Com. v. Gates, G.

• Court: Superior Court of Pennsylvania
• Decided: July 19, 2023
• Docket: 518 WDA 2022
• Status: Unpublished

Opinion

J-A06012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GARY LEE GATES : : Appellant : No. 518 WDA 2022

Appeal from the Judgment of Sentence Entered December 20, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011095-2017

BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.: FILED: July 19, 2023

Appellant, Gary Lee Gates, appeals from the December 20, 2018

judgment of sentence entered in the Court of Common Pleas of Allegheny

County that imposed an aggregate sentence of 8 to 18 years’ incarceration to

be followed by 5 years’ probation. Appellant was convicted, following a jury

trial, of two counts of aggravated assault.1 For the reasons set forth herein,

we vacate the April 21, 2022 order reinstating Appellant’s direct appeal rights

nunc pro tunc, quash this appeal, and remand the case for further

proceedings.

The record demonstrates that Appellant was charged with the

aforementioned crimes, as well as criminal attempt – criminal homicide ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2702(a)(1). J-A06012-23

(1 count) and recklessly endangering another person (“REAP”) (2 counts).2

Criminal Information, 11/20/17. These charges stemmed from an incident on

July 3, 2017, wherein Appellant shot a victim while the victim stood next to

his vehicle and the victim’s minor child was present in the vehicle. Criminal

Complaint, 7/11/17, at Affidavit of Probable Cause.

On September 28, 2018, a jury convicted Appellant of two counts of

aggravated assault.3 On December 20, 2018, the trial court imposed a

sentence of 5 to 10 years’ incarceration for Appellant’s aggravated assault

conviction, as it pertained to the victim (Count 2). The trial court imposed a

sentence of 3 to 8 years’ incarceration for Appellant’s aggravated assault

conviction, as it related to the victim’s minor child (Count 3). As part of the

sentence imposed for Count 3, the trial court also ordered Appellant to serve

5 years’ probation, with said probation set to run consecutively to Appellant’s

overall sentence of incarceration.4 The sentence imposed for Count 3 was set

to run consecutively to the sentence imposed for Count 2.

____________________________________________

2 18 Pa.C.S.A. §§ 901(a) (and 2501(a)) (1 count), and 2705 (2 counts), respectively.

3 The jury remained deadlocked and was unable to return a verdict on the charge of criminal attempt – criminal homicide. The trial court nolle prossed the criminal attempt charge on December 20, 2018. The Commonwealth withdrew both REAP charges before trial.

4 Appellant was given credit for time served (526 days) towards his sentence imposed for Count 2 and, as part of the sentence imposed for Count 3, Appellant was ordered to pay restitution in the amount of $8,400.85.

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On January 4, 2019, trial counsel filed a motion to withdraw as counsel

for Appellant. That same day, trial counsel also filed, outside the 10-day

period established by Pennsylvania Rule of Appellate Procedure 720(A)(1), a

post-sentence motion requesting a modification of Appellant’s sentence on the

ground that the consecutive sentences resulted in “an unduly harsh sentence.”

Post-Sentence Motion, 1/4/19, at ¶4; see also Pa.R.A.P. 720(A)(1) (requiring

a timely post-sentence motion to be filed within 10 days of the imposition of

sentence). Later, that same day, the trial court granted trial counsel’s motion

to withdraw. Trial Court Order, 1/4/19. In a separate order, filed on January

4, 2019, the trial court denied Appellant’s post-sentence motion to modify his

sentence. No direct appeal was filed.5

On April 1, 2019, Appellant filed pro se a petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.6 On April 18, ____________________________________________

5 Appellant’s judgment of sentence became final on Tuesday, January 22, 2019, 30 days after the imposition of his sentence on December 20, 2018, because Appellant’s January 4, 2019 motion for modification of sentence was untimely. See Pa.R.Crim.P. 720(A)(1); see also Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa. Super. 2003) (holding that, an untimely filed post-sentence motion does not toll the 30-day period in which to file a notice of appeal); 1 Pa.C.S.A. § 1908 (stating that, whenever the last day of any period of time referred to in a statute “shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation”); 5 U.S.C.A. § 6103(a) (listing the Birthday of Martin Luther King, Jr. as the third Monday in January).

6 Appellant’s PCRA petition was timely filed because it was filed within one year of the date the judgment of sentence became final. 42 Pa.C.S.A § 9545(b)(1) (stating, a PCRA petition, including second and subsequent

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2019, the PCRA court appointed Randall McKinney, Esquire (“Attorney

McKinney”) as counsel to represent Appellant. On December 23, 2019,

Attorney McKinney filed an amended PCRA petition, requesting the

reinstatement of Appellant’s direct appeal rights nunc pro tunc. On March 4,

2020, the PCRA court granted Appellant’s petition and reinstated his direct

appeal rights nunc pro tunc. Attorney McKinney, who remained counsel of

record for Appellant, did not file a notice of appeal in response to the order

reinstating Appellant’s direct appeal rights.7

On April 30, 2020, Appellant filed pro se a notice of appeal. The trial

court docketed Appellant’s pro se notice of appeal and sent a copy to, inter

alia, Attorney McKinney, who remained counsel of record for Appellant. The

trial court, however, did not forward a copy of the notice of appeal to this

Court pursuant to Pennsylvania Rule of Appellate Procedure 905(b). See

Pa.R.A.P. 905(b) (stating that, a clerk of courts or prothonotary “shall

immediately transmit to the prothonotary of the appellate court named in the

notice of appeal a copy of the notice of appeal and all attachments”); see also ____________________________________________

petitions, must be filed within one year of the date a petitioner’s judgment of sentence becomes final).

7 Pursuant to Pennsylvania Rule of Criminal Procedure 120, an attorney appointed by the trial court shall continue his or her representation through direct appeal or until granted leave to withdraw by the trial court. Pa.R.Crim.P. 120(A)(4) and (B)(1); see also Pa.R.Crim.P. 122(A)(2) (stating, when counsel if appointed, “the appointment shall be effective until final judgment, including any proceedings upon direct appeal”); Pa.R.Crim.P. 904 Comment (stating, appointed [PCRA] counsel retains his or her assignment until final judgment”).

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Commonwealth v. Williams, 151 A.3d 621, 623-624 (Pa. Super. 2016)

(holding that, a pro se notice of appeal filed by a represented criminal

defendant shall be accepted by the trial court, forwarded to this Court, and

docketed by this Court without offending the considerations prohibiting hybrid

representation because a defendant has a constitutional right of appeal). As

such, Appellant’s pro se notice of appeal was never docketed with this Court.

On May 13, 2020, Appellant sent a letter to Attorney McKinney

requesting that Attorney McKinney file a direct appeal on behalf of Appellant.

Appellant sent a similar letter to Attorney McKinney on June 8, 2020.8 That

same day, Appellant also filed pro se a motion for relief due to extraordinary

circumstances, requesting the trial court ascertain the status of Attorney

McKinney’s representation of Appellant and appoint new counsel if the trial

court found that Attorney McKinney abandoned Appellant.

On June 10, 2020, Appellant sent a third letter to Attorney McKinney

requesting that he file a direct appeal on behalf of Appellant. On August 3,

2020, Appellant sent a letter to the trial court requesting the appointment of

new counsel because, in Appellant’s opinion, Attorney McKinney abandoned

Appellant. Appellant sent a similar letter directed to the trial court on

December 17, 2020.

8 Copies of Appellant’s letters directed to Attorney McKinney were also sent to the clerk of courts for the Court of Common Pleas of Allegheny County and filed as part of the certified record.

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On July 20, 2021, Appellant filed pro se a petition to reinstate his direct

appeal rights.9 On July 28, 2021, the trial court appointed J. Richard Narvin,

Esquire (“Attorney Narvin”) as counsel to represent Appellant “on all appellate

matters[.]” Trial Court Order, 7/28/21. On February 10, 2022, Attorney

Narvin filed a motion to withdraw as counsel for Appellant, which the trial

court subsequently granted on February 16, 2022. Trial Court Order, 2/16/22.

Notwithstanding the February 2022 judicial order granting his request

to withdraw as Appellant’s counsel, Attorney Narvin, on April 5, 2022, filed a

9 Typically, “any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (original quotation marks and citation omitted). For reasons discussed in greater detail infra, Appellant’s judgment of sentence, as of July 2021, had not yet become final because a direct appeal is currently pending before this Court, stemming from the filing of Appellant’s pro se notice of appeal on April 30, 2020. 42 Pa.C.S.A. § 9545(b)(3) (stating, “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”). Therefore, Appellant’s July 20, 2021 petition to reinstate his direct appeal rights cannot be treated as a PCRA petition. See Taylor, 65 A.3d at 466.

Moreover, the trial court was without jurisdiction to grant relief on Appellant’s petition because a direct appeal is currently pending before this Court. Pa.R.A.P. 1701 (stating that, in general, upon the filing of a notice of appeal, a trial court may no longer proceed in a matter except to, inter alia, preserve the status quo and take action permitted or required by the Pennsylvania Rules of Appellate Procedure or otherwise ancillary to the appeal). As such, the trial court’s July 28, 2021 order appointing counsel to represent Appellant, and the trial court’s subsequent orders granting, inter alia, collateral relief are null and void ab initio. Commonwealth v. Fantauzzi, 275 A.3d 986, 998 (Pa. Super. 2022) (stating that, judicial decisions and orders granting, or denying, subsequent relief that flow from an order by a trial court without jurisdiction are null and void ab initio).

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PCRA petition, requesting, inter alia, the reinstatement of Appellant’s direct

appeal rights nunc pro tunc.10 On April 21, 2022, the PCRA court granted

Appellant’s petition and reinstated his direct appeal rights nunc pro tunc.

On April 29, 2022, Attorney Narvin filed a notice of appeal, which was

docketed in this Court at 518 WDA 2022. On May 2, 2022, the trial court

directed Appellant to file a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed

his Rule 1925(b) statement on June 9, 2022. The trial court filed its Rule

1925(a) opinion on July 26, 2022.

Appellant raises the following issues for our review:

1. Did the trial court err when it denied [Appellant’s] motion for a mistrial when it was disclosed that the Commonwealth failed to inform the defense of [the victim-witness’s] pretrial statement that [Appellant] brandished a gun at sometime during the incident as the [trial] court's instruction to the jury was insufficient to cure the prejudice to [Appellant]?

2. Did the trial court err when it charged the jury on the defense of justification when it included instructions on other criminal activity when the Commonwealth presented no evidence of such activity?

3. Did the trial court err when it overruled [a defense] objection to [D]etective Martin Kail's testimony regarding [Appellant’s] knowledge of information about the victim when it was both leading and improper opinion testimony?

Appellant’s Brief at 3.

10Although Attorney Narvin’s PCRA petition was captioned as an “amended PCRA petition,” said petition was, in fact, an original PCRA petition filed on Appellant’s behalf.

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Preliminarily, we examine the procedural posture of the case sub judice

as it implicates this Court’s jurisdiction. Commonwealth v. Grove, 170 A.3d

1127, 1136-1137 (Pa. Super. 2017) (stating, “[t]his Court may consider the

issue of jurisdiction sua sponte” (original quotation marks and citation

omitted)), appeal denied, 185 A.3d 967 (Pa. 2018). Our examination of the

procedural timeline begins on March 4, 2020, which is the date on which the

PCRA court granted Appellant collateral relief and reinstated Appellant’s direct

appeal rights nunc pro tunc for the first time. Ordinarily, to take full advantage

of the March 4, 2020 order, Appellant needed to file a notice of appeal, upon

reinstatement of his direct appeal rights nunc pro tunc, on or before April 3,

2020. See Pa.R.A.P. 903(a) (stating that, a notice of appeal “shall be filed

within 30 days of the entry of the order from which the appeal is taken”). In

this instance, however, during the 30-day period following the March 4, 2020

reinstatement of Appellant’s direct appeal rights nunc pro tunc, our Supreme

Court declared a general, statewide judicial emergency due to the COVID-19

global pandemic. In re: General Statewide Judicial Emergency, 228 A.3d

1281 (Pa. 2020) (stating, “AND NOW, this 16th day of March, 2020, pursuant

to Rule of Judicial Administration 1952(A), [our Supreme] Court DECLARES a

general, statewide judicial emergency until April 14, 2020, on account of

COVID-19”). In a March 18, 2020 per curiam order, our Supreme Court

closed, inter alia, the court of common pleas facilities in all judicial districts to

non-essential functions through at least April 3, 2020, and suspended “all time

calculations for purposes of time computation relevant to court cases or other

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judicial business, as well as time deadlines” through April 3, 2020. In re:

General Statewide Judicial Emergency, 228 A.3d 1283, 1285-1286 (Pa.

2020). Our Supreme Court directed that,

In all events, any legal papers or pleadings which are required to be filed between March 19, 2020, and April 3, 2020, SHALL BE DEEMED to have been timely filed if they are filed by April 6, 2020, or on a later date as permitted by the appellate or local court in question upon consideration of the potential volume of such filings.

Id. at 1285. By virtue of subsequent per curiam orders addressing the

general, statewide judicial emergency, our Supreme Court continued the

suspension of all time calculations through May 8, 2020. In re: General

Statewide Judicial Emergency, 229 A.3d 229, 230 (Pa. 2020); see also

In re: General Statewide Judicial Emergency, 230 A.3d 1015, 1017 (Pa.

2020). Ultimately, “[i]n all events, legal papers or pleadings (other than

commencement of actions where statutes of limitations may be in issue) which

are required to be filed between March 19, 2020, and May 8, 2020, generally

SHALL BE DEEMED to have been filed timely if they are filed by close of

business on May 11, 2020.” In re: General Statewide Judicial

Emergency, 230 A.3d at 1017. As such, in the case sub judice, Appellant

had until May 11, 2020, to file a timely notice of appeal from the March 4,

2020 order reinstating his direct appeal rights nunc pro tunc.

On April 30, 2020, Appellant filed pro se a notice of appeal. Generally,

Pennsylvania prohibits hybrid representation except in the limited instance

where a defendant files, inter alia, a pro se notice of appeal. Williams, 151

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A.3d at 624 (stating, “a notice of appeal protects a constitutional right[ and,

therefore,] is distinguishable from other filings that require counsel to provide

legal knowledge and strategy in creating a motion, petition, or brief”); see

also 210 Pa. Code § 65.24 (stating that, “[a] pro se notice of appeal received

from the trial court shall be docketed [by this Court], even in instances where

the pro se [appellant] was represented by counsel in the trial court”). As such,

Appellant’s April 30, 2020 pro se notice of appeal was timely filed with the

trial court because it was filed before May 11, 2020, and the pro se aspect of

the filing does not offend the prohibition against hybrid representation.

Appellant’s pro se notice of appeal was entered on the trial court docket

on April 30, 2020, and a copy of the notice of appeal was provided to Attorney

McKinney, Appellant’s then-counsel of record. The trial court, however, did

not provide a copy of the notice of appeal to this Court, and it appears, from

a review of the record, that Attorney McKinney took no further action upon

receipt of Appellant’s pro se notice of appeal. See Pa.R.A.P. 905(a)(3)

(requiring that, “[u]pon receipt of [a] notice of appeal, the clerk [of courts or

prothonotary] shall immediately stamp it with the date of receipt, and that

date shall constitute the date when the appeal was taken, which date shall be

shown on the docket”); see also Pa.R.A.P. 905(b) (requiring that, the clerk

of courts or prothonotary “shall immediately transmit to the prothonotary of

the appellate court named in the notice of appeal a copy of the notice of appeal

and all attachments”). The failure to forward a copy of Appellant’s pro se

notice of appeal to this Court constituted a breakdown in the judicial system

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that prevented the docketing of Appellant’s notice of appeal with this Court.

See Williams, 151 A.3d at 623-624 (finding that, the docketing of Williams’

pro se notice of appeal in the trial court and forwarding of the same to counsel

of record but failing to forward the pro se notice of appeal to this Court

constituted a breakdown of the judicial system). As such, Appellant’s direct

appeal, as a result of his April 30, 2020 pro se notice of appeal, is currently

pending before this Court and must be perfected by the forwarding of the

notice of appeal to this Court, whereupon it shall be docketed.

Therefore, based upon the procedural posture of the case sub judice,

we vacate the PCRA court’s April 21, 2022 order reinstating Appellant’s direct

appeal rights nunc pro tunc. Furthermore, we quash the instant appeal

because, inter alia, a prior appeal, stemming from Appellant’s April 30, 2020

pro se notice of appeal, is currently pending before this Court. We remand

this case so the trial court may immediately forward a copy of Appellant’s pro

se notice of appeal to this Court, whereupon it shall be docketed. Additionally,

it is apparent from the record that Attorney McKinney abandoned Appellant

on his direct appeal. If, on remand, the trial court remains satisfied that

Appellant qualifies for in forma pauperis status, the trial court may appoint

Attorney Narvin, or new counsel, to represent Appellant on direct appeal. The

trial court may then take action with direct appeal proceedings in accordance

with Pennsylvania Rule of Appellate Procedure 1925, directing Appellant to file

a concise statement of errors complained of on appeal and filing a Rule

1925(a) opinion upon Appellant’s filing of a Rule 1925(b) statement.

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April 21, 2022 order vacated. Appeal quashed. Case remanded.

Jurisdiction relinquished.

Judge Pellegrini joins.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/19/2023

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