Commonwealth v. Callahan

J-S53028-14 2014 PA Super 208 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. VARIAN C. CALLAHAN, Appellant No. 273 WDA 2014 Appeal from the PCRA Order of January 14, 2014 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000008-2009 BEFORE: DONOHUE, OLSON AND PLATT,* JJ. OPINION BY OLSON, J.: FILED SEPTEMBER 23, 2014 Appellant, Varian C. Callahan, appeals from the order entered on January 14, 2014 denying his petition filed under the Post-Conviction Relief -9546. We affirm. This Court has previously summarized the factual background of this case as follows: On December 17, 2008, Appellant approached the victim as she was taking her three-year-old son to day care at approximately 7:20 a.m. Appellant told the victim that he had a gun and demanded that she give him her money. The victim did not see a weapon and informed Appellant that she did not have any money. Appellant said that she had money in her purse or a bank account. The victim pleaded with Appellant not to harm her or her son. Appellant said that he would not hurt her if she turned over her money. The victim then walked with Appellant to her vehicle, where she removed [$200.00]. Appellant fled with the money, and the victim took her son into day care and asked a teacher to call the police. * Retired Senior Judge assigned to the Superior Court. J-S53028-14 Police transported the victim to the police station where she provided a statement. The victim also informed police that her assailant was wearing a black winter hat, a gray coat, and had a goatee. Police broadcast this information via their police radio. During the police interview with the victim, an officer observed a person matching the description of the perpetrator, whom he identified by name as Varian Callahan. The officer interviewing the victim, Officer Ryan Chmura, then left the police station in his cruiser to investigate the potential suspect. A 911 dispatcher also relayed that there was an outstanding arrest warrant for Appellant. Officer Chmura located Appellant walking approximately six blocks from the day care and advised him of the outstanding warrant and that he was under arrest. Appellant fled before being tackled by Officer Chmura. He and two other officers while Appellant continued to resist. Police then dry stunned him with a taser. Appellant did not have a weapon or any money on his person. The dry stun occurred at 7:56 a.m., approximately one- arrest, Officer Chmura returned to the police station and compiled an eight person photographic array. The victim immediately identified Appellant as her attacker and subsequently identified him at trial. Appellant presented a teenage relative as an alibi witness. Commonwealth v. Callahan, 69 A.3d 1287 (Pa. Super. 2013) (unpublished memorandum), at 1-3 (footnote omitted). The procedural history of this case is as follows. On April 19, 2010, Appellant was convicted of robbery,1 theft by unlawful taking,2 making terroristic threats,3 and recklessly endangering another person.4 On June 3, 1 18 Pa.C.S.A. § 3701(a)(1)(ii). 2 18 Pa.C.S.A. § 3921(a). 3 18 Pa.C.S.A. § 2706(a)(1). (Footnote Continued Next Page) -2- J-S53028-14 imprisonment. Appellant did not file a post-sentence motion, but did file a direct appeal with this Court in which he argued that the evidence was ict was against the weight of the evidence. finding that Appellant waived his two issues by failing to file a post-sentence motion raising the weight of the evidence claim and failing to include citations to relevant authority regarding the sufficiency of the evidence claim. Commonwealth v. Callahan, 23 A.3d 569 (Pa. Super. 2010) (unpublished memorandum). Appellant filed a timely pro se PCRA petition alleging that his trial counsel5 was ineffective for failing to file a post-sentence motion, failing to preserve his sufficiency of the evidence claim, failing to call an additional alibi witness, and failing to pursue a motion to suppress.6 The PCRA court appointed counsel and held an evidentiary hearing. On March 22, 2012, the PCRA court granted Appellant relief on his claims that trial counsel was ineffective for failing to file a post-sentence motion and failing to preserve _______________________ (Footnote Continued) 4 18 Pa.C.S.A. § 3705. 5 Appellant had the same counsel for trial and his direct appeal. We refer to him throughout this opinion as trial counsel. 6 Appellant originally filed a motion to suppress the photo array identification. However, prior to the suppression hearing he withdrew the motion to suppress. -3- J-S53028-14 his sufficiency of the evidence claim.7 Therefore, the PCRA court reinstated -sentence motion and his right to file a direct appeal nunc pro tunc that trial counsel was ineffective for failing to call an additional alibi witness and for failing to pursue the motion to suppress. Instead of filing a post- sentence motion and a direct appeal, PCRA counsel chose to appeal the itional alibi witness. We affirmed that order on March 11, 2013. Commonwealth v. Callahan, 69 A.3d 1287 (Pa. Super. 2013) (unpublished memorandum). Appellant then filed a second pro se PCRA petition on April 30, 2013.8 Counsel was appointed and filed an amended PCRA petition. That petition post-sentence motion and direct appeal nunc pro tunc and for failing to . The PCRA petition. The PCRA court concluded that PCRA counsel was not ineffective 7 See Commonwealth v. Fink, 24 A.3d 426, 434 (Pa. Super. 2011). 8 Appellant signed his PCRA petition on April 30, 2013. The postmark on the depending on which day the envelope was actually placed in the stream of prison mail, the petition was filed on April 30, May 1, or May 2, 2013. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). For convenience, we use the date most advantageous to Appellant, April 30, 2013. -4- J-S53028-14 for failing to file a post-sentence motion nunc pro tunc, for failing to file a direct appeal nunc pro tunc suppression motion. The PCRA court concluded all three issues lacked arguable merit. This timely appeal followed.9 Appellant presents one issue for our review: [second PCRA] petition alleging that trial counsel was ineffective for failing to file post-sentence motions dealing with the sufficiency of the evidence and the weight of the evidence and also for failing to file a direct appeal pertaining to these issues? PCRA petition must be addressed. Even where neither party nor the PCRA court have addressed the matter, it is well-settled that we may raise it sua sponte since a question of timeliness implicates the jurisdiction of our Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012), appeal denied, 49 A.3d 442 (Pa. 2012) (internal quotation marks and citation omitted). Thus, we shall forego assessment of the merits of the 9 On February 8, 2014, the PCRA court ordered Appellant to file a concise statement of errors complained See Pa.R.A.P. 1925(b). On March 6, 2014, Appellant filed his concise statement. On March 20, 2014, the PCRA court issued its Rule 1925(a) opinion. nt. -5- J-S53028-14 whether Appellant timely filed his PCRA petition and, if not, whether he has the timeliness of a PCRA petition is a question of law, our standard of review is de novo and our scope of review is plenary. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted). 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 PCRA petitio nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be considered a first PCRA Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013), appeal denied, 91 A.3d 162 (Pa. 2014) (citation omitted); Commonwealth v. Donaghy, 33 A.3d 12, 14 n.5 (Pa. Super. 2011), appeal denied, 40 A.3d 120 (Pa. 2012). sentence became final. There appear to be two possibilities. Under general 2012, the last day Appellant could have filed his direct appeal nunc pro tunc. See Turner, 73 A.3d at 1286 (time for filing PCRA restarted 30 days after -6- J-S53028-14 order reinstating direct appeal rights nunc pro tunc).10 However, if part his first PCRA petition, then his judgment of sentence became final on April 10, 2013. See Pa.R.A.P. 1113(a). 23, 2012. The plain language of the PCRA provides that a judgment of sentence becomes final at the conclusion of direct review or when the time for seeking direct review expires. See 42 Pa.C.S.A. § 9545(b)(3). In fixing the date upon which a judgment of sentence becomes final, the PCRA does not refer to the conclusion of collateral review or the time for appealing a collateral review determination. Thus, the plain language of the PCRA statute shows that a judgment of sentence becomes final immediately upon expiration of the time for seeking direct review, even if other collateral proceedings are still ongoing. As this result is not absurd or unreasonable, we may not look for further manifestations of legislative intent. See Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013) (internal quotation marks omitted) look beyond the plain language of the statute only 10 appeal nunc pro tunc was entered on March 22, 2012. Appellant had 30 days to file his notice of appeal. See Pa.R.A.P. 903(a). As from that date, the 30th day fell on Saturday, April 21, 2012, Appellant had until Monday, April 23, 2012 to file his notice of appeal. See 1 Pa.C.S.A. § 1908. -7- J-S53028-14 when words are unclear or ambiguous, or the plain meaning would lead to a on April 23, 2012, we next consider whether the fact that Appellant was unable to file a PCRA petition until April 11, 2013 (30 days after this Court our timeliness analysis. We hold that it does not. Under Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), Appellant was precluded from filing a PCRA petition prior to April 11, 2013 because his appeal of the partial denial of his first PCRA petition was still pending. As our Supreme Court explained: a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review. If the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar . . . applies. Lark, 746 A.2d at 588 (emphasis added; footnote, internal quotation marks, and citation omitted). Thus, Lark precluded Appellant from filing a subsequent PCRA petition until his appeal of the partial denial of his first PCRA petition became final. Lark articulates no preclusive effect on -sentence motions or file a direct appeal nunc -8- J-S53028-14 pro tunc the rule in Lark has no impact on our timeliness analysis.11 filing a PCRA petition is not subject to the doctrine of equitable tolling; instead, the time for filing a PCRA petition can be extended only if the PCRA permits it to be extended, i.e., by operation of Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation - Commonwealth v. Robinson, 837 A.2d 1157, 1157 (Pa. 2003), citing Commonwealth v. Baroni, 827 A.2d 419 (Pa. 2003); Commonwealth v. Rienzi, 827 A.2d 369 (Pa. 2003); Commonwealth v. Eller, 807 A.2d 838 (Pa. 2002); Commonwealth v. Hall, 771 A.2d 1232 (Pa. 2001); Commonwealth v. Murray, 753 A.2d 201, 202 (Pa. 2000); Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). Appellant has not applicable in this case. Accordingly, we cannot extend the time for filing a PCRA petition, even in these sui generis circumstances, for equitable reasons. 11 Given the unusual or unpredictable consequences that could emerge in these instances, it is preferable that an appellate court refrain from merits review where relief in the form of reinstatement of direct appeal rights nunc pro tunc has been granted. See Donaghy, 33 A.3d at 14 n.5, citing Commonwealth v. Miller, 868 A.2d 578, 580 (Pa. Super. 2005). -9- J-S53028-14 Thus, he was required to file his PCRA petition on or before April 23, 2013. He did not file his PCRA petition until April 30, 2013, one week late. three statutory exceptions to the timeliness requirement. As such, the PCRA Accordingly, the PCRA court correctly denied relief. Therefore, we affirm the order of the PCRA court denying Appellant relief.12 See Commonwealth v. Charleston, 94 A.3d 1012, 1028 (Pa. Super. 2014) (citation omitted) Order affirmed. 12 Even if we concluded that Appe per se ineffectiveness, a defendant must Commonwealth v. Markowitz, 32 A.3d 706, 715 (Pa. Super. 2011), citing Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001). In this case, the PCRA court sufficiency and weight [in his appeal to the Superior Court. PCRA] counsel had discussed those issues with [Appellant] prior to the [first] Findings of Fact and Conclusions of Law, 1/14/14, at 5 (paragraph number omitted). This finding was supported by the record. PCRA counsel testified that, after consultation, Appellant agreed to waive his sufficiency and weight claims. See N.T. 1/14/14, at 5. Thus, Appellant failed to prove that he asked his first PCRA counsel to file a post-sentence motion and direct appeal. As such, he failed to prove that his first PCRA counsel was per se ineffective for failing to file a direct appeal and instead pursuing the appeal im based upon trial - 10 - J-S53028-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/23/2014 - 11 -