Com. v. Franks, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES E. FRANKS
Appellant No. 2005 EDA 2016
Appeal from the PCRA Order April 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0709691-2001
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2017
Appellant, James E. Franks, appeals pro se from the April 15, 2016
order entered in the Court of Common Pleas of Philadelphia County (“PCRA
court”) dismissing his petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The underlying facts of this case have been summarized by this Court
on direct appeal, and quoted by this Court following Appellant’s first PCRA
appeal.
Beginning in 1993, Appellant lived with his girlfriend, Ms.
Farley, their daughter, K.F. (born November 1993), and Ms.
Farley’s two daughters from previous relationships, V.M. (born
February 1990) and B.F. When V.M. was 5 and 6 years old and
no one else was home, Appellant would come into her bedroom
and tell her to sit on the bed or kneel, take off her clothes, and
close her eyes. Appellant would then force his penis inside of
her mouth, and at times he would force her to lie face down on
the bed and force his penis into her vagina. Afterwards,
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Appellant would indicate that if V.M. told her mother, he would
hurt her mother and then come after her. In 1996, Appellant
and Ms. Farley ended their relationship and V.M. stopped seeing
him.
Subsequently, when K.F. reached the age of 6 or 7, Ms.
Farley began taking her to visit Appellant every two weeks.
During one of the visits, Appellant told K.F. he wanted to play a
little game with her and told her to get on her knees, close her
eyes, and open her mouth. Appellant then put his penis into his
daughter’s mouth. Later, K.F. reported the incident to V.M. who
then told their mother.
Commonwealth v. Franks, 2359 EDA 2010, unpublished memorandum at
2-3 (Pa. Super. filed Nov. 15, 2011) (quoting Commonwealth v. Frank
[sic], 913 A.2d 940 (Pa. Super. 2006) (unpublished memorandum at 1-2),
appeal denied, 945 A.2d 167 (Pa. 2008)).
This Court summarized the procedural history following Appellant’s
first PCRA appeal.
Following a jury trial, [A]ppellant was found guilty of rape,
involuntary deviate sexual intercourse (“IDSI”) (two counts),
and corrupting the morals of a minor (two counts). On June 26,
2002, [A]ppellant was sentenced to an aggregate of 15 to 45
years’ imprisonment followed by 5 years’ probation. Following
reinstatement of his direct appeal rights nunc pro tunc,
[A]ppellant appealed to this [C]ourt, which affirmed the
judgment of sentence. Our [S]upreme [C]ourt denied allowance
of appeal on March 12, 2008.
On May 1, 2008, [A]ppellant filed a timely pro se PCRA
petition, and counsel was appointed to represent him. Appointed
counsel filed a petition to withdraw and accompanying
Turner/Finley “no merit’ letter; and on July 30, 2010, following
[the PCRA court issuing a] Rule 907[1] notice, the PCRA court
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1
Pa.R.Crim.P. 907.
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dismissed [A]ppellant’s PCRA petition without a hearing and
granted counsel permission to withdraw. A timely pro se notice
of appeal was filed on August 12, 2010. Appellant [] complied
with Rule 1925(b), and the PCRA court [] filed an opinion.
Id. (citations and footnotes omitted). This Court affirmed the PCRA court’s
dismissal of Appellant’s first PCRA petition on November 15, 2011.
On June 25, 2015, Appellant filed a second PCRA petition on June 25,
2015; however, the document was titled a petition for writ of habeas
corpus.2 On March 15, 2016, the PCRA court sent a Rule 907 Notice to
Appellant finding that the petition failed to satisfy any of the timeliness
exceptions to the PCRA. See 42 Pa.C.S.A. § 9545(b). On April 15, 2016,
the PCRA court dismissed Appellant’s PCRA petition. Appellant filed a timely
notice of appeal on May 10, 2016. After the trial court directed compliance
with Pa.R.A.P. 1925(b), Appellant filed a concise statement on May 23,
2016. The PCRA court issued an opinion on July 7, 2016.
Before this Court addresses the merits of Appellant’s issues,3 we must
determine whether this Court can entertain Appellant’s appeal. The PCRA’s
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2
It is irrelevant that Appellant styled his petition as a writ of habeas corpus.
The PCRA has subsumed habeas relief. See 42 Pa.C.S.A. § 9542.
3
Appellant raises the following issues on appeal, which we quote verbatim
Was trial Counsel ineffective for failure to “object” when
Commonwealth’s Prosecutor gave faulty jury instructions” Was
trial counsel ineffective for failure to call upon character
witnesses for defendant? YES! Was trail counsel ineffective for
failure to impeach Commonwealth’s witness? AFFIRMATIVE!
DID THE PROSECUTOR COMMIT A BRADY VIOLATION FOR
(Footnote Continued Next Page)
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jurisdictional timeliness provision requires that a petitioner must file a
petition within one year of the date on which his judgment of sentence
becomes final, or plead and prove the applicability of one of the three
statutory exceptions to the one-year time bar. 42 Pa.C.S.A. § 9545(b)(1);
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). Failure to
do so deprives the PCRA court of jurisdiction to entertain the petition. Id.
Appellant’s PCRA petition is facially untimely. Appellant’s judgment of
sentence became final 90 days following our Supreme Court’s denial of his
allocatur petition on March 12, 2008. Appellant’s second PCRA petition was
filed on June 25, 2015. Neither in Appellant’s PCRA petition nor in the litany
of documents he filed in this Court does Appellant discuss the timeliness of
his PCRA petition. Therefore, Appellant failed to plead and prove one of the
timeliness exceptions to the PCRA, and the PCRA court properly dismissed
the petition for want of jurisdiction.
Order affirmed.
_______________________
(Footnote Continued)
FAILURE TO DISCLOSE FAVORABLE EXCULPATORY EVIDENCE?
Upon request in all Court cases, the Commonwealth shall
disclose to the Defense all evidence. Police reports favorable to
the defendant were suppressed by the assistant district attorney.
A prosecutor is unquestionably required to disclose information
which may be favorable to the defense.
Appellant’s Brief at 1 (sic).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2017
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