Com. v. Powell, C. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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
Appellee :
:
v. :
:
CHRISS POWELL, :
:
Appellant : No. 1678 EDA 2020
Appeal from the PCRA Order Entered August 3, 2020
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0511333-2006
BEFORE: LAZARUS, J., KUNSELMAN, J. and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 14, 2021
Appellant, Chriss Powell, appeals from the order denying his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm in part
and reverse in part.
The PCRA court provided the following background.
On January 28, 2006, Appellant, along with three co-
defendants, was involved in the shooting of six[-]year[-]old J.W.
J.W. was returning from a family outing to the movies in
celebration of his recent birthday. Although multiple family
members were present[, including another minor, A.W.,] and his
grandfather, Benjamin Wright, was the target of the shooting,
J.W. was the only person injured. He was shot in the back of the
neck. The bullet severed his spinal cord, leaving him paralyzed
from the neck down. Appellant and his co-defendants were
arrested and charged with attempted murder and related
offenses.
On December 4, 2007, following a jury trial …, Appellant was
found guilty of attempted murder, four counts of aggravated
1 42 Pa.C.S. §§ 9541-9546.
*Retired Senior Judge assigned to the Superior Court.
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assault, criminal conspiracy, and [carrying a firearm without a
license].
PCRA Court Opinion, 12/14/20, at 1 (headings omitted). On April 17, 2008,
the trial court sentenced Appellant to an aggregate term of incarceration of
62 ½ to 125 years.2 On direct appeal, this Court affirmed Appellant’s
judgment of sentence. Commonwealth v. Powell, 22 A.3d 1075 (Pa. Super.
2010) (unpublished memorandum). On December 5, 2011, our Supreme
Court denied Appellant’s petition for allowance of appeal. Commonwealth
v. Powell, 34 A.3d 829 (Pa. 2011). Appellant did not seek further direct
review.
On January 28, 2014, Appellant filed this first pro se petition pursuant
to the PCRA, raising claims of ineffective assistance of trial counsel. Appellant
argued that although the petition was facially untimely, the PCRA court should
consider it timely because he filed a motion for extension of time to file a PCRA
2 It is unclear from the record before us what occurred with Appellant’s
charges and convictions under the various sections of the Uniform Firearms
Act (UFA), 18 Pa.C.S. §§ 6101–6128. Specifically, we do not know with which
UFA violations Appellant was charged, nor how the court addressed those
charges at trial. Based on the verdict sheet, Appellant was convicted of
carrying a firearm without a license, but according to the sentencing order, he
received a sentence for carrying firearms on public streets in Philadelphia, not
carrying a firearm without a license. Clearly, something is amiss with
Appellant’s UFA conviction and/or sentence. However, as discussed infra,
even if this sentence were clearly illegal on the record before the PCRA court,
the PCRA court was without jurisdiction to disturb Appellant’s judgment of
sentence because Appellant’s petition was untimely filed and not subject to
any exceptions.
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petition before the expiration of the PCRA’s one-year time-bar,3 which the
PCRA court never addressed. Counsel was appointed, and on March 6, 2017,
PCRA counsel filed an amended PCRA petition.4 Thereafter, new counsel was
appointed, who filed a second amended petition on April 2, 2019.5
On January 26, 2020, the Commonwealth filed its response, arguing
that Appellant’s sentence for carrying firearms on public streets in Philadelphia
should be vacated and that the remainder of Appellant’s PCRA claims be
dismissed. On January 27, 2020, the PCRA court heard oral argument from
PCRA counsel and the Commonwealth.
On August 3, 2020, the PCRA court granted in part and denied in part
Appellant’s PCRA petition. Specifically, the PCRA court vacated Appellant’s
sentence for carrying firearms on public streets in Philadelphia but did not
3 Although this motion does not appear in the certified record, it was attached
to Appellant’s PCRA petition. It is dated February 25, 2013, and was deposited
for mailing on February 26, 2013.
4 Because counsel did not raise all the issues Appellant wanted, he pro se filed
a motion for ineffective assistance of PCRA counsel and sought new counsel.
Subsequently, without leave of court and while still represented by counsel,
Appellant pro se filed motions for responses to his petition, as well as a second
amended petition. Generally, a PCRA court is not required to consider pro se
filings from represented petitioners. See Commonwealth v. Blakeney, 108
A.3d 739, 763 n.21 (Pa. 2014). It appears from the record that new counsel
was appointed and the PCRA court properly did not consider the pro se
amended filings.
5 Petitioners must be granted leave to file amended PCRA petitions. See
Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014). Given
our disposition, we need not determine whether the PCRA court granted
counsel leave to file this second amended petition.
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alter the remainder of Appellant’s judgment of sentence. The PCRA court
dismissed the remainder of Appellant’s PCRA petition, without a hearing, as
without merit.6 The PCRA court did not address the timeliness of Appellant’s
PCRA petition.
This appeal followed.7 Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925. Appellant raises the following issues on appeal:
1. Whether Appellant… was denied his right to a public trial during
jury selection and during the testimony of Commonwealth
witness A.W., a minor.
2. Whether the Appellant… was denied his right to a fair trial as a
result of the prosecutor’s misconduct when she made certain
statements to the jury in her closing argument to the effect
that the Appellant had an obligation to state that he was not
part of the crime in violation of his constitutional right to remain
silent.
3. Whether the Appellant[’s] trial attorney and his appellate
attorney were ineffective for failing to do the following:
a. Failing to request an alibi instruction be given to the
jury;
b. Failing to adequately object to and appeal the Court’s
conducting a non-public trial during jury selection and
during the testimony of commonwealth witness A.W.,
6 The PCRA court failed to provide Pa.R.Crim.P. 907 notice before dismissing
without a hearing the remainder of Appellant’s claims. Given our disposition,
this is not reversible error. See Commonwealth v. Zeigler, 148 A.3d 849,
852, n.2 (Pa. Super. 2016) (citation omitted) (noting that “failure to issue
Rule 907 notice is not reversible error where the record is clear that the
petition is untimely”).
7 On November 10, 2020, this Court dismissed the appeal for failure to comply
with Pa.R.A.P. 3517. Upon Appellant’s application, this Court reinstated the
appeal on December 3, 2020.
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who was a minor at the time of this incident and at
trial.
c. Failing to adequately object to and appeal the
prosecutor’s misconduct at trial in her making certain
statements to the members of the jury that
…Appellant had an obligation to state that he was not
part of the crime in violation of his constitutional right
to remain silent.
Appellant’s Brief at 3–4.
Before reaching the merits of Appellant’s claims, we must determine
whether Appellant has timely filed his petition, as neither this Court nor the
PCRA court has jurisdiction to address the merits of an untimely-filed petition.
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011). The
PCRA provides that
[a]ny 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.
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42 Pa.C.S. § 9545(b)(1). This time limit is jurisdictional, and a court may not
ignore it and reach the merits of the petition, even where the convicted
defendant claims that his sentence is illegal. Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999); Commonwealth v. Whiteman, 204 A.3d 448,
450-51 (Pa. Super. 2019); Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.
Super. 2018).
Appellant’s judgment of sentence became final on March 5, 2012, upon
the expiration of the 90-day period to file a petition for writ of certiorari with
the Supreme Court of the United States.8 42 Pa.C.S. § 9545(b)(3). The
instant PCRA petition, filed on January 28, 2014, is patently untimely unless
Appellant has alleged and proved one of the three limited exceptions set forth
in Sections 9545(b)(1)(i)-(iii). These exceptions can apply only if Appellant
filed the PCRA petition “within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
The only timeliness exception that Appellant contends applies here is
Section 9545(b)(1)(i), the exception for governmental interference. Appellant
contends that he filed a motion for extension of time to file a PCRA petition
within the one-year timeframe, and the PCRA court’s failure to rule on that
motion resulted in Appellant’s subsequent petition being untimely. See
Petition for Post Conviction Collateral Relief, 1/28/14, at 2–5 (providing
8 The 90th day, March 4, 2012, was a Sunday. See 1 Pa.C.S § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday,
… such day shall be omitted from the computation.”).
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alternative argument that the motion for extension should have been
considered a PCRA petition pursuant to Pa.R.Crim.P. 905);9 Amended PCRA
Petition, 3/6/17, at 1.
We do not agree that this satisfies the requirements of Section
9545(b)(1)(i). In Fahy, our Supreme Court explicitly held that a PCRA court
has “no authority to extend filing periods” for a PCRA petition. See Fahy, 737
A.2d at 222. Further, Appellant’s motion for extension of time did not allege
or prove any of the timeliness exceptions. See id. (holding filing period
extended only upon satisfying one of three timeliness exceptions). Therefore,
the PCRA court’s failure to address Appellant’s motion for extension of time to
file a PCRA petition does not constitute governmental interference, and
Appellant has failed to plead and prove an exception to the timeliness
requirements.
We observe that the PCRA court did not address the timeliness of
Appellant’s petition before granting in part and dismissing in part Appellant’s
petition. In the PCRA context, statutory jurisdiction cannot be conferred by
silence, agreement, or neglect. See Commonwealth v. Hutchins, 760 A.2d
50, 54 (Pa. Super. 2000). Further:
9 Rule 905(B) provides in pertinent part that “[w]hen a petition for post-
conviction collateral relief is defective as originally filed, the judge shall order
amendment of the petition, indicate the nature of the defects, and specify the
time within which an amended petition shall be filed.” Appellant’s motion for
extension cannot be construed as a defective PCRA petition where it merely
requested additional time to file a PCRA petition.
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The PCRA provides the sole means for obtaining collateral review
of a judgment of sentence. [A] court may entertain a challenge
to the legality of the sentence so long as the court has jurisdiction
to hear the claim. In the PCRA context, jurisdiction is tied to the
filing of a timely PCRA petition. Although legality of sentence is
always subject to review within the PCRA, claims must still first
satisfy the PCRA’s time limits or one of the exceptions thereto.
Thus, a collateral claim regarding the legality of a sentence can be
lost for failure to raise it in a timely manner under the PCRA.
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal
citations omitted).
Here, Appellant failed to raise his legality of sentencing claim within a
timely PCRA petition. Accordingly, the PCRA court lacked jurisdiction
to consider the issues raised in Appellant’s untimely-filed PCRA petition,
including his illegal sentencing claim. Thus, we affirm the portion of the
August 3, 2020 order dismissing Appellant’s PCRA petition,10 and reverse the
portion of the order granting Appellant relief. Because neither the PCRA court
nor this Court has jurisdiction to consider the merits of claims raised in an
untimely PCRA petition, we do not reach Appellant’s issues on appeal.
Order affirmed in part and reversed in part. Jurisdiction relinquished.
10 Although the PCRA court dismissed Appellant’s PCRA petition on the merits
instead of its untimeliness, “we may affirm the decision of the [PCRA] court if
there is any basis on the record to support the [PCRA] court’s action[.]”
Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009) (citation
omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2021
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