Com. v. Brown, M.

J-S18020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MARK A. BROWN

Appellant No. 3007 EDA 2016

Appeal from the PCRA Order dated September 6, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0306772-1990

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED JUNE 26, 2017

Appellant Mark A. Brown appeals pro se from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

In 1990, a jury convicted Appellant of first-degree murder, arson, and

engaging in activities of corrupt organizations.1 In 1994, Appellant was

sentenced to life imprisonment for murder, and to a consecutive prison

sentence of forty-three to eighty-six months on the corrupt organizations

charge.2 We affirmed the judgment of sentence on April 5, 1995. See

Commonwealth v. Brown, No. 1920 PHL 1994 (Pa. Super. Apr. 5, 1995)
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(a), 3301(a), and 911, respectively.
2
Appellant received no additional penalty for the arson conviction.
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(unpublished memorandum). Appellant did not seek review by the Supreme

Court of Pennsylvania. Appellant thereafter filed several PCRA petitions,

none of which were successful.3

Appellant did have success, however, in federal court: in 2008,

Appellant filed a pro se Petition for a Writ of Habeas Corpus in the United

States District Court for the Eastern District of Pennsylvania. As a result of

that petition, the District Court issued an order instructing that Appellant’s

conviction for violating the corrupt organizations law be vacated and

Appellant be resentenced without regard to that charge. See Brown v.

Kerestes, No. CIV.A. 08-1643, 2008 WL 4570562 (E.D. Pa. Oct. 9, 2008).4

The trial court entered an order in 2009 vacating the corrupt

organizations conviction and stating that the original sentences on the

murder and arson convictions “stand as originally recorded.” Appellant

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3
The first of these petitions was filed in 1997 and was dismissed by the
PCRA court. We affirmed the dismissal, see Commonwealth v. Brown, No.
1860 PHL 1998 (Pa. Super. June 22, 1999) (unpublished memorandum),
and the Pennsylvania Supreme Court denied review. See Commonwealth
v. Brown, No. 477 E.D.Alloc. 1999 (Pa. Nov. 4, 1999). The second petition
was filed in 2000. It was dismissed by the PCRA court in 2001, and the
subsequent appeal was dismissed by this Court in 2002 for failure to file a
brief. The third petition was filed in 2004. It was dismissed by the PCRA
court as untimely that same year, and Appellant did not appeal its dismissal.
4
The relief was granted based on Commonwealth v. Besch, 674 A.2d 655
(Pa. 1996), in which the Supreme Court held that the Pennsylvania Corrupt
Organizations Act did not apply to wholly illegitimate enterprises (such as
the one in which Appellant participated). The other ten issues that Appellant
raised in his federal habeas petition were dismissed by the District Court,
and Appellant did not appeal that ruling.

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appealed, and in August 2010, we remanded for resentencing, specifying

that the trial court was to resentence at a hearing at which Appellant was

represented by counsel. See Commonwealth v. Brown, No. 457 EDA 2009

(Pa. Super. Aug. 17, 2010) (unpublished memorandum). In December 2010,

Appellant was again sentenced, following a hearing, to life imprisonment for

first-degree murder.

Appellant appealed from his 2010 resentencing. He asserted that the

corrupt organizations charge adversely affected the evidence presented

against him at trial on the other two charges, and, because his corrupt

organizations conviction has since been vacated, he should be awarded a

new trial on the remaining charges. On September 20, 2012, we affirmed

the trial court’s denial of a new trial, because —

a claim for a new trial and challenges to the admission of
evidence are not within the scope of an appeal from
resentencing pursuant to a federal habeas corpus petition. Guilt
was established for the [murder and arson] charges in 1990,
more than twenty years ago, and Appellant’s last PCRA petition
was dismissed in 2004. . . . [O]nly issues pertaining to the
resentencing procedure [can] be raised on appeal from that
resentencing.

Commonwealth v. Brown, No. 34 EDA 2011, at 8 (Pa. Super. Sept. 20,

2012) (unpublished memorandum).5 The Supreme Court denied allocatur on

April 11, 2013.

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5
We also addressed the merits of the request for new trial out of “an
abundance of caution.” Brown, No. 34 EDA 2011 at 8.

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Appellant filed the instant PCRA petition on May 3, 2013. In it,

Appellant asserted that his petition was timely because it was filed before

July 10, 2014. Appellant reasoned that July 10, 2013 was ninety days after

April 11, 2013 (the date the Pennsylvania Supreme Court denied review of

the appeal from Appellant’s 2010 resentencing), and therefore was the date

when his time for seeking review by the United States Supreme Court

expired. See PCRA Pet., 5/3/13, at 10-11; see also U.S. Sup. Ct. R. 13 (an

appellant has ninety days following the exhaustion of state review to seek

review with the United States Supreme Court). Therefore, he concluded, his

petition was timely so long as he filed it within a year of that date. See 42

Pa.C.S. § 9545(b)(1) (PCRA petitions must generally be filed within one year

of the date the judgment becomes final); (b)(3) (“For purposes of this

subchapter, a 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 review”).

Counsel was appointed to represent Appellant, and on July 14, 2016,

counsel filed a petition to withdraw and a “no-merit letter” pursuant to the

requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),

because counsel concluded that the petition was untimely. Appellant’s

petition was dismissed by the PCRA court as untimely on September 6,

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2016, and counsel was permitted to withdraw.6 Appellant filed a timely pro

se appeal, raising the following issues:

A. Whether trial counsel was ineffective for not objecting to
violations of Appellant’s rights under the Vienna Convention.
Appellant is a citizen of Jamaica and was not informed of his
rights to contact the Consulate for advice or assistance in
preparing his legal defense and helping him understand his legal
rights?

B. Whether trial counsel was ineffective for not allowing
Appellant to testify depriving him the opportunity to deny the
charges directly and present his version to the jury?

C. Whether trial counsel was ineffective for not requesting a
directed verdict when Appellant’s three co-defendants were
found not guilty eliminating the Commonwealths’ [sic] theory of
conspiracy and the only evidence to support it?

D. Whether PCRA counsel was ineffective for filing a no-merit
letter where the sentence on the charge of first degree murder
and arson warrants a new trial where Appellant had been
discharged on the Corrupt Organization charge supporting them?

E. Whether PCRA counsel was ineffective for filing a no-merit
letter where the right to trial before an impartial jury guaranteed
by the Pennsylvania Constitution requires the disqualification of
juror with a personal relationship with a family member of a
Commonwealth witness that existed in the instant case?

Appellant’s Brief at 3.

When we review an order dismissing a petition under the PCRA, our

standard is “to determine whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. The PCRA

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6
It does not appear from the record that the PCRA court complied with the
notice requirements of Pa.R.Crim.P. 907 before dismissing Appellant’s
petition without a hearing; however, that issue is not before us for review.

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court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

192 (Pa. Super. 2013) (citations and internal quotation marks omitted).

The timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Furgess, 149 A.3d 90, 92 (Pa. Super. 2016). We have

explained:

Generally, a petition for relief under the PCRA, including a
second or subsequent petition, must be filed within one year of
the date the judgment is final unless the petition alleges and the
petitioner proves one of the three exceptions to the time
limitations for filing the petition set forth in Section 9545(b)(1)
of the statute.

Id. (footnote omitted).7

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7
The three exceptions are:

(i) the failure to raise the claim previously was the result of
interference of 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. § 9545(b)(1). A petition which asserts one of the three
exceptions must be filed within sixty days of the earliest date that the claim
could have been presented. 42 Pa.C.S. § 9545(b)(2).

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Appellant does not claim that one of the three Section 9545(b)(1)

timeliness exceptions applies to his petition. Rather, Appellant asserts that

his judgment became final on July 10, 2013, following the conclusion of our

state courts’ review of his 2010 sentencing and the expiration of the time

when he may have sought review in the United States Supreme Court. See

Appellant’s Reply Brief at 2. In essence, although Appellant was originally

sentenced for first degree murder and arson in 1994, Appellant argues that

the resentencing he received in 2010 (which flowed from the successful

grant of his federal habeas corpus petition) replaced his original 1995

judgment date with a new 2013 judgment date from which the PCRA’s

jurisdictional clock should run.

The PCRA court disagreed that Appellant’s petition was timely, and so

do we. In Commonwealth v. McKeever, 947 A.2d 782 (Pa. Super. 2008),

McKeever pleaded guilty to several charges, including a corrupt

organizations charge, and was sentenced accordingly. Id. at 783. He initially

filed a direct appeal, but later discontinued it. Id. Later, he petitioned the

federal district court for habeas corpus relief. The federal court granted that

petition and ordered the trial court to vacate the corrupt organizations

charge and resentence McKeever. McKeever, 947 A.2d at 783. In addition

to resentencing, McKeever requested that the trial court allow him to

withdraw his guilty plea, but the trial court denied that relief. Id. at 784. The

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defendant appealed, we affirmed the denial of the requested relief, and the

Pennsylvania Supreme Court denied review. Id.

McKeever then filed a PCRA petition, which was dismissed by the PCRA

court. McKeever, 947 A.2d at 784. We affirmed that dismissal based on the

petition’s untimeliness, and stated:

The Eastern District Court’s grant of federal habeas corpus relief
as to [the defendant]’s corrupt organizations convictions does
not “reset the clock” for the finality of [the defendant’s]
judgment of sentence . . . for purposes of the PCRA where the
relief granted . . . neither restored a petitioner’s direct appeal
rights nor disturbed his conviction, but, rather, affected his
sentence only. . . .

Although [the defendant] successfully challenged his corrupt
organizations convictions and sentences successfully in federal
court, the remainder of his convictions, each having a distinct
sentence, were not disturbed by the Eastern District Court’s
grant of habeas corpus relief or by the trial court when it vacated
the corrupt organizations sentences in its resentencing order.

Id. at 785 (citations and footnote omitted).

This Court therefore determined that McKeever’s convictions, which

had not been disturbed by the federal court, became final when McKeever

had discontinued his direct appeal, and that McKeever’s PCRA petition, which

challenged those convictions, was untimely for purposes of PCRA

jurisdiction. 947 A.2d at 786. See also Commonwealth v. Lesko, 15 A.3d

345 (Pa. 2011).8

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8
In Lesko, we held that, when a trial court resentenced a defendant after a
federal court granted his habeas corpus petition, the defendant’s subsequent
PCRA petition — which was filed within a year of the entry of his new
(Footnote Continued Next Page)

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The instant case is nearly identical to McKeever. Appellant’s

conviction on the corrupt organizations charge has been vacated through the

federal habeas petition, Appellant has consequently been resentenced by the

trial court, and Appellant’s PCRA petition comes within one year after that

judgment became final. However, the finality of the convictions which

Appellant seeks to challenge has remained undisturbed since May 5, 1995,

when the period in which Appellant could have sought review by the

Pennsylvania Supreme Court expired and his direct appeal concluded. See

McKeever, 947 A.2d at 786. Therefore, Appellant cannot now file a PCRA

petition raising errors unrelated to his resentencing. Id. at 785; accord

Lesko, 15 A.3d at 357-67. To allow otherwise would thwart the jurisdictional

timeliness requirements of the PCRA.

Appellant’s petition therefore is untimely, and the PCRA court correctly

held that it lacked jurisdiction to consider it. Id. at 785-86.9

_______________________
(Footnote Continued)
sentence but which raised claims unrelated to his resentencing — was
untimely. We stated, “[A] limited grant of federal habeas sentencing relief
does not give rise to a ‘right’ to full-blown serial PCRA review of a trial whose
result (conviction) has long been final,” and “the answer to whether the
federal civil collateral order entered in this case operates to reopen the final
Pennsylvania judgment concerning the verdict of guilt is clear[:] It does
not.” 15 A.3d at 357-67.
9
We agree that Appellant would have had one year from July 10, 2013, in
which to file a timely PCRA petition raising claims based on alleged errors
regarding his resentencing, provided that his claims had not been previously
litigated or waived. See 42 Pa.C.S. § 9543. In its Pa.R.A.P. 1925(a) opinion,
the PCRA court indicated that Appellant had one year from the date of the
entry of the District Court’s habeas order in which to file a PCRA petition
(Footnote Continued Next Page)

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/26/2017

_______________________
(Footnote Continued)
raising such issues. The PCRA does not include the date of a dismissal of
claims by a federal court in the determination of the timeliness of a PCRA
petition; it looks only to the finality of judgment, which is based on direct
review. See 42 Pa.C.S. § 9545(b)(3). This error does not affect our analysis.

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