J-S60010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WARREN GERBER                              :
                                               :
                       Appellant               :   No. 424 MDA 2018

                 Appeal from the PCRA Order January 30, 2018
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0005110-2006


BEFORE:       SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                             FILED OCTOBER 24, 2018

        Appellant, Warren Gerber, appeals pro se from an order entered on

January 30, 2018, denying his motion to amend a previously filed Post

Conviction Relief Act (“PCRA”)1 petition. After review, we affirm.

        The PCRA court summarized the facts and procedural history of this case

as follows:

              This matter comes before the [c]ourt pursuant to
        Appellant’s appeal from this [c]ourt’s dismissal of Appellant’s
        motion for leave to amend a 2009 PCRA petition. By way of a quick
        review, the Appellant filed a PCRA in 2009 and a second PCRA in
        2010 while the first was pending. In February 2014, the PCRA
        matter was dismissed upon motion of Appellant’s court appointed
        counsel. In March of 2017, Appellant attempted to amend the
        2009 PCRA that was denied by the [c]ourt [on January 30,] 2018.
        Appellant filed a Notice of Appeal on February 23, 2018, which
        gives rise to the instant opinion.
____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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           The procedural history regarding this matter is somewhat
     detailed.

           Initially, on May 3, 2007, the case was assigned to the
     former Judge Michael T. Toole for adjudication.1 Appellant plead
     guilty to Theft by Unlawful Taking or Disposition, 18 Pa. C.S.A.
     §3921 (a), (F3), forty-one (41) counts; Receiving Stolen Property,
     18 Pa. C.S.A. §3925 (a), (F3), six (6) counts; Burglary, 18 Pa.
     C.S.A. §3502, (F2), two (2) counts; and Criminal Conspiracy to
     commit §3925 Receiving Stolen Property, 18 Pa. C.S.A. §903
     (a)(1)(2), (F3), (1) count. On April 14, 2008, former Judge
     Michael Toole sentenced the Appellant.

          1 Former Judge Michael T. Toole served as a Judge for
          the Luzerne County Court of Common Pleas from
          January 2004 until his resignation in December 2009.

           On April 23, 2008, Appellant filed a post-sentence motion
     and on May 1, 2008, Appellant’s post-sentence motion was
     granted and Appellant’s prior sentence was vacated and he was
     resentenced as follows:

          Count 1:           24 months to 48 months at a State
                             Correctional Institute;

          Counts 2-41:       24-48 months concurrent to Count
                             1;

          Count 42:          24   months     to    48    months
                             consecutive to Count 1;

          Count 43[-46]:     []24   months    to   48    months
                             concurrent to Count 2;

          Count 47:          24   months     to    48   months
                             consecutive to Count 42 and 1;

          Count 48:          24   months     to    48   months
                             consecutive to 47, 42 and 1; and

          Count 49:          24   months      to   48    months
                             consecutive to Count 48, 47, 42 and
                             1

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           The [c]ourt further ordered all sentences to run
           consecutive to Criminal Information 2006-2537 and
           2006-2538 for a total aggregate sentence of 10-20
           years.

            On May 14, 2009, Appellant filed a pro se PCRA Petition that
     was assigned to former Judge Michael Toole. While Appellant’s
     first PCRA was pending, Judge Michael Toole resigned in
     December 2009. Thereafter, on September 16, 2010, Appellant
     filed a second PCRA Petition that was assigned to, Judge Joseph
     Van Jura for adjudication.2 Judge Van Jura appointed Jeffrey A.
     Yelen, Esquire as conflict PCRA counsel. A hearing was scheduled
     for October 25, 2010. Thereafter the court issued an order on May
     20, 2011, allowing for supplements to the pending PCRA matters
     and allowed [Appellant] to request an evidentiary hearing by June
     20, 2011. On July 18, 2011, Judge Van Jura issued another order
     wherein he again allotted time for supplements to the PCRA
     petition and allowed [Appellant] to request an evidentiary hearing
     by August 31, 2011. Judge Van Jura’s appointment to the bench
     expired on December 31, 2012.

           2 Judge Joseph J. Van Jura, retired, was confirmed by
           the Pennsylvania State Senate to serve as a Court of
           Common Pleas Judge in Luzerne County on March 16,
           2010 and his term expired on January 2, 2012.

           Ultimately, the pending PCRA matters were reassigned to
     this [c]ourt. Neither the 2009 or the 2010 PCRA petitions were
     adjudicated at that time.3 In order to quickly schedule and move
     the long outstanding matter forward, the [c]ourt re-appointed
     Jeffrey A. Yelen, Esquire to handle the pending PCRA matters on
     February 6, 2014. It should be noted that Attorney Yelen was
     originally appointed by Judge Van Jura in 2010.

           3 The Appellant filed several matters in federal court
           including a pro se Petition for Habeas Corpus on or
           about May 4, 2012.

           Thereafter, on February 19, 2014, Appellant filed a motion
     to withdraw the PCRA matters. Thereafter, on February 26, 2014,
     an Order was signed and filed, based upon the motion of
     Appellant, granting the Motion to Withdraw noting the pending
     matters were dismissed without prejudice. The court was unaware

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     of any objections by [Appellant] to the motion to withdraw at the
     time the order was signed. In that same order, Attorney Yelen was
     permitted to withdraw as counsel.

            In review, the pending PCRA matters were adjudicated and
     dismissed as of February 26, 2014. The Appellant did not appeal
     the withdrawal or file a PCRA petition as to his assigned counsel
     and complaints of ineffectiveness. Rather, he filed a series of
     documents and letters. The [t]rial [c]ourt did receive Petitioner’s
     Supplemental Objections to Counsel’s Motion to Withdraw PCRA
     Submission that was filed on July 22, 2014. This document was
     filed almost five (5) months after the Order dismissing the pending
     PCRA issues was filed. The docket went silent until March of 2017.

            On March 13, 2017, Appellant filed a Motion for Leave to
     Amend      PCRA,       pro   se,   that  included    Appellant’s
     supplement/amendment to the PCRA Petition. In this petition, the
     Appellant was attempting to amend and supplement the first PCRA
     Petition that he filed on May 14, 2009.

            On April 18, 2017, Paul Galante, Esquire was appointed as
     counsel for Appellant and a hearing date was scheduled regarding
     the filing. After several continuances were granted on behalf of
     the Appellant, a hearing was held on January 30, 2018. At that
     time, the Commonwealth argued that the request to amend the
     petition was moot in that there were no matters pending before
     the court. The Commonwealth maintained that [Appellant] could
     not supplement a PCRA that was dismissed previously.

           The [c]ourt reviewed the record and found that Appellant’s
     PCRA matters were denied and dismissed on February 26, 2014,
     therefore, a PCRA Petition was not currently pending before the
     [c]ourt. At the hearing on January 30, 2018, [Appellant] stated
     that he knew his 2010 PCRA was untimely and that he should
     never have been appointed a lawyer. (N.T. 1/30/2018 p. 43). The
     [c]ourt then pointed out that the Order appointing Attorney Yelen
     in February 2014 appointed him as PCRA counsel and [did not]
     specifically state it was for the 2010 PCRA only. The appointment
     was as PCRA counsel.

           Further, at the time of the hearing and after review of the
     status of this matter, Appellant was told that if a warranted motion
     was filed, the [c]ourt would entertain the motion at that time
     regarding the PCRA matters.

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             At that time, [o]n January 30, 2018, Appellant also argued
       that he no longer wanted [c]ourt appointed counsel and that he
       wanted to pursue his legal matters pro se. Based upon the request
       of the Appellant, a Grazier[2] hearing was held and after an
       extensive colloquy of record, Appellant’s counsel was allowed to
       withdraw from the case in order for Appellant to represent himself.

              Thereafter, on February 23, 2018, Appellant filed a Notice
       of Appeal. On March 1, 2018, an order was entered by the [c]ourt
       directing that Appellant file a Concise Statement of Errors
       Complained of on Appeal pursuant to Pa. R.A.P. § 1925(b). On
       March 19, 2017, Appellant filed a Concise Statement of Matters
       Complained on Appeal.

PCRA Court Opinion, 5/16/18, at 1-5.

       On May 5, 2018, this Court issued a Rule to Show Cause why this appeal

should not be dismissed as untimely filed. Appellant filed a response, and the

rule was discharged on May 30, 2018. As noted above, the order denying

Appellant’s motion was filed on January 30, 2018. Accordingly, Appellant had

thirty days in which to file a timely appeal. Pa.R.A.P. 903(a). Appellant’s

notice of appeal was docketed in the PCRA court on March 5, 2018, which

makes it facially untimely. However, the record reveals that Appellant’s notice

of appeal was dated February 23, 2018.3 Pursuant to 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. Jordan, 182 A.3d 1046,



____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

3February 23, 2018, is the date that the PCRA court deemed Appellant’s notice
of appeal filed. PCRA Court Opinion, 5/16/18, at 1 and 5.

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J-S60010-18


1048 n.3 (Pa. Super. 2018). Thus, Appellant’s notice of appeal was timely if

it was delivered to prison authorities on February 23, 2018, the date that is

on the document, and the date that was accepted by the PCRA court.

Moreover, in Appellant’s response to our Rule to Show Cause, he appended a

mail receipt that revealed the appeal was postmarked February 26, 2018, and

received by the Luzerne County Clerk of Courts on March 1, 2018.

Additionally, the PCRA court stated in its March 1, 2018 order directing

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), that it had received Appellant’s notice of

appeal, i.e., it was filed on or before March 1, 2018. We are satisfied that

Appellant filed his notice of appeal, at the latest, on February 26, 2018, as

reflected by the postmark.4         Accordingly, Appellant’s notice of appeal was

timely.

       On appeal, Appellant raises the following issues:

       I. Whether Appellant’s supplemental PCRA petition should be
       remanded to the PCRA court, and his PCRA rights restored,
       because the current PCRA was an amendment to his first petition
       which was lost and improperly dismissed by the PCRA court, when
       Appellant was entitled to the assistance of competent counsel to
       frame, in a legally intelligible fashion, the issues presented in his
       pro se first PCRA petition and supplement thereto? To wit:

              a. Where counsel was ineffective per se, when
              Attorney Jeffery Yelen abandoned Appellant’s PCRA
              since 2010, was then reappointed by the PCRA court
              in 2014 to represent the same PCRA he had previously
____________________________________________


4 Even if the notice of appeal was not filed until March 1, 2018, the same day
that the PCRA court issued its Pa.R.A.P. 1925(b) order, the appeal was timely.

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J-S60010-18


           abandoned, and was then further permitted by the
           PCRA court to withdraw the Appellant’s PCRA petition
           over Appellant’s objections?

           b. Where the PCRA court failed to respond to
           Appellant’s objections to Attorney Yelen’s withdrawal
           of his PCRA petition, failed to inform Appellant of his
           right to appeal the 2014 Order dismissing his PCRA
           pursuant to Pa.R.Crim.P. 907(4), and failed to appoint
           counsel to execute an appeal from the 2014 Order
           pursuant to Pa.R.Crim.P. 904(F)(2), when Appellant
           requested, and was entitled to counsel?

           c. Where recent PCRA counsel, Paul A. Galante, left
           Appellant effectively un-counseled, when he failed to
           supplement Appellant’s PCRA to include the collective
           prejudice caused by the abandonment, then
           reappointment of initial PCRA counsel in conflict of
           Appellant’s interests, and the complete breakdown in
           due process by the PCRA court, requiring Appellant’s
           PCRA rights, if lost, to be restored nunc pro tunc,
           thereby establishing jurisdiction of the PCRA court to
           entertain Appellant’s petition?

     2. Whether, on remand, recusal is necessary to assure that due
     process of law, as guaranteed-by-the-Fourteenth Amendment to
     the constitution of-the United States arising from the appearance
     of bias on the part of the PCRA judge’s decisions to, and frequency
     of, absolving appointed ‘PCRA counsel of their obligation to take
     affirmative steps to competently discharge their duties pursuant
     to established PCRA rules and decisional laws? To wit:

           a. Where the court reappointed Attorney Yelen in
           2014 when the record indicated counsel had
           previously abandoned Appellant’s PCRA since 2010,
           and failed to meaningfully participate, and/or amend
           Appellant’s PCRA petition in violation of the
           representation requirement, and further permitted
           counsel to withdraw his petition “without prejudice,”
           ignoring Appellant’s objections, when prejudice was
           inherent by the PCRA’s (1) year timeliness
           requirement, thereby, forever barring Appellant from
           filing a future petition?


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J-S60010-18


          b. Where the court failed to advise Appellant of his
          right to appeal from the 2014 Order dismissing his
          PCRA petition pursuant to Pa.R.Crim.P. 907(4), and
          failed to appoint counsel to execute an appeal from
          the 2014 Order pursuant to Pa.R.Crim.P. 904(F)(2),
          when Appellant requested, and was entitled to counsel
          throughout the appeal process?

          c. Where the court clarified its 2014 Order dismissing
          Appellant’s PCRA, to mean that it dismissed both
          Appellant’s (lost) 2009 and 2010 petitions, when the
          Order was ambiguous, the record indicated
          Appellant’s PCRA rights were violated for over (8)
          years, and the Commonwealth interpreted the Order
          to mean the 2009 petition “has never been”1 ruled on,
          thereby, providing the court with the opportunity to
          protect Appellant’s PCRA rights, and interpret the
          Order in a manner establishing jurisdiction to
          entertain his supplemental PCRA, without further
          delay, and cost of appellate court intervention?

                1  See Record, Doc. 30, exhibit A,
                3/13/2017 PCRA Supplement, Appendix
                3, Commonwealth’s federal response,
                pg.6, “Technically, the motion was never
                decided because Gerber elected to file
                another Motion for PCCR in 2010 (and that
                motion was clearly untimely). The
                February 24, 2014 Order of the Luzerne
                County Court of Common Pleas does not
                impact the analysis of the statute of
                limitations issue. The court simply
                dismissed the 2010 Motion for PCCR as
                requested by Attorney Yelen. There has
                never been a ruling that the 2009 motion
                was improperly filed.”

          d. Where the court ordered, but never enforced,
          recent PCRA counsel, Attorney Galante, to
          supplement Appellant’s PCRA petition, where the
          issues of breakdown in the process of the court, and
          jurisdiction to entertain the PCRA petition could have
          been properly raised?


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J-S60010-18


            e. Where the circumstances of this case are eerily
            similar to that of Commonwealth v. Cherry, 155 A.3d
            1080 (Pa. Super. 2017), where this court again
            appointed Attorney Yelen who failed and refused to
            represent his PCRA client competently, and on the
            basis of stare decisis, where the court is shirking its
            duties and refusing to comport to precedent?

Appellant’s Brief at 4-6.

      Before we endeavor to address the merits of the issues that Appellant

purports to raise on appeal, we reiterate that the order on appeal is not an

order denying a PCRA petition; it is an “appeal [from] an order of court that

simply denied [Appellant’s] request to supplement a 2009 PCRA Petition in

March of 2017.” PCRA Court Opinion, 5/16/18, at 6.

      As noted above, the PCRA court concluded that Appellant filed a timely

PCRA petition in 2009, and it was assigned to Judge Michael Toole, who

resigned from the bench in December of 2009.        Although the 2009 PCRA

petition was docketed, the petition was never included in the record.

However, on September 16, 2010, Appellant filed a second PCRA petition.

That petition was assigned to Judge Van Jura, who appointed Attorney Jeffrey

Yelen. Judge Van Jura’s appointment expired on December 31, 2012, and this

matter was reassigned to the Honorable Tina Polachek Gartley, the current

PCRA court judge. After this case languished for over two years, the PCRA

court reappointed Attorney Yelen to represent Appellant on the pending PCRA

matters on February 6, 2014.




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       On February 19, 2014, Attorney Yelen filed a motion asserting that after

consulting with Appellant, Appellant decided not to pursue any PCRA matters

and asked to withdraw the PCRA petition. On February 26, 2014, the PCRA

court granted Appellant’s motion to withdraw the petition and permitted

counsel to withdraw.

       Five months later, on July 22, 2014, Appellant filed pro se objections to

counsel’s motion to withdraw his PCRA petition. Once again, the case went

dormant, and for nearly three years, nothing was filed in the PCRA court.5

       On March 13, 2017, Appellant filed a pro se motion for leave to amend

his PCRA petition. In this motion, Appellant sought to amend his 2009 PCRA

petition.

       In an abundance of caution, the PCRA court appointed Attorney Paul

Galante to represent Appellant in litigating the motion to amend his 2009

PCRA petition on April 19, 2017. Between the April 19, 2017 appointment,

and the January 30, 2018 hearing, Attorney Galante did not file any additional

pleadings or seek to file a supplemental or amended PCRA petition.

Accordingly, the PCRA court ruled as follows: “At this hearing – [the c]ourt


____________________________________________


5 We note that in this intervening period, Appellant pursued habeas corpus
relief in the federal courts. On February 23, 2017, the Honorable Jon E. Jones,
III, ordered, after proceedings in the United States District Court for the Third
Circuit, Count 38 in the underlying criminal information in the Luzerne County
Court of Common Pleas was to be vacated. As noted above, the sentence at
Count 38 ran concurrently with Count 1, and therefore, Judge Jones’s order
did not impact Appellant’s aggregated sentence. Moreover, the district court’s
ruling had no effect on the PCRA proceedings.

                                          - 10 -
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finds that nothing is pending before the court. If [Appellant] files a warranted

motion, the [c]ourt will entertain said motion.” Order, 1/30/18.

        After review, we agree with the PCRA court that there was no

substantive issue upon which the court could have ruled. As noted, Appellant

filed a timely PCRA petition in 2009, which appears to have been lost, and

therefore, there was no ruling on that petition. However, Appellant filed a

subsequent PCRA petition on September 16, 2010, and the PCRA court

appointed counsel. At that juncture, and facing a finding of waiver,6 Appellant

and his counsel had the opportunity to raise any issues for the PCRA court’s

consideration, including the PCRA court’s failure to rule on the 2009 petition

and failure to appoint counsel for that first petition.7



____________________________________________


6 See 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter, an issue is
waived if the petitioner could have raised it but failed to do so before trial,
during unitary review, on appeal or in a prior state postconviction
proceeding.”).

7   We agree with the Commonwealth’s argument on this point:

               The misplacement of the timely-filed 2009 petition is
        certainly unfortunate and lamentable and the Commonwealth
        does not make light of that circumstance at all. However, 15
        months later, [Appellant] was afforded counsel who, if [Appellant]
        had wished, could have pursued a quest for PCRA relief, possibly
        relying upon the governmental interference exception to the PCRA
        time-bar to argue that the PCRA court had jurisdiction to consider
        [Appellant’s] claims. However, although disputed by [Appellant]
        after the fact, counsel withdrew that petition at [Appellant’s]
        direction.

Commonwealth’s Brief at 18-19.

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     It is true that PCRA courts are vested with the discretion to permit

amendments to a pending, timely-filed PCRA petition. Commonwealth v.

Flanagan, 854 A.2d 489, 499-500 (Pa. 2004). However, when Appellant filed

his 2017 motion to amend, his 2009 PCRA petition was not pending. As noted,

Appellant’s 2009 PCRA petition was docketed but never entered in the record.

In 2010, Appellant filed a second PCRA petition, counsel was appointed, and

Appellant had the opportunity to raise any issues cognizable under the PCRA.

However, Appellant moved to withdraw not only his 2010 petition, but also

affirmatively stated that he “did not want to pursue any possible PCRA

issues.” Motion to Withdraw PCRA Petition, 2/19/14, at ¶3 (emphasis added).

After the motion was granted, there were no PCRA petitions or PCRA matters

“pending.” Moreover, we note that Appellant did not file an appeal from the

order granting his motion to withdraw his PCRA petition and did not pursue

PCRA relief challenging counsel’s motion to withdraw and forgo PCRA relief.

     Accordingly, we affirm the PCRA court’s order denying Appellant’s

motion to amend his PCRA petition, and we do not reach the merits of the

issues raised by Appellant on appeal. These issues were never raised before

or decided by the PCRA court as there was nothing pending at the time of the

January 30, 2018 hearing.

     Order affirmed.




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J-S60010-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/24/2018




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