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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
YASSIN HAYTHAME MOHAMAD
Appellant No. 1810 WDA 2014
Appeal from the PCRA Order of October 17, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0000399-2007
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED MAY 05, 2015
Yassin Mohamad appeals the October 17, 2014 order denying his
second petition for relief pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-46. Mohamad filed the petition at issue in this case
outside of the time period prescribed by the PCRA, see 42 Pa.C.S.
§ 9545(b)(1), without satisfying any of the applicable exceptions to that
time frame. See 42 Pa.C.S. § 9545(b)(1)(i-iii). However, even though
facially untimely, Mohamad’s second petition was filed before the PCRA court
took any action on Mohamad’s first petition. The currently prevailing law in
Pennsylvania requires us to treat Mohamad’s second petition as an
amendment to his first unresolved PCRA petition. See Commonwealth v.
Swartzfager, 59 A.3d 616, 619 (Pa. Super. 2012). Accordingly, we remand
this case to the PCRA court for further proceedings.
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On December 10, 2007, following a jury trial, Mohamad was convicted
of two counts each of criminal attempt—homicide, 18 Pa.C.S. §§ 901, 2501,
aggravated assault, 18 Pa.C.S. § 2702(a)(2), and simple assault, 18
Pa.C.S. § 2101(a)(1), charges which arose from Mohamad’s assault on two
prison guards.1 On December 14, 2007, the trial court sentenced Mohamad
to consecutive terms of ten to twenty years’ incarceration on the two counts
of criminal attempt—homicide. The trial court imposed no further penalty on
the remaining counts. The court also ordered that the aggregate twenty to
forty year sentence run consecutively to any other sentence that Mohamad
was serving at that time.
On December 28, 2007, Mohamad filed a counseled notice of appeal.
Mohamad was directed by the trial court to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, on April
9, 2008, before he could file a statement, this Court dismissed Mohamad’s
appeal because Mohamad had failed to file a docketing statement with this
Court.
On February 5, 2009, Mohamad filed his first pro se PCRA petition.
The record does not indicate that the PCRA court has disposed of this
petition in any manner. Nonetheless, on August 28, 2014, Mohamad filed
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1
Because we dispose of this case based upon procedural grounds, the
facts underlying Mohamad’s convictions are immaterial to our resolution of
this case. Thus, we will not summarize those facts in this memorandum.
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the pro se petition at issue in this case, in which he alleged that his sentence
was illegal pursuant to the United States Supreme Court’s recent decision in
Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013) (holding that facts
that increase mandatory minimum sentences must be submitted to the jury
and must be found beyond a reasonable doubt). On September 22, 2014,
the PCRA court, finding that Mohamad’s second petition was untimely and
that no exceptions to the time bar applied, issued a notice to Mohamad of
the court’s intent to dismiss the petition without an evidentiary hearing
pursuant to Pa.R.Crim.P. 907. Mohamad did not respond to the notice
within twenty days. Consequently, on October 17, 2014, the PCRA court
entered an order formally dismissing Mohamad’s petition without a hearing.
On November 3, 2014, Mohamad filed a pro se notice of appeal. On
November 13, 2014, the PCRA court directed Mohamad to file a Rule
1925(b) statement. However, Mohamad did not comply with the PCRA
court’s directive. On December 16, 2014, the PCRA court filed a statement
in lieu of a Pa.R.A.P. 1925(a) opinion, in which the court noted that, because
Mohamad failed to file a concise statement, any issues raised by Mohamad
should be deemed to be waived.
Mohamad presents one question for our review: “Whether or not
[Mohamad] is entitled to remand for further proceedings upon his illegal and
unconstitutional sentence of mandatory minimum sentence claim?” Brief for
Mohamad at III.
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Before we can address the merits of Mohamad’s claim, we first must
address the timeliness of Mohamad’s petition, and, therefore, the jurisdiction
of any Pennsylvania court to resolve Mohamad’s claims on the merits. The
PCRA’s strict and well-settled timeliness requirements are as follows:
The PCRA “provides for an action by which persons convicted of
crimes they did not commit and persons serving illegal sentences
may obtain collateral relief.” 42 Pa.C.S.A. § 9542. When an
action is cognizable under the PCRA, the PCRA is the “sole
means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose[.]”
42 Pa.C.S.A. § 9542.
In order for a court to entertain a PCRA petition, a petitioner
must comply with the PCRA filing deadline. See
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.
2003). The time for filing a petition is set forth in
42 Pa.C.S.A. § 9545(b), which provides in relevant part:
(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 States;
(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.
42 Pa.C.S.A. § 9545(b).
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“[T]he time limitations pursuant to . . . the PCRA are
jurisdictional.” Commonwealth v. Fahy, 737 A.2d 214, 222
(Pa. 1999). “[Jurisdictional time] limitations are mandatory and
interpreted literally; thus, a court has no authority to extend
filing periods except as the statute permits.” Id. “If the petition
is determined to be untimely, and no exception has been pled
and proven, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider
the merits of the petition.” Commonwealth v. Perrin, 947
A.2d 1284, 1285 (Pa. Super. 2008).
Commonwealth v. Jackson, 30 A.3d 516, 518-19 (Pa. Super. 2011).
Mohamad’s second PCRA petition was filed on August 28, 2014,
approximately six years after this Court dismissed Mohamad’s appeal of his
judgment of sentence. Thus, the petition is facially untimely. However, our
analysis is complicated by the fact that Mohamad had filed a timely PCRA
petition on February 5, 2009, which was not ruled upon in any manner by
the PCRA court. Based upon our recent decision in Swartzfager, we
conclude that Mohamad’s second petition is an amendment to his first
unresolved PCRA petition, and that the PCRA court retains jurisdiction to
dispose of all of Mohamad’s PCRA claims.
In Swartzfager, the appellant filed a timely PCRA petition. However,
his attorney incorrectly determined that the petition was untimely, and
requested to withdraw as counsel for the appellant via a Turner/Finley no-
merit letter.2 The PCRA court granted counsel’s motion to withdraw as
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2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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counsel and issued a Rule 907 notice of intent to dismiss the PCRA petition
without an evidentiary hearing. The appellant then filed a premature notice
of appeal. The PCRA court never entered an order dismissing the PCRA
petition. This Court quashed the appeal as interlocutory. No other action
was taken on the case until approximately ten years later when the
appellant filed a second PCRA petition. The PCRA court dismissed the
second petition as untimely. Swartzfager, 59 A.3d at 617-18.
On appeal, we reversed the PCRA court, holding that the second
petition should have been considered by the PCRA court as an amendment
to the first unresolved PCRA petition. Id. at 619. We explained our
rationale as follows:
Pennsylvania law vests PCRA courts “with discretion to permit
the amendment of a pending timely-filed post-conviction
petition. . . .” Commonwealth v. Flanagan, 854 A.2d 489,
499 (Pa. 2004).
[T]he prevailing rule remains simply that amendment is
to be freely allowed to achieve substantial justice.
The [Pennsylvania Supreme] Court has recognized that
adherence to such rules governing post-conviction
procedure is particularly appropriate since, in view of the
PCRA’s time limitations, the pending PCRA proceeding will
most likely comprise the petitioner’s sole opportunity to
pursue collateral relief in state court.
Id. at 500 (emphasis added) (internal citations omitted). In the
absence of a final ruling on a timely-filed first PCRA petition,
another petition for post-conviction relief can be considered an
amended first timely petition. See Commonwealth v.
Williams, 828 A.2d 981 (Pa. 2003) (holding pro se petitioner’s
subsequent PCRA petitions constituted amendments to timely-
filed first petition; although petitioner filed pro se motion to
withdraw first PCRA petition, court took no action on motion;
thus, motion to withdraw first PCRA petition was without effect,
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first PCRA petition remained valid, and court could not find
subsequent PCRA petitions untimely).
Nevertheless, the PCRA also provides for the dismissal of a
properly filed petition under certain circumstances:
§ 9543. Eligibility for relief
***
(b) Exception.—Even if the petitioner has met the
requirements of subsection (a), the petition shall be
dismissed if it appears at any time that, because of delay
in filing the petition, the Commonwealth has been
prejudiced either in its ability to respond to the petition or
in its ability to re-try the petitioner. A petition may be
dismissed due to delay in filing by the petitioner only after
a hearing upon a motion to dismiss. This subsection does
not apply if the petitioner shows that the petition is based
on grounds of which the petitioner could not have
discovered by the exercise of reasonable diligence before
the delay became prejudicial to the Commonwealth.
42 Pa.C.S. § 9543(b). Recently, our Supreme Court held that
Section 9543(b) applies to delays in the filing of original or
amended PCRA petitions:
[T]he Commonwealth’s construction of Section 9543(b) as
applicable to delays in filing either original or amended
petitions is the most consistent with the legislative intent
underlying the PCRA. Initially, we note that Section
9543(b) was enacted as part of the General Assembly’s
overhaul of the post-conviction relief process in 1988, . . .
and the requirement that an evidentiary hearing be held
prior to dismissal for a delay in filing that causes prejudice
to the Commonwealth was added via the 1995
amendments to the PCRA, which also created the one-year
jurisdictional time bar. . . . We have observed that this
one-year time limitation, coupled with its few exceptions,
reflects a legislative balance between the competing
concerns of the finality of adjudications and the reliability
of convictions. Section 9543(b) further demonstrates this
balance by permitting a PCRA court to dismiss a matter on
grounds of delay, which promotes the interest in finality,
while requiring an evidentiary hearing where the
Commonwealth must prove prejudice, thereby protecting
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the reliability of the underlying conviction. Similarly, as
the Commonwealth points out, Section 9543(b) specifies
that prejudice can occur “at any time,” indicating that it
was not only the commencement of PCRA proceedings with
which the Legislature was concerned.
Commonwealth v. Renchenski, 53 A.3d 251, 259 (Pa. 2012)
(internal citations omitted). See also Commonwealth v.
Markowitz, 32 A.3d 706, 712-13 (Pa. Super. 2011) (stating
delay in filing amended PCRA petition can cause Commonwealth
undue prejudice in its ability to respond to petition or re-try
case; court can consider delay in submitting amended petition
when conducting prejudice analysis).
Swartzfager, 59 A.3d 619-20 (emphasis in original; citations modified).
Ultimately, we held that the appellant’s second PCRA petition “should be
construed as an amendment to his still open and timely-filed” first PCRA
petition. Id. at 620. We recognized that the delay might have caused
prejudice to the Commonwealth, and further held that “the best resolution of
this case is to vacate and remand for further proceedings,” including a
prejudice hearing and any hearings that may be necessary to adjudicate any
viable issues raised in the appellant’s petitions. Id. at 620-21, n.4.
For the same reasons espoused in Swartzfager, we likewise conclude
that Mohamad’s second PCRA petition should be construed as an
amendment to his first unresolved PCRA petition. Accordingly, we vacate
the PCRA court’s order dismissing the petition. Upon remand, the PCRA
court must hold a hearing on whether the approximately six-year delay in
filing the second PCRA petition caused prejudice to the Commonwealth as
described in Swartzfager. Because Mohamad’s first PCRA petition is still
unresolved, the court also must ascertain whether Mohamad is entitled to, or
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desires, the appointment of counsel. Finally, if the Commonwealth cannot
demonstrate prejudice, the PCRA court must then resolve Mohamad’s PCRA
claims in accordance with the governing law.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2015
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