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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY THOMASON, No. 260 EDA 2016
Appellant
Appeal from the PCRA Order, December 7, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0500321-2004
BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 04, 2017
Anthony Thomason appeals from the December 7, 2015 order
dismissing his second petition filed pursuant to the Post -Conviction Relief Act
("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The underlying facts of this case were summarized by the PCRA court
and need not be reiterated here. (See PCRA court opinion, 2/10/16 at 3-4.)
In sum, appellant was found guilty of first -degree murder, possessing
instruments of crime, carrying a firearm without a license, and carrying a
firearm on public streets or public property in Philadelphia' after he shot and
killed James Preston Thomas in the early morning hours of August 2, 2003.
On March 27, 2006, appellant was sentenced to a mandatory aggregate
' 18 Pa.C.S.A. §§ 2502, 907, 6106, and 6108, respectively.
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term of life imprisonment without the possibility of parole. On October 18,
2007, this court affirmed appellant's judgment of sentence, and our supreme
court denied appellant's petition for allowance of appeal on May 8, 2008.
See Commonwealth v. Thomason, 943 A.2d 324 (Pa.Super. 2007)
(unpublished memorandum), appeal denied, 947 A.2d 737 (Pa. 2008).
On April 14, 2009, appellant filed a timely pro se PCRA petition and
counsel was appointed to represent him. Appellant filed amended petitions
on August 17, 2009 and August 13, 2010. On November 4, 2011, the PCRA
court entered an order dismissing appellant's petition. On December 20,
2013, this court affirmed the PCRA court's order, and appellant filed a
petition for allowance of appeal with our supreme court on January 14,
2014. See Commonwealth v. Thomason, 93 A.3d 515 (Pa.Super. 2013)
(unpublished memorandum), appeal denied, 92 A.3d 811 (Pa. 2014).
While his petition for allowance of appeal was pending before our
supreme court, appellant filed the instant pro se PCRA petition, his second,
on March 7, 2014.2 On September 17, 2014, the PCRA court sent appellant
notice of its intent to dismiss his petition without a hearing, pursuant to
Pa.R.Crim.P. 907(1). Appellant responded to the PCRA court's Rule 907
notice on September 30, 2014. Following several continuances, the PCRA
court entered an order on November 17, 2015, dismissing appellant's
2 The record reflects that appellant's petition for allowance of appeal was
ultimately denied by our supreme court on May 21, 2014. (See certified
record at 31.)
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petition. The docket entry for this order incorrectly indicates that appellant
had been appointed counsel who requested permission to withdraw in
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The
record further reflects that the PCRA court mistakenly entered a second
Rule 907 notice on November 19, 2015, rather than forwarding appellant its
November 17, 2015 order in accordance with Rule 907(4).3 The PCRA court
erroneously indicated in this second Rule 907 notice that appellant's
appointed counsel had filed a Turner/Finley letter and concluded that his
issues were without merit. (See Rule 907 notice, 11/19/15; certified record
at 35.) Appellant filed a response to the PCRA court's dismissal notice on
December 3, 2015.
On December 7, 2015, the PCRA court entered an order vacating its
November 17, 2015 order "because a copy of that ORDER was not sent to
[appellant.]" (PCRA court order, 12/7/15; certified record at 37.) This order
3
Rule 907(4) provides as follows:
(4) When the petition is dismissed without a
hearing, the judge promptly shall issue an
order to that effect and shall advise the
defendant by certified mail, return receipt
requested, of the right to appeal from the final
order disposing of the petition and of the time
limits within which the appeal must be filed.
The order shall be filed and served as provided
in Rule 114.
Pa.R.A.P. 907(4).
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dismissed appellant's second petition without a hearing because it was both
untimely filed and premature. (Id.) The order further instructed that the
November 17, 2015 docket entry be amended to reflect that, "[appellant's]
PCRA petition was dismissed because it was untimely filed and because it
was filed while his petition for allowance of appeal was still pending." (Id.)
The PCRA court clarified that no Turner/Finley letter had been filed and
that appellant had not been appointed counsel "because the instant matter
commenced with the filing of a premature and untimely second PCRA
petition." (Id.)
Appellant filed a pro se notice of appeal that was docketed on
January 13, 2016.4 On May 5, 2016, this court directed appellant to show
cause as to why his January 13, 2016 appeal should not be quashed as
untimely. (Per curiam order, 5/5/16.) On May 25, 2016, this court
entered an order discharging its May 5, 2016 rule to show cause and
referred the timeliness issue to the instant panel. (Per curiam order,
5/25/16.)
Preliminarily, we must address whether appellant's pro se appeal is
timely. It is well settled that a "notice of appeal . . . shall be filed within
30 days after the entry of the order from which the appeal is taken."
4Although not ordered to do so, appellant filed a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b), on
February 9, 2016. The PCRA court filed its Rule 1925(a) opinion on
February 10, 2016.
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Pa.R.A.P. 903(a). In the instant matter, appellant's notice of appeal was
filed on January 13, 2016, 37 days after the entry of the December 7, 2015
order dismissing his second PCRA petition. Although appellant's notice of
appeal appears to be untimely on its face, we conclude that the prisoner
mailbox rule applies to this case. Where a pro se appellant is incarcerated,
as is the case here, an appeal is deemed filed on the date the prisoner
deposits the appeal with prison authorities or places it in a prison mailbox.
See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.Super. 2011),
appeal denied, 46 A.3d 715 (Pa. 2012).
Instantly, the record reflects that appellant deposited his pro se notice
of appeal in the prison mailbox on December 20, 2015, with proof of service
that the notice was mailed to the court on that date. (See "Supplemental
Response to Order to Show Cause Issued on May 5, 2016," 6/13/16 at
Exhibit AA, at 4-5.) Appellant's notice of appeal, however, mistakenly
omitted two digits from the case docket number.5 As a result, the clerk of
courts returned the notice of appeal to appellant with an undated letter
advising him to resubmit his "motion" with the correct number. (Id. at
Exhibit AA, at 8-9.) The envelope accompanying this letter was post -marked
January 5, 2016, and received by prison authorities at SCI Benner on
January 6, 2016. (Id. at Exhibit AA, at 7.) On January 13, 2016, appellant
5 The caption on appellant's notice of appeal contained docket number
CP-51-CR-05321-2004; the correct docket number is CP-51-CR-0500321-
2004.
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deposited a pro se notice of appeal with prison authorities that included the
correct docket number; this notice of appeal was docketed that same day.
(See notice of appeal, 1/13/16; certified record at 38.)
There is no indication that appellant's pro se notice of appeal was
time -stamped with the date it was initially received by the clerk of courts.6
However, the record reflects that the envelope accompanying the appeal
was time -stamped as having been received on December 24, 2015, well
before the 30 -day appeal period expired. (See "Supplemental Response to
Order to Show Cause Issued on May 5, 2016," 6/13/16 at Exhibit AA, at 10.)
Pennsylvania Rule of Appellate Procedure 905 requires that, "[u]pon receipt
of the notice of appeal the clerk shall immediately stamp it with the date of
receipt, and that date shall constitute the date when the appeal was taken,
which date shall be shown on the docket." Pa.R.A.P. 905(a)(3). The
"[f]ailure of an appellant to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal." Pa.R.A.P. 902.
Accordingly, we deem the instant appeal to be timely. See
Commonwealth v. Williams, 106 A.3d 583, 585-589 (Pa. 2014) (holding
that a clerk of courts lacks the authority to reject, as defective, an otherwise
timely notice of appeal; "therefore [it is] obligated to accept and process
notices of appeal upon receipt in accordance with the Rules of Appellate
6
We note that court -appointed counsel entered her appearance in this court
on June 10, 2016, and has filed a brief on appellant's behalf.
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Procedure, notwithstanding any perceived defects therein" (citations
omitted)).
On appeal, appellant presents the following issues for our review:
[1.] Whether the Order filed on December 7, 2015
is not free of legal err [sic] because the PCRA
Court did not comply with Pa.R.Cr[im].P. 907
and provide notice informing [appellant] of the
reasons for dismissing his PCRA Petition
without a hearing and effectively denying
[appellant] a meaningful opportunity to amend
his PCRA petition?
[2.] Whether the PCRA Court abused its discretion
in dismissing the second PCRA petition without
a hearing where a review of the record
indicates [appellant] was denied the assistance
of counsel in connection with the first PCRA
petition?
[3.] Whether the PCRA Court abused its discretion
in dismissing the second PCRA petition for lack
of jurisdiction because it was filed while the
petition for allowance of appeal from the denial
of the first PCRA petition was pending?
[4.] Whether the PCRA Court abused its discretion
when it found the second PCRA Petition to be
untimely?
[5.] Whether the conviction was obtained and
sentence imposed in violation of the right to
effective assistance of counsel guaranteed by
the Sixth and Fourteenth Amendments to the
Constitution of the United States?
Appellant's brief at 2-3.
We must begin by addressing whether the PCRA court lacked
jurisdiction over appellant's petition. The record reflects that appellant filed
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the instant pro se PCRA petition on March 7, 2014, during the pendency of
his appeal from the order denying his first PCRA petition. It is well settled
that an appellant cannot file a successive PCRA petition while his previous
PCRA petition is still pending on appeal. "When an appellant's PCRA appeal
is pending before a court, 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." Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.
2000); see also Commonwealth v. Ali, 10 A.3d 282, 320 (Pa. 2010)
(citing Lark for the proposition that "as [a] matter of jurisdiction, [a] PCRA
court cannot entertain new PCRA claims or [a] new PCRA petition when [a]
prior petition is still under review on appeal"). Accordingly, we agree with
the PCRA court that it did not possess jurisdiction to address the merits of
appellant's second PCRA petition.
Furthermore, even if the appeal of appellant's first PCRA petition was
not pending, the timeliness of appellant's second PCRA petition implicates
the jurisdiction of this court and the PCRA court. See Commonwealth v.
Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation omitted). All PCRA
petitions, including second and subsequent petitions, must be filed within
one year of when a defendant's judgment of sentence becomes final.
42 Pa.C.S.A. § 9545(b)(1). "A judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
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United States and the Supreme Court of Pennsylvania, or at the expiration of
the time for seeking the review." Id. § 9545(b)(3). If a PCRA petition is
untimely, a court lacks jurisdiction over the petition. Commonwealth v.
Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).
Here, it is undisputed that appellant's March 7, 2014 PCRA petition is
patently untimely. Appellant's judgment of sentence became final on
August 6, 2008, 90 days after our supreme court denied his petition for
allowance of appeal and the time for filing a petition for certiorari with the
United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b). As a
result, the PCRA court lacked jurisdiction to review appellant's petition on
this basis as well, unless appellant alleged and proved one of the statutory
exceptions to the time bar set forth in Section 9545(b)(1). See
Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa.Super. 2014). Here, we
agree with the well -reasoned rationale of the PCRA court that appellant
failed to prove any of the statutory exceptions to the PCRA time -bar. (See
PCRA court opinion, 2/10/16 at 5-9.)
Accordingly, we find the PCRA court lacked jurisdiction to consider the
merits of appellant's second PCRA petition and properly dismissed it as
untimely and prematurely filed. We affirm the December 7, 2015 order of
the PCRA court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 4/4/2017
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