Com. v. Rollie, O.

J-S14003-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR ALI ROLLIE, :
:
Appellant : No. 3113 EDA 2019
Appeal from the PCRA Order Entered September 16, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004832-2013,
CP-23-CR-0005439-2013
BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 13, 2020
Omar Ali Rollie appeals from the September 16, 2019 order that
dismissed his second petition under the Post-Conviction Relief Act (“PCRA”) as
untimely. We affirm.
On June 23, 2013, Appellant was involved in an altercation in a public
parking lot that culminated in him shooting an AK-47 at three other men. See
Commonwealth v. Rollie, 131 A.3d 101, at *1-*2 (Pa.Super. 2015)
(unpublished memorandum). Upon taking Appellant into custody shortly
thereafter, responding officers also discovered thirty-one separate baggies of
marijuana in his back pocket. Id. At docket number CP-23-CR-0004832-
2013, Appellant was charged with, inter alia, multiple counts of attempted
murder, aggravated assault, terroristic threats, possession of drug
paraphernalia, and recklessly endangering another person (“REAP”).
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Separately, at docket number CP-23-CR-0005439-13, Appellant was charged
with possession of a controlled substance with intent to deliver (“PWID”).
A jury convicted Appellant of numerous offenses. See Rollie, supra at
*1. In an unpublished memorandum filed on August 24, 2015, this Court
upheld Appellant’s judgment of sentence. Id. at *4. Appellant did not file a
petition for allowance of appeal to the Pennsylvania Supreme Court with
respect to his direct appeal. He filed a timely PCRA petition, which was denied
by the PCRA court without an evidentiary hearing. On appeal, this Court
affirmed the dismissal of Appellant’s petition, and our Supreme Court
affirmed. See Commonwealth v. Rollie, 185 A.3d 1094, at *4 (Pa.Super.
2018) (unpublished memorandum); Commonwealth v. Rollie, 185 A.3d
1094 (Pa. 2018) (per curiam order).
On December 17, 2018, Appellant filed the pro se PCRA petition that is
the subject of the instant appeal, listing both of the above-referenced docket
numbers. The PCRA court appointed counsel to represent Appellant, who
concluded that Appellant had no meritorious claims and submitted a motion
to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). After
reviewing these submissions, the trial court granted counsel’s request to
withdraw. Thereafter, the PCRA court also dismissed Appellant’s petition by
order dated September 12, 2019. The trial court’s order informed Appellant
of his right to appeal, and noted that “[s]uch appeal must be in writing and
be filed . . . within thirty (30) days after the entry of this Order.” Order,
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9/12/19. In response, Appellant filed a single pro se notice of appeal, listing
both docket numbers related to his convictions.1 Both Appellant and the trial
court have timely complied with their obligations under Pa.R.A.P. 1925.
Appellant has listed the following questions presented in his brief:
1). Did the PCRA court err and/or abuse its discretion in failing to
grant [PCRA] relief where trial counsel, appellate and PCRA
counsel rendered ineffective assistance by failing to object and
move for the exclusion of one of the counts of attempted murder
where this alleged victim was available[?]
2). The Commonwealth claims appellant’s second PCRA is
untimely, this is incorrect, based on the record.
____________________________________________
1 Due to Appellant’s filing of a single notice of appeal in a case implicating
multiple docket numbers, this case implicates our Supreme Court’s holding in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (citing Pa.R.A.P.
341(a) (“[W]hen a single order resolves issues arising on more than one lower
court docket, separate notices of appeal must be filed. The failure to do so
will result in quashal of the appeal.”). However, we placed a hold on this
case to await decisions in Commonwealth v. Johnson, 236 A.3d 1141
(Pa.Super. 2020) (en banc), and Commonwealth v. Larkin, 235 A.3d 350
(Pa.Super. 2020) (en banc), which both considered the scope of Walker.
Ultimately, Larkin reaffirmed that we may overlook the requirements of
Walker where “a breakdown occurs in the court system, and a defendant is
misinformed or misled regarding his appellate rights.” Larkin, supra at 354
(citing Commonwealth v. Stansbury, 219 A.3d 157, 159 (Pa.Super. 2019)).
Specifically, Larkin filed a single notice of appeal from the denial of his PCRA
petition implicating multiple docket numbers. This Court concluded that the
PCRA court’s singular reference to “an appeal” in the order denying Larkin’s
petition constituted a sufficient breakdown to excuse compliance with Walker.
Instantly, the PCRA court’s September 12, 2019 order erroneously suggested
that Appellant would only need to file a single appeal to preserve his rights.
See Order, 9/12/19, at ¶ 2 (“Such appeal must be in writing and be filed . . .
within thirty (30) days after the entry of this Order.” (emphasis added)).
Therefore, we decline to quash Appellant’s appeal pursuant to Larkin.
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3). Whether this (1) count of attempted murder is illegal based
on this alleged victim[‘s] availability for a deposition, for a
preliminary hearing, and for trial, the Commonwealth choose not
to do neither [sic].
4). Whether the Commonwealth is abusing the office of the court,
time stamping Appellant’s notice of appeal on October 25, 2019,
when Appellant sent his notice of appeal September 26, 2019[,]
just to dismiss his appeal.
Appellant’s brief at 2 (capitalization cleaned up).
“On appeal from the denial of PCRA relief, our standard and scope
of review is limited to determining whether the PCRA court’s findings
are supported by the record and without legal error.” Commonwealth
v. Edmiston, 65 A.3d 339, 345 (Pa. 2013). We must view the evidence
of record in the light most favorable to the prevailing party at the PCRA
court level. See Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.
2012). However, we apply a de novo standard of review with specific
regard to the PCRA court’s legal conclusions. Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. 2011).
Prior to assessing the arguable merits of Appellant’s claims, we
must assess whether or not his petition was timely filed. See
Commonwealth v. Walters, 135 A.3d 589, 591-92 (Pa.Super. 2016)
(“[T]he PCRA’s timeliness requirements are jurisdictional in nature and
must be strictly construed; courts may not address the merits of the
issues raised in a petition if it is not timely filed.”). In pertinent part,
the PCRA provides as following regarding timeliness:
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(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation
of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United
Sates;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
....
(3) For purposes of this subchapter, 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 time for seeking the
review.
42 Pa.C.S. § 9545(b). In reviewing these statutory provisions, it is also
important to note that “there is no generalized equitable exception to
the jurisdictional one-year time bar pertaining to post-conviction
petitions.” Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).
Appellant denies that his second PCRA petition was untimely filed,
and has engaged in a number of novel interpretations of the timeline in
his case. Stated succinctly, we disagree. Appellant filed a direct appeal
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from his judgment of sentence, which this Court denied on August 24,
2015. Thereafter, Appellant did not seek allowance of appeal in the
Pennsylvania Supreme Court and his time to do so expired on
September 24, 2015. See Pa.R.A.P. 903(a) (appeals must be taken
within 30 days from the entry of the appealable order). Consequently,
Appellant had until September 26, 2016, to file a timely PCRA petition.
The instant PCRA petition was not filed until December 17, 2018.
Consequently, it is untimely by more than two years.
Although it is possible to establish the applicability of one of the
exceptions to timeliness pursuant to 42 Pa.C.S. § 9545(b)(1)(i)-(iii), the
statute requires that petitioners must “allege” and “prove” the
applicability of at least one such exception. Unfortunately, Appellant
has not asserted that any of the timeliness exceptions set forth at §
9545(b)(1)(i)-(iii) are applicable to his case in either his original PCRA
petition, or in his appeal before this Court. As such, Appellant has failed
to raise or prove the applicability of any operative exceptions to
timeliness. Thus, his PCRA petition is untimely and the PCRA court was
without jurisdiction to entertain his claims ab initio. See
Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa.Super. 2007)
(“[F]ailure to allege a timeliness exception in the PCRA petition itself
precludes the petitioner from raising it on appeal.”); see also
Commonwealth v. Liebensperger, 904 A.2d 40, 46 (Pa.Super. 2006)
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(“These exceptions must be specifically pleaded or they may not be
invoked.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/20
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