J-S19006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SIM AMIN MORTON :
:
Appellant : No. 3510 EDA 2016
:
Appeal from the PCRA Order September 20, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002070-2012
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 18, 2018
Sim Amin Morton (“Appellant”) appeals pro se from the order denying
his petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541–9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
[Appellant] was arrested on October 4, 2011 and charged
with attempted murder and aggravated assault against Evan
Davis, aggravated assault of Shynetta Benyard, and various
weapon charges.1 On July 25, 2012, following a jury trial,
[Appellant], was found guilty of attempted murder and
aggravated assault against complainant Evan Davis, in addition to
various weapon charges. On October 2, 2012, this [c]ourt
imposed an aggregate sentence of ten to twenty years of
confinement on the attempted murder2, a concurrent five to ten
years on prohibited possession of a firearm, a consecutive three
to six years on carrying a firearm without a license, followed by
two years of reporting probation on the carrying of firearms in
Philadelphia and the possession of an instrument of crime. On
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* Retired Senior Judge assigned to the Superior Court.
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October 12, 2012, [Appellant] filed a Post–Sentence Motion which
the court denied on January 16, 2013. On February 15, 2013[,]
[Appellant] appealed this [c]ourt’s decision to the Superior Court.
On August 28, 2014, the Superior Court affirmed this [c]ourt’s
decision.
1 [Appellant] was found guilty of the following weapon
charges: Possession of Firearm Prohibited (18 Pa. C.
S. §6105(a)(1); Firearms not to be carried without a
Licenses [sic] (18 Pa. C. S. § 6106 (a)(1); any
Carrying of Firearm on the Public Street of
Philadelphia (18 Pa. C.S. § 6108); and Possession of
an Instrument of Crime (18 Pa. C. S. §907(a)[)].
2The aggravated assault sentence merged with this
sentence as a lesser included offense.
On April 9, 2015, [Appellant] filed a timely pro se petition
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S.
§9541. On January 29, 2016, David Rudenstein, Esq. was
appointed to represent [Appellant]. On March 3, 2016, Mr.
Rudenstein filed a Finley[1] no-merit letter indicating that in his
professional opinion, the claims raised by [Appellant] in his PCRA
petition were without merit. On July 26, 2016, this [c]ourt issued
a 907 Notice to [Appellant] advising him that his PCRA petition
would be denied/dismissed within twenty days because the
[c]ourt found his pro se PCRA petition was without merit. On July
25, 2016, [Appellant] submitted a pro se Request for an
Evidentiary Hearing and Amendment to his initial PCRA Petition.
On August 15, 2016, this [c]ourt received [Appellant’s] response
to this [c]ourt’s 907 Notice, and “Newly Discovered Issues.” On
September 9, 2016, [Appellant] filed a pro se Motion to Compel
PCRA Counsel to Amend Petitioner’s PCRA and Add New Matter.
On September 20, 2016, this [c]ourt held an evidentiary hearing
and dismissed [Appellant’s] PCRA Petition because the issues
raised were either without merit or had been waived. On
November 2, 2016, [Appellant] filed an untimely appeal of this
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1 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
When counsel seeks to withdraw from representation on collateral appeal, the
dictates of Finley and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
are applicable. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007).
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[c]ourt’s September 20, 2016 Order. On January 3, 2017, this
[c]ourt entered an Order requiring [Appellant] to file a Statement
of Matters Complained of on Appeal. On January 11, 2017,
[Appellant] complied.
PCRA Court Opinion, 10/17/17, at 1-2.
Appellant presents the following issues for our review, which we restate
verbatim:
1. Whether PCRA Court erred in dismissing Appellant’s PCRA
Petition before granting Appellant permission for leave to file a
pro se supplement petition pursuant to Pa.R.Crim.Proc. Rule
905 to develope argument of Trial Counsel error and
ineffectiveness.
2. Whether PCRA Court erred in allowing PCRA Counsel to
withdraw his representation of Appellant where Appellant filed
subsequent motion for order to compel PCRA Counsel to file
amended PCRA Petition to assert Trial Counsel and Trial Court
error pursuant to Pa. R.Crim. Proc. 601(C).
3. Whether Appellant suffered prejudice through “trial-by-
ambush” strategy by the introduction and untimely disclosure
of Appellant’s prison telephone recordings; and prosecutorial
misconduct where prosecutor made inflared, [sic] personal,
and misleading statements to the jury.
Appellant’s Brief at 2.
Before we consider the merits of Appellant’s claims, we must determine
whether this appeal was timely filed, because the timeliness of an appeal
implicates this Court’s jurisdiction. Commonwealth v. Crawford, 17 A.3d
1279, 1281 (Pa. Super. 2011). To preserve the right to appeal a final order
of the PCRA court, a notice of appeal must be filed within thirty days after the
date of entry of the order granting or denying relief. Pa.R.Crim.P. 910;
Pa.R.A.P. 903(a).
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Here, the PCRA court denied Appellant’s PCRA petition on September
20, 2016, and Appellant’s notice of appeal, filed on November 2, 2016, is
facially untimely. In his pro se response to this Court’s order to show cause
why we should not dismiss his appeal as untimely, Appellant asserts that there
was a breakdown in the PCRA court’s process. Specifically, Appellant
maintains that although the PCRA court denied his petition on September 20,
2016, Appellant did not receive the court’s order until October 24, 2016,
because the clerk did not forward of a copy of it to Appellant. Appellant’s
Response to Court Order to Show Cause, 12/27/16, at 1.
The record reflects that Appellant sent a pro se correspondence to the
clerk of courts, dated October 16, 2016, and stamped by the clerk of courts
as received on October 17, 2016. In this correspondence Appellant states the
following:
On August 9, 2016, I responded to the [c]ourt’s 907 Notice
in reference [to] my Post Conviction Collateral Relief Petition, and
on August 11, 2016, your office time-stamped and attested to
receiving my response. However, it has been well over sixty (60)
days from receipt of the [c]ourt’s 907 Notice and I have not
received an order. At this time I would ask that you kindly check
your data for the status of my case and send [me] a copy of the
docketing sheet.
In addition, if my petition was dismissed, I would ask for an
exten[s]ion of time to file [a] Notice of Appeal in the Superior
Court due to the clerical error of your office in not serving me a
copy of the [c]ourt’s order.
Appellant’s Pro Se Correspondence, 10/17/16, at 1. In his notice of appeal
filed November 2, 2016, Appellant again asserted that he did not timely
receive a copy of the PCRA court’s order denying his petition. Notice of Appeal,
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11/2/16, at 1. He attached to the Notice of Appeal the order denying his PCRA
petition and a copy of the envelope from the Philadelphia County Court of
Common Pleas that was post-dated October 21, 2016, in which Appellant
alleged to have received the PCRA court’s order denying his petition. Id. at 7
(unnumbered pages). Furthermore, the docket does not clearly establish that
the PCRA court served the order denying the PCRA petition on Appellant prior
to October 21, 2016. Accordingly, the evidence of record supports the
conclusion that the PCRA court did not timely serve Appellant with the order
denying his PCRA petition.
We view the PCRA court’s failure to timely serve on Appellant a copy of
the order denying the PCRA petition as a breakdown of the court’s operation.
See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super. 2015) (“[An
appellant] should not be precluded from appellate review based on what was,
in effect, an administrative breakdown on the part of the trial court.”). Thus,
we decline to quash this appeal as untimely.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
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Super. 2012). We grant great deference to the PCRA court’s factual findings
and will not disturb them unless they have no support in the certified record.
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).
In reviewing Appellant’s brief, we note that Appellant has failed to
comply with Pa.R.A.P. 2119(a). Pa.R.A.P. 2119(a) provides:
The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each
part--in distinctive type or in type distinctively displayed--the
particular point treated therein, followed by such discussion and
citation of authorities as are deemed pertinent.
Appellant’s lengthy argument section of his brief is not divided into parts that
correspond with the issues he presents. His argument consists of multiple
unrelated arguments strung together. Appellant’s failure to comply with this
rule hampers our ability to conduct meaningful appellate review of his claims.
Pa.R.A.P. 2101 states:
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they
may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the appeal
or other matter may be quashed or dismissed.
Because the defects are substantial, we could dismiss Appellant’s appeal on
that basis. We, however, will attempt to address Appellant’s claims to the
extent possible.
Appellant’s first issue states: “Whether PCRA [c]ourt erred in dismissing
Appellant’s PCRA Petition before granting Appellant permission for leave to file
a pro se supplement petition pursuant to Pa.R.Crim.Proc. Rule [sic] 905 to
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develope [sic] argument of Trial Counsel error and ineffectiveness.”
Appellant’s Brief at 2. After reviewing Appellant’s brief, we are unable to
discern when he sought permission for leave to file a pro se supplemental
petition and when that request was denied by the PCRA court. Moreover, the
record reflects that Appellant did file an amended PCRA petition on July 25,
2016, which was prior to the PCRA hearing conducted on September 20, 2016,
and prior to the PCRA court’s order denying Appellant’s petition filed on
September 20, 2016. Thus, Appellant is entitled to no relief on his first claim.
In his second claim, Appellant argues that the “PCRA [c]ourt erred in
allowing PCRA Counsel to withdraw his representation of Appellant where
Appellant filed subsequent motion for order to compel PCRA Counsel to file
amended PCRA Petition to assert Trial Counsel and Trial Court error pursuant
to Pa. R.Crim. Proc. 601(C).” Appellant’s Brief at 2. In filing his
Turner/Finley letter, counsel asserted that he conducted a thorough review
of Appellant’s case and concluded that there were no meritorious issues to
raise before the PCRA court, thereby requesting to withdraw from
representation. Counsel’s Finley Letter, 3/3/16, at 1-9; Motion to Withdraw,
3/3/16, at 1-2. “While the appointment of counsel in PCRA proceedings has
been made mandatory by our rules of criminal procedure, Pa.R.Crim.P. 1503-
04, appointed counsel possesses the prerogative of declining to litigate a
meritless petition. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
(Pa.1988).” Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998).
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Moreover, when Appellant filed his pro se motion to compel on September 9,
2016, he was still represented by counsel.2 Thus, Appellant’s pro se filing was
a legal nullity,3 and the PCRA court was not obligated to respond to it.
Appellant is entitled to no relief on his second claim.
In his third issue, Appellant argues that he suffered prejudice “through
‘trial-by-ambush’ strategy by the introduction and untimely disclosure of
Appellant’s prison telephone recordings; and prosecutorial misconduct where
prosecutor made inflared,[sic] personal, and misleading statements to the
jury.” Appellant’s Brief at 2. Appellant first asserts that “the prosecutor had
in its [possession] the Appellant’s prison telephone recordings, recorded while
the Appellant was awaiting trial, but did not release the recording to defense
counsel until several days into the proceeding.” Id. at 18. Next, Appellant
contends that the prosecutor “expressed its personal opinion about the
Appellant’s credibility and trial strategy in reference to the Appellant’s alibi
defense where the Commonwealth stated in its closing argument that
‘evidently the defendant ‘Appellant’ is a thirty nine year old who demands
respect.’” Id. at 22. Appellant also maintains that:
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2 Counsel was permitted to withdraw by order filed September 20, 2016.
3“In this Commonwealth, hybrid representation is not permitted. Accordingly,
this Court will not accept a pro se motion while an appellant is represented by
counsel; indeed, pro se motions have no legal effect and, therefore, are legal
nullities.” Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super.
2016) (internal citations omitted).
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[t]he Commonwealth further asserted that the Appellant acted
with malice in retaliation to a prior incident that allegedly had
occurred between a family member of the victim and a family
member of the Appellant. . . . The Commonwealth also went
beyond its duty in pursuit of justice by implicating the Appellant
in a rival group that allegedly had been ‘beefing’ at the time.
Id. at 22.
An issue will be deemed waived under the PCRA “if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal, or in a prior state post-conviction proceeding.” See 42 Pa.C.S. §
9544(b) (An issue will be deemed waived under the PCRA “if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal, or in a prior state post-conviction proceeding.”);
Commonwealth v. Olson, 179 A.3d 1134, 1137 (Pa. Super. 2018).
Appellant did not raise these issues of prosecutorial misconduct on direct
appeal. Thus, we are constrained to conclude that these claims have been
waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/18
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Com. v. Morton, S.
Combined Opinion