Com. v. Baldwin, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMILAH BALDWIN :
:
Appellant : No. 2834 EDA 2019
Appeal from the PCRA Order Entered September 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012232-2015
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 23, 2021
Jamilah Baldwin (Appellant) appeals the order entered in the
Philadelphia County Court of Common Pleas denying her first petition filed
pursuant to the Post Conviction Relief Act (PCRA). Appellant seeks relief from
the judgment of sentence of an aggregate three years’ probation imposed on
January 13, 2017, following her non-jury conviction of aggravated assault1
and related offenses. Appellant also filed, in this Court, an application for
remand, seeking permission to file an amended PCRA petition. Because
Appellant is no longer serving a sentence for her convictions, she is no longer
eligible for PCRA relief. Accordingly, we affirm the order on appeal and deny
her application for remand.
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1
18 Pa.C.S. § 2702(a)(4).
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The facts underlying Appellant’s convictions were summarized by this
Court in a prior decision as follows:
In October 2015, Appellant was having an affair with
Philadelphia Police Sergeant Robert Billups (“Mr. Billups”), who
was married to Audrey Billups (“Mrs. Billups”), also a Philadelphia
police officer. Mrs. Billups was standing outside of the home that
she and Mr. Billups shared, when Appellant stopped her car in
front of the home and asked Mrs. Billups where Mr. Billups was.
Mrs. Billups, who had recently completed her shift at the
Philadelphia Police Department, was still in her uniform and armed
with her service weapon at the time of this interaction. Mrs.
Billups responded that Mr. Billups was probably located in the
house, went inside the house, and told Mr. Billips to come outside
to see why Appellant was at the house. Mrs. Billups and Appellant
exchanged words before Mr. Billups arrived outside. Mrs. Billups
called a police supervisor to come to the scene.
As Appellant and Mrs. Billups exchanged more words,
Appellant asked whether Mrs. Billups had called the police. When
Mrs. Billups confirmed that she had in fact called the police,
Appellant responded that Mrs. Billups would “need [the police]
because I’m about to light this block up.” Mrs. Billups responded
by patting her service weapon and stating that she did not need
the police, that she could protect herself. Mr. Billups then
removed Mrs. Billups’ service weapon from her possession.
Appellant and Mrs. Billups approached each other, and Mrs.
Billups felt Appellant strike her with something hard on her side
and on the back of her head. Mrs. Billups then began punching
Appellant with a closed fist. When the women separated,
Appellant threw a rock in a sock at Mrs. Billups, but missed. As
police arrived at the scene, Appellant entered her vehicle and
attempted to drive away; however, she was stopped by police. As
a result of the confrontation, Mrs. Billups required three stitches
for one laceration on her head and four stitches for a second
laceration on her head.
Commonwealth v. Baldwin, 601 EDA 2017 (unpub. memo. at 1-2).
Appellant was charged with aggravated assault, simple assault,
recklessly endangering another person (REAP), and possessing an instrument
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of crime (PIC).2 The case proceeded to a non-jury trial. On January 13, 2017,
the trial court found Appellant guilty of aggravated assault, under subsection
(a)(4), and simple assault, and not guilty of REAP and PIC. That same day,
the court sentenced Appellant to two concurrent terms of three years’
probation.
Appellant filed a timely direct appeal. Sometime thereafter, new,
privately retained counsel, Norris Gelman, Esq., entered his appearance. On
March 2, 2018, this Court affirmed the judgment of sentence, concluding all
of Appellant’s issues were waived or meritless. See Baldwin, 601 EDA 2017
(unpub. memo. at 4-6) (concluding (1) recusal issue waived because
Appellant never requested trial court recuse itself; and (2) sufficiency
challenge to aggravated assault under Section 2702(a)(1) and (a)(2) waived
and meritless because Appellant was convicted only of Section 2702(a)(4)).
Attorney Gelman filed a timely PCRA petition on October 29, 2018,
asserting trial counsel’s ineffectiveness for failing to seek recusal of the trial
court. Following the issuance of Pa.R.Crim.P. 907 notice, the PCRA court
denied Appellant’s petition as meritless on September 12, 2019. This timely
appeal followed.3 On January 1, 2021, Appellant, represented by new
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2
See 18 Pa.C.S. §§ 2702(a)(1), (4); 2702(a)(1), (2), (3); 2705; and 907,
respectively.
3
The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
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counsel,4 filed an application for remand, seeking permission to file an
amended PCRA petition to assert the ineffective assistance of direct appeal
counsel.5 On February 28, 2021, this Court entered an order deferring
Appellant’s application for remand to the merits panel.
Appellant sets forth the following issues in her brief:
1) Was trial counsel ineffective for failing to raise an objection and
ask for a mistrial over the trial court’s clear bias for the
testimony of the complainant . . . because she was a police
officer?
2) Was appellate/PCRA counsel ineffective for the following
reasons:
A. For arguing on direct appeal, sufficiency of the evidence
with regards [sic] to crimes for which . . . Appellant was
not convicted of (incorrect subsections of the aggravated
assault statute . . .), therefore waiving a meritorious
sufficiency claim with regards [sic] to the conviction on
18 Pa.C.S.A. § 2704(A)(4);
B. For failing to include within the PCRA petition his own
ineffectiveness on direct appeal (the above waiver of a
meritorious claim on direct appeal), as counsel actively
represented conflicting interests at the time while
representing . . . Appellant on PCRA[?]
Appellant’s Brief at 5.
When reviewing an order denying PCRA relief, “we examine whether the
PCRA court’s determination is supported by the record and free of legal error.”
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4
On July 14, 2020, this Court ordered the PCRA court to appoint new counsel
since Attorney Gelman was deceased. Current counsel, Daniel Alvarez, Esq.
was appointed on August 22, 2020.
5
As noted supra, Attorney Gelman represented Appellant during her direct
appeal and PCRA proceedings.
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Commonwealth v. Kirwan, 221 A.3d 196, 199 (Pa. Super. 2019) (citation
and internal punctuation omitted). Furthermore, we may affirm the PCRA
court’s ruling “if there is any basis on the record . . . even if we rely on a
different basis” than the PCRA court. Commonwealth v. Pou, 201 A.3d 735,
740 (Pa. Super. 2018) (citations and internal punctuation omitted), appeal
denied, 208 A.3d 458 (Pa. 2019).
Upon our review of the record, we conclude Appellant has failed to
establish her eligibility for relief. Pursuant to the PCRA, in order to be eligible
for relief, a petitioner must plead and prove that “at the time relief is granted,”
she is “currently serving a sentence of imprisonment, probation or parole for
the crime” at issue. 42 Pa.C.S. § 9543(a)(1)(i).6 This Court has explained:
“As soon as his sentence is completed, the petitioner becomes
ineligible for relief, regardless of whether he was serving his
sentence when he filed the petition.” “To grant relief at a time
when [the petitioner] is not currently serving . . . a sentence
would be to ignore the language of the statute.”
Commonwealth v. Tinsley, 200 A.3d 104, 107 (Pa. Super. 2018) (citations
omitted), appeal denied, 208 A.3d 461 (Pa. 2019). See also
Commonwealth v. Plunkett, 151 A.3d 1108, 1112–13 (Pa. Super. 2016)
(holding “the statutory requirement that a PCRA petitioner be currently
serving the sentence is applicable . . . where the PCRA court’s order was issued
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6
We note Appellant does not meet any of the other criteria for eligibility set
forth in Section 9543(a)(1). See 42 Pa.C.S. § 9543(a)(1)(ii)-(iv) (petitioner
eligible for relief awaiting execution, “serving a sentence which must expire”
before beginning to serve sentence at issue, or completed sentence, but
seeking relief based upon DNA evidence pursuant to Section 9543.1).
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while petitioner was still serving the required sentence, but that sentence
terminated prior to the resolution of his appeal.”).
Here, on January 13, 2017, Appellant was sentenced to two concurrent
terms of three years’ probation. Those probationary periods expired in
January of 2020.7 Thus, because Appellant is not “currently serving a
sentence of imprisonment, probation or parole” for the crimes at issue, she is
ineligible for PCRA relief. See 42 Pa.C.S. § 9543(a)(1)(i).
Order affirmed. Application for remand denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/21
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7
The record includes a probation violation summary filed by the Adult
Probation and Parole on April 16, 2018, indicating Appellant was
“unsuccessfully discharged” from domestic violence treatment (a condition of
her probation), and missed a scheduled office visit. Gagnon II Summary,
4/16/18, at 2 (unpaginated). However, on April 18, 2018, the trial court
entered an order stating, “the Motion to Continue Probation is GRANTED.
Domestic Violence supervision and conditions are VACATED.” Order 4/18/18.
Thus, it appears Appellant did not receive any additional probation or jail time.
Moreover, PCRA counsel acknowledged by email to our Prothontary’s office
that it was his understanding Appellant completed serving her sentence.
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