J-S77040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 RODERICK SIMS                          :
                                        :   No. 371 MDA 2017
                     Appellant

               Appeal from the PCRA Order January 17, 2017
     In the Court of Common Pleas of Union County Criminal Division at
                      No(s): CP-60-CR-0000385-2008


BEFORE:    BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                 FILED DECEMBER 21, 2017

      Appellant appeals from the order entered in the Court of Common Pleas

of Union County dismissing his third petition filed under the Post Conviction

Relief Act, 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

      On September 27, 2008, Appellant shot and killed Charity Sprickler and

threatened two other individuals who were in the residence with Ms. Sprickler.

On October 12, 2012, a jury convicted Appellant of burglary, second-degree

murder, and Terroristic Threats. On November 2, 2012, he was sentenced to

life imprisonment.

      On September 11, 2013, this Court affirmed judgment of sentence, and

the Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on September 22, 2014.         Accordingly, Appellant’s judgment of

sentence became final ninety days later, on December 21, 2014, upon the


____________________________________
* Former Justice specially assigned to the Superior Court.
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expiration of the 90-day period in which to file a petition for writ of certiorari

to the United States Supreme Court. See Commonwealth v. King, 999 A.2d

598, 599 n. 1 (Pa.Super. 2010) (noting judgment of sentence becomes final

90 days after Pennsylvania Supreme Court denies allocator as defendant has

90 days from said denial to file petition for writ of certiorari to United States

Supreme Court).

       Therefore, Appellant had until December 21, 2015, to file a timely PCRA

petition. See 42 Pa.C.S.A § 9545(b)(1) (a PCRA petition shall be filed within

one year of the date the judgment becomes final). Appellant filed the present

pro se PCRA petition, his third,1 on August 12, 2016, over eight months

beyond the PCRA filing deadline.          The PCRA court appointed counsel, Kyle

Rude, Esq., who filed an amended PCRA petition on October 31, 2016, seeking

an evidentiary hearing on numerous allegations of ineffective assistance of

trial counsel. The court filed an order dated December 6, 2016, issuing a rule

upon the Commonwealth to show cause why Appellant’s relief should not be

granted.      On December 23, 2016, the Commonwealth responded to

Appellant’s amended petition, arguing that it was time-barred under the PCRA.




____________________________________________


1 Appellant timely filed his first pro se petition on March 9, 2015, but he
voluntarily withdrew said petition. He filed his second pro se petition on July
5, 2016, and again voluntarily withdrew it before filing this, his third pro se
petition on August 12, 2016.



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On January 17, 2017, the PCRA court dismissed Appellant’s petition as

untimely.2

       On February 21, 2017, Appellant’s counsel filed the instant appeal from

the January 17, 2017 PCRA court order denying Appellant relief. Because the

notice of appeal was not filed within 30 days of the entry of the order being

appealed, see Pa.R.A.P. 903(a), this Court entered an order on March 23,

2017 directing counsel to show cause why the appeal should not be quashed

as untimely.

       On March 31, 2017, the trial court entered an order permitting Appellant

to proceed pro se.       Accordingly, by order dated April 6, 2017, this Court

directed Appellant to respond to the March 23, 2017 show-cause order.

Appellant filed essentially identical responses on April 7, 2017, and April 18,

2017, and this Court discharged the show-cause order on May 2, 2017.

       In his responses, Appellant relies on the Prisoner Mailbox Rule.      See

Pa.R.A.P. 121(a) (pro se filing submitted by prisoner in correctional facility

is deemed filed as of date it is delivered to prison authorities for mailing or

placed in institutional mailbox, as evidenced by properly executed prisoner

____________________________________________



2 The court failed to issue notice per Pa.R.Crim.P. 907. Nevertheless,
Appellant has not raised this issue on appeal, so he waived any defect in
notice. See Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013)
(explaining appellant's failure to raise on appeal PCRA court's failure to provide
Rule 907 notice results in waiver of claim). Moreover, failure to issue Rule
907 notice is not reversible error where, as here, the record is clear that the
petition is untimely. Id.


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cash slip or other reasonably verifiable evidence of date that prisoner

deposited pro se filing with prison authorities).      Appellant avers that he

deposited his notice of appeal with prison authorities for mailing on February

6, 2017, that it was filed on February 9, 2017, and then returned to him on

February 13, 2017, with a request that he include the order from which he

was appealing.

      Appellant claims that he re-mailed the notice on February 13, 2017, and

attaches cash slips indicating that he mailed notices of appeal to the trial court

on February 6, 2017, and February 13, 2017. The certified record contains a

pro se notice of appeal that is hand-dated February 6, 2016, and is date-

stamped as received in the trial court on February 16, 2017, one day prior to

the expiration of the 30-day appeal period. The trial court docket does not

reflect the alleged return of the notice to Appellant, and he does not provide

supporting documentation. It appears that the pro se notice was docketed

and forwarded to counsel, pursuant to Pa.R.A.P. 576(A)(4), who then filed the

counseled notice of appeal.

      Thus, at the time that Appellant filed the pro se notice of appeal, which

is arguably timely under the Prisoner Mailbox Rule, he was still represented

by counsel.      The trial court followed the proper procedure under Rule

576(A)(4) for when a counseled defendant submits a pro se filing. Counsel,

however, did not act on Appellant’s apparent desire to appeal until after the

30-day appeal period elapsed.




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      The question, therefore, is whether Appellant’s pro se notice of appeal

can be treated as the actual notice of appeal, even though he was represented

by counsel at the time. Notwithstanding the general prohibition against hybrid

representation, see Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa.

2011) (“[T]he proper response to any pro se pleading is to refer the pleading

to counsel, and to take no further action on the pro se pleading unless counsel

forwards a motion. Moreover, once the brief has been filed, any right to insist

upon self-representation has expired.”) (citations omitted); Commonwealth

v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (discerning no right to hybrid

representation either at trial or on appeal), we find the Pennsylvania Supreme

Court decision in Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), which

validated a pro se notice of appeal filed by a counseled criminal defendant,

instructive.

      The Cooper Court addressed a situation where a counseled litigant filed

a pro se notice of appeal unbeknownst to his attorney, who in the meantime

had filed a timely post-sentence motion, which the trial court denied, and then

a timely counseled appeal, thus resulting in parallel appeals accepted for filing

in the Superior Court.     The Superior Court administratively quashed the

counseled appeal as duplicative of the pro se appeal. Then, a panel of this

Court, determining the pro se appeal was premature and void as a nullity,

quashed that appeal as well, but remanded the matter for the trial court for a

hearing on the counseled post-sentence motion.




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      The Commonwealth appealed from the Superior Court decision, arguing

that the pro se filing validly initiated appellate proceedings and did not run

afoul of Jette or Ellis, as a notice of appeal is not a pleading but is, instead,

merely a ministerial task that neither conflicts with counsel’s strategy or

creates confusion and delay as occurs when a court receives multiple briefs or

motions. Cooper argued that the pro se appeal was a nullity and the counseled

appeal, alone, was valid, a position which, if accepted, would preserve his

sentencing challenge raised in the counseled post sentence motion.

      The Supreme Court agreed the pro se appeal was premature, ill-advised,

and responsible for “instigat[ing] various procedural problems that are

endemic to hybrid representation[.]” Id. at 1006-1007. However, the Court

deemed the pro se filing as merely premature and subject to withdrawal or

quashal upon the filing of the counseled notice of appeal, but it was “definitely

not a ‘nullity,’ especially once the counseled appeal was dismissed.” Id. at

1007. Our Supreme Court, therefore, reversed and remanded for this Court

to address the merits of the pro se appeal as perfected by counsel’s post

sentence motions and corresponding notice of appeal.

      Here, we cannot say the pro se appeal was even premature, for there

were no further actions taken by counsel afterward, such as the filing of a post

sentence motion, nor was there a timely-filed counseled notice of appeal in

this matter, as counsel’s filing was untimely. As such, Appellant’s pro se filing

stands as the only timely notice of appeal, and would, thus, not be subject to

withdrawal or quashal as contemplated in Cooper.          Moreover, under the

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rationale of Cooper, which rejected application of bright-line rules against

hybrid representation in matters involving the ministerial act of filing a notice

of appeal, we reject the notion that Appellant’s pro se filing was a nullity and,

instead, conclude that the interests of fairness and judicial economy weigh in

favor of deeming Appellant’s pro se appeal valid.

      After notice of appeal was filed, Appellant filed a Motion for Discharge

and Removal of Counsel for reasons of perceived ineffectiveness, which was

granted by order of March 31, 2017. In Appellant’s pro se brief, he presents

the following questions for our review:

      I.    DID    APPELLATE     COUNSEL’S   INEFFECTIVE
            ASSISTANCE    AND   DEFICIENT   PERFORMANCE
            PREJUDICE THE PETITIONER’S RIGHT TO THE
            EFFECTIVE    ASSISTANCE    OF  COUNSEL    AS
            GUARANTEED BY THE 6    TH AMENDMENT OF THE
            UNITED    STATES   CONSTITUTION    AND   THE
            PENNSYLVANIA CONSTITUTION?

      II.   WAS THERE A REASONABLE PROBABILITY OF A
            DIFFERENT RESULT WITH EFFECTIVE ASSISTANCE?


      III. DID THE GOVERNMENT’S ACTIONS PREJUDICE THE
           PETITIONER’S RIGHT OF DUE PROCESS PURSUANT TO
           THE 5TH AND 14TH AMENDMENT OF THE UNITED
           STATES CONSTITUTION?


      IV.   WAS     THE    APPELLANT    DENIED      HIS
            CONSTITUTIONALLY GUARANTEED RIGHT TO A FAIR
            TRIAL?


      V.    WAS THE DEFENDANT’S RIGHT TO A JURY OF HIS
            PEERS DENIED PURSUANT TO THE 6TH AMENDMENT
            OF THE UNITED STATES CONSTITUTION?


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      VI.   DID THE PCRA COURT DISREGARD THE APPELLANT’S
            INITIAL FILING DATE?

Appellant’s brief (unpaginated). In amendments to his brief, Appellant has

raised an ineffective assistance of counsel in failing to present a proper

diminished capacity defense and a destruction of evidence claim under Brady

v. Maryland, 373 U.S. 83, S.Ct. 1194 (1963).

      This Court's standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant's petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007) (stating PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded to address the merits of the petition). Under the PCRA,

any petition for post-conviction relief, including a second or subsequent one,

must be filed within one year of the date the judgment of sentence becomes

final, unless one of the following exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.—

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:




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      (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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

      As noted above, Appellant's judgment of sentence became final on

December 21, 2014, making his August 12, 2016, PCRA petition untimely.

Appellant may avoid the time-bar if he can plead and prove one of the

statutory exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1).

      Here, Appellant first asserts numerous ineffective assistance of counsel

claims as potential exceptions to the time bar. It is well-settled, however,

that ineffective assistance of counsel claims cannot save a petition that does

not otherwise fall into an exception to the PCRA’s jurisdictional time bar. See

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

      Appellant also invokes both the governmental interference and the

newly-discovered fact exception to the PCRA time-bar pursuant to Sections

9545(b)(1)(i) and (ii) with his claim that police committed a Brady violation

when they “suppressed” results of blood samples taken from Appellant on the


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night of the fatal shooting.    He contends such evidence was critical to his

defense at trial, where he testified that he was so intoxicated at the time of

the burglary and fatal shooting that he lacked the ability to form criminal

intent.

      Appellant cannot establish, however, that the facts upon which his claim

is predicated were not previously known to him or that the facts could not

have been ascertained through due diligence. See Commonwealth v. Abu–

Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (concluding that not only must a

petitioner assert that “the facts upon which the Brady claim is predicated

were not previously known to the petitioner,” but also that they “could not

have been ascertained through due diligence”); see also Commonwealth v.

Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (“Although a Brady violation may

fall within the governmental interference exception, the petitioner must plead

and prove that the failure to previously raise these claims was the result of

interference by government officials, and that the information could not have

been obtained earlier with the exercise of due diligence.”) (citation omitted).

          The Commonwealth informed Appellant’s trial counsel before trial that

the laboratory had destroyed Appellant’s blood samples, in accordance with

their ordinary custom, after determining the samples yielded negative results.

Indeed, Appellant attaches to his brief a letter he received from trial counsel

dated July 7, 2009, three years before his criminal trial, in which counsel

informs him of this fact. Appellant, therefore, knew of the destruction of his

blood samples for more than six and one-half years prior to the expiration of

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his one-year PCRA filing period, such that he does not qualify for an exception

to the PCRA time-bar on this basis.3

       Therefore, as Appellant has failed to plead and prove that he qualifies

under an exception to the PCRA’s timeliness provisions, we lack jurisdiction to

address his appeal on the merits.

       Order is AFFIRMED.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




____________________________________________


3 Nor, for that matter, has Appellant sufficiently pled and proved that the
alleged Brady violation amounted to governmental interference with his
ability to present this claim in a timely PCRA petition, as the exception under
Section 9545(b)(1)(i) requires.


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