J-S02026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSEPH SCOTT                               :
                                               :
                      Appellant                :   No. 1733 EDA 2017

                    Appeal from the PCRA Order May 17, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-1026751-1982

BEFORE:       BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 02, 2018

        Appellant Joseph Scott appeals pro se from the order dismissing his fifth

Post Conviction Relief Act1 (PCRA) petition. He maintains that the PCRA court

erred by dismissing his petition because the record established he had court-

appointed counsel and by holding his petition was time-barred.2 We affirm.

        We briefly state the facts as set forth by this Court:

        The evidence revealed that [A]ppellant and two accomplices
        conspired to burglarize the home of a 73 year old man who they
        had previously known as a neighborhood bootlegger and who had
        supplied them with liquor at various times in the past. The
        conspiracy called for Naomi Mosely to have sex with the man while
        [A]ppellant and Joseph Willis ransacked the house. However,
        before the would be burglars could gain entry to the house, the
        victim and Miss Mosely emerged from a second floor bedroom and
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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.
2   We reordered Appellant’s arguments for the purpose of disposition.
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       surprised them at the front door. A confrontation ensued and
       [A]ppellant, wielding two knives, demanded money from the
       victim and then stabbed him when he refused to comply.

Commonwealth v. Scott, No. 1338 Philadelphia 1984, at 1 (Pa. Super. Nov.

1, 1985) (unpublished memorandum). Appellant was eighteen years old when

he committed the above-stated acts.

       A jury found Appellant guilty of second-degree murder, robbery,

conspiracy, and possession of an instrument of crime.             The trial court

sentenced him to a mandatory sentence of life imprisonment. Id. This Court

affirmed on direct appeal,3 and the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal on November 24, 1986.

       On October 9, 2007, Appellant, acting pro se, filed his fifth PCRA

petition, which gives rise to this appeal.       Specifically, he claimed that his

appellate counsel and first PCRA counsel were ineffective by failing to file an

appeal or an appellate brief.4        Appellant’s PCRA Pet., 10/09/07, at 3.   He

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3 Among the issues Appellant raised on direct appeal was whether the trial
court erred by failing to provide him with “reports and records of the
Commonwealth’s key witness Naomi Mosley’s psychiatric history and status.”
Scott, No. 1338 Philadelphia 1984, at 2. The Court affirmed that particular
issue on the basis of the trial court’s decision. Id. at 3. The trial court’s
decision, however, was not transmitted to this Court as part of the record.
4 We note that the relevant docket reflects that Appellant was represented on
direct appeal by George Newman, Esq., who filed an appellate brief on October
1, 1984. Docket for Scott, 1338 Philadelphia 1984. We add that Appellant
raised the issue of his first PCRA counsel’s alleged ineffectiveness in his second
PCRA petition. Commonwealth v. Scott, 2025 Philadelphia 1993, at 1 (Pa.
Super. Aug. 22, 1994) (stating, Appellant “brought a second post-conviction



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contended that his petition was timely because it was filed within sixty days

of the issuance of Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007).

Appellant observed that in Bennett, the Pennsylvania Supreme Court

reinstated a defendant’s PCRA appeal rights nunc pro tunc. PCRA Pet. at 3.

        On July 16, 2008, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss.     On August 2, 2008, Appellant filed his pro se response

reiterating his claims.5 In that response, Appellant stated that Bennett held

that the “after discovered evidence” exception set forth in 42 Pa.C.S. §

9545(b)(1)(ii) is a “misnomer and unduly limits application of that exception.”

Appellant’s Rule 907 Resp. at 1. Appellant construes Bennett as obligating

the trial court to admit Mosley’s mental health report into evidence, which, in

Appellant’s view, would have undermined her testimony.            Id. at 1-2.

Appellant labels this mental health report as Brady6 material and argues that

it would have led to a different outcome at trial. Id. at 2. He thus contends

he is entitled to a nunc pro tunc appeal from the PCRA court’s denial of his



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relief petition only because his then counsel did not file an appeal from an
adverse determination of his first petition”). That Court addressed that claim
and denied relief.
5  The court docketed Appellant’s response on August 19, 2008.       See
generally Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa. Super. 2006)
(recognizing that under the “prisoner mailbox rule” a document is deemed
filed when placed in the hands of prison authorities for mailing).
6   Brady v. Maryland, 373 U.S. 83 (1963).


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first PCRA petition. Id. The court did not rule on Appellant’s petition at this

time, and the docket lay dormant for five years.

       The PCRA court’s docket indicated that Richard W. Hoy, Esq.,

purportedly filed a response to the Rule 907 notice on August 19, 2008. Upon

inquiry by this Court, the PCRA court stated that the docket entry was

erroneous and that the only August 2008 filing was Appellant’s pro se

response. The PCRA court further noted that there was no indication that it

ever appointed Attorney Hoy as Appellant’s counsel for this fifth PCRA.

       On July 27, 2012, the PCRA court docketed Appellant’s amended PCRA

petition, which he filed without leave of court.    In his amended petition,

Appellant alleged that he met the newly-recognized constitutional right

exception, pursuant to 42 Pa.C.S. § 9545(b)(1)(iii). Appellant claimed that

even though he was eighteen years old at the time of his crimes, his sentence

was unconstitutional under Miller v. Alabama, 567 U.S. 460 (2012).7 The

court did not immediately act on Appellant’s petition. The docket reflects no

subsequent activity for almost eighteen months.




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7 In Miller, the Supreme Court held that a sentence of life imprisonment
without the possibility of parole was unconstitutional when imposed upon
defendants who were “under the age of 18 at the time of their crimes.” 132
S. Ct. at 2460. In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the
Supreme Court held that the Miller decision applied retroactively to cases on
state collateral review. Montgomery, 136 S. Ct. at 736.


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       On December 19, 2013, Appellant filed a motion for leave to amend his

October 11, 2007 PCRA petition and his July 27, 2012 amended PCRA petition.

The motion for leave attached a proposed amended PCRA petition, which

advanced only Appellant’s Miller claim and not the claim of direct appeal and

PCRA counsel’s ineffectiveness that was raised in his 2007 petition. The PCRA

court did not rule on Appellant’s motion for leave to amend.

       On March 15, 2014, Appellant filed another motion to amend his

petition, claiming that court-appointed Attorney Hoy abandoned him and thus,

he is entitled to relief under Bennett.8 The PCRA court, however, did not rule

on this motion. On August 11, 2014, Appellant filed a motion for appointment

of new counsel, which the court docketed on September 2, 2014. The court

did not rule on this motion for leave to amend, either.

       The PCRA court’s docket reflects an August 10, 2015 entry of Appellant’s

amended PCRA petition, but the record transmitted to this Court does not

contain the petition.9     On October 11, 2016, Appellant sent a letter to the

court requesting a status update. The court did not respond.




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8 Appellant asserted that he had requested a copy of the PCRA court’s docket,
from which he learned that Attorney Hoy was allegedly representing him.
9 This petition could have been entirely new, or could have been the petition
that was attached to his December 19, 2013, or March 15, 2014 motion for
leave to amend.


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       On November 29, 2016, Appellant filed a writ of mandamus noting that

the PCRA court has not ruled on his outstanding PCRA petition, which had

been pending for nine years. The court, again, did not rule.

       On December 13, 2016, Appellant filed a petition for extraordinary relief

with this Court, which reiterated his contention that the PCRA court had not

ruled on Appellant’s petition and various motions for almost a decade. This

Court denied Appellant’s petition, noting that only our Supreme Court has

original jurisdiction to compel the lower court to act. Order, 1/10/17.

       On March 28, 2017, Appellant filed another motion for appointment of

counsel. The docket reflects that a new judge was assigned to Appellant’s

case on April 3, 2017, and the trial court issued another Rule 907 notice on

April 4, 2017.10 The notice stated that Appellant’s petition failed to invoke an

exception to any of the PCRA’s timeliness requirements and that he was not

entitled to relief under Miller.

       Appellant filed a response to the Rule 907 notice on April 10, 2017. His

response argued that his fifth PCRA petition, filed on October 9, 2007, was

timely because it was filed within sixty days of the Bennett decision.

Appellant added that he requested a docket and saw that Attorney Hoy filed

a response to the PCRA court’s Rule 907 notice on August 19, 2008—the same



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10We would be remiss if we did not acknowledge that prior to this case being
reassigned to a new judge, the petition was not ruled on for almost ten years.


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date the court docketed his pro se response. He asserted that Attorney Hoy

abandoned him. Appellant also contended that he is entitled to relief under

Miller.

       On May 17, 2017, the PCRA court dismissed Appellant’s petition as

untimely.11 Appellant timely appealed. The court did not order Appellant to

file a Pa.R.A.P. 1925(b) statement.

       Appellant raises the two issues, which we have reordered as follows:

       1. Did the PCRA Court erroneously dismiss Appellant’s second or
          subsequent Petition when the record clearly shows that the
          PCRA had Counsel of Record?

       2. Did the PCRA Court dismiss Appellant’s second subsequent
          Petition based on erroneously concluding that it was untimely
          filed and does not plead or prove any exception to the time-
          bar?

Appellant’s Brief at 4.

       First, we address Appellant’s contention that he was appointed counsel

for the purposes of the present PCRA petition.      See Commonwealth v.

Jackson, 965 A.2d 280, 284 (Pa. Super. 2009). Appellant argued that the

court appointed Attorney Hoy between February and July of 2008. Appellant’s

Brief at 13. Appellant claims that under Bennett, Attorney Hoy abandoned

him. Id. Appellant asserts that because Attorney Hoy is representing him

and has not withdrawn, the PCRA court should have given counsel the


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11 We thus construe the court’s order as granting Appellant leave to amend
his 2007 PCRA petition.


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opportunity to respond to Appellant’s pro se amended petition invoking Miller.

For these reasons, Appellant concludes that the court erred by dismissing his

serial petition. Id. at 16-17.

      It is well settled that a defendant has an automatic right to court-

appointed counsel for the first PCRA petition.      See Pa.R.Crim.P. 904(A);

Jackson, 965 A.2d at 283. However, with respect to a second or subsequent

PCRA petition, Rule 904(D) governs:

      On a second or subsequent petition, when an unrepresented
      defendant satisfies the judge that the defendant is unable to afford
      or otherwise procure counsel, and an evidentiary hearing is
      required as provided in Rule 908, the judge shall appoint counsel
      to represent the defendant.

Pa.R.Crim.P. 904(D). The comment explains “the rule now limits appointment

of counsel on second or subsequent petitions so that counsel should be

appointed only if the judge determines that an evidentiary hearing is

required.” Pa.R.Crim.P. 904 cmt.

      Here, there is no indication that the PCRA court appointed Attorney Hoy,

let alone determined that an evidentiary hearing was required for Appellant’s

fifth PCRA petition. See Pa.R.Crim.P. 904. As stated above, we acknowledge

that the PCRA court’s docket indicated that Attorney Hoy filed a response to

the Rule 907 notice. But in response to this Court’s inquiry, the PCRA court

advised us that the docket entry was inaccurate and that it never appointed

Attorney Hoy. See id. In conjunction with the absence of any indication by

the PCRA court that it would have ordered an evidentiary hearing, we are


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satisfied that it did not appoint counsel for Appellant. Thus, Appellant’s first

claim warrants no relief.12

        Having resolved whether Appellant should be or was represented by

counsel, we summarize his argument for his last issue. Appellant contends

that because he turned eighteen just thirty days before he committed the

instant crimes, he should be entitled to the benefit of the holding in Miller,

which    prohibited     mandatory      life-without-parole   prison   sentences   for

defendants under the age of eighteen at the time of their crimes. Appellant’s

Brief at 14.

        We acknowledge that our Supreme Court has required this Court to

examine whether we have jurisdiction to entertain the underlying PCRA

petition. See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). “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. Wilson, 824

A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

        A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-


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12 Because we agree with the PCRA court that Attorney Hoy was not appointed
as counsel and that the docket erroneously indicated that Attorney Hoy filed
a response to the PCRA court’s Rule 907 notice, we need not consider whether
Attorney Hoy’s alleged abandonment constituted a time-bar exception under
Bennett.


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(iii) applies.” Commonwealth v. Copenhefer, 941 A.2d 646, 648 (pa. 2007)

(citations and footnote omitted). A petitioner must plead and prove 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. § 9545(b)(1)(i)-(iii).    “The PCRA’s timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not address

the merits of the issues raised in a petition if it is not timely filed. It is the

petitioner’s burden to allege and prove that one of the [three] timeliness

exceptions applies.” Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1267-

68 (Pa. 2008) (citations omitted). Finally, we add that the Miller decision

“applies to only those defendants who were ‘under the age of 18 at the time

of their crimes.’” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.

2016) (emphasis added) (quoting Miller, 132 S. Ct. at 2460).

      Instantly, we examine whether the PCRA court erred by holding

Appellant’s fifth PCRA petition was untimely. See 42 Pa.C.S. § 9545(b)(1),

(2); Abu-Jamal, 941 A.2d at 1267-68.          Appellant’s judgment of sentence

became final on November 24, 1986, after the Pennsylvania Supreme Court

denied his petition for allowance of appeal. Appellant had one year from that

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date to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Therefore,

Appellant’s serial petition, filed almost twenty years later on October 9, 2007,

is facially untimely.13 We thus review whether Appellant pled and proved any

of the PCRA time-bar exceptions.

       In this case, Appellant claims the holding in Miller applies to his case.

But, because Appellant was eighteen at the time he committed the offenses

for which he pled guilty, Miller does not control. See Furgess, 149 A.3d at

94. Because Appellant failed to plead and prove any timeliness exception, we

hold the PCRA court did not err by dismissing his fifth petition. See Wilson,

824 A.2d at 333.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/18


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13 Because Appellant’s petition was filed after January 16, 1996, he could not
take advantage of the timeliness exception discussed in Commonwealth v.
Banks, 726 A.2d 374, 376 (Pa. 1999) (holding that the PCRA “provides that
a petitioner whose judgment has become final prior to the effective date of
the act[, i.e., January 16, 1996,] shall be deemed to have filed a timely
petition . . . if the petitioner’s first petition is filed within one year of the
effective date of the act”).


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