J-S45045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHIEP PHOUN :
:
Appellant : No. 2501 EDA 2019
Appeal from the PCRA Order Entered July 19, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010952-2008,
CP-51-CR-0010955-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHIEP PHOUN :
:
Appellant : No. 2502 EDA 2019
Appeal from the PCRA Order Entered July 19, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010952-2008,
CP-51-CR-0010955-2008
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 06, 2020
In these consolidated appeals, Phiep Phoun (Appellant) appeals pro se
from the order dismissing his second petition for relief filed under the Post
Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
J-S45045-20
In June 2008, while Appellant was driving a vehicle in Philadelphia, his
co-conspirator fired multiple gunshots at two pedestrians, killing one and
seriously wounding the other. On April 5, 2010, a jury convicted Appellant of
first-degree murder, attempted murder, and related offenses. The charges
pertaining to the respective victims were docketed at two separate criminal
informations: CP-51-CR-0010952-2008 (Case 10952), and CP-51-CR-
0010955-2008 (Case 10955).
In September 2012, this Court affirmed Appellant’s judgment of
sentence, and on June 6, 2013, the Supreme Court of Pennsylvania denied
allowance of appeal. See Commonwealth v. Phoun, 60 A.3d 845 (Pa.
Super. 2012) (unpublished memorandum), appeal denied, 68 A.3d 908 (Pa.
2013). Appellant did not seek review with the United States Supreme Court.
Appellant timely filed a PCRA petition in October 2013, asserting, inter
alia, ineffective assistance of defense counsel at trial. In response, the PCRA
court appointed PCRA counsel, James Lammendola, Esquire (PCRA Counsel),
to represent Appellant. On November 4, 2015, PCRA Counsel requested
permission to withdraw from representation, and filed a “no-merit letter”
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
By order entered May 27, 2016 (dismissal order), the PCRA court
dismissed Appellant’s first petition and permitted PCRA Counsel to withdraw.
The docket indicates that on or about March 18, 2016, prior to dismissing the
-2-
J-S45045-20
first petition, the PCRA court gave Appellant notice pursuant to Pa.R.Crim.P.
907 (907 Notice) of its intent to dismiss the petition without a hearing.1 On
March 26, 2016, Appellant filed a pro se response to the 907 Notice
(Response). Appellant did not file an appeal from the May 27, 2016 dismissal
order.
On December 2, 2016, Appellant filed a pro se “petition for leave to file
an amended PCRA petition nunc pro tunc” pertaining to the May 27, 2016
dismissal order, claiming that the PCRA court erred in failing to ensure he
received a copy of the 907 Notice prior to dismissing his first PCRA petition.
The next docket entries are Appellant’s pro se filings dated April 25, 2017
(“motion to proceed pro se”) and April 28, 2017 (“amended petition for post-
conviction relief” and “motion for acceptance of amended PCRA petition nunc
pro tunc”). In his August 28, 2017 “amended petition,” Appellant raised
claims of, inter alia, ineffectiveness of trial counsel, and requested an
evidentiary hearing.
Next, by correspondence to the PCRA court dated and docketed March
8, 2018, the Commonwealth stated, “Your Honor has given the
Commonwealth until March 16, 2018 to file its response,” and requested a
____________________________________________
1 The 907 Notice is not in the certified record. However, the docket entry
states that the 907 Notice was “sent and received” prior to the dismissal order;
the docket entry also states that PCRA Counsel received a copy of the 907
Notice.
-3-
J-S45045-20
continuance due to “the recent change in the way PCRA petitions are being
handled [including] the well over fifty percent in the number of answers we
are being asked to file.” The record — not a model of clarity — does not
include a response to the Commonwealth’s request, but next shows an order
continuing the PCRA from January 25, 2019 to February 22, 2019. On May
22, 2019, the Commonwealth filed a Motion to Dismiss Untimely Petition,
stating:
[Appellant] has filed a second, untimely PCRA petition.
[Appellant] does not even acknowledge this untimeliness in his
petition. Nevertheless, [Appellant] raises the governmental
interference exception to the PCRA time-bar, claiming that he
never received proper notice that his prior PCRA petition was
going to be dismissed without a hearing, or that it was dismissed.
Because [Appellant] was aware of the dismissal, the exception
does not apply. Therefore, this [c]ourt does not have jurisdiction
to consider [Appellant’s] petition. The petition should be
dismissed without a hearing.
Motion to Dismiss Untimely Petition, 5/22/19, at 1.
On June 4, 2019, the PCRA court issued notice of intent to dismiss
pursuant to Rule 907; Appellant filed a pro se response. The PCRA court
dismissed the petition on July 19, 2019. On August 12, 2019, Appellant filed
this appeal.
Appellant filed separate notices of appeal at Case 10952 and Case
10955. However, each notice of appeal listed the docket numbers for both
-4-
J-S45045-20
Case 10952 and Case 10955,2 and thus implicates our Supreme Court’s
decision in Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018)
(“prospectively, where a single order resolves issues arising on more than one
docket, separate notices of appeal must be filed for each case,” and failure to
do so requires quashal of the appeal); see also Pa.R.A.P. 341, Official Note.
Based on Walker, this Court issued upon Appellant at each docket, rules to
show cause why his appeals should not be quashed. Appellant responded that
“as a pro se litigant, Appellant was unfamiliar with the Walker decision,” and
requested that this appeal be allowed to proceed. Response, 9/25/19, at 1-2
(unnumbered). In two separate orders at each docket, this Court discharged
the rules and referred the matter to the merits panel.
On appeal, Appellant phrases his two issues as follows:
1. Appellant’s appeal should not be quashed for failing to submit
the requisite Notices of Appeal pursuant to Commonwealth
v. Walker, 185 A.3d 969 (Pa. June 1, 2018)?
2. Whether the PCRA court erred in failing to grant [Appellant’s]
[petition] to reinstate [Appellant’s] rights to appeal nunc pro
tunc from the dismissal of [Appellant’s] initial PCRA petition,
where [Appellant] never received the [c]ourt’s May 27, 2016
order dismissing [the] initial PCRA petition? The
Commonwealth recently has agreed that [Appellant] may be
entitled to have [his] appellate rights reinstated. Although the
court recently dismissed [the] amended PCRA petition, the
court never specifically addressed [the petition to reinstate].
____________________________________________
2 The caption of the notice of appeal filed at Case 10952 bore a hand-written
check mark next to the trial court docket number pertaining to that case.
Likewise, the caption of the notice of appeal filed at Case 10955 had a check
mark next to the trial court docket number for that case.
-5-
J-S45045-20
Appellant’s Brief at 5.
Regarding Appellant’s first issue, we must examine Walker and
determine whether we have jurisdiction. An en banc panel of this Court
recently clarified the law under Walker and its progeny, where a notice of
appeal contains more than one docket number and the appellant filed a
separate notice of appeal at each trial court docket. See Commonwealth v.
Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) (en banc). Johnson held
that in such a situation, the “fact that each notice of appeal listed [more than
one trial court docket number] does not invalidate [the] notices of appeal.”
Id.; accord Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa. Super.
2020) (en banc) (addressing Walker and progeny in the context of a
breakdown in the court system). Accordingly, we have jurisdiction, and
proceed to address Appellant’s second issue.
Appellant asserts that the PCRA court erred in dismissing his PCRA
petition and declining to reinstate his collateral appeal rights nunc pro tunc,
based on his claim that he never received the 907 Notice issued prior to the
dismissal of his first PCRA petition. See Appellant’s Brief at 18-22. In
response, and contrary to Appellant’s statement of his second issue, the
Commonwealth counters that Appellant did receive notice, but regardless,
“the PCRA court below properly dismissed his serial petition because it was
time-barred.” Commonwealth Brief at 6.
-6-
J-S45045-20
Our standard of review from the denial of PCRA relief is well-settled; we
must determine whether the PCRA court’s ruling “is supported by the record
and free of legal error.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa.
2017). “We view the findings of the PCRA court and the evidence of record in
a light most favorable to the prevailing party.” Johnson, 236 A.3d at 68
(citation omitted).
All PCRA petitions, including a second or subsequent petition, must be
filed within one year of the date that the petitioner’s judgment of sentence
becomes final. 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v.
Chester, 895 A.2d 520, 522 (Pa. 2006) (citation omitted) (stating that “[i]f a
PCRA petition is untimely, neither this Court nor the [PCRA] court has
jurisdiction over the petition.”). Here, it is undisputed that Appellant’s petition
is facially untimely, as the Pennsylvania Supreme Court denied Appellant’s
request for allocatur on June 6, 2013, and he did not seek a writ of certiorari
with the United States Supreme Court within 90 days. See U.S. Supreme Ct.
Rule 13. Therefore, Appellant’s judgment of sentence became final on or
about September 5, 2013.
It is well-settled that Pennsylvania courts may consider an untimely
PCRA petition if the petitioner can plead and prove one of the statutory
exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i-iii) (providing that an
untimely PCRA petition may be considered timely if a petitioner alleges and
proves (i) governmental interference with the presentation of his claims; (ii)
-7-
J-S45045-20
discovery of previously unknown facts which could not have been discovered
with due diligence; or (iii) a newly-recognized constitutional right given
retroactive application). Appellant’s petition had to invoke one of these
exceptions “within 60 days of the date the claim could have been presented.”
Id. § 9545(b)(2) (amended October 24, 2018, effective December 24, 2018,
expanding petitioner’s time for filing to “one year of the date the claim could
have been presented.”). Finally, “it is the petitioner’s burden to plead in the
petition and prove that one of the exceptions applies. That burden necessarily
entails an acknowledgement by the petitioner that the PCRA petition under
review is untimely but that one or more of the exceptions apply.”
Commonwealth v. Crews, 863 A.2d 498, 501 (Pa. 2004) (citations and
emphasis omitted).
Here, Appellant did not invoke any of the time bar exceptions in his
petition. Indeed, he failed to acknowledge his filing was facially untimely, in
violation of Crews, supra. Moreover, for the first time on appeal, Appellant
cites in passing the “governmental interference” exception at 42 Pa.C.S.A. §
9545(b)(1)(i). See Appellant’s Brief at 21 (referencing claim that he did not
receive Rule 907 Notice). It is axiomatic that issues not raised in lower courts
are waived for purposes of appellate review, and cannot be raised for the first
time on appeal. Pa.R.A.P. 302(a); see also Commonwealth v. Santiago,
855 A.2d 682, 691 (Pa. 2004) (stating that a claim not raised in the PCRA
-8-
J-S45045-20
petition cannot be raised for the first time on appeal, and is “indisputably
waived.”).
Nevertheless, even if Appellant had preserved his claim, we would find
it meritless. The record supports the PCRA court’s reasoning:
Even assuming arguendo [that Appellant did not receive the 907
Notice], he makes no claim whatsoever to justify waiting until
A[ugust] 28, 2017 to file the instant [PCRA] petition. Clearly,
Appellant received [the] 907 Notice, as he responded [to it]. The
docket in this court reflects his Response to the 907 Notice was
filed on March 26, 2016.[3] Accordingly, he was on notice of this
court’s inclination to dismiss the petition prior to March 26, 2016.
Yet he took no steps to determine whether his petition was
dismissed. A simple docket check would have disclosed it. He
made no allegation that he was prevented from doing so or was
unable to do so. Indeed, the docket demonstrates that Appellant
must have made some inquiry, although at a later date, as the
docket also notes a full docket sheet was sent to [Appellant] on
March 28, 2017. Even after receiving actual notice, he waited
another five months, until August 28, 2017, to file the instant
Petition. Appellant makes no explanation as to this five-month
delay. Accordingly, we cannot find this Petition to have been
timely filed.
PCRA Court Opinion, 11/25/19, at 7 (footnote added, some capitalization
altered).
Based on the foregoing, we discern no error by the PCRA court, and
affirm its order dismissing Appellant’s petition.
Order affirmed.
____________________________________________
3In this filing, Appellant expressly stated that he was responding to a notice
he received from the PCRA court dated March 17, 2016.
-9-
J-S45045-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/20
- 10 -