J-S33039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALISHA GAMBRELL                            :
                                               :
                       Appellant               :   No. 2218 EDA 2019

               Appeal from the PCRA Order Entered July 15, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0014053-2012

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALISHA GAMBRELL                            :
                                               :
                       Appellant               :   No. 2219 EDA 2019

               Appeal from the PCRA Order Entered July 15, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0015283-2012


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

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 14, 2020




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       Appellant Alisha Gambrell appeals from the Order entered in the Court of

Common Pleas of Philadelphia County on July 15, 2019, denying as untimely her

second petition filed pursuant to the Post Conviction Relief Act.1 We affirm.2

       The PCRA court set forth the relevant factual and procedural history herein

as follows:

       FACTUAL HISTORY

             In regards to CP-51-CR-0014053-2012, on January 31,
       2012, at six-thirty in the evening Philadelphia Police officers
       responded to a radio call for a person with a weapon at the
       Dynamic Dollar Store. N.T. 1/17/2013 at 5. When police arrived,
       [Appellant] claimed she was assaulted by the store manager
       ("Complainant"). Id. Upon viewing the surveillance video, the
       police placed [Appellant] under arrest. Id. Later when police
       interviewed Complainant, he stated that [Appellant] was shopping
       with her nine year-old daughter when [Appellant] took a wallet
       from the store and put it inside her purse, then switched the
       belongings from her old wallet into the stolen wallet. Id. The
       Complainant approached [Appellant] and asked if she was going
       to pay for the wallet. Id. At this point [Appellant] denied taking
       anything and became more aggressive and eventually left the
       store. Id. at 6. [Appellant] returned a few minutes later and
       continued to yell at Complainant. Id. [Appellant] started knocking
       over displays and merchandise. Id. [Appellant] then grabbed
       Complainant by the collar and began pulling him toward the front
       of the store. Id. [Appellant] punched Complainant in the face
       knocking off his glasses. Id. Complainant then punched
       [Appellant] who then let Complainant go. Id. [Appellant] then left
       the store for the second time. Id.
             [Appellant] was arrested and charged with Aggravated
       Assault, Criminal Mischief-Tampering with Property, Possession
       Instrument of a Crime with Intent, Simple Assault, Recklessly
____________________________________________


142 Pa.C.S.A. §§ 9541-9546.
2In a Per Curiam Order entered on October 31, 2019, following consideration
of Appellant's criminal docketing statements and review of the trial court
dockets, this Court consolidated the above-captioned appeals sua sponte. See
Pa.R.A.P. 513; Pa.R.A.P. 2138.


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     Endangering Another Person, Harassment-Subject Other to
     Physical Contact, Retail Theft, Terroristic Threats with Intent to
     Terrorize Another, and Criminal Mischief.
            In regards to CP-51-CR-0015283-2012, on November 10,
     2012, Complainant and his brother were in Room 706 of the
     Criminal Justice Center for the purposes of testifying against
     [Appellant]. N.T. 05/23/2013 at 8. While in the courtroom, the
     Complainant heard [Appellant] refer to him and his brother using
     profanity. Id. The Complainant then went and sat on the other
     side of the courtroom but again heard [Appellant] state “P***y,
     I'll see you outside again. I know where you at.” Id. at 9. The
     Complainant stated [Appellant] was verbally abusive, referring to
     them as mother f***ers and heard [Appellant] speak of the store
     the Complainant owns, the Dynamic Dollar where the assault
     occurred. Id. The Complainant stated he felt scared and
     threatened by [Appellant] while inside the courtroom. Id. As a
     result of this incident, [Appellant] was arrested and charged with
     Retaliation Against Witness or Victim, Intimidation of Witness or
     Victim, and Harassment.

     PROCEDURAL HISTORY

            On January 17, 2013 [Appellant] pled guilty to one (1) count
     Terroristic Threats with Intent to Terrorize Another (18 Pa. C.S.A.
     § 2708 §§A1); one (1) count Possession of an Instrument of Crime
     (18 Pa. C.S.A. §907 §§A); and one (1) count Simple Assault (18
     § 2701 §§A). On May 23, 2013 Defendant entered into a
     negotiated guilty plea to one (1) count Retaliation Against Witness
     or Victim (18 § 4953 §§A); and one (1) count Harassment (18 §
     2709 §§A4). [Appellant] was sentenced to the above charges to
     time served to twenty-three (23) months incarceration and five
     (5) years' probation. Defendant did not pursue a direct appeal. On
     June 1, 2015 [Appellant] filed a PCRA petition, alleging that trial
     counsel was ineffective for failing to inform her of the collateral
     consequences of her guilty pleas, specifically their effect on her
     nursing license. On May 6, 2016 [Appellant’s] PCRA was denied
     because it was time barred by statute. On the same day,
     [Appellant] filed an appeal to the Superior Court. On February 23,
     2017, the Superior Court affirmed the denial of Defendant's
     petition. See 1419 EDA 2016. [Appellant] then filed a Petition for
     Allowance of Appeal to the Supreme Court of Pennsylvania, which
     was denied on July 25, 2017.
            On October 16, 2018, [Appellant] filed a second PCRA
     petition, alleging that her plea was not knowing, intelligent, or

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      voluntary. On January 25, 2019, [Appellant] filed an amended
      PCRA petition, again alleging that her plea was not knowing,
      intelligent, or voluntary because trial counsel specifically informed
      her that she would not suffer any loss of employment from being
      a Certified Nurse's Assistant if she pled guilty to the charges at
      issue. On July 15, 2019, this [c]ourt denied the petition as
      untimely. [Appellant] subsequently filed a Motion for
      Reconsideration of PCRA Denial, which this [c]ourt denied on July
      31, 2019. [Appellant] filed a Notice of Appeal to the Superior Court
      of Pennsylvania on August 2, 2019. On August 6, 2019, this
      [c]ourt issued an order pursuant to Pa.R.A.P 1925(b), requiring
      [Appellant] to file a Concise Statement of Matters Complained of
      on Appeal within twenty-one days. Defendant filed a Concise
      Statement on August 12, 2019.

Trial Court Opinion, filed 9/30/19, at 1-3.

      On August 5, 2019, Appellant filed her concise statement of matters

complained of on appeal, and on September 30, 2019, the trial court filed its

Opinion pursuant to Pa.R.A.P. 1925(a). In her brief, Appellant presents the

following questions for this Court’s Review:

      1.     Whether the Appellant [] was subjected to the layered
      ineffectiveness of all three (3) of the attorneys who represented
      her in this matter, advised her to plead guilty to one (1) count of
      retaliation against a witness or victim (18 Pa.C.S.A. Section 4953)
      and filed no request to withdraw that plea or appeal, thereby
      causing her to become disqualified from working as a registered
      nursing assistant (RNA) for the rest of her life; all those attorneys
      had to do was to contact the Appellant's employer or referral
      agency, Nursing Care Services, Inc. find out from that agency
      which offense the Appellant would need to avoid a conviction for,
      negotiate with the District Attorney's Office so that she would not
      be convicted of that offense in exchange for her conviction on all
      other charges or go to trial and seek an acquittal on that one
      Offense if the Commonwealth would not negotiate. Neither
      [Appellant’s] trial attorney (Mary Maran, Esquire), nor her PCRA
      Attorney (Christopher Montoya, Esquire), nor her appellate
      attorney (Daniel Alvarez, Esquire) sought to have the Appellant's
      charge on the offense of retaliation against a witness or victim
      withdrawn, and so [Appellant] was disqualified from ever working

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      as an RNA again or continuing on with her studies to become a
      licensed practical nurse.

      2. Whether the filing of the Appellant's second PCRA Petition,
      appealed herein, was untimely when the news that [Appellant’s]
      trial attorney, her PCRA attorney and her appellate attorney all
      failed to simply contact, or appeal the failure to contact, Nursing
      Care Services, Inc. prior to the Appellant's guilty plea and
      sentencing to find out that she needed to avoid a conviction for
      retaliation against a witness or victim in order to continue to work
      as a registered nurses assistant (RNA). The news of that failure
      was after discovered evidence found out by the Appellant and
      acted upon with the filing of her second PCRA Petition.

Brief for Appellant at 4-5.

      Appellant argues that the instant PCRA petition contains facts which

were unknown to Appellant due to “layered ineffectiveness” of all three of

Appellant’s previous counsel because her present counsel brought them to her

attention. Brief for Appellant at 13. Specifically, Appellant avers prior counsel

failed to contact Appellant's employer or referral agency, Nursing Care

Services, Inc., to find out which offense she must avoid in her plea

negotiations, in order to continue to work as a registered nursing assistant

(RCN). Id. at 10. Appellant contends that she would be willing to testify

under oath that she informed her trial attorney she did not want to plead guilty

if she were to lose her job, an prior counsel’s failure to pursue this they of

relief for her entitles her to relief herein.

      When dismissing Appellant’s first petition as untimely wherein she

sought relief on the grounds that trial counsel had failed to properly inform




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her of the employment consequences of her guilty plea, this Court previously

stated the following:

             Following our review, we discern no basis to upset the PCRA
      court's determination that the instant petition was not timely filed.
      Specifically, we conclude that Appellant's allegation that she
      discovered the adverse effects of her plea were waived and, in any
      event, would not alter the underlying determination that Appellant
      failed to plead a PCRA time-bar exception.
             The standard for reviewing an order dismissing a PCRA
      petition is whether the PCRA court's determinations are supported
      by the evidence of record and are free of legal error.
      Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005).
      The PCRA court's findings will not be disturbed unless there is no
      support for the findings in the certified record. Commonwealth
      v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
             It is well-settled that the timeliness of a PCRA petition is
      jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651
      (Pa. Super. 2013). Generally, a PCRA petition must be filed within
      one year of the date the judgment is final unless the petition
      alleges, and the petitioner proves, a timeliness exception under
      42 Pa.C.S. § 9545(b)(1)(i), (ii), or (iii).8 42 Pa.C.S. § 9545(b)(1).
      A PCRA petition invoking one of these statutory exceptions must
      “be filed within 60 days of the date the claims could have been
      presented.” See 42 Pa.C.S. § 9545(b)(2); Hernandez, 79 A.3d
      at 652.
             Under Section 9545(b)(1)(ii), the petitioner must establish
      that the facts upon which the claim are predicated were unknown
      to her and that she could not have ascertained the facts earlier
      despite the exercise of due diligence. Commonwealth v.
      Bennett, 930 A.2d 1264, 1270 (Pa. 2007). The determination of
      timeliness does not require a merits analysis. Id. at 1271.
      However, the exception to the PCRA's time bar must be pleaded
      in the petition, and may not be raised for the first time on appeal.
      Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
      2007); see also Pa.R.A.P. 302(a).
             Instantly, Appellant's May 23, 2013 judgment of sentence
      became final on Monday, June 24, 2013, when the thirty-day
      period for filing an appeal to this Court expired. See 42 Pa.C.S. §
      9545(b)(3); see also 1 Pa.C.S. § 1908; Pa.R.A.P. 903(a). Thus,
      Appellant had until June 24, 2014 to file a facially timely PCRA
      petition. Because Appellant filed the instant petition on June 1,
      2015, Appellant bore the burden of pleading and proving that one

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     of the enumerated exceptions applied. See Hernandez, 79 A.3d
     at 652.
            Although Appellant first claims that she became aware of
     the collateral consequences of her plea when she was terminated
     as a certified nursing assistant in October 2013, she did not
     present this information to the PCRA court in the first instance. To
     the contrary, Attorney Montoya's amended petition asserted that
     Appellant was “unaware of the impact on her certification until on
     or around August 2014,” and did not include the attachments
     presented to this Court. See, e.g., Am. PCRA Pet. at 2. Moreover,
     Appellant was present at the May 6, 2016 conference regarding
     her petition and did not offer this information. Thus, Appellant has
     waived this claim as a basis for relief. Burton, 936 A.2d at 525;
     see also Pa.R.A.P. 302(a).
            In any event, the allegation that Appellant was terminated
     as a certified nursing assistant in October 2013, based on her
     conviction, belies her second argument that she acted diligently.
     Because Appellant was terminated as a certified nursing assistant,
     she was placed on notice that her conviction could affect her plans
     to become a licensed practical nurse. Moreover, as the PCRA court
     observed, the fact that a nursing candidate must submit to
     criminal background checks and could be adversely affected by a
     conviction is a matter of regulation and may be readily discovered.
     In light of the foregoing, we conclude that Appellant cannot
     demonstrate due diligence when discovering information that her
     conviction could result in the termination of her employment as a
     certified nursing assistant or hamper her advancement in nursing.
     Thus, no relief is due.

Commonwealth v. Gambrell, 2017 WL 716009, at *3–4 (Pa.Super. filed

Feb. 23, 2017) (unpublished memorandum).            The Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal on July 25, 2017.

See Commobwealth v. Gambrell, 642 Pa. 105, 161 A.3d 387 (2017).

     Herein,   Appellant   herein   attempts   to   refashion   her   previously

unsuccessful arguments pertaining to her guilty plea in a second effort to

overcome the PCRA time bar by incorporating allegations of all prior counsels’

ineffectiveness. However, our Supreme Court has held:

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      it is well-settled that a PCRA petitioner cannot obtain review of
      claims that were previously litigated by presenting new theories
      of relief, including allegations of ineffectiveness, to relitigate
      previously litigated claims. Commonwealth v. Bracey, 795 A.2d
      935, 939 & n. 2 (Pa. 2001); Commonwealth v. McCall, 567 Pa.
      165, 786 A.2d 191, 195–96 (2001); Commonwealth v.
      Copenhefer, 553 Pa. 285, 719 A.2d 242, 253 (1998).

Commonwealth v. Bond, 572 Pa. 588, 598–99, 819 A.2d 33, 39 (2002).

      Moreover, our Supreme Court has stated that “a claim for ineffective

assistance of counsel does not save an otherwise untimely petition for review

on the merits.” Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa.

2000). Therefore, because Appellant’s instant PCRA petition was untimely and

he did not plead or prove an exception to the time-bar, we cannot address the

merits of his claims.

      Based upon the foregoing, the PCRA court did not err in dismissing

Appellant’s petition as untimely filed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/20




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