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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JEROME BURNAM
Appellant No. 1674 WDA 2017
Appeal from the PCRA Order entered October 11, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at Nos.: CP-02-CR-0013518-1988;
CP-02-CR-0001399-1989
BEFORE: BOWES, STABILE, AND STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 23, 2018
Appellant, Jerome Burnam, appeals from the October 11, 2017 order
entered in the Court of Common Pleas of Allegheny County, denying as
untimely his sixth petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we
affirm.
In a memorandum opinion issued on appeal from dismissal of an earlier
PCRA petition, this Court provided the following factual and procedural
background:
Appellant brutally stabbed a 68 year old woman to death in order
to rob her apartment. Before succumbing to more than eight stab
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* Retired Senior Judge assigned to the Superior Court.
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wounds, the victim wrote Appellant’s name in blood on a bed
sheet, and verbally identified him as her attacker.
Appellant pleaded guilty to second degree murder and robbery
and was sentenced to a mandatory term of life imprisonment on
June 29, 1989, but that sentence was later vacated by the
Superior Court and the case was remanded for a new trial.
Appellant then pleaded guilty to the general charge of criminal
homicide with the court to determine the degree of guilt, and
waived his right to a jury trial on the robbery charge. He was
subsequently found guilty of first degree murder and robbery, and
sentenced to death. Following the filing of numerous post trial
motions, which were properly treated as requests for relief under
the PCRA, Appellant’s death sentence was subsequently vacated,
but all other relief was denied. On December 7, 1998, Appellant
was again sentenced to life imprisonment.
On November 15, 1999, Appellant requested the right to appeal
nunc pro tunc. The Commonwealth did not oppose reinstatement
of appellate rights, but noted that the petition should be
considered a PCRA petition. Appellant was granted permission to
appeal, and in addressing the matter the Superior Court noted
that instead of hearing the merits of Appellant’s request to appeal
nunc pro tunc, the trial court should have treated the pleading as
an untimely second PCRA petition. Despite this procedural
irregularity, the Superior Court nevertheless affirmed Appellant’s
sentence.
Appellant then filed a third request for PCRA relief, which was
denied via order filed June 23, 2005, and that denial was affirmed
on direct appeal. A petition for writ of habeas corpus was
subsequently filed and denied, its denial was affirmed on direct
appeal, and the Pennsylvania Supreme Court denied review.
. . . Appellant’s fourth PCRA petition was filed pro se on March 8,
2012. Following the filing of a Notice of Intention to Dismiss on
April 9, 2012, the petition was denied on June 1, 2012. Appellant
appealed to this Court, and was directed to file a Pa.R.A.P.
1925(b) Statement via order dated, filed and docketed on October
26, 2012, and served on Appellant by certified mail, return receipt
requested on October 30, 2012. Thus, in order to be timely filed,
Appellant needed to mail his 1925(b) Statement by Friday,
November 16, 2012. No statement was received by the lower
court, however, and on December 31, 2012, the lower court noted
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its absence and ordered the certified record to be transmitted to
the Superior Court.
On January 11, 2013, a document was filed with the lower court
titled “Resubmit – Concise Statement of Matters Complained of on
Appeal Pursuant to Rule 1925(b).” Although the document is
accompanied by a “Proof of Service” page asserting that it was
served on the Criminal Division, Department of Court Records,
Allegheny County, on November 18, 2012,[] the certified record
and docket sheet do not reflect such service. We also note that
the proof of service page states only that the 1925(b) Statement
was served on the Criminal Division of the Department of Court
records, and makes no mention that Appellant complied with the
requirement that the statement also be served on the trial judge
pursuant to Pa.R.A.P. 1925(b)(1). In light of the fact that a timely
Rule 1925(b) statement was not received prior to the transferal of
the certified record from the lower court, no responsive Rule
1925(a) Opinion was filed by the trial judge.
Commonwealth v. Burnam, No. 1544 WDA 2015, unpublished
memorandum, at 1-3 (Pa. Super. filed July 14, 2016) (brackets omitted)
(quoting Commonwealth v. Burnam, 82 A.3d 1064 (Pa. Super. filed July
12, 2013) (unpublished memorandum) (footnotes omitted).
In this Court’s 2016 decision, the panel quashed the untimely-filed
appeal from the PCRA court’s dismissal of Appellant’s December 2014 “Petition
for Writ of Habeas Corpus ad Subjiciendum,” which the court treated as an
untimely PCRA petition, Appellant’s fifth. Appellant filed the instant petition,
styled “Petition for Writ of Mandamus and/or Extraordinary Relief,” on June
26, 2017. In the petition, Appellant asserted that the sentencing court failed
to issue “Resentencing Transcripts and Opinion.” Petition, 6/26/17, at 2
(unnumbered). The court again treated the petition as a PCRA petition. After
issuing a Pa.R.Crim.P. 907 notice of intent to dismiss the petition as untimely,
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the court dismissed the petition by order entered on October 11, 2017, noting
that the reasons for its ruling were set forth in its August 30, 2017 Rule 907
notice. This timely appeal followed. The PCRA court did not order a Rule
1925(b) statement.
In Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008), our Supreme
Court stated:
Our standard of review of the denial of PCRA relief is clear: we
are “limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.”
Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa. 2006).
We note that a second or subsequent petition must present a
strong prima facie showing that a miscarriage of justice may have
occurred. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d
154, 160 (1999). Finally, the petition must be timely, as the Act’s
timeliness restrictions are jurisdictional in nature and are to be
strictly construed. Commonwealth v. Abu–Jamal, 596 Pa. 219,
941 A.2d 1263, 1267–68 (2008).
Id. at 309.
Appellant asks us to consider two issues in this appeal:
I. Whether the court committed errors of law when petition for
writ of mandamus and/or extraordinary relief sought
production of resentencing transcript and opinion was
misnomered [sic] as PCRA and adjudicated.
II. Whether the court committed errors of law by failure to
resolve writ of mandamus facts in dispute of rights to
requested relief for sentence transcripts and opinion when
procedent [sic] establishes duty to be provided.
Appellant’s Brief at 1 (unnecessary capitalization and punctuation omitted).
However, before we can consider either of his issues, we must ascertain
whether we have jurisdiction to do so.
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As noted above, on November 15, 1999, Appellant requested the right
to appeal nunc pro tunc from the imposition of his December 7, 1998 sentence
of life imprisonment. On January 23, 2004, this Court issued a memorandum
opinion affirming the December 7, 1998 judgment of sentence.1
Commonwealth v. Burnam, 847 A.2d 755, No. 491 WDA 2000 (unpublished
memorandum) (Pa. Super. filed January 23, 2004). Our Supreme Court
denied Appellant’s petition for allowance of appeal on October 25, 2004.2
Appellant did not seek review from the United States Supreme Court.
Therefore, Appellant’s judgment of sentence was final on January 23, 2005,
90 days after our Supreme Court denied allocatur, and he had until January
23, 2006 to file a timely petition for collateral review.
The instant petition was filed on June 26, 2017, more than ten years
after Appellant’s judgment of sentence became final. Therefore, his petition
is patently untimely and we may not consider it unless Appellant has
presented and proved an exception to the PCRA’s timeliness requirement.
42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time restrictions are jurisdictional in
nature. Thus, [i]f a PCRA petition is untimely, neither this Court nor the
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1Although the panel entertained the idea that the November 15, 1999 motion
seeking an appeal nunc pro tunc could have been treated as an untimely
second PCRA petition, the panel nevertheless considered the merits of
Appellant’s appeal and affirmed his judgment of sentence.
2 Appellant’s petition for allowance of appeal was denied by per curiam order
issued on October 25, 2004. See Supreme Court Docket No. 49 WM 2004.
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[PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.”
Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration
in original) (internal citations and quotation marks omitted). As timeliness is
separate and distinct from the merits of Appellant’s underlying claims, we first
determine whether this PCRA petition is timely filed. See Stokes, 959 A.2d
at 310 (consideration of Brady claim separate from consideration of its
timeliness).
Appellant has not suggested that an exception to the PCRA’s timeliness
requirements exists. He simply contends his petition is not a PCRA petition
and is not subject to the PCRA’s time bar. He argues the PCRA court erred by
failing to address his rights to his “requested relief for sentence transcripts
and [an] opinion.” Appellant’s Brief at 1. We reject his contentions, just as
the panel did in his previous appeal, explaining:
Appellant’s December 2014 petition challenged the legality of his
sentence premised on the trial court’s failure to provide a written
opinion for the sentence of life in prison and on an unlawfully
induced plea. Thus, we would conclude that the PCRA court did
not err in treating the December 2014 petition as a PCRA petition.
See Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super.
2014) (stating that issues cognizable under the PCRA must be
raised in a timely PCRA petition and cannot be raised in a habeas
corpus petition).
Commonwealth v. Burnam, 154 A.3d 856, No. 1544 WDA 2015 (Pa. Super.
filed July 14, 2016) (unpublished memorandum at 6 n.2) (citation omitted).
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In his petition, Appellant claims that his re-sentencing violated his
constitutional rights to appeal because the trial judge “has failed to file an
[sic] ‘Re-sentencing Transcript’ and ‘Opinion’ of the decision that was
render[ed] in this case on December 7, 1998.” Petition for Writ of Mandamus
and/or Extraordinary Relief, 6/26/17, at 2 (unnumbered). As such, his claim
falls clearly within the eligibility provisions for PCRA relief, i.e., for a
“conviction or sentence result[ing] from one or more of the following: . . .
[t]he improper obstruction by government officials of the petitioner’s right of
appeal where a meritorious appealable issue existed and was properly
preserved in the trial court.” 42 Pa.C.S.A § 9543(a)(2)(iv). Appellant’s
insistence that his petition falls outside the PCRA is without merit.
We find the PCRA court’s factual findings are supported by the record.
Further, we find no error in treating the June 2017 petition as a PCRA petition.
See Taylor, supra.
The PCRA court correctly concluded Appellant’s petition was untimely
filed and is barred by the PCRA’s timeliness requirements. Therefore, we
affirm the October 11, 2017 order dismissing Appellant’s petition.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2018
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