Com. v. Cowen, M. ( 2022 )

J-A07015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL COWEN :
:
Appellant : No. 1252 EDA 2021
Appeal from the PCRA Order Entered April 14, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004513-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 02, 2022
Appellant, Michael Cowen, appeals pro se from the Order entered on
April 14, 2021, by the Delaware County Court of Common Pleas dismissing his
first Petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§
9541-46 (”PCRA”). After careful review, we quash this appeal as untimely
filed.
On March 2, 2020, Appellant entered a negotiated guilty plea to one
count of robbery and the court immediately sentenced Appellant to the
negotiated term of 84 to 216 months’ incarceration. Appellant did not file
post-sentence motions or a direct appeal.
On May 7, 2020, Appellant timely filed pro se his PCRA petition. The
court appointed counsel, who filed a Turner/Finley1 no-merit letter on
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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October 26, 2020. Although he was served with counsel’s letter, Appellant
did not file a response.
On March 19, 2021, the PCRA court served both Appellant and his PCRA
counsel with a Notice of Intent to Dismiss PCRA Petition Without a Hearing in
20 days. Appellant did not respond to the court’s notice.
The court dismissed Appellant’s Petition on April 14, 2021, and granted
counsel’s request to withdraw, effective after the expiration of the thirty-day
appeal period.
On April 19, 2021, Appellant filed pro se a “Motion for Extension of Time
to File/Submit Objections to the Court’s Rule 907 Notice.” On May 12, 2021,
the trial court entered an Order dismissing the motion as moot.
On June 22, 2021, Appellant filed pro se a Notice of Appeal. This Court
issued a Rule to Show Cause (“RTSC”) as to why the appeal should not be
quashed as untimely. Appellant responded, stating that he mailed his notice
of appeal from prison on May 12, 2021. We discharged the RTSC to allow this
merits panel to consider whether this appeal should be quashed as untimely
filed.
Prior to any consideration of the merits of Appellant's claims, we must
first determine whether this court has jurisdiction. It is well-settled that “the
timeliness of an appeal implicates our jurisdiction and may be considered sua
sponte.” Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super.
2011). “Jurisdiction is vested in the Superior Court upon the filing of a timely
notice of appeal.” Id. (citation omitted).
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Our rules of appellate procedure require that a notice of appeal must be
filed with the trial court within 30 days of the entry of the order from which
the appeal is taken. Pa.R.A.P. 903(a). The date of receipt of the notice of
appeal stamped by the trial court, “shall constitute the date when the appeal
was taken.” Pa.R.A.P. 905(a)(3). “Absent a breakdown in the operations of
the court, [t]ime limitations on the taking of appeals are strictly construed and
cannot be extended as a matter of grace.” Commonwealth v. Valentine,
928 A.2d 346, 349 (Pa. Super. 2007) (citation and internal quotation marks
omitted). Here, the PCRA court dismissed Appellant’s petition on April 14,
2021. Appellant, thus, had until May 14, 2021, to file his Notice of Appeal.
His appeal is, however, docketed as received on June 22, 2021.
In his response to our RTSC, Appellant referenced the prisoner mailbox
rule and summarily stated that he “completed and submitted on May 12,
2021” his notice of appeal. Response RTSC, filed 8/25/21, at 3.
Under the “prisoner mailbox rule,” this Court will deem an appeal by a
pro se prisoner filed on the date the prisoner deposits the appeal with prison
authorities or places it in the prison mailbox. Commonwealth v. Jones, 700
A.2d 423, 425-26 (Pa. 1997). In determining the filing date of such appeals,
“we are inclined to accept any reasonably verifiable evidence of the date that
the prisoner deposits the appeal with the prison authorities[,]” including a
certificate of mailing, cash slip from prison authorities, or evidence of internal
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operating procedures of the prison or court regarding mail delivery. Id. at
426.
In its Rule 1925(a) Opinion, the PCRA court opined that Appellant’s
appeal was untimely filed. It noted that Appellant wrote May 12, 2021, on his
Notice of Appeal but the inmate envelope showed a postmark of May 19, 2021,
five days after the filing deadline. PCRA Ct. Op., dated 8/17/21, at 2-3.
Appellant has not challenged those findings.
In responding to our RTSC, Appellant failed to annex any verifiable
evidence showing that he placed his Notice of Appeal with prison authorities
for mailing prior to or on May 14, 2021, the final date for filing his appeal.
Without any such evidence, we are constrained to conclude that the prisoner
mailbox rule affords no relief, this appeal is untimely, and we are without
jurisdiction to address its merits. For this reason, we must quash the appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2022
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