J-S42001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ASHLEY REGINA MOWERY                       :
                                               :
                       Appellant               :   No. 107 MDA 2018

               Appeal from the PCRA Order December 18, 2017
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0007228-2015


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                                  FILED JULY 10, 2018

       Ashley Regina Mowery appeals from the December 18, 2017 orders1

that dismissed without a hearing her petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), and denied her motion to amend her petition.

We vacate the orders and remand for proceedings consistent with this

memorandum.

       After Appellant shot her then-boyfriend Montez Perry, she entered a

negotiated guilty plea to aggravated assault in exchange for the withdrawal of


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1 The orders are dated December 13, 2017, were docketed on December 15,
2017, and were served on the parties on December 18, 2017. For this Court’s
purposes, the date of the orders is December 18, 2017. See Pa.R.A.P.
108(a)(1), (d)(1) (providing the date of entry of an order is the date copies
of the order are sent to the parties). We have amended the caption
accordingly.


*    Retired Senior Judge assigned to the Superior Court.
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the charge of attempted homicide. On March 3, 2016, she was sentenced

pursuant to the agreement to four to twelve years imprisonment.

      Appellant filed no direct appeal, but filed a timely PCRA petition on

November 20, 2016, claiming that her plea counsel was ineffective in failing

to pursue a house-arrest sentencing option that she claims was discussed with

the district attorney’s office.   Counsel, and later substitute counsel, were

appointed. On April 20, 2017, counsel filed a petition to withdraw and no-

merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en

banc). Appellant did not respond to counsel’s motion, but filed several pro se

motions for sentence modification, which the PCRA court declined to entertain

given the pendency of the PCRA petition. On August 23, 2017, the PCRA court

granted counsel’s petition to withdraw, agreeing that there was no merit to

her claim, because her allegations did not establish that any ineffectiveness

of plea counsel caused her to enter an involuntary guilty plea. Memorandum

and Order, 8/23/17, at unnumbered 3.         Simultaneously, the PCRA court

advised Appellant that it intended to dismiss her petition if no objection was

filed within twenty days. Id. at unnumbered 4.

      Although Appellant did not file an objection within twenty days, the

PCRA court had not dismissed her petition when, on October 9, 2017,

previously-withdrawn counsel filed a “Petition to Preserve Jurisdiction

Pursuant to Newly Discovered Evidence.” Therein, counsel stated that, on


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August 9, 2017, he received a letter from Mr. Perry indicating that Appellant

was not the person who shot him; rather, he told police that Appellant did it

because he was upset that she did not visit him in the hospital.     Petition,

10/9/17, at ¶ 4. Based upon Mr. Perry’s letter, counsel filed the “Petition to

Preserve Jurisdiction,” which he termed to be a “Supplemental PCRA petition”

to “preserve this particular issue in a timely manner.” Id. at ¶ 12. Counsel

additionally requested leave for Appellant “to supplement and/or amend the

instant petition once [counsel] has had the opportunity to speak with [Mr.

Perry.]”2 Id. at unnumbered 5.

       The PCRA court ordered the Commonwealth to file an answer to what it

termed “Petitioner’s Motion to Preserve Newly Discovered Evidence.” Order,

10/11/17. The Commonwealth complied, requesting “that [Appellant] prove

her allegations at a PCRA hearing to be scheduled at [the PCRA court’s]

convenience.” Commonwealth’s Response, 11/7/17, at ¶ 2.

       Nonetheless, the PCRA court instead entered an order dismissing

Appellant’s PCRA petition.          On the same day, the PCRA court filed a

memorandum and order in which it both denied Appellant’s “Motion to




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2 Counsel indicated that his attempts to contact Mr. Perry at his current
address (SCI Smithfield) had been unsuccessful, so he was not yet able to
verify Mr. Perry’s statements to determine whether to request an evidentiary
hearing. Petition, 10/9/17, at ¶ 4, 11.



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Preserve Newly-Discovered Evidence” as untimely and issued a twenty-day

notice of its intent to dismiss it.3 Memorandum and Order, 12/18/17, at 1, 7.

       Appellant, through counsel, timely filed a notice of appeal.         Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.           On appeal,

Appellant claims that the PCRA court abused its discretion in denying her

petition regarding the newly-discovered evidence. Appellant’s brief at 7.

       “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super. 2011)). While

we grant great deference to the PCRA court’s factual findings supported by

the record, “we afford no such deference to the post-conviction court’s legal

conclusions. We thus apply a de novo standard of review to the PCRA Court’s

legal conclusions.” Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa.Super.

2018) (citations omitted).

       The PCRA court’s denial of Appellant’s claim related to Mr. Perry’s new

information is based upon its legal conclusion, unsupported by citation to any

authority, that “Petitioner’s Petition to Preserve Jurisdiction Pursuant to Newly



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3 Although the trial court did not follow through with a subsequent order
dismissing Appellant’s “Motion to Preserve Newly-Discovered Evidence,” none
was necessary to finalize its ruling, as it had already denied the motion.

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Discovered Evidence, properly construed as a second PCRA Petition, fails to

plead an exception to the timeliness requirements” of the PCRA.          Opinion,

3/7/18, at 3. See 42 Pa.C.S. § 9545(b) (providing that any PCRA petition,

including second and subsequent petitions, must either be filed within one

year of the judgment of sentence becoming final, or plead and prove a

timeliness exception).

      Had Appellant’s first, timely PCRA petition been dismissed before she

filed her “Petition to Preserve Jurisdiction,” we would not hesitate in concluding

that it was properly treated as a second, facially-untimely petition.        See

Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003) (holding Superior

Court erred in holding second, late-filed petition constituted an amendment to

the earlier, timely petition that had been withdrawn, because “there was

nothing pending before the PCRA court that [the petitioner] could ‘amend’”).

      However, Appellant’s initial, timely PCRA petition was still pending at

the time she filed her “Petition to Preserve Jurisdiction.” Pa.R.Crim.P. 905

provides, in relevant part, “The judge may grant leave to amend or withdraw

a petition for post-conviction collateral relief at any time. Amendment shall

be freely allowed to achieve substantial justice.” Pa.R.Crim.P. 905(A).

      Our Supreme Court has found amendment of a pending, timely PCRA

petition was properly granted, even long after the initial one-year time bar,

regardless of a lack of relation of the amendments to the initial claims.

Commonwealth v. Flanagan, 854 A.2d 489, 499 (Pa. 2004) (holding court


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properly treated 1999 petition as an amendment to a still-pending 1988

petition rather than “as a serial, post-conviction petition which would be

independently subject to the PCRA’s one-year time limitation”). The Court

explained:

     PCRA courts are invested with discretion to permit the amendment
     of a pending, timely-filed post-conviction petition, and this Court
     has not endorsed the . . . position that the content of amendments
     must substantively align with the initial filing.        Rather, the
     prevailing rule remains simply that amendment is to be freely
     allowed to achieve substantial justice. The Court has recognized
     that adherence to such rules governing post-conviction procedure
     is particularly appropriate since, in view of the PCRA’s time
     limitations, the pending PCRA proceeding will most likely comprise
     the petitioner’s sole opportunity to pursue collateral relief in state
     court.

Id. at 499-500.

     Our Supreme Court has offered the following explanation of Rule

905(A)’s amendment process.

     Our criminal procedural rules reflect that the PCRA judge may
     grant leave to amend . . . a petition for post-conviction collateral
     relief at any time, and that amendment shall be freely allowed to
     achieve substantial justice. Nevertheless, it is clear from the
     rule's text that leave to amend must be sought and obtained, and
     hence, amendments are not self-authorizing. Thus, for example,
     a petitioner may not simply amend a pending petition with a
     supplemental pleading. Rather, Rule 905 explicitly states that
     amendment is permitted only by direction or leave of the PCRA
     Court.

Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (citations

and quotation marks omitted).

     We now apply the above law to the facts of the instant case. Appellant’s

second petition opens with the indication that she, through counsel, “submits

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this Supplement to her previously filed Petition for relief pursuant to the

[PCRA.]” Petition, 10/9/17, at unnumbered 1. In the body of the petition,

Appellant indicates that she “amends [her] Petition to preserve the issue of

newly discovered evidence,” to state her new allegations of Mr. Perry’s

recantation. Id. at ¶ 4.

      Clearly, Appellant’s filing was not sufficient to itself constitute an

amendment of her pending, timely petition.          Baumhammers, supra.

However, Appellant’s petition additionally included a specific request that the

PCRA court “Permit [Appellant and/or counsel] to supplement and/or amend

the instant petition[.]”   Id. at unnumbered 5.       Rather than rule upon

Appellant’s request by applying the liberal amendment policy of Rule 905(A),

the PCRA court dismissed the pending timely petition and instead analyzed

the request for amendment “as a serial, post-conviction petition which would

be independently subject to the PCRA’s one-year time limitation.” Flanagan,

supra at 499. In so doing, the PCRA court committed an error of law. See

id. at 499-500. See also Commonwealth v. Williams, 828 A.2d 981, 993

(Pa. 2003) (holding petitioner's subsequent PCRA petitions constituted

amendments to timely-filed first petition, where first petition remained

pending because the court had taken no action on motion to withdraw it).

      Accordingly, we vacate the PCRA court’s orders dismissing Appellant’s

timely PCRA petition and denying Appellant’s October 9, 2017 “Petition to

Preserve Jurisdiction Pursuant to Newly Discovered Evidence.” Upon remand,


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the PCRA court shall consider Appellant’s petition to amend under the rubric

of Pa.R.Crim.P. 905(A).

      Orders vacated.     Case remanded with instructions.       Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/10/2018




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