Com. v. Grover, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMOND LEE GROVER :
:
Appellant : No. 652 WDA 2022
Appeal from the PCRA Order Entered April 22, 2022
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005610-1994
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: June 2, 2023
Damond Lee Grover (“Grover”) appeals pro se from the April 2022 order
purporting to deny his 2022 petition for writ of coram nobis. We quash.
The facts of Grover’s 1995 conviction are not relevant to this appeal,
and we briefly note that a jury found Grover guilty of, inter alia, second-degree
murder, and that the trial court imposed a mandatory term of life
imprisonment. This Court affirmed the judgment of sentence, and our
Supreme Court denied allowance of appeal on March 17, 1997. See
Commonwealth v. Grover, 683 A.2d 311 (Pa. Super. 1996) (unpublished
memorandum) (“Grover I”), appeal denied, 692 A.2d 563 (Pa. 1997). Grover
thereafter sought relief pursuant to the Post Conviction Relief Act (“PCRA”)1
without success. See Commonwealth v. Grover, 684 WDA 2002 (Pa.
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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Super. 2003) (unpublished judgment order) (“Grover II”), appeal denied,
247 WAL 2003 (Pa. 2004).
Relevant to the background of this appeal, Grover sought a correction
of the trial court’s sentencing order, which he alleged was illegal because the
court sentenced him for second-degree murder but the order improperly cited
42 Pa.C.S.A. § 9715, which governs sentencing for certain third-degree
murders. See 42 Pa.C.S.A. § 9715(a); see also Writ of Error Coram Nobis,
9/14/15, at 1-4 (unnumbered). Grover further argued that a mandatory life
sentence under 18 Pa.C.S.A. § 1102(b) for second-degree murder is illegal
and unconstitutional. See id. at 8-14 (unnumbered). In 2015, the trial court
ordered a correction to its 1995 sentencing order, but erroneously stated the
“correction” intended “to reflect the proper [s]tatute, that being, 42 Pa.C.S.A.
§ 9711.” Corrected Order of Court, 10/20/15.2 Section 9711 applies to capital
sentences for first-degree murder, not sentences for second-degree murder.
See 42 Pa.C.S.A. § 9711; see also 18 Pa.C.S.A. § 1102(b).
Grover sought relief in a pro se second PCRA petition, and the PCRA
court issued a Pa.R.Crim.P. 907 notice of intent to dismiss that petition as
untimely. Grover filed a response asserting, in relevant part, that the trial
court improperly entered the corrected sentencing order without vacating the
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2 We note the confusing and incomplete state of the docket and record in this
case. The record does not contain the 1995 sentencing order, which the trial
court later sought to correct in 2015. The record also contains documents
that do not correspond to a docket entry, and some of Grover’s pro se filings
do not include copies of the envelope or postage dates for his filings.
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original judgment of sentence and holding a resentencing hearing. See
Objections to Notice of Intention to Dismiss, 11/19/15, at 5-6. Grover also
filed another motion to modify and correct his sentence, and the PCRA court
issued a Rule 907 notice of its intent to dismiss that filing. The PCRA court
separately dismissed Grover’s second PCRA petition and his motion to modify
and correct his sentence. In a consolidated appeal, this Court affirmed both
orders concluding that Grover’s petition and motion raised facially untimely
PCRA claims, which he presented without stating a PCRA time-bar exception.
See Commonwealth v. Grover, 174 A.3d 65 & 66, 2017 WL 2536543 (Pa.
Super. 2017) (unpublished memorandum at *3) (“Grover III”).3
Grover alleges that he filed “another writ of error on March 17, 2022.”
Grover’s Brief at 4. However, no such petition exists in the record and the
docket does not contain a separate entry evidencing such a filing. The only
record material and docket entry associated with a filing after 2018 is an April
22, 2022 order dismissing a petition for writ of error coram nobis, which the
clerk of the court indicated it served on Grover’s former trial counsel, not
Grover. See Criminal Docket, No. 5610-1994, at 13-14. Adding to the
confusion surrounding this matter, Grover then filed a notice of appeal, which
he dated March 17, 2022 (i.e., more than one month before entry of the April
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3 While the appeal in Grover III was pending, the PCRA court received a pro
se third PCRA petition from Grover. The docket indicates that Grover filed this
third PCRA petition in 2016; however, the documents associated with this
filing appear to be a duplicate copy of Grover’s second PCRA petition. The
PCRA court issued a Rule 907 notice in September 2018, and thereafter
dismissed that petition in October 2018.
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22, 2022 order) but which the clerk of the court stamped as received on May
26, 2022 (i.e., more than thirty days after the entry of April 22, 2022 order)
and docketed on June 2, 2022.4
This Court issued a rule to show cause why this appeal from the April
22, 2022 order should not be quashed as untimely. Grover responded that
he mistakenly typed March 17, 2022 on his notice of appeal but prepared his
appeal on May 17, 2022. See Response to Rule to Show Cause, 7/25/22. He
further asserted that he satisfied the prisoner mailbox rule when he deposited
his notice of appeal with a corrections officer on May 22, 2022, but claimed
that he did not receive a cash slip form because no forms were “on the pod.”
Id.; see Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (deeming
the date a pro se incarcerated appellant deposits his appeal with prison
authorities as the date of filing). This Court discharged the rule to show cause
noting that this panel may revisit this issue.
Before addressing the merits of this appeal, we must first consider the
procedural impediments to this Court’s exercise of appellate jurisdiction. See
Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc)
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4 We add that the docket and record show that the trial court entered an order
requiring Grover to file a Pa.R.A.P. 1925(b) statement on May 24, 2022,
before the clerk of the court received Grover’s notice of appeal, but the clerk
of the court also docketed that order as being served on Grover’s former trial
counsel, not Grover. Although Grover did not file a Rule 1925(b) statement,
we decline to find waiver on that basis due to the improper docketing notations
of the order requiring him to file a Rule 1925(b) statement. See Pa.R.Crim.P.
114(B)(1), (C)(2)(c); see also Commonwealth v. Hess, 810 A.2d 1249,
1254 (Pa. 2002).
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(noting that the timeliness of an appeal implicates jurisdiction and may be
raised by the Court sua sponte). The docket and record show that Grover’s
notice of appeal was facially untimely. However, we need not consider
whether Grover presented this Court with reasonably verifiable evidence to
support the application of the prisoner mailbox rule, see Jones, 700 A.2d at
426, because the docket and record establish a breakdown in the operation of
the court. Specifically, the docket contains no notation that Grover was served
with the order he intends to appeal, and it is well settled that the time for
appealing an order will not begin to run until the clerk of the court dockets the
order with appropriate notations of service. See Pa.R.A.P. 108(a), (d)(1);
Pa.R.Crim.P. 114(C)(2)(c); accord Frazier v. City of Philadelphia, 735
A.2d 113, 115 (Pa. 1999). Thus, we decline to quash this appeal due to the
facial untimeliness of Grover’s notice of appeal.
This does not end our jurisdictional inquiry because the docket and
record lack any indication that Grover properly filed a petition giving rise to
the April 22, 2022 order. Our courts have stated that the appellant must
ensure that he properly filed a petition in the lower court and the record
contains the petition. See Commonwealth v. O’Black, 897 A.2d 1234, 1240
(Pa. Super. 2006); Commonwealth v. Walker, 878 A.2d 887, 888 (Pa.
Super. 2005). Documents not contained in the record do not exist for the
purpose of appellate review, and this Court may consider an alleged filing that
does not appear on the docket and in the record a nullity, see Walker, 878
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A.2d at 888, or find an issue requiring consideration of the alleged filing
waived, see O’Black, 897 A.2d at 1240.
Based on the docket and record in this matter, we are constrained to
conclude that Grover failed to meet his burden of demonstrating that he
properly filed a new petition in 2022 challenging the sentencing order.
Therefore, any such petition either does not exist or has no legal effect. See
Walker, 878 A.2d at 888. Moreover, we conclude that the court’s April 22,
2022 order is a nullity because it addressed a non-existent or improperly filed
petition. Because the alleged petition and the resulting order purporting to
dismiss the petition are nullities, we quash.5
Appeal quashed.
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5 Even if we gave Grover the benefit of all doubt and addressed the merits of
his issues in this appeal, we would conclude that he simply restates the claims
he made in Grover III. Our decision in Grover III, which held that Grover
must establish a time-bar exception to the PCRA to present his claims, is the
law of the case. See Grover III, 2017 WL 2536543 (unpublished
memorandum at *3); Commonwealth v. Gacobano, 65 A.3d 416, 419-20
(Pa. Super. 2013) (discussing the law of the case doctrine). As in Grover III,
Grover makes no attempt to assert a PCRA time-bar exception. Accordingly,
we would have no basis to afford Grover the relief he seeks. See
Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (stating that the PCRA’s
timeliness requirements are jurisdictional).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2023
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