Com. v. Allen, M. ( 2021 )

J-S33004-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ALLEN :
:
Appellant : No. 542 EDA 2021
Appeal from the PCRA Order Entered January 21, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003272-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ALLEN :
:
Appellant : No. 543 EDA 2021
Appeal from the PCRA Order Entered January 21, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007389-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ALLEN :
:
Appellant : No. 544 EDA 2021
Appeal from the PCRA Order Entered January 21, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008821-2012
J-S33004-21
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ALLEN :
:
Appellant : No. 545 EDA 2021
Appeal from the PCRA Order Entered January 21, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010494-2013
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 19, 2021
Michael Allen appeals from the order that dismissed his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”) in the four above-
captioned cases. We quash the appeals as untimely.
Given our disposition, an extensive examination of the history of these
cases is not necessary. Pertinent to this appeal, we observe that Appellant
filed a timely, counseled PCRA petition in the four cases for which he is serving
an aggregate term of thirty-five to seventy years of incarceration in relation
to a string of robberies and other crimes. After issuing notice of its intent to
do so pursuant to Pa.R.Crim.P. 907, the PCRA court filed an order on January
21, 2021, dismissing Appellant’s PCRA petition and advising him of his
appellate rights. The dockets and the certified records for each case reflect
that the order was served on that same date pursuant to Pa.R.Crim.P. 114.
Accordingly, the last day for filing a timely notice of appeal was Monday,
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February 22, 2021. See Pa.R.A.P. 903(a) (establishing that a notice of appeal
must be filed within thirty days of the date of entry of the order from which
the appeal is taken); 1 Pa.C.S. § 1908 (providing that weekends and holidays
are omitted from a time period calculation when the last day falls on such a
day).
The next docket entry in each case is a notice of appeal, dated February
19, 2021, which was received and docketed on March 12, 2021. As such, this
Court issued rules to show cause why the appeals should not be quashed as
untimely filed. Appellant’s counsel responded: (1) explaining that she mailed
the notices of appeal on February 19, 2021, via First Class Mail; (2) citing a
news article documenting the backlogs and delays the Post Office was
experiencing at the time; (3) representing that when the prothonotary called
her on February 26, 2021, to advise that she had to pay additional filing fees,
no mention was made about the appeals being late; and (4) indicating that
counsel paid the additional fees, which she believed “should relate back to
Appellant’s initial filing.” See Response to Rule to Show Cause, 5/10/21, at
1-2. Counsel also professed that she is a solo practitioner and has limited
experience in Pennsylvania state court, as most of her practice is in federal
court. Id. at 2. This Court discharged the rules and ordered that the issue
was to be decided by the merits panel.
It is well-settled that the “[t]imeliness of an appeal is a jurisdictional
question. When a statute fixes the time within which an appeal may be taken,
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the time may not be extended as a matter of indulgence or grace.”
Commonwealth v. Pena, 31 A.3d 704, 706 (Pa.Super. 2011). “Thus, an
appellant’s failure to appeal timely an order generally divests the appellate
court of its jurisdiction to hear the appeal.” Commonwealth v. Williams,
106 A.3d 583, 587 (Pa. 2014).
Our rules also provide that “[f]ailure of an appellant to take any step
other than the timely filing of a notice of appeal does not affect the validity of
the appeal[.]” Pa.R.A.P. 902. Accordingly, Appellant’s counsel is correct that
late payment of filing fees does not impact the timeliness of the appeal itself.
See, e.g., First Union Nat. Bank v. F.A. Realty Inv’rs Corp., 812 A.2d
719, 723 (Pa.Super. 2002) (“[T]he perfection of the appeal does not depend
in any way on the payment of the filing fee.”). However, the delay in payment
of the filing fees is not the issue here.
Except when the appellant is incarcerated and proceeding pro se,1 a
notice of appeal is filed when it is received by the clerk of courts, not when it
is deposited in the mail. See Pa.R.A.P. 905(a)(3) (“Upon receipt of the notice
of appeal, the clerk shall immediately stamp it with the date of receipt, and
that date shall constitute the date when the appeal was taken, which date
shall be shown on the docket.”); McKeown v. Bailey, 731 A.2d 628, 630
____________________________________________
1In such cases, “[t]he prisoner mailbox rule provides that a pro se prisoner’s
document is deemed filed on the date he delivers it to prison authorities for
mailing.” Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa.Super.
2019).
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(Pa.Super. 1999) (explaining that notices of appeal are not “filed” until they
are received by the prothonotary). The fact that counsel was unaware of her
duty to ensure receipt of the notice of appeal before the deadline does not
grant this Court authority to overlook the jurisdictional defect. See Pena,
supra at 706.
Therefore, we are constrained to quash these untimely appeals for lack
of jurisdiction.
Appeals quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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