Com. v. Cook Jr., J.

J-S35007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACKIE SHANDEAN COOK JR. :
:
Appellant : No. 645 MDA 2022
Appeal from the PCRA Order Entered February 14, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0006056-2002
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 23, 2022
Appellant, Jackie Shandean Cook Jr., appeals from the post-conviction
court’s February 14, 2022 order denying, as untimely, his petition filed under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we quash this appeal.
The facts of Appellant’s underlying convictions are not germane to our
disposition of his appeal. We need only note that in February of 2004,
Appellant was convicted by a jury of second-degree murder and conspiracy to
commit kidnapping. That same day, Appellant was sentenced to an aggregate
term of life imprisonment, without the possibility of parole. Appellant did not
file a post-sentence motion or a direct appeal.
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* Former Justice specially assigned to the Superior Court.
J-S35007-22
Over 15 years later, Appellant filed the pro se PCRA petition underlying
his present appeal. Counsel was appointed but, instead of filing an amended
petition on Appellant’s behalf, counsel filed a petition to withdraw and ‘no-
merit’ letter as required by Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), indicating that Appellant had no meritorious issues to raise on collateral
review. On January 14, 2022, the PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition, as well as an order granting PCRA
counsel’s petition to withdraw. On February 7, 2022, Appellant filed a
response to the court’s Rule 907 notice, which was confusingly titled, “Motion
to Appeal the Decision for Post Conviction to Honorable Judge Parisi.” In that
pro se document, Appellant seemingly challenged the court’s granting PCRA
counsel’s petition for leave to withdraw. See Motion, 2/7/22, at 1 (single
page) (stating PCRA counsel was “not putting in the work to do the [j]ob” and
that his “[c]ourt[-]appointed lawyers have not been of help”).1 On February
14, 2022, the court issued an order dismissing Appellant’s PCRA petition.
On March 17, 2022, Appellant filed a pro se document that was docketed
as “Pro Se Defendant’s Response to Order of Intent to Dismiss.” For some
reason, that document is not contained in the certified record. However, a
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1Appellant refers to his ‘lawyers,’ in plural, because, as the PCRA court pointed
out, he had three different PCRA attorneys. The first two attorneys withdrew
due to a conflict of interest, and other reasons unrelated to Appellant’s case,
after which the court appointed a third PCRA counsel. Rule 907 Notice,
1/14/22, at 2 n.2.
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copy was attached by Appellant to his response to a Rule to Show Cause Order
issued by this Court, which will be discussed in further detail, infra. At the top
of the March 17, 2022 document, Appellant stated, “AND NOW, this 13th day
of March, this defendant responds to the courts [sic] notice [and] order of
intent to dismiss title ‘Motion to Appeal the Decision for Post Conviction.’” Pro
Se Document, 3/17/22, at 1 (unnumbered). The March 17, 2022 document
consists of six pages of what appears to be argument challenging the validity
of Appellant’s convictions. The court treated the March 17, 2022 document
as a second PCRA petition and, on April 11, 2022, it issued a Rule 907 notice
of its intent to dismiss that petition without a hearing. On May 3, 2022, the
court issued an order dismissing Appellant’s March 17, 2022 petition.
Meanwhile, the trial court docket indicates that on April 29, 2022,
Appellant filed a pro se document that was treated as a notice of appeal.
Again, for some unexplained reason, that pro se document is not contained in
the certified record. However, it was forwarded to this Court as a notice of
appeal and entered on our docket. In that pro se document, Appellant does
not explicitly state from what order he seeks to appeal, but he does declare,
“[I] want to appeal the decision of the court….” Notice of Appeal, 5/3/22, at
1 (single page). The docketing statement completed by Appellant indicates
he is appealing from the PCRA court’s February 14, 2022 order denying his
petition. See Criminal Docketing Statement, 5/14/22, at 1 (single page).
Because it appeared that Appellant was appealing from the court’s
February 14, 2022 order denying his first PCRA petition, and his notice of
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appeal was not filed within 30 days of the date of that order, this Court issued
a Rule to Show Cause order, directing Appellant to explain why his appeal
should not be quashed as untimely. Appellant filed a response on June 29,
2022, seeming to assert that the pro se document he filed on March 17, 2022
was intended to be a notice of appeal. Appellant attached the March 17, 2022
document to his response, which we discussed supra. In light of Appellant’s
response, we discharged the Rule to Show Cause order and referred the issue
of the timeliness of Appellant’s appeal to this merits panel, which we now
address.
Initially, nothing in the pro se document filed by Appellant on March 17,
2022, indicates that he was attempting to notify the court that he was
appealing. Instead, that document indicates that Appellant intended it to be
a response to the court’s notice of intent to dismiss his PCRA petition without
a hearing, and its order granting counsel’s petition to withdraw. In contrast,
the April 29, 2022 pro se document filed by Appellant clearly states that he is
seeking to appeal. While that document is also deficient, in that it does not
explicitly identify from what order Appellant was appealing, it is sufficient –
along with the subsequently-filed docketing statement – to demonstrate that
Appellant filed it to notify the court of his intent to appeal from the February
14, 2022 order denying his petition. As the actual notice of appeal – the pro
se document filed on April 29, 2022 – was not filed within the 30 days
prescribed by Pa.R.A.P. 903(a), it appears on its face to be untimely, divesting
this Court of jurisdiction to consider Appellant’s appeal. See Commonwealth
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v. Williams, 106 A.3d 583, 587 (Pa. 2014) (“The timeliness of an appeal and
compliance with the statutory provisions granting the right to
appeal implicate an appellate court’s jurisdiction and its competency to act.
Absent extraordinary circumstances, an appellate court lacks the power to
enlarge or extend the time provided by statute for taking an appeal. Thus, an
appellant’s failure to appeal timely an order generally divests the appellate
court of its jurisdiction to hear the appeal.”) (citations omitted).
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2022
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