man glimpsed by Mack was not
     substantiated by Mack’s statement. Specifically, Mack’s claim,
     stated precisely, is that [Jackson’s] appearance in 1984 differed
     from that of both men Mack saw in the stairwell. Mack, who was
     twelve years old in 1984, did not even allege, however, that he
     was familiar with [Jackson’s] physical appearance in 1984. To the
     contrary, Mack indicated that he had neither met nor seen
     [Jackson] prior to their chance meeting while in custody in 2017.[a]
     See Supplemental [P]etition, 9/8/17 at Exhibit B. Thus, based
     upon Mack’s own admission, his comparative assessment of
     [Jackson’s] appearance, thirty-three years earlier, and that of the
     two men was speculative.

           [a][Jackson’s] date of birth is August 4, 1951 and
           therefore he was sixty-six years old when Mack met
           him in 2017.

PCRA Ct. Op. at 4-5.

                                     - 10 -
J-S42009-19

      We agree. Mack’s statement that the sixty-six-year-old man he met for

the first time in 2017 did not currently resemble either of the young men he

saw in the stairwell over thirty years earlier is wildly speculative and thus did

not merit an evidentiary hearing. See Commonwealth v. Grove, 170 A.3d

1127, 1149 (Pa. Super. 2017) (grant of PCRA evidentiary hearing “is not

meant to function as a fishing expedition for any possible evidence that may

support some speculative claim”), appeal denied, 185 A.3d 967 (Pa. 2018).

      Accordingly, because we agree with the ruling of the PCRA court that

Jackson did not timely file his PCRA petition and he failed to establish the

applicability of any of the time-for-filing exceptions, we affirm the order

dismissing his petition without first conducting an evidentiary hearing.

      Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/5/19

                                     - 11 -


                                                                                ACCEPTED
                                                                                04-15-00101-CR
                                                                                FOURTH COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
                                                                                6/30/2015 11:32:56 AM
                                                                                KEITH HOTTLE
                                                                                CLERK

                                                                              FILED IN
                         Nicholas “Nico” LaHood                        4th COURT OF APPEALS
                                                                        SAN ANTONIO, TEXAS
                           Criminal District Attorney                  6/30/2015 11:32:56 AM
                                   Bexar County, Texas                     KEITH E. HOTTLE
                                                                                Clerk
June 30, 2014

Honorable Keith E, Hottle, Clerk
Fourth Court of Appeals District
Cadena-Reeves Justice Center
300 Dolorosa, Suite 3200
San Antonio, Texas 78205

                     RE:    Brandon Master v. The State of Texas
                            Appellate Case No. 04-15-00101-CR
                            Trial Court Case No. 2010-CR-4792W
Dear Mr. Hottle:

The Appellant’s counsel in the instant case has filed a brief pursuant to Anders v.
California, 386 U.S. 738,87 S. Ct. 1402,18 L. Ed. 2d 493 (1967). It is asserted therein
that no reversible error exists in the instant case. The State waives the right to file an
Appellee’s brief in response at this time, however, stands ready to respond should the
Court find it necessary.

Thank you in advance for your consideration.

Sincerely yours,

/S/ Laura Durbin
LAURA DURBIN
Assistant Criminal District Attorney
Bexar County, Texas
Paul Elizondo Tower
101 W. Nueva
(210) 335-2411
S.B.N. 24068556                                   cc:    Richard B. Dulany, Jr.
                                                         Assistant Public Defender
                                                         101 W. Nueva, Suite 370
                                                         San Antonio, Texas 78205
Attorney for the State

       Paul Elizondo Tower – 101 W. Nueva St., Fourth Floor - San Antonio, Texas 78205
                                      (210) 335-2311
                          For Victim Assistance call (210) 335-2105