J-S17030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES B CUNNINGHAM, :
:
Appellant : No. 2607 EDA 2021
Appeal from the PCRA Order Entered August 30, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0301241-2000
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 07, 2022
James B. Cunningham appeals,1 pro se, from the order, entered in the
Court of Common Pleas of Philadelphia County, dismissing his petition filed
____________________________________________
1 Cunningham’s notice of appeal was filed on November 24, 2021, in excess
of the 30-day requirement. See Pa.R.A.P. 903(a) (notice of appeal “shall be
filed within 30 days after the entry of the order from which the appeal is
taken”). This Court issued a rule to show cause directing Cunningham to
explain why his appeal should not be quashed. See Rule to Show Cause,
1/27/22, at 1. Cunningham filed a response, in which he included a “Reply
Brief.” See Response, 2/28/22, at 6-19.
The record reveals that the August 30, 2021 order dismissing Cunningham’s
PCRA petition was not served on Cunningham until November 12, 2021. See
Pa.R.Crim.P. 114(C)(2)(c) (requiring trial court docket entry to contain date
of service of order or court notice); Pa.R.A.P. 108(a)(1) (“[I]n computing any
period of time under these rules involving the date of entry of an order by a
court . . ., the day of entry shall be the day the clerk of the court . . . mails or
delivers copies of the order to the parties.”); see also Commonwealth v.
Carter, 122 A.3d 388, 390-92 (Pa. Super. 2015) (appeal period does not run
until clerk of court mails or delivers copies of order to parties as shown on
(Footnote Continued Next Page)
J-S17030-22
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
Additionally, Cunningham has filed an Application to Strike with this Court.
We deny Cunningham’s Application to strike,2 and affirm the PCRA court’s
order.
In December 2000, Cunningham was convicted of robbery, burglary,
and conspiracy. On May 2, 2001, he was sentenced to an aggregate term of
40 to 80 years in prison. This Court affirmed his judgment of sentence, see
Commonwealth v. Cunningham, 805 A.2d 566 (Pa. Super. 2002), and the
____________________________________________
docket). Thus, Cunningham’s 30-day appeal period did not begin until
November 12, 2021.
Moreover, the August 30, 2021 order dismissing Cunningham’s PCRA petition
omits any reference to Cunningham’s appellate rights. See Pa.R.Crim.P.
907(4) (when PCRA petition is dismissed without hearing, trial court shall issue
order “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.”); see also
Commonwealth v. Stansbury, 219 A.3d 157, 160 (Pa. Super. 2019)
(breakdown in court operations occurs when a PCRA court misadvises
petitioners as to their appellate rights). Accordingly, we conclude that a
breakdown in court operations has occurred permitting us to overlook
Cunningham’s facially untimely notice of appeal.
2 On May 12, 2022, Cunningham filed a pro se Application to Strike in which
he requested that this Court strike the Commonwealth’s Brief for Appellee,
filed on April 26, 2022. See Application to Strike, 5/12/22, at 1-2.
Cunningham alleges that the Commonwealth’s April 26, 2022 brief is a
second-filed appellee brief, after his timely-filed Reply Brief in violation of
Pa.R.A.P. 2113(a) (providing that both parties may file a single appellate brief
and permitting appellant to file a reply brief). However, our review of the
record reveals that the Commonwealth has only filed one Brief for Appellee,
the brief dated April 26, 2022. It appears, as we noted above, that
Cunningham filed his Reply Brief in response to this Court’s rule to show cause,
which is not a Commonwealth appellate brief. Thus, we discern no violation
of Rule 2113(a), and we deny Cunningham’s Application to Strike.
-2-
J-S17030-22
Supreme Court denied his petition for review on March 26, 2003.
Commonwealth v. Cunningham, 820 A.2d 703 (Pa. 2003). Cunningham
did not seek a writ of certiorari from the United States Supreme Court. Thus,
his judgment of sentence became final on June 24, 2003.3
Cunningham4 subsequently filed six unsuccessful PCRA petitions.5
Cunningham, pro se, filed the instant PCRA petition, his seventh, on July 2,
2021. On July 26, 2021, the PCRA court issued notice of its intent to dismiss
Cunningham’s petition pursuant to Pa.R.Crim.P. 907. Cunningham filed a
response, and on August 30, 2021, the PCRA court dismissed Cunningham’s
PCRA petition.
Cunningham filed, pro se, a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Cunningham raises the following claims for our review:
____________________________________________
3 See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13.
4 Cunningham also goes by the name “Frank Fluellen” and has filed at least
one of his PCRA petitions under this moniker. See Commonwealth v.
Fluellen, 84 A.3d 452 (Pa. Super. 2013) (Table) (unpublished memorandum
decision).
5 We note, as relevant here, while his first PCRA petition was pending on
appeal, Cunningham filed three more petitions before the trial court. These
petitions were filed on November 3, 2005, May 17, 2006, and May 20, 2006,
respectively. The PCRA court dismissed all of these petitions as untimely filed;
however, Cunningham only appealed the dismissal of the May 20, 2006
petition, which appeal this Court dismissed after Cunningham failed to file an
appellate brief. See PCRA Court Opinion, 1/24/22, at 2 (summarizing
procedural history).
-3-
J-S17030-22
1. Did the [PCRA c]ourt commit “[g]overnmental [i]nterference”
when it held that [Cunningham]’s May 17, 2006 PCRA [petition]
was untimely when[,] in[ ]fact[,] it was not, causing
[Cunningham] to abandon his appeal[?]
2. Whether the PCRA [c]ourt erred by failing to grant an
evidentiary hearing[?]
Brief for Appellant, at 6.
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of the record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Any PCRA petition “shall be filed within one year of the date the
judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
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 review.” Id. at §
9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,
and a court may not address the merits of the issues raised if the PCRA petition
was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010).
As we noted above, Cunningham’s judgment of sentence became final
on June 24, 2003. See 42 Pa.C.S.A. § 9545(b)(3); Sup. Ct. R. 13. Thus,
Cunningham’s petition is facially untimely.
-4-
J-S17030-22
However, Pennsylvania courts may consider an untimely petition if the
petitioner can explicitly plead and prove one of the three exceptions set forth
at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). These three exceptions are as follows:
(i) the failure to raise the claim previously was the result of
interference by 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.
Id. Any petition invoking one of these exceptions “shall be filed within 60
days of the date the claim could have been presented.” Id. at § 9545(b)(2).6
“The PCRA petitioner bears the burden of proving the applicability of one of
the exceptions.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).
Cunningham purports to invoke the governmental interference
exception at 42 Pa.C.S.A. § 9545(b)(1)(i). See Brief for Appellant, at 9-12.
Cunningham asserts that the PCRA court erred by dismissing his third PCRA
petition, filed in May 2006, as untimely filed. Id. at 10. Instead, he claims
____________________________________________
6 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(i.e., December 24, 2018), extending the time for filing from 60 days of the
date the claim could have been first presented, to one year. The amendment
applies to claims arising on December 24, 2017, or thereafter. See Act 2018,
Oct. 24, P.L. 894, N. 146, § 3. Instantly, Cunningham’s claim originated in
2006, well before December 24, 2017, and, therefore, the original 60-day time
limit applies.
-5-
J-S17030-22
that the PCRA court should have dismissed his third petition as prematurely
filed. Id. at 10-11. Cunningham contends that this alleged error resulted in
confusion that caused him to abandon his appeal of the May 2006 PCRA
petition, and that this Court may now review his May 2006 PCRA petition. Id.
at 11-12.
This Court has previously stated that
Pennsylvania law makes clear the trial court has no jurisdiction
to consider a subsequent PCRA petition while an appeal
from the denial of the petitioner’s prior PCRA petition in the
same case is still pending on appeal. A petitioner must choose
either to appeal from the order denying his prior PCRA petition or
to file a new PCRA petition; the petitioner cannot do both, i.e.,
file an appeal and also file a PCRA petition, because “prevailing
law requires that the subsequent petition must give way to a
pending appeal from the order denying a prior petition.”
Commonwealth v. Zeigler, 148 A.3d 849, 852 (Pa. Super.
2016). In other words, a petitioner who files an appeal from an
order denying his prior PCRA petition must withdraw the appeal
before he can pursue a subsequent PCRA petition. Id. If
the petitioner pursues the pending appeal, then the PCRA court is
required . . . to dismiss any subsequent PCRA petitions filed while
that appeal is pending.
Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019) (some
citations omitted, emphasis added).
Instantly, Cunningham’s claim is meritless. As we noted above, his
judgment of sentence became final on June 23, 2003, and the May 2006 PCRA
petition in question was filed almost 3 years later, well in excess of the one-
year time bar. See Cunningham, supra; 42 Pa.C.S.A. § 9545(b)(3).
Additionally, the PCRA court, in its opinion, addressed this claim as follows:
-6-
J-S17030-22
The confusion [Cunningham] alleges is not from . . . government
interference[,] but rather the product of his multiple PCRA filings
during the period in which his first PCRA petition was still pending.
[Cunningham] filed three additional PCRA petitions while his first
PCRA petition was pending. . . .
In the instant PCRA petition, [Cunningham] failed to plead and
prove a valid exception to the jurisdictional time bar. . . .
[Cunningham] filed this instant PCRA claim alleging th[e
governmental interference] exception on July 2, 2021, almost 15
years after he received the judgment for his third PCRA petition
on July 27, 2006 and over 14 years after the Superior Court
dismissed his appeal [for that petition] on January 25, 2007.
[Cunningham baldly] argues that it was only on June 29, 2021
when he discovered the alleged government[al] interference. . . .
[Cunningham’s] petition was untimely. Since the court did not
have jurisdiction to consider the petition, the petition was properly
[dismissed].
PCRA Court Opinion, 1/24/22, at 8-9. We agree with the PCRA court.
Additionally, Cunningham’s argument that the PCRA court dismissed his May
2006 petition on an “incorrect” basis, is of no moment. Our case law in this
area prohibits PCRA courts from addressing the merits of a premature PCRA
petition, or a petition filed while an appeal of a previous PCRA petition is
pending. See Commonwealth v. Leslie, 757 A.2d 984, 985-86 (Pa. Super.
2000); Beatty, supra. Instantly, the PCRA court did not address the merits
of Cunningham’s May 2006 petition, but rather dismissed his petition as
untimely. See PCRA Court Opinion, 1/24/22, at 2, 7-8.
Nevertheless, even if Cunningham’s claim amounted to governmental
interference, which is does not, he makes no attempt to explain how this
alleged interference could not have been discovered, with due diligence, any
earlier than now, approximately 15 years after the May 2006 petition was
-7-
J-S17030-22
denied. See Commonwealth v. Rizvi, 166 A.3d 344, 349 (Pa. Super. 2017)
(petitioners invoking governmental interference exception must demonstrate
due diligence in discovery of alleged interference). Cunningham was aware
that his May 2006 petition was dismissed as untimely when he received the
order dismissing it as such. Indeed, Cunningham’s receipt of the order is
evident by his appeal of that order. Thus, Cunningham has failed to
demonstrate that any of the time-bar exceptions apply, has similarly failed to
demonstrate that he acted with due diligence, and, accordingly, he is entitled
to no relief. See Rizvi, supra; Albrecht, supra.
In his second claim, Cunningham does not invoke any of the three time-
bar exceptions and, therefore, we lack jurisdiction to entertain this claim. See
Albrecht, supra. Accordingly, we discern no error with the PCRA court’s
dismissal of Cunningham’s petition as untimely, as the PCRA court was without
jurisdiction to review the merits of his petition.
Order affirmed. Application to Strike denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2022
-8-