Com. v. Morris, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYREE MORRIS :
:
Appellant : No. 1043 EDA 2020
Appeal from the PCRA Order Entered February 20, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012194-2015
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 07, 2021
Tyree Morris (“Morris”) appeals from the Order dismissing his Petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm
the Order dismissing Morris’s PCRA Petition, albeit on a different basis than
that of the PCRA court.2
The PCRA court summarized the facts underlying Morris’s convictions as
follows:
[Morris] and the victim, [Q.H. (“the victim”)], lived together
at a home on 7432 Buist Avenue in Philadelphia, along with [the
victim’s] nine[-]year[-]old son from a previous relationship. The
two had previously been in a romantic relationship for three years,
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1 42 Pa.C.S.A. §§ 9541-9546.
2 See Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)
(stating that we “may affirm a PCRA court’s decision on any grounds[,] if the
record supports it.”) (citation omitted).
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but the relationship ended before they moved into the house.
They slept in separate bedrooms.
In the early morning hours of October 17, 2015, [Morris]
entered [the victim’s] room while she was sleeping. [Morris] woke
her up and asked her if she was leaving him. When [the victim]
said she was leaving him, [Morris] punched her in the face. He
then pulled out a gun, told [the victim] to turn around[,] and tied
her wrists behind her back. [Morris] told [the victim] that if she
was not quiet, he would go upstairs and shoot her son. He then
removed her underwear and anally penetrated her with his penis.
After anally penetrating her, [Morris] took [the victim] to the
bathroom, wiped her off, and dressed her. Now back in the
bedroom, [Morris] told [the victim] to put her shoes on, and he
put the gun on the bed. While [Morris] was putting a shirt on,
[the victim] was able to untie herself and ran out of the bedroom.
Shortly after running out [of] the front door of the house, [Morris],
who was chasing her, shot his gun at [the victim] at least seven
times. [Morris] caught up to [the victim] across the street from
their home, grabbed her and tried to shoot her. However, the gun
did not fire. [Morris] then started choking [the victim] and
dragged her on the pavement behind a parked vehicle. [Morris]
continued strangling [the victim] until she passed out.
Subsequently, [Morris] fled the scene in his vehicle.
PCRA Court Opinion, 7/24/20 at 3-4 (footnote omitted). The victim identified
Morris as her assailant. See id. at 6. Further, DNA evidence taken from the
victim’s rectum, and from a cloth still tied to the victim’s wrist at the crime
scene, matched that of Morris. See id. Morris was later apprehended in
Maryland.
A jury subsequently convicted Morris of one count each of attempted
murder, aggravated assault, rape, sexual assault and possession of an
instrument of crime; two counts each of carrying a firearm without a license
and carrying a firearm on public streets in Philadelphia; and three counts of
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carrying a firearm by a prohibited person.3 The trial court sentenced Morris
to an aggregate term of 25 to 50 years in prison. Morris filed post-sentence
Motions, which the trial court denied. At this time, new counsel, Michael
Wiserman, Esquire (“Attorney Wiserman”), entered his appearance on behalf
of Morris. Morris timely filed a Notice of Appeal. However, Morris
subsequently filed a Motion to dismiss the appeal, which this Court granted on
December 13, 2017.
On January 8, 2019, Morris, represented by Attorney Wiserman, filed
the instant PCRA Petition. The Commonwealth filed a Motion to dismiss the
Petition. Morris filed a response, which included a Motion for limited discovery
related to claims raised in his PCRA Petition. The PCRA court issued
Pa.R.Crim.P. 907 Notice of its intention to dismiss Morris’s Petition without a
hearing. Thereafter, the PCRA court denied Morris’s discovery Motion, and
dismissed the PCRA Petition on its merits. Morris timely filed the instant
appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
Before addressing Morris’s substantive claims, we first must ascertain
whether Morris timely filed his PCRA Petition. A PCRA petition must be filed
within one year of the date the petitioner’s judgment of sentence became final.
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3See 18 Pa.C.S.A. §§ 901(a), 2702, 3121(a)(1), 3124.1, 907(a), 6106(a)(1),
6108, 6105.
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42 Pa.C.S.A. § 9545(b)(3). “For purposes of [the PCRA], a judgment [of
sentence] becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” Id. The one-year time limitation is jurisdictional; a court has no
power to address the substantive merits of an untimely petition.
Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003);
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Our review of the record discloses that during his direct appeal, in lieu
of a Pa.R.A.P. 1925(b) concise statement, Morris filed a counseled “Notice of
Withdrawal of Appeal.” See Notice of Withdrawal, 10/12/17. In the Notice,
Morris stated that “Counsel has today filed by mail a [M]otion in the Superior
Court moving to dismiss the appeal[,] because there are no preserved, non-
frivolous issues to present on appeal.” Id. Morris filed a counseled Motion to
Dismiss his appeal, in this Court, on October 13, 2017. See Application to
Dismiss, 10/13/17, at 1. The Motion included a statement, signed by Morris,
confirming his intention to terminate his direct appeal. See id. at 2.
On December 13, 2017, this Court entered an Order granting Morris’s
Motion, and dismissing his direct appeal. See Commonwealth v. Morris,
2950 EDA 2017, Order (Pa. Super. filed December 13, 2017). As a result,
Morris’s judgment of sentence became final that same day: December 13,
2017. See Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super.
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2008) (recognizing that the appellant’s judgment of sentence became final the
day that he discontinued his direct appeal); Commonwealth v. Conway,
706 A.2d 1243, 1244 (Pa. Super. 1997) (providing that the appellant’s
judgment of sentence “became final when his direct appeal was discontinued
at his request.”).4 Morris filed the instant PCRA Petition on January 9, 2019.5
Consequently, Morris’s January 9, 2019, PCRA Petition, filed more than one
year after December 13, 2017, is facially untimely.
Pennsylvania courts may consider an untimely petition if the appellant
can explicitly plead and prove one of three exceptions set forth under 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of these exceptions
“shall be filed within one year of the date the claim could have been
presented.” Id. § 9545(b)(2). “The PCRA petitioner bears the burden of
proving the applicability of one of the exceptions.” Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017).
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4In McKeever and Conway, the appellants terminated their appeals by filing
motions to “discontinue” the appeal. Here, Morris filed a Motion to “dismiss”
his direct appeal. This difference in the wording of Morris’s Motion does not
impact our decision. Here, as in McKeever and Conway, Morris’s judgment
of sentence became final on the date on which he voluntarily terminated his
direct appeal.
5Our review discloses that Morris dated the cover page of his PCRA Petition
as January 9, 2018. However, the Petition is date stamped January 9, 2019,
and the docket reflects the 2019 date. The Certificate of Service for the
Petition is likewise dated January 9, 2019.
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Morris raises several claims in his appellate brief, none of which identify
or invoke any of the timeliness exceptions set forth at section 9545(b)(1)(i)-
(iii). As such, the PCRA court lacked jurisdiction to address the merits of the
claims raised by Morris. See Abu-Jamal, supra; Gamboa-Taylor, supra.
We therefore affirm the Order dismissing Morris’s PCRA Petition. See Rykard,
supra.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2021
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