Com. v. Brown, A.

J-S35012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALTON D. BROWN

Appellant No. 1459 EDA 2014

Appeal from the PCRA Order April 14, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0001095-1997

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.: FILED AUGUST 13, 2015

Appellant, Alton D. Brown, appeals from the April 14, 2014 order

dismissing as untimely his latest serial petition, filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

consideration, we affirm.

The PCRA court has summarized the anfractuous procedural history of

this case as follows.

On November 19, 1997, following a three-day

jury trial, this court found Appellant guilty of two

charges of robbery[,18 Pa.C.S.A. § 3701(a)(2),] and

two charges of possession of a weapon with criminal

intent,[ 18 Pa.C.S.A. § 907(b),] arising from his

actions in the course of two separate convenience

store robberies at knife-point on January 16 and 27

of that year. On January 8, 1998, the court held a

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

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sentencing hearing and found that Appellant was a

high risk, dangerous offender [in accordance with 42

Pa.C.S.A. § 9714]. As a result, Appellant was

sentenced to ten to twenty years[’] incarceration on

each count of Robbery to be served consecutively

[and consecutively to a 30-70 year sentence from a

conviction in Delaware County]. On December 22,

1998, the Superior Court of Pennsylvania affirmed

this sentence, and on June 16, 1999, the Supreme

Court of Pennsylvania denied further appellate

review of the case. [See Commonwealth v.

Brown, 736 A.2d 4 (Pa. Super. 1998) (unpublished

memorandum), appeal denied, 739 A.2d 1055 (Pa.

1999).]

Appellant filed his first of many pro se petitions

for post conviction relief under the []PCRA[] on April

20, 2000, and the court appointed counsel, Carol A.

Sweeney, Esquire, to assist him in his claim.

Appellant filed a petition to proceed pro se on June

6, 2000, which this court denied. Subsequently, this

court denied his PCRA petition on November 28,

2000 following a full hearing. Then, after a lengthy

series of petitions, appeals, and remands in

Appellant’s initial PCRA claim, on November 21,

2007, the Supreme Court of Pennsylvania denied his

Petition for Allowance of Appeal and Application for

Writ of Mandamus. [See Commonwealth v.

Brown, 797 A.2d 1021 (Pa. Super. 2002)

(unpublished memorandum, affirming the PCRA

court’s denial of PCRA relief), vacated, 845 A.2d 199

(Pa. 2004) (per curiam order, remanding to PCRA

court for a Grazier hearing), Commonwealth v.

Brown, 928 A.2d 1119 (Pa. Super. 2007)

(unpublished memorandum, affirming the PCRA

court’s determination that Appellant knowingly

waived his right to counsel during his appeal from

the denial of his first PCRA petition), appeal denied,

934 A.2d 1275 (Pa. 2007).]

However, Appellant had previously and

prematurely filed a second PCRA petition on

September 19, 2002 while his initial PCRA petition

was still pending. Accordingly, on October 10, 2002,

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this court deferred consideration of the second

petition until the resolution of the first. This

occurred on September 22, 2008 when this court

notified Appellant that his second PCRA petition

would be dismissed without a hearing. Appellant

objected on October 6, 2008, and this court

conducted an evidentiary hearing and argument on

January 5, 2009 out of an abundance of caution.

After a thorough review of the record,

including supplemental briefs submitted by the

Appellant and the Commonwealth, this court

dismissed Appellant’s second PCRA motion in the

Order of July 7, 2009 because Appellant had failed to

timely file that petition. Appellant appealed this

order, and on November 24, 2010, the Superior

Court affirmed that Appellant failed to timely file his

second PCRA petition[, and] on October 18, 2011,

the Supreme Court of Pennsylvania denied

Appellant’s Petition for Allowance of Appeal. [See

Commonwealth v. Brown, 22 A.3d 1079 (Pa.

Super. 2010) (unpublished memorandum), appeal

denied, 30 A.3d 1192 (Pa. 2011).]

Undeterred, Appellant filed a third round of

PCRA petitions. After his petitions of December 19,

2011 and January 3, 2012, this court appointed

Bonnie Keagy, Esquire, on January 18, 2012 to

represent Appellant in these further actions. After

Appellant filed two more PCRA petitions on January

20, 2012 and February 17, 2012, Ms. Keagy filed a

petition to withdraw on March 23, 2012, which

included the requisite Finley letter. [See

Commonwealth v. Finley, 550 A.2d 213, 215 (Pa.

Super. 1988).] This court reviewed Ms. Keagy’s

Finley letter and conducted a full and independent

review of the claims, reaching the same conclusions.

On March 26, 2012, this court granted Ms. Keagy’s

petition to withdraw and denied Appellant’s PCRA

petitions.

Displaying uncanny persistence, Appellant filed

a further motion for post conviction relief on April 5,

2012 for the reconsideration of the court’s March 26,

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2012 denial of his PCRA motion. In response, in two

separate orders on April 12, 2012, the court granted

Appellant an evidentiary hearing to further establish

his claim and appointed Coley Reynolds, Esquire, to

represent him in the matter. … Following the

repetitive pattern of Appellant’s post conviction

actions, he appealed this court’s denial of his Motion

for Modification of Sentence. On July 3, 2013, the

Superior Court reviewed and affirmed this court’s

decision. [See Commonwealth v. Brown, 82 A.3d

1053 (Pa. Super. 2013) (unpublished

memorandum).]

In the fourth and final round of pro se PCRA

motions, bringing the case to the current appeal,

Appellant filed a pro se correspondence with this

court on December 31, 2013, attempting to resurrect

his PCRA claims. In response, this court issued its

order of January 15, 2014, stating that Appellant’s

February 17, 2012 PCRA petition had been denied

and further reiterated that his petitions of March 26,

2012, April 20, 2012, April 30, 2012, May 2, 2012,

and May 9, 2012 had all been dismissed. Appellant

filed a motion to reconsider that order on February

7, 2014, which this court granted in the March 13,

2014 order. Accordingly, in that order, this court

reappointed Ms. Keagy to represent Appellant in the

reexamination of his claims. Unhappy with Ms.

Keagy, Appellant requested to proceed pro se in the

matter on March 21, 2014, and Ms. Keagy filed a

petition to withdraw once again from the case on

March 25, 2014, including her second Finley letter

addressed to Appellant. In three separate orders on

April 15, 2014, this court granted Ms. Keagy’s

petition to withdraw, allowed Appellant to continue

pro se, and issued the order presently on appeal.

The April 14, 2014 order presently on appeal

denied Appellant’s February 17, 2012 Amended

Petition for Post Conviction Relief because of his

failure to timely file the petition with this court. That

order also specifically denied all of Appellant’s PCRA

petitions and related motions, [filed on December

19, 2011, January 3, 2012, January 20, 2012,

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February 17, 2012, April 5, 2012, April 26, 2012,

May 7, 2012, May 9, 2012, February 4, 2014, and

March 20, 2014, respectively,] including the

underlying December 19, 2011 Petition for Post

Conviction Relief. On May 12, 2014, Appellant filed a

Notice of Appeal to the Superior Court and requested

review of the April 14, 2014 order. Accordingly on

May 18, 2014, this court ordered Appellant to file a

Concise Statement of Matters Complained of on

Appeal within 21 days. Appellant filed his Concise

Statement on June 16, 2014, 28 days after the order

demanding it.

PCRA Court Opinion, 7/11/14, at 1-5 (footnotes omitted).

On appeal, Appellant raises the following questions for our review.

I. [Whether the] trial court erred in denying

[Appellant’s] motion for appointment of unbias [sic]

counsel not associated with its judicial system and/or

request for leave to proceed pro se, and, by

appointing bias [sic] counsel to represent [Appellant]

after [Appellant] had notified [the trial court] of a

conflict between the two, and after counsel had been

previously allowed to withdraw?

II. Whether trial court erred in its summery [sic]

denial of post-conviction relief?

Appellant’s Brief at 1.

Our standard of review of the denial of a PCRA

petition is limited to examining whether the court’s

rulings are supported by the evidence of record and

free of legal error. This Court treats the findings of

the PCRA court with deference if the record supports

those findings. It is an appellant’s burden to

persuade this Court that the PCRA court erred and

that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

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Instantly, the PCRA court dismissed Appellant’s current PCRA petition

as untimely. “[I]t is well-settled that … a question of timeliness implicates

the jurisdiction of our Court.” Commonwealth v. Gandy, 38 A.3d 899,

902 (Pa. Super. 2012) (internal quotation marks and citation omitted),

appeal denied, 49 A.3d 442 (Pa. 2012). “Because these timeliness

requirements are mandatory and jurisdictional in nature, no court may

properly disregard or alter them in order to reach the merits of the claims

raised in a PCRA petition that is filed in an untimely manner.”

Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation

marks and citation omitted). The PCRA “confers no authority upon this

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).

This is to “accord finality to the collateral review process.” Id. “It is well

settled that [a]ny and all PCRA petitions must be filed [in a timely manner]

unless one of three statutory exceptions applies.” Commonwealth v.

Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011) (internal quotation

marks and citations omitted), appeal denied, 38 A.3d 823 (Pa. 2012). “We

have repeatedly stated it is the appellant’s burden to allege and prove that

one of the timeliness exceptions applies. Whether Appellant has carried his

burden is a threshold inquiry prior to considering the merits of any claim.”

Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013) (citation

omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).

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Consequently, an appellant must acknowledge that his PCRA petition is

untimely, and demonstrate with particularity that one or more of the

statutory exceptions applies. See Commonwealth v. Wharton, 886 A.2d

1120, 1125-26 (Pa. 2005).

The Act provides for the following possible exceptions to the timeliness

requirement.

§ 9545. Jurisdiction and proceedings

…

(b) Time for filing petition.—

(1) Any petition under this subchapter,

including a second or subsequent petition, shall

be [timely] filed … 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

(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

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and has been held by that court to apply

retroactively.

(2) Any petition invoking an exception

provided in paragraph (1) shall be filed within

60 days of the date the claim could have been

presented.

…

42 Pa.C.S.A. § 9545(b).

Appellant’s instant PCRA petition is facially untimely. His sentence

became final on September 14, 1999, 90 days after our Supreme Court

denied Appellant’s petition for allowance of appeal on June 16, 1999, being

the time allowed to file a writ of certiorari with the United States Supreme

Court. See U.S. S. Ct. R. 13(1). Therefore, Appellant had until September

14, 2000, one year from that date, to file a first or any subsequent PCRA

petition. See 42 Pa.C.S.A. § 9545(b)(3). As noted, it is required that

Appellant pleads and proves one of the statutory exceptions to the PCRA’s

time limits to invoke the PCRA or this Court’s jurisdiction to consider his

petition. See Edmiston, supra.

In an effort to implicate the Section 9545(b)(1)(ii) newly-discovered

fact exception, Appellant makes a bald assertion that he “was incompetent

during sentencing, direct appeal, and post-conviction proceedings.”

Appellant’s Brief at 5. Citing Commonwealth v. Cruz, 852 A.2d 287 (Pa.

2004), Appellant avers his incompetence qualifies as an after-discovered fact

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for the purpose of the Section 9545(b)(1)(ii) timeliness exception to the

PCRA. Id. at 6.

Claims that were defaulted due to [Appellant’s]

mental incompetence may qualify under the

statutory after-discovered evidence exception on the

basis that incompetence rendered petitioner unable

to timely discover the factual basis for collateral

claims. Indeed, the unique nature of Appellant’s

claims sounding in incompetency requires that he be

afforded an opportunity to attempt to prove that he

was incompetent at the relevant times and that

incompetence qualifies under the after-discovered

evidence exception to the PCRA time-bar.

Appellant’s Brief at 6 (citation omitted).

In Cruz, our Supreme Court held that incompetence, rendering an

individual “unable to discover the facts that would form the basis of his

substantive PCRA claims,” can qualify as an after-discovered fact. Cruz,

supra at 296-297. In that case, the record showed the appellant, at the

time of the homicides for which he was charged, shot himself in the head

and, at the time of his nolo contendere plea, was unable to discuss the facts

of the case with his attorney. Id. at 288. Further, no inquiry into

competency was ever made on the record. Id. at 296. Under those

circumstances, the Supreme Court held the appellant “should be afforded an

opportunity to attempt to prove that he was incompetent at the relevant

times and that the incompetence qualifies under the after-discovered

evidence exception….” Id. at 297.

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In this case, no such factual predicate, suggesting the possibility of

Appellant’s incompetence, exists in the record, and Appellant alludes to

none. To the contrary, the record of this case with its repeated and

extensive litigation, including determinations by the trial court that Appellant

knowingly, intelligently, and voluntarily waived his right to counsel to

proceed pro se, belies any suggestion of Appellant’s incompetency. As this

Court has clarified, Cruz does not stand for the proposition that a bald claim

of incompetency will entitle a PCRA petitioner to a hearing to prove a Section

9545(b)(1)(ii) exception applies. Commonwealth Liebensperger, 904

A.2d 40, 47 (Pa. Super. 2006) (noting the “unique facts” of Cruz and

holding that a petitioner’s failure to assert the causes and timing of his

alleged incompetence and the timing of his emergence therefrom precludes

application of the after-discovered evidence exception recognized in Cruz).

“[T]he general rule remains that mental illness or psychological condition,

absent more, will not serve as an exception to the PCRA’s jurisdictional time

requirements.” Commonwealth v. Monaco, 996 A.2d 1076, 1081 (Pa.

Super. 2010) (citation omitted), appeal denied, 20 A.3d 1210 (Pa. 2011).

Because Appellant failed to adequately plead an exception to the

PCRA’s time constraints, we discern no error by the trial court in dismissing

Appellant’s latest PCRA petition as untimely. Lacking jurisdiction to address

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this court deferred consideration of the second

petition until the resolution of the first. This

occurred on September 22, 2008 when this court

notified Appellant that his second PCRA petition

would be dismissed without a hearing. Appellant

objected on October 6, 2008, and this court

conducted an evidentiary hearing and argument on

January 5, 2009 out of an abundance of caution.

After a thorough review of the record,

including supplemental briefs submitted by the

Appellant and the Commonwealth, this court

dismissed Appellant’s second PCRA motion in the

Order of July 7, 2009 because Appellant had failed to

timely file that petition. Appellant appealed this

order, and on November 24, 2010, the Superior

Court affirmed that Appellant failed to timely file his

second PCRA petition[, and] on October 18, 2011,

the Supreme Court of Pennsylvania denied

Appellant’s Petition for Allowance of Appeal. [See

Commonwealth v. Brown, 22 A.3d 1079 (Pa.

Super. 2010) (unpublished memorandum), appeal

denied, 30 A.3d 1192 (Pa. 2011).]

Undeterred, Appellant filed a third round of

PCRA petitions. After his petitions of December 19,

2011 and January 3, 2012, this court appointed

Bonnie Keagy, Esquire, on January 18, 2012 to

represent Appellant in these further actions. After

Appellant filed two more PCRA petitions on January

20, 2012 and February 17, 2012, Ms. Keagy filed a

petition to withdraw on March 23, 2012, which

included the requisite Finley letter. [See

Commonwealth v. Finley, 550 A.2d 213, 215 (Pa.

Super. 1988).] This court reviewed Ms. Keagy’s

Finley letter and conducted a full and independent

review of the claims, reaching the same conclusions.

On March 26, 2012, this court granted Ms. Keagy’s

petition to withdraw and denied Appellant’s PCRA

petitions.

Displaying uncanny persistence, Appellant filed

a further motion for post conviction relief on April 5,

2012 for the reconsideration of the court’s March 26,

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