J-S48023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRANDON M. ROBERTS                         :
                                               :
                       Appellant               :   No. 1233 EDA 2018

                   Appeal from the PCRA Order April 12, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0002920-2013,
                            CP-51-CR-0003684-2013


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

MEMORANDUM BY SHOGAN, J.:                             FILED JANUARY 07, 2020

        Appellant, Brandon M. Roberts, appeals pro se from the order denying

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

42 Pa.C.S. §§ 9541-9546.1 We remand for proceedings consistent with this

memorandum.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1  We observe that Appellant’s notice of appeal lists two trial court docket
numbers. On June 1, 2018, our Supreme Court decided Commonwealth v.
Walker, 185 A.3d 969, 977 (Pa. 2018). Citing the official note to Pa.R.A.P.
341, the Walker Court prospectively determined that separate notices of
appeal must be filed when convictions arise from separate dockets. However,
our Supreme Court applied Walker prospectively from June 1, 2018, because
it was “contrary to decades of case law from [the Supreme] Court and the
intermediate appellate courts that, while disapproving of the practice of failing
to file multiple appeals, [appellate courts] seldom quashed appeals as a
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       The PCRA court set forth the factual and procedural history of this matter

as follows:

             On January 4, 2013, [Appellant] was arrested and charged
       with murder of the third degree, recklessly endangering another
       person, possession of an instrument of crime (“PIC”), two counts
       of VUFA § 6106 firearms not to be carried without a license, VUFA
       § 6108 carrying firearms in public in Philadelphia, VUFA § 6105
       possession of a firearm by a prohibited person, unauthorized use
       of a motor vehicle, and terroristic threats.

              On March 31, 2014, [Appellant] entered into a negotiated
       guilty plea before this [c]ourt in which [Appellant] pled guilty to
       third degree murder, two counts of VUFA § 6106, unauthorized
       use of a motor vehicle, and terroristic threats. The other charges
       were nolle prossed. [Appellant] was sentenced the same day to
       20 to 40 years [of] incarceration for the charge of third degree
       murder, [and] 3 to 8 years [of] incarceration on one charge of
       VUFA § 6106 to run consecutively. [Appellant] was further
       sentenced to 3 to 6 years incarceration on the remaining charge
       of VUFA § 6106 to run concurrent with the homicide charge, and
       no further penalty on the charge of terroristic threats. As
       conditions of his sentence, the [c]ourt required [Appellant] to
       obtain job training, anger management treatment, drug and
       alcohol treatment, and pay all mandatory court costs and fees.
       [Appellant’s] aggregate sentence was 23 to 48 years [of]
       incarceration.

             On April 2, 2014, a second plea hearing was held in order to
       correct errors at sentencing. Upon review of the record, the
       [c]ourt discovered that [Appellant] was charged with a second
       degree felony under VUFA rather than a third degree felony. As a
       result of the change in the record, [Appellant’s] sentence was
       modified. [Appellant] was again sentenced to 20 to 40 years [of]
       incarceration for the charge of third degree murder but his
       sentence for VUFA § 6106 was reduced to 3 to 7 years
       incarceration to run consecutive to the sentence for murder. The
       aggregate sentence was 23 to 47 years [of] incarceration. All
____________________________________________


result.” Walker, 185 A.3d at 977. Because Walker was decided after the
instant appeal was filed, we will not apply it, and we decline to quash this
single appeal.

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     other conditions of sentence were unchanged.           The [c]ourt
     incorporated the colloquy on the record from the first hearing and
     [Appellant] completed an updated written colloquy to reflect the
     reduced and corrected charges and sentence. [Appellant] did not
     file any post-sentence motions or an appeal.

           On March 24, 2015, [Appellant] filed a pro se PCRA Petition
     in which he claimed that “all of his sentences be served concurrent
     [sic] with the twenty to forty years, correction of my sentence.”
     Def.’s PCRA ¶6. [Appellant] further alleged trial counsel provided
     ineffective assistance of counsel by failing to ensure [Appellant’s]
     plea was entered knowingly, intelligently, and voluntarily.
     [Appellant] claimed that he did not waive his right to a jury trial
     and that his constitutional right against self-incrimination was
     violated. Id. ¶8.

            On January 29, 2016, James Lammandola, Esquire was
     appointed to represent [Appellant]. On September 9, 2016,
     Lammandola filed a letter pursuant to Commonwealth v. Finley,
     550 A.2d 213 (1988), stating that [Appellant] was not eligible for
     relief under the PCRA because all of his claims were waived as a
     result of the knowing, intelligent, and voluntary plea agreement
     under which [Appellant] entered. Roberts Finley Letter p. 6.
     Lammandola also determined that [Appellant’s] sentence was not
     illegal because the [c]ourt had the authority to run sentences
     consecutively.

            On September 20, 2016, the [c]ourt sent [Appellant] a 907
     Notice of Intent to Dismiss. On September 23, 2016, [Appellant]
     filed a pro se Amended PCRA petition. On October 18, 2016, the
     [c]ourt dismissed [Appellant’s] PCRA petition as frivolous
     pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
     1988). On January 26, 2018, the [c]ourt reinstated [Appellant’s]
     appellate rights nunc pro tunc. On February 16, 2018, [Appellant]
     filed a pro se Notice of Appeal to the Superior Court.

PCRA Court Opinion, 6/25/18, at 1-3. Appellant was not directed to file a

Pa.R.A.P. 1925(b) statement. The PCRA court authored an opinion pursuant

to Pa.R.A.P. 1925(a).




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      In his pro se brief, Appellant asserts that his counsel was ineffective.

Specifically, Appellant states that:

      he did not get effective counsel by not getting a discovery until
      hours before Appellant had to begin [trial]. This is why Appellant
      [has] claims for ineffective assistance [of] counsel.

            Appellant also avers he was left with no choice but to enter
      a plea due to evidence being withheld, Appellant[’s] counsel didn’t
      raise any issue while Appellant was in court[.]

Appellant’s Brief at unnumbered 1. Basically, Appellant contends that counsel

was ineffective for failing to provide discovery and failing to present an

allegation that evidence had been withheld.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

      We must first address the timeliness of this appeal because the record

reveals that the appeal may not have been filed within thirty days of the date


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of the order reinstating appellate rights nunc pro tunc.2 Pursuant to Rule 903

of the Pennsylvania Rules of Appellate Procedure, “[T]he notice of appeal . . .

shall be filed within 30 days after the entry of the order from which the appeal

is taken.” Pa.R.A.P. 903(a). Time limitations for the taking of appeals are

strictly   construed    and    cannot    be    extended   as   a   matter   of   grace.

Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002).

        We further observe that, pursuant to the prisoner mailbox rule, the

notice of appeal is considered filed on the date it is delivered to prison

authorities for mailing. See Commonwealth v. Wilson, 911 A.2d 942, 944

(Pa. Super. 2006) (recognizing that under the “prisoner mailbox rule,” a

document is deemed filed when placed in the hands of prison authorities for

mailing). Under that rule, “we are inclined to accept any reasonably verifiable

evidence of the date that the prisoner deposits the appeal with the prison

authorities . . . .”    Perez, 799 A.2d at 851 (quoting Commonwealth v.

Jones, 700 A.2d 423, 426 (Pa. 1997)). Where there are questions pertaining

to the authenticity of the evidence presented, we may remand to the trial



____________________________________________


2   The text of the PCRA court’s order provides as follows:

              AND NOW, this 26th day of January, 2018, it is hereby
        ORDERED and DECREED that [Appellant’s] Appellate Rights are
        Reinstated Nunc Pro Tunc. [Appellant] may proceed pro se or
        must hire private counsel. [Appellant] must perfect this appeal
        within 30 days of th[e] date of this order.

Order, 1/26/18, at 1.

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court for a hearing on the issue. See Jones, 700 A.2d at 426 n.3 (stating

that “where ... the facts concerning the timeliness [of the filing] are in dispute,

a remand for an evidentiary hearing may be warranted.”); Commonwealth

v. Little, 716 A.2d 1287, 1289 (Pa. Super. 1998) (remanding to PCRA court

to consider documentary evidence submitted by petitioner to establish

timeliness of petition).

       Our review of the record reflects that the PCRA court entered its order

reinstating Appellant’s appeal rights nunc pro tunc on January 26, 2018. Thus,

in order to be timely, Appellant’s notice of appeal should have been filed on

or before February 26, 2018.3 However, the notice of appeal states that it

stems from an order entered on April 12, 2018, which is after the appeal

period ended. Moreover, the envelope containing the notice of appeal displays

a postal service time-stamp dated April 17, 2018, which is after the completion

of the appeal period. In addition, the envelope contains a trial court time-

stamp indicating that it was received on April 20, 2018. Therefore, it appears

that this appeal is patently untimely.

       However, the trial court docket in the certified record indicates that the

instant notice of appeal was filed on February 16, 2018. Likewise, the actual



____________________________________________


3 We observe Appellant needed to file his appeal on or before Monday,
February 26, 2018, because the thirtieth day, February 25, 2018, was a
Sunday. See 1 Pa.C.S. § 1908 (stating that, for computations of time,
whenever the last day of any such period shall fall on Saturday or Sunday, or
a legal holiday, such day shall be omitted from the computation).

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notice of appeal in the certified record contains a trial court time-stamp

indicating that it was received on February 16, 2018.

      When this Court discovered this inconsistency, the Superior Court

Prothonotary contacted the Philadelphia County Clerk of Courts regarding the

discrepancy. The trial court clerk of courts responded to our Prothonotary

that the envelope was indeed received in April of 2018, and that the time-

stamp on the document was backdated due to problems with the mail.

However, we remain uninformed regarding whether the alleged problems with

the mail pertain to items sent from the lower court to parties, items received

by the lower court, or both.

      Because there is a dispute relating to the timeliness of the notice of

appeal, we are constrained to remand this case to the PCRA court to make a

specific determination as to the timeliness of the filing of Appellant’s

document. If necessary, the PCRA court may hold an evidentiary hearing to

establish the timeliness of the notice of appeal. Moreover, on remand, the

PCRA court should consider the applicability of the prisoner mailbox rule. Such

determination by the PCRA court must be perfected within forty-five days of

the filing of this memorandum.

      Case remanded for proceedings consistent with this Memorandum to be

completed within forty-five days. Panel jurisdiction retained.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/20




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