Com. v. Vance, R.

J-S35007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSSELL L. VANCE :
:
Appellant : No. 1223 EDA 2018
Appeal from the PCRA Order April 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0216811-1985
BEFORE: OLSON, J., STABILE, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 30, 2019
Appellant, Russell L. Vance, appeals pro se from the order entered on
April 5, 2018, dismissing as untimely his ninth petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9646. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On February 3, 1986, Appellant entered an open guilty plea to
murder, generally, and possessing instruments of crime after shooting his
landlord nine times in an apparent rental payment dispute. Following a
degree-of-guilt hearing, Appellant was convicted of first-degree murder and
sentenced to a mandatory sentence of life imprisonment without the
possibility of parole. This Court affirmed Appellant’s judgment of sentence on
August 1, 1988, and our Supreme Court denied allowance of appeal on March
15, 1989.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Thereafter, Appellant filed eight PCRA petitions, none of which afforded
him relief. In his eighth petition, Appellant argued that he was entitled to
relief based upon the United States Supreme Court decision in Miller v.
Alabama, 560 U.S. 460 (2012). We disagreed, however, finding that Miller
was inapplicable to Appellant. See Commonwealth v. Vance, 121 A.3d
1136 (Pa. Super. 2015) (unpublished memorandum). Therein, we noted that
“Miller applies to juveniles sentenced to life imprisonment without the
possibility of parole[, but] Appellant was 39 [years old] and, therefore, not a
minor when he committed his crime.” Id. at *6 (footnote omitted).
On February 2, 2016, Appellant filed the instant pro se PCRA petition,
his ninth, alleging that the United States Supreme Court decision in
Montgomery v. Louisiana, 136 S.Ct. 718, 723 (2016), which applied Miller
retroactively to cases still pending on state collateral review, entitled him to
relief. On May 30, 2017, the PCRA court sent Appellant notice pursuant to
Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s petition because he
failed to validly invoke an exception to the PCRA’s one-year jurisdictional time
bar. Moreover, the PCRA court noted that Appellant was not entitled to relief
under Montgomery, for the same reason that he was not entitled to relief
under Miller, because he was 39 years old at the time of the crimes.
On June 19, 2017, Appellant filed a response to the PCRA court’s Rule
907 notice. Therein, Appellant alleged that because he and the victim were
both employed by the United States Postal Service, the trial court lacked
jurisdiction over this case and Appellant should have been tried in federal
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court. Appellant, however, did not seek leave of court to amend his PCRA
petition to include this additional issue. Moreover, the response did not
elaborate on Appellant’s original claims raised pertaining to Montgomery and
Miller. By order and opinion entered on April 5, 2018, the trial court
dismissed Appellant’s PCRA petition as untimely. In the accompanying
opinion, the PCRA court again noted that Miller and Montgomery were
inapplicable to Appellant based upon his age at the time of the crime. The
PCRA court further recognized that although the PCRA provides relief for a
claim of lack of jurisdiction, such a claim is still subject to the PCRA’s one-year
timeliness requirement and Appellant failed to invoke an exception to the time
bar. Appellant filed a pro se notice of appeal on April 17, 2018.
On appeal, Appellant presents the following issues, pro se, for our
review:
I. Whether the [PCRA] court erred by denying Appellant’s PCRA
petition alleging that the trial judge did not have jurisdiction over
[Appellant’s original murder charges?]
II. Whether the [PCRA] court erred by denying Appellant’s PCRA
petition because of untimeliness?
III. Whether trial counsel was ineffective by failing to challenge the
jurisdiction of the trial court since both Appellant and the victim []
were full-time employees of the U.S. [P]ostal [S]ervice?
Appellant’s Pro Se Brief at 4 (cleaned up).
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court's ruling if it is supported
by evidence of record and is free of legal error. This Court may
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affirm a PCRA court's decision on any grounds if the record
supports it. Further, we grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford no
such deference to its legal conclusions. Where the petitioner
raises questions of law, our standard of review is de novo and our
scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal
citations omitted).
Initially, we note that, on appeal, Appellant has abandoned his original
claim pertaining to Miller and Montgomery and, thus, we find that issue
waived. Our Rules of Appellate Procedure state unequivocally that each
question an appellant raises on appeal is to be supported by discussion with
reference to the record and analysis of pertinent authority. See Pa.R.A.P.
2119. Appellate arguments which fail to adhere to our rules may be
considered waived, and arguments which are not appropriately developed are
waived. See Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa.
Super. 2006) (deeming the appellant's claims waived under Rule 2119(a)
because he did not develop meaningful argument with specific references to
relevant caselaw and to the record to support his claims); see also
Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998) (“Failure
to brief an issue is to waive it, as such omission impedes our ability to address
the issue on appeal.”). Thus, the original issue presented in Appellant’s most
recent PCRA petition is waived.
Next, we recognize that all of Appellant’s appellate issues, as presented,
center on his claim that the Philadelphia Court of Common Pleas lacked
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jurisdiction over his 1986 criminal case because both he and the victim were
federal employees at the time of the crime. Thus, Appellant posits that he
should have been tried in federal court. Appellant raised this issue initially in
his response to the PCRA court’s notice of intent to dismiss the PCRA petition
under Pa.R.Crim.P. 907. He did not seek leave to amend the current PCRA
petition.
This Court previously determined that issues not included in an original
PCRA petition or a court-approved amended PCRA petition are deemed
waived. See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.
2011) (“It is well-settled that issues not raised in a PCRA petition cannot be
considered on appeal.”) We stated:
The purpose behind a Rule 907 pre-dismissal notice is to allow a
petitioner an opportunity to seek leave to amend his petition and
correct any material defects, see Commonwealth v. Williams,
782 A.2d 517, 526 (Pa. 2001), the ultimate goal being to permit
merits review by the PCRA court of potentially arguable claims.
The response is an opportunity for a petitioner and/or his counsel
to object to the dismissal and alert the PCRA court of a perceived
error, permitting the court to “discern the potential for
amendment.” Id. at 527. The response is not itself a petition and
the law still requires leave of court to submit an amended petition.
See Pa.R.Crim.P. 905(A).
Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012). In order
to aver a new PCRA claim, as Appellant has done here, the petitioner must
seek leave to amend his PCRA petition. Id. at 1192. When a petitioner has
“not sought permission to amend [a] petition to raise [] new claims, the PCRA
court [is] not required to address the issues [raised in response to a Rule 907
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notice]. Id.; see also Commonwealth v. Mason, 130 A.3d 601, 627, 634
(Pa. 2015) (“The petitioner bears the onus of informing the PCRA court that
he or she seeks to add claims through an amended petition, and, in response,
the court shall freely grant leave to amend where doing so achieves
substantial justice consistent with the dictates of Pa.R.Crim.P. 905(A).”).
Because Appellant did not seek leave to amend his PCRA petition to include
his wholly unrelated federal jurisdiction claim, the PCRA court was under no
obligation to review the merits of this new issue. See Mason, 130 A.3d at
621 n.19; Rykard, 55 A.3d at 1189 n.8. Accordingly, Appellant is not entitled
to relief on this claim.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/19
____________________________________________
1 Moreover, as the PCRA court concluded, Appellant did not invoke a
timeliness exception before the PCRA court. “The timeliness exception set
forth in Section 9545(b)(1)(ii) requires a petitioner to demonstrate he did not
know the facts upon which he based his petition and could not have learned
those facts earlier by the exercise of due diligence.” Commonwealth v.
Brown, 111 A.3d 171, 176 (Pa. Super. 2015). Here, the fact that Appellant
and the victim were both federal employees was either known at the time of
trial or could have been learned through the exercise of due diligence many
years, even decades, earlier.
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