Com. v. Mohamad, Y. ( 2023 )

J-S36004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YASSIN HAYTHAME MOHAMAD :
:
Appellant : No. 236 WDA 2022
Appeal from the PCRA Order Entered August 8, 2022
In the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0000399-2007
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: March 10, 2023
Appellant Yassin Haythame Mohamad appeals from the August 8, 2022
order of the Court of Common Pleas of Fayette County (“PCRA court”), which
dismissed his petition under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46.1 Upon review, we vacate and remand.
The facts and procedural history of this case are undisputed. Briefly, as
recounted by a prior panel of this Court on collateral review:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Appellant purported to appeal from the PCRA court’s February 8, 2022 notice
of intent to dismiss his pro se petition. However, the appeal lies properly from
the order denying relief filed on August 8, 2022. While technically premature,
we deem his notice of appeal timely filed and have changed the caption
accordingly. See Commonwealth v. McGarry, 172 A.3d 60, 63 n.1 (Pa.
Super. 2017) (deeming appeal proper despite premature notice of appeal
where the PCRA court subsequently entered a final order dismissing the PCRA
petition); Pa.R.A.P. 905(a)(5).
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Appellant was convicted by a jury of two counts each of attempted
homicide, aggravated assault, and simple assault arising from an
altercation with corrections officers in 2006 at SCI-Fayette where
he was serving prison sentences imposed in Philadelphia, Luzerne,
and Cumberland Counties. On December 14, 2007, the trial court
sentenced Appellant to an aggregate term of imprisonment of 20
to 40 years, to be served consecutively to the sentences that he
was already serving.
Appellant filed a timely appeal from his judgment of sentence that
was dismissed on April 9, 2008 for failure to file a docketing
statement. Appellant filed a timely first PCRA petition on February
5, 2009 and following an appeal from a denial of PCRA relief, his
appeal rights were reinstated nunc pro tunc in 2015. On June 23,
2016 this Court decided Appellant’s direct appeal and affirmed the
judgment of sentence. No petition for allowance of appeal was
filed
On February 4, 2020, Appellant, acting pro se, filed [a] PCRA
petition[, his first]. In this PCRA petition, Appellant asserted three
grounds for relief: 1) a claim that the Commonwealth allegedly
withheld a camera recording of the altercation between him and
the corrections officers; 2) a claim of ineffective assistance of his
direct appeal counsel; and 3) a claim of newly discovered evidence
of an inmate witness to the altercation. On April 2, 2020, the
PCRA court issued a notice pursuant to Pa.R.Crim.P. 907 of its
intent to dismiss Appellant’s 2020 PCRA petition without a hearing
as untimely. On April 27, 2020, the PCRA court entered an order
noting that Appellant had failed to respond to the Rule 907 notice
and dismissing the PCRA petition.
On May 22, 2020, Appellant timely appealed the April 27, 2020
dismissal of his 2020 PCRA petition, pro se, to this Court. On June
25, 2020, this Court ordered the trial court to appoint counsel for
Appellant or inform the Court why Appellant was not entitled to
counsel. The trial court appointed counsel to represent Appellant,
and in December 2020, counsel filed an application to withdraw
and filed and served on Appellant an [Anders v. California, 386
U.S. 738 (1967)] brief in which he concluded that there was no
ground for reversal of the dismissal of Appellant’s PCRA petition.
Commonwealth v. Mohamad, No. 571 WDA 2020, 253 A.3d 326 (Pa. Super.
Filed April 30, 2021) (internal citations and footnote omitted). On April 30,
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2021, we dismissed the appeal as moot because the PCRA court had vacated
its April 27 dismissal order.2 Thereafter, the docket reveals that the PCRA
court took no further action on Appellant’s PCRA petition other than to permit
appointed counsel to withdraw on October 7, 2021.
On January 24, 2022, while his first petition was lingering in the PCRA
court, Appellant filed the instant—his second—petition. Following the issuance
of a Rule 907 notice, the PCRA court dismissed as untimely the second
petition. Appellant pro se timely appealed. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
On appeal,3 Appellant pro se presents two issues for our review:
[I.] Whether the PCRA court erred and/or abused [its] discretion
when it ruled on the merits of petition without first deciding on the
discovery request?
[II.] Whether the PCRA court erred in denying [Appellant’s]
petition as untimely when he established that the government
officials interfered with the presentation of his claims by failing to
turn over exculpatory and impeachment evidence in violation of
[Brady v. Maryland, 373 U.S. 83 (1963)] within the plain
language of the timeliness exception and that the Commonwealth
failed to disclose any discoveries in this case.
Appellant’s Brief at 4 (sic).
____________________________________________
2 Specifically, the PCRA set aside the dismissal order on May 4, 2020 to allow
Appellant additional time to respond to its Rule 907 notice. Appellant
responded on May 22, 2020.
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. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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Here, we need not address the substance of Appellant’s appeal, because
the PCRA court dismissed Appellant’s second petition while his first petition
still was pending before the court. As stated, following this Court’s April 30,
2021 decision, wherein we noted that the PCRA court vacated its dismissal of
Appellant’s first PCRA petition, the PCRA court did not issue any order
disposing of the first petition. Indeed, for all intents and purposes, the first
petition still was pending before the PCRA court when Appellant filed the
second petition on January 24, 2021. Thus, to the extent the PCRA court
dismissed as untimely Appellant’s second petition, it erred.
Separately, in Commonwealth v. Montgomery, 181 A.3d 359 (Pa.
Super. 2018) (en banc), appeal denied, 190 A.3d 1134 (Pa. 2018), we held
that “PCRA courts are not jurisdictionally barred from considering multiple
PCRA petitions relating to the same judgment of sentence at the same time
unless the PCRA court’s order regarding a previously filed petition is on appeal
and, therefore, not yet final.” Montgomery, 181 A.3d at 365 (noting that
“nothing bars a PCRA court from considering a subsequent petition, even if a
prior petition is pending, so long as the prior petition is not under appellate
review”).
Under Montgomery, the PCRA court was not divested of jurisdiction to
consider Appellant’s second petition, because the first petition still was
pending before the court and no appeal had been taken. We, therefore, are
constrained to remand this matter to the PCRA court to address and dispose
of Appellant’s now two pending petitions.
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Order vacated. Case remanded. Jurisdiction relinquished.
Judge Colins joins the memorandum.
Judge King concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2023
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