J-S75032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HOWARD COOPER, : : Appellant : No. 2742 EDA 2017
Appeal from the PCRA Order July 25, 2017 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007279-2009
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 23, 2019
Howard Cooper (“Cooper”) appeals, pro se, from the Order dismissing
his second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court previously set forth the relevant factual history as
follows:
On February 14, 2009, [at] approximately 2:45 [p.m.], Philadelphia Police Officer Jason Sommerville was driving his personal car in the 2600 block of North Broad Street, Philadelphia, PA[,] when he observed [the victim], Mathew Bullock, run in front of his vehicle[,] being chased by [Cooper]. [Cooper], who was holding a silver knife, grabbed [Bullock], and punched [Bullock] in the face with the knife several times. [Bullock] fell to the ground[,] and [Cooper] continued stabbing [Bullock] in the face and chest as he lay in the center of Broad Street. Officer Sommerville exited his vehicle, identified himself, and ordered [Cooper] to drop the knife. [Cooper] fled and [Officer] Sommerville pursued him. [Officer] Sommerville apprehended [Cooper,] who had discarded the knife into an empty lot. [Officer] Sommerville contacted police radio and relayed what had occurred[,] at which point [Cooper] got up and engaged in a J-S75032-18
struggle with [Officer] Sommerville[,] threatening to kill him. [Cooper] continued to make threats towards other police officers who arrived on the scene and he stated that it was [his] intention to kill [Bullock]. An autopsy was performed on [Bullock’s] remains[,] which revealed eight stab wounds to the face, chest, abdomen, back, buttock and knee, and several slash wounds.
PCRA Court Opinion, 7/16/13, at 2-3.
On October 13, 2010, Cooper entered a negotiated guilty plea to third-
degree murder, possession of an instrument of crime, and aggravated
assault.1 The trial court sentenced Cooper, pursuant to the plea agreement,
to an aggregate term of 20 to 50 years in prison. Cooper did not file a direct
appeal.2
Cooper, pro se, filed his first PCRA Petition on December 23, 2010. The
PCRA court appointed Cooper counsel, who subsequently filed a Motion to
Withdraw as Counsel, and a “no-merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). Following appropriate notice pursuant to
Pa.R.Crim.P. 907, the PCRA court dismissed Cooper’s Petition on October 15,
2012. Cooper filed a Notice of Appeal. On October 31, 2012, the PCRA court
granted counsel’s Motion to Withdraw, and ordered Cooper to file a Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. By Order
dated April 1, 2013, this Court remanded the case to the PCRA court, because
____________________________________________
1 See 18 Pa.C.S.A. §§ 2502(c), 907(a), 2702.
2Cooper later filed an untimely post-sentence Motion, seeking to withdraw his guilty plea, and requesting that the trial court vacate his sentence. The trial court denied the Motion without a hearing.
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counsel was not permitted to withdraw until Cooper was directed to file a
concise statement. The PCRA court thereafter issued an Order directing
Cooper to file a concise statement, and Cooper timely complied. This Court
affirmed the dismissal of Cooper’s first PCRA Petition. See Commonwealth
v. Cooper, 105 A.3d 796 (Pa. Super. 2014) (unpublished memorandum). 3
Cooper filed the instant pro se PCRA Petition on May 23, 2017,
challenging his mental competency at the time he entered his guilty plea, and
the effectiveness of both his plea and first PCRA counsel. The PCRA court
subsequently issued a Rule 907 Notice, and Cooper filed a Response. The
PCRA court dismissed Cooper’s Petition as untimely filed on July 25, 2017.
Cooper filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)
Concise Statement.4
Initially, under the PCRA, any PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment
of sentence becomes final “at the conclusion of direct review, including
3Cooper later filed a Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc, which the Pennsylvania Supreme Court denied on November 19, 2014. See Commonwealth v. Cooper, 103 A.3d 1292 (Pa. 2014).
4 Cooper filed two separate appellate briefs with this Court—one handwritten and one typed. On July 17, 2018, this Court entered a Rule to Show Cause Order, directing Cooper to specify which brief he intended to rely upon, and stating that a failure to respond by July 31, 2018, would result in this Court’s reliance on the handwritten brief. Cooper did not respond to the Rule to Show Cause, and on August 14, 2018, this Court entered an Order designating Cooper’s handwritten brief as the Brief for Appellant.
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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.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
Our standard of review of an order [dismissing] PCRA relief is whether the record supports the PCRA court’s determination and whether the PCRA court’s decision is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
Here, Cooper’s judgment of sentence became final in August 2014,
when the time for seeking allowance of appeal with the Pennsylvania Supreme
Court expired. Thus, Cooper’s second Petition, filed in May 2017, is facially
untimely.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth under
42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these exceptions
“shall be filed within 60 days of the date the claim could have been presented.”
Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
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Cooper invokes, in his Concise Statement and his Summary of the
Argument,5 the “governmental interference” exception set forth at 42
Pa.C.S.A. § 9545(b)(1)(i). Cooper argues that “every time [he] is given a
briefing schedule with a deadline he is persistantly [sic] targeted with
fabricated misconducts” and placed in the restricted housing unit at SCI –
Greene. Brief for Appellant at 15 (renumbered). Cooper claims that he was
Free access — add to your briefcase to read the full text and ask questions with AI
J-S75032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HOWARD COOPER, : : Appellant : No. 2742 EDA 2017
Appeal from the PCRA Order July 25, 2017 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007279-2009
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 23, 2019
Howard Cooper (“Cooper”) appeals, pro se, from the Order dismissing
his second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court previously set forth the relevant factual history as
follows:
On February 14, 2009, [at] approximately 2:45 [p.m.], Philadelphia Police Officer Jason Sommerville was driving his personal car in the 2600 block of North Broad Street, Philadelphia, PA[,] when he observed [the victim], Mathew Bullock, run in front of his vehicle[,] being chased by [Cooper]. [Cooper], who was holding a silver knife, grabbed [Bullock], and punched [Bullock] in the face with the knife several times. [Bullock] fell to the ground[,] and [Cooper] continued stabbing [Bullock] in the face and chest as he lay in the center of Broad Street. Officer Sommerville exited his vehicle, identified himself, and ordered [Cooper] to drop the knife. [Cooper] fled and [Officer] Sommerville pursued him. [Officer] Sommerville apprehended [Cooper,] who had discarded the knife into an empty lot. [Officer] Sommerville contacted police radio and relayed what had occurred[,] at which point [Cooper] got up and engaged in a J-S75032-18
struggle with [Officer] Sommerville[,] threatening to kill him. [Cooper] continued to make threats towards other police officers who arrived on the scene and he stated that it was [his] intention to kill [Bullock]. An autopsy was performed on [Bullock’s] remains[,] which revealed eight stab wounds to the face, chest, abdomen, back, buttock and knee, and several slash wounds.
PCRA Court Opinion, 7/16/13, at 2-3.
On October 13, 2010, Cooper entered a negotiated guilty plea to third-
degree murder, possession of an instrument of crime, and aggravated
assault.1 The trial court sentenced Cooper, pursuant to the plea agreement,
to an aggregate term of 20 to 50 years in prison. Cooper did not file a direct
appeal.2
Cooper, pro se, filed his first PCRA Petition on December 23, 2010. The
PCRA court appointed Cooper counsel, who subsequently filed a Motion to
Withdraw as Counsel, and a “no-merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). Following appropriate notice pursuant to
Pa.R.Crim.P. 907, the PCRA court dismissed Cooper’s Petition on October 15,
2012. Cooper filed a Notice of Appeal. On October 31, 2012, the PCRA court
granted counsel’s Motion to Withdraw, and ordered Cooper to file a Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. By Order
dated April 1, 2013, this Court remanded the case to the PCRA court, because
____________________________________________
1 See 18 Pa.C.S.A. §§ 2502(c), 907(a), 2702.
2Cooper later filed an untimely post-sentence Motion, seeking to withdraw his guilty plea, and requesting that the trial court vacate his sentence. The trial court denied the Motion without a hearing.
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counsel was not permitted to withdraw until Cooper was directed to file a
concise statement. The PCRA court thereafter issued an Order directing
Cooper to file a concise statement, and Cooper timely complied. This Court
affirmed the dismissal of Cooper’s first PCRA Petition. See Commonwealth
v. Cooper, 105 A.3d 796 (Pa. Super. 2014) (unpublished memorandum). 3
Cooper filed the instant pro se PCRA Petition on May 23, 2017,
challenging his mental competency at the time he entered his guilty plea, and
the effectiveness of both his plea and first PCRA counsel. The PCRA court
subsequently issued a Rule 907 Notice, and Cooper filed a Response. The
PCRA court dismissed Cooper’s Petition as untimely filed on July 25, 2017.
Cooper filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)
Concise Statement.4
Initially, under the PCRA, any PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment
of sentence becomes final “at the conclusion of direct review, including
3Cooper later filed a Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc, which the Pennsylvania Supreme Court denied on November 19, 2014. See Commonwealth v. Cooper, 103 A.3d 1292 (Pa. 2014).
4 Cooper filed two separate appellate briefs with this Court—one handwritten and one typed. On July 17, 2018, this Court entered a Rule to Show Cause Order, directing Cooper to specify which brief he intended to rely upon, and stating that a failure to respond by July 31, 2018, would result in this Court’s reliance on the handwritten brief. Cooper did not respond to the Rule to Show Cause, and on August 14, 2018, this Court entered an Order designating Cooper’s handwritten brief as the Brief for Appellant.
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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.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
Our standard of review of an order [dismissing] PCRA relief is whether the record supports the PCRA court’s determination and whether the PCRA court’s decision is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
Here, Cooper’s judgment of sentence became final in August 2014,
when the time for seeking allowance of appeal with the Pennsylvania Supreme
Court expired. Thus, Cooper’s second Petition, filed in May 2017, is facially
untimely.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth under
42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these exceptions
“shall be filed within 60 days of the date the claim could have been presented.”
Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
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Cooper invokes, in his Concise Statement and his Summary of the
Argument,5 the “governmental interference” exception set forth at 42
Pa.C.S.A. § 9545(b)(1)(i). Cooper argues that “every time [he] is given a
briefing schedule with a deadline he is persistantly [sic] targeted with
fabricated misconducts” and placed in the restricted housing unit at SCI –
Greene. Brief for Appellant at 15 (renumbered). Cooper claims that he was
unable to receive legal assistance through the prison law library during his
restricted confinement, and that his PCRA was time-barred by the time of his
release from the restricted housing unit. Id. (renumbered). Cooper states
that he was “railroaded” during his placement in the restricted housing unit,
and therefore, was unable to file a “timely appeal brief.” Id. at 17
(renumbered).
In order to satisfy the “governmental interference” exception to the
PCRA’s timeliness requirement, a petitioner must plead and prove that “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 States.” 42 Pa.C.S.A. § 9545(b)(1)(i); see also Commonwealth v.
Chester, 895 A.2d 520, 52 (Pa. 2006). Here, Cooper fails to explain how the
alleged actions interfered with his ability to discover or present any particular
claim. Indeed, in his first PCRA Petition, Cooper previously raised his claims ____________________________________________
5Cooper does not otherwise address this claim in the Argument section of his brief.
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challenging his mental competency at the time he entered his plea, and the
effectiveness of his plea counsel, and this Court determined that the claims
lacked merit. See Cooper, 105 A.3d 796 (Pa. Super. 2014) (unpublished
memorandum). Further, as the PCRA court noted in its Opinion, Cooper
previously had acknowledged receiving legal assistance at the SCI – Greene
law library and through the Department of Corrections. See PCRA Court
Opinion, 12/27/17, at 4; see also Brief for Appellant at 15-18. Cooper
therefore failed to satisfy the “governmental interference” exception to the
PCRA’s timeliness requirement.6
Accordingly, because Cooper did not successfully invoke any of the three
exceptions necessary to circumvent the PCRA’s timeliness requirement, we
affirm the PCRA court’s Order dismissing Cooper’s Petition as untimely filed.
Order affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/23/19
6Cooper failed to include his remaining claim, concerning the effectiveness of his first PCRA counsel, in his Concise Statement. See Pa.R.A.P. 1925(b)(4)(vii). Additionally, “claims of ineffectiveness of PCRA counsel will not overcome the timeliness requirements of the PCRA….” Commonwealth v. Pitts, 981 A.2d 875, 883 (Pa. 2009) (citation omitted).
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