Com. v. Rollins, S.

J. S11039/19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SAHARRIS ROLLINS, No. 2363 EDA 2017
Appellant
Appeal from the PCRA Order, June 20, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0807052-1987
BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2019
Saharris Rollins appeals from the June 20, 2017 order entered in the
Court of Common Pleas of Philadelphia County that dismissed his third petition
filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA court set forth the following:
[Appellant] was arrested and subsequently charged in
connection with the fatal shooting of Kevin Johnson in
1982. On July 21, 1988, following a jury trial presided
over by the Honorable Michael R. Stiles, [appellant]
was convicted of first -degree murder. On June 19,
1989, the trial court sentenced [appellant] to life
imprisonment. Following a direct appeal, the Superior
Court affirmed the judgment of sentence on March 1,
1990.[Footnote 2] The Pennsylvania Supreme Court
denied allocatur on August 24, 1992.[Footnote 3]
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[Footnote 2] Commonwealth v. Rollins,
576 A.2d 1138 (Pa.Super. 1990)
(unpublished memorandum).
[Footnote 3] Commonwealth v. Rollins,
613 A.2d 558 (Pa. 1992) (table).
On January 17, 1997, [appellant] filed his first pro se
PCRA petition. Attorney James Bruno, Esquire was
appointed and an amended petition was filed on
December 7, 1999. The PCRA court subsequently
denied relief on May 30, 2001. The Superior Court
affirmed the order denying relief on May 30,
2003.[Footnote 5] The Pennsylvania Supreme Court
quashed [appellant's] petition for allowance of appeal
on March 3, 2004.[Footnote 6] [Appellant] was
unsuccessful in obtaining collateral relief through a
serial petition filed in 2013.
[Footnote 5] Commonwealth v. Rollins,
829 A.2d 364 (Pa.Super. 2003)
(unpublished memorandum).
[Footnote 6] Commonwealth v. Rollins,
844 A.2d 1215 (Pa. 2004).
On March 10, 2016, [appellant] filed the instant
pro se PCRA petition. Pursuant to Pennsylvania Rule
of Criminal Procedure 907, [appellant] was served
notice of the PCRA court's intention to dismiss his
petition on March 17, 2017. [Appellant] submitted a
response to the Rule 907 notice on March 31, 2017.[1]
On June 20, 2017, the PCRA court dismissed his
petition as untimely. On July 18, 2017, the instant
notice of appeal was timely filed to the Superior Court.
1 We note that appellant's response to the PCRA court's Rule 907 notice was
a request for an extension of time in which to file a response because of
appellant's limited access to the prison law library. (Appellant's "notice of
intent to respond to courts [sic] proposed 907 notice," 3/31/17.) The PCRA
court did not rule on appellant's request for an extension of time, and
appellant never filed a substantive response to the Rule 907 notice.
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PCRA court opinion, 9/14/17 at 1-2 (footnote 4 omitted).
The record reflects that the PCRA court did not order appellant to file a
concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The PCRA court did, however, file a Rule 1925(a) opinion.
The record further reflects that although appellant filed his notice of appeal to
this court pro se, Matthew C. Lawry, Esq., of the Federal Community Defender
Office for the Eastern District of Pennsylvania, filed an entry of appearance on
appellant's behalf with this court on August 29, 2017. Attorney Lawry also
filed a brief and reply brief on appellant's behalf.
Appellant raises the following issues for our review:
[1.] Whether PCRA counsel's complete failure to
subject the Commonwealth's case to adversarial
testing may overcome the PCRA's time bar to
permit litigation of additional or ineffectively
presented claims through a successor PCRA
petition?
[2.] Whether this case should be remanded for the
appointment of counsel to develop the facts
regarding (a) the timeliness of the petition, and
(b) the merits of the petition?
Appellant's brief at 1.
All PCRA petitions, including second and subsequent petitions, must be
filed within one year of when a defendant's judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). "A judgment becomes final at the conclusion
of direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
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the time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3). The
Pennsylvania Supreme Court has held that the PCRA's time restriction is
constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004). In addition, our supreme court has instructed that the timeliness of a
PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks
jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,
120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely
PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).
Here, the trial court sentenced appellant on June 19, 1989. Appellant
filed timely post -trial motions, which the trial court denied. On March 1, 1990,
this court affirmed appellant's judgment of sentence. Rollins, 576 A.2d 1138.
On August 24, 1992, our supreme court denied appellant's petition for
allowance of review. Rollins, 613 A.2d 558. Consequently, appellant's
judgment of sentence became final on November 25, 1992,2 90 days after our
supreme court denied his petition for allowance of appeal. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759, 763
(Pa.Super. 2013); U.S. Supreme Court Rule 13. Therefore, appellant's
petition, filed on March 10, 2016, is facially untimely. As a result, the PCRA
2 We note that the 90th day following our supreme court's denial of his petition
fell on Saturday, November 23, 1992. Therefore, appellant's judgment of
sentence became final on Monday, November 25, 1992. See 1 Pa.C.S.A.
§ 1908 (when the last day of any period of time referred to in a statute falls
on a Saturday, Sunday, or legal holiday, that day shall be omitted from the
computation).
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court lacked jurisdiction to review appellant's petition, unless appellant alleged
and proved one of the statutory exceptions to the time -bar, as set forth in
42 Pa.C.S.A. § 9545(b)(1).
Those three narrow exceptions to the one-year time -bar are: when the
government has interfered with the appellant's ability to present the claim,
when the appellant has recently discovered facts upon which his PCRA claim
is predicated, or when either the Pennsylvania Supreme Court or the United
States Supreme Court has recognized a new constitutional right and made
that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v.
Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The PCRA requires that
all petitions invoking an exception must be filed within 60 days of the date the
claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).3 The appellant
bears the burden of pleading and proving the applicability of any exception.
Id. at § 9545(b)(1). If an appellant fails to invoke a valid exception to the
PCRA time -bar, this court may not review the petition. Id. at 9545(b)(1)(i-iii).
3 The 60 -day rule applicable to appellant's claim was codified at 42 Pa.C.S.A.
§ 9545(b)(2) and required that "[a]ny petition invoking an exception . shall
. .
be filed within 60 days of the date the claim could have been presented." A
2018 amendment to Section 9545(b)(2) substituted "within one year" for
"within 60 days." The effective date of the amendment is December 24, 2018,
and the amendment applies to claims arising one year before the effective
date or thereafter. See Act 2018-146, § 3. Therefore, because appellant's
claim arose prior to December 24, 2017, the 60 -day rule applies.
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Here, appellant attempts to invoke the new -facts exception to the
one-year time -bar set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii). In his PCRA
petition, appellant alleges the following facts:
Based upon just discovered "public records/judicial"
regarding Attorney James S. Bruno, and after the fact
of [appellant's] state & federal court
proceedings [sic]. This after -discovered [sic]
impacted my appeal's [sic]. [Appellant] invokes
rights for concise pleadings, development, litigation,
wa [sic] counsel being appointed
PCRA petition, 3/10/16 at 3, ¶ 5(A) (full capitalization omitted).
Appellant then explains the facts that were made known to him by
means other than his personal knowledge, as follows:
During law library visitation I read Graterfriends [sic]
newsletter dated Jan. 9, 2016, which was
[appellant's] means of discovering the facts/evidence
related to the instant filing hereto.
Id. at 3, ¶ 5(B) (full capitalization omitted).
Appellant then sets forth the matters that he intends to assert on appeal,
as follows:
The failure to raise/litigate was based upon improper
obstruction of governmental interference and denial
of due process premised upon Pa.Const.Art I § 6,14,9,
which impacted [appellant's] rights of appeal and
compulsory process thereto.
Id. at 3, ¶ 5(C) (full capitalization omitted).
Appellant then asks the PCRA court to consider the following argument:
[Appellant] invokes 42 Pa.C.S.A. § 9545(b)(1)(ii)
pursuant to Com. v. Bennett, 930 A2d [sic] 1264
(Pa.2007), in [sic] [appellant] need only establish that
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1.) 'the facts upon which the claim was predicated
were unknown' and 2.) 'could not have been
ascertained by the exercise of due diligence'.
[Appellant] can prove these two components, where
the PCRA court has jurisdiction over the claims under
this subsection. [Appellant] invokes Pa.R.Crim.P.,
905(a) to grant leave to amend previous
unknown [sic] by that court -appointed counsel
requested by [appellant], more so based upon
governmental interference. [Appellant] further
invokes authority pursuant to Pa.R.Crim.P., 720(C)
dictates claims of after -discovered evidence governs
his petition based upon tangible-evidence/records
that have been discovered to exist; See Com. v.
McCracken 659 A2d [sic] 541-545 (Pa.1995); Com. v.
Reese, 663 A2d [sic] 206, 209-210 (Pa.Super. 1995);
Com. v. Valderrama, 388 A2d [sic] 1042, 1045
(Pa.1978) (granting a new trial based on the discovery
of a complete set of social security records); which
under tangible-evidence/records satisfies
Pa.R.Crim.P. 720(C) and § 9545(a)(2)(vi).
[Appellant] reserves the rights to amend/supplement
pursuant to Pa.R.Crim.P., 905(a) pursuant to
court -appointed counsel provided by the Court.
Id. at addendum (in response to PCRA form petition p.7, ¶ 14 which permits
a petition to "ask that the Court consider the following argument, citation and
discussion of authorities").
With respect to dismissal of appellant's petition, the PCRA court
explained that:
Although [appellant] arguably acknowledged the
PCRA's statutory time -bar, he failed to coherently
address it. Instead, [appellant] reproduced a section
of a prior PCRA petition containing fragmented legal
analysis and judicial decisions. See PCRA petition,
7/24/13 at 8 (unpaginated). [Appellant's]
unintelligible petition failed to plead and prove an
exception to the PCRA's time -bar.
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Even construing his petition as attempting to raise a
new 'fact' regarding his prior PCRA attorney,
James Bruno, the underlying challenge presumably
implicated counsel's stewardship and was therefore
unavailing for purposes of the timeliness provision.
PCRA court opinion, 9/14/17 at 3.
Our review of appellant's PCRA petition reveals that he failed to plead
or prove an exception to the time -bar. Indeed, in his counseled brief,
appellant concedes that he "did not unambiguously set out the specifics of his
claim." (Appellant's brief at 9.)
Nevertheless, in his counseled brief, appellant relies on
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), for the proposition
that ineffective assistance of counsel can be an after -discovered "fact" falling
within the second timeliness exception when counsel's ineffectiveness was so
deficient as to represent complete abandonment by counsel. (See appellant's
brief at 7-10.) Appellant's reliance on Bennett is misplaced.
Generally, a claim of ineffectiveness does not constitute a "fact" for
purposes of the timeliness exception allowed by 42 Pa.C.S.A. § 9545(b)(1)(ii).
See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-786 (Pa.
2000). The exception to this rule under Bennett is that where counsel
abandons a petitioner for purposes of appeal, and where the petitioner
exercises due diligence in discovering the abandonment and files a petition
within 60 days of that discovery, the petition will be considered timely.
Bennett, 930 A.2d at 1272-1274 (holding petition may be timely where PCRA
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counsel failed to file a brief on appeal, petitioner never received a copy of the
superior court's order dismissing his PCRA appeal for failure to file the brief,
and petitioner filed a second petition within 25 days after learning of the
dismissal). The Bennett court noted that because "it is illogical to believe
that a counsel that abandons his or her client for a requested appeal will inform
his client that his case has been dismissed because of his own failures," it
should not be presumed that a prisoner is aware of the status of his own case,
albeit a matter of public record. Id. at 1274. Although Bennett established
an exception to the general rule that ineffectiveness of counsel is not a new
fact, it remains essential that appellant establish that he discovered new facts
giving rise to a claim under Bennett within 60 days of filing his third petition
on March 10, 2016.
In his PCRA petition, appellant fails to identify the new fact he
discovered about Attorney Bruno. He merely states that he "just discovered"
a fact "regarding Attorney Bruno." (PCRA petition, 3/10/16 at 3, ¶ 5.)
Appellant, therefore, failed to plead the cognizability of his petition in the
petition itself. See Commonwealth v. Wharton, 886 A.2d 1120, 1126 (Pa.
2005) (reiterating that the petitioner bears the burden of pleading exceptions
to the time -bar in the PCRA petition). Appellant attempts to remedy his
deficiency in his counseled brief wherein he claims that he discovered that
Attorney Bruno was suspended from the practice of law for ethical violations
that stemmed from counsel's attention deficit disorder and that new fact
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supports his claim that counsel was "medically and mentally incapable of
providing meaningful representation." (Appellant's brief at 10.)
Notwithstanding appellant's failure to raise this allegation before the PCRA
court, appellant fails to demonstrate cognizability by citing to even one
example of how Attorney Bruno's suspension in 2014 from the practice of law
for ethical violations stemming from his attention deficit disorder arguably
rose to the level of complete abandonment by PCRA counsel with respect to
appellant's first amended PCRA petition filed in 1997.
Instead of pleading and proving a timeliness exception, appellant
requests appointment of counsel "to determine whether there was a valid
factual and legal basis for [a]ppellant's claim, and to present and litigate the
claim if there was such a basis." (Id. at 12.) The automatic right to
court -appointed counsel in collateral appeals only applies to the first PCRA
petition. See Pa.R.Crim.P. 904(A); Commonwealth v. Jackson, 965 A.2d
280, 283 (Pa.Super. 2009). A PCRA petitioner who satisfies the PCRA court
of the inability to afford or otherwise procure counsel is entitled to
appointment of PCRA counsel under Pa.R.Crim.P. 904(D) for a second or
subsequent petition only if an evidentiary hearing is required under
Pa.R.Crim.P. 908. Here, no evidentiary hearing was required.
Therefore, appellant has failed to invoke a valid exception to the PCRA
time -bar, the PCRA court lacked jurisdiction to review appellant's petition, and
we may not review the petition on appeal.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 7/17/19