Com. v. Jones, G.

• Court: Superior Court of Pennsylvania
• Decided: January 4, 2022
• Docket: 23 EDA 2021
• Status: Unpublished

Opinion

J-S31012-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

GERALD JONES

Appellant No. 23 EDA 2021

Appeal from the PCRA Order Entered September 10, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0607981-1979

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED JANUARY 4, 2022

Appellant Gerald Jones pro se appeals from the September 10, 2020

order of the Court of Common Pleas of Philadelphia County (“PCRA court”),

which dismissed as untimely his ninth petition under the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-46. Upon review, we remand for further

proceedings.

The facts and procedural history of this case are undisputed. Briefly,

following his December 3, 1977, participation in the firebombing of a house

that claimed three innocent lives, Appellant was convicted of three counts of

first-degree murder, two counts of arson, and one count each of causing and

risking a catastrophe and criminal conspiracy.1 On April 15, 1981, Appellant

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2502(a), 3301(a), 3302, and 903, respectively. J-S31012-21

was sentenced to life in prison. This Court affirmed Appellant’s judgment of

sentence on November 5, 1986 and Appellant did not file a petition for

allowance of appeal.

On January 4, 1990, Appellant filed his first PCRA petition, which was

dismissed on January 14, 1992. This Court affirmed the PCRA court’s order

on February 23, 1993, and our Supreme Court denied allowance of appeal on

March 22, 1994. Commonwealth v. Jones, 627 A.2d 202 (Pa. Super. 1993)

(unpublished memorandum), appeal denied, 644 A.2d 733 (Pa. 1994).

Appellant filed a second PCRA petition, which was dismissed by the PCRA court

on May 29, 1997. This Court again affirmed the PCRA court’s order, and our

Supreme Court again denied allowance of appeal. Commonwealth v. Jones,

718 A.2d 858 (Pa. Super. 1998) (unpublished memorandum), appeal

denied, 727 A.2d 1118 (Pa. 1998). Thereafter, we dismissed as untimely

Appellant’s third through eighth PCRA petitions.

On November 15, 2017, less than two months after we affirmed the

dismissal of his eighth PCRA petition, Appellant filed the instant – his ninth –

PCRA petition, which he amended on December 29, 2017. Following the

issuance of a Pa.R.Crim.P. 907 notice, the PCRA court dismissed as untimely

Appellant’s instant petition for relief on September 10, 2020. On December

4, 2020, Appellant pro se filed a notice of appeal.2 The PCRA court did not

2 On August 19, 2021, in consideration of Appellant’s response to our order to show cause why this appeal should not be quashed as untimely, we discharged the show cause order and referred the issue to the merits panel.

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direct Appellant to file a Pa.R.A.P. 1925 statement of errors complained of on

appeal.

Before we address the substantive issues raised by Appellant, we must

determine the timeliness of the filing of Appellant’s notice of appeal. See

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)

(explaining that the timeliness of an appeal impacts our jurisdiction). Rule

902 requires a notice of appeal to be filed within 30 days after the entry of

the order from which the appeal is taken. Pa.R.A.P. 902(a). Appellant’s notice

of appeal is untimely-filed on its face, having been filed well past this

timeframe. In the notice, however, Appellant explained that he initially did

not receive the PCRA court’s September 10, 2020 order dismissing his

petition. According to Appellant, he requested a copy of the September 10

order and he finally received it on December 1, 2020.

Although Rule 105(b) prohibits this Court from enlarging the time for

filing a notice of appeal, the comment to that rule clarifies that subsection (b)

“is not intended to affect the power of a court to grant relief in the case of

fraud or breakdown in the processes of a court.” Pa.R.A.P. 105(b); Note to

Pa.R.A.P. 105. The record is unclear on whether there was a breakdown in

the process of the PCRA court in this case. Our Rules of Criminal Procedure

require specific notice of a dismissal of a PCRA petition without a hearing.

Pa.R.Crim.P. 907(4) provides:

When the petition is dismissed without a hearing, the judge promptly shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the

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right of appeal from the final order disposing of the petition and of the time limits within which the appeal must be filed. The order shall be filed and served as provided in Rule 114.

Pa.R.Crim.P. 907(4) (emphasis added). Pursuant to Rule 114, service shall

be prompt and in writing by “sending a copy to an unrepresented party by

certified, registered, or first class mail addressed to the party’s place of . . .

confinement.” Pa.R.Crim.P. 114(B)(3)(a)(v).3

In this case, the docket reflects that the September 10 order was served

on Appellant on September 29, 2020. Indeed, the following notation appears

on the docket: Cert/Rest Return Delivery. Appellant, however, in his

response to our show cause order, claims that his notice of appeal was timely

filed. He further claims that the notation on the docket indicates that the mail

containing the September 10 order was returned to the PCRA court on

September 29, 2020. According to Appellant “SCI-Phoenix mailroom –

rejected Judge Roman’s court order and opinion (dated 9/10/20) on (9/17/20)

and mailed back to Judge Roman on (9/20/20).” In support, Appellant

attaches an “Inmate’s Request To Staff Member” (the “Request”), by which

the prison authorities seemingly corroborate his claim.4 The Request,

3 Combined, Rules 907 and 114 permit the dismissal order to be mailed via first-class mail, but only if a notice of appellate rights and timeframes is sent separately via certified mail, return receipt requested. PCRA courts frequently include the notice within the order, which then triggers the requirement that the combined order and notice be sent via certified mail. 4 The Request bears the following notation from prison officials: “On 9-17- 2020 a letter for you from court of comm [sic] plea trial division post conviction unit was rejected and returned to sender because they did not have a court control number on it.”

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however, is not part of the certified record and we cannot consider it on

appeal. See Bennyhoff v. Pappert, 790 A.2d 313, 318 (Pa. Super. 2001)

(stating “[i]t is black letter law in this jurisdiction that an appellate court

cannot consider anything which is not part of the record in [the] case”),

appeal denied, 823 A.2d 142 (Pa. 2003).

In light of the foregoing, on the record before us a factual question exists

as to whether the notice of appeal was timely filed. Appellant claims that he

did not receive the September 10 order initially and only received it on

December 1, 2020 upon requesting it from the PCRA court. The PCRA court

and the Commonwealth fail to address his claim or the merits thereof. As a

result, we are compelled to remand this matter to the PCRA court to hold an

evidentiary hearing to determine whether Appellant in fact did not receive the

September 10 order until December 1, 2020. In the event the PCRA court

finds Appellant’s claims to be meritorious, it is directed to file a supplemental

Rule 1925(a) opinion within thirty (30) days following the conclusion of the

evidentiary hearing.

Case remanded for proceedings consistent with this memorandum.

Panel jurisdiction retained.

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