J-S25042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RAYMOND LEROY ERWIN, JR.

                            Appellant               No. 1672 WDA 2015


                Appeal from the Order Entered October 6, 2015
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000581-2011


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED MAY 27, 2016

        Raymond Erwin files this appeal from an order dated October 6, 2015

denying his second petition for relief under the Post Conviction Relief Act

(“PCRA”)1. For the reasons that follow, we quash this appeal.

        The procedural history of this case is somewhat convoluted. On May

15, 2012, a jury found Erwin guilty of retail theft, graded as a third degree

felony.2 On August 15, 2012, Erwin was sentenced to 19 months – 7 years’

imprisonment.      Erwin filed a timely post-sentence motion, which the court

denied on November 14, 2012. On December 12, 2012, Erwin filed a timely

direct appeal.

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1
    42 Pa.C.S. § 9541 et seq.
2
    18 Pa.C.S. § 3929(b)(1)(v).
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       On January 11, 2013, while his direct appeal was pending, Erwin filed

a PCRA motion alleging ineffective assistance of trial counsel.3      The lower

court appointed PCRA counsel to represent Erwin.

       On November 12, 2013, the Superior Court affirmed Erwin’s judgment

of sentence in his direct appeal at 1956 WDA 2012.         Erwin did not file a

petition for allowance of appeal to the Pennsylvania Supreme Court.

       On January 30, 2014, PCRA counsel filed a motion for leave to file an

amended PCRA petition, which the lower court granted on the same day. On

February 11, 2014, PCRA counsel filed an amended PCRA petition alleging

claims of ineffective assistance of trial counsel that Erwin did not raise in his

original pro se petition.4

       On May 2, 2014, the lower court convened an evidentiary hearing on

the amended PCRA petition in which the lone witness was Erwin’s trial

counsel.    In an opinion and order dated May 15, 2014, the lower court

denied Erwin’s amended PCRA petition.




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3
  Erwin asserted that trial counsel was ineffective for failing to impeach a
Commonwealth witness with evidence that the witness’ in-court testimony
contradicted the report he had earlier given to the police.
4
   The new claims of ineffective assistance were that trial counsel (1)
improperly permitted the Commonwealth to introduce prejudicial evidence
concerning specific events underlying Erwin’s prior convictions for crimen
falsi and (2) failed to object to the prosecutor’s closing argument that Erwin
lied five times during his testimony.



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      Erwin did not appeal within thirty days after entry of the order denying

PCRA relief. On November 3, 2014, PCRA counsel filed a motion on Erwin’s

behalf requesting leave to appeal nunc pro tunc.     On the same date, the

lower court granted Erwin leave to appeal nunc pro tunc. On November 12,

2014, Erwin filed a notice of appeal.

      In a memorandum entered on May 6, 2015, this Court vacated the

order denying PCRA relief.   The panel reasoned that Erwin’s PCRA petition

was premature because he filed it while his direct appeal was pending.

Therefore, the panel stated, the lower court should have dismissed the PCRA

petition instead of addressing its merits. Commonwealth v. Erwin, 1880

WDA 2014, at 4-5 (Pa.Super., 5/6/15).

      On May 8, 2015, Erwin received this Court’s decision.      On May 15,

2015, Erwin filed a second PCRA petition, the petition under review in the

present appeal, re-alleging the claims asserted in his prior PCRA petition.

On June 4, 2015, Erwin filed an amendment to the second PCRA petition

claiming that it was timely under the “government interference” exception to

the PCRA’s one year statute of limitations, 42 Pa.C.S. § 9545(b)(1)(i).

According to Erwin, the lower court interfered with his right to file a timely

PCRA petition by addressing his prior untimely petition on the merits instead

of dismissing it as premature.

      In an opinion and order on October 6, 2015, the lower court held that

Erwin’s second PCRA petition was timely under section 9545(b)(1)(i). “Had

this Court dismissed [Erwin’s first PCRA] petition when it first arrived,” the

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lower court wrote, “Erwin would have known of his mistake and had an

informed opportunity to comply with the [PCRA’s statute of limitations] … In

failing to dismiss that petition, then, the Court interfered with Erwin’s right

to file a timely PCRA petition, and it was not until early May [2015] that he

became aware of it.”    Opinion On Second PCRA Petition, at 2.       Thus, “for

purposes of [section 9545(b)(1)(i)], Erwin is easily within the extended

statute of limitations. He learned no earlier than May 8, 2015 that the Court

effectively caused him to lose his statutory right to file a timely PCRA, and it

was only 1 week later when he filed his second PCRA petition.” Id. Having

found that it had jurisdiction over Erwin’s second PCRA petition, the lower

court denied it on the merits for the reasons provided in its May 15, 2014

order. Id.

      On October 21, 2015, Erwin filed a notice of appeal to this Court. Both

Erwin and the lower court complied with Pa.R.A.P. 1925.

      Erwin raises two issues in this appeal:

      Whether the trial court erred in failing to find [Erwin] was
      prejudiced by trial counsel’s ineffectiveness and [was] entitled to
      a new trial when, during [Erwin’s] jury trial, trial counsel failed
      to object and request a new trial when the Commonwealth
      introduced before the jury, through cross examination of
      [Erwin], evidence of [Erwin’s] prior crimen falsi convictions for
      the purpose of attacking [Erwin’s] credibility, where such
      questioning and testimony went beyond the name, time, and
      place of the prior crimes and the punishment received, and the
      details of the prior crimes were exploited by the Commonwealth
      at trial?

      Whether the trial court erred in failing to find that [Erwin] was
      prejudiced by trial counsel’s ineffectiveness and [Erwin] entitled


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       to a new trial when, during closing argument to the jury, the
       Commonwealth, without trial counsel objecting or requesting a
       new trial, engaged in improper and prejudicial conduct by telling
       the jury [that Erwin] lied in his testimony?

Brief For Appellant, at 4.

       We cannot address these claims unless Erwin’s second PCRA petition is

timely, for no court has jurisdiction to hear an untimely PCRA petition. See

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010). The

PCRA provides that a petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final.” 42

Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at 1079. A judgment is

final “at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

       The PCRA provides three limited exceptions in which a court may

excuse the late filing of a PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco,

996 A.2d at 1079. One of these exceptions, the “government interference”

exception, is the provision that Erwin and the lower court rely upon in the

present case.5      Under this exception, the late filing of a petition will be

excused if a petitioner alleges and proves that “the failure to raise the claim

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5
  Erwin does not contend that his present petition is timely under the other
two exceptions – the “newly acquired evidence” exception or the “new rule
of law” exception. See 42 Pa.C.S. § 9545(b)(1)(ii-iii). Having reviewed the
record, we find it clear that these exceptions are inapplicable.



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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.” 42 Pa.C.S.

§ 9545(b)(1)(i). A petition invoking an exception to the PCRA time-bar must

“be filed within 60 days of the date the claim could have been presented.”

42 Pa.C.S. § 9545(b)(2).

       Erwin’s judgment of sentence became final on December 12, 2013, his

deadline for filing a petition in the Pennsylvania Supreme Court seeking

review of this Court’s order affirming his judgment of sentence on direct

appeal. See 42 Pa.C.S. § 9545(b)(3). Thus, the statute of limitations for

filing a PCRA petition expired on December 12, 2014. His present petition

filed on May 15, 2015 is facially untimely.

       Nor does Erwin’s petition fit within the “government interference”

exception to the statute of limitations.      This exception applies when, for

example, the court affirmatively misleads the petitioner on a material issue.

See,    e.g.,   Commonwealth       v.   Blackwell,     936   A.2d   497,   502

(Pa.Super.2007) (“the PCRA court's erroneous notification to Appellant that

PCRA counsel had withdrawn amounted to governmental interference” that

excused his untimely filing of third PCRA petition alleging ineffective

assistance by PCRA counsel). Conceivably, this exception could also apply

when the government conceals exculpatory evidence from the petitioner.

See, e.g., Commonwealth v. Stokes, 959 A.2d 306 (Pa.2008) (suggesting


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that concealment of Brady material could form basis for relief under

government interference exception if petitioner files PCRA petition within 60

days after discovery of concealment).

       In the present case, the lower court lacked jurisdiction over Erwin’s

January 11, 2013 PCRA petition, because he filed it while his direct appeal

was pending.         See Commonwealth v. Leslie, 757 A.2d 984, 985

(Pa.Super.2000) (PCRA petition filed during pendency of direct appeal should

be dismissed without prejudice as premature). Instead of dismissing Erwin’s

PCRA petition, the lower court held an evidentiary hearing on the petition

and then denied it in May 2014. Erwin subsequently appealed, and on May

6, 2015, this Court ruled that his PCRA petition was premature.6      By this

point, it was too late for Erwin to file a timely PCRA petition, because the

statute of limitations had expired in December 2014.



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6
  Notably, this decision applied both to Erwin’s original PCRA petition, which
was filed before this Court decided his direct appeal, and his amended PCRA
petition adding new claims, even though it was filed after this Court decided
his direct appeal. This Court’s decision did not distinguish between the
original and amended petitions; the plain language of its decision covers all
claims in the original and amended filings. See Commonwealth v. Erwin,
1880 WDA 2014, at *6 (“Because the PCRA court improperly addressed the
merits of Appellant’s petition, we are constrained to vacate its order denying
the petition”). Under the doctrine of coordinate jurisdiction, we must comply
with this decision. See Commonwealth v. Starr, 664 A.2d 1326, 1331
(Pa.1995) (“upon a second appeal, an appellate court may not alter the
resolution of a legal question previously decided by the same appellate
court”).



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      We acknowledge that these facts are unfortunate, and we commend

the lower court’s gallantry in opining that it interfered with Erwin’s right to

file a timely PCRA petition by entertaining his premature PCRA petition.

Nevertheless, we decline to conclude that the lower court “interfered” with

Erwin’s rights. In 2013, when Erwin filed his premature petition, it was well-

settled under Leslie that defendants cannot file PCRA petitions while their

direct appeals remain pending. Moreover, Erwin was represented by counsel

for 15½ of the 16 months in which the lower court entertained Erwin’s PCRA

petition. The lower court did nothing during this time to prevent counsel (or,

for that matter, Erwin himself) from researching the law; ascertaining that

Erwin’s PCRA petition was premature; discontinuing the premature petition;

and filing a new, timely PCRA petition. The lower court should not bear the

blame for what Erwin and his attorney failed to do themselves.

      For these reasons, the lower court lacked jurisdiction over Erwin’s

present PCRA petition. Therefore, we quash this appeal.

      Appeal quashed.


      Judge Mundy Concurs in Result.


      President Judge Emeritus Ford Elliott files a Dissenting Memorandum

Statement.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2016




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