J-S63018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 SEAN DARRELL CASTAPHENY                 :
                                         :
                   Appellant             :   No. 215 WDA 2018

             Appeal from the PCRA Order November 21, 2017
   In the Court of Common Pleas of Cambria County Criminal Division at
                     No(s): CP-11-CR-0000520-2014,
                         CP-11-CR-0001309-2015


BEFORE:    OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                        FILED OCTOBER 31, 2018

      Sean Darrell Castapheny (Appellant) appeals the order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. Upon review, we affirm.

      This case sets forth a unique and confusing procedural history.      On

January 16, 2015, Appellant entered a negotiated guilty plea to firearms not

to be carried without a license, robbery, and aggravated assault relating to

crimes committed on January 27, 2014 (hereinafter referred to as Case 1).

The trial court sentenced Appellant to 12 to 48 months in prison, with credit




____________________________________
* Former Justice specially assigned to the Superior Court.
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for time served and automatic parole upon serving the minimum sentence. 1

No direct appeal was filed.2

       In May 2015, Appellant was charged with various drug and firearms

crimes stemming from a robbery-in-progress that occurred on May 18, 2015

(hereinafter referred to as Case 2). Of relevance to this appeal, upon arriving

at the scene, police discovered Appellant’s black book bag containing a fully

loaded .38 caliber revolver. At the time of the incident, Appellant specifically

denied ownership of the book bag, and thus abandoned it, permitting officers

to search the book bag without his consent. Appellant subsequently filed a

motion to suppress, seeking to suppress the firearm. A suppression hearing

was held on October 14, 2015, and the trial court denied Appellant’s motion

to suppress on October 19, 2015.               On December 23, 2015, the trial court

conducted a bench trial in Case 2, after which Appellant was acquitted of five

of the six counts. Appellant was found guilty of one count of firearms not to

____________________________________________


1 On January 29, 2015, the trial court amended Appellant’s sentence to reflect
the credit for time served, however all other aspects of the January 16, 2015
sentencing order remained “in full force and effect.” Amended Sentencing
Order, 1/29/15.

2  On February 12, 2016, Appellant filed a PCRA petition relating to his
convictions at Case 1. The PCRA court denied his petition without a hearing.
On March 21, 2016, Appellant filed pro se a second PCRA petition relating to
his convictions at Case 1. In his petition, Appellant asserted that counsel was
ineffective for failing to file a motion to withdraw his guilty plea. On March
30, 2016, the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907
informing Appellant that it planned to deny his petition without a hearing.
Appellant did not file a response, and the PCRA court entered an order denying
his petition on April 20, 2016.


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be carried without a license. On January 28, 2016, the trial court sentenced

Appellant to 30 to 72 months in a state correctional institution, boot camp

eligible with credit for time served. Appellant filed a direct appeal, challenging

the denial of his motion to suppress, and this Court affirmed his judgment of

sentence on March 27, 2017.       See Commonwealth v. Castapheny, 269

WDA 2016 (Pa. Super. March 27, 2017) (unpublished memorandum).

        Based upon the charges brought in Case 2, the Commonwealth

petitioned for a parole violation hearing in Case 1. On February 11, 2016, a

parole violation hearing was held and the trial court sentenced Appellant to 18

months in prison for violating of the terms of his parole to be served

consecutively to his sentence at Case 2.       Appellant filed a post-sentence

motion seeking to modify his sentence, which the trial court denied on

February 18, 2016. No direct appeal was filed.

        On May 4, 2017, Appellant filed the instant PCRA petition. Counsel was

appointed and filed an amended PCRA petition on July 28, 2017, and a second

amended PCRA petition on August 4, 2017. In his second amended petition,

Appellant alleged, inter alia, that the sentence he received after his parole

violation hearing was an illegal sentence and that he received ineffective

assistance of counsel during Case 2.        The PCRA court held a hearing on

Appellant’s petition on November 7, 2017, and thereafter denied Appellant’s

petition on November 21, 2017. This appeal followed. Both Appellant and the

PCRA court have complied with Pennsylvania Rule of Appellant Procedure

1925.

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      Appellant presents the following issues for our review:

      1. Was trial counsel ineffective in failing to object to or
         subsequently remedy an illegal sentence [Appellant] received,
         in the aggregate, on the above-captioned cases; i.e. his 48
         month to 90 month sentence?

      2. Was trial counsel ineffective in failing to fully appraise
         [Appellant] of the effect that remaining silent at trial would
         have on his appeal options relative to the issue of
         abandonment?

Appellant’s Brief at 6.

      We begin by noting our well-settled standard of review. “In reviewing

the denial of PCRA relief, we examine whether the PCRA court’s determination

is supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa. 2014) (internal quotation marks and citation omitted).

“The scope of review is limited to the findings of the PCRA court and the

evidence of record, viewed in the light most favorable to the prevailing party

at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014)

(citation omitted).       “It is well-settled that a PCRA court’s credibility

determinations are binding upon an appellate court so long as they are

supported by the record.” Commonwealth v. Robinson, 82 A.3d 998, 1013

(Pa. 2013) (citation omitted). However, this Court reviews the PCRA court’s

legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080, 1084

(Pa. Super. 2014) (citation omitted).

      Initially, we must address the fact that Appellant filed a single PCRA

petition with issues that relate to two different docket numbers. Specifically,



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Appellant’s first issue relates to his sentence imposed at Case 1, while

Appellant’s second issue challenges the effectiveness of trial counsel in Case

2. This Court has determined:

      “Where [] one or more orders resolves issues arising on more than
      one docket or relating to more than one judgment, separate
      notices of appeal must be filed.” Note to Pa.R.A.P. 341 (citing
      Commonwealth v. C.M.K., 932 A.2d 111, 113 n.3 (Pa. Super.
      2007)). In C.M.K., this Court quashed a single appeal from two
      judgments of sentence imposed on codefendants who were
      convicted and sentenced individually on different charges.
      C.M.K., 932 A.2d at 112. We noted that the filing of the joint
      appeal in that instance was unworkable because the appeals
      required individualized arguments, separate appellate analyses of
      the evidence, and distinct examination of the different sentences
      imposed. Id.

                               *     *      *

      While our Supreme Court recognized that the practice of appealing
      multiple orders in a single appeal is discouraged under Pa.R.A.P.
      512 (joint appeals), it previously determined that “appellate
      courts have not generally quashed [such] appeals, provided that
      the issues involved are nearly identical, no objection to the appeal
      has been raised, and the period for appeal has expired.” K.H. v.
      J.R., 826 A.2d 863, 870 (Pa. 2003) (citation omitted).

In the Interest of: P.S., 158 A.3d 643, 648 (Pa. Super. 2017) (footnote

omitted).

      More recently, on June 1, 2018, the Pennsylvania Supreme Court, in

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held that such practice

violates Pennsylvania Rule of Appellate Procedure 341, and the failure to file

separate notices of appeal for separate dockets must result in quashal of the

appeal.     See id. at 977.   The Court, however, announced that its holding

would apply prospectively only.

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      Here, Appellant filed his notice of appeal on December 13, 2017, and

therefore, we decline to quash the present appeal which was pending before

this Court at the time Walker was filed. Likewise, under the facts presented,

we decline to quash this appeal based on the analysis set forth in C.M.K.

Although Appellant’s issues require individualized arguments and separate

appellate analyses of the evidence, we note that the Commonwealth has not

objected to Appellant’s procedural error either before the PCRA court or this

Court.

      Finally, although we decline to quash Appellant’s appeal based upon

these procedural missteps, we must address whether we have jurisdiction to

hear Appellant’s appeal as it pertains to Case 1, in which Appellant argues that

his sentence is illegal.    More specifically, we must determine whether

Appellant’s first issue on appeal satisfies the jurisdictional timeliness

requirements of the PCRA.

      “Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of

the date on which the petitioner’s judgment became final, unless one of the

three statutory exceptions applies:

      (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;

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      (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)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Appellant’s first issue, which relates to Case 1, is facially untimely. “A

judgment is deemed 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.’” Monaco, 996 A.2d at 1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)).

The trial court resentenced Appellant for his parole violation on February 11,

2016. Appellant filed a post-sentence motion, which the trial court denied on

February 18, 2016, but did not file a direct appeal. Therefore, Appellant’s

judgment of sentence became final 30 days from February 18, 2016, or March



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21, 2016. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule,

the notice of appeal . . . shall be filed within 30 days after the entry of the

order from which the appeal is taken.”). Under Section 9545(b)(1), Appellant

needed to file a PCRA petition one year from March 21, 2016, or March 21,

2017. Appellant’s PCRA petition, however, was not filed until May 4, 2017.

Accordingly, we are without jurisdiction to decide Appellant’s appeal unless he

pled and proved one of the three timeliness exceptions of Section 9545(b)(1).

See Derrickson, 923 A.2d at 468.

      Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. Within his PCRA petition, Appellant asserts

that his post-conviction petition was timely because of the interference by

government officials in the presentation of the claim. According to Appellant,

because his direct appeal as to Case 2 was pending before this Court, he was

unable to file a PCRA petition raising claims relating to Case 1.       Appellant

contends that he was told he “had to wait until the whole process with [Case

2] was over before [he could try] to raise” a PCRA claim. N.T., 11/7/17, at 7.

      Appellant’s claim of governmental interference is unsupported by the

certified record.   First, we note that Appellant raised his governmental

interference claim in connection with his desire to withdraw his guilty plea in

Case 1, not in relation to the legality of his sentence after the parole violation

hearing.   See id. at 6-7.     Appellant has failed to specifically prove the

applicability of any of the exceptions to the PCRA’s time restrictions regarding

his legality of sentence claim.     Moreover, our review of the sentencing

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transcripts refutes Appellant’s claim, as the trial court properly informed

Appellant of his appellate rights, see id. at 15-17, and Appellant knowingly

waived them. In fact, the record reflects that Appellant’s counsel explained

on the record to Appellant that Appellant’s “rights with respect to challenging

the sentence [at Case 1] is separate, it’s a completely separate matter from

a PCRA proceeding potentially against . . . your former counsel, in a completely

different case.” Id. at 17-18.

      In sum, because Appellant’s first claim, which relates to Case 1, is

patently untimely, and Appellant has not met his burden of establishing an

exception to the PCRA’s time-bar, the PCRA court correctly determined that it

lacked jurisdiction to address the substantive claim raised by Appellant. We

therefore affirm the PCRA court’s order denying Appellant’s first claim for post-

conviction relief.

      For his second claim, Appellant challenges trial counsel’s effectiveness.

In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”         Id. (citation omitted).    If the




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petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Id.

      “Relating to the reasonable basis prong, [g]enerally, where matters of

strategy   and   tactics   are   concerned, counsel’s         assistance     is   deemed

constitutionally effective if he chose a particular course that had some

reasonable    basis    designed        to     effectuate    his   client’s    interests.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (quotations and

citation omitted).    “Courts should not deem counsel’s strategy or tactic

unreasonable unless it can be concluded that an alternative not chosen offered

a potential for success substantially greater than the course actually pursued.”

Id. (quotations and citation omitted).               To demonstrate prejudice in an

ineffective assistance of counsel claim, “the petitioner must show that there

is a reasonably probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”              Commonwealth v.

King, 57 A.3d 607, 613 (Pa. 2012).

      Appellant argues that the PCRA court erred in concluding that trial

counsel was not ineffective for failing to “fully apprise him of the effect that

remaining silent at a suppression hearing would have on his appeal options .

. . .” Appellant’s Brief at 12. Appellant contends that had trial counsel “made

[him] aware of what the legal consequences would be if he did not assert

ownership of the book bag” – treating the book bag as abandoned with no

reasonable expectation of privacy – “he would have testified truthfully that

the book bag was his.”           Id.        Appellant suggests that trial counsel’s

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ineffectiveness “closed the door on what would have been a meritorious appeal

option.” Id.

      In rejecting his ineffective assistance of counsel claim, the PCRA court

concluded that Appellant failed to prove by a preponderance of the evidence

that trial counsel was ineffective. Specifically, the PCRA court noted:

      [Appellant] did not subpoena [trial counsel] as a witness despite
      knowing he would be raising a challenge of ineffective assistance
      of counsel and so there was no testimony from [trial counsel] on
      this issue. The only evidence came from [Appellant’s] own self-
      serving testimony that [trial counsel] never discussed the pros
      and cons of testifying at the suppression hearing with [Appellant].
      This testimony is insufficient to establish ineffectiveness in light of
      the lack of testimony from [trial counsel] as to the basis for his
      decision not to have [Appellant] testify as well as his testimony
      relative to any conversations he may have had with [Appellant]
      on this issue.

PCRA Opinion, 2/19/18, at 10.

      We agree with the PCRA court that Appellant’s failure to call trial counsel

is fatal to his claim that counsel was ineffective for failing to have Appellant

testify at the suppression hearing. Without testimony from trial counsel, the

PCRA court could not determine counsel’s reason for not calling Appellant;

indeed there are a number of reasons why trial counsel might make such a

strategic choice. Because trial counsel did not testify, it was impossible for

the PCRA court to determine whether the failure to have Appellant testify at

the suppression hearing was the product of a reasonable strategic choice.

Therefore, Appellant failed to meet his burden of showing that counsel had no

reasonable basis for his actions, and we conclude that the PCRA court did not



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err in determining that counsel was not ineffective for failing to have Appellant

testify at the suppression hearing. See Bomar, 104 A.3d at 1188.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




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