Com. v. Craig, R. ( 2021 )

J-A20030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUBEN RICHARD CRAIG, III :
:
Appellant : No. 20 WDA 2021
Appeal from the PCRA Order Entered November 25, 2020
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000597-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: SEPTEMBER 27, 2021
Appellant, Ruben Richard Craig, III, appeals from the post-conviction
court’s order denying, as untimely, his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The facts of Appellant’s underlying convictions are not relevant to his
present appeal. We need only summarize that, in August of 2017, Appellant
was convicted by a jury of attempted homicide, aggravated assault, and
recklessly endangering another person. Appellant represented himself at trial,
with standby counsel. He also proceeded pro se at his sentencing hearing on
October 3, 2017. At the conclusion thereof, Appellant was sentenced to an
aggregate term of 20 to 40 years’ incarceration.
Appellant filed a pro se notice of appeal, which this Court dismissed as
untimely. He thereafter filed a pro se “Motion To Appeal Nunc Pro Tunc,”
claiming that his appellate rights should be reinstated because he had timely
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delivered his pro se notice of appeal to prison authorities for mailing, but a
breakdown in the mailing system or the operations of the court had prevented
it from being timely docketed. On September 18, 2018, the trial court issued
an order denying Appellant’s “Motion To Appeal Nunc Pro Tunc.”
On November 26, 2018, Appellant filed his first, pro se PCRA petition
(hereinafter, “first petition”).1 Before that petition was disposed of, however,
Appellant filed a notice of appeal from the court’s September 18, 2018 order
denying his “Motion To Appeal Nunc Pro Tunc.” While that appeal was
pending, the court issued an order on February 7, 2019, correctly dismissing
Appellant’s first petition.2 He did not file an appeal from that order. On
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1 Although the docket and the PCRA court both indicate that this first petition
was filed on November 26, 2018, we cannot locate the petition in the certified
record. See PCRA Court Order, 11/25/20, at 2 (unnumbered) (“On November
26, 2018, [Appellant] filed his first PCRA [p]etition.”).
2 See Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019),
appeal denied, 218 A.3d 850 (Pa. 2019) (stating that under Commonwealth
v. Lark, 746 A.2d 585, 588 (Pa. 2000), a PCRA court “has no jurisdiction to
consider a subsequent PCRA petition while an appeal from the denial of
the petitioner’s prior PCRA petition in the same case is still pending on
appeal[;]” thus, “[i]f the petitioner pursues the pending appeal, then the PCRA
court is required under Lark to dismiss any subsequent PCRA petitions filed
while that appeal is pending”). We recognize that Appellant’s appeal from the
order denying his “Motion To Appeal Nunc Pro Tunc” was not an appeal from
the denial of a PCRA petition, as the claims he raised therein were not
cognizable under the PCRA. However, we find this distinction immaterial, as
it is clear that an appeal taken from any type of order divests the trial court
of jurisdiction. See Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by
these rules, after an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may no longer proceed further
in the matter.”). Thus, the court correctly dismissed Appellant’s first petition,
as it was filed during the pendency of an appeal to this Court.
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January 27, 2020, this Court affirmed the order denying Appellant’s “Motion
To Appeal Nunc Pro Tunc.” See Commonwealth v. Craig, 226 A.3d 658 (Pa.
Super. 2020) (unpublished memorandum).
On November 19, 2020, Appellant filed the pro se PCRA petition
underlying his present appeal. The court issued an order dismissing the
petition on November 25, 2020.3 Appellant filed a timely, pro se notice of
appeal.4 He also timely complied with the PCRA court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Thereafter, the
court held “a Grazier[5] hearing … to determine whether [Appellant] would
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3 We recognize that the court did not appoint counsel, as this is Appellant’s
second PCRA petition. See PCRA Court Order, 11/25/21, at 1 (unnumbered)
(“As this is not [Appellant’s] first petition, [he] is not entitled to counsel unless
the [c]ourt finds that an evidentiary hearing is necessary or unless the
interests of justice require it.”) (citing Pa.R.Crim.P. 904(D), (E)). The court
also failed to issue a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s
petition without a hearing. However, Appellant does not challenge the court’s
failure in this regard on appeal and, thus, it is waived. See Commonwealth
v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the
absence of a Rule 907 notice constitutes waiver.”) (citation omitted).
4 Appellant’s pro se notice of appeal was docketed on December 30, 2020,
which was beyond the 30-day time-period for appealing from the November
25, 2020 order. On February 3, 2021, this Court issued a rule to show cause
why his appeal should not be quashed as untimely. Appellant responded,
providing a cash slip from the prison indicating that he had sent his notice of
appeal on December 20, 2020. Accordingly, our Court discharged the rule to
show cause. Given these circumstances, we consider Appellant’s pro se
appeal as being timely filed under the prisoner mailbox rule. See
Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998) (stating that
the prisoner mailbox rule means “that, for prisoners proceeding pro se, a
notice is deemed filed as of the date it is deposited in the prison mail system”).
5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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proceed in this appeal pro se, or whether he required counsel for the appeal.”
PCRA Court Opinion, 4/30/21, at 2. At the close of that hearing, the court
appointed counsel to represent Appellant, and directed counsel to file an
amended concise statement on Appellant’s behalf. Counsel complied, and the
PCRA court filed its Rule 1925(a) opinion on April 30, 2021.
In Appellant’s brief to this Court, he raises one issue for our review: “Did
the [PCRA] court err in not allowing for a PCRA hearing concerning alleged
newly[-]discovered evidence in another proceeding which involved similar
individuals to be brought into these proceedings?” Appellant’s Brief at 26
(unnumbered).6
Preliminarily, we observe that this Court’s standard of review regarding
an order denying a petition under the PCRA is whether the determination of
the PCRA court is supported by the evidence of record and is free of legal
error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We
must begin by addressing the timeliness of Appellant’s petition, because the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of a petition. See Commonwealth
v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition
for post-conviction relief, including a second or subsequent one, must be filed
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6 We presume that Appellant’s mention of ‘another proceeding’ refers to the
litigation of a PCRA petition he filed in a separate case docketed at CP-61-CR-
0000480-2016. Appellant’s appeal from the PCRA court’s denial of that
petition is presently before this Court at docket No. 1041 WDA 2020. As
Appellant makes no other mention of this separate case, we do not address it
further in the instant appeal.
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within one year of the date the judgment of sentence becomes final, unless
one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii)
applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with the
presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States
or the Supreme Court of Pennsylvania after the time
period provided in this section and has been held by
that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, because Appellant did not file a timely direct appeal, his judgment
of sentence became final on November 3, 2017, which was 30 days after his
sentence was imposed. See Commonwealth v. Brown, 943 A.2d 264, 268
(Pa. 2008) (“[I]n circumstances in which no timely direct appeal is filed
relative to a judgment of sentence, and direct review is therefore unavailable,
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the one-year period allowed for the filing of a post-conviction petition
commences upon the actual expiration of the time period allowed for seeking
direct review, as specified in the PCRA.”); Pa.R.A.P. 903(a) (stating that a
notice of appeal “shall be filed within 30 days after the entry of the order from
which the appeal is taken”). Accordingly, Appellant’s petition filed on
November 19, 2020, is patently untimely. For this Court to have jurisdiction
to review the merits thereof, he must prove he meets an exception to the one-
year timeliness requirement.
In his brief to this Court, Appellant states that “the results of an autopsy
report, and other matters which were pertinent to this case, were withheld by
the prosecution.” Appellant’s Brief at 29 (unnumbered). He also vaguely
claims that he “has presented prima facie evidence that governmental officials
at the District Attorney’s Office did not provide proper discovery of potentially
admissible evidence which was favorable to [Appellant], thus constituting a
potential violation of constitutional due process rights pursuant to Brady v.
Maryland, 373 U.S. 83 (1963).” Id. at 30 (unnumbered). Appellant asks
that we vacate the court’s order denying his petition and remand for an
evidentiary hearing on these claims. Id. at 30-31 (unnumbered).
Appellant’s cursory argument does not demonstrate the applicability of
any timeliness exception. Notably, Appellant does not specifically identify
what exception he is attempting to satisfy. His assertion that the
Commonwealth allegedly committed a Brady violation could fall within either
the governmental-interference exception of section 9545(b)(1)(i), or the
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newly-discovered-facts exception of section 9545(b)(1)(ii). See
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). To meet
section 9545(b)(1)(i), “the petitioner must plead and prove the failure to
previously raise the claim was the result of interference by governmental
officials, and the information could not have been obtained earlier with the
exercise of due diligence.” Id. Additionally, “[s]ection 9545(b)(1)(ii)’s
exception requires the facts upon which the Brady claim is predicated were
not previously known to the petitioner and could not have been ascertained
through due diligence.” Id. (citing Commonwealth v. Lambert, 884 A.2d
848, 852 (Pa. 2005)).
In this case, Appellant does not explain what ‘new facts’ he learned from
the autopsy report or ‘other matters’ ostensibly withheld by the
Commonwealth. He also does not state when and how he discovered those
new facts. Similarly, Appellant does not identify what ‘prima facie evidence’
he has produced to show that the Commonwealth withheld other, potentially
favorable evidence, or when he discovered this purported Brady violation.
Thus, it is impossible for us to discern if Appellant acted with due diligence in
raising any of these claims, or if he met the one-year filing deadline of section
9545(b)(2). Accordingly, Appellant’s undeveloped argument does not
demonstrate that his petition meets a timeliness exception, and the court did
not err in dismissing it without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2021
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