Com. v. Mojica, E.

2020 Pa. Super. 272, 242 A.3d 949

• Court: Superior Court of Pennsylvania
• Decided: November 20, 2020
• Docket: 2356 EDA 2019
• Status: Published

Opinion

J-S35013-20

2020 PA Super 272

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDDIE MOJICA : : Appellant : No. 2356 EDA 2019

Appeal from the Order Entered August 1, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005312-2012

BEFORE: BOWES, J., STABILE, J., and COLINS, J.*

OPINION BY BOWES, J.: FILED NOVEMBER 20, 2020

Eddie Mojica appeals from the August 1, 2019 order denying his petition

for relief under the Post-Conviction Relief Act (“PCRA”). We affirm.

In the above-captioned case, Appellant was convicted by a jury of, inter

alia, possession with intent to manufacture or deliver (“PWID”), conspiracy to

commit PWID, and multiple violations of the Uniform Firearms Act (“VUFA”),

following his arrest on April 14, 2012 by members of the Philadelphia Police

Department. Specifically, Appellant and his co-defendant, Juan Davilla

(collectively, the “Defendants”), were convicted of participating in a heroin-

selling operation near the intersection of Hope Street and Somerset Street in

Philadelphia, Pennsylvania. Police observed the Defendants engage in

multiple narcotics transactions. At the time of the Defendants’ arrest,

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* Retired Senior Judge assigned to the Superior Court. J-S35013-20

individual packets of branded heroin were found on Appellant’s person. Two

handguns were also recovered from Mr. Davilla’s nearby vehicle.

On September 20, 2013, Appellant was sentenced to an aggregate term

of ten to twenty years of incarceration, with seven years of probation following

his release. On October 1, 2013, Appellant filed a timely, counseled motion

for reconsideration of sentence, arguing that the imposition of the statutory

maximum for PWID was inappropriate.

While this post-sentence motion was still pending before the trial court,

Appellant filed a pro se motion for relief pursuant to the Post-Conviction Relief

Act (“PCRA”). See Appellant’s Pro Se PCRA Petition, 10/17/13, at 1-9. This

petition cursorily raised arguments that we discern as attacking the weight

and sufficiency of the evidence adduced by the Commonwealth. See

Appellant’s Pro Se PCRA Petition, 10/17/13, at 2-3, 5-6 (arguing the

Commonwealth failed to establish Appellant had access to, or knowledge of,

the firearms found in Mr. Davilla’s truck, and asserting that Appellant was

merely purchasing heroin for personal use on the day in question).

The next day, the trial court entered an order denying Appellant’s

counseled motion for reconsideration of his sentence. No further action was

taken on Appellant’s case until May 16, 2014, when PCRA counsel was

appointed to represent Appellant.1 Our review of the docket indicates that

Appellant’s first appointed PCRA counsel took no action on Appellant’s behalf, ____________________________________________

1 It is unclear from the record when Appellant’s attorney-client relationship with trial counsel ended, or the attendant circumstances.

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and never filed an amended PCRA petition on his behalf. On February 9, 2015,

Appellant’s first PCRA counsel was removed by the PCRA court.

Replacement PCRA counsel was appointed on February 11, 2015, and

she filed an amended PCRA petition on Appellant’s behalf seeking

reinstatement of his direct appellate rights nunc pro tunc on the grounds that

trial counsel rendered ineffective assistance by failing to file an appeal that

Appellant allegedly requested in writing. See Appellant’s Amended PCRA

Petition, 1/12/16, at 5-6. On November 18, 2017, replacement PCRA counsel

filed a supplemental petition asserting that Appellant’s sentence was illegal.

On November 20, 2018, second replacement PCRA counsel was appointed.

On August 1, 2019, the PCRA court held an evidentiary hearing on

Appellant’s PCRA petition. Therein, Appellant testified that he requested that

his trial counsel filed an appeal on his behalf, but counsel advised him to await

the result of his then-pending motion for sentence reconsideration. See N.T.

PCRA Hearing, 8/1/19, at 5-6, 10. Appellant testified that he filed the PCRA

in a misguided attempt to get the attention of the trial court. Specifically,

Appellant testified that he wanted to file an appeal, and that he filed the pro

se petition on the advice of other prisoners, including Mr. Davilla. Id.

(testifying that Mr. Davilla and other unidentified “people” at SCI-Graterford

had advised Appellant to file a pro se PCRA petition).

Trial counsel testified at the PCRA hearing that while he had discussed

an appeal with his client, Appellant had only requested a motion for

reconsideration during his tenure as counsel. Id. at 20. Trial counsel also

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testified that he was never made aware of the pro se PCRA petition filed by

Appellant in October 2013:

I had no knowledge when he filed the pro se PCRA that he was filing that. And, if he wanted to file a direct appeal, I would think that he could have told [me he] wanted a direct appeal or he could have filed a pro se notice of appeal for direct appeal. He chose to do a PCRA. I don’t know why he would do that.

Id. at 26.

At the conclusion of the hearing, the PCRA court entered an order

denying the “defense petition to reinstate appellate rights [nunc] pro tunc.”

See Order, 8/1/19, at ¶ 1. Appellant filed a timely, counseled notice of appeal.

Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. In relevant

part, the PCRA court concluded that trial counsel had properly spoken with

Appellant concerning his appellate rights, but had never received any concrete

directive from Appellant. See PCRA Court Opinion, 11/20/19, at 3.

Appellant presents the following issue for our review: “Whether the

lower court erred in dismissing the [PCRA] petition claiming ineffective

assistance of counsel for failure to file a direct appeal[?]” Appellant’s brief at

7. Our standard and scope of review in this context are well-established:

When reviewing the propriety of an order pertaining to PCRA relief, we consider the record in the light most favorable to the prevailing party at the PCRA level. This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. We grant great deference to the PCRA court’s findings that are supported in the record and will not disturb them unless they have no support in the certified record. However we afford no such deference to the post-conviction court’s legal conclusions.

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We thus apply a de novo standard of review to the PCRA [c]ourt’s legal conclusions.

Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa.Super. 2018) (internal

citations and quotation marks omitted).

At the outset of our analysis, we note that this proceeding presents a

problematic procedural posture in that Appellant’s pro se PCRA petition was

filed before Appellant’s judgment of sentence became final,2 and while

Appellant was still represented by trial counsel.3 As such, we note that the

PCRA court was mistaken in treating Appellant’s pro se PCRA petition as a

valid pleading under Pennsylvania law, and would ordinarily call for this Court

to vacate the order adjudicating such claims. See, e.g., Commonwealth v.

Willis, 29 A.3d 393, 400 (Pa.Super. 2011) (vacating order entered on PCRA

petition that violated hybrid representation); Commonwealth v. Leslie, 757

A.2d 984, 985 (Pa.Super. 2000) (vacating order entered on prematurely filed

PCRA petition). The PCRA court should have dismissed this pro se filing

2 See Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa.Super. 2013) (“[W]hen post-sentence motions are filed, the judgment of sentence does not become final until those motions are decided.”); see 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 becomes final.”).

3 Our Supreme Court has explicitly extended Pennsylvania’s prohibition against hybrid representation into the realm of the PCRA. See Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) (“We will not require courts considering PCRA petitions to struggle through the pro se filings of defendants when qualified counsel represents those defendants.”).

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without prejudice to Appellant’s ability to re-file at an appropriate juncture, or

simply regarded the filing as a legal nullity.

Moreover, Pa.R.Crim.P. 576(A)(4) required that a time-stamped copy of

this pro se filing be forwarded to both Appellant’s counsel and the

Commonwealth.4 However, it is not possible to confirm that time-stamped

copies of Appellant’s pro se PCRA petition were distributed to the parties by

the clerk of courts as mandated by Pa.R.Crim.P. 576(A)(4) (requiring the clerk

of courts to forward a time-stamped copy of all pro se filings to the parties’

attorneys within ten days of receipt). Both the docket and certified record are

silent as to whether this service ever occurred. Trial counsel also confirmed

in his testimony that he was unaware of Appellant’s petition at the time of

filing and never received a contemporaneous copy of it. See N.T. PCRA

Hearing, 8/1/19, at 21, 24-26.

These issues are not merely formalistic. As with all PCRA petitions,

Appellant must satisfy the jurisdictional requirements underlying the PCRA,

which includes timeliness. See Commonwealth v. Hackett, 56 A.3d 978,

983 (Pa. 2008) (timeliness of a PCRA petition is a jurisdictional requirement).

4 While Rule 576(A)(4) requires the clerk of courts to accept and docket pro se filings, the commentary to the rule strongly suggests that these filings have no substantive effect upon the proceedings. See Pa.R.Crim.P. 576, at cmt. (“The requirement that the clerk time stamp and make docket entries of the filings in these cases only serves to provide a record of the filing, and does not trigger any deadline nor require any response.”).

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Specifically, all PCRA petitions must filed “within one year of the date that the

judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1).

In the intervening months following Appellant’s pro se filing, his

sentence became final and his window in which to file a valid PCRA petition

expired. See 42 Pa.C.S. § 9545(b)(1). Due to the PCRA court’s

misapprehension concerning the validity of Appellant’s pro se petition and the

violation of Rule 576(A)(4), Appellant’s amended petition was not actually filed

until it was technically untimely under the PCRA.5

While acknowledging the significant procedural issues posed by

Appellant’s initial pro se petition, we emphasize that these faults are directly

attributable to the PCRA court’s error. This misstep was further exacerbated

by the failure of the clerk of courts to provide a copy of this pro se filing to the

parties pursuant to Rule 576(A)(4).6 Under these circumstances, we conclude

that it would be unjust to consider Appellant’s pro se PCRA petition a legal

nullity. See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super.

2015) (holding that a defendant’s pro se post-sentence motion was not a legal

nullity where there was significant confusion and delay in appointing counsel,

and an “administrative breakdown” led to the filing of an untimely appeal).

5 Given the errors described above, this oversight is entirely understandable.

6 See Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075 (Pa.Super. 2004) (“Cases involving a breakdown in court operations often involve a failure on the part of the prothonotary to fulfil his or her ministerial duties[.]”.

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Furthermore, “[o]nce counsel has been appointed for an indigent

petitioner, the rules of criminal procedure further contemplate after reviewing

the certified record appointed counsel may . . . elect to raise additional issues

beyond those which the petitioner raised in the initial pro se filing.”

Commonwealth v. Padden, 783 A.2d 299, 308 (Pa. 2001). Thus, PCRA

courts are invested with great discretion to permit the amendment of a post-

conviction petition. See Commonwealth v. Flanagan, 854 A.2d 489, 499

(Pa. 2004); Pa.R.Crim.P. 905(a) (“The judge may grant leave to amend or

withdraw a petition for post-conviction collateral relief at any time.

Amendment shall be freely allowed to achieve substantial justice.”).

Under these circumstances, we will deem that the numerous entries of

appearances and PCRA filing extensions entered by the PCRA court between

May 15, 2014, and October 30, 2015, properly extended Appellant’s time in

which to file an amended petition. See Pa.R.Crim.P. 905(a); see also

Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa.Super. 2003) (holding that

where a PCRA court denied a petition to amend, but later accepted and

considered the amended petition on its merits, the PCRA court “effectively

allowed Appellant to amend his petition to include those issues presented in

the supplement” pursuant to Rule 905(a)). As such, we will address the merits

of this appeal.

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Instantly, Appellant’s sole appellate claim7 concerns the alleged

ineffectiveness of trial counsel. See Appellant’s brief at 12-14. The following

legal principles will guide our review:

When reviewing claims of ineffective assistance of counsel, courts must presume that counsel provided effective assistance. To overcome this presumption, the vast majority of cases, decided under [Strickland v. Washington, 466 U.S. 668 (1984)], require the defendant to plead and prove that (1) the claim has arguable merit; (2) counsel lacked any reasonable basis for the action or inaction; and (3) the petitioner suffered prejudice as a result.

Commonwealth v. Diaz, 226 A.3d 995, 1008 (Pa. 2020) (internal citations

omitted). “Failure to satisfy any prong of the test will result in rejection of the

appellant’s ineffective assistance of counsel claim.” Commonwealth v.

McGarry, 172 A.3d 60, 70 (Pa.Super. 2017).

Our Supreme Court has held that where “there is an unjustified failure

to file a requested direct appeal, the conduct of counsel falls beneath the range

of competence demanded of attorneys in criminal cases” and denies the

accused the assistance of counsel that is guaranteed by the Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Pennsylvania

Constitution. Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999).

7 Although Appellant also raised claims regarding the alleged illegality of his sentence in his counseled “Supplemental Petition,” no argument on this issue appears in Appellant’s brief. As such, this claim is waived. See Pa.R.A.P. 2119(a); see also Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014) (“As Appellant has cited no legal authorities nor developed any meaningful analysis, we find this issue waived for lack of development.”).

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Such an oversight constitutes prejudice and per se ineffectiveness under the

PCRA. Id. However, “[b]efore a court will find ineffectiveness of trial counsel

for failing to file a direct appeal, Appellant must prove that he requested

an appeal and that counsel disregarded this request.” Commonwealth

v. Touw, 781 A.2d 1250, 1254 (Pa. 1999) (emphasis added).

Instantly, Appellant and trial counsel presented conflicting evidence

regarding this claim at the PCRA hearing. While Appellant testified that he

had requested trial counsel file a direct appeal on his behalf, he could offer

nothing aside from an uncorroborated claim to that effect. See N.T. PCRA

Hearing, 8/1/19, at 5-6, 10. Trial counsel testified as follows:

A. My recollection was [Appellant] did not ask for an appeal and that he asked for the reconsideration, which I did file.

Q. Okay. So, did someone on Mr. Mojica’s behalf ever ask you to file an appeal?

A. No.

Q. And, have you ever received any writing from Mr. Mojica asking about an appeal?

Id. at 20.

The PCRA court also had the content of Appellant’s pro se PCRA petition

before it in considering Appellant’s claim for nunc pro tunc relief. However, it

ultimately chose to credit trial counsel’s testimony above that of Appellant.

See Rule 1925(a) Opinion, 11/20/19, at 3 (“This [c]ourt found [trial counsel’s]

testimony credible and properly dismissed Appellant’s PCRA petition.”).

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Appellant’s arguments amount to a bare assertion that we should

disregard the credibility determinations of the PCRA court. See Appellant’s

brief at 13. However, we are bound by the credibility determinations of the

PCRA court, particularly where, as here, those findings are supported by the

record. Accord Commonwealth v. Medina, 92 A.3d 1210, 1214-15

(Pa.Super. 2014) (“The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court.”).

Accordingly, we are constrained to conclude that Appellant has failed to

establish that he requested trial counsel file a direct appeal on his behalf. As

such, no relief is due on his claim for relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/20/20

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