J-S53028-14

                             2014 PA Super 208

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

VARIAN C. CALLAHAN,

                        Appellant                  No. 273 WDA 2014


             Appeal from the PCRA Order of January 14, 2014
              In the Court of Common Pleas of Mercer County
            Criminal Division at No(s): CP-43-CR-0000008-2009

BEFORE: DONOHUE, OLSON AND PLATT,* JJ.

OPINION BY OLSON, J.:                        FILED SEPTEMBER 23, 2014

      Appellant, Varian C. Callahan, appeals from the order entered on

January 14, 2014 denying his petition filed under the Post-Conviction Relief

                                    -9546. We affirm.

      This Court has previously summarized the factual background of this

case as follows:

      On December 17, 2008, Appellant approached the victim as she
      was taking her three-year-old son to day care at approximately
      7:20 a.m. Appellant told the victim that he had a gun and
      demanded that she give him her money. The victim did not see
      a weapon and informed Appellant that she did not have any
      money. Appellant said that she had money in her purse or a
      bank account. The victim pleaded with Appellant not to harm
      her or her son. Appellant said that he would not hurt her if she
      turned over her money. The victim then walked with Appellant
      to her vehicle, where she removed [$200.00]. Appellant fled
      with the money, and the victim took her son into day care and
      asked a teacher to call the police.




* Retired Senior Judge assigned to the Superior Court.
J-S53028-14

        Police transported the victim to the police station where she
        provided a statement. The victim also informed police that her
        assailant was wearing a black winter hat, a gray coat, and had a
        goatee. Police broadcast this information via their police radio.
        During the police interview with the victim, an officer observed a
        person matching the description of the perpetrator, whom he
        identified by name as Varian Callahan. The officer interviewing
        the victim, Officer Ryan Chmura, then left the police station in
        his cruiser to investigate the potential suspect. A 911 dispatcher
        also relayed that there was an outstanding arrest warrant for
        Appellant.

        Officer Chmura located Appellant walking approximately six
        blocks from the day care and advised him of the outstanding
        warrant and that he was under arrest. Appellant fled before
        being tackled by Officer Chmura. He and two other officers

        while Appellant continued to resist. Police then dry stunned him
        with a taser. Appellant did not have a weapon or any money on
        his person. The dry stun occurred at 7:56 a.m., approximately
        one-
        arrest, Officer Chmura returned to the police station and
        compiled an eight person photographic array.          The victim
        immediately identified Appellant as her attacker and
        subsequently identified him at trial.     Appellant presented a
        teenage relative as an alibi witness.

Commonwealth          v.   Callahan,   69    A.3d   1287   (Pa.   Super.     2013)

(unpublished memorandum), at 1-3 (footnote omitted).

        The procedural history of this case is as follows. On April 19, 2010,

Appellant was convicted of robbery,1 theft by unlawful taking,2 making

terroristic threats,3 and recklessly endangering another person.4 On June 3,


1
    18 Pa.C.S.A. § 3701(a)(1)(ii).
2
    18 Pa.C.S.A. § 3921(a).
3
    18 Pa.C.S.A. § 2706(a)(1).
(Footnote Continued Next Page)


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imprisonment. Appellant did not file a post-sentence motion, but did file a

direct appeal with this Court in which he argued that the evidence was

                                       ict was against the weight of the evidence.



finding that Appellant waived his two issues by failing to file a post-sentence

motion raising the weight of the evidence claim and failing to include

citations to relevant authority regarding the sufficiency of the evidence

claim.   Commonwealth v. Callahan, 23 A.3d 569 (Pa. Super. 2010)

(unpublished memorandum).

      Appellant filed a timely pro se PCRA petition alleging that his trial

counsel5 was ineffective for failing to file a post-sentence motion, failing to

preserve his sufficiency of the evidence claim, failing to call an additional

alibi witness, and failing to pursue a motion to suppress.6 The PCRA court

appointed counsel and held an evidentiary hearing. On March 22, 2012, the

PCRA court granted Appellant relief on his claims that trial counsel was

ineffective for failing to file a post-sentence motion and failing to preserve

                       _______________________
(Footnote Continued)

4
  18 Pa.C.S.A. § 3705.
5
  Appellant had the same counsel for trial and his direct appeal. We refer to
him throughout this opinion as trial counsel.
6
   Appellant originally filed a motion to suppress the photo array
identification. However, prior to the suppression hearing he withdrew the
motion to suppress.



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J-S53028-14

his sufficiency of the evidence claim.7 Therefore, the PCRA court reinstated

                                -sentence motion and his right to file a direct

appeal nunc pro tunc

that trial counsel was ineffective for failing to call an additional alibi witness

and for failing to pursue the motion to suppress. Instead of filing a post-

sentence motion and a direct appeal, PCRA counsel chose to appeal the



                                itional alibi witness. We affirmed that order on

March 11, 2013. Commonwealth v. Callahan, 69 A.3d 1287 (Pa. Super.

2013) (unpublished memorandum).

        Appellant then filed a second pro se PCRA petition on April 30, 2013.8

Counsel was appointed and filed an amended PCRA petition. That petition



post-sentence motion and direct appeal nunc pro tunc and for failing to

                                                                    . The PCRA



petition. The PCRA court concluded that PCRA counsel was not ineffective

7
    See Commonwealth v. Fink, 24 A.3d 426, 434 (Pa. Super. 2011).
8
    Appellant signed his PCRA petition on April 30, 2013. The postmark on the

depending on which day the envelope was actually placed in the stream of
prison mail, the petition was filed on April 30, May 1, or May 2, 2013. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).                     For
convenience, we use the date most advantageous to Appellant, April 30,
2013.



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J-S53028-14

for failing to file a post-sentence motion nunc pro tunc, for failing to file a

direct appeal nunc pro tunc



suppression motion.     The PCRA court concluded all three issues lacked

arguable merit. This timely appeal followed.9

      Appellant presents one issue for our review:


      [second PCRA] petition alleging that trial counsel was ineffective
      for failing to file post-sentence motions dealing with the
      sufficiency of the evidence and the weight of the evidence and
      also for failing to file a direct appeal pertaining to these issues?




PCRA petition must be addressed. Even where neither party nor the PCRA

court have addressed the matter, it is well-settled that we may raise it sua

sponte since a question of timeliness implicates the jurisdiction of our

         Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012),

appeal denied, 49 A.3d 442 (Pa. 2012) (internal quotation marks and

citation omitted).   Thus, we shall forego assessment of the merits of the




9
  On February 8, 2014, the PCRA court ordered Appellant to file a concise
statement of errors complained                                         See
Pa.R.A.P. 1925(b). On March 6, 2014, Appellant filed his concise statement.
On March 20, 2014, the PCRA court issued its Rule 1925(a) opinion.
                                                                   nt.




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J-S53028-14

whether Appellant timely filed his PCRA petition and, if not, whether he has



the timeliness of a PCRA petition is a question of law, our standard of review

is de novo and our scope of review is plenary.      See Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).




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



PCRA petitio                                         nunc pro tunc in his first

PCRA petition, a subsequent PCRA petition will be considered a first PCRA

                                     Commonwealth v. Turner, 73 A.3d

1283, 1286 (Pa. Super. 2013), appeal denied, 91 A.3d 162 (Pa. 2014)

(citation omitted); Commonwealth v. Donaghy, 33 A.3d 12, 14 n.5 (Pa.

Super. 2011), appeal denied, 40 A.3d 120 (Pa. 2012).



sentence became final. There appear to be two possibilities. Under general



2012, the last day Appellant could have filed his direct appeal nunc pro tunc.

See Turner, 73 A.3d at 1286 (time for filing PCRA restarted 30 days after



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J-S53028-14

order reinstating direct appeal rights nunc pro tunc).10       However, if




part his first PCRA petition, then his judgment of sentence became final on

April 10, 2013. See Pa.R.A.P. 1113(a).



23, 2012.   The plain language of the PCRA provides that a judgment of

sentence becomes final at the conclusion of direct review or when the time

for seeking direct review expires. See 42 Pa.C.S.A. § 9545(b)(3). In fixing

the date upon which a judgment of sentence becomes final, the PCRA does

not refer to the conclusion of collateral review or the time for appealing a

collateral review determination.   Thus, the plain language of the PCRA

statute shows that a judgment of sentence becomes final immediately upon

expiration of the time for seeking direct review, even if other collateral

proceedings are still ongoing. As this result is not absurd or unreasonable,

we may not look for further manifestations of legislative intent.       See

Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013) (internal quotation

marks omitted)            look beyond the plain language of the statute only




10

appeal nunc pro tunc was entered on March 22, 2012. Appellant had 30
days to file his notice of appeal. See Pa.R.A.P. 903(a). As from that date,
the 30th day fell on Saturday, April 21, 2012, Appellant had until Monday,
April 23, 2012 to file his notice of appeal. See 1 Pa.C.S.A. § 1908.



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J-S53028-14

when words are unclear or ambiguous, or the plain meaning would lead to a




on April 23, 2012, we next consider whether the fact that Appellant was

unable to file a PCRA petition until April 11, 2013 (30 days after this Court



our timeliness analysis. We hold that it does not. Under Commonwealth

v. Lark, 746 A.2d 585, 588 (Pa. 2000), Appellant was precluded from filing

a PCRA petition prior to April 11, 2013 because his appeal of the partial

denial of his first PCRA petition was still pending.   As our Supreme Court

explained:

                                                              a
     subsequent PCRA petition cannot be filed until the
     resolution of review of the pending PCRA petition by the
     highest state court in which review is sought, or upon the
     expiration of the time for seeking such review. If the
     subsequent petition is not filed within one year of the
     date when the judgment became final, then the petitioner
     must plead and prove that one of the three exceptions to
     the time bar . . . applies.

Lark, 746 A.2d at 588 (emphasis added; footnote, internal quotation marks,

and citation omitted).     Thus, Lark precluded Appellant from filing a

subsequent PCRA petition until his appeal of the partial denial of his first

PCRA petition became final.      Lark articulates no preclusive effect on

                             -sentence motions or file a direct appeal nunc




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J-S53028-14

pro tunc

the rule in Lark has no impact on our timeliness analysis.11

                               filing a PCRA petition is not subject to the

doctrine of equitable tolling; instead, the time for filing a PCRA petition can

be extended only if the PCRA permits it to be extended, i.e., by operation of

                                                     Commonwealth v. Ali,

86 A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation



                                                     -

Commonwealth v. Robinson, 837 A.2d 1157, 1157 (Pa. 2003), citing

Commonwealth v. Baroni, 827 A.2d 419 (Pa. 2003); Commonwealth v.

Rienzi, 827 A.2d 369 (Pa. 2003); Commonwealth v. Eller, 807 A.2d 838

(Pa. 2002); Commonwealth v. Hall, 771               A.2d 1232    (Pa. 2001);

Commonwealth        v.   Murray,    753    A.2d    201,   202    (Pa.   2000);

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). Appellant has not



applicable in this case. Accordingly, we cannot extend the time for filing a

PCRA petition, even in these sui generis circumstances, for equitable

reasons.

11
   Given the unusual or unpredictable consequences that could emerge in
these instances, it is preferable that an appellate court refrain from merits
review where relief in the form of reinstatement of direct appeal rights nunc
pro tunc has been granted. See Donaghy, 33 A.3d at 14 n.5, citing
Commonwealth v. Miller, 868 A.2d 578, 580 (Pa. Super. 2005).



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J-S53028-14




Thus, he was required to file his PCRA petition on or before April 23, 2013.

He did not file his PCRA petition until April 30, 2013, one week late.



three statutory exceptions to the timeliness requirement. As such, the PCRA



Accordingly, the PCRA court correctly denied relief. Therefore, we affirm the

order of the PCRA court denying Appellant relief.12 See Commonwealth v.

Charleston, 94 A.3d 1012, 1028 (Pa. Super. 2014) (citation omitted)



       Order affirmed.

12
     Even if we concluded that Appe

                                 per se ineffectiveness, a defendant must
                                                      Commonwealth v.
Markowitz, 32 A.3d 706, 715 (Pa. Super. 2011), citing Commonwealth v.
Touw, 781 A.2d 1250 (Pa. Super. 2001). In this case, the PCRA court

sufficiency and weight [in his appeal to the Superior Court. PCRA] counsel
had discussed those issues with [Appellant] prior to the [first]

Findings of Fact and Conclusions of Law, 1/14/14, at 5 (paragraph number
omitted). This finding was supported by the record. PCRA counsel testified
that, after consultation, Appellant agreed to waive his sufficiency and weight
claims. See N.T. 1/14/14, at 5. Thus, Appellant failed to prove that he
asked his first PCRA counsel to file a post-sentence motion and direct
appeal. As such, he failed to prove that his first PCRA counsel was per se
ineffective for failing to file a direct appeal and instead pursuing the appeal
                                                           im based upon trial




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J-S53028-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2014




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