J-S23018-20 & J-S23019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL JACOB ERB                           :
                                               :
                       Appellant               :   No. 1725 EDA 2019

             Appeal from the PCRA Order Entered October 18, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0006192-2016


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL JACOB ERB                           :
                                               :
                       Appellant               :   No. 2135 EDA 2019

                   Appeal from the Order Entered July 8, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0006192-2016

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.:                              Filed: June 11, 2020

        We address together these two pro se appeals taken by Daniel Jacob

Erb (Appellant) from the orders of the Montgomery County Court of Common

Pleas.1 At Docket 1725 EDA 2019, Appellant appeals from the court’s October

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1   Both appeals arise from trial docket CP-46-CR-0006192-2016.
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18, 2018, order denying his first petition under the Post Conviction Relief Act2

(PCRA). We quash this appeal because the notice of appeal was untimely. At

Docket 2135 EDA 2019, Appellant appeals from the July 8, 2019, order

denying his motion for discovery. We affirm this order.

                                I. Procedural History

        On May 22, 2017, Appellant entered a negotiated guilty plea to

involuntary deviate sexual intercourse with a child (IDSI), indecent assault of

a complainant less than 13 years of age, and endangering the welfare of a

child (EWOC).3      On the same day, the trial court imposed the negotiated

sentence of: 6 to 15 years’ imprisonment for IDSI, to be followed by two

concurrent terms of 5 years’ probation for indecent assault and EWOC.

Appellant did not file a direct appeal.


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2   42 Pa.C.S. §§ 9541-9546.

3 18 Pa.C.S. §§ 3123(b), 3126(a)(7), 4304. Although the trial court stated it
would order a sexual violent predator (SVP) assessment, N.T., 5/22/17, at 23,
the PCRA court explained no SVP hearing was ever held and Appellant was not
determined to be an SVP. PCRA Ct. Op., 8/9/19, at 8 n.5.

       Nevertheless, it appears that both Appellant’s IDSI conviction and
subsection 3126(a)(7) indecent assault conviction subject him to lifetime
registration under Subchapter H of the Pennsylvania’s Sex Offender
Registration and Notification Act (SORNA). See 42 Pa.C.S. § 9799.14(d)(4),
(8) (list of Tier III offenses), 9799.15(a)(3) (individual convicted of Tier III
sexual offense shall register for life), 9799.23(b)(1) (court’s failure to correctly
inform sexual offender of SORNA obligations or to require sexual offender to
register shall not relieve sexual offender from requirements of this
subchapter).



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       On May 10, 2018, Appellant filed a petition for writ of habeas corpus.

The PCRA court construed this filing as a petition for relief under the PCRA and

appointed counsel.4 Subsequently, counsel filed a Turner/Finley letter and

petition to withdraw from appeal.5 On September 27, 2018, the PCRA court

granted counsel’s petition to withdraw and issued Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s petition without a hearing. The Rule 907 notice

advised Appellant he could file a response within 20 days.          See Notice

Pursuant to Pa.R.Crim.P. 907(1), 9/27/18, at 7. On the 20th day, October

17, 2018, the court docketed Appellant’s pro se request for an extension of

time to file a response. The following day, the court dismissed Appellant’s

PCRA petition. Furthermore, on October 23rd, the court denied Appellant’s

request for additional time to respond to the Rule 907 notice.

       More than seven months later, on June 12, 2019, Appellant filed a notice

of appeal from the order dismissing his PCRA petition (1725 EDA 2019). On



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4 The PCRA court reasoned that the claims raised in Appellant’s petition for
habeas corpus — alleging ineffective assistance of counsel — were cognizable
under the PCRA. Order, 5/18/18 (appointing counsel). We note Appellant’s
petition was timely filed within the general one-year filing period provided in
the PCRA. See 42 Pa.C.S. § 9545(b)(1) (generally, “[a]ny petition under this
subchapter . . .shall be filed within one year of the date the judgment becomes
final”).

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




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June 18th, the PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)

statement.6 Appellant filed a timely statement on July 2nd.7 On July 9th,

Appellant filed a motion for production of a transcription of a forensic interview

of the victim in this matter, conducted by Mission Kids CYS. The court denied

this motion on the same day. On July 22nd, Appellant filed a notice of appeal

from this denial order (2135 EDA 2019).          The court issued two opinions,

addressing each appeal, on August 9 and November 18, 2019, respectively.

                                 II. 1725 EDA 2019

       At Docket 1725 EDA 2019 — the appeal from the October 18, 2018,

order denying Appellant’s PCRA petition — we first consider the PCRA court’s

suggestion that Appellant’s June 12, 2019, notice of appeal was not timely

filed. See PCRA Ct. Op., 8/9/19, at 4-5. On July 15, 2019, this Court issued

a per curiam rule on Appellant to show cause why this appeal should not be

quashed.     Appellant responded he never received the PCRA court’s denial

order, and instead only learned about it when requested a docket sheet from

the clerk of court in May 2019. Appellant’s Answer to Order to Show Cause,

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6While the text of the order stated the date was June 17, 2018, the order was
date-stamped as filed on June 18th.

7Appellant subsequently filed an untimely “amended” Rule 1925(b) statement
on July 12, 2019, beyond the 21-day day deadline set forth in the court’s Rule
1925(b) order and without requesting permission from the PCRA court. See
Pa.R.A.P. 1925(b)(2) (“Upon application of the appellant and for good cause
shown, the judge may enlarge the time period initially specified or permit an
amended or supplemental Statement to be filed.”).


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7/24/19, at 1-2. This Court discharged the rule but advised the parties this

issue would be referred to the merits panel. Order, 8/22/19.

      This Court has stated:

      Time limitations for taking appeals are strictly construed and
      cannot be extended as a matter of grace. This Court can raise the
      matter sua sponte, as the issue is one of jurisdiction to entertain
      the appeal. Absent extraordinary circumstances, this Court has
      no jurisdiction to entertain an untimely appeal.

Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (citations

omitted).

      Pennsylvania Rule of Appellate Procedure 903(a) requires: a notice of

appeal “shall be filed within 30 days after the entry of the order from which

the appeal is taken.” Pa.R.A.P. 903(a). Rule 108 provides:

      [I]n computing any period of time under these rules involving the
      date of entry of an order by a court . . . the day of entry shall be
      the day the clerk of the court . . . mails or delivers copies of the
      order to the parties, or if such delivery is not otherwise required
      by law, the day the clerk . . . makes such copies public. The day
      of entry of an order may be the day of its adoption by the
      court . . . or any subsequent day, as required by the actual
      circumstances.

Pa.R.A.P. 108(a)(1) (emphasis added). This Court has rejected an “argument

that the appeal period did not begin to run until . . . counsel received [a] PCRA

court’s order,” concluding such a finding “would contradict the plain text of

Rule 108(a).” Commonwealth v. Gaines, 127 A.3d 15, 18 n.8 (Pa. Super.

2015) (en banc).




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        Here, the PCRA court denied Appellant’s PCRA petition on October 18,

2018.8 Accordingly, Appellant had until Monday, November 19, 2018, to file

a notice of appeal. See 1 Pa.C.S. § 1908 (when last day of any period of time

referred to in any statute falls on Saturday, Sunday, or legal holiday, such day

shall be omitted from computation); Pa.R.A.P. 903(a). His notice of appeal,

however, was not time-stamped as filed until June 12, 2019, more than six

months later.

        The PCRA court noted that copies of its order was mailed by both first

class mail and certified mail to Appellant in prison, but “[a] search of the

United States Postal Service website reveals that the certified mailing . . . was

never received by” Appellant. See PCRA Ct. Op., 8/9/19, at 5. Nevertheless,

the court reasoned, “[t]he first class mailing was never returned to chambers”

and thus Appellant “likely” received the order sent by first class mail. Id.




____________________________________________


8   This order complied with Pa.R.Crim.P. 907, which provides:

        When [a PCRA] petition is dismissed without a hearing, the judge
        promptly shall issue an order to that effect and shall advise the
        defendant by certified mail, return receipt requested, of the right
        to appeal from the final order disposing of the petition and of the
        time limits within which the appeal must be filed. The order shall
        be filed and served as provided in [Pa.R.Crim.P.] 114.

See Pa.R.Crim.P. 907(4).




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       We agree with the PCRA court that Appellant’s notice of appeal was

untimely under Rule 903(a). Appellant’s contention that he never received a

copy of the order ignores the plain language of Rule 108(a)(1), which refers

solely to the court’s mailing or delivery of an order, and does not

contemplate the party’s receipt of the order.       See Pa.R.A.P. 108(a)(1);

Gaines, 127 A.3d 15, 18 n.8. Accordingly, we are constrained to quash the

appeal at 1725 EDA 2019.9



____________________________________________


9  Furthermore, even if we determined we have jurisdiction over this appeal,
no relief would be due. Appellant’s pro se habeas corpus petition raised a
litany of broad, vague, and unsupported claims. See, e.g. Appellant’s Petition
for Writ of Habeas Corpus, 5/10/18, at 2 (claiming police officer and assistant
district attorney conspired to falsify “Affidavits and Warrants” and to file
additional charges “for no other purpose beyond vindictiveness”).

      By way of further example, Appellant extensively argued the victim’s
allegations and the Commonwealth’s evidence against him were false;
however, as the PCRA court noted, these claims are meritless as Appellant
pleaded guilty. See Commonwealth v. Rounsley, 717 A.2d 537, 539 (Pa.
Super. 1998) (any issue relating to sufficiency of evidence is waived by entry
of guilty plea and is not subject to attack in post conviction proceeding).
Appellant further claimed his trial counsel was ineffective for “coerc[ing] him”
to plead guilty to crimes he did not commit, failing to seek suppression of a
statement Appellant gave to police, and “engag[ing] in the prosecution’s
threats to seek a maximum sentence.” Appellant’s Petition for Writ of Habeas
Corpus at 4-5. As the PCRA court aptly reasoned, Appellant would be bound
by the statements he made at the plea hearing, including his admission to the
charges. See PCRA Ct. Op., 8/9/19, at 9, citing Commonwealth v.
Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007) (person who pleads guilty is
bound by statements he makes in open court while under oath and he may
not later assert grounds for withdrawing plea which contradict statements
made at his plea colloquy).




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                                 III. 2135 EDA 2019

       As stated above, on July 9, 2019, while his PCRA petition was still

pending, Appellant filed a motion for production of a transcript of a forensic

interview between the victim and Mission Kids CYS. 10 The only explanation

provided for requesting the transcript was, “[Appellant] must obtain

transcribed copies of [the victim’s] Mission Kids CYS interview in order to

perfect appeal(s) against conviction and sentence.”     Appellant’s Motion for

Order, 7/9/19, at 1. The court denied this motion on the same day, finding

that neither Appellant’s motion “nor the procedural history of the case would

indicate an exceptional circumstance,” as required by Pa.R.Crim.P. 902(E)(1).

See PCRA Ct. Op., 11/18/19, at 3. The court reasoned that because Appellant

pleaded guilty to the charges, “the facts of the underlying crimes” are not

material to any cognizable issue under the PCRA. See id.

       Pennsylvania Rule of Criminal Procedure 902(E) provides: “[N]o

discovery shall be permitted at any stage of the [PCRA] proceedings, except

upon leave of court after a showing of exceptional circumstances.”

Pa.R.Crim.P. 902(E)(1). We affirm the denial order on the ground that, in

light of our disposition at Docket 1725 EDA 2019, there is no pending

proceeding before the PCRA court. See Commonwealth v. Diaz, 183 A.3d


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10We note Appellant filed a nearly identical pro se motion in February of 2018.
The PCRA court denied this motion on the ground there was no pending matter
before the court necessitating production of the material. Order, 3/8/18.

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417, 421 (Pa. Super. 2018) (this Court may affirm PCRA court’s ruling on any

basis if record supports it). Moreover, we would agree with the PCRA court

that Appellant failed to establish there were any “exceptional circumstances”

supporting his request for the transcript. See Pa.R.Crim.P. 902(E)(1).

                               IV. Conclusion

      We direct the PCRA court’s attention to Footnote 3, supra, of this

memorandum, addressing the applicability of SORNA to Appellant.

      At Docket 1725 EDA 2019, we quash the appeal from the PCRA court’s

October 18, 2018, order denying Appellant’s PCRA petition. Appeal quashed.

      At Docket 2135 EDA 2019, we affirm the July 8, 2019, order denying

Appellant’s motion for discovery. Order affirmed.



Judge Ford Elliott joins this Memorandum.

Judge Nichols concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/20




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