Com. v. Faison, K. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KAHEEM FAISON, : No. 3030 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered September 17, 2019
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0002522-2018
BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 23, 2020
Kaheem Faison appeals pro se from the September 17, 2019 order
dismissing his timely petition for relief filed pursuant to the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. As appellant’s notice of
appeal from that order is untimely, we are constrained to quash his appeal.
On September 24, 2018, appellant pled guilty to robbery and related
offenses. The trial court sentenced him to an aggregate term of three to
six years’ imprisonment, followed by five years’ probation, on October 18,
2018. Appellant did not file post-sentence motions or a direct appeal. On
March 15, 2019, appellant filed a timely, pro se PCRA petition. The PCRA
court appointed Scott D. Galloway, Esq. (“PCRA counsel”), who subsequently
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filed a Turner/Finley1 no-merit letter and a motion to withdraw. On June 25,
2019, the PCRA court granted PCRA counsel’s motion to withdraw. Thereafter,
on July 1, 2019, the PCRA court provided appellant with notice of its intention
to dismiss his petition without a hearing, pursuant to Pa.R.Crim.P. 907(1).
Appellant filed a pro se response to the PCRA court’s Rule 907 notice on
July 17, 2019. On September 17, 2019, the PCRA court dismissed appellant’s
PCRA petition without an evidentiary hearing. This appeal followed on
October 22, 2019.2 On February 7, 2020, this court issued a rule to show
cause as to why the appeal should not be quashed as untimely filed. Appellant
filed a sparse, six-sentence response to our rule-to-show-cause order on
February 18, 2020, arguing that we should excuse his untimely filing because
the gangs in prison caused a lockdown that affected his access to the law
library. (See “Response,” 2/18/20 at ¶ 2.)
In his brief, appellant presents four questions for our review (see
appellant’s brief at 5); however, we must first address the apparent
untimeliness of his notice of appeal, as we “lack jurisdiction to consider
untimely appeals, and we may raise such jurisdictional issues sua sponte.”
Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.Super. 2015).
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). The PCRA
court filed its Pa.R.A.P. 1925(a) opinion on October 30, 2019.
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“Absent extraordinary circumstances, this court has no jurisdiction to
entertain an untimely appeal.” Commonwealth v. Burks, 102 A.3d 497,
500 (Pa.Super. 2014) (citation omitted).
Appellant’s notice of appeal is facially untimely. The order dismissing
appellant’s PCRA petition was filed on September 17, 2019, and appellant had
until October 17, 2019 to file a timely notice of appeal. See Pa.R.A.P. 903(a)
(stating, “[t]he notice of appeal . . . shall be filed within 30 days after the
entry of the order from which the appeal is taken.”). Appellant did not file his
notice of appeal until October 22, 2019, rendering it untimely on its face.3
However, we recognize that appellant is acting pro se, and is
incarcerated. Under the “prisoner mailbox rule,” an appeal by a pro se
prisoner is deemed filed on the date the prisoner deposits the appeal with
prison authorities or places it in a prison mailbox, though the appeal is actually
received after the deadline for filing an appeal. See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa.Super. 2011), appeal denied, 46 A.3d 715(Pa. 2012). 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.” Commonwealth v. Perez,
799 A.2d 848, 851 (Pa.Super. 2002) (citation omitted; emphasis added).
3We note that the order denying PCRA relief clearly instructed appellant that
he had 30 days from the date of that order to appeal to this court.
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Here, appellant has failed to provide any documentation for our review
in his response to our rule-to-show-cause order or in his brief, and the certified
record contains no postal receipts or other “verifiable evidence” indicating
when appellant’s notice of appeal was deposited with prison authorities.
See id. Although appellant’s notice of appeal and attached certificate of
service are self-dated on October 17, 2019, that does not adequately
demonstrate that appellant mailed it from prison on that date. Neither of
these items is time-stamped, nor does the record bear any indicia of actual
delivery to prison authorities, such as a cash slip or postage marking. See
Commonwealth v. Cruz, No. 995 EDA 2017, 2018 WL 3865321, at *1
(Pa.Super. August 15, 2018) (unpublished memorandum) (explaining that for
prisoner mailbox purposes, a dated notice of appeal and certificate of service
must be time-stamped, or the record contain any other evidence indicating
the date of actual delivery to prison authorities). Moreover, appellant’s
response to the rule-to-show-cause order contains no evidence or exhibits to
support his bald claim that his untimely notice of appeal was the result of gang
activity in his prison and its effect on his access to the law library. Accordingly,
we lack jurisdiction over this appeal and quash it as untimely.
Appeal quashed.
McCaffery, J. joins this Memorandum.
Bowes, J. files a Dissenting Statement.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2020
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