J-S01042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                          : IN THE SUPERIOR COURT OF
 PENNSYLVANIA,                            :        PENNSYLVANIA
                                          :
                    Appellee              :
              v.                          :
                                          :
 JAMIR D. WILLIAMS,                       :
                                          :
                    Appellant             : No. 2334 EDA 2019

             Appeal from the PCRA Order Entered July 8, 2019
             in the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0003302-2012

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

MEMORANDUM BY STRASSBURGER, J.:                          Filed: March 23, 2020

      Jamir D. Williams (Appellant) pro se appeals from the order entered July

8, 2019, which dismissed his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.      Upon review, we quash this appeal as

untimely filed.

      We note briefly that, in the early morning hours of July 24, 2010,

Appellant shot and killed Rahim Hicks at close range outside J&S Seafood in

Delaware County, Pennsylvania. A stray bullet wounded another individual.

Following a police investigation, Appellant was ultimately arrested and

charged with first-degree murder and related offenses on February 9, 2012.

After extensive pretrial motions and a three-day trial, a jury convicted

Appellant of one count each of first-degree murder and possession of an




* Retired Senior Judge assigned to the Superior Court.
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instrument of a crime (PIC) on October 23, 2014.       On March 20, 2015,1

Appellant was sentenced a term of life imprisonment without the possibility of

parole (LWOP) on the first-degree murder conviction, and a consecutive term

of 30 to 60 months of incarceration on the PIC conviction.2

       Appellant timely appealed to this Court, and on November 28, 2016,

this Court affirmed Appellant’s judgment of sentence. Commonwealth v.

Williams, 159 A.3d 600 (Pa. Super. 2016) (unpublished memorandum).

Appellant did not seek a petition for allowance of appeal with our Supreme

Court.

       On December 27, 2016, Appellant pro se filed a motion seeking the

appointment of counsel to assist him in filing a PCRA petition, which the PCRA

court treated as a timely-filed PCRA petition. On March 9, 2017, the PCRA

court appointed counsel for Appellant. Counsel requested and was granted

extensions of time to review the voluminous record. On October 10, 2017,

Appellant pro se filed a motion for appointment of new PCRA counsel, which

the PCRA court denied on October 16, 2017.


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1Sentencing was continued to this date by the trial court because Appellant
was charged with another homicide in an unrelated incident, docketed at CP-
23-CR-0002378-2012 (Docket 2378-2012).

2 The trial court ordered Appellant’s sentence to be run consecutively to his
sentence at Docket 2378-2012.           At Docket 2378-2012, Appellant was
convicted, inter alia, of first-degree murder and sentenced to LWOP.




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        On October 26, 2017, Appellant filed a motion to proceed pro se. After

a Grazier3 hearing on November 16, 2017, the PCRA court denied the motion.

However, the PCRA court permitted then-PCRA counsel to withdraw and

appointed new counsel.          Appellant pro se filed an appeal to this Court,

protesting the Court’s denial of his motion to proceed pro se.4 On February

20, 2018, this Court issued an order directing the PCRA court to conduct an

on-the-record determination as to whether Appellant’s waiver of counsel was

knowing, intelligent, and voluntary pursuant to Grazier.        After a second

Grazier hearing on May 1, 2018, the PCRA court permitted Appellant to

proceed pro se and appointed stand-by counsel “to answer any legal or

procedural questions that Appellant may have while filing PCRA documents.”

Trial Court Opinion, 8/28/2019, at 6; see also Order, 5/4/2018. By order

filed on October 12, 2018, this Court quashed the appeal at 150 EDA 2018 as

moot and interlocutory. Order, 10/12/2018.

        On May 30, 2018, Appellant pro se sought leave to amend his PCRA

petition,5 and on June 14, 2018, Appellant pro se filed an amended PCRA

petition. Therein, he claimed a due process violation based on his contention


____________________________________________


3   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

4   This appeal was docketed at 150 EDA 2018.

5It does not appear the PCRA court ruled upon said motion. In its opinion, the
PCRA court indicates that it did not rule on the motion because this Court had
not relinquished jurisdiction of Appellant’s aforementioned appeal. Trial Court
Opinion, 8/28/2019, at 6.

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that his conviction was the result of perjured witness statements to police and

trial testimony. Amended PCRA Petition, 6/14/2018, at ¶¶ 8-10.         He also

raised several claims of ineffective assistance of counsel for failing to (1)

request a mistrial due to the allegedly perjured statements and testimony, (2)

raise the due process violation in post-sentence motions or on direct appeal,

(3) pursue claims regarding pre-trial delay, (4) pursue an insanity defense,

(5) call a witness regarding police corruption, and (6) file a petition for

allowance of appeal with our Supreme Court. Id. at ¶ 11. The PCRA court

ordered the Commonwealth to respond, which it did on February 28, 2019.

On May 14, 2019, the PCRA court issued notice of its intent to dismiss without

a hearing pursuant to Pa.R.Crim.P. 907. Appellant pro se responded thereto,

and on July 8, 2019, the PCRA court dismissed Appellant’s petition.

        Appellant pro se filed a notice of appeal on August 12, 2019.6      On

September 16, 2019, this Court issued a rule to show cause as to why the

instant appeal should not be quashed as untimely filed. Order, 9/16/2019.

In his pro se response, Appellant stated only that his appeal should not be

dismissed because “the prisoner mailbox rule applies.”        See Appellant’s

Response to Court’s Show Cause Order, 10/18/2019.           Appellant did not

explain how or why the rule applies.




____________________________________________


6   Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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      On October 21, 2019, this Court ordered Appellant to file with this Court

proof of the date that Appellant mailed his pro se notice of appeal. Order,

10/21/2019. Appellant failed to file with this Court a response or such proof.

On December 3, 2019, this Court discharged the rule and referred it to this

panel for consideration.

      On appeal, Appellant claims the PCRA court erred in dismissing his PCRA

petition without a hearing, and specifically erred in dismissing his PCRA claim

of ineffective assistance of counsel for failure to file a petition for allowance of

appeal with our Supreme Court. Appellant’s Brief at 2.

      Before we reach the merits of Appellant’s appeal, we must first

determine whether we have jurisdiction to entertain this appeal.

      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).

      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. See Pa.R.A.P. 105. 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) (some internal

citations omitted).    “[T]he prisoner mailbox rule provides that a pro se

prisoner’s document is deemed filed on the date he delivers it to prison

authorities for mailing.” Commonwealth v. DiClaudio, 210 A.3d 1070, 1074

(Pa. Super. 2019) (citation omitted).

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       Examples of proof of the date of mailing the notice of appeal are a prison

cash slip from prison authorities, a certificate of mailing, or “any reasonably

verifiable evidence of the date that the prisoner deposits the appeal with the

prison authorities.”      Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.

1997). A prisoner bears the burden of proving delivery of the notice of appeal

to prison authorities within the prescribed time period for its filing. Id. This

Court has held that where the certified record does not indicate when an

appellant delivered the document to prison authorities for mailing, the

postmark date on the envelope may be used. DiClaudio, 210 A.3d at 1074,

citing Jones, 700 A.2d at 426 n.3.

       Instantly, the PCRA court dismissed Appellant’s pro se PCRA petition on

July 8, 2019. The certified docket indicates that on July 9, 2019, the PCRA

court sent the order to Appellant via first-class mail.7 For Appellant’s notice

of appeal to be considered timely, he had to file it within 30 days of the date

the clerk of courts mailed Appellant a copy of the order, i.e., August 8, 2019.

See Pa.R.A.P. 903(a); Pa.R.A.P. 108(a)(1) (providing that the day of entry of

an order by a court “shall be the day the clerk of court … mails or delivers



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7 The order contained in the certified record indicates that on July 8, 2019,
the PCRA court also sent the order to Appellant via certified mail. See
Pa.R.Crim.P. 907(4) (“When the [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.”).

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copies of the order to the parties….”).        Thus, Appellant’s August 12, 2019

notice of appeal is facially untimely.

      Appellant’s notice of appeal and proof of service were dated July 9,

2019. Contained in the certified record is the envelope in which Appellant

mailed his notice of appeal; the postmark date on the envelope is August 9,

2019, which is beyond the prescribed appeal period. Nothing in the record

supports Appellant’s contention that the notice of appeal was actually

delivered to prison authorities for mailing on July 9, 2019, as written on his

proof of service.   Appellant has not filed proof of a cash slip from prison

authorities, a certificate of mailing, or “any reasonably verifiable evidence of

the date” he deposited his notice of appeal with prison authorities. Further,

we note that the certified docket indicates that the PCRA court mailed its order

dismissing the PCRA petition on July 9, 2019, the same date Appellant

purports to have mailed his notice of appeal.

      Because Appellant has not met his burden of proving the date he

delivered his notice of appeal to prison authorities for mailing, and because

the envelope’s postmark date of August 9, 2019, is beyond the period for a

timely appeal to be filed, we are without jurisdiction and must quash the

appeal.

      Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/20




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