Opinion
234 EDA 2023 J-A10040-24
08-23-2024
COMMONWEALTH OF PENNSYLVANIA v. SHATAAN ADAMS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered April 23, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002312-2008
BEFORE: PANELLA, P.J.E., BECK, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
Appellant, Shataan Adams, appeals the order entered by the Delaware County Court of Common Pleas denying without a hearing his first petition filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (the PCRA"), collaterally challenging his 2009 convictions for murder of the second degree, burglary, aggravated indecent assault and conspiracy to commit robbery. After appointed counsel filed a no merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and was permitted to withdraw from representation, Appellant continued to litigate pro se the merits of his petition. The PCRA court ultimately denied relief without a hearing. Appellant filed a pro se Notice of Appeal more than 20 months after the entry of the PCRA court's order. Because we find that there is no evidence of record demonstrating that the PCRA court advised Appellant "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" as required by Pa.R.Crim.P. 907, we decline to quash this appeal as untimely.
18 Pa.C.S. §§ 2502(b), 3502(a), 3125, 903 and 3701(a)(1)(ii), respectively.
In this Court's 2012 opinion, affirming the convictions but vacating the judgment of sentence, we quoted the Honorable Ann Osborne's trial court opinion at length. See Commonwealth. v. Adams, 39 A.3d 310, 312-314 (Pa. Super. 2012), aff'd, 104 A.3d 511 (Pa. 2014). We hereby summarize the basic facts supporting Appellant's convictions.
During August and September 2007, Appellant and co-defendants Byron Hammond and Charles Redfain plotted to rob the Blackwood family, who lived in the same neighborhood in the City of Chester as the co-defendants. Some of their plotting and some of their preparations were overheard or seen by a neighbor of the Blackwood family. After 8:00 p.m. on September 27, 2007, Appellant and Redfain were sitting together when Hammond approached them and said, "it's about to go down," and gave Redfain a shotgun. Appellant gave Redfain a mask. Appellant and Hammond each had a firearm of their own. See, id. at 312-313.
At about 10 p.m., M.B., wife of the victim, was lying in bed with her children, when Hammond kicked in the back door of the house. M.B. saw three men coming up the stairs with guns, and Hammond yanked her by the hair away from her children and downstairs to the kitchen. Hammond struck M.B. repeatedly demanding money and marijuana. Meanwhile Redfain and Appellant ransacked the first floor of the home. At some point, Redfain digitally penetrated M.B. while Appellant was in the kitchen with them. See, id. at 313.
The victim returned to the house in a truck driven by a friend. Appellant alerted his cohort and ordered them to tie up M.B. Appellant and Hammond turned off the lights in the house and took positions with their guns drawn to ambush the victim. M.B. slipped away from her captor and screamed a warning to her husband. The victim grabbed his friend's firearm while M.B. escaped into the friend's truck. Gunfire erupted as the truck sped away from the house. The friend called the police, circled the block and upon arriving back at the house, found the victim lying on the ground with a single bullet wound to the head. See, id. at 313-314.
On May 8, 2009, following a trial during which Appellant did not testify, a jury found Appellant guilty of the aforementioned crimes. On July 14, 2009, the trial court sentenced Appellant to life imprisonment on the charge of second-degree murder, with consecutive terms of ten to twenty years' imprisonment for robbery and burglary.
In his direct appeal, Appellant raised three claims: trial court error in allowing testimony and closing argument on his pre-arrest silence; sufficiency of the evidence for aggravated indecent assault; and the merger of burglary into murder of the second degree for sentencing purposes. We ruled that "Appellant's constitutional right to silence was not violated," id. at 323, and the evidence was sufficient to sustain Appellant's conviction of aggravated indecent assault under a theory of accomplice liability. Id. at 325. We also vacated the judgment of sentence and remanded for resentencing because Appellant's consecutive term for burglary was illegal. Id.
The Supreme Court of Pennsylvania granted an allowance of appeal on the issues of whether admitted testimony was an impermissible reference to Appellant's pre-arrest silence, and if so, whether the error was harmless. See Commonwealth v. Adams, 48 A.3d 1230 (Pa. 2012). On November 20, 2014, the Supreme Court affirmed "the trial court and Superior Court's conclusions that the testimony in this case did not unconstitutionally burden [Appellant's] right against self-incrimination, because the reference was contextual and brief and did not highlight [his] silence as evidence of guilt." Commonwealth. v. Adams, 104 A.3d 511, 518 (Pa. 2014) (Opinion Announcing Judgment of the Court).
On July 2, 2015, the Honorable George A. Pagano, resentenced Appellant. The burglary conviction merged. The court imposed a term of life imprisonment for murder of the second degree and consecutive terms of 10 to 20 years' imprisonment for robbery and 5 to 10 years' imprisonment for aggravated indecent assault.
On April 28, 2016, Appellant filed a pro se PCRA petition and memorandum of law, delineating 10 separate categories of claims, with at least seven subclaims in one category. See Appellant's Memorandum of Law, 4/28/16; Appellant's PCRA Petition, 5/3/16; Trial Court Record, 343-390, 457-466. Sitting as the PCRA court, Judge Pagano appointed counsel to represent Appellant. Order, 5/17/16; Trial Court Record, 525-526. On August 8, 2017, the court granted counsel's request to withdraw from representation due to having represented co-defendant Redfain in a 2010 PCRA proceeding, and appointed Kevin O'Neil, Esquire, as new PCRA counsel. Application to Withdraw; Order, 8/8/17; Trial Court Record, 542-544. After seeking, and being granted, multiple extensions of time, PCRA counsel filed a Finley letter on January 28, 2021. See Finley Letter, 1/28/21; Trial Court Record, 676-691.
The PCRA court granted PCRA counsel leave to withdraw and issued a notice of its intent to dismiss the petition without a hearing in accordance with Pa.R.Crim.P. 907. Rule 907 Notice, 1-2; Order, 1/29/21; Trial Court Record, 692-694. Appellant filed a motion on February 9, 2021, seeking leave to proceed pro se and alleging PCRA counsel's ineffective assistance for not raising trial counsel's ineffective assistance by failing to object to the trial court's accomplice liability instruction. Appellant's Motion, 2/9/21; Trial Court Recod, 695-697. Appellant's motion was granted by the PCRA court on February 12, 2021. Order, 2/12/21; Trial Court Record, 699. Appellant filed a notice of intent to respond to the Rule 907 Notice and a supplemental response, which together raised eight separate objections to the dismissal of the PCRA petition. Appellant's Notice, 2/17/2021; Appellant's Supplemental Response, 4/19/21; Trial Court Record, 702-713, 716-724.
On April 23, 2021, the PCRA court entered an order denying Appellant's PCRA petition without a hearing. Order, 4/23/21; Trial Court Record, 725. The face of the order duly notes that Appellant was to be sent a copy of the order at SCI-Albion, including the address of the prison. The docket entry for that date also indicates that Appellant was served by first class mail with a copy of the order denying PCRA relief. See Docket Number CP-23-CR-0002312-2008, page 28 of 32. The order contained in the appellate record is a single page that does not include any statement informing Appellant "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," as required by Pa.R.Crim.P. 907(4). See Order, 4/23/21; Trial Court Record, 725
On May 19, 2021, less than 30 days after the PCRA court entered its order denying relief, Appellant filed pro se a Rule 1925(b) Statement. Appellant's Statement of Matters Complained of on Appeal, 5/19/21; Trial Court Record, 726-727. The filing asserted five separate issues for appeal: (1) trial court error in permitting testimony of his pre-arrest silence; (2) the failure of the Commonwealth to produce the criminal history of a witness at trial; (3) trial counsel's ineffective assistance in failing to object to an erroneous jury instruction that was unnecessarily repetitive; (4) trial counsel's ineffective assistance by failing to object to prejudicial statements; and (5) the denial of due process by trial counsel failing to object to improper prosecutorial tactics. Id. No other filings were made by Appellant until June 16, 2021, when he sought a copy of his docket sheet from the court through a letter to Judge Pagano and a right to know request. Appellant's Letter, 6/16/21; Trial Court Record, 728-729. Over the course of the next year, he filed additional right to know requests directed to the "clerk of courts" seeking a copy of his docket, Rule 1925(b) Statement and other motions he had filed. Trial Court Record, 731-732.
By letter directed to Judge Pagano, Appellant explained his belief that he had 20 days to file a memorandum of law in support of his May 19, 2021 Rule 1925(b) Statement, but had been unable to do so at the time because he was only permitted one hour in the prison library and wanted to know how "to get my rights back" or if he could file the brief "now." Appellant's Letter, 9/1/22; Trial Court Record, 734.
On January 13, 2023, Appellant filed a Notice of Appeal (postmarked January 9, 2023), along with a request for transcripts and a new Statement of Matters Complained of on Appeal. Appellant's Notice of Appeal, 1/13/23; Trial Court Record, 737-746. On January 24, 2023, the PCRA court ordered Appellant to file a Rule 1925(b) Statement, and subsequently granted an extension of time to do so. Order, 1/24/23; Order, 2/28/23; Trial Court Record, 753, 756. Appellant filed his third Rule 1925(b) Statement on March 14, 2023 (postmarked March 9, 2023), a 12-page document raising six enumerated claims. Appellant's Rule 1925(b) Statement, 3/14/23; Trial Court Record, 757-768.
On February 23, 2023, this Court issued an Order directing Appellant to show cause "why this appeal should not be quashed as untimely filed on January 13, 2023, from the April 23, 2021 PCRA order" and noting pertinent Rules of Appellate Procedure. Superior Court Order to Show Cause, 2/23/23. Appellant filed a response on March 6, 2023, in which he stated that due to COVID-19, he "had no access to the law library or legal aide." He also stated that he was "still being treated like he is still on COVID-19 lock down at S.C.I. Albion," and asserted that he was "denied Due Process right [due] to COVID-19." Appellant's Response to Show Cause, 3/6/23. On April 13, 2023, the matter of the timeliness of Appellant's appeal was referred to the panel assigned to decide the merits of this appeal. Order, 4/13/23.
In his brief, Appellant raises four claims. In violation of Pa.R.A.P. 2116, he does not include a Statement of the Questions Involved. In sum, his claims are:
(1) A claim based on trial counsel's failure to object to testimony referring to Appellant's pre-arrest silence and for opening the door to the Commonwealth's responsive argument in summation. Appellant's Brief, 1-2.
(2) A claim based on trial counsel's failure to object to the prosecutor's improper summation that a witness had been consistent from the beginning when that witness had given different versions of where and how the scene was illuminated and the precise chain of events. Appellant's Brief, 3-5.
(3) A claim based on the prosecutor's summation alluding "to the supposed lawlessness in the community." Appellant's Brief, 5-7.
(4) A claim based on Brady v. Maryland, 373 U.S. 83 (1963), that the Commonwealth failed to disclose impeachment evidence of a key witness. Appellant's Brief, 7-10.
We must first address whether we can even entertain this appeal. The timeliness of the appeal is a matter of this Court's jurisdiction. Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014); Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014). "Time limitations for taking appeals are strictly construed and cannot be extended as a matter of grace." Id.; Commonwealth v. Valentine, 928 A.2d 346 (Pa. Super. 2007). "[A]n appellant's failure to appeal timely an order generally divests the appellate court of its jurisdiction to hear the appeal." Williams, 106 A.3d at 587. "Absent extraordinary circumstances, this Court has no jurisdiction to entertain an untimely appeal." Burks, 102 A.3d at 500.
Although "an appellate court for good cause shown may upon application enlarge the time prescribed by these rules" for many acts, it "may not enlarge the time for filing a notice of appeal…." Pa.R.A.P. 105(b) (emphasis supplied).
An order dismissing a PCRA petition shall constitute a final order for the purposes of appeal. Pa.R.A.P. 341(f)(1). The notice of appeal "shall be filed within 30 days after the entry of the order." Pa.R.A.P. 903(a). As described by the Supreme Court of Pennsylvania:
Rule 902 of the Rules of Appellate Procedure identifies the steps most appellants must take to perfect an appeal and thereby invoke an appellate court's jurisdiction. See Pa.R.A.P. 901 (addressing the scope of chapter nine of the Rules of Appellate Procedure relating to appeals from lower courts). Specifically, Rule 902 requires appellants seeking to exercise their statutory right of appeal to file a notice of appeal with the clerk of the lower court from which the appeal is taken within the time allotted by Rule 903, generally thirty days.Williams, 106 A.3d at 587.
"In a criminal case, the date of entry of an order is the date the clerk of courts enters the order on the docket, furnishes a copy of the order to the parties, and records the time and manner of notice on the docket." Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000). See also Commonwealth v. Midgley, 289 A.3d 1111, 1117 (Pa. Super. 2023) (noting that the "differences between [former] Rule 9025 and [current] Rule 114 are not material" in that both "require a docket notation recording service on each party and the date thereof"). Authorized methods of service to an "unrepresented party" include sending a copy of the order in writing "by certified, registered, or first class mail addressed to the party's place of residence, business, or confinement." Pa.R.Crim.P. 114(3)(a)(v) (emphasis supplied).
"Where the trial court docket in a criminal case does not indicate service on a party or the date of service, we will not quash the appeal or require further proceedings." Midgley, 289 A.3d at 1117. Therefore, the appeal period does not begin to run until the date the Clerk of Courts notes the date of service on the docket. See Pa.R.Crim.P. 114(c)(2)(c) (docket entries "shall contain" the "date of service of the order"); Pa.R.Crim.P. 907(4) (indicating that an order dismissing a petition without a hearing "shall advise the defendant...of the time limits within which the appeal must be filed."); Pa.R.A.P. 108(a)(1), (d)(1) (the appeal period only begins running on the date the Clerk "mails or delivers copies of the order to the parties"). "Accordingly, when there is a docketing failure or lack of notice, this Court will excuse an untimely appeal." Commonwealth v. Powell, 290 A.3d 751, 757, n.12 (Pa. Super. 2023) (emphasis supplied).
Here, the docket contains the information required by Rule 114. The PCRA court denied Appellant's PCRA petition on April 23, 2021, with a written order duly noted on the docket. Order, 4/23/21; Trial Court Record, 725. See also Docket Number CP-23-CR-0002312-2008, page 28 of 32. The face of the order indicates that a copy of it would be sent to Appellant at the address for SCI-Albion, the place of his confinement as confirmed by Appellant's pro se filings immediately before and after the PCRA court's order. More importantly, for the purposes of Rule 114, the docket entry for April 23, 2021, indicates that Appellant was served by first class mail with a copy of the order denying PCRA relief. See Docket Number CP-23-CR-0002312-2008, page 28 of 32. The date of the final order in question therefore is April 23, 2021. Consequently, the filing of a notice of appeal more than 20 months after the date of the order appears to be untimely.
The envelope for Appellant's pro se motion to respond to the notice of intent to dismiss the petition indicates his return address at SCI-Albion. Trial Court Record, 701. Similarly, the right to know request Appellant filed in June 2021 indicate his address at SCI-Albion. Trial Court Record, 729.
Notwithstanding this 20-month delay in the filing of a notice of appeal, inadequacies in the PCRA court's order of April 23, 2021, require our further consideration. This Court addressed a similarly problematic PCRA court order and notice of appeal in Commonwealth v. Liebensperger, 904 A.2d 40 (Pa. Super. 2006):
Rule 907 provides that when a PCRA court denies a petition without a hearing, the court shall issue an order to that effect that also advises the petitioner of his right to appeal from the final order disposing of his petition, and of the time in which an appeal must be taken. Pa.R.Crim.P. 907(4). The PCRA court's order … failed to inform [Appellant] of his right to appeal its decision, and
of the time within which that appeal must have been taken. …This Court has refrained from quashing an appeal as untimely where the trial court failed to properly advise the appellant of his appellate rights. See Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004). Therefore, pursuant to Wright, we will entertain the instant appeal.Liebensperger, 904 A.2d at 44.
We also find two recent non-precedential decisions by this Court to be persuasive on this point. See Pa.R.A.P. 126(b). A PCRA court's failure "to include language about [Appellant's] right to appeal in its order denying [the] petition" constituted "a breakdown in court operations" that permitted this Court to consider the appeal timely. Commonwealth v. Irizarry, 540 MDA 2023, 2024 WL 797683, *2 (Pa. Super., filed Feb. 27, 2024) (non-precedential decision). A "PCRA court's failure to comply with Rule 907(4) is patently a breakdown in the PCRA court's operations," that "excuse the untimely filing of a notice of appeal" and provide this Court with jurisdiction over the appeal. Commonwealth v. Bent, 1491 MDA 2022, 2023 WL 5097210, *5 (Pa. Super., filed Aug. 9, 2023) (internal quotation marks and citations omitted) (non-precedential decision).
We emphasize that we are not holding that the PCRA court failed to inform Appellant of his appeal rights. Indeed, there is reason to believe that Appellant did know his rights because he filed a Rule 1925(b) Statement during the 30-day appeal period. However, it is well established that "our review is limited to those facts which are contained in the certified record and what is not contained in the certified record does not exist for purposes of our review." Commonwealth v. Holston, 211 A.3d 1264, 1275 (Pa. Super. 2019). The certified record does not contain documentation by which we can confirm that the requirements of Rule 907(4) were satisfied.
In so holding, we recognize that our resolution is based on a point different than that raised in the Order to Show Cause, Appellant's responses to that order, the PCRA court's opinion stating that Appellant's Notice of Appeal was "patently untimely," PCRA Court Opinion, 2, and the Commonwealth's similar argument that the appeal must be quashed. Appellee's Brief, 6. In addition, both the PCRA court and the Commonwealth requested an opportunity to address the issues raised by Appellant should we determine that we had jurisdiction over this appeal.
The PCRA court respectfully reserved the right to supplement its opinion to address Appellant's Rule 1925(b) Statement, "if directed to do so." PCRA Court Opinion, 2. The Commonwealth explained in its brief that it had "not addressed either the timeliness of the underlying PCRA petition or the merits of petitioner's claims because the PCRA court had addressed only the quashal issue" and requested that if this Court sought a supplemental opinion from the lower court, "the Commonwealth be permitted to file a supplemental brief addressing the lower court's reasoning." Appellee's Brief, 9-10 n.1.
As we do not have an explanation of the PCRA court's order from that court or an analysis of the issues raised by Appellant from the Commonwealth, we hereby remand the matter to the PCRA court to write a responsive opinion to Appellant's Rule 1925(b) Statement filed on March 14, 2023. See Trial Court Record, 757-768.
Upon the filing of that opinion, we direct the prothonotary of this Court to issue a new briefing schedule.
Case remanded for a supplemental opinion from the PCRA court. Jurisdiction retained.
[*] Retired Senior Judge assigned to the Superior Court.