Com. v. Pickens, T.

J-A27028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY PICKENS :
:
Appellant : No. 1528 EDA 2021
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003698-2017
BEFORE: PANELLA, P.J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 1, 2022
Troy Pickens appeals from the order, entered in the Court of Common
Pleas of Montgomery County, denying his motion for bail pending the outcome
of his Post Conviction Relief Act (PCRA) proceedings, 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
In a related appeal,1 we adopted the PCRA court’s summary of the
relevant factual and procedural history of this case as follows:
Pickens . . . was found guilty of five counts of dealing in the
proceeds of unlawful activity, see 18 Pa.C.S.A. § 5111, five counts
of tampering with public records or information, see 18 Pa.C.S.A.
§ 4911, five counts of tampering with records or information, see
18 Pa.C.S.A. § 4104, and five counts of securing execution of
documents by deception, see 18 Pa.C.S.A. § 4114, following a
one-day bench trial on September 11, 2018. The court sentenced
____________________________________________
1 See Commonwealth v. Pickens, 540 EDA 2021 (Pa. Super. 2022)
(unpublished memorandum decision).
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Pickens on January 3, 2019 to 49 to 98 months’ imprisonment
followed by five years’ probation.
Pickens . . . filed [counseled] timely post-sentence motions on
January 11, 2019, seeking to modify sentence and restitution.
After argument, the court entered an order on February 8, 2019,
granting Pickens’ motion to modify restitution by agreement, and
denying his motion to modify sentence.
On April 23, 2019, the Clerk of Courts of Montgomery County
received and docketed a pro se notice of appeal. . . .
[Nevertheless, t]he court’s order denying Pickens’ motion to
modify sentence was entered on February 8, 2019, therefore,
Pickens’ final date to appeal was March 10, 2019.
By order dated March 26, 2020, the Superior Court of
Pennsylvania quashed Pickens’ appeal as untimely, as it was filed
beyond the thirty-day appeal period.
On April 13, 2020, Pickens filed, pro se, a PCRA petition and an
amended PCRA petition on June 12, 2020. By order dated June
24, 2020, the court appointed [counsel.]
On November 6, 2020, [counsel] filed a petition to withdraw . . .
and attached a detailed “no merit” letter that [he] sent to
[Pickens], pursuant to Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988), stating [his] opinion that Pickens was not
entitled to PCRA relief. On January 29, 2021, the court issued
notice of its intent to dismiss Pickens’ PCRA petition pursuant to
Pa.R.Crim.P. 907. Pickens replied. After a review of Pickens’
response to the Rule 907 notice, the court again determined that
the PCRA petition lacked merit, and on February 25, 2021, entered
a final order dismissing the PCRA petition.
Pickens filed a timely notice of appeal with the Superior Court of
Pennsylvania on March 8, 2021. Pickens also filed a concise
statement of errors complained of on appeal in conjunction with
the notice of appeal.
Id. at *1-*2, quoting PCRA Court Opinion, 4/23/21, at 1-3 (brackets omitted).
On July 13, 2021, Pickens filed a motion for bail pending PCRA
proceedings, which the court denied two days later. Pickens filed a timely
notice of appeal from the order denying of that motion. On appeal, Pickens
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raises two issues for our review, which we have combined for ease of
disposition:
Did the [PCRA] court abuse its discretion when it denied
[Pickens’] motion for bail pending PCRA proceedings with no
reason of record given as to why, constituting
unreasonableness[, and] despite the [motion raising
meritorious issues], [since Pickens’] offenses [were]
nonviolent, non-drug related, and the current outbreak of
Covid-19 in [Pickens’] institution and related deaths [merited
the grant of bail]?
Appellant’s Brief, at i, 4 (unnecessary capitalization omitted). After our
review, we conclude that Pickens is not entitled to any relief.
This Court reviews a trial court’s order denying a bail motion for an
abuse of discretion. Commonwealth v. Bishop, 829 A.2d 1170, 1172 (Pa.
Super. 2003). Reversal is only warranted where the lower court “misapplies
the law, or its judgment is manifestly unreasonable, or the evidence of record
show that [its] decision is a result of partiality, prejudice, bias, or ill will.” Id.(quoting Commonwealth v. Dunlavey, 805 A.2d 562, 564 (Pa. Super.
2002)).
Here, contrary to Pickens’ claims, there were no PCRA proceedings
pending at the time that Pickens filed his motion for bail, since, the denial of
his PCRA petition was already on appeal before this Court. See Pa.R.A.P.
1701(a) (“[A]fter 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.”). Since Pickens’ appeal of the denial of his PCRA petition was
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pending on appeal at the time he moved for bail, the PCRA court was divested
of jurisdiction to grant Pickens’ requested motion. Id.Moreover, we observe that the court is without power to grant bail once
direct appeal rights have been exhausted. See Dunlavey, supra at 565,
citing Pa.R.Crim.P. 534 (finding court erred and acted without authority where
court set bail after defendant’s direct appeal rights had expired); see also
Commonwealth v. McMaster, 730 A.2d 524, 527 (Pa. Super. 1999) (trial
court’s power to set bail remains valid until defendant exhausts direct appeal
rights; “The intent of this rule is to continue the validity of the bail bond
through all avenues of direct appeal in state courts, but to exclude any post-
conviction collateral proceedings.”) (emphasis added).
Here, since Pickens never filed a petition for allowance of appeal to the
Pennsylvania Supreme Court from the March 26, 2020 Superior Court order,
his direct appeal rights were exhausted on April 27, 2020. See
Commonwealth v. Mazzarone, 856 A.2d 1208, 1210-11 (Pa. Super. 2004),
citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000) (after
Superior Court dismissed direct appeal as untimely, judgment became final
thirty days following entry of order dismissing appeal since no petition for
allowance of appeal was filed with Supreme Court); see also Pa.R.A.P.
1113(a) (appeal to Pennsylvania Supreme Court must be filed within 30 days
of entry of order denying reconsideration). Consequently, the court was
without power to grant bail at the time Pickens filed the motion. See
Dunlavey, supra.-4-
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Order affirmed.2
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/2022
____________________________________________
2 Pickens filed an application for relief in this Court on September 21, 2021,
seeking that we “disregard/waive the requirements of the Rules [of Appellate
Procedure] in the instant case [since Pickens] was not equipped to prepare his
br[ie]f [because he is proceeding pro se] and is not [] learned in [Pennsylvania
law], but has filed his [b]rief to the best of his knowledge and ability,” Pickens
“is currently in[carcerated in] a [s]tate [c]orrectional [i]nstitution which has
seen a great deal of Covid-19 outbreak over the last 15 months,” and “[d]uring
the preparation and filing of [Pickens’ brief,] his [correctional i]nstitution was
[placed under] enhanced [q]uarantine,” and Pickens did not receive the “legal
assistance usually afforded to pro se inmates, nor [was he] allowed normal
access to the Law Library.” Appellant’s Pro Se Application for Relief, 9/21/21,
at 1-2. This Court deferred Pickens’ application for relief to the merits panel
in an order issued per curiam. See Order, 10/18/21.
Presently, we deny Pickens’ application for relief since Pickens acknowledged,
on the record, that he would be held to the same standards on appeal as any
other party, even though proceeding pro se. See N.T. Hearing on Petition in
Support of Withdrawal as Counsel, 6/6/19, at 3-5. See also Commonwealth
v. Pickens, supra at *7 n.1.
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