Com. v. Craig, R.

• Court: Superior Court of Pennsylvania
• Decided: September 27, 2021
• Docket: 20 WDA 2021
• Status: Unpublished

Opinion

J-A20030-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RUBEN RICHARD CRAIG, III : : Appellant : No. 20 WDA 2021

Appeal from the PCRA Order Entered November 25, 2020 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000597-2016

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: SEPTEMBER 27, 2021

Appellant, Ruben Richard Craig, III, appeals from the post-conviction

court’s order denying, as untimely, his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

The facts of Appellant’s underlying convictions are not relevant to his

present appeal. We need only summarize that, in August of 2017, Appellant

was convicted by a jury of attempted homicide, aggravated assault, and

recklessly endangering another person. Appellant represented himself at trial,

with standby counsel. He also proceeded pro se at his sentencing hearing on

October 3, 2017. At the conclusion thereof, Appellant was sentenced to an

aggregate term of 20 to 40 years’ incarceration.

Appellant filed a pro se notice of appeal, which this Court dismissed as

untimely. He thereafter filed a pro se “Motion To Appeal Nunc Pro Tunc,”

claiming that his appellate rights should be reinstated because he had timely J-A20030-21

delivered his pro se notice of appeal to prison authorities for mailing, but a

breakdown in the mailing system or the operations of the court had prevented

it from being timely docketed. On September 18, 2018, the trial court issued

an order denying Appellant’s “Motion To Appeal Nunc Pro Tunc.”

On November 26, 2018, Appellant filed his first, pro se PCRA petition

(hereinafter, “first petition”).1 Before that petition was disposed of, however,

Appellant filed a notice of appeal from the court’s September 18, 2018 order

denying his “Motion To Appeal Nunc Pro Tunc.” While that appeal was

pending, the court issued an order on February 7, 2019, correctly dismissing

Appellant’s first petition.2 He did not file an appeal from that order. On

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1 Although the docket and the PCRA court both indicate that this first petition

was filed on November 26, 2018, we cannot locate the petition in the certified record. See PCRA Court Order, 11/25/20, at 2 (unnumbered) (“On November 26, 2018, [Appellant] filed his first PCRA [p]etition.”).

2 See Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019), appeal denied, 218 A.3d 850 (Pa. 2019) (stating that under Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), a PCRA court “has no jurisdiction to consider a subsequent PCRA petition while an appeal from the denial of the petitioner’s prior PCRA petition in the same case is still pending on appeal[;]” thus, “[i]f the petitioner pursues the pending appeal, then the PCRA court is required under Lark to dismiss any subsequent PCRA petitions filed while that appeal is pending”). We recognize that Appellant’s appeal from the order denying his “Motion To Appeal Nunc Pro Tunc” was not an appeal from the denial of a PCRA petition, as the claims he raised therein were not cognizable under the PCRA. However, we find this distinction immaterial, as it is clear that an appeal taken from any type of order divests the trial court of jurisdiction. See Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.”). Thus, the court correctly dismissed Appellant’s first petition, as it was filed during the pendency of an appeal to this Court.

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January 27, 2020, this Court affirmed the order denying Appellant’s “Motion

To Appeal Nunc Pro Tunc.” See Commonwealth v. Craig, 226 A.3d 658 (Pa.

Super. 2020) (unpublished memorandum).

On November 19, 2020, Appellant filed the pro se PCRA petition

underlying his present appeal. The court issued an order dismissing the

petition on November 25, 2020.3 Appellant filed a timely, pro se notice of

appeal.4 He also timely complied with the PCRA court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Thereafter, the

court held “a Grazier[5] hearing … to determine whether [Appellant] would

3 We recognize that the court did not appoint counsel, as this is Appellant’s

second PCRA petition. See PCRA Court Order, 11/25/21, at 1 (unnumbered) (“As this is not [Appellant’s] first petition, [he] is not entitled to counsel unless the [c]ourt finds that an evidentiary hearing is necessary or unless the interests of justice require it.”) (citing Pa.R.Crim.P. 904(D), (E)). The court also failed to issue a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a hearing. However, Appellant does not challenge the court’s failure in this regard on appeal and, thus, it is waived. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the absence of a Rule 907 notice constitutes waiver.”) (citation omitted).

4 Appellant’s pro se notice of appeal was docketed on December 30, 2020, which was beyond the 30-day time-period for appealing from the November 25, 2020 order. On February 3, 2021, this Court issued a rule to show cause why his appeal should not be quashed as untimely. Appellant responded, providing a cash slip from the prison indicating that he had sent his notice of appeal on December 20, 2020. Accordingly, our Court discharged the rule to show cause. Given these circumstances, we consider Appellant’s pro se appeal as being timely filed under the prisoner mailbox rule. See Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998) (stating that the prisoner mailbox rule means “that, for prisoners proceeding pro se, a notice is deemed filed as of the date it is deposited in the prison mail system”). 5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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proceed in this appeal pro se, or whether he required counsel for the appeal.”

PCRA Court Opinion, 4/30/21, at 2. At the close of that hearing, the court

appointed counsel to represent Appellant, and directed counsel to file an

amended concise statement on Appellant’s behalf. Counsel complied, and the

PCRA court filed its Rule 1925(a) opinion on April 30, 2021.

In Appellant’s brief to this Court, he raises one issue for our review: “Did

the [PCRA] court err in not allowing for a PCRA hearing concerning alleged

newly[-]discovered evidence in another proceeding which involved similar

individuals to be brought into these proceedings?” Appellant’s Brief at 26

(unnumbered).6

Preliminarily, we observe that this Court’s standard of review regarding

an order denying a petition under the PCRA is whether the determination of

the PCRA court is supported by the evidence of record and is free of legal

error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We

must begin by addressing the timeliness of Appellant’s petition, because the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of a petition. See Commonwealth

v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition

for post-conviction relief, including a second or subsequent one, must be filed ____________________________________________

6 We presume that Appellant’s mention of ‘another proceeding’ refers to the

litigation of a PCRA petition he filed in a separate case docketed at CP-61-CR- 0000480-2016. Appellant’s appeal from the PCRA court’s denial of that petition is presently before this Court at docket No. 1041 WDA 2020. As Appellant makes no other mention of this separate case, we do not address it further in the instant appeal.

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within one year of the date the judgment of sentence becomes final, unless

one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii)

applies:

(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 States;

(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to

invoke one of these exceptions must “be filed within one year of the date the

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Here, because Appellant did not file a timely direct appeal, his judgment

of sentence became final on November 3, 2017, which was 30 days after his

sentence was imposed. See Commonwealth v. Brown, 943 A.2d 264, 268

(Pa. 2008) (“[I]n circumstances in which no timely direct appeal is filed

relative to a judgment of sentence, and direct review is therefore unavailable,

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the one-year period allowed for the filing of a post-conviction petition

commences upon the actual expiration of the time period allowed for seeking

direct review, as specified in the PCRA.”); Pa.R.A.P. 903(a) (stating that a

notice of appeal “shall be filed within 30 days after the entry of the order from

which the appeal is taken”). Accordingly, Appellant’s petition filed on

November 19, 2020, is patently untimely. For this Court to have jurisdiction

to review the merits thereof, he must prove he meets an exception to the one-

year timeliness requirement.

In his brief to this Court, Appellant states that “the results of an autopsy

report, and other matters which were pertinent to this case, were withheld by

the prosecution.” Appellant’s Brief at 29 (unnumbered). He also vaguely

claims that he “has presented prima facie evidence that governmental officials

at the District Attorney’s Office did not provide proper discovery of potentially

admissible evidence which was favorable to [Appellant], thus constituting a

potential violation of constitutional due process rights pursuant to Brady v.

Maryland, 373 U.S. 83 (1963).” Id. at 30 (unnumbered). Appellant asks

that we vacate the court’s order denying his petition and remand for an

evidentiary hearing on these claims. Id. at 30-31 (unnumbered).

Appellant’s cursory argument does not demonstrate the applicability of

any timeliness exception. Notably, Appellant does not specifically identify

what exception he is attempting to satisfy. His assertion that the

Commonwealth allegedly committed a Brady violation could fall within either

the governmental-interference exception of section 9545(b)(1)(i), or the

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newly-discovered-facts exception of section 9545(b)(1)(ii). See

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). To meet

section 9545(b)(1)(i), “the petitioner must plead and prove the failure to

previously raise the claim was the result of interference by governmental

officials, and the information could not have been obtained earlier with the

exercise of due diligence.” Id. Additionally, “[s]ection 9545(b)(1)(ii)’s

exception requires the facts upon which the Brady claim is predicated were

not previously known to the petitioner and could not have been ascertained

through due diligence.” Id. (citing Commonwealth v. Lambert, 884 A.2d

848, 852 (Pa. 2005)).

In this case, Appellant does not explain what ‘new facts’ he learned from

the autopsy report or ‘other matters’ ostensibly withheld by the

Commonwealth. He also does not state when and how he discovered those

new facts. Similarly, Appellant does not identify what ‘prima facie evidence’

he has produced to show that the Commonwealth withheld other, potentially

favorable evidence, or when he discovered this purported Brady violation.

Thus, it is impossible for us to discern if Appellant acted with due diligence in

raising any of these claims, or if he met the one-year filing deadline of section

9545(b)(2). Accordingly, Appellant’s undeveloped argument does not

demonstrate that his petition meets a timeliness exception, and the court did

not err in dismissing it without a hearing.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/27/2021

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