Com. v. Brown, A.

• Court: Superior Court of Pennsylvania
• Decided: March 22, 2018
• Docket: 1346 EDA 2017
• Status: Unpublished

Opinion

J-S10045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALTON DANIEL BROWN : : Appellant : No. 1346 EDA 2017

Appeal from the PCRA Order December 30, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0001095-1997

BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED MARCH 22, 2018

Appellant Alton Daniel Brown appeals pro se from the order dismissing

his fifth Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant

claims that the PCRA court erred in (1) failing to consider his recusal motion,

(2) refusing to consider his alleged status as a political prisoner as a claim for

habeas corpus relief, and (3) rejecting his claim that he timely filed the instant

petition upon recently discovering the fact that he is a political prisoner. We

quash.

A detailed recitation of the history of Appellant’s 1998 sentence of

twenty to forty years’ imprisonment for possessing an instrument of crime and

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1 42 Pa.C.S. §§ 9541-9546. J-S10045-18

robbery2 is unnecessary in this matter. Of relevance here, Appellant filed the

instant pro se “Petition for Writ of Habeas Corpus and/or Post Conviction

Relief” on November 14, 2016.3

On November 30, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition. Appellant filed a pro se “Response

to Notice of Intent to Dismiss and Request for Recusal.”4 The PCRA court

dismissed Appellant’s petition on December 30, 2016, but did not address his

request for recusal.

Appellant filed a pro se notice of appeal that was docketed on April 25,

2017. The notice of appeal was dated January 6, 2017. An envelope

2 18 Pa.C.S. §§ 907 and 3701, respectively.

3 Appellant claimed that he was a political prisoner and raised several PCRA claims. Appellant asserted that he discovered he was a political prisoner after the courts of the Commonwealth and the United States denied him relief. He maintained his innocence, asserted that various errors limited his right to present a full defense, and stated that officials sabotaged his efforts to obtain relief. In a section requesting habeas corpus relief, Appellant requested that he be officially recognized as a political prisoner “instead of being classified as a legally convicted and sentenced prisoner.” Pet. for Writ of Habeas Corpus and/or Post Conviction Relief, 11/14/16, at 6.

4 Appellant asserted that he was claiming political prisoner status for the first time and that he stated at least two exceptions to the PCRA time bar based on that status. Additionally, Appellant asserted that the PCRA court’s intended dismissal of his petition evinced the court’s involvement in the conspiracy to sabotage his efforts to obtain relief. Appellant thus claimed there was the appearance of partiality or an actual conflict of interest and demanded that “[a]ll current and further proceeding regarding th[is] case . . . be automatically referred to the Office of the Court Administrator for reargument.” Appellant’s Resp. & Request for Recusal, 12/21/16, at 1.

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postmarked April 19, 2017, with $0.46 in postage paid was attached to the

notice of appeal. Additionally, a DC-138A prison cash slip dated January 6,

2017 in Appellant’s handwriting was attached. The cash slip did not bear a

signature of a prison official or a notation of a deduction from Appellant’s

account.

The PCRA court issued an order for the filing of a Pa.R.A.P. 1925(b)

statement. Appellant timely filed his Rule 1925(b) statement after obtaining

an extension of time. The court filed a responsive opinion suggesting that

Appellant’s notice of appeal was untimely and that Appellant failed to establish

that he timely filed his PCRA petition.

On June 23, 2017, this Court issued a rule to show cause why this appeal

should not by quashed. Appellant responded pro se and maintained that he

delivered his notice of appeal to prison officials on January 6, 2017.

In his response to the rule to show cause, Appellant averred that he

requested a completed copy of the prison cash slip, but his request was

refused. In support, he attached a handwritten note to the prison business

office, dated January 19, 2017, requesting a cash slip. On that document,

Appellant wrote, “I did not date this cash slip, but it should have been signed

by staff on or about 1/6/17. It is needed to prove that I mailed my PCRA

petition to the court on or about 1/6/16 (cash slip enclosed).” A handwritten

response at the bottom of the note stated, “This is not considered legal” and

referred Appellant to his monthly billing statement. The response was

apparently dated April 20, 2017.

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Appellant also attached a copy of his monthly billing statement and

averred that the entry for January 6, 2017, confirmed that his notice of appeal

was mailed on that date. The entry for January 6, 2017, however, indicates

a mailing to Norristown with a deduction of $0.88 from his account.

Appellant further averred that after discovering that a notice of appeal

had not been docketed in the trial court, he filed a petition for nunc pro tunc

relief on April 18, 2017. According to Appellant, he attached a copy of his

January 6, 2017 notice of appeal and the copy of the cash slip to his petition

for nunc pro tunc relief. Appellant thus claimed that the court clerk must have

disregarded his petition for nunc pro tunc relief and instead filed the attached

copy of the notice of appeal and cash slip with the envelope postmarked April

19, 2017.5

This Court discharged the rule to show cause and referred the matter to

this panel. For the reasons that follow, we conclude that this appeal was not

timely filed.

“It is well settled that the timeliness of an appeal implicates our

jurisdiction and may be considered sua sponte. Jurisdiction is vested in the

Superior Court upon the filing of a timely notice of appeal.” Commonwealth

v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) (citations and quotation

marks omitted). Generally, an appellant invokes this Court’s jurisdiction by

5 The record does not contain a copy of Appellant’s petition for nunc pro tunc relief.

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filing a notice of appeal within thirty days of the entry of the order being

appealed. See Pa.R.A.P. 903(a).

In an appeal from the denial of PCRA relief, the Pennsylvania Supreme

Court has reiterated that a pro se prisoner’s notice of appeal will be deemed

filed when it is placed in a prison mailbox or deposited with prison authorities.

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing the

“prisoner mailbox” rule). The pro se prisoner, however, “bears the burden of

proving that he or she in fact delivered the appeal within the appropriate time

period.” Id.

Jones instructs that courts should be “inclined to accept any reasonably

verifiable evidence of the date that the prisoner deposits the appeal with the

prison authorities.” Id. Examples of such evidence include postmarks on the

envelope used to mail the notice of appeal or postal forms that indicate the

date of mailing. Id. The prisoner may also produce a cash slip “noting both

the deduction from his account for the mailing to the prothonotary and the

date of the mailing,” or an “affidavit attesting to the date of deposit.” Id.

Evidence regarding the prison’s or the court’s mail policies may also establish

the last possible date on which an appeal was delivered to prison officials. Id.

Here, the PCRA court refused to consider Appellant’s incomplete prison

cash slip as reasonably verifiable evidence. The court noted that the cash slip

did not indicate that postage was deducted from his account and was not

signed by a prison official. We agree with the court’s analysis that the

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incomplete cash slip did not constitute reasonably verifiable evidence of the

date Appellant allegedly deposited his notice of appeal. See id.

Appellant’s attempts to bolster his claim that he deposited his notice of

appeal with prison officials on January 6, 2017, are unavailing. Appellant’s

handwritten note to the business office not only suffered from dubious

authenticity, but also contained internal inconsistencies. First, the notations

suggested that Appellant made his request on January 19, 2017—thirteen

days after he purported to have delivered his notice of appeal to prison

officials, but some two months before he alleged he discovered his appeal was

not yet docketed. Second, the request was made to verify the filing of a “PCRA

petition,” not a notice of appeal. Third, the handwritten response was dated

April 20, 2017.

Appellant’s billing statement was also problematic. It only indicated that

$0.88 was deducted from his account for mail to Norristown on January 6,

2017, yet the envelope attached to his notice of appeal was postmarked for

$0.46 postage paid.

We acknowledge Appellant’s allegation that he attached a copy of his

notice of appeal as an exhibit to a petition for nunc pro tunc relief that he

mailed in April of 2017. Nevertheless, we cannot blindly accept his theory

that court officials discarded his petition for nunc pro tunc relief and filed the

exhibit with the attached envelope for his April 2017 mailing.

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Thus, Appellant has not produced reasonably verifiable evidence that he

timely filed his notice of appeal. See Jones, 700 A.2d at 426. Accordingly,

we must quash this appeal.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/22/18

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