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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
THOMAS W. JONES III :
:
Appellant : No. 2653 EDA 2019
Appeal from the PCRA Order Entered August 8, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0403101-1982.
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 05, 2021
Thomas W. Jones, III appeals pro se from the order denying his petition
filed pursuant the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
46. We affirm.
The pertinent facts and procedural history have been summarized as
follows:
[In 1982, Jones] was tried and convicted of first degree
murder, robbery and possession of an instrument of crime.
After a sentencing hearing immediately following the trial,
the jury elected to sentence [Jones] to death. Post-verdict
motions were denied and [Jones] took a direct appeal to
[our] Supreme Court. The Supreme Court remanded to the
trial court for an evidentiary hearing on [Jones’] allegations
of ineffective assistance of counsel. On the basis of
evidence adduced at the remand hearing, the judge found
ineffective assistance of counsel at the penalty phase only
of the original trial. As a result of that finding, the Supreme
Court granted [Jones’] request for extraordinary relief and
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ordered that the death penalty be vacated and a life
sentence imposed.
Commonwealth v. Jones, 570 A.2d 1338, 1342 (Pa. Super. 1990) (citation
and footnotes omitted).
Jones timely appealed his new judgment of sentence to this Court. On
March 9, 1990, this Court rejected Jones’ claims and affirmed. Jones, supra.
On July 11, 1991, our Supreme Court denied Jones’ petition for allowance of
appeal. Commonwealth v. Jones, 596 A.2d 155 (Pa. 1991).
On August 16, 2012, Jones filed the PCRA petition at issue. 1 On April
11, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to
dismiss Jones’ petition without a hearing. In this notice, the PCRA court
expressly stated:
[Jones] invoked the new right announced in Miller v.
Alabama, 132 S.Ct. 2455 (2012) and Montgomery v.
Louisiana, 136 S.Ct. 718 (2016), as revised (Jan. 27. 2016).
However, relief is limited to juveniles convicted of a homicide who
were under eighteen years old at the time of the crime and
sentenced to life without the possibility of parole. Since [Jones]
was not under the eighteen years old at the time of the homicide,
[he] is not entitled to relief under the Miller/Montgomery
decision[s].
____________________________________________
1 By letter dated February 12, 2020, the lower court notified this Court that
the record for this appeal was missing from the Office of Judicial records File
Room, and that a reconstructed record was prepared from available
documents. Our statement of the additional procedural history is gleaned
from the documents that appear in this reconstructed record, as well as the
docket entries in this case.
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The certified record contains no response from Jones. By order entered
August 8, 2019, the PCRA court dismissed Jones’ 2012 PCRA petition.2 This
timely appeal followed.3
Jones now raises the following issue:
I. Whether the PCRA court erred by issuing an order
dismissing his PCRA petition on the same date it
issued its letter of intent to dismiss, and thereby,
depriving him of the mandatory 20 days to object as
required under [Pa.R.Crim.P.] 907?
Jones’ Brief at 3 (excess capitalization omitted).
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
____________________________________________
2The reconstructed record in this case does not account for the approximate
seven-year delay in disposing of Jones’ PCRA petition.
3 Jones is incarcerated and he dated his notice of appeal on September 6,
2019. Though Jones’ notice of appeal was filed beyond the thirty-day appeal
period, we conclude it is timely under the “prisoner mailbox rule.” See
generally, Commonwealth v. Brandon, 51 A.3d 231 (Pa. Super. 2012).
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The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
In support of his issue, Jones cites to the following language from the
cover page to the August 8, 2019 order dismissing his PCRA petition: “You
were sent a twenty-day notice dated August 8, 2019, pursuant to
[Pa.R.Crim.P.] 907, of the court’s intention to dismiss your [PCRA] petition.”
As noted above, the reconstructed record includes a Rule 907 notice issued
on April 11, 2017. It does not, however, include a Rule 907 notice dated
August 8, 2019.
The Commonwealth contends that the date provided on the cover page
appears to be a clerical error. See Commonwealth’s Brief at 5. Nonetheless,
the Commonwealth “would not oppose a remand for the limited purpose of
establishing when the [PCRA] court notified [Jones] of is intent to dismiss.”
Id. at 5-6.
As noted above, our review of the record refutes Jones’ claim. In
addition, we need not remand this case because, even if the PCRA court never
issued Rule 907 notice, we may affirm the court’s determination that Jones’
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PCRA petition is clearly untimely. See, e.g. Commonwealth v. Ziegler, 148
A.3d 849, 851 n.2 (Pa. Super. 2016) (explaining, “failure to issue Rule 907
notice is not reversible error where the record is clear that the petition is
untimely”). Finally, we note that, in his 2012 PCRA petition, Jones concedes
he was over the age of eighteen when he murdered the victim. See PCRA
Petition, 8/16/12, at 3. Thus, the PCRA court correctly stated that the
Miller/Montgomery decisions do not provide Jones with a basis for post-
conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2021
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