Opinion
No. 78 MDA 2007.
Filed: December 26, 2007.
Appeal from the PCRA Order of December 11, 2006 in the In the Court of Common Pleas, Cumberland County, Criminal Division, at No. CP-21-CR-0001334-2003.
Before: KLEIN, DANIELS and KELLY, JJ.
¶ 1 Appellant, Brian Trimble, appeals from the order entered on December 11, 2006, denying his petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46, as untimely. We vacate and remand for the following reasons.
FACTS PROCEDURAL BACKGROUND
¶ 2 On May 6, 2004, Appellant pled guilty to first-degree murder in connection with the death of his wife. On that same date, Appellant was sentenced to life imprisonment. Appellant did not take any direct appeal. Now Appellant alleges he gave his pro se petition for post conviction relief to prison officials for mailing in early April of 2005. Appellant wrote a letter to the Clerk of Court of Cumberland County on July 12, 2005, inquiring as to the status of his alleged petition. The Clerk of Court responded by letter dated July 18, 2005 to the effect that no such petition had ever been received by the Clerk of Court. Appellant then filed a pro se petition for post conviction relief on August 26, 2005. The PCRA court appointed counsel on September 12, 2005, and that counsel filed an amended petition for post conviction relief on March 21, 2006, alleging that (1) Appellant's guilty plea was the result of ineffective assistance of prior counsel, (2) Appellant's guilty plea was the result of police duress, (3) Appellant's guilty plea was the result of Appellant's extreme depression, and (4) Appellant is innocent of the crime to which he pled guilty. On July 26, 2006, the PCRA court below held an evidentiary hearing at which Appellant testified that he initially delivered his pro se PCRA petition to prison officials for mailing on or about April 3, 2005. By opinion and order filed on December 11, 2006, the PCRA court below denied Appellant's PCRA petition as untimely filed. This appeal was filed in a timely manner on January 10, 2007.
QUESTION ON APPEAL
¶ 3 In his Statement of Questions Presented, Appellant frames a single issue for our review:
Did the Court err in denying Appellant's PCRA petition due to untimeliness when the Appellant otherwise complied with the prisoner mailbox rule?
Brief of Appellant, p. 6.
STANDARD OF REVIEW
¶ 4 This Court's standard of review of an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 582 Pa. 164, 169, n. 2, 870 A.2d 795, 799, n. 2 (2005). The PCRA court's findings will not be disturbed unless there is no support for those findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). Here, the PCRA court concluded that Appellant's petition was untimely because Appellant presented no "reasonably verifiable evidence" that he had deposited his first PCRA petition with prison officials for mailing prior to the expiration of the PCRA's strict one-year time limitation.
DISCUSSION
¶ 5 The timeliness of a post-conviction relief petition is jurisdictional. Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201 (2000). Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year from the date on which the judgment becomes final, unless the petition alleges, and the petitioner proves, that one of the exceptions to the time for filing such a petition, as set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii) and (iii), exists. See Commonwealth v. Bennett, No. 6 EAP 2005 (Pa., Aug. 23, 2007) ; see also Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000).
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)(i)-(iii).
¶ 6 In addition to the three exceptions of Section 9543(b)(1) to the PCRA's strict one-year time for filing limitation, this Court has also recognized the applicability of the so-called "prisoner mailbox rule" to pro se PCRA petitions in Commonwealth v. Little, 716 A.2d 1287 (Pa.Super. 1998). In Little, this Court held that given the filing challenges faced by prisoners seeking PCRA relief pro se, such pro se petitions are deemed to have been filed on the date on which the prisoner delivers them to prison authorities for mailing or places them in a prison mailbox (even though a mailing delay by prison officials may not rise to the level of the unconstitutional government interference required by 42 Pa.C.S.A. § 9545(b)(1)(i)). See Little, supra at 1289. As we further observed in Little, the Supreme Court of Pennsylvania evinced a willingness to accept "any reasonably verifiable evidence of the date that the prisoner deposits the appeal with the prison authorities" in its decision in Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423 (1997). In Jones, our Supreme Court provided the following guidance as to the type of "reasonably verifiable evidence" that is acceptable:
Next, we turn to the type of evidence a pro se prisoner may present to prove that he mailed the appeal within the deadline. As provided in Rule 1514, a Postal Form 3817, Certificate of Mailing, constitutes proof of the date of mailing. In Smith, we said that the "Cash Slip" that the prison authorities gave Smith noting both the deduction from his account for the mailing to the prothonotary and the date of the mailing, would also be sufficient evidence. We further stated in Smith that an affidavit attesting to the date of deposit with the prison officials likewise could be considered. This Court has also accepted evidence of internal operating procedures regarding mail delivery in both the prison and the Commonwealth Court, and the delivery route of the mail, to decide the last possible date on which the appellant could have mailed an appeal based on the date that the prothonotary received it. Proof is not limited to the above examples and we are inclined to accept any reasonably verifiable evidence of the date that the prisoner deposits the appeal with the prison authorities.
549 Pa. 64, 700 A.2d 426 (1997) (Emphasis Added).
¶ 7 Nevertheless, the burden of proving the date of mailing or of deposit with prison officials remains upon the prisoner. Id. at 63, 700 A.2d at 426. Here, Appellant's judgment of sentence became final on June 7, 2004 (thirty days after the sentence was entered on the docket of the lower court), which was the date on which the time for seeking direct appeal to this Court expired. Accordingly, Appellant was required to file all PCRA petitions by June 7, 2005. 42 Pa.C.S.A. § 9545(b). The only evidence that was offered by Appellant in support of his allegation that he delivered his pro se PCRA petition to prison officials for mailing in early April of 2005 was Appellant's own testimony, under oath, at the PCRA hearing on July 26, 2006, and the letter that he sent to the Clerk of Court in mid-July 2005. (N.T. PCRA, 7/26/06, pp. 7-9). The only evidence offered by the Commonwealth to counter Appellant's assertion was the sworn testimony of an employee of the Clerk of Court to the effect that Appellant's petition had never been received at that office and that, if it had, it would have been filed and docketed. (N.T. PCRA, 7/26/06, pp. 40-42). Neither party produced any other evidence whatsoever, testimonial or otherwise, from any prison officials, staff, or inmates concerning Appellant's alleged attempt to mail his PCRA petition in early April of 2005.
When the expiration of a statutory time limit falls on a weekend day or holiday, the due date is extended to the next working day. See 1 Pa.C.S.A. § 1908. Accordingly, the expiration of the thirty-day appeal period here was extended until Monday, June 7, 2004.
¶ 8 The PCRA court below found that Appellant had "not presented any reasonably verifiable evidence that he mailed a petition for postconviction relief at SCI Smithfield in early April, 2005." PCRA Court Opinion, 12/4/2006, p. 5 (Emphasis in Original). Consequently, the PCRA court concluded that since Appellant had not filed a timely PCRA petition and had not alleged or proven that any of the three exceptions of 42 Pa.C.S.A. § 9545(b) applied, the PCRA court was, therefore, without jurisdiction to reach the merits of Appellant's PCRA petition. Id. We disagree.
¶ 9 The examples of what "reasonably verifiable evidence" may be considered was referenced by the Supreme Court of Pennsylvania in Commonwealth v. Jones, supra, at 64, 626. It was also specifically observed in Jones that among those examples that were referenced was "an affidavit attesting to the date of deposit with the prison officials". Here, although Appellant did not produce an affidavit to such effect, he did testify under oath as to the date on which he deposited his PCRA petition with prison officials for mailing. We believe that such testimony is as much "reasonably verifiable evidence" as is an affidavit to the same effect. Consequently, Appellant's testimony in that regard should have been considered by the lower court in reaching its decision below. Although the Supreme Court of Pennsylvania observed in Jones that the burden of proving the date on which a prisoner delivered documents to prison officials for mailing remains upon the prisoner, in light of our conclusion that Appellant's sworn testimony constituted "reasonably verifiable evidence", we are constrained to vacate the lower court's order and to remand to the lower court for reconsideration of Appellant's petition for post conviction relief, and for the application of the pronouncements of the Supreme Court of Pennsylvania in Jones, supra, as to what is "reasonable verifiable evidence", upon such reconsideration on remand.
Moreover, the Supreme Court noted, in Jones, that "proof [was] not limited to the above examples . . . [as to what was to be considered as] any reasonably verifiable evidence." Id. at 64, 726.
CONCLUSION
¶ 10 The PCRA court below erred in determining that Appellant presented no "reasonably verifiable evidence" of the date on which Appellant delivered his PCRA petition to prison officials for mailing, as such was defined by the Supreme Court of Pennsylvania in Jones, supra, in the PCRA proceedings below. Consequently, this matter is remanded to the lower court for its reconsideration of Appellant's PCRA petition as to its jurisdiction to entertain the same and, if necessary, to address the merits of the same. ¶ 11 Order vacated. Remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.
¶ 12 KELLY, J. files a DISSENTING OPINION.
¶ 1 I respectfully disagree with the majority's conclusion that Appellant's testimony at the PCRA hearing concerning the timely mailing of his petition is the equivalent of an acceptable affidavit. Although our Supreme Court in Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997) observed "an affidavit attesting to the date of deposit with the prison officials could be considered [as a type of evidence a pro se prisoner may present to prove that he mailed an appeal within the deadline]," id. at 426 (emphasis added) citing Commonwealth v. Smith, the requirement for such a substitution is absent here, that is, "reasonably verifiable evidence of the date that the prisoner deposit[ed] the [petition] with the prison authorities." Jones, supra at 426. Other than his own testimony and follow-up letter, Appellant offered no evidence in support of his claim.
Smith v. Pennsylvania Bd. of Probation and Parole, 683 A.2d 278 (Pa. 1996) offers an appellant the "opportunity" ( id. at 282) to meet the burden of proof of timely deposit with prison authorities by offering evidence, such as a "Cash Slip and/or an affidavit." Id. The suggestion of an affidavit itself is arguably dicta, as the appellant in Smith did offer the prison Cash Slip as evidence supporting proof of timely mailing. The appellant in Jones similarly offered documentary evidence in the form of a certified mail receipt. Jones at 424.
¶ 2 As the majority notes, a PCRA court's findings will not be disturbed unless there is no support for them in the certified record (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001)). "When there is support of record for the post conviction court's credibility determinations, appellate courts are bound by the PCRA Court's rulings thereon." Commonwealth v. Abu-Jamal, 720 A.2d 79, 93 (Pa. 1998), cert. denied, 528 U.S. 810 (1999).
¶ 3 Here, absent any supporting evidence, to accept Appellant's timely mailing claim necessarily involves a determination of the credibility of his sworn testimony. Even assuming, as the majority does, that Appellant could meet his burden with sworn testimony alone as the equivalent of the affidavit suggested in Smith and Jones, the PCRA court concluded that he had not done so. The record provides ample evidence that Appellant had the opportunity at the hearing to meet his burden. I would defer to the PCRA court's conclusion that Appellant failed to present any reasonably verifiable evidence of timely mailing. See Carr, Abu-Jamal. Accordingly, I would affirm the order denying Appellant's petition for lack of jurisdiction. Hence, I dissent.
Moreover, while the PCRA court as factfinder was free to accept all, part or none of the evidence offered, to accept as credible all Appellant's sworn testimony would have required acceptance, inter alia, of his belated claim of innocence in the contract killing of his wife; statements that he previously lied in his eighty-six page counseled statement to the police and in a follow up statement; that he perjured himself by testifying against his co-conspirator at a preliminary hearing; that he perjured himself again in his own guilty plea hearing to first degree murder; and as a coda, gratuitously lied in a letter of apology to his former mother-in-law, admitting his guilt. ( See N.T. PCRA Hearing, 7/26/06, at 16, 20, 21-23, 24-32, 33-34, 39).