J-S52037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KHALID A. BRAKE

                            Appellant                  No. 807 EDA 2014


               Appeal from the PCRA Order September 29, 2011
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001675-2008


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED AUGUST 29, 2014

        Appellant, Khalid A. Brake, purports to appeal nunc pro tunc from the

order entered in the Chester County Court of Common Pleas, denying his
                                                                               1
second petition brought pursuant to the Post Conviction Relief

We remand for further proceedings.

        The relevant facts and procedural history of this appeal are as follows.

A jury convicted Appellant on January 14, 2009, of three counts of indecent

assault and one count each of rape, statutory sexual assault, sexual assault,

and corruption of minors. On April 22, 2009, the court sentenced Appellant

to an aggregate term of eight and one-

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Former Justice specially assigned to the Superior Court.
J-S52037-14


imprisonment. This Court affirmed the judgment of sentence on November

24, 2010, and Appellant did not seek further review with the Pennsylvania

Supreme Court.

       On January 5, 2011, Appellant timely filed first PCRA petition pro se,

alleging trial counsel was ineffective for failing to have the court reporter

record sidebars, closing arguments, and jury instructions.       Appellant also

claimed the court imposed an illegal sentence. The court appointed counsel,

                 -                           Commonwealth v. Turner, 518

Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc).       Appellant filed a pro se response to the

   -

of its intent to dismiss the petition without a hearing, pursuant to

Pa.R.Crim.P. 907. Appellant did not respond to the Rule 907 notice, and the

court denied PCRA relief on June 6, 2011.          That same day, the court

permitted PCRA counsel to withdraw.         Appellant did not file a notice of

appeal.

       On August 12, 2011, Appellant filed a second and timely pro se PCRA

petition.   In it, Appellant argued trial counsel was ineffective for failing to

present an opening statement. Appellant also re-raised his claim regarding



August 24, 2

issues were waived or previously litigated. On August 30, 2011, the court


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issued Rule 907 notice. Appellant filed a pro se response to the Rule 907

notice on September 26, 2011. On September 29, 2011, the court denied

PCRA relief.

      Appellant timely filed a pro se notice of appeal on October 27, 2011.

                                                                            o

represent Appellant on appeal.      Appellate counsel subsequently filed on



pursuant to Pa.R.A.P. 1925(b). On January 3, 2012, appellate counsel filed

a motion to withdraw representation, which the PCRA court granted on

January 20, 2012. Prior to his withdrawal, appellate counsel had yet to file a

brief with this Court for the pending appeal.

      On April 10, 2012, this Court remanded the matter as follows:

         AND NOW, this 10th day of April, 2012, counsel having
         failed to file a brief on behalf of Appellant, despite being so
         ordered, this appeal is REMANDED for 30 days for a
         determination as to whether counsel has abandoned
         [A]ppellant and to take further action as required to
         protect [A]
         shall notify this Court, in writing, within the 30-day period,
         of all findings and actions taken thereon. Jurisdiction is
         retained.

(Order, entered 4/10/12, at 1).      On April 27, 2012, the PCRA court re-

appointed appellate counsel and directed him to take the necessary steps to



      On June 5, 2012, appellate counsel filed a motion for remand with this

                                             e 1925(a) opinion did not address


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Appellate counsel asked this Court to remand the matter for the PCRA court

to prepare an opinion addressing the issues raised in the counseled Rule

1925(b) statement. This Court granted the motion and remanded the case

on June 26, 2012. On August 27, 2012, the PCRA court filed a supplemental

opinion. Thereafter, appellate counsel failed to file a brief with this Court.

This Court dismissed the appeal on December 21, 2012.2

       On March 3, 2014, Appellant submitted a pro se filing styled as a

                     nunc pro tunc

September 29, 2011 order dismissing his second PCRA petition. The filing

did not actually resemble a notice of appeal; rather, it included arguments



pro se was not his choice. Due to this case essentially being stuck in limbo,

[A]ppellant has no choice but to go pro se       Pro Se Notice of Appeal Nunc

Pro Tunc

27, 2012 order directing appellate counsel to represent Appellant throughout

the PCRA appeal process. Appellant also recognized appellate c



____________________________________________


2

Court, within 10 days, a certification that the client has been notified of this
                                                                        cket for
No. 2885 EDA 2011 does not indicate counsel filed any certification of notice
as directed.



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5, 2012 motion for remand.      Appellant seemed unaware, however, of this




         resulted in the suspension of these matters for over two
         years, with no indication of this matter being resolved. As

                           al, this case is essentially stuck in limbo.
         Notice to go forward on appeal to the Superior Court to be
         heard pro se but not by choice.

(Id. at 2).   In the remainder of the filing, Appellant re-raised the claims

included in his prior PCRA petitions.   Appellant also complained that PCRA



pro se filing, the PCRA court filed a Rule 1925(a) opinion on May 7, 2014,

and it forwarded the certified record to this Court on May 12, 2014.




Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007), appeal

denied, 596 Pa. 715, 944 A.2d 756 (2008) (quoting Commonwealth v.

Johnson, 803 A.2d 1291, 1293 (Pa.Super. 2002)). Any petition for post-

conviction collateral relief will generally be considered a PCRA petition if the

petition raises issues for which the relief sought is the kind available under

the PCRA. See generally Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d

214 (1999); Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638

(1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining


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collateral relief and encompasses all other common law and statutory

remedies for same purpose).

      Here, Appellant styled the current pro se filing a notice of appeal nunc

pro tunc. Nevertheless, the filing advances ineffective assistance of counsel

claims. These claims are cognizable under the PCRA. See 42 Pa.C.S.A. §

9543(a)(2)(ii) (providing PCRA eligibility for certain claims, including those

challenging the constitutionality of trial proceedings and asserting ineffective

assistance of counsel). The PCRA court should have treated the filing as a

petition for collateral relief under the PCRA, because the time for filing a



under the PCRA. See Fahy, supra; Peterkin, supra; Fowler, supra; 42

Pa.C.S.A. § 9542.

      Our analysis does not end here, however, as the timeliness of a PCRA

petition is a jurisdictional requisite. Commonwealth v. Hackett, 598 Pa.

350, 956 A.2d 978 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174

L.Ed.2d 277 (2009). Pennsylvania law makes clear no court has jurisdiction

to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa.

500, 508, 837 A.2d 1157, 1161 (2003).          The PCRA requires a petition,

including a second or subsequent petition, to be filed within one year of the

date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A



discretionary review in the Supreme Court of the United States and the


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Supreme Court of Pennsylvania, or at the expiration of time for seeking



      Generally, to obtain merits review of a PCRA petition filed more than



allege and prove at least one of the three timeliness exceptions.        See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii). To invoke an exception, the petitioner must

allege and prove:

         (i) the failure to raise the claim previously was the result
         of interference by government officials with the
         presentation of the claim in violation of the Constitution or
         laws of this Commonwealth or the Constitution or laws of
         the United States;

         (ii) the facts upon which the claim is predicated were
         unknown to the petitioner and could not have been
         ascertained by the exercise of due diligence; or

         (iii) the right asserted is a constitutional right that was
         recognized by the Supreme Court of the United States or
         the Supreme Court of Pennsylvania after the time period
         provided in this section and has been held by that court to
         apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-

within one year of the expiration of direct review, or not eligible for one of

the three limited exceptions, or entitled to one of the exceptions, but not

filed within 60 days of the date that the claim could have been first brought,

the trial court has no power to address the substantive merits of a

                             Commonwealth v. Gamboa-Taylor, 562 Pa.

70, 77, 753 A.2d 780, 783 (2000).


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      Instantly, the court sentenced Appellant on April 22, 2009. This Court

affirmed the judgment of sentence on November 24, 2010, and Appellant did



final thirty days later, on December 24, 2010, upon expiration of the time to

file a petition for allowance of appeal with the Pennsylvania Supreme Court.

See 42 Pa.C.S.A. § 9545(b)(3). Appellant submitted his current PCRA filing

on March 3, 2014, more than three years after his judgment of sentence



was patently untimely.

      Although the pro se filing did not address the timeliness requirements




Appellant did not receive proper notice of the dismissal of his prior appeal, it

might excuse his failure to act sooner.        Moreover, the docket entries

c



pro se status on appeal.

      Additionally, the PCRA court acknowledges Appellant might be entitled

to some relief:

         [U]nder the instant facts, our reappointment of appellate

         appears to us to have imposed upon counsel the obligation
         to provide meaningful representation to Appellant
         throughout the appeal process. Although Appellant did not
         request the [PCRA] court to reinstate his appellate rights,

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            both the trial court and the appellate court have
            jurisdiction to decide this question. Generally, a

            of a nunc pro tunc appeal if it is filed within a reasonable
            time after the breakdown occurs. Accordingly, under the
            instant facts, while we recommend Appellant be
            granted the right to appeal nunc pro tunc
            we believe the appeal is not expeditiously



(See PCRA Court Opinion, filed May 7, 2014, at 6) (internal citations

omitted) (emphasis added).

          Based upon the foregoing, we conclude a remand is necessary for the

PCRA court to clarify the record and determine the status of appointed

counsel.      The PCRA court is in the best position to receive and evaluate

evidence regarding the timeliness of Appella

relief.     See Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161

(1999) (holding reviewing court is error correcting court and cannot evaluate

claims that trial court did not consider; Superior Court has no original

jurisdiction in PCRA proceedings; if record is insufficient to adjudicate

allegations, case should be remanded for further inquiry). Upon remand, the

court must decide whether: (1) any of the three exceptions to the time-bar

                                                ) his appellate rights should be

reinstated nunc pro tunc

Appellant should have new counsel appointed or proceed pro se.

          Case remanded for further proceedings. Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2014




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