J-S36006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARK KEVIN ANDREWS

                            Appellant                 No. 1433 MDA 2015


                     Appeal from the Order June 23, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003479-2011


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARK KEVIN ANDREWS

                            Appellant                 No. 1434 MDA 2015


                     Appeal from the Order August 4, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003479-2011


BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                                FILED JULY 13, 2016

        In these consolidated appeals, Appellant, Mark Kevin Andrews, appeals

from two orders entered June 23, 2015 and August 4, 2015, respectively,

each denying one of Appellant’s similar motions for relief.     After careful
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
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review, we affirm, albeit on different grounds than those relied on by the

trial court.

        Our review of the certified record discloses the following procedural

history of this case.      On July 12, 2011, Appellant was charged with one

count of robbery employing a threat of immediate serious bodily injury.1 On

April 5, 2012, a jury convicted Appellant of the sole charge.     On May 30,

2012, the trial court sentenced Appellant to a term of 72 to 144 months’

incarceration plus a $1,000.00 fine. Appellant filed a timely post-sentence

motion, which the trial court denied on July 10, 2012.       Appellant filed a

timely notice of appeal on August 8, 2012. Subsequently, Appellant filed a

praecipe with this Court to discontinue his appeal, which this Court certified

on September 6, 2012.

        In the meantime, on August 31, 2012, Appellant filed a premature pro

se petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546.       Following the withdrawal of Appellant’s direct appeal, the

PCRA court appointed counsel to represent Appellant in the ripened PCRA

action.     On December 24, 2012, counsel filed a combined motion to

withdraw and Turner/Finley2 letter. On February 6, 2013, in compliance

with Pennsylvania Rule of Criminal Procedure 907, the PCRA court filed a

____________________________________________
1
    18 Pa.C.S.A. § 3701(a)(1)(ii).
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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notice of its intent to dismiss Appellant’s pro se PCRA petition without a

hearing and to grant counsel’s motion to withdraw.      Appellant did not file

any response to counsel’s motion to withdraw or the PCRA court’s notice of

intent to dismiss. The PCRA court dismissed Appellant’s pro se PCRA petition

on March 4, 2013. Appellant filed a pro se notice of appeal on April 4, 2013.

On May 1, 2014, this Court dismissed Appellant’s appeal because he failed to

file a brief.

       On May 11, 2015, Appellant filed a pro se “Motion for Relief Due to the

Use of Psychotropic Drugs and for the Mental Side Effects.”               The

Commonwealth filed a response to the motion on June 17, 2015.3

Thereafter, on June 23, 2015, the trial court dismissed the motion.

Appellant filed a timely pro se notice of appeal on July 23, 2015.4   On July

27, 2015, Appellant refiled a copy of his May 11, 2015 motion. On August 4,
____________________________________________
3
 In its response, the Commonwealth argued Appellant’s issues “could have
been addressed in a timely post-sentence motion or in filing a direct
appeal….”    Commonwealth’s Response, 6/17/15, at 2, ¶ 5.             The
Commonwealth urged the trial court to dismiss Appellant’s motion as an
untimely post-sentence motion. Id. at 2, ¶ 6. This was the basis upon
which the trial court relied in dismissing Appellant’s motion. Trial Court
Statement in Lieu of Memorandum Opinion, 9/3/15, at 2.
4
  In his notice of appeal, Appellant inadvertently misstates the date of the
order appealed from as being July 17, 2015. In addition, the same day
Appellant filed his notice of appeal, Appellant filed a pro se “(Post Verdict)
Motion for Relief Due to the Use of Psychotropic Drugs and the Mental Side
Effects.” On July 30, 2015, the trial court denied the motion. Appellant has
not appealed that decision. We also note that, although entered into the
trial court docket and included in the clerk of court’s list of documents
transmitted, the July 30, 2015 order is absent from the certified record.



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2015, the trial court entered orders denying Appellant’s July 27, 2015 refiled

motion. Appellant filed a notice of appeal from the August 4, 2015 order on

August 12, 2015.5

       On September 2, 2015, the trial court ordered Appellant to file, within

21 days, a concise statement of errors complained of on appeal in

accordance with Pennsylvania Rule of Appellate Procedure 1925(b). The trial

court did not specify to which notice of appeal its order was directed. On

September      3, 2015, the        trial court filed a “Statement in Lieu of

Memorandum Opinion,” addressing its reasons for denying all of Appellant’s

motions. Appellant filed a Rule 1925(b) statement, which was received and

filed on September 28, 2015.6


____________________________________________
5
  Appellant, again, inadvertently misstates the date of the order appealed
from as being August 10, 2015. This Court sua sponte consolidated the
appeals on September 9, 2015. See generally Pa.R.A.P. 513.
6
  In its brief, the Commonwealth urged this Court to deem all of Appellant’s
issues waived for the late filing of his Rule 1925(b) statement.
Commonwealth’s Brief at 6-7.       The Commonwealth acknowledges the
prisoner mailbox rule.

              [The Superior[ Court] has held that “[u]nder the
              prisoner mailbox rule, we deem a pro se document
              filed on the date it is placed in the hands of prison
              authorities for mailing.”          Commonwealth v.
              Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011).
              For the prisoner mailbox rule to apply, a litigant
              must supply proof regarding the date of mailing the
              document. Commonwealth v. Little, 716 A.2d
              1287, 1288 (Pa. Super. 1998).

(Footnote Continued Next Page)

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      On appeal, Appellant raises the following issues for our review.

             I.    Trial [court] [d]idn’t ask [A]ppellant, nor his
             Public Defender, was [A]ppellant [c]ompetent to
             stand trial.

             II.  No psychiatric or mental examinations were
             done on [A]ppellant by the [trial court].

             III. The [P]ublic Defendaer[sic], Joe Gavazzo knew
             that [A]ppellant was on many psychotropic drugs,
             and failed to tell the [trial court], while [A]ppellant
             was on trial.

             IV.    On [A]ppellants m[]otion for [r]elief do [sic] to
             the use of psychotropic drugs, and mental side
             effects the [trial court] gave his decision from the
             District A[]ttorney Opinion, not given by him on the
             order he sent [A]ppellant.

             V.    [A]ppellant[’s] [c]ase was in the Superior
             Court, and the [trial c]ourt [] made a[n] order for
             [A]ppellant to do a 1925(b).

Appellant’s Brief at 4.

      Before we can address Appellant’s issues, we must clarify the proper

procedural posture of this case. Although, in his various motions for relief,

Appellant    referenced       Pennsylvania       Rule   of   Criminal   Procedure   720

(pertaining to post-sentence motions), we have repeatedly held that a filing




                       _______________________
(Footnote Continued)
Id. at 7. In his reply brief to this Court, Appellant invokes the prisoner
mailbox rule and supplied a copy of a monthly account statement, and a
cash slip from the Department of Corrections, showing submission for
mailing to the prison authorities on September 22, 2015. Accordingly, we
deem Appellant’s Rule 1925(b) statement timely filed.



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by a defendant seeking relief, after his judgment of sentence is final, should

be considered a petition for PCRA relief.

              In Commonwealth v. Fowler, 930 A.2d 586 (Pa.
              Super. 2007), the learned Judge[] collected cases
              and reiterated that all motions filed after a judgment
              of sentence is final are to be construed as PCRA
              petitions. Id. at 591 (citing Commonwealth v.
              Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002));
              Commonwealth v. Evans, 866 A.2d 442 (Pa.
              Super. 2005); Commonwealth v. Beck, 848 A.2d
              987, 989 (Pa. Super. 2004); Commonwealth v.
              Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000).

Commonwealth           v.   Taylor,    65      A.3d   462,   466   (Pa.   Super.   2013)

(determining the lower court erred in treating Appellant’s filing as an

untimely post-sentence motion, and noting “[u]nless the PCRA could not

provide a potential remedy, the PCRA statute subsumes the writ of habeas

corpus”). “There is no requirement that a PCRA petition be on any particular

form,” and Appellant’s characterization of his filing is not determinative.

Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000). That

Appellant’s unartfully expressed claims may be considered previously

litigated or waived does not remove his motion from being considered a

PCRA petition. Taylor, supra. We therefore conclude the trial court should

have treated Appellant’s May 11, 2015 motion as his second PCRA petition. 7


____________________________________________
7
  Appellant’s July 23, 2015, and July 27, 2015 motions would be considered
premature serial PCRA petitions, which, because his second PCRA petition
was pending on appeal, the PCRA court did not have authority to consider.
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).


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        Notwithstanding the foregoing, we also conclude the trial court was

correct to dismiss Appellant’s motion even when treated as a PCRA petition. 8

“Our standard of review of [an] order granting or denying relief under the

PCRA requires us to determine whether the decision of the PCRA court is

supported by the evidence of record and is free of legal error.     The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.”        Commonwealth v. Melendez-Negron,

123 A.3d 1087, 1090 (Pa. Super. 2015) (citation omitted). The timeliness of

Appellant’s petition is our threshold issue “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. Cristina, 114 A.3d

419, 421 (Pa. Super. 2015) (citations omitted), vacated on other grounds,

131 A.3d 419 (Pa. 2016). “Under the PCRA, any petition for post-conviction

relief… must be filed within one year of the date the judgment of sentence

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

§ 9545(b)(1)(i)-(iii) applies.”9 Id. “The period for filing a PCRA petition is

____________________________________________
8
   We note the trial court did not issue a notice of intent to dismiss as
required by Pa.R.Crim.P. 907. However, Appellant has not challenged that
non-compliance and any issue regarding the lack of notice is waived.
Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007), appeal
denied, 932 A.2d 74 (Pa. 2007). Additionally, we are not obliged to reverse
or remand for a proper notice if the petition itself is untimely.      See
Commonwealth v. Davis, 916 A.2d 1206, 1207-1208 (Pa. Super. 2007),
citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000).
9
    The statute sets forth those exceptions as follows.
(Footnote Continued Next Page)

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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.”

                       _______________________
(Footnote Continued)

             § 9545. Jurisdiction and proceedings

                                                 …

             (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:

                             (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).


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Commonwealth v. Miller, 102 A.3d 988, 992-993 (Pa. Super. 2014)

(internal quotation marks and citation omitted).

     In this case, Appellant’s judgment of sentence became final on

September 6, 2012, when he voluntarily discontinued his direct appeal. See

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)

(noting, “judgment of sentence final for PCRA purposes when appeal is

discontinued voluntarily”), citing Commonwealth v. Conway, 706 A.2d

1243 (Pa. Super 1997); see also generally 42 Pa.C.S.A. § 9545(b)(3).

Accordingly, Appellant had until September 6, 2013, to file a timely PCRA

petition unless he could plead and prove the application of one of the listed

exceptions. See id. § 9545(b)(1). Therefore, Appellant’s May 11, 2015 pro

se PCRA petition is facially untimely, and it became incumbent upon him to

plead and prove the applicability of one or more of the enumerated

exceptions in order to invoke the jurisdiction of the PCRA court.        See

Cristina, supra.

     Instantly, Appellant makes no assertion or argument that any of the

enumerated exceptions applies.     We acknowledge that Appellant makes a

superficial claim in his brief of after-discovered evidence as justifying an

issue to be raised in a post-trial motion.    Appellant’s Brief at 13, citing

Pa.R.Crim.P. 720(C).   Appellant does not identify that evidence.    His chief

contention is that he was taking various prescribed psychotropic medications

during critical periods of his case. Appellant’s Brief at 9-10. “[T]he general


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rule remains that mental illness or psychological condition, absent more, will

not serve as an exception to the PCRA’s jurisdictional time requirements.”

Commonwealth v. Monaco, 996 A.2d 1076, 1081 (Pa. Super. 2010)

(citation omitted), appeal denied, 20 A.3d 1210 (Pa. 2011).

       In light of the foregoing, we conclude the trial court properly dismissed

Appellant’s May 11, 2015 motion, albeit for different reasons than those

expressed by the trial court. We conclude Appellant’s motion is an untimely

second PCRA petition, and that the trial court and this Court lack jurisdiction

to address its merits. Therefore, we affirm the trial court’s June 23, 2015

order.   Additionally, we affirm the trial court’s August 4, 2015 order as a

dismissal of a premature serial PCRA petition.10

       Orders affirmed. Motion for special relief denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




____________________________________________
10
  On October 20, 2015, Appellant filed a motion for special relief with this
Court. Appellant’s application appears merely to be a reiteration of the
merits of his issues presented to the trial court and on appeal. In light of
our disposition above, we deny Appellants Motion as moot.


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