Com. v. Brittingham, T.

• Court: Superior Court of Pennsylvania
• Decided: June 6, 2018
• Docket: 2282 EDA 2017
• Status: Unpublished

Opinion

J-S22042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TRACY A. BRITTINGHAM : : Appellant : No. 2282 EDA 2017

Appeal from the PCRA Order June 30, 2017 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0010691-2013

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED JUNE 06, 2018

Appellant, Tracy A. Brittingham, appeals pro se from the denial of his

serial petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

We take the following facts from our independent review of the record.

On April 11, 2014, following a waiver trial, the trial court convicted Appellant

of aggravated assault and related charges, for his attack on the victim with a

wooden two-by-four. On June 12, 2014, the court sentenced Appellant to an

aggregate term of not less than forty-five nor more than 132 months’

incarceration. Appellant timely appealed. While his direct appeal was pending

in this Court, he filed a first pro se PCRA petition on July 13, 2015 that the

court did not consider. This Court affirmed his judgment of sentence on

January 13, 2016, and Appellant did not seek further review in our Supreme ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S22042-18

Court. (See Commonwealth v. Brittingham, 136 A.3d 1031 (Pa. Super.

2016) (unpublished memorandum)).

On May 13, 2016, Appellant filed his second pro se petition, and

appointed counsel filed an amended petition on June 20, 2016. On August

11, 2016, counsel filed a Turner/Finley1 letter and motion to withdraw as

counsel. Appellant responded to the Turner/Finley letter and, on December

2, 2016, the court issued notice of its intent to dismiss the petition without a

hearing. See Pa.R.Crim.P. 907(1). On January 13, 2017, the court dismissed

Appellant’s petition.2

On April 20, 2017, Appellant filed his third pro se PCRA petition. The

court denied it on June 30, 2017 without a hearing. 3 Appellant timely

appealed. On August 7, 2017, the PCRA court issued an order directing

Appellant to file a statement of errors complained of on appeal, and that failure

to do so may be deemed a waiver of all issues. See Pa.R.A.P. 1925(b).

Appellant failed to file a Rule 1925(b) statement. The court filed an opinion

on September 21, 2017. See Pa.R.A.P. 1925(a).

____________________________________________

1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2The record reflects that the court also filed an order dismissing the petition on January 17, 2017, and February 17, 2017.

3The PCRA court’s dismissal order reflects that it sent Appellant a Rule 907(1) notice of its intent to dismiss the petition without a hearing, although it is not on the docket. (See Order, 6/30/17).

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We note that Appellant’s brief does not contain a statement of questions

on appeal, as mandated by Rule 2116(a), and thus we could deem his issues

waived. (See Appellant’s Brief, at 1-2); see also Pa.R.A.P. 2116(a) (“The

statement of the questions involved must state concisely the issues to be

resolved[.] . . . No question will be considered unless it is stated in the

statement of questions involved . . . .”). However, for sake of completeness,

we observe that Appellant’s brief appears to raise two issues: an allegation

of counsel’s ineffectiveness, and the Commonwealth’s failure to disclose an

inconsistent statement made by a witness. (See Appellant’s Brief, at 1-2).

Our standard of review examines whether the PCRA court’s determination is supported by the evidence of record and free of legal error. We grant great deference to the PCRA court’s findings, and we will not disturb those findings unless they are unsupported by the certified record. A PCRA petition must be filed within one year of the date the judgment of sentence becomes final. 42 Pa.C.S.[A.] § 9545(b)(1). This time constraint is jurisdictional in nature, and is not subject to tolling or other equitable considerations. The time bar can only be overcome by satisfaction of one of the three statutory exceptions codified at 42 Pa.C.S.[A.] § 9545(b)(1)(i)–(iii). Questions regarding the scope of the statutory exceptions to the PCRA’s jurisdictional time-bar raise questions of law; accordingly, our standard of review is de novo.

Commonwealth v. Robinson, 2018 WL 2041425 at *2 (Pa. Super. filed May

2, 2018) (en banc) (case citations and quotation marks omitted).

Instantly, Appellant’s brief fails to acknowledge the untimeliness of his

petition, let alone plead and prove that an exception to the time-bar applies.

(See Appellant’s Brief, at 1-7). Therefore, because Appellant has failed to

plead and prove an exception to the PCRA timeliness requirements, we

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conclude that the PCRA court properly dismissed Appellant’s petition as

untimely. See Robinson, supra at *2.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/6/18

4 We also note that Appellant’s issues are waived for his failure to file a court- ordered statement of errors complained of on appeal. See Commonwealth v. Hill, 16 A.3d 484, 491 (Pa. 2011) (“[I]n order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.”) (citation and emphasis omitted); Pa.R.A.P. 1925(b)(4)(vii). Additionally, Appellant’s brief does not contain any of the sections mandated by Rule 2111, and instead includes a recitation of certain testimony elicited at trial, and a brief argument, unsupported by pertinent law or discussion thereof, that trial counsel should have challenged eyewitness testimony. (See Appellant’s Brief, at 1-7); see also Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa. Super. 2012) (waiving issue where appellant failed to properly develop it); Pa.R.A.P. 2111, 2119(a)-(b). Therefore, even if this Court had jurisdiction, Appellant’s issues would be waived for our review. See Hill, supra at 491; Rhodes, supra at 915; Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P. 2101.

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