J-S27022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY L. GAINS                           :
                                               :
                       Appellant               :   No. 3596 EDA 2018

            Appeal from the PCRA Order Entered November 13, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1208141-2005


BEFORE:      SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.:                              FILED JULY 24, 2020

        Timothy L. Gains (Appellant) appeals, pro se, from the order entered in

the Philadelphia County Court of Common Pleas dismissing his first petition

filed pursuant to the Post Conviction Relief Act1 (PCRA), seeking relief from

his jury conviction of first-degree murder2 and related offenses.      Appellant

contends the PCRA court erred when it did not ensure that he had the

opportunity to respond to the Pa.R.Crim.P. 907 notice of its intent to dismiss

the petition. For the reasons below, we quash this appeal, and remand the

case to the PCRA court for further proceedings.


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. § 2502(a).
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        On May 4, 2009, a jury convicted Appellant of first-degree murder,

retaliation against a witness, and criminal conspiracy3 for his role in the

October 2005 shooting death of Robert Edwards.         A few weeks before the

shooting, Edwards witnessed Appellant’s co-defendant murder a rival drug

dealer, and Edwards was cooperating with the police. Commonwealth v.

Gaines,4 1807 EDA 2009 (unpub. memo. at 1) (Pa. Super. 2009), appeal

denied, 437 EAL 2014 (Pa. 2015). During the penalty phase of the trial, the

jury found no aggravating circumstances, and sentenced Appellant to life

imprisonment. Sentencing Verdict Slip, 5/6/09, at 3-4 (unpaginated). On

June 17, 2009, the trial court imposed a sentence of life imprisonment for

first-degree murder, a consecutive term of 3½ to 7 years’ imprisonment for

retaliation against a witness, and a concurrent term 10 to 20 years’

imprisonment for conspiracy. This Court affirmed the judgment of sentence

on direct appeal, and, on March 17, 2015, the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal. Gaines, 1807 EDA 2009.

        On February 18, 2016, Appellant filed a timely PCRA petition, his first.

Counsel was appointed, but on November 3, 2016, filed a petition to withdraw
____________________________________________


3   18 Pa.C.S. §§ 903 and 4953(a).

4 We note that in the prior memorandum, Appellant’s name was spelled
“Gaines.” The lower court filings refer to Appellant as “Gains.” Appellant has
used both spellings in his pro se documents. See Appellant’s “Statement of
Matters Complained on Appeal,” 11/13/18, at 1 (“Gains”); Notice of Appeal,
12/7/18, at 1 (“Gaines”).




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and a Turner/Finley5 “no merit” letter. The next day, the PCRA court issued

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without first

conducting an evidentiary hearing. Appellant did not respond to the Rule 907

notice, and on December 16, 2016, the PCRA court entered an order

dismissing Appellant’s petition.

       Nineteen months later, on September 19, 2018, Appellant requested a

copy of his “recent court document sheet.”          Appellant’s Letter, 9/19/18.

Thereafter, on November 13, 2018, Appellant filed a document, which the

clerk of courts docketed as a “Statement of Matters Complained on Appeal.”

See Docket Entry, 11/13/18. On December 7, 2018, Appellant filed a notice

of appeal, purportedly from an order entered November 13, 2018. In the

same document, Appellant included a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.6 On November 13, 2019, this Court issued a per

curiam rule for Appellant to show cause why this appeal should not be

quashed. Appellant filed a response, and this Court discharged the rule, but

referred the matter to the merits panel.

       Appellant lists the following two issues in his brief:


____________________________________________


5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

6 We note that this Court twice dismissed Appellant’s appeal: once, when he
failed to file a docketing statement, and once when he failed to file a brief.
See Order 2/5/19; Order, 5/3/19. However, both times, the appeal was
reinstated upon application by Appellant.      See Order, 3/25/19: Order,
5/30/19.

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       Did the PCRA court err when it did not ensure that Appellant was
       afforded the opportunity to respond to the Notice of Intent to
       Dismiss that was allegedly filed in Appellant’s case?

       Appellant contends that this Honorable Court should remand the
       case sub judice back to the PCRA Court as the PCRA Court is
       primarily suited to determine if there is merit to[A]appellant’s
       claims.

Appellant’s Brief at 8.

       Before we may consider any substantive claims raised by Appellant, we

must first determine if this appeal is properly before us. As this Court alerted

Appellant in the rule to show cause, the “notice of appeal states the appeal is

from the order entered November 13, 2018[, but t]here is no indication on

the trial court docket of an order being entered on November 13, 2018.”7

Show Cause Order, 11/13/19. Indeed, the only docket entry on that date is

Appellant’s “Statement of Matters Complained on Appeal.”              Docket Entry,

11/13/18.

       In his response to the rule to show cause, Appellant clarified his

intention was to appeal the order dismissing his PCRA petition. Appellant’s

Objection    to   the   Court[’]s Order        to   Quash Appeal,   11/27/19, at 2

(unpaginated). He claims he never received either the PCRA court’s Rule 907

notice or its December 16, 2016, final order. Id. Rather, Appellant insists he

first learned of the dismissal of his PCRA petition when he inquired with this

Court in November of 2018. Id. See also Appellant’s Brief at 13-14, 17.

____________________________________________


7 Specifically, the notice of appeal states Appellant “hereby appeals . . . from
the last order of the court’s denying [his] PCRA in 11-2018.” Appellant’s
Notice of Appeal, 12/7/18 at 1.

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     We note that “[i]t is implicit in Pennsylvania Rule of Appellate Procedure

904, which governs the content of the notice of appeal, that the correct date

of the order appealed should be included in the notice of appeal.”

Commonwealth v. Martin, 462 A.2d 859, 860 (Pa. Super. 1983),

disapproved on other grounds, Commonwealth v. Graves, 508 A.2d 1198

(Pa. 1986). Here, the notice of appeal purports to appeal from an order which

does not appear of record. On that basis alone, we could quash this appeal.

     Furthermore, even if we were to overlook this error, and determine

Appellant meant to appeal from the December 16, 2016, order dismissing his

PCRA petition, we would conclude the appeal — filed nearly two years later —

is manifestly untimely. See Pa.R.A.P. 903(a) (notice of appeal must be filed

within 30 days after entry of order on appeal). As the Pennsylvania Supreme

Court explained:

     The timeliness of an appeal and compliance with the statutory
     provisions granting the right to appeal implicate an appellate
     court’s jurisdiction and its competency to act.               Absent
     extraordinary circumstances, an appellate court lacks the power
     to enlarge or extend the time provided by statute for taking an
     appeal. Thus, an appellant’s failure to appeal timely an order
     generally divests the appellate court of its jurisdiction to hear the
     appeal.

Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (citation

omitted). Thus, we are constrained to quash this appeal.

     Nevertheless, our review of the document filed by Appellant on

November 13, 2018 — which the clerk of courts described as a “Statement of




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Matters Complained on Appeal”8 — reveals that it was, in actuality, an attempt

by Appellant to file a second PCRA petition.      The statement provides the

procedural history of his first petition, which he concludes was “in limbo,” and

states, “now comes a second PCRA under untimely manner.”            Appellant’s

“Statement of Matters Complained on Appeal,” 11/13/18, at 1. Appellant then

invokes the newly discovered facts timeliness exception to the PCRA. Id. See

42 Pa.C.S. § 9545(b)(1)(ii) (PCRA petition must be filed within one year of

date judgment of sentence is filed unless petitioner pleads and proves, inter

alia, “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”).

        Accordingly, we conclude that the PCRA court should have construed

Appellant’s November 13, 2018, filing to be a second PCRA petition. Thus, we

remand this case to the PCRA court to allow Appellant to proceed in this

matter. The court shall consider Appellant’s second PCRA petition to have

been filed on November 13, 2018.

        Appeal quashed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

President Judge Emeritus Stevens joins this Memorandum.

Judge Shogan Concurs in the result.



____________________________________________


8   Docket Entry, 11/13/18.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/20




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