J-S05008-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF

                                         :         PENNSYLVANIA

                   v.                    :

                                         :

    RAYMOND FRANKLIN PEAKE, III          :

                        Appellant        : No. 1431 MDA 2019



             Appeal from the PCRA Order Entered August 13, 2019
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-CR-0002579-2010


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                             FILED MAY 21, 2020

       Appellant, Raymond Franklin Peake, III, appeals pro se from the order

entered in the Cumberland County Court of Common Pleas dismissing his third

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541–9546, as untimely. We remand the matter for the PCRA court to

correct the docket and complete the certified record on appeal.

        On August 16, 2012, Appellant entered a negotiated plea of nolo

contendere to second degree murder and theft by unlawful taking related to

the shooting death of Todd Getgen at a rifle range.1 Pursuant to the plea




1   18 Pa.C.S. § 2502(b) and 18 Pa.C.S. §3921(b), respectively.
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negotiations, the trial court sentenced Appellant to life imprisonment without

the possibility of parole. Appellant did not file a direct appeal.

      Appellant timely filed his first PCRA Petition on August 19, 2013, raising

several claims of ineffective assistance of counsel. The PCRA court denied the

petition as meritless on November 26, 2013, and this Court affirmed the denial

on June 24, 2014. Commonwealth v. Peake, 105 A.3d 44, 2198 MDA 2013

(Pa. Super. filed June 24, 2014) (unpublished memorandum). Appellant did

not file a petition for allowance of appeal in the Pennsylvania Supreme Court.

      Appellant filed a second PCRA Petition on July 6, 2015. The PCRA court

dismissed this second petition as untimely on August 12, 2015. On May 5,

2016, we affirmed the denial of the second PCRA petition. Commonwealth

v. Peake, 151 A.3d 1136, 1581 MDA 2015 (Pa. Super. filed May 5, 2016)

(unpublished memorandum). Appellant’s petition for allowance of appeal was

denied by the Pennsylvania Supreme Court on November 8, 2016.

Commonwealth v. Peake, 160 A.3d 790, 454 MAL 2016 (Pa. 2016).

      Appellant filed his third petition for PCRA relief on July 18, 2019, alleging

ineffective assistance of plea counsel for failing to file a direct appeal on his

behalf, and ineffective assistance of PCRA counsel for failing to raise plea

counsel’s ineffectiveness.   On August 13, 2019, the PCRA court informed

Appellant of the court’s intention to dismiss his petition because it was

untimely, the issues had been waived and previously litigated, and Appellant




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failed to demonstrate that a miscarriage of justice occurred. Order, 8/13/19,

at unnumbered 1.

      Appellant filed a notice of appeal from the order giving notice on

September 4, 2019. On October 7, 2019, this Court issued a Rule to Show

Cause directing Appellant “to show cause, within ten days of the date of this

order, as to why the instant appeal should not be quashed as interlocutory.

Failure to respond to this directive may result in quashal of this appeal without

further notice.”   Rule to Show Cause, 10/7/19, at unnumbered 1.            When

Appellant failed to respond, this Court, on November 8, 2019, filed an order

discharging the rule to show cause and referring the issue to the merits panel

to be assigned to this case. Order, 11/8/19, at unnumbered 1.

      On September 30, 2019, Appellant filed a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal, raising two issues: 1) the PCRA court erred

when it failed to review the merits if his ineffective assistance of counsel claim;

and 2) the exception sanctioned by 42 Pa.C.S. § 9545(b)(1), excused the

untimeliness of his petition.      Appellant’s Pa.R.A.P. 1925(b) statement,

9/30/19, at 1–2. The next and final entry on the PCRA docket was an October

28, 2019 memo from the Clerk of Court of Cumberland County to the

attorneys of record listing the record documents that had been sent

electronically to this Court.   Memo, 10/28/19, at unnumbered 1.          Notably

missing from both the docket and the record certified on appeal was a PCRA




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court order denying Appellant’s third PCRA petition and a Pa.R.A.P. 1925(a)

opinion or statement in lieu of an opinion.2

      Appellant raises one issue for appellate review:

      The court below erred in failing to relax the procedural bar rule to
      address petitioner[’s] third PCRA petition of ineffective assistance
      of counsel claims against his first PCR[A] counsel for failing to
      addres[s] trial counsel[’s] ineffective assistance for failing to file a
      direct appeal on behalf of petitioner[. P]etitioner also requested
      PCRA counsel to amend [ ] his PCRA petition to include trial
      counsel ineffective assistance for failing to file a notice of appeal
      on petitioner[’s] behalf but PCRA counsel refused to obey
      petitioner[’s] request.

Appellant’s Brief at (i) (full capitalization omitted).

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the evidence of record and free of legal error.” Commonwealth v. Root,

179 A.3d 511, 515–516 (Pa. Super. 2018) (citation omitted).                  Before

addressing the merits of Appellant’s claims, however, we must first determine

whether we have the authority to entertain this appeal.

      Under Pa.R.A.P. 301(a)(1), “no order of a court shall be appealable until

it has been entered upon the appropriate docket in the lower court.” Herein,

the Rule 301 prerequisites have not been met because the appealable order,




2 Appellant attached the PCRA court’s Statement in Lieu of an Opinion to his
brief, wherein the PCRA court indicated that the denial of [Appellant’s] third
PCRA matter was finalized on October 31, 2019. Appellant’s Brief at Exhibits
30–34. We reference this dehors the record document only to explain the
procedural background of our decision to remand the matter to correct the
docket and complete the record.

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the October 31, 2019 order denying the PCRA petition, does not appear on

the docket. Additionally, the certified record on appeal suffers from a similar

deficiency in that it does not include the October 31, 2019 order dismissing

Appellant’s third PCRA petition or a 1925(a) PCRA court opinion or statement

in lieu thereof.

      Accordingly, because there is no appealable order in this case apparent

from the docket, the case is remanded for the PCRA court to enter a final order

denying Appellant’s third PCRA petition on the docket. Furthermore, as the

record certified to us on appeal is incomplete, the PCRA court is also directed

to supplement the record within thirty days of the filing of this Memorandum,

with the October 31, 2019 order dismissing Appellant’s third PCRA petition

and the PCRA court’s November 13, 2019 Statement in Lieu of Opinion, as

well as any other relevant document that may have subsequently been filed

in this matter.

      Case remanded for proceedings consistent with this Memorandum.

Panel jurisdiction retained.




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