J-S66009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    KEVIN WYATT

                             Appellant               No. 1522 EDA 2019


                   Appeal from the Order Entered April 8, 2019
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0603901-1990


BEFORE: STABILE, NICHOLS,JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 09, 2020

       Appellant Kevin Wyatt pro se appeals from the April 8, 2019 order of

the Court of Common Pleas of Philadelphia County (“PCRA court”), which

dismissed as untimely his fifth petition under the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-46. Upon review, we remand for further proceedings.

       The facts and lengthy procedural history of this case are undisputed.1

As summarized by a prior panel of this Court in connection with Wyatt’s 2015

appeal:

       Wyatt’s convictions stem from the 1990 shooting death of a
       jewelry store employee. In 1992, a jury found Wyatt guilty of
       first-degree murder [(18 Pa.C.S.A. § 2502(a))], two counts of
       robbery [(18 Pa.C.S.A. § 3701)], and criminal conspiracy [(18
       Pa.C.S.A. § 903)]. On June 1, 1993, the court sentenced Wyatt
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1 Wyatt has filed several PCRA petitions with the common pleas court, and
also has filed numerous petitions for writ of habeas corpus in the United States
District Court for the Eastern District of Pennsylvania as well as petitions for
review in the Commonwealth Court of Pennsylvania.
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        to a term of life imprisonment for the murder conviction, and two
        consecutive terms of 10 to 20 years in prison on the robbery
        charges, to be served concurrently with the murder sentence. [No
        further penalty was imposed with respect to the conspiracy
        charge.] A panel of this Court affirmed his judgment of sentence,
        and our Supreme Court denied his petition for allowance of appeal.
        Commonwealth v. Wyatt, 688 A.2d 710 (Pa. Super. 1997),
        appeal denied, 699 A.2d 735 (Pa. 1997).

        Wyatt then filed a [PCRA petition] on September 18, 1997,
        alleging trial and appellate counsel ineffectiveness. The PCRA
        court denied relief, and a panel of this Court affirmed the court’s
        dismissal of four of his five claims. However, the panel granted
        relief and ordered a new trial on the charge of murder based on
        trial counsel’s failure to object to an accomplice liability jury
        instruction. Commonwealth v. Wyatt, 782 A.2d 1061 (Pa.
        Super. 2001) (unpublished memorandum). Both Wyatt and the
        Commonwealth sought allocatur. The Pennsylvania Supreme
        Court denied the Commonwealth’s petition on October 15, 2002,
        Commonwealth v. Wyatt, 809 A.2d 904 (Pa. 2002), and denied
        Wyatt’s petition on June 3, 2003, Commonwealth v. Wyatt, 825
        A.2d 1261 (Pa. 2003).

        Subsequently, the matter returned to the trial court for a new trial
        solely on the charge of first-degree murder. On January 26, 2004,
        Wyatt entered a guilty plea to third-degree murder. That same
        day, the trial court imposed a sentence of ten years to twenty
        years in prison, consecutive to the previously imposed robbery
        sentences. No direct appeal was taken from that conviction and
        sentence.[2] Instead, since that time, Wyatt has inundated the
        courts with numerous petitions, raising an assortment of requests
        and claims. None of these petitions has provided Wyatt any relief.

Commonwealth v. Wyatt, No. 2343 EDA 2015, unpublished memorandum,

at 1-3 (Pa. Super. filed June 22, 2016) (footnotes omitted). On November

13, 2018, Wyatt filed the instant, his fifth, PCRA petition, alleging only that,

on September 20, 2018, he found out that his co-defendant (Tony Bennett)




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2   Wyatt’s judgment of sentence became final on February 25, 2004.



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received a shorter aggregate sentence.3 As a result, Wyatt claimed that his

due process and equal protections rights were violated.4

        In response, on February 22, 2019, the Commonwealth filed a motion

to dismiss the instant PCRA petition on timeliness grounds. On March 8, 2019,

the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the

petition without a hearing. The court directed Wyatt to respond to the Rule

907 notice within twenty days. Wyatt did not respond. On April 8, 2019, the

PCRA court dismissed as untimely Wyatt’s PCRA petition. On May 16, 2019,

more than thirty days after the April 8, 2019 order was entered, Wyatt pro se

filed the instant appeal.5

        Because Wyatt’s notice of appeal was filed outside of the thirty-day

appeal period, we must determine at the outset whether we have jurisdiction

to entertain this appeal. Under the “prisoner mailbox rule,” a pro se prisoner’s

document is deemed filed on the date he delivers it to prison authorities for

mailing. Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997); see also

Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998) (“[F]or

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3 Bennett also was offered and subsequently accepted a guilty plea for third-
degree murder and received a sentence of 10 to 20 years’ imprisonment.
However, unlike Wyatt, Bennett’s sentence for the third-degree murder was
concurrent with Bennett’s other sentences. Therefore, Bennett’s aggregate
term of incarceration was 22½ to 45 years compared to Wyatt’s 30 to 60 years
in prison.
4   Wyatt did not assert an ineffective assistance of counsel claim.
5 On November 4, 2019, in consideration of Wyatt’s response to our order to
show cause why this appeal should not be quashed as untimely, we discharged
the show cause order and referred the issue to the merits panel.

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prisoners proceeding pro se, a notice is deemed filed as of the date it is

deposited in the prison mail system.”).

      Pennsylvania Rule of Appellate Procedure 121 provides, in relevant part:

      A pro se filing submitted by a prisoner incarcerated in a
      correctional facility is deemed filed as of the date it is delivered to
      the prison authorities for purposes of mailing or placed in the
      institutional mailbox, as evidenced by a properly executed
      prisoner cash slip or other reasonably verifiable evidence of the
      date that the prisoner deposited the pro se filing with the prison
      authorities.

Pa.R.A.P. 121(a). A prisoner bears the burden of proving delivery of the notice

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

Jones, 700 A.2d at 426. Reasonable verifiable evidence for proving timely

delivery includes, but is not limited to, a Postal Form 3817 certificate of mailing

or a prison “cash slip” noting a prisoner account deduction and the date of

mailing. Id. The court may also consider a prisoner’s affidavit attesting to

the date of deposit, as well as evidence regarding the operating procedures of

the mail delivery service in question. Id. “Where . . . the facts concerning

the timeliness [of the filing] are in dispute, a remand for an evidentiary

hearing may be warranted.” Id. at 426 n.3

      In the present case, in his response to our show cause order, Wyatt

claimed that his notice of appeal was timely because he delivered the notice

to the prison authorities on April 24, 2019. He further claimed that on May

14, 2019, his mother found out that the alleged April 24, 2019 notice was

never received. Thus, according to Wyatt, on May 15, 2019, he resubmitted

the notice of appeal. Despite Wyatt’s claims, the certified record does not


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contain the envelope in which the April 24, 2019 notice of appeal allegedly

was mailed. Although the record contains a cash slip, it is unclear whether it

pertains to the April 24, 2019 notice of appeal.

       The certified record reveals that Wyatt filed a notice of appeal on May

16, 2019, eight days beyond the last day of the appeal period—May 8, 2019.

The May 16, 2019 notice of appeal and certificate of service, however, are

dated April 24, 2019. As a result, it is possible that Wyatt placed the pro se

documents in the hands of prison officials on or prior to May 8, 2019.6 Thus,

on the record before us a factual question exists as to whether the notice of

appeal was timely filed pursuant to the “prisoner mailbox rule.”

       Accordingly, we remand this case to the PCRA court to hold an

evidentiary hearing to determine whether Wyatt delivered his pro se notice of

appeal to prison authorities within thirty days of the April 8, 2019 PCRA order.

In other words, applying the “prisoner mailbox rule,” whether Wyatt’s appeal

was timely filed on or before May 8, 2019. In the event the PCRA court finds

that Wyatt’s notice of appeal was filed timely, it is directed to file a detailed

supplemental Rule 1925(a) opinion within sixty (60) days following the

conclusion of the evidentiary hearing.

       Case remanded for proceedings consistent with this memorandum.

Panel jurisdiction retained.



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6The Commonwealth takes no position on the timeliness of Wyatt’s appeal.
Commonwealth’s Brief at 6 n.2.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/20




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