J-S20038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

YASSIN HAYTHAME MOHAMAD

                         Appellant                     No. 1810 WDA 2014


              Appeal from the PCRA Order of October 17, 2014
               In the Court of Common Pleas of Fayette County
              Criminal Division at No.: CP-26-CR-0000399-2007


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                                 FILED MAY 05, 2015

      Yassin Mohamad appeals the October 17, 2014 order denying his

second petition for relief pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-46.      Mohamad filed the petition at issue in this case

outside of the time period prescribed by the PCRA, see 42 Pa.C.S.

§ 9545(b)(1), without satisfying any of the applicable exceptions to that

time frame.    See 42 Pa.C.S. § 9545(b)(1)(i-iii).      However, even though

facially untimely, Mohamad’s second petition was filed before the PCRA court

took any action on Mohamad’s first petition. The currently prevailing law in

Pennsylvania requires us to treat Mohamad’s second petition as an

amendment to his first unresolved PCRA petition. See Commonwealth v.

Swartzfager, 59 A.3d 616, 619 (Pa. Super. 2012). Accordingly, we remand

this case to the PCRA court for further proceedings.
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       On December 10, 2007, following a jury trial, Mohamad was convicted

of two counts each of criminal attempt—homicide, 18 Pa.C.S. §§ 901, 2501,

aggravated assault, 18 Pa.C.S. § 2702(a)(2), and simple assault, 18

Pa.C.S. § 2101(a)(1), charges which arose from Mohamad’s assault on two

prison guards.1 On December 14, 2007, the trial court sentenced Mohamad

to consecutive terms of ten to twenty years’ incarceration on the two counts

of criminal attempt—homicide. The trial court imposed no further penalty on

the remaining counts. The court also ordered that the aggregate twenty to

forty year sentence run consecutively to any other sentence that Mohamad

was serving at that time.

       On December 28, 2007, Mohamad filed a counseled notice of appeal.

Mohamad was directed by the trial court to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, on April

9, 2008, before he could file a statement, this Court dismissed Mohamad’s

appeal because Mohamad had failed to file a docketing statement with this

Court.

       On February 5, 2009, Mohamad filed his first pro se PCRA petition.

The record does not indicate that the PCRA court has disposed of this

petition in any manner. Nonetheless, on August 28, 2014, Mohamad filed


____________________________________________


1
       Because we dispose of this case based upon procedural grounds, the
facts underlying Mohamad’s convictions are immaterial to our resolution of
this case. Thus, we will not summarize those facts in this memorandum.



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the pro se petition at issue in this case, in which he alleged that his sentence

was illegal pursuant to the United States Supreme Court’s recent decision in

Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013) (holding that facts

that increase mandatory minimum sentences must be submitted to the jury

and must be found beyond a reasonable doubt). On September 22, 2014,

the PCRA court, finding that Mohamad’s second petition was untimely and

that no exceptions to the time bar applied, issued a notice to Mohamad of

the court’s intent to dismiss the petition without an evidentiary hearing

pursuant to Pa.R.Crim.P. 907.      Mohamad did not respond to the notice

within twenty days.    Consequently, on October 17, 2014, the PCRA court

entered an order formally dismissing Mohamad’s petition without a hearing.

      On November 3, 2014, Mohamad filed a pro se notice of appeal. On

November 13, 2014, the PCRA court directed Mohamad to file a Rule

1925(b) statement.     However, Mohamad did not comply with the PCRA

court’s directive. On December 16, 2014, the PCRA court filed a statement

in lieu of a Pa.R.A.P. 1925(a) opinion, in which the court noted that, because

Mohamad failed to file a concise statement, any issues raised by Mohamad

should be deemed to be waived.

      Mohamad presents one question for our review:           “Whether or not

[Mohamad] is entitled to remand for further proceedings upon his illegal and

unconstitutional sentence of mandatory minimum sentence claim?” Brief for

Mohamad at III.




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      Before we can address the merits of Mohamad’s claim, we first must

address the timeliness of Mohamad’s petition, and, therefore, the jurisdiction

of any Pennsylvania court to resolve Mohamad’s claims on the merits. The

PCRA’s strict and well-settled timeliness requirements are as follows:

      The PCRA “provides for an action by which persons convicted of
      crimes they did not commit and persons serving illegal sentences
      may obtain collateral relief.” 42 Pa.C.S.A. § 9542. When an
      action is cognizable under the PCRA, the PCRA is the “sole
      means of obtaining collateral relief and encompasses all other
      common law and statutory remedies for the same purpose[.]”
      42 Pa.C.S.A. § 9542.

      In order for a court to entertain a PCRA petition, a petitioner
      must comply with the PCRA filing deadline.                 See
      Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.
      2003).    The time for filing a petition is set forth in
      42 Pa.C.S.A. § 9545(b), which provides in relevant part:

         (b) Time for filing petition.—

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves 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.A. § 9545(b).

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       “[T]he time limitations pursuant to . . . the PCRA are
       jurisdictional.” Commonwealth v. Fahy, 737 A.2d 214, 222
       (Pa. 1999). “[Jurisdictional time] limitations are mandatory and
       interpreted literally; thus, a court has no authority to extend
       filing periods except as the statute permits.” Id. “If the petition
       is determined to be untimely, and no exception has been pled
       and proven, the petition must be dismissed without a hearing
       because Pennsylvania courts are without jurisdiction to consider
       the merits of the petition.” Commonwealth v. Perrin, 947
       A.2d 1284, 1285 (Pa. Super. 2008).

Commonwealth v. Jackson, 30 A.3d 516, 518-19 (Pa. Super. 2011).

       Mohamad’s second PCRA petition was filed on August 28, 2014,

approximately six years after this Court dismissed Mohamad’s appeal of his

judgment of sentence. Thus, the petition is facially untimely. However, our

analysis is complicated by the fact that Mohamad had filed a timely PCRA

petition on February 5, 2009, which was not ruled upon in any manner by

the PCRA court.        Based upon our recent decision in Swartzfager, we

conclude that Mohamad’s second petition is an amendment to his first

unresolved PCRA petition, and that the PCRA court retains jurisdiction to

dispose of all of Mohamad’s PCRA claims.

       In Swartzfager, the appellant filed a timely PCRA petition. However,

his attorney incorrectly determined that the petition was untimely, and

requested to withdraw as counsel for the appellant via a Turner/Finley no-

merit letter.2     The PCRA court granted counsel’s motion to withdraw as


____________________________________________


2
    See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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counsel and issued a Rule 907 notice of intent to dismiss the PCRA petition

without an evidentiary hearing. The appellant then filed a premature notice

of appeal.   The PCRA court never entered an order dismissing the PCRA

petition. This Court quashed the appeal as interlocutory.    No other action

was taken on the case until approximately ten years later when the

appellant filed a second PCRA petition.     The PCRA court dismissed the

second petition as untimely. Swartzfager, 59 A.3d at 617-18.

      On appeal, we reversed the PCRA court, holding that the second

petition should have been considered by the PCRA court as an amendment

to the first unresolved PCRA petition.     Id. at 619.    We explained our

rationale as follows:

      Pennsylvania law vests PCRA courts “with discretion to permit
      the amendment of a pending timely-filed post-conviction
      petition. . . .” Commonwealth v. Flanagan, 854 A.2d 489,
      499 (Pa. 2004).

         [T]he prevailing rule remains simply that amendment is
         to be freely allowed to achieve substantial justice.
         The [Pennsylvania Supreme] 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 500 (emphasis added) (internal citations omitted). In the
      absence of a final ruling on a timely-filed first PCRA petition,
      another petition for post-conviction relief can be considered an
      amended first timely petition.         See Commonwealth v.
      Williams, 828 A.2d 981 (Pa. 2003) (holding pro se petitioner’s
      subsequent PCRA petitions constituted amendments to timely-
      filed first petition; although petitioner filed pro se motion to
      withdraw first PCRA petition, court took no action on motion;
      thus, motion to withdraw first PCRA petition was without effect,

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     first PCRA petition remained valid, and court could not find
     subsequent PCRA petitions untimely).

     Nevertheless, the PCRA also provides for the dismissal of a
     properly filed petition under certain circumstances:

       § 9543. Eligibility for relief

                                   ***

       (b) Exception.—Even if the petitioner has met the
       requirements of subsection (a), the petition shall be
       dismissed if it appears at any time that, because of delay
       in filing the petition, the Commonwealth has been
       prejudiced either in its ability to respond to the petition or
       in its ability to re-try the petitioner. A petition may be
       dismissed due to delay in filing by the petitioner only after
       a hearing upon a motion to dismiss. This subsection does
       not apply if the petitioner shows that the petition is based
       on grounds of which the petitioner could not have
       discovered by the exercise of reasonable diligence before
       the delay became prejudicial to the Commonwealth.

     42 Pa.C.S. § 9543(b). Recently, our Supreme Court held that
     Section 9543(b) applies to delays in the filing of original or
     amended PCRA petitions:

       [T]he Commonwealth’s construction of Section 9543(b) as
       applicable to delays in filing either original or amended
       petitions is the most consistent with the legislative intent
       underlying the PCRA.       Initially, we note that Section
       9543(b) was enacted as part of the General Assembly’s
       overhaul of the post-conviction relief process in 1988, . . .
       and the requirement that an evidentiary hearing be held
       prior to dismissal for a delay in filing that causes prejudice
       to the Commonwealth was added via the 1995
       amendments to the PCRA, which also created the one-year
       jurisdictional time bar. . . . We have observed that this
       one-year time limitation, coupled with its few exceptions,
       reflects a legislative balance between the competing
       concerns of the finality of adjudications and the reliability
       of convictions. Section 9543(b) further demonstrates this
       balance by permitting a PCRA court to dismiss a matter on
       grounds of delay, which promotes the interest in finality,
       while requiring an evidentiary hearing where the
       Commonwealth must prove prejudice, thereby protecting

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            the reliability of the underlying conviction. Similarly, as
            the Commonwealth points out, Section 9543(b) specifies
            that prejudice can occur “at any time,” indicating that it
            was not only the commencement of PCRA proceedings with
            which the Legislature was concerned.

       Commonwealth v. Renchenski, 53 A.3d 251, 259 (Pa. 2012)
       (internal citations omitted).   See also Commonwealth v.
       Markowitz, 32 A.3d 706, 712-13 (Pa. Super. 2011) (stating
       delay in filing amended PCRA petition can cause Commonwealth
       undue prejudice in its ability to respond to petition or re-try
       case; court can consider delay in submitting amended petition
       when conducting prejudice analysis).

Swartzfager, 59 A.3d 619-20 (emphasis in original; citations modified).

Ultimately, we held that the appellant’s second PCRA petition “should be

construed as an amendment to his still open and timely-filed” first PCRA

petition.    Id. at 620.    We recognized that the delay might have caused

prejudice to the Commonwealth, and further held that “the best resolution of

this case is to vacate and remand for further proceedings,” including a

prejudice hearing and any hearings that may be necessary to adjudicate any

viable issues raised in the appellant’s petitions. Id. at 620-21, n.4.

       For the same reasons espoused in Swartzfager, we likewise conclude

that   Mohamad’s      second   PCRA   petition   should   be   construed   as   an

amendment to his first unresolved PCRA petition.          Accordingly, we vacate

the PCRA court’s order dismissing the petition.       Upon remand, the PCRA

court must hold a hearing on whether the approximately six-year delay in

filing the second PCRA petition caused prejudice to the Commonwealth as

described in Swartzfager.       Because Mohamad’s first PCRA petition is still

unresolved, the court also must ascertain whether Mohamad is entitled to, or

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desires, the appointment of counsel. Finally, if the Commonwealth cannot

demonstrate prejudice, the PCRA court must then resolve Mohamad’s PCRA

claims in accordance with the governing law.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2015




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