NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
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BRIAN JOHN MAHONEY :
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Appellant : No. 1535 MDA 2025
Appeal from the Order Entered June 30, 2025 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004766-2023
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
:
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BRIAN JOHN MAHONEY :
:
Appellant : No. 1536 MDA 2025
Appeal from the Order Entered June 30, 2025 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000906-2024
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
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BRIAN JOHN MAHONEY :
:
Appellant : No. 1537 MDA 2025
Appeal from the Order Entered June 30, 2025 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000907-2024
BEFORE: BECK, J., NEUMAN, J., and BENDER, P.J.E.
MEMORANDUM BY NEUMAN, J.: FILED AUGUST 18, 2026 Appellant, Brian John Mahoney, appeals pro se from the post-conviction court’s June 30, 2025 order entered in his three cases, denying his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.1 As Appellant filed his PCRA petition prior to the finality of his judgment of sentence, the petition was a legal nullity for the reasons set forth infra. The PCRA court’s order from which this appeal is taken is, likewise, a legal nullity.2 Accordingly, after careful review, we quash this appeal.
On October 15, 2024, Appellant entered into non-negotiated guilty pleas at each of his three cases and was immediately sentenced, having waived his right to a pre-sentence investigation. At CP-36-CR-0004766-2023, Appellant was sentenced at Count 1, Stalking, 18 Pa.C.S. § 2709.1(a)(2), to one to five years’ incarceration. At CP-36-CR-0000906-2024, Appellant was sentenced at Count 1, Disorderly Conduct, 18 Pa.C.S. § 5503(a)(3), to one (1) year probation; at Count 2, Resisting Arrest, 18 Pa.C.S. § 5104, to two (2) years’ probation; and at Count 3, Terroristic Threats, 18 Pa.C.S. § 2706(a)(1), to a split sentence of time served to twenty-three (23) months’ incarceration
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1 On December 31, 2025, this Court consolidated the appeals sua sponte. See Pa.R.A.P. 513 (addressing the consolidation of multiple appeals). 2 For simplicity, we refer to the lower court as “the PCRA court,” although, for
the reasons discussed infra, we do not accept that Appellant’s February 2025 petition should have been considered a first PCRA petition.
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followed by three (3) years’ probation.3 At CP-36-CR-0000907-2024, Appellant was sentenced at Count 1, Stalking, 18 Pa.C.S. § 2709.1(a)(2), to ten months to three years’ incarceration; at Count 2, Terroristic Threats, 18 Pa.C.S. § 2706(a)(1), to five to ten (10) months’ incarceration, consecutive to Count 1; and at Count 3, Terroristic Threats, 18 Pa.C.S. § 2706(a)(1), to five to ten (10) months’ incarceration, consecutive to Count 2. Appellant’s sentences at CP-36-CR-0004766-2023 and CP-36-CR-0000907-2024 were imposed consecutively to each other, but concurrently with CP-36-CR- 0000906-2024, for an aggregate sentence of 32 to 116 months’ incarceration.
On October 24, 2024, Appellant filed a timely post-sentence motion.
The trial court did not enter an order resolving Appellant’s post-sentence motion within 120 days. See Pa.R.Crim.P. 720(3)(a) (“Except as provided in paragraph (B)(3)(b), the judge shall decide the post-sentence motion, including any supplemental motion, within 120 days of the filing of the motion. If the judge fails to decide the motion within 120 days, or to grant an extension as provided in paragraph (B)(3)(b), the motion shall be deemed denied by operation of law.”). Additionally, the clerk of courts did not enter an order denying the motion by operation of law. See Pa.R.Crim.P. 720(3)(c) (“When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and, as provided in Rule 114,
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3 We note that it is unclear from the record whether these counts are running concurrently or consecutively to each other.
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forthwith shall serve a copy of the order on the attorney for the Commonwealth, the defendant’s attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied. This order is not subject to reconsideration.”).
Appellant did not file a direct appeal. Instead, on February 2, 2025, before the trial court’s deadline to rule on his post-sentence motion as discussed infra, Appellant filed a pro se PCRA petition. The PCRA court did not dismiss Appellant’s PCRA petition as premature, even though Appellant filed it before his post-sentence motion had been ruled upon. On March 4, 2025, the PCRA court appointed counsel to represent Appellant and ordered PCRA counsel to file an amended petition. On June 4, 2025, PCRA counsel filed a petition to withdraw and a “no merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On June 10, 2025, the PCRA court granted counsel’s motion to withdraw and issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a hearing. Appellant filed a pro se motion for an extension of time to reply to the Rule 907 notice, which was denied by the PCRA court on July 1, 2025.4 On June 30, 2025, the PCRA court denied Appellant’s PCRA petition.
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4 In its July 1, 2025 order, the PCRA court noted it had issued an order denying
Appellant’s motion on June 27, 2025, however, the June 27, 2025 order was never received by the filing office.
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Appellant filed timely pro se appeals.5 He and the PCRA court both complied with the requirements of Pa.R.A.P. 1925.
On appeal, Appellant states four issues for our review:
1. Was defense counsel ineffective for failing to provide the proper information to … [Appellant] regarding the District Attorney’s plea offer?
2. Was defense counsel ineffective for failing to recognize that the [trial] court imposed an illegal sentence by running [Appellant]’s indictments consecutive?
3. Did the [trial] court violate Pennsylvania’s merger statute[, 42 Pa.C.S.] § 9765[,] when it sentenced Count[s 1 through 3 of CP-36-CR-0000]907-2024 … all to be r[u]n consecutive[ly], in
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5 We note that while Appellant’s November 6, 2025 notices of appeal were not
filed within thirty (30) days of the June 30, 2025 order dismissing his PCRA petition, there is no indication on the trial court docket that Appellant was served with the June 30, 2025 order. See Pa.R.Crim.P. 114 (B)(1) (“A copy of any order or court notice promptly shall be served on each party’s attorney, or the party if unrepresented.”). Accordingly, we will treat these appeals as being timely filed. See Commonwealth v. Midgley, 289 A.3d 1111, 1117 (Pa. Super. 2023) (“Where the trial court docket in a criminal case does not indicate service on a party or the date of service, we will not quash the appeal or require further proceedings. Rather, we will treat the time in which to take an appeal as never having started to run and treat the appeal as timely.”). Additionally, Appellant’s notices of appeal aver that he timely filed them on July 9, 2025, but they were returned as undeliverable. See, e.g., Notice of Appeal, Docket No. CP-36-CR-0004766-2023, 11/6/25, at unpaginated 1, 6; see also PCRA Court Opinion, 12/2/25, at 1 n.1 (“This Court did not receive the Notice of Appeal until November 6, 2025. Appellant stated it was returned as undeliverable. Given Appellant’s information and the date on the Notice of Appeal, this Court accepted the appeal.”). This bolsters our decision to consider his appeals as timely under the prisoner mailbox rule. See Pa.R.A.P. 121(f) (“A pro se filing submitted by a person incarcerated in a correctional facility is deemed filed as of the date of the prison postmark or the date the filing was delivered to the prison authorities for purposes of mailing as documented by a properly executed prisoner cash slip or other reasonably verifiable evidence.”)
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which case, these indictments should have been r[u]n concurrent[ly]?
4. Was trial counsel [Anthony] Damiano[, Esquire,] ineffective for failing to hold [prior] trial counsel ineffective for failing to challenge [Appellant]’s two arrests in 2019?
Appellant’s Brief at 7 (unnecessary capitalization omitted).
As a preliminary matter, we must first determine whether the PCRA court had jurisdiction to entertain the underlying PCRA petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (stating timeliness of a PCRA petition is a jurisdictional requirement). It is “well settled that there is no generalized equitable exception to the jurisdictional … time bar pertaining to post-conviction petitions.” Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008) (citing Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).
Under the PCRA, any petition “shall be filed within one year of the date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1).
[I]n circumstances in which no timely direct appeal is filed relative to a judgment of sentence, and direct review is therefore unavailable, 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.
Brown, 943 A.2d at 268 (emphasis added). In other words, a “PCRA petition may only be filed after an appellant has waived or exhausted his direct appeal rights.” Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (per curiam) (emphasis in original); accord Commonwealth v. Williams, 215 A.3d 1019, 1022-23 (Pa. Super. 2019); see
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also Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002) (“The PCRA provides petitioners with a means of collateral review, but has no applicability until the judgment of sentence becomes final.”).
“For purposes of [the PCRA], 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.” 42 Pa.C.S. § 9545(b)(3) (emphasis added). When a defendant files a timely post-sentence motion, the finality of the judgment of sentence is governed by Pa.R.Crim.P. 720. As set forth supra, pursuant to Rule 720(B)(3)(c), the trial court must decide the motion within 120 days, or the motion is deemed denied by operation of law. Pa.R.Crim.P. 720(B)(3)(a), (c). The clerk of courts “shall [then] forthwith enter an order on behalf of the court denying the motion by operation of law.” Pa.R.Crim.P. 720(B)(3)(c). When timely post-sentence motions are filed, the judgment of sentence is not final until the appropriate order is entered on the docket. Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa. Super. 2013) (footnote omitted) (citing Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997)).
Here, the trial court sentenced Appellant on October 15, 2024.
Appellant filed a timely post-sentence motion on October 24, 2024. Therefore, the trial court had until Monday, February 24, 2025, to dispose of the post-sentence motion, or the post-sentence motion would be deemed denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a); see
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also Pa.R.J.A. 107(a), (b) (providing that time periods set forth by rule shall exclude the first day and include the last day and setting forth that when the last day falls on a Saturday, Sunday, or legal holiday it shall also be excluded); Pa.R.A.P. 107 (effective Jan. 1, 2024) (“In the construction of the Pennsylvania Rules of Appellate Procedure, the principles set forth in Pa.R.J.A. 104 to 115 shall be observed.”) (footnote omitted). Appellant’s pro se PCRA petition was filed on February 2, 2025, more than twenty days prior to the deadline for a ruling on his post-sentence motion. As such, Appellant’s February 2, 2025 PCRA petition was premature because his judgment of sentence was not final, the time period for him to file a direct appeal had not expired, and the one-year period for him to file a PCRA petition had not commenced. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a); see also Comment to Pa.R.Crim.P. 901 (asserting a “petition for post-conviction relief … is not intended to be a substitute for or a limitation on the availability of appeal or a post-sentence motion”).
Case law is clear that a premature PCRA petition must be quashed.
Commonwealth v. Seay, 814 A.2d 1240, 1241 (Pa. Super. 2003) (stating where “it is patently clear” a “PCRA petition is premature, … we must quash it”) (citing Kubis, 808 A.2d at 198 n.4 (holding the PCRA has no applicability until the judgment of sentence becomes final, and also noting a premature PCRA petition did not constitute a first PCRA petition); Commonwealth v. Neisser, 1968 EDA 2019, unpublished memorandum at 5-6 (Pa. Super. filed Feb. 7, 2020) (finding the PCRA petition was premature where the appellant
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filed it during the 30-day period to file a direct appeal, and, thus, it was filed “prior to his judgment of sentence becoming final, prior to the expiration of the time period to file a direct appeal, and prior to the commencement of the one-year period allowed for filing a PCRA petition”).6, 7 Since there are no exceptions to the PCRA’s time requirements, Appellant’s premature filing was a legal nullity, and the PCRA court lacked authority to consider it. The court should have dismissed it without prejudice towards Appellant’s right to file a PCRA petition once the time for him to file a direct appeal had expired. See Williams, 215 A.3d at 1023; Leslie, 757 A.2d at 985-86 (concluding where defendant had filed a pro se PCRA petition shortly before he filed a direct appeal to this Court, “the trial court should have dismissed the PCRA petition without prejudice as premature”); see also 42
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6Pursuant to Pa.R.A.P. 126(b), non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value. 7 Seay and Neisser were recently reaffirmed by an en banc panel of this Court
in Commonwealth v. Ramsey, ___ A.3d ____, 2026 PA Super 169 (Pa. Super. filed July 31, 2026) (en banc) (quashing a prematurely filed PCRA petition). The Ramsey panel held:
The time limits under the PCRA are jurisdictional, and courts may not create equitable remedies to cure jurisdictional defects. A PCRA petition that is prematurely filed — before the conclusion of direct appeal — is a legal nullity and does nothing to vest jurisdiction in a court or to preserve the filing pending a final order after conclusion of direct appeal.
Id. at *21.
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Pa.C.S. § 9545(b)(3).8, 9 Accordingly, we quash these appeals because we lack jurisdiction to consider the dismissal of Appellant’s prematurely filed PCRA petition.
Appeals quashed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 08/18/2026
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8 We note our review of the record reveals the trial court did not subsequently
enter an order ruling upon Appellant’s post-sentence motion, nor did the clerk of courts enter an order denying Appellant’s post-sentence motion by operation of law as set forth by Rule 720(B)(3)(c). As such, to this date there has been no order triggering Appellant’s right to file a direct appeal. See Borrero, 692 A.2d at 159. We further note that as the appropriate order has not been entered on the docket and Appellant’s judgment of sentence is not finalized, another PCRA petition filed by Appellant on October 23, 2025, is also a legal nullity and should not be considered as Appellant’s first PCRA petition. See Claffey, 80 A.3d at 783. Appellant’s right to counsel for his first PCRA petition remains intact, should he file a PCRA petition once his judgment of sentence becomes final. See Pa.R.Crim.P. 904(C). 9 Moreover, at the time Appellant filed his pro se petition, his trial counsel was
still attached to his case. Pro se filings submitted by counseled defendants are generally also treated as legal nullities because a defendant is not permitted to file his or her own pleadings while still represented by counsel, as hybrid representation is not permitted in Pennsylvania. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010).