J-A18006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 DALE SHELTON                              :
                                           :
                    Appellant              :   No. 174 WDA 2018

                Appeal from the PCRA Order January 4, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0016217-2008


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                         FILED DECEMBER 27, 2019

      Appellant Dale Shelton appeals from the January 4, 2018 order

dismissing his petition for relief under the Pennsylvania Post-Conviction Relief

Act (“PCRA”). We affirm.

      This Court provided an apt summary of the underlying facts and

procedural history of this case in its adjudication of Appellant’s direct appeal:

      On September 24, 2008, several people were shot. Sandra
      Stewart was shot with a .40-caliber bullet and died as a result of
      this incident.

      ....

      Appellant testified that prior to the incident on September 24,
      2008, he and Devin Scott had an altercation. Scott approached
      Appellant and hit him in the back of the head with something.
      Appellant turned and Scott aimed a gun at his face. Scott
      threatened to kill him and demanded money.             Scott stole
      everything Appellant had on him, as well as his mother’s car.
      Appellant did not contact the police because he feared Scott would
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     retaliate, killing him or his family. After the robbery, Appellant
     obtained a .40-caliber firearm from Maurice Williams.

     ....

     On the day of the shooting, Appellant was with Maurice and Kevin
     Williams. They were going to [obtain a refund for fake drugs they
     had purchased earlier]. Appellant and Maurice dropped off Kevin
     Williams. They drove on Curtain Avenue towards Warrington
     Avenue when Appellant saw Devin Scott. This was the first time
     Appellant had seen Scott since Scott robbed him and threatened
     his life with a gun.

     Appellant testified that Scott looked directly at him. They made
     eye contact and Appellant panicked. He was scared because he
     knew that Scott always carried a firearm, Scott had threate[n]ed
     his life, and the car in which Appellant was riding was coming to
     a stop at a stop sign by Scott. When the car stopped, Appellant
     said he got out, attempting to run away from Scott. He saw Scott
     pull out a gun and fire it at him. Appellant obtained his gun and
     fired it in response. . . .

     Kevin Williams testified that he was outside on Curtain Avenue at
     the time of the incident. He heard shots down around Bey’s Store
     so he ran to get his illegal .45-caliber firearm. He saw Scott
     running down Curtain Avenue shooting backwards toward
     Warrington Avenue. Kevin Williams started shooting towards
     Scott. Then, he hid the gun. . . .

     Devin Scott, an associate of gang members, testified that he left
     Bey’s Store and walked up the sidewalk towards Climax Street.
     He was on house arrest with a window of time to go to the
     hospital. Rather, he went to the store, carrying an illegal firearm.
     He testified that he heard shots behind him from the Warrington
     Avenue area, so he started running and shooting his nine-
     millimeter weapon over his shoulder. He threw his nine-millimeter
     weapon in the bushes and his shirt in the garbage.               Law
     enforcement captured him and charged him with crimes related
     to this shooting. He denied ever robbing Appellant. Scott was the
     only person who could definitively testify that Appellant shot first.

     There were several people firing weapons during this incident. . .
     . Fourteen .40-caliber casings were found on the sidewalk, in [a]


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     parking lot, and on the street. The fourteen spent .40-caliber
     casings were discharged from the same gun.

     ....

     The Commonwealth charged Appellant by criminal information
     with multiple offenses arising out of the events of September 24,
     2008. Appellant’s first trial resulted in a hung jury. At the
     conclusion of his second jury trial, however, Appellant was
     convicted of third degree murder, 18 Pa.C.S. § 2502(c), for the
     death of Sandra Stewart; criminal attempt – homicide, 18 Pa.C.S.
     § 901(a), for the attack on Devin Scott; aggravated assault
     (Scott), 18 Pa.C.S. § 2702(a)(1); firearms not to be carried
     without a license, 18 Pa.C.S. § 6106; and six counts of recklessly
     endangering another person, 18 Pa.C.S. § 2705.

     On April 12, 2011, the trial court sentenced Appellant to an
     aggregate term of 25-51 years’ incarceration. Appellant filed
     post-sentence motions which were denied by operation of law on
     September 26, 2011. He then filed a timely notice of appeal on
     October 24, 2011. . . . Subsequently, by order dated October 16,
     2012, this court dismissed Appellant’s appeal due to [trial counsel
     Owen Sem[a]n, [Esquire’s] failure to file a brief.

     Attorney Seman filed a motion to withdraw his appearance . . . .
     On January 23, 2013, the trial court granted the motion and
     appointed the Allegheny County Public Defender’s Office to
     represent Appellant. Appellant . . . then filed a PCRA petition
     seeking reinstatement of his direct appeal rights. The PCRA court
     granted his petition by order dated January 31, 2013, and he filed
     a nunc pro tunc notice of appeal on March 1, 2013.

Commonwealth v. Shelton, 106 A.3d 150 (Pa.Super. 2014) (unpublished

memorandum at 2-6) (internal citations omitted; cleaned up). Ultimately, this

Court affirmed Appellant’s judgment of sentence. Id. at 24. On December

11, 2014, our Supreme Court denied Appellant’s petition for allowance of

appeal. See Commonwealth v. Shelton, 104 A.3d 525 (Pa. 2014).




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      On October 20, 2015, Appellant filed a timely pro se PCRA petition

raising a litany of issues. Counsel was appointed to represent Appellant, and

an amended, counseled PCRA petition was filed. On August 29, 2016, the

PCRA court filed notice of its intent to dismiss Appellant’s petition without a

hearing. On October 7, 2016, Appellant filed a counseled response to the

PCRA court’s notice.   However, six days later, Appellant submitted a filing

styled as a “Motion to Proceed Pro Se,” requesting that he be permitted to

represent himself during the remainder of the proceedings. On October 20,

2016, the PCRA court dismissed Appellant’s PCRA petition without a hearing,

but scheduled a hearing on Appellant’s request to proceed pro se.         See

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

      On November 16, 2016, prior to the Grazier hearing, Appellant filed a

notice of appeal to this Court via counsel. On November 22, 2016, Appellant

was directed to file a concise statement of errors complained of pursuant to

Pa.R.A.P. 1925(b), but the Court provided him with an extended window of

time in which to do so.     On January 11, 2017, the PCRA court granted

Appellant’s request to represent himself. Thereafter, no statement of errors

was filed by Appellant, and the PCRA court entered an order on February 17,

2017, stating that all of Appellant’s potential issues had accordingly been

waived. Appellant file a number of submissions in the PCRA court seeking

copies of various orders, transcripts, and documents.      Before this Court,

Appellant requested that his case be remanded so that the PCRA court could


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consider additional issues not raised in his initial petition.      We denied

Appellant’s request and advised him that his proper remedy would be to seek

a discontinuance of the appeal. On May 3, 2017, the PCRA court received a

similar “Petition for Remand” from Appellant requesting that the PCRA court

remand his case from the Superior Court, which was properly denied.

      Appellant filed in the PCRA court a petition seeking leave to amend his

PCRA petition, which the PCRA court inexplicably granted and directed him to

file an amended petition.     Thereafter, Appellant filed an “Application to

Discontinue Appeal,” which this Court granted. On June 26, 2017, Appellant

filed an amended PCRA petition consistent with the PCRA court’s directives.

In response, the Commonwealth argued that Appellant’s amended petition

was essentially an untimely, second petition under the PCRA.

      On August 31, 2017, the PCRA court issued notice of its intent to dismiss

Appellant’s amended petition as untimely. Appellant responded by arguing

forcefully that his amended filing related back to his first PCRA petition filed

on October 20, 2015. He also emphasized that the PCRA court granted him

leave to amend his timely petition while his appeal of the order denying that

petition was pending before this Court. On January 4, 2018, the PCRA court

dismissed Appellant’s June 2017 PCRA petition as untimely. This timely appeal

followed.   The PCRA court directed Appellant to file a concise statement

pursuant to Rule 1925(b), Appellant timely complied, and the PCRA court filed

an opinion pursuant to Rule 1925(a).


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       On November 26, 2018, Appellant filed an application for this Court to

remand the matter to the PCRA court to address a potentially meritorious issue

concerning the jury instructions in his case. This Court granted Appellant’s

application, the PCRA court addressed this additional claim in a supplemental

opinion, and the case was returned to the jurisdiction of this Court.

       Before addressing the merits of Appellant’s many claims, we must

untangle the morass that is the procedural history of this case.1 As a result

of the history discussed above, Appellant believes that this appeal ultimately

stems from his first, timely PCRA petition. He is, unfortunately, mistaken.

       Our standard and scope of review in this context is well-articulated

under existing Pennsylvania precedent: “On appeal from the denial of PCRA

relief, our standard and scope of review is limited to determining whether the

PCRA court’s findings are supported by the record and without legal error.”

Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013). We must view

the evidence of record in the light most favorable to the prevailing party at

the PCRA court level. See Commonwealth v. Koehler, 36 A.3d 121, 131


____________________________________________


1 In relevant part, the PCRA court stated as follows regarding the many twists
and turns in Appellant’s post-collateral petitions: “This is a post-conviction
matter where a perfect storm of circumstances has led to a rather confusing
procedural history. The Court will attempt to untangle the web that it,
admittedly, has been more than a bit player in this drama.” Trial Court
Opinion, 1/4/18, at 1. We whole-heartedly concur with the PCRA court’s
characterization of the underlying procedural history of this case. Most
importantly, the PCRA court obfuscated straightforward principles of
timeliness under the PCRA and misled Appellant concerning his ability to
serially amend a petition that had already been adjudicated and appealed.

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(Pa. 2012). However, we apply a de novo standard of review with specific

regard to the PCRA court’s legal conclusions. Commonwealth v. Spotz, 18

A.3d 244, 259 (Pa. 2011).

       As a general matter, Pa.R.A.P. 1701(a) provides that “after an appeal is

taken . . ., the trial court . . . may no longer proceed further in the matter.”

Under Rule 1701(a), this Court has held that “a criminal defendant who fails

to timely assert alleged errors in the trial court that require action on the part

of that court may suffer a consequence for his failure to follow this avenue of

redress prior to appeal.” Commonwealth v. Pearson, 685 A.2d 551, 557

(Pa.Super. 1996); see also Commonwealth v. Hodge, 658 A.2d 386, 388-

89 (Pa.Super. 1995) (holding that a criminal defendant had waived a challenge

to the weight of evidence by filing an immediate appeal without first raising

this issue with the trial court). While Rule 1701(b) preserves in the trial court

a limited authority to take certain administrative actions to correct “obvious

and patent errors” in the record or grant reconsideration within thirty days of

the entry of an order,2 this Court has held that “major substantive changes,

such as the total withdrawal of an order relative to a motion of record does

not constitute a corrective order within the inherent powers of the trial court



____________________________________________


2  See 42 Pa.C.S. § 5505 (“[A] court upon notice to the parties may modify
or rescind any order within 30 days after its entry . . . .”). Even if we charitably
construe Appellant’s request for amendment as a request for reconsideration,
it was filed more than eight months after the PCRA court dismissed Appellant’s
first petition and more than six months after Appellant appealed to this Court.

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or to the court’s statutory authority.” Manufacturers and Traders Trust

Co. v. Greenville Gastroenterology, SC, 108 A.3d 913, 921 (Pa.Super.

2015). This precedent also applies to criminal cases. Id. (“In the criminal

context, our Supreme Court has noted that if this inherent power were

extended beyond obvious, patent errors, it would swallow § 5505’s general

rule.”) (citing Commonwealth v. Holmes, 933 A.2d 57, 66-67 (Pa. 2007)).

      Tempering the above discussions, Pa.R.Crim.P. 905(a) provides that

“[t]he judge may grant leave to amend or withdraw a petition for post-

conviction collateral relief at any time.”       Further, it commands that

“[a]mendment shall be freely allowed to achieve substantial justice.”      Id.

Case law interpreting Rule 903(a) also suggests that amendments to PCRA

petitions are not governed by the timeliness requirements of the PCRA. See

Commonwealth v. Crispell, 193 A.3d 919, 929 (Pa. 2018) (“Because the

PCRA court was faced with a motion to supplement a timely petition, rather

than a new petition, the time restrictions of the PCRA did not apply.”).

      On its face, Rule 903(a) would seem to inherently conflict with the

substantive law discussed above concerning the propriety of post-appeal

amendments. However, this Court has further provided that “application of

the liberal amendment policy of Rule 905(a) requires that the PCRA petition

in question is still pending before the PCRA court at the time the request for

amendment is made.” Commonwealth v. Sepulveda, 144 A.3d 1270, 1280

(Pa. 2016) (emphasis added); see also Commonwealth v. Swartzfager,


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59 A.3d 616, 619 (Pa.Super. 2012) (holding that a subsequent petition for

collateral relief may only be treated as an amendment “[i]n the absence of a

final ruling on a timely-filed first PCRA petition”). Thus, our pertinent point of

inquiry is whether Appellant’s PCRA petition was pending when he requested

leave to amend.

        It is beyond cavil that Appellant’s first PCRA petition was not pending

before the PCRA court when he submitted the at-issue request for

amendment. The PCRA court had issued a final order dismissing Appellant’s

first PCRA petition months before Appellant submitted his request for

amendment, and the court had no jurisdiction to grant such relief.            Id.

(“Following a full and final decision by a PCRA court on a PCRA petition, that

court no longer has jurisdiction to make any determinations related to that

petition.”). Appellant also dithered for half of a year prior to seeking leave to

amend his petition, which means that statutory reconsideration was

unavailable. See 42 Pa.C.S. § 5505; see also Sepulveda, supra at 1280

n.20.    Finally, Appellant also filed a notice of appeal to this Court prior to

seeking leave to amend, which would also make the preclusive effect of Rule

1701 applicable to this controversy.        See Pa.R.A.P. 1701(a).        Hence,

Appellant’s first PCRA petition was actually pending in this Court when he

sought leave to amend from the PCRA court.          Appellant discontinued that

appeal after the PCRA court erroneously granted him leave to amend. See

Pa.R.A.P. 1973.


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       Based on all of the foregoing, we are constrained to conclude that the

PCRA court was without the jurisdiction or ancillary authority to grant

Appellant the right to amend his first PCRA petition. As such, the litigation of

Appellant’s first PCRA petition properly concluded when Appellant discontinued

his appeal before this Court.         See Commonwealth v. Collins, 441 A.2d

1283, 1284 (Pa.Super. 1982) (“When a defendant deliberately and knowingly

choses to bypass the orderly state procedures afforded . . . for challenging his

conviction, he is bound by the consequences of that decision.”). 3

       As the Commonwealth correctly observed, Appellant’s June 2017 PCRA

petition is, in fact, a second PCRA petition.          As such, it is subject to the

requirements of timeliness:            “A PCRA petition, including a second or

subsequent petition, must be filed within one year of the date that the

judgment of sentence becomes final.”               Commonwealth v. Mitchell, 141

A.3d 1277, 1284 (Pa. 2016) (citing 42 Pa.C.S. § 9545(b)(1)). Thus, we must

assess whether Appellant’s petition is timely or subject to one of the

exceptions     to   the   timeliness    requirements     under   the   PCRA.    See

Commonwealth v. Walters, 135 A.3d 589, 591-92 (Pa.Super. 2016) (“[T]he

PCRA’s timeliness requirements are jurisdictional in nature and must be

strictly construed; courts may not address the merits of the issues raised in a


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3  This Court has held that it is “not essential to a knowing decision to
discontinue [an] appeal that appellant be specifically instructed concerning his
inability to revive the discontinued appeal . . . .” Commonwealth v. Collins,
441 A.2d 1283, 1285 (Pa.Super. 1982).

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petition if it is not timely filed.”). In pertinent part, the PCRA provides as

following regarding timeliness:

      (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
         Sates;

         (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.

      ....

      (3) For purposes of this subchapter, a judgment becomes 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).     In reviewing these statutory provisions, it is also

critically important to note that “there is no generalized equitable

exception to the jurisdictional one-year time bar pertaining to post-

conviction petitions.” Commonwealth v. Brown, 943 A.2d 264, 267 (Pa.

2008) (emphasis added).


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       Instantly, Appellant’s second PCRA petition is facially untimely.4

Moreover, Appellant has neither pled nor proved that any of the timeliness

exceptions set forth at § 9545(b)(1)(i)-(iii) are applicable to his case.

Equitable relief is unavailable under our Supreme Court’s binding precedent.5

See Brown, supra at 267.               Thus, Appellant’s second PCRA petition is

untimely. The PCRA court lacked jurisdiction to entertain Appellant’s claims.

See Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa.Super. 2007)

(“[F]ailure to allege a timeliness exception in the PCRA petition itself precludes

the petitioner from raising it on appeal.”); see also Commonwealth v.

Liebensperger, 904 A.2d 40, 46 (Pa.Super. 2006) (“These exceptions must

be specifically pleaded or they may not be invoked.”).



____________________________________________


4  Appellant’s sentence became final ninety days after our Supreme Court
denied Appellant’s petition for allowance of appeal on December 11, 2014,
when the window to seek a writ of certiorari in the U.S. Supreme Court
expired. See U.S.Sup.Ct. Rule 13(1). Thus, Appellant’s sentence became
final on March 11, 2015. See 42 Pa.C.S. § 9545(b)(3). Thereafter, the one-
year time limit set forth at 42 Pa.C.S. § 9545(b) began to accrue. Appellant’s
second PCRA petition was not filed until June 26, 2017, which renders it
untimely by more than two years.

5  Black-letter law concerning timeliness under the PCRA prevents us from
granting succor to Appellant, who has ultimately been deprived of his
procedural rights under the PCRA by an unwelcome confluence of events. In
relevant part, it makes perfect sense that Appellant advanced no argument
concerning the timeliness of his second PCRA petition, as he obviously
believed—with good cause—that he was legitimately granted leave to amend
his first PCRA petition. Such a procedural posture is impossible under
governing Pennsylvania law, as discussed above. We note our deep and
abiding concern that we are unable to correct the obvious breakdown in
administrative judicial functions that occurred in this case.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2019




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