Com. v. Sims, R.

J-S77040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
RODERICK SIMS :
: No. 371 MDA 2017
Appellant
Appeal from the PCRA Order January 17, 2017
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000385-2008
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 21, 2017
Appellant appeals from the order entered in the Court of Common Pleas
of Union County dismissing his third petition filed under the Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
On September 27, 2008, Appellant shot and killed Charity Sprickler and
threatened two other individuals who were in the residence with Ms. Sprickler.
On October 12, 2012, a jury convicted Appellant of burglary, second-degree
murder, and Terroristic Threats. On November 2, 2012, he was sentenced to
life imprisonment.
On September 11, 2013, this Court affirmed judgment of sentence, and
the Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on September 22, 2014. Accordingly, Appellant’s judgment of
sentence became final ninety days later, on December 21, 2014, upon the
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* Former Justice specially assigned to the Superior Court.
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expiration of the 90-day period in which to file a petition for writ of certiorari
to the United States Supreme Court. See Commonwealth v. King, 999 A.2d
598, 599 n. 1 (Pa.Super. 2010) (noting judgment of sentence becomes final
90 days after Pennsylvania Supreme Court denies allocator as defendant has
90 days from said denial to file petition for writ of certiorari to United States
Supreme Court).
Therefore, Appellant had until December 21, 2015, to file a timely PCRA
petition. See 42 Pa.C.S.A § 9545(b)(1) (a PCRA petition shall be filed within
one year of the date the judgment becomes final). Appellant filed the present
pro se PCRA petition, his third,1 on August 12, 2016, over eight months
beyond the PCRA filing deadline. The PCRA court appointed counsel, Kyle
Rude, Esq., who filed an amended PCRA petition on October 31, 2016, seeking
an evidentiary hearing on numerous allegations of ineffective assistance of
trial counsel. The court filed an order dated December 6, 2016, issuing a rule
upon the Commonwealth to show cause why Appellant’s relief should not be
granted. On December 23, 2016, the Commonwealth responded to
Appellant’s amended petition, arguing that it was time-barred under the PCRA.
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1 Appellant timely filed his first pro se petition on March 9, 2015, but he
voluntarily withdrew said petition. He filed his second pro se petition on July
5, 2016, and again voluntarily withdrew it before filing this, his third pro se
petition on August 12, 2016.
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On January 17, 2017, the PCRA court dismissed Appellant’s petition as
untimely.2
On February 21, 2017, Appellant’s counsel filed the instant appeal from
the January 17, 2017 PCRA court order denying Appellant relief. Because the
notice of appeal was not filed within 30 days of the entry of the order being
appealed, see Pa.R.A.P. 903(a), this Court entered an order on March 23,
2017 directing counsel to show cause why the appeal should not be quashed
as untimely.
On March 31, 2017, the trial court entered an order permitting Appellant
to proceed pro se. Accordingly, by order dated April 6, 2017, this Court
directed Appellant to respond to the March 23, 2017 show-cause order.
Appellant filed essentially identical responses on April 7, 2017, and April 18,
2017, and this Court discharged the show-cause order on May 2, 2017.
In his responses, Appellant relies on the Prisoner Mailbox Rule. See
Pa.R.A.P. 121(a) (pro se filing submitted by prisoner in correctional facility
is deemed filed as of date it is delivered to prison authorities for mailing or
placed in institutional mailbox, as evidenced by properly executed prisoner
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2 The court failed to issue notice per Pa.R.Crim.P. 907. Nevertheless,
Appellant has not raised this issue on appeal, so he waived any defect in
notice. See Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013)
(explaining appellant's failure to raise on appeal PCRA court's failure to provide
Rule 907 notice results in waiver of claim). Moreover, failure to issue Rule
907 notice is not reversible error where, as here, the record is clear that the
petition is untimely. Id.
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cash slip or other reasonably verifiable evidence of date that prisoner
deposited pro se filing with prison authorities). Appellant avers that he
deposited his notice of appeal with prison authorities for mailing on February
6, 2017, that it was filed on February 9, 2017, and then returned to him on
February 13, 2017, with a request that he include the order from which he
was appealing.
Appellant claims that he re-mailed the notice on February 13, 2017, and
attaches cash slips indicating that he mailed notices of appeal to the trial court
on February 6, 2017, and February 13, 2017. The certified record contains a
pro se notice of appeal that is hand-dated February 6, 2016, and is date-
stamped as received in the trial court on February 16, 2017, one day prior to
the expiration of the 30-day appeal period. The trial court docket does not
reflect the alleged return of the notice to Appellant, and he does not provide
supporting documentation. It appears that the pro se notice was docketed
and forwarded to counsel, pursuant to Pa.R.A.P. 576(A)(4), who then filed the
counseled notice of appeal.
Thus, at the time that Appellant filed the pro se notice of appeal, which
is arguably timely under the Prisoner Mailbox Rule, he was still represented
by counsel. The trial court followed the proper procedure under Rule
576(A)(4) for when a counseled defendant submits a pro se filing. Counsel,
however, did not act on Appellant’s apparent desire to appeal until after the
30-day appeal period elapsed.
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The question, therefore, is whether Appellant’s pro se notice of appeal
can be treated as the actual notice of appeal, even though he was represented
by counsel at the time. Notwithstanding the general prohibition against hybrid
representation, see Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa.
2011) (“[T]he proper response to any pro se pleading is to refer the pleading
to counsel, and to take no further action on the pro se pleading unless counsel
forwards a motion. Moreover, once the brief has been filed, any right to insist
upon self-representation has expired.”) (citations omitted); Commonwealth
v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (discerning no right to hybrid
representation either at trial or on appeal), we find the Pennsylvania Supreme
Court decision in Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), which
validated a pro se notice of appeal filed by a counseled criminal defendant,
instructive.
The Cooper Court addressed a situation where a counseled litigant filed
a pro se notice of appeal unbeknownst to his attorney, who in the meantime
had filed a timely post-sentence motion, which the trial court denied, and then
a timely counseled appeal, thus resulting in parallel appeals accepted for filing
in the Superior Court. The Superior Court administratively quashed the
counseled appeal as duplicative of the pro se appeal. Then, a panel of this
Court, determining the pro se appeal was premature and void as a nullity,
quashed that appeal as well, but remanded the matter for the trial court for a
hearing on the counseled post-sentence motion.
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The Commonwealth appealed from the Superior Court decision, arguing
that the pro se filing validly initiated appellate proceedings and did not run
afoul of Jette or Ellis, as a notice of appeal is not a pleading but is, instead,
merely a ministerial task that neither conflicts with counsel’s strategy or
creates confusion and delay as occurs when a court receives multiple briefs or
motions. Cooper argued that the pro se appeal was a nullity and the counseled
appeal, alone, was valid, a position which, if accepted, would preserve his
sentencing challenge raised in the counseled post sentence motion.
The Supreme Court agreed the pro se appeal was premature, ill-advised,
and responsible for “instigat[ing] various procedural problems that are
endemic to hybrid representation[.]” Id. at 1006-1007. However, the Court
deemed the pro se filing as merely premature and subject to withdrawal or
quashal upon the filing of the counseled notice of appeal, but it was “definitely
not a ‘nullity,’ especially once the counseled appeal was dismissed.” Id. at
1007. Our Supreme Court, therefore, reversed and remanded for this Court
to address the merits of the pro se appeal as perfected by counsel’s post
sentence motions and corresponding notice of appeal.
Here, we cannot say the pro se appeal was even premature, for there
were no further actions taken by counsel afterward, such as the filing of a post
sentence motion, nor was there a timely-filed counseled notice of appeal in
this matter, as counsel’s filing was untimely. As such, Appellant’s pro se filing
stands as the only timely notice of appeal, and would, thus, not be subject to
withdrawal or quashal as contemplated in Cooper. Moreover, under the
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rationale of Cooper, which rejected application of bright-line rules against
hybrid representation in matters involving the ministerial act of filing a notice
of appeal, we reject the notion that Appellant’s pro se filing was a nullity and,
instead, conclude that the interests of fairness and judicial economy weigh in
favor of deeming Appellant’s pro se appeal valid.
After notice of appeal was filed, Appellant filed a Motion for Discharge
and Removal of Counsel for reasons of perceived ineffectiveness, which was
granted by order of March 31, 2017. In Appellant’s pro se brief, he presents
the following questions for our review:
I. DID APPELLATE COUNSEL’S INEFFECTIVE
ASSISTANCE AND DEFICIENT PERFORMANCE
PREJUDICE THE PETITIONER’S RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY THE 6 TH AMENDMENT OF THE
UNITED STATES CONSTITUTION AND THE
PENNSYLVANIA CONSTITUTION?
II. WAS THERE A REASONABLE PROBABILITY OF A
DIFFERENT RESULT WITH EFFECTIVE ASSISTANCE?
III. DID THE GOVERNMENT’S ACTIONS PREJUDICE THE
PETITIONER’S RIGHT OF DUE PROCESS PURSUANT TO
THE 5TH AND 14TH AMENDMENT OF THE UNITED
STATES CONSTITUTION?
IV. WAS THE APPELLANT DENIED HIS
CONSTITUTIONALLY GUARANTEED RIGHT TO A FAIR
TRIAL?
V. WAS THE DEFENDANT’S RIGHT TO A JURY OF HIS
PEERS DENIED PURSUANT TO THE 6TH AMENDMENT
OF THE UNITED STATES CONSTITUTION?
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VI. DID THE PCRA COURT DISREGARD THE APPELLANT’S
INITIAL FILING DATE?
Appellant’s brief (unpaginated). In amendments to his brief, Appellant has
raised an ineffective assistance of counsel in failing to present a proper
diminished capacity defense and a destruction of evidence claim under Brady
v. Maryland, 373 U.S. 83, S.Ct. 1194 (1963).
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. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007) (stating PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded to address the merits of the petition). Under the PCRA,
any petition for post-conviction relief, including a second or subsequent one,
must be filed 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:
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(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). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
As noted above, Appellant's judgment of sentence became final on
December 21, 2014, making his August 12, 2016, PCRA petition untimely.
Appellant may avoid the time-bar if he can plead and prove one of the
statutory exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1).
Here, Appellant first asserts numerous ineffective assistance of counsel
claims as potential exceptions to the time bar. It is well-settled, however,
that ineffective assistance of counsel claims cannot save a petition that does
not otherwise fall into an exception to the PCRA’s jurisdictional time bar. See
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).
Appellant also invokes both the governmental interference and the
newly-discovered fact exception to the PCRA time-bar pursuant to Sections
9545(b)(1)(i) and (ii) with his claim that police committed a Brady violation
when they “suppressed” results of blood samples taken from Appellant on the
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night of the fatal shooting. He contends such evidence was critical to his
defense at trial, where he testified that he was so intoxicated at the time of
the burglary and fatal shooting that he lacked the ability to form criminal
intent.
Appellant cannot establish, however, that the facts upon which his claim
is predicated were not previously known to him or that the facts could not
have been ascertained through due diligence. See Commonwealth v. Abu–
Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (concluding that not only must a
petitioner assert that “the facts upon which the Brady claim is predicated
were not previously known to the petitioner,” but also that they “could not
have been ascertained through due diligence”); see also Commonwealth v.
Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (“Although a Brady violation may
fall within the governmental interference exception, the petitioner must plead
and prove that the failure to previously raise these claims was the result of
interference by government officials, and that the information could not have
been obtained earlier with the exercise of due diligence.”) (citation omitted).
The Commonwealth informed Appellant’s trial counsel before trial that
the laboratory had destroyed Appellant’s blood samples, in accordance with
their ordinary custom, after determining the samples yielded negative results.
Indeed, Appellant attaches to his brief a letter he received from trial counsel
dated July 7, 2009, three years before his criminal trial, in which counsel
informs him of this fact. Appellant, therefore, knew of the destruction of his
blood samples for more than six and one-half years prior to the expiration of
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his one-year PCRA filing period, such that he does not qualify for an exception
to the PCRA time-bar on this basis.3
Therefore, as Appellant has failed to plead and prove that he qualifies
under an exception to the PCRA’s timeliness provisions, we lack jurisdiction to
address his appeal on the merits.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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3 Nor, for that matter, has Appellant sufficiently pled and proved that the
alleged Brady violation amounted to governmental interference with his
ability to present this claim in a timely PCRA petition, as the exception under
Section 9545(b)(1)(i) requires.
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