J-S07012-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS CHEMIL HARRIS :
:
Appellant : No. 1193 MDA 2023
Appeal from the PCRA Order Entered July 26, 2023
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002994-2016,
CP-67-CR-0006791-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS CHEMIL HARRIS :
:
Appellant : No. 1194 MDA 2023
Appeal from the PCRA Order Entered July 26, 2023
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002994-2016,
CP-67-CR-0006791-2015
BEFORE: LAZARUS, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, P.J.: FILED: MARCH 12, 2024
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Dennis Chemil Harris appeals from the order,1 entered in the Court of
Common Pleas of York County, denying his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel has filed
an application to withdraw and an accompanying Anders brief.2 Upon review,
we affirm and grant counsel’s application to withdraw.
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1 Harris filed two timely pro se notices of appeal on August 21, 2023, each
listing both trial court docket numbers. This Court consolidated the appeals
sua sponte on January 17, 2024. In Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018), the Pennsylvania Supreme Court held that appellants are
required to file separate notices of appeal when a single order resolves issues
arising on more than one lower court docket. Subsequently, in
Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019), this Court
concluded that a breakdown in the courts occurs when a PCRA court advises
petitioners that they can pursue appellate review by filing a single notice of
appeal, even though the order disposes of petitions pending at multiple docket
numbers. See also Commonwealth v. Larkin, 235 A.3d 350, 352-54 (Pa.
Super. 2020) (en banc) (reaffirming Stansbury).
Here, the PCRA court’s July 26, 2023 order denying PCRA relief advised Harris
that he “has the right to appeal this [o]rder and that if he wishes to do so,
must file the Notice of Appeal within thirty (30) days after entry of this
[o]rder.” PCRA Court Order, 7/26/23 (emphasis added). Because the PCRA
court provided Harris with incorrect advice regarding the requirements for
filing his notices of appeal, we conclude that a breakdown in the operations of
the court has occurred and, thus, decline to quash the appeal. Larkin, supra;
Stansbury, supra.
2 As these are appeals from the denial of a PCRA petition, counsel was required
to comply with the less restrictive procedural requirements of
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and their
progeny. Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
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On May 17, 2017, a jury convicted Harris, in absentia, at docket number
CP-67-CR-0006791-2015 of robbery and related offenses stemming from his
robbery of a Northwest Savings Bank on September 15, 2015. On May 25,
2017, Harris was convicted by a separate jury, in absentia, of robbery and
related offenses, stemming from his robbery of a Wells Fargo Bank on August
20, 2015, at docket number CP-67-CR-0002994-2016. On June 27, 2017, the
trial court sentenced Harris at both dockets to an aggregate term of 14½ to
29 years’ incarceration. Harris filed a timely appeal and this Court vacated
his judgments of sentence, finding that his right to counsel had been violated,
and remanded for new trials. See Commonwealth v. Harris, 1174 MDA
2017 (Pa. Super. filed Oct. 1, 2018) (unpublished memorandum decision).
Our Supreme Court denied the Commonwealth’s petition for allowance of
appeal on June 12, 2019. See id., 214 A.3d 637 (Pa. 2019) (Table).
Following remand to the trial court, on January 6, 2020, Harris entered
open guilty pleas at both docket numbers. The court deferred sentencing
pending preparation of a pre-sentence investigation report. On June 18, 2020,
the court sentenced Harris to an aggregate term of 14½ to 29 years’
incarceration.3 Harris did not file post-sentence motions or a direct appeal.
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3 On July 8, 2020, the Commonwealth filed a motion to amend the sentencing
order, noting that Harris had been sentenced to a term of 6 to 12 years’
incarceration for simple assault at Count 9 of docket number CP-67-CR-
0002994-2016, when the statutory maximum for that offense was 2 years’
incarceration. On July 9, 2020, the court issued an amended sentencing
order, imposing a sentence of 1 to 2 years’ incarceration for simple assault.
The remaining sentences were unchanged, as was the aggregate term of
imprisonment.
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On March 21, 2023, Harris filed the instant, pro se, PCRA petition. The
court appointed counsel, who filed a Turner/Finley “no-merit” letter on May
6, 2023. On July 25, 2023, the PCRA court dismissed Harris’ petition as
untimely without a hearing.4 Harris filed a timely notice of appeal and the
PCRA court appointed counsel to represent him on appeal. On September 21,
2023, counsel filed a statement of intent to file an Anders brief pursuant to
Pa.R.A.P. 1925(c)(4). Counsel raises the following claims:
1. Whether the [PCRA] court erred in dismissing [Harris’] PCRA
petition without a hearing when [Harris’] petition pleaded
exceptions to the timeliness requirement?
2. Whether, outside of [Harris’] untimeliness, any grounds exist
for PCRA relief?
Anders Brief, at 4.
Prior to reaching the merits of the claims raised by counsel in his Anders
brief, we must address counsel’s motion to withdraw. Where counsel seeks
to withdraw from PCRA representation, our Supreme Court has stated that
independent review of the record by competent counsel is required before
withdrawal is permitted. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1
(Pa. 2009). Such independent review requires proof of: (1) a “no-merit”
letter by PCRA counsel detailing the nature and extent of his review; (2) a
“no-merit” letter by PCRA counsel listing each issue the petitioner wished to
____________________________________________
4 We note that the PCRA court inexplicably issued its Pa.R.Crim.P. 907 notice
of intent to dismiss on the same date it dismissed Harris’ petition. However,
failure to issue a proper Rule 907 notice is not reversible error where the
record is clear that the petition is untimely. See Commonwealth v. Taylor,
65 A.3d 462 (Pa. Super. 2013).
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have reviewed; (3) PCRA counsel’s explanation, in the “no-merit” letter, as to
why the petitioner’s issues are meritless; (4) independent review of the record
by the PCRA or appellate court; and (5) agreement by the PCRA or appellate
court that the petition was meritless. Id.; Commonwealth v. Rykard, 55
A.3d 1177, 1184 (Pa. Super. 2012).
In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),5 this
Court imposed an additional requirement for counsel seeking to withdraw from
collateral proceedings:
PCRA counsel who seeks to withdraw must
contemporaneously serve a copy on the petitioner of
counsel’s application to withdraw as counsel, and must
supply to the petitioner both a copy of the “no-merit”
letter and a statement advising the petitioner that . . . he
or she has the right to proceed pro se or with the
assistance of privately retained counsel.
Id. at 614. See also Commonwealth v. Muzzy, 141 A.3d 509, 512 (Pa.
Super. 2016) (clarifying that “in an appeal from the denial of a PCRA petition,
if counsel files a petition to withdraw as appellate counsel in this Court, the
letter to the client, inter alia, shall inform the PCRA petitioner that upon the
filing of counsel’s petition to withdraw, the petitioner-appellant has the
____________________________________________
5 This Court’s holding in Friend was subsequently overruled on other grounds
by the Supreme Court in Pitts, supra. However, the additional requirement
that counsel provide copies of the relevant documentation to the petitioner
remains intact. Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super.
2011).
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immediate right to proceed in the appeal pro se or through privately-retained
counsel.”) (emphasis in original).
Here, counsel has substantially complied with the Turner/Finley and
Friend requirements. Counsel has detailed the nature and extent of his
review, served a copy of his petition to withdraw and brief upon Harris and
informed him of his right to proceed pro se or with privately retained counsel,6
raised Harris’ issues in the form of a brief addressed to this Court, and
explained why the claims are meritless. Counsel having substantially satisfied
the procedural requirements for withdrawal, we now turn to an independent
review of the record to determine whether Harris’ claims merit relief.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by evidence of record and is free of legal error. Commonwealth v. Burkett,
5 A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted). In evaluating a
PCRA court’s decision, our scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the light most favorable to
the prevailing party at the trial level. Id. The PCRA court’s credibility
determinations are binding on this Court where the record supports those
determinations. Widgins, 29 A.3d at 820.
____________________________________________
6 Harris has not raised any additional issues, either pro se or through private
counsel.
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Harris contends that the PCRA court erred in dismissing his petition
because he pled exceptions to the PCRA’s time bar. The timeliness of a PCRA
petition is a jurisdictional threshold and may not be disregarded in order to
reach the merits of the claims raised in a PCRA petition that is untimely.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014). 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 of sentence becomes
final, unless the petitioner alleges and proves that an exception to the time
for filing the petition, set forth at 42 Pa.C.S.A. §§ 9545(b)(1) is met. 7 A PCRA
petition invoking one of these statutory exceptions must be filed within one
year of the date the claims could have been presented. See 42 Pa.C.S.A. §
9545(b)(2).
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7 The exceptions to the timeliness requirement 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.A. § 9545(b)(1).
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Here, Harris’ judgment of sentence became final for purposes of the
PCRA on August 10, 2020, at the expiration of the 30-day period for filing a
direct appeal with this Court.8 See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P.
903(a). Thus, Harris had until August 10, 2021, to file a timely PCRA petition.
Harris’ instant petition, filed on March 21, 2023, was filed more than 2½ years
after his judgment of sentence became final. Accordingly, Harris’ petition is
patently untimely, unless he has satisfied his burden of pleading and proving
that one of the enumerated exceptions applies. See Hernandez, supra.
In his PCRA petition, Harris invoked the newly-discovered evidence
exception to the time bar. However, he did not specify the exact nature of
this evidence. Although his argument is convoluted and unclear, it appears
that he may have been attempting to claim that his mental incompetency
qualifies as newly-discovered evidence by listing symptoms of mental illness
and then stating the following:
Facts unknown and not discoverable by due diligence §
9545(b)(1)(ii) is the second exception to the one[-]year filing
period which permits an untimely claim when 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.[”]
The precise date petitioner became aware of said evidence is
__/__/__. Mental incompetence during the statutory period for
____________________________________________
8 The thirtieth day, August 8, 2020, fell on a Saturday. When computing the
30–day filing period, “[if] the last day of any such period shall fall on Saturday
or Sunday . . . such day shall be omitted from the computation.” 1 Pa.C.S.A.
§ 1908. Accordingly, Harris had until the following Monday, August 10, 2020,
to file his notice of appeal.
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filing a PCRA petition may constitute “after[-]discovered
evidence.”
Pro Se PCRA Petition, 3/21/23, at 16. He also asserts that the trial court and
his previous counsel denied him the opportunity to present evidence of his
mental incompetency prior to his 2017 trial and baldly cites to Brady v.
Maryland, 373 U.S. 83 (1963), without specifying the Brady material in
question.
Harris’ attempt to circumvent the PCRA’s jurisdictional time bar fails for
multiple reasons. First and foremost, Harris frames this claim with respect to
his 2017 trial. However, the judgments of sentence imposed following his
convictions in that trial were vacated on appeal to this Court, and his case was
remanded for new trials. See Harris, supra. Accordingly, any alleged errors,
ineffectiveness, or misconduct committed by the trial court, his own counsel,
or the prosecution prior to or during the 2017 trial were rendered moot in the
face of this Court’s vacatur of his judgments of sentence.
Moreover, Harris neither specifies the exact nature of the “newly-
discovered evidence”9 nor states when he allegedly discovered the evidence.
See PCRA Petition, supra (stating “[t]he precise date petitioner became
aware of said evidence is __/__/__”). Vague and unsupported contentions
are insufficient to satisfy the PCRA’s requirement of pleading and proving the
existence of an exception to the time bar. Commonwealth v. Yarris, 731
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9 We note that evidence regarding Harris’ mental health could not be deemed
“newly-discovered,” as he would have been aware of his own mental health
diagnoses and any treatment he received.
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A.2d 581, 588 (Pa. 1999) (“vague and unsupported” allegation inadequate to
establish time-bar exception); Commonwealth v. Marshall, 947 A.2d 714,
721 (Pa. 2008) (petitioner does not meet burden of proving time-bar
exception where he offers only general allegations, unsupported by evidence).
Harris failed to plead and prove an exception to the time bar in his
petition. Accordingly, the PCRA court correctly determined that it lacked
jurisdiction to address his claims and we, therefore, affirm the order denying
post-conviction relief and grant counsel’s application to withdraw.
Order affirmed. Application to withdraw granted.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 03/12/2024
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