J-A26013-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW GINES :
:
Appellant : No. 2021 EDA 2020
Appeal from the PCRA Order Entered September 28, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000035-2007
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 11, 2022
Andrew Gines appeals pro se from the order that denied his serial
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
This Court summarized the history of this case as follows when we
affirmed the denial of his last PCRA petition:
In 2008, a jury convicted [Appellant] of two counts of
attempted murder, two count of aggravated assault on a police
officer, and other related crimes following a January 1, 2007
incident that occurred at the house of his son’s girlfriend.
Eventually, three local police officers responded to the scene. One
officer indicated that he was going to conduct a protective sweep
of the house. As that officer entered the house, [Appellant] raised
a handgun, aimed at the officer, and fired two shots.
Although [Appellant] originally entered a guilty plea to
various charges, he was later permitted to withdraw it. Prior to
trial, [Appellant] filed an omnibus pretrial motion in which he
sought to suppress statements he had made to police after he was
apprehended. The trial court denied the motion, and [Appellant]
proceeded to trial. At the conclusion of a three-day trial, the jury
convicted him of the above charges. On July 22, 2008, the trial
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court sentenced [Appellant] to an aggregate term of thirty to sixty
years of imprisonment.
Following the denial of his post-sentence motion,
[Appellant] filed an appeal to this Court in which he challenged
the denial of his suppression motion. Finding no merit to this
claim, we affirmed [Appellant’s] judgment of sentence on
November 30, 2009. Commonwealth v. Gines, 990 A.2d 44
(Pa. Super. 2009) (unpublished memorandum). On June 23,
2010, our Supreme Court denied his petition for allowance of
appeal. Commonwealth v. Gines, 997 A.2d 1175 (Pa. 2010).
[Appellant] filed a timely pro se PCRA petition on June 20,
2011. The PCRA court appointed counsel. Thereafter, PCRA
counsel filed a petition to withdraw and “no -merit” letter pursuant
to the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
1988 (en banc). On August 3, 2011, the PCRA court issued notice
of its intention to dismiss the petition without a hearing pursuant
to Pa.R.Crim.P. 907. [Appellant] did not file a response. By order
entered September 23, 2011, the PCRA court dismissed
[Appellant’s] petition and granted PCRA counsel’s petition to
withdraw.
[Appellant] filed a timely pro se appeal to this Court.
Although [Appellant] raised multiple issues in his Rule 1925(b)
statement, we agreed with the PCRA court that his claims were
difficult to decipher. See Commonwealth v. Gines, 64 A.3d 19
(Pa.Super. 2012), unpublished memorandum at 6-8.
Nevertheless, we reviewed and rejected the claims, to the extent
possible, and affirmed the order denying post-conviction relief on
December 12, 2012. In doing so, we specifically noted
[Appellant’s] claim that it was “unfair” that he had to proceed
without counsel, given that “he is of low intelligence, suffers from
depression and anxiety, and is developmentally disabled.”
Thereafter, our Supreme Court denied [Appellant’s] petition for
allowance of appeal. In 2014, and again in 2015, [Appellant]
unsuccessfully sought relief by filing a second and third pro se
PCRA petition.
On July 31, 2017, [Appellant] filed [his fourth PCRA petition]
and an amended petition on August 14, 2017. On September 14,
2017, the PCRA court issued notice of its intention to dismiss the
petition without a hearing pursuant to Pa.R.Crim.P. 907.
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[Appellant] filed a response. By order entered November 3, 2017,
the PCRA court dismissed [Appellant’s] petition as untimely filed
and otherwise without merit.
Commonwealth v. Gines, 209 A.3d 491 (Pa.Super. 2019) (unpublished
memorandum at 1-3) (some citations omitted). On appeal, this Court
affirmed that, as Appellant’s judgment of sentence had become final in 2010,
his petition was untimely and met no exceptions to the PCRA’s one-year time
bar. Id. (unpublished memorandum at 9).
Appellant filed another the pro se PCRA petition on July 14, 2020.
Therein, he purported to invoke the newly-discovered facts exception to the
PCRA’s time bar codified at 42 Pa.C.S. § 9545(b)(1)(ii). Although not entirely
clear, Appellant appeared to contend that he recently discovered some
irregularities in the appointment of counsel for his first PCRA petition and/or
concerning counsel’s compliance with Turner and Finley in obtaining
permission to withdraw. See PCRA Petition, 7/14/20, at 6-12.
On July 16, 2020, Appellant filed what he titled an “Estoppel Petition,”
in which he indicates that he has been continuously presenting meritorious
issues in his petitions and appeals but has been unable to obtain relief
because, inter alia, the court is “misrepresenting the facts.” Estoppel Petition,
7/16/20, at 4. Specifically, Appellant reiterated the alleged ineffectiveness of
his trial counsel that he raised in his first PCRA petition and claimed
irregularities regarding the presentence investigation and its resultant report,
including questioning whether one ever existed. Id. at 1-4. He also purported
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to invoke the newly-discovered facts and governmental interference PCRA
timeliness exceptions in this filing, indicating that the court’s prior
determinations amounted to obstruction by a government official and that it
had only now become obvious to him. Id. at 1.
On July 23, 2020, the PCRA court issued notice of intent to dismiss the
latter filing without a hearing as untimely, indicating that it was Appellant’s
“pro se fourth Post Conviction Relief Act (PCRA) Petition erroneously titled
‘Estoppel Motion.’”1 Notice of Intent to Dismiss, 7/23/20. Appellant filed a
response raising familiar complaints, namely contesting the compliance of
counsel and the PCRA court in allowing counsel to withdraw pursuant to
Turner and Finley, maintaining that no presentence investigation was
conducted, challenging the adequacy of the mental health assessments he
received, and reiterating claims of trial court error and the ineffectiveness of
trial counsel. See generally Response to Notice of Intent to Dismiss,
8/11/20. Appellant further suggested that he was invoking a miscarriage of
justice exception to the PCRA’s jurisdictional time bar. Id. at 12.
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1 Appellant does not dispute that his estoppel motion, which raises claims
cognizable by the PCRA, was properly deemed to be a PCRA petition. See,
e.g., Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.Super. 2011) (“We
have repeatedly held that ... any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.”).
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On September 28, 2020, the PCRA court entered an order dismissing
Appellant’s “Fourth Post Conviction Relief Act (PCRA) Petition.”2 Order,
9/28/20. Appellant filed a timely notice of appeal, and the PCRA court directed
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant did not comply, and the PCRA court
authored an opinion indicating that Appellant had thereby failed to preserve
any issues for appellate review. See PCRA Court Opinion, 12/9/20, at 1.
In this Court, Appellant filed an objection to the PCRA court’s opinion,
noting that he had requested additional time to respond to the concise
statement order because he was awaiting transcripts and was hampered by
COVID-19 lockdown restrictions. See Notice of Objection, 12/14/20, at 1-2.
This Court remanded the matter to allow Appellant to file his Rule 1925(b)
statement and the PCRA court to prepare a supplemental opinion. See Order,
1/15/21. Following an additional extension of time, Appellant filed a fifty-
seven-page document listing all of his complaints regarding his case dating
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2 It does not appear from the certified record that the PCRA court treated the
July 16, 2020 “Estoppel Petition” as an amendment to Appellant’s July 14,
2020 PCRA petition, or took any action on the July 14 filing. We note that the
filing of the July 16 “Estoppel” PCRA petition was not barred by the pendency
of the July 14 petition. See, e.g., Commonwealth v. Montgomery, 181
A.3d 359, 364 (Pa.Super. 2018) (en banc) (“[T]he pendency of a PCRA
petition [does] not affect the PCRA court’s jurisdiction to consider a
subsequent PCRA petition in a case where no PCRA appeal was pending[.]”).
However, absent any indication from the PCRA court that its dismissal order
encompassed the July 14, 2020 PCRA petition, we conclude that it and the
allegations therein are not before us in this appeal.
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back to his suppression motion. The PCRA court submitted a new opinion,
indicating that Appellant’s filing did not comply with Rule 1925(b) such that
the court was unable to glean any intelligible issue from it to address. See
PCRA Court Opinion, 5/5/21, at 1-3.
Appellant filed a brief in this Court that fails to comply with many of the
requirements of the Rules of Appellate Procedure, including that it must
contain a statement of questions involved. See Pa.R.A.P. 2111(a)(4), 2116.
However, we glean from the brief that he questions: (1) the propriety of
counsel’s withdrawal from representing him on his 2011 PCRA petition,
Appellant’s brief at 3-6; (2) ineffectiveness of PCRA counsel in failing to raise
direct appeal counsel’s ineffectiveness, id. at 6-7; (3) various errors of trial
and direct appeal counsel, id. at 7-13; (4) the presentence investigation
procedure and the trial court’s failure to consider mitigating factors, id. at 13-
16; and (5) the inadequacy of the PCRA court’s Rule 907 notice and
independent review of the record in connection with Appellant’s first PCRA
petition, id. at 16-18. Under the heading “Due Diligence Analysis,” Appellant
also includes a discussion of his belief that he has exercised due diligence in
conducting the research that allowed him to discover the fact that his
conviction is the product of a miscarriage of justice and that “he meets the
miscarriage of justice exception for relief.” Id. at 19.
We begin with a review of the applicable legal principles.
The standard of review of an order dismissing a PCRA petition is
whether that determination is supported by the evidence of record
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and is free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified
record. Further, a PCRA court has discretion to dismiss a PCRA
petition without a hearing if the court is satisfied that there are no
genuine issues concerning any material fact; that the defendant
is not entitled to post-conviction collateral relief; and that no
legitimate purpose would be served by further proceedings.
Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (cleaned up).
“It is an appellant’s burden to persuade us that the PCRA court erred and that
relief is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super.
2019) (internal quotation marks omitted).
It is well-settled that, “[b]ecause the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition, we must start by examining the timeliness of Appellant’s
petition.” Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014).
Indeed, “no court has jurisdiction to hear an untimely PCRA petition.”
Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa.Super. 2019). The
PCRA provides as follows regarding the time for filing a PCRA petition:
Any petition [filed pursuant to the PCRA], including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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
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(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. § 9545(b)(1). Further, any petition invoking an exception to the
one-year time bar “shall be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Our Supreme Court has made it clear that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (cleaned
up). As such, “the courts of Pennsylvania will only entertain a ‘miscarriage of
justice’ claim when the initial timeliness requirement is met.”
Commonwealth v. Burton, 936 A.2d 521, 527 (Pa.Super. 2007).
As detailed above, Appellant’s judgment of sentence became final in
2010. Appellant filed the PCRA petition that is the subject of the instant appeal
in 2019. Hence, it was facially untimely, and the PCRA court dismissed
Appellant’s petition on that basis. As also enumerated supra, Appellant in his
brief mainly presents substantive issues unrelated to the PCRA court’s
timeliness ruling. We do not discern anywhere in his brief an explanation of
how a timeliness exception was invoked in the PCRA court and improperly
rejected by that court.
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The only discussion in his brief touching on the timeliness question is
his “Due Diligence Analysis” which references the newly-discovered facts
exception.3 This timeliness exception “has two components, which must be
alleged and proved. Namely, the petitioner must establish that: 1) the facts
upon which the claim was predicated were unknown and 2) could not have
been ascertained by the exercise of due diligence.” Commonwealth v.
Medina, 92 A.3d 1210, 1216 (Pa.Super. 2014) (en banc) (cleaned up).
However, Appellant is extremely vague about exactly what facts were
unknown to him, let alone where he proffered them to the PCRA court as a
basis for finding his petition timely. Nor does he explain precisely when he
discovered these new facts, or why he could not have learned of the earlier.
Moreover, to the extent that Appellant relies upon manifest injustice as a
timeliness exception, we have explained that questions of manifest injustice
do not become relevant unless and until an enumerated exception is met. See
Burton, supra at 527. As such, Appellant has failed to convince us that the
PCRA court erred in concluding that his third PCRA petition was untimely filed,
a finding fully supported by the record. Consequently, neither the PCRA court
nor this Court has jurisdiction to rule on the merits of the substantive claims
raised in his petition, and we need not determine whether Appellant’s Rule
1925(b) statement was so prolix to deem his claims waived.
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3 Appellant did reference the newly-discovered facts exception early on in his
Pa.R.A.P. 1925(b) statement. See Concise Statement, 4/29/21 at 2-3.
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Therefore, Appellant has not convinced us that the PCRA court erred in
dismissing his “Estoppel Petition” as an untimely, serial PCRA petition, and no
relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2022
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Com. v. Gines, A.
Combined Opinion