Com. v. Jimenez, E.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

EMILY M. JIMENEZ :

:

Appellant : No. 1203 EDA 2024

Appeal from the PCRA Order Entered March 13, 2024 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004467-2021

BEFORE: LAZARUS, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY LAZARUS, P.J.: FILED SEPTEMBER 17, 2025

Emily M. Jimenez appeals from the order, entered in the Court of

Common Pleas of Montgomery County, dismissing her petition filed pursuant

to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541-9546.

Court-appointed counsel has filed an Anders1 brief, with an attached

Turner/Finley2 “no-merit” letter, along with a petition to withdraw as

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1 See Anders v. California, 386 U.S. 738 (1967).

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

counsel.3 Upon careful review, we affirm the order of the PCRA court and

grant counsel’s petition to withdraw.

On June 21, 2021, Jimenez was charged with simple assault 4 after

striking and kicking Kristina Gonzalez multiple times in the face in a stairwell

at the hospital where they were both employed. The assault caused

Gonzalez’s face to bleed and “burn[] from the scratches.” N.T. Non-Jury Trial,

1/26/23, at 36. Gonzalez suffered bruising on her forehead and neck, as well

as scratches on her neck, and experienced pain at a level of seven or eight

out of ten. Id. at 36, 38-39.

On January 26, 2023, following a non-jury trial, the court convicted

Jimenez of simple assault and sentenced her to two years’ probation. On

January 31, 2023, Jimenez submitted pro se correspondence to the trial court,

which included claims sounding in ineffectiveness of trial counsel. Trial

counsel subsequently filed a motion to withdraw on February 27, 2023. After

a hearing on April 4, 2023, the trial court granted counsel’s motion to

withdraw.

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3 This court may accept an Anders brief in lieu of a Turner/Finley letter because an Anders brief provides greater protection to a defendant. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). As noted, here, counsel filed an Anders brief as well as a Turner/Finley letter. See Anders Brief, at Exhibit D.

4 18 Pa.C.S.A § 2701(a)(1).

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On April 5, 2023, the trial court appointed the Montgomery County

Public Defender’s Office to represent Jimenez for PCRA purposes and, on May

31, 2023, public defender James Berardinelli, Esquire, entered his appearance

on Jimenez’s behalf. After obtaining an extension of time, on August 2, 2023,

Attorney Berardinelli filed a timely PCRA petition requesting an evidentiary

hearing and averring that trial counsel was ineffective for:

Failing to introduce evidence of multiple elevators and stairwells at [the hospital] by which [Gonzalez] could have reached the first floor without having contact with [Jimenez]. [Jimenez] and trial counsel had discussed the introduction of this evidence before trial counsel and [Jimenez] entered trial expecting the evidence to be introduced.

PCRA Petition, 8/2/23, at 3. Attorney Berardinelli filed a supplemental PCRA

petition on August 31, 2023.

On February 8, 2024, the PCRA court filed a notice of intent to dismiss

the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. Four days

later, Jimenez filed a timely pro se response to the PCRA court’s Rule 907

notice.5 Jimenez’s response asserted, inter alia, that the photos of Gonzalez’s

injuries entered as evidence at trial were taken on Gonzalez’s cell phone and

subsequently altered, rather than taken by the police officer who testified that

he had taken them. See Pro Se Response to Rule 907 Notice, 2/14/24, at 1-

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5 Our Supreme Court has precluded hybrid representation on PCRA petitions.

See Commonwealth v. Bradley, 261 A.3d 381, 398 (Pa. 2021); Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011). We note, therefore, that Jimenez’s pro se response was improper because she was still represented by Attorney Berardinelli at the time it was filed.

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2. Jimenez requested an evidentiary hearing but did not seek leave to file an

amended PCRA petition.

On February 16, 2024, Attorney Berardinelli filed a motion to withdraw

as counsel, which the court granted on March 4, 2024. On the same date, the

court filed an order dismissing Jimenez’s PRCA petition, followed by an

amended order on March 13, 2024. On March 15, 2024, the PCRA court

appointed Matthew Quigg, Esquire, to represent Jimenez on collateral appeal.

This timely appeal followed.6

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6 The March 4, 2024 order dismissing Jimenez’s petition was not mailed to Jimenez or counsel, and it did not advise Jimenez of her right to appeal or the time limit within which to do so, as required by Pa.R.Crim.P. 907(4). See Order, 3/4/24. Then, on March 13, 2024, the PCRA court entered an amended order in which it remedied those errors by serving Jimenez and her counsel via certified mail and advised Jimenez of her appellate rights. See Order, 3/13/24. The PCRA court did not vacate or otherwise invalidate its prior March 4, 2024 order. See id. Jimenez, within 30 days of the amended order, filed her notice of appeal.

On September 12, 2024, this Court issued a Rule to Show Cause directing Jimenez to demonstrate why her appeal should not be quashed as untimely filed. See Order, 9/12/24, at 1 (citing Pa.R.A.P. 105(b) (“an appellate court . . . may not enlarge the time for filing a notice of appeal.”); Pa.R.A.P. 903(a) (“the notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken.”); Pa.R.Crim.P. 910 (“An order granting, denying, dismissing, or otherwise finally disposing of a petition for post- conviction relief shall constitute a final order for purposes of appeal.”)). On September 23, 2024, Jimenez filed a response. See Response, 9/23/24, at 1-3.

Upon review of the record, we conclude that Jimenez’s appeal properly lies from the March 4, 2024 order dismissing her PCRA petition, as it is a final order. See Pa.R.Crim.P. 910. Therefore, Jimenez’s appeal, filed on April 12, 2024, was filed outside the 30-day time limit and is facially untimely. See (Footnote Continued Next Page)

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Prior to reviewing the merits of Jimenez’s claims, we must address

whether she is eligible for post-conviction relief. To be eligible for relief under

the PCRA,

the petitioner must plead and prove by a preponderance of the evidence all of the following:

(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:

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Pa.R.A.P. 903(a). However, the March 4, 2024 order, as noted above, was not served upon Jimenez or her counsel, and failed to properly advise her of her appellate rights. Both of these failings constitute breakdowns in court processes which allow us to overlook a late-filed notice of appeal. See Commonwealth v. Alvin, 328 A.3d 78, 82 n.2 (Pa. Super. 2024) (Rule 907(4) requires PCRA courts to notify petitioners of PCRA dismissal via certified mail and this Court will not quash appeal where trial court failed to comply with Rule 907(4) and Pa.R.Crim.P. 114); Pa.R.Crim.P. 114 (setting forth proper procedures for notices, filings, service, and docket entries); see also Commonwealth v. Larkin, 235 A.3d 350, 353-54 (Pa. Super. 2020) (en banc) (declining to quash appeal where trial court failed to advise defendant of appellate rights, which constituted breakdown in court processes); see also Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (finding breakdown in court process where clerk of courts failed to notify petitioner of order denying collateral relief). Thus, we need not consider the PCRA court’s attempts to correct those deficiencies in its March 14, 2024 order.

Nevertheless, we note that even if we considered the PCRA court’s March 14, 2024 order, we would still consider these appeals timely. Due to the unique circumstances present in this appeal, where neither Jimenez nor her counsel was aware of the March 4, 2024 order dismissing her petition, we cannot fault her for failing to file a timely notice of appeal where the PCRA court failed to advise her of her appellate rights. See Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007) (compiling cases describing breakdowns in court processes). Moreover, Jimenez filed her notice of appeal within 30 days of receiving the amended order that purported to correct the March 4, 2024 order’s deficiencies. In conclusion, either one of the above-described errors in the March 4, 2024 order allow us to overlook Jimenez’s late-filed appeal, and we discern that we have jurisdiction over this appeal. See Jerman, supra; Larkin, supra.

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(i) currently serving a sentence of imprisonment, probation[,] or parole for the crime[.]

42 Pa.C.S.A. § 9543(a)(1)(i).

Jimenez is ineligible for PCRA relief. The PCRA clearly states that a

petitioner who is not currently incarcerated or on probation or parole with

regard to the sentence for which PCRA relief is requested cannot establish

eligibility for PCRA relief. See id.; see also Commonwealth v. Plunkett,

151 A.3d 1108 (Pa. Super. 2016) (statutory requirement that PCRA petitioner

be currently serving sentence applicable where PCRA court’s order issued

while petitioner still serving sentence, but sentence terminated prior to

resolution of appeal; denial of relief to petitioner no longer serving sentence,

even when PCRA process begun in timely manner, not constitutionally infirm).

Here, Jimenez was sentenced to 2 years of probation on January 26,

2023, and was ordered to “forthwith” register with the Adult Probation

Department to commence supervision. See Order of Sentence, 1/26/23, at 1

(unpaginated). The record reflects the issuance of a bench warrant for a

probation violation; however, that warrant was revoked on July 19, 2024, with

“all matters resolved with [Jimenez’s probation officer].” Return of Service,

7/19/24. The record does not reflect that Jimenez’s probation was ever

deferred or revoked or that she was resentenced. Thus, her term of probation

would have concluded at the end of January 2025. Accordingly, Jimenez has

completed serving her sentence on the offense for which she seeks relief and

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she is ineligible for relief under the PCRA.7 Plunkett, supra. See also

Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997) (under section

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7 Even if Jimenez were eligible for PCRA relief, we would find her claim to be

meritless. In her PCRA petition, Jimenez asserted that trial counsel was ineffective for failing to introduce evidence of the existence of multiple elevators and stairwells at the hospital and, in doing so, undermined the truth- determining process. See PCRA Petition, 8/2/23, at 3. According to Jimenez, this evidence would have demonstrated that there were alternate routes that Gonzalez could have taken to avoid contact with her, which “strongly [supports Jimenez’s] contention that [Gonzalez] had been the aggressor in the incident [] and that [Jimenez] had acted in self-defense.” Memorandum in Support of PCRA Petition, 8/31/23, at 4.

Claims of ineffective assistance of counsel merit relief if petitioner proves, by a preponderance of the evidence, that her convictions resulted from “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Counsel’s performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008). To overcome this presumption, the petitioner must prove: (1) that the underlying claim is of arguable merit; (2) counsel’s action or omission lacked any reasonable basis to serve his client’s interests; and (3) the ineffectiveness of counsel caused her prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). “Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different.” Id. (citation omitted). Petitioner’s failure to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).

Here, Jimenez was convicted of simple assault graded as a second-degree misdemeanor. See 18 Pa.C.S.A. § 2701(b). As is relevant here, “a person is guilty of assault if [s]he . . . attempts to cause or intentionally, knowingly[,] or recklessly causes bodily injury to another[.]” Id. at § 2701(a)(1). “Bodily injury” is defined as “[i]mpairment of physical condition or substantial pain.” Id. at § 2301. (Footnote Continued Next Page)

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9543(a)(1)(i), as soon as petitioner’s sentence is completed, petitioner

becomes ineligible for relief, regardless of whether he or she was serving

sentence at time PCRA petition filed).

Order affirmed. Petition to withdraw granted.

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Jimenez’s contention that counsel was ineffective for failing to introduce evidence of alternate routes fails to satisfy the ineffective assistance of counsel test. See Pierce, supra. At trial, Jimenez conceded the facts that supported her conviction of simple assault when she testified on cross-examination that she struck Gonzalez three times in the face, which caused Gonzalez to suffer bruises, scratches, and substantial pain. See N.T. Non-Jury Trial, 1/26/23, at 100. Jimenez’s PCRA petition fails to explain how evidence that Gonzalez could have taken alternate routes to avoid Jimenez would have changed the trial court’s determination that Jimenez’s actions satisfied the elements of simple assault. In any event, defense counsel did, in fact, question Gonzalez regarding the existence of alternate routes during cross-examination at trial. See N.T. Non-Jury Trial, 1/26/23, at 47 (“Q: You could have taken the elevator to avoid her, right? A: I could have, but the elevator is very, very slow and no one takes the elevator [for] that reason. So, if I would have [taken] the elevator, I would have definitely [run] into her in the [lower level lab].”).

Based upon the foregoing, Jimenez’s claim lacks arguable merit where she had already conceded that she struck and injured Gonzalez, which satisfied the elements of simple assault. Pierce, supra. The existence of alternate routes does not change the fact that Jimenez assaulted Gonzalez. Additionally, Jimenez’s claim fails to demonstrate that counsel lacked a reasonable basis where counsel cross-examined Gonzalez about alternate routes and, again, the existence of those routes does not change the fact that Jimenez assaulted Gonzalez. Id. Because Jimenez failed to satisfy the prongs of the ineffective assistance of counsel test, her claim fails on the merits. Id.

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Date: 9/17/2025