Com. v. Collins, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RODNEY COLLINS
Appellant : No. 2521 EDA 2018
Appeal from the PCRA Order Entered March 28, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0815881-1992
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
JUDGMENT ORDER BY COLINS, J.: FILED JULY 16, 2019
Appellant, Rodney Collins, appeals from the order denying his second
petition filed under the Post Conviction Relief Act ("PCRA").1 As we conclude
that we are without jurisdiction, we quash the appeal.
The facts and procedural history underlying this appeal were
previously, fully and correctly set forth by the Supreme Court of
Pennsylvania in Commonwealth v. Collins, 702 A.2d 540 (Pa. 1997), and
Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008), and by the Third
Circuit in Collins v. Secretary of Pennsylvania Department of
Corrections, 742 F.3d 528 (3d Cir. 2014). Therefore, we have no reason to
restate them.
1 42 Pa.C.S. §§ 9541-9546.
Retired Senior Judge assigned to the Superior Court.
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On May 27, 2015, Appellant filed his current PCRA petition,2 and, after
an evidentiary hearing, the PCRA court entered an order denying the petition
on March 28, 2018. Appellant then filed a motion for reconsideration.
According to the PCRA court's opinion: "On April 17, 2018, this [PCRA]
Court reconsidered the dismissal[.]" PCRA Court Opinion, filed October 23,
2018, at 2. However, the only order entered on April 17, 2018, stated, in its
entirety, as follows: "AND NOW, this 17th day of April, 2018, it is hereby
ORDERED and DECREED that RODENY [sic] COLLINS is to file an affidavit
from any and all potential newly discovered witnesses in support of his April
11, 2018 Motion to Reconsider in this matter by April 30, 2018." Order,
4/17/2018. This order thus did not expressly grant the motion for
reconsideration. Id. Additionally, pursuant to our review of the certified
record, no order granting reconsideration was ever entered. On August 2,
2018, the PCRA court entered another order denying the instant PCRA
petition. Appellant filed his notice of appeal on August 24, 2018.
"We review the denial of PCRA relief to decide whether the PCRA
court's factual determinations are supported by the record and are free of
legal error." Commonwealth v. Medina, 2019 Pa. Super. 119, *8 (filed
April 17, 2019) (citation omitted).
2 We agree with the PCRA court's analysis that, although otherwise untimely,
Appellant's present PCRA petition qualifies for the "after -discovered
evidence" exception to the time bar pursuant to 42 Pa.C.S. § 9545(b)(1)(ii).
See PCRA Court Opinion, filed October 23, 2018, at 4-6.
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"The question of timeliness of an appeal is jurisdictional in nature."
Commonwealth v. Edrington, 780 A.2d 721, 725 (Pa. Super. 2001); see
also Blucas v. Agiovlasitis, 179 A.3d 520, 525 (Pa. Super. 2018). In
order to preserve the right to appeal a final order, "the notice of appeal
required by Rule 902 (manner of taking appeal) shall be filed within 30 days
after the entry of the order from which the appeal is taken." Pa.R.A.P.
903(a); see also Grimm v. Grimm, 149 A.3d 77, 86-87 (Pa. Super. 2016).
This period may be tolled if the court enters "an order expressly granting
reconsideration" within the 30 -day period. Pa.R.A.P. 1701(b)(3) (emphasis
added). Filing of a motion for reconsideration alone, without this express
grant, does not toll the 30 -day appeal period for a PCRA dismissal.
Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super. 2000).
In the current action, Appellant filed a motion for reconsideration, but
the PCRA court never expressly granted it. Nowhere in the order dated
April 17, 2018, does the PCRA court actually state that reconsideration is
granted. Thus, the 30 -day period for filing a notice of appeal was not tolled,
and Appellant had to file his notice of appeal within 30 days of March 28,
2018 - i.e., by April 27, 2018. Hence, Appellant's notice of appeal on
August 24, 2018, was untimely by more than three months, and this Court is
without jurisdiction to entertain it. Additionally, as the PCRA court never
expressly granted reconsideration and as Appellant never filed a subsequent
PCRA petition, the PCRA court had nothing pending before it when it entered
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the second order denying the PCRA petition on August 2, 2018, and said
order is therefore moot. We thus conclude that we lack jurisdiction and
must quash this appeal as untimely and improper.3
Appeal quashed.
Judgment Entered.
,
Jseph D. Seletyn,
Prothonotary
Date: 7/16/19
3 Assuming Appellant's appeal were timely, Appellant's sole claim on appeal
is that the counsel initially appointed for this second PCRA petition was
ineffective. Appellant's Brief at 4, 11-12. However, pursuant to our review
of the certified record, Appellant first raised this claim in his Pa.R.A.P.
1925(b) statement, and claims of PCRA counsel's ineffective assistance may
not be raised for the first time on appeal. Commonwealth v. Henkel, 90
A.3d 16, 25-26 (Pa. Super. 2014) (en banc).
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