J-A07027-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RUSSELL EARL LATTIMER : : Appellant : No. 29 MDA 2023
Appeal from the PCRA Order Entered June 29, 2016 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000546-2012
BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY SULLIVAN, J.: FILED: JULY 31, 2024
Russell Earl Lattimer (“Lattimer”) appeals pro se from the 2016
dismissal of his first petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”)1 following the reinstatement of his right to appeal. We
vacate the order dismissing Lattimer’s first PCRA petition and remand for
further proceedings consistent with this decision.
We summarize the factual and the lengthy, and complicated, procedural
history of this appeal as follows. A jury convicted Lattimer of rape, aggravated
assault, and related offenses, stemming from the years-long abuse of his
biological daughter and the daughters of his paramour, and the trial court
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546. J-A07027-24
sentenced him to an aggregate term of thirty years and seven months to
eighty-one years of incarceration. See generally Commonwealth v.
Lattimer, 106 A.3d 149 (Pa. Super. 2014) (unpublished memorandum at *1).
This Court affirmed on direct appeal. See id. at *8. Our Supreme Court
denied review in January 2015. See Commonwealth v. Lattimer, 260 A.3d
156 (Pa. Super. 2021) (unpublished memorandum at *1).
In December 2015, Lattimer filed a timely pro se PCRA petition, his first.
The PCRA court appointed counsel (“first PCRA counsel”), who filed an
amended petition alleging after-discovered evidence and several claims of
ineffective assistance of trial counsel. See id. The PCRA court issued a
Pa.R.Crim.P. 907 notice of intent to dismiss the amended petition because the
alleged after-discovered evidence was available at trial and the court lacked
jurisdiction because the petition was untimely filed. See Rule 907 Notice,
5/12/16, at 1. First PCRA counsel filed a response asserting, correctly, that
Lattimer timely sought PCRA relief within a year after the conclusion of his
direct appeal. The PCRA court dismissed the amended petition without further
explanation. See Order, 6/29/16, at 1. While first PCRA counsel apparently
mailed a copy of a notice of appeal to the PCRA court’s chambers, he never
filed a notice of appeal. See Lattimer, 260 A.3d 156 (unpublished
memorandum at *2 & nn.5-6).
-2- J-A07027-24
In November 2016, Lattimer filed a second PCRA petition, pro se,2 after
which the PCRA court appointed counsel (“second PCRA counsel”), who did
not comply with a PCRA court order to file an amended petition. See id. at
*2. The PCRA court nevertheless ultimately dismissed the second petition as
untimely. Lattimer appealed, and this Court vacated the order dismissing the
second petition, and remanded for the PCRA court to consider whether first
PCRA counsel was ineffective for failing to perfect an appeal from the dismissal
of the first PCRA petition. See id. at *5.
Following our remand, the PCRA court appointed new counsel (“third
PCRA counsel”), see Order, 10/6/21, and scheduled a hearing on this issue.
See Order, 6/28/22. Following the hearing, the PCRA court granted relief and
reinstated Lattimer’s right to appeal the dismissal of his first PCRA petition.
See Order, 9/16/22.3 Third PCRA counsel failed to timely file a notice of
appeal pursuant to Pa.R.A.P. 903(a).4 Instead, approximately two-and-a-half
2 Lattimer asserted in his petition that first PCRA counsel was ineffective for,
inter alia, failing to perfect an appeal from the dismissal of the first PCRA petition. See Lattimer, 260 A.3d 156 (unpublished memorandum at *2).
3 The order stated, in relevant part, “[Lattimer’s] right to appeal from his first
PCRA petition is hereby reinstated effective immediately,” but, crucially, the order did not indicate a notice of appeal had to be filed within thirty days. Order, 9/16/22, at 1.
4 An order disposing of a PCRA petition is a final order for purposes of appeal,
see Pa.R.Crim.P. 910, and is therefore subject to Rule 903(a)’s timeliness requirement. See also Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004).
-3- J-A07027-24
months later, third PCRA counsel, along with the Commonwealth, filed a
“Stipulation to Reinstate Appellate Rights,” in which the parties agreed to
extend the time for appeal. A separate jurist granted the petition, see Order
12/7/22, and third PCRA counsel filed a notice of appeal, see Notice of Appeal,
1/5/23, and a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) in which it opined that
Lattimer failed to timely appeal, recommending this Court quash Lattimer’s
appeal, and stating that Lattimer’s only recourse was to file a third PCRA
petition. See generally PCRA Court Opinion, 7/26/23 (unnumbered at 3-4).5
Lattimer raises the following issue for our review:
The PCRA court erred as a matter of law in concluding that [Lattimer’s] claims of ineffective assistance of counsel were precluded by the [PCRA’s] one-year jurisdictional time bar[,] pursuant to 42 Pa.C.S.A. § 9545(b)(1)[,] when, in fact, the claims presented in the [PCRA] petition were timely filed.
Lattimer’s Brief at 4.
Preliminarily, we reject the PCRA court’s assertion that this appeal is
untimely.6 In Wright, this Court held that an appellant must file an appeal
5 In the interim, Lattimer moved to proceed pro se with this appeal, and another jurist conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), and concluded that Lattimer had knowingly, voluntarily, and intelligently waived his right to counsel, and withdrew third PCRA counsel’s appearance. See Order, 4/28/23.
6 See Commonwealth v. Wooden, 215 A.3d 997, 999 (Pa. Super. 2019) (noting that the timeliness of a notice of appeal implicates this Court’s jurisdiction).
-4- J-A07027-24
nunc pro tunc within thirty days of the order reinstating his appellate rights.
See 846 A.2d at 735. However, we also declined to quash an otherwise
untimely appeal where the order did not inform the appellant that he had
thirty days to file the appeal nunc pro tunc. See id. Here, the PCRA court’s
order reinstating Lattimer’s right to appeal the dismissal his first PCRA petition
did not inform him of the thirty-day requirement. See Order, 9/16/22, at 1.
This defect alone excuses Lattimer’s failure to appeal in a timely manner, and,
accordingly, we will not quash this appeal.7
Turning to the merits of this appeal, Lattimer asserts that he timely filed
his first PCRA petition filed in 2015. This Court has already stated as much
in our prior decision, see Lattimer, 260 A.3d 156 (Pa. Super. 2021)
(unpublished memorandum at *1), and the Commonwealth agrees. See
Commonwealth’s Brief at 2. As it is apparent that Lattimer filed his first pro
se PCRA petition within eleven months of the denial of his petition for
Free access — add to your briefcase to read the full text and ask questions with AI
J-A07027-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RUSSELL EARL LATTIMER : : Appellant : No. 29 MDA 2023
Appeal from the PCRA Order Entered June 29, 2016 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000546-2012
BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY SULLIVAN, J.: FILED: JULY 31, 2024
Russell Earl Lattimer (“Lattimer”) appeals pro se from the 2016
dismissal of his first petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”)1 following the reinstatement of his right to appeal. We
vacate the order dismissing Lattimer’s first PCRA petition and remand for
further proceedings consistent with this decision.
We summarize the factual and the lengthy, and complicated, procedural
history of this appeal as follows. A jury convicted Lattimer of rape, aggravated
assault, and related offenses, stemming from the years-long abuse of his
biological daughter and the daughters of his paramour, and the trial court
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546. J-A07027-24
sentenced him to an aggregate term of thirty years and seven months to
eighty-one years of incarceration. See generally Commonwealth v.
Lattimer, 106 A.3d 149 (Pa. Super. 2014) (unpublished memorandum at *1).
This Court affirmed on direct appeal. See id. at *8. Our Supreme Court
denied review in January 2015. See Commonwealth v. Lattimer, 260 A.3d
156 (Pa. Super. 2021) (unpublished memorandum at *1).
In December 2015, Lattimer filed a timely pro se PCRA petition, his first.
The PCRA court appointed counsel (“first PCRA counsel”), who filed an
amended petition alleging after-discovered evidence and several claims of
ineffective assistance of trial counsel. See id. The PCRA court issued a
Pa.R.Crim.P. 907 notice of intent to dismiss the amended petition because the
alleged after-discovered evidence was available at trial and the court lacked
jurisdiction because the petition was untimely filed. See Rule 907 Notice,
5/12/16, at 1. First PCRA counsel filed a response asserting, correctly, that
Lattimer timely sought PCRA relief within a year after the conclusion of his
direct appeal. The PCRA court dismissed the amended petition without further
explanation. See Order, 6/29/16, at 1. While first PCRA counsel apparently
mailed a copy of a notice of appeal to the PCRA court’s chambers, he never
filed a notice of appeal. See Lattimer, 260 A.3d 156 (unpublished
memorandum at *2 & nn.5-6).
-2- J-A07027-24
In November 2016, Lattimer filed a second PCRA petition, pro se,2 after
which the PCRA court appointed counsel (“second PCRA counsel”), who did
not comply with a PCRA court order to file an amended petition. See id. at
*2. The PCRA court nevertheless ultimately dismissed the second petition as
untimely. Lattimer appealed, and this Court vacated the order dismissing the
second petition, and remanded for the PCRA court to consider whether first
PCRA counsel was ineffective for failing to perfect an appeal from the dismissal
of the first PCRA petition. See id. at *5.
Following our remand, the PCRA court appointed new counsel (“third
PCRA counsel”), see Order, 10/6/21, and scheduled a hearing on this issue.
See Order, 6/28/22. Following the hearing, the PCRA court granted relief and
reinstated Lattimer’s right to appeal the dismissal of his first PCRA petition.
See Order, 9/16/22.3 Third PCRA counsel failed to timely file a notice of
appeal pursuant to Pa.R.A.P. 903(a).4 Instead, approximately two-and-a-half
2 Lattimer asserted in his petition that first PCRA counsel was ineffective for,
inter alia, failing to perfect an appeal from the dismissal of the first PCRA petition. See Lattimer, 260 A.3d 156 (unpublished memorandum at *2).
3 The order stated, in relevant part, “[Lattimer’s] right to appeal from his first
PCRA petition is hereby reinstated effective immediately,” but, crucially, the order did not indicate a notice of appeal had to be filed within thirty days. Order, 9/16/22, at 1.
4 An order disposing of a PCRA petition is a final order for purposes of appeal,
see Pa.R.Crim.P. 910, and is therefore subject to Rule 903(a)’s timeliness requirement. See also Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004).
-3- J-A07027-24
months later, third PCRA counsel, along with the Commonwealth, filed a
“Stipulation to Reinstate Appellate Rights,” in which the parties agreed to
extend the time for appeal. A separate jurist granted the petition, see Order
12/7/22, and third PCRA counsel filed a notice of appeal, see Notice of Appeal,
1/5/23, and a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) in which it opined that
Lattimer failed to timely appeal, recommending this Court quash Lattimer’s
appeal, and stating that Lattimer’s only recourse was to file a third PCRA
petition. See generally PCRA Court Opinion, 7/26/23 (unnumbered at 3-4).5
Lattimer raises the following issue for our review:
The PCRA court erred as a matter of law in concluding that [Lattimer’s] claims of ineffective assistance of counsel were precluded by the [PCRA’s] one-year jurisdictional time bar[,] pursuant to 42 Pa.C.S.A. § 9545(b)(1)[,] when, in fact, the claims presented in the [PCRA] petition were timely filed.
Lattimer’s Brief at 4.
Preliminarily, we reject the PCRA court’s assertion that this appeal is
untimely.6 In Wright, this Court held that an appellant must file an appeal
5 In the interim, Lattimer moved to proceed pro se with this appeal, and another jurist conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), and concluded that Lattimer had knowingly, voluntarily, and intelligently waived his right to counsel, and withdrew third PCRA counsel’s appearance. See Order, 4/28/23.
6 See Commonwealth v. Wooden, 215 A.3d 997, 999 (Pa. Super. 2019) (noting that the timeliness of a notice of appeal implicates this Court’s jurisdiction).
-4- J-A07027-24
nunc pro tunc within thirty days of the order reinstating his appellate rights.
See 846 A.2d at 735. However, we also declined to quash an otherwise
untimely appeal where the order did not inform the appellant that he had
thirty days to file the appeal nunc pro tunc. See id. Here, the PCRA court’s
order reinstating Lattimer’s right to appeal the dismissal his first PCRA petition
did not inform him of the thirty-day requirement. See Order, 9/16/22, at 1.
This defect alone excuses Lattimer’s failure to appeal in a timely manner, and,
accordingly, we will not quash this appeal.7
Turning to the merits of this appeal, Lattimer asserts that he timely filed
his first PCRA petition filed in 2015. This Court has already stated as much
in our prior decision, see Lattimer, 260 A.3d 156 (Pa. Super. 2021)
(unpublished memorandum at *1), and the Commonwealth agrees. See
Commonwealth’s Brief at 2. As it is apparent that Lattimer filed his first pro
se PCRA petition within eleven months of the denial of his petition for
allowance of appeal in his direct appeal, the PCRA court clearly erred when it
7 Because there was a breakdown in the PCRA court, we need not consider
whether the “Stipulation to Reinstate Appellate Rights” met the requirements of a subsequent, and timely, PCRA petition. Cf. Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002) (noting that all requests for the reinstatement of appellate rights must be filed pursuant to the PCRA and meet the timeliness requirements of a PCRA petition).
-5- J-A07027-24
asserted Lattimer’s first PCRA petition was untimely filed. See Rule 907
Notice, 5/12/16, at 1.8
Here, our review reveals that Lattimer’s amended PCRA petition raised
a claim of after-discovered evidence and several claims of trial counsel’s
ineffectiveness. See Amended PCRA Petition, 4/22/16, at ¶¶ 5, 6(A)-(E). The
PCRA court’s cursory Rule 907 notice only explained that the amended petition
failed to raise issues of fact because: (1) the alleged after-discovered evidence
was available to counsel and Lattimer failed to show they were exculpatory;
and (2) Lattimer failed to timely file his petition. See Order, 5/12/16. The
PCRA court never addressed the additional claims of trial counsel’s
ineffectiveness, nor, aside from its erroneous conclusion that the petition was
untimely filed, did it explain why the remaining claims raised in the amended
petition were meritless.
Our Supreme Court has explained: “[I]n order to enable appellate
review, PCRA courts are required to provide a legally robust discussion,
complete with clear findings of fact where required.” Commonwealth v.
Montalvo, 114 A.3d 401, 410 (Pa. 2015) (internal citation and quotations
omitted). Indeed, “[w]here a PCRA court fails to support its holding with
sufficient explanations of the facts and law, or fails to provide an adequate
8 The Commonwealth advances several arguments in opposition to Lattimer’s
arguments, though it concedes the PCRA court “found there were no ‘genuine issues concerning any material fact[,]’ but did not discuss it further.” See Commonwealth’s Brief at 2-3.
-6- J-A07027-24
opinion addressing all of the claims raised in a PCRA petition, including factual
and credibility disputes, a remand is appropriate.” Id. The remand may
necessitate further proceedings below. See id.
Here, because the only apparent basis for the PCRA court’s dismissal of
the entirety of Lattimer’s first amended PCRA petition was its faulty timeliness
analysis, which is indisputably incorrect, we conclude the appropriate remedy
is to vacate the PCRA court’s order dismissing Lattimer’s first amended
petition and remand this matter for further proceedings. See id. at 411
(vacating and remanding where the PCRA court’s analysis was deficient,
thereby impeding meaningful appellate review). Upon remand, the court shall
appoint Lattimer new counsel, after which the court shall reconsider Lattimer’s
timely-filed first amended PCRA petition, and either hold a hearing, or,
alternatively, issue a Pa.R.Crim.P. 907 notice specifically identifying the
defects in the petition, and/or explaining the court’s reasons for concluding
that the claims would not merit relief. See Commonwealth v. Bates, 272
A.3d 984, 988-89 (Pa. Super. 2022) (PCRA petitioners have a rule-based right
to counsel in connection with a first PCRA petition); Commonwealth v. Vo,
235 A.3d 365, 372 (Pa. Super. 2020) (stating that the purpose of a Rule 907
notice is to allow the petitioner an opportunity to seek leave to amend his
petition and correct any material defects as to permit a merits review of
potentially arguable claims). New counsel shall be afforded adequate time to
respond to the Rule 907 notice or seek leave of the court to file a second
-7- J-A07027-24
amended petition; after which the PCRA court may decide to hold an
evidentiary hearing, consider whether to grant leave (if requested) to amend
the petition, or dismiss the petition.9
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 07/31/2024
9 See Pa.R.Crim.P. 907(a) (providing, inter alia, that the PCRA court may, upon a response to a Rule 907 notice, may “order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue”).
-8-