Com. v. Brown, A.

J-S79030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ALTON DANIEL BROWN :

:

Appellant : No. 1118 EDA 2017

Appeal from the PCRA Order February 14, 2017

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-00000296-1997

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED MARCH 27, 2018

Alton Daniel Brown appeals pro se from the order entered February 14,

2017, in the Delaware County Court of Common Pleas dismissing his serial

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Brown seeks relief from the judgment of sentence of an aggregate

term of 35 to 70 years’ imprisonment, imposed on October 30, 1997, following

his jury conviction of robbery,2 aggravated assault,3 and related charges. On

appeal, Brown contends the PCRA court erred by (1) dismissing his petition

based upon its purported lack of jurisdiction, and (2) refusing to recuse itself

from the proceedings. Brown also filed a separate application requesting this

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 3701(a)(2).

3 18 Pa.C.S. § 2702(a).

J-S79030-17

Court recuse itself from adjudicating his appeal. For the reasons below, we

affirm the order of the PCRA court, and deny Brown’s recusal request.

The facts underlying Brown’s convictions, and the complicated

procedural history that followed, are well-known to the parties, and we need

not reiterate them herein. We note only that Brown did not file a direct appeal,

but sought post-conviction relief on six prior occasions in the PCRA court. Each

time his request for relief was denied, Brown filed an appeal. This Court either

affirmed the ruling or dismissed the appeal for a procedural error.4 On January

30, 2017, Brown filed the instant PCRA petition, his seventh, alleging

numerous claims concerning his status as a self-described “political prisoner,”

claiming he is serving an illegal sentence, and asserting all governmental

officials involved in his case obstructed his attempt to obtain a direct appeal

from his judgment of sentence. See Petition for Writ of Habeas Corpus and/or

Post-Conviction Collateral Relief, 1/30/2017. The same day, Brown also filed

a motion seeking recusal of the trial court, and reassignment of his case to

“an impartial tribunal, perferably (sic) in a jurisdiction located in the States of

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4 See Commonwealth v. Brown, 938 EDA 99 (Pa. Super. Sept. 14, 1999)

(dismissed for failure to file brief); Commonwealth v. Brown, 839 A.2d 1149

(Pa. Super. 2003) (unpublished memorandum), appeal denied, 875 A.2d 1072

(Pa. 2004); Commonwealth v. Brown, 928 A.2d 1119 (Pa. Super. 2007)

(unpublished memorandum), appeal denied, 934 A.2d 1275 (Pa. 2007);

Commonwealth v. Brown, 68 A.3d 364 (Pa. Super. 2013) (unpublished

memorandum), appeal denied, 75 A.3d 1280 (Pa. 2013); Commonwealth v.

Brown, 2058 EDA 2015 (Pa. Super. Aug. 5, 2016) (dismissed for failure to

file brief); Commonwealth v. Brown, 3015 EDA 2016 (Pa. Super. Jan. 30,

2017) (dismissed for failure to file docketing statement).

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New York, New Jersey, or Ohio[.]” Motion for Recusal, 1/30/2017, at 1. On

February 14, 2017, the PCRA court entered two orders: (1) denying Brown’s

PCRA petition for lack of jurisdiction, and (2) denying Brown’s motion for

recusal. See Orders, 2/14/2017. This timely appeal followed.5

Preliminarily, we note that while Brown addresses the propriety of both

orders in his brief,6 his notice of appeal referenced only the “ORDER of

2/14/2017, denying post-conviction relief.” Notice of Appeal, 3/20/2017.

Accordingly, the order denying Brown’s motion for recusal of the PCRA court

is not before us.

“In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.” Id. at 1284

(citations omitted).7

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5 The PCRA court did not direct Brown to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

6 See Brown’s Brief at unnumbered 1-2, 6-7.

7 We note the PCRA court did not provide Brown with the requisite notice of

its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. Nevertheless,

because Brown has failed to raise this claim of error on appeal, “he waived

any defect in notice.” Commonwealth v. Zeigler, 148 A.3d 849, 852 n.2

(Pa. Super. 2016). Moreover, as we note infra, Brown’s petition is also

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Here, the PCRA court provided a myriad of reasons for dismissing

Brown’s petition. See PCRA Court Opinion, 7/10/2017, at 3-10. First and

foremost, however, the court determined it lacked jurisdiction to consider the

present petition because, at the time it was filed, an appeal from the denial of

Brown’s prior petition was still pending in this Court. See id. at 3-4. The

court opined:

The Petition that is the subject of this Opinion is a duplicate

of a Petition filed by [Brown] on [August 11], 2016.[8] That

Petition was denied by this Court and appealed to the

Pennyslvania Superior Court. The Superior Court issued an order

dismissing the appeal on January 20, 2017. Under Pennsylvania

Rule of Appellate Procedure 1113, [Brown] has 30 days from the

date of the Superior Court’s denial of his Petition to file an appeal

to the Supreme Court. Pa.R.A.P. 1113(a). At the time [Brown]

filed this duplicate Petition with this Court on January 30, 2017,

the Superior Court had not yet remanded the case back to the

Court of Common Pleas. As such, this Court lacks the jurisdication

to hear this Petition and denied the Petition for that reason. See

also Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)

(“Appellant could not have filed his second PCRA petition in the

court of common pleas while his first PCRA petition was still

pending before this court. The trial court had no jurisdiction to

adjudicate issues directly related to this case; only this court

did.”).

Id. at 3-4 (footnote omitted).

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patently untimely, and the “failure to issue Rule 907 notice is not reversible

error where the record is clear that the petition is untimely.” Id.

8 The docket reflects Brown filed another PCRA petition on November 21,

2016, which the court denied on November 29, 2016. However, neither the

petition, nor the PCRA court’s order denying relief, are included in the certified

record.

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Brown argues the PCRA court erred when it dismissed his petition for

lack of jurisdiction because the Superior Court had issued a final order

(dismissing the appeal) before he filed the instant petition, and he simply

chose not to appeal that order. See Brown’s Brief at unnumbered 4-5. He

maintains the fact that the appellate court had not yet remanded the record

back to the PCRA court did not affect the PCRA court’s jurisdiction. See id. at

unnumbered 5.

We disagree. In Lark, supra, the Pennsylvania Supreme Court held:

[W]hen an appellant’s PCRA appeal is pending before a court, a

subsequent PCRA petition cannot be filed until the resolution of

review of the pending PCRA petition by the highest state court in

which review is sought, or upon the expiration of the time for

seeking such review.

Lark, supra, 746 A.2d at 588 (emphasis supplied). Here, on January 20,

2017, this Court entered an order, at Docket No. 3015 EDA 2016, dismissing

Brown’s appeal from the August 17, 2016, order of the PCRA court, which

denied his serial PCRA petition.9 When Brown filed his most recent petition

on January 30, 2017, the 30-day period for appealing this Court’s January 20,

2017, order had not yet expired. Therefore, under Lark, the PCRA court had

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9The appeal was dismissed because Brown failed to file a docketing statement

as required by Pa.R.A.P. 3517. See Docket No. 3015 EDA 2016, Order,

1/20/2017.

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no jurisdiction to review the petition. Accordingly, the PCRA court’s dismissal

of the petition was proper.10

Nevertheless, even if we were to find the PCRA court could have

reviewed the petition under Lark, we would still affirm the order on appeal.

Indeed, as the PCRA court noted in its opinion, Brown’s petition was manifestly

untimely,11 and Brown failed to prove the applicability of any of the timing

exceptions found in 42 Pa.C.S. § 9545(b). See PCRA Court Opinion,

7/10/2017, at 4-6. Although Brown attempts to raise the governmental

interference exception in his pro se petition,12 his argument focuses on what

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10 We note this Court’s recent en banc decision in Commonwealth v.

Montgomery, ___ A.3d ___, 2018 PA Super 54 (Pa. Super. 2018) (en banc),

does not compel a different result. In that case, our Court carved out an

exception to Lark, supra, and held “PCRA courts are not jurisdictionally

barred from considering multiple PCRA petitions related to the same judgment

of sentence at the same time[.]” Montgomery, supra, 2018 PA Super 54,

at 10 (emphasis supplied). However, the Montgomery panel explained that

Lark still applies in cases such as the one before us, and “precludes

consideration of a subsequent petition from the time a PCRA order is appealed

until no further review of that order is possible.” Id. at 8.

11 A PCRA petition must be filed within one year of the date the judgment of

sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Here, Brown’s

judgment of sentence was final on December 1, 1997. Although the thirtieth

day following his sentencing was November 29, 1997, that day fell on a

Saturday. Therefore, Brown had until Monday, December 1st to file a timely

direct appeal. See 1 Pa.C.S. § 1908.

12 See 42 Pa.C.S. § 9545(b)(1)(i) (providing an exception to the one-year

filing requirement when the petitioner proves that “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”).

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he perceives to be a governmental conspiracy to sabotage his right to file a

direct appeal. See Petition for Writ of Habeas Corpus and/or Post-Conviction

Collateral Relief, 1/30/2017, at 7-8. Brown has attempted to resurrect his

direct appeal rights since his first PCRA petition filed in 1998. Furthermore,

he alleged as early as in his second petition that his failure to file a direct

appeal was the result of governmental interference. See Brown, supra, 839

A.2d 1149 (unpublished memorandum at 4) (“Appellant asserts his failure to

file a direct appeal was due to either trial counsel’s ineffective assistance or

governmental interference (in the form of a failure to appoint new counsel),

and the PCRA court, therefore, erred in denying his request for a nunc pro

tunc direct appeal.”). Accordingly, even if we were able to review this claim,

we would find Brown is unable to satisfy the 60-day requirement for raising a

timeliness exception under 42 Pa.C.S. § 9545(b)(2). See id. (“Any petition

invoking an exception provided in paragraph (1) shall be filed within 60 days

of the date the claim could have been presented.”). Therefore, Brown is

entitled to no relief.

We note, however, that Brown also filed two motions in this Court while

his appeal was pending: (1) an application for extension of time to file a reply

brief; and (2) an application for recusal of this Court and request for a hearing.

Because we agree the PCRA court had no jurisdiction to consider Brown’s

petition, we deny his application for an extension of time to file a reply brief.

With regard to his recusal motion, we note:

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As a general rule, a motion for recusal is initially directed to

and decided by the jurist whose impartiality is being

challenged. In considering a recusal request, the jurist must

first make a conscientious determination of his or her ability

to assess the case in an impartial manner, free of personal

bias or interest in the outcome. The jurist must then

consider whether his or her continued involvement in the

case creates an appearance of impropriety and/or would

tend to undermine public confidence in the judiciary. This is

a personal and unreviewable decision that only the jurist can

make.... In reviewing a denial of a disqualification motion,

we recognize that our judges are honorable, fair and

competent.

Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89

(Pa.) (citations omitted), cert. denied, 528 U.S. 810, 120 S.Ct.

41, 145 L.Ed.2d 38 (1998). “It is the burden of the party

requesting recusal to produce evidence establishing bias,

prejudice or unfairness which raises a substantial doubt as to the

jurist's ability to preside impartially.” Id.

Commonwealth v. Melvin, 103 A.3d 1, 23 (Pa. 2014).

Here, the basis for Brown’s recusal motion appears to be this Court’s

consistent denial of relief to him in his prior appeals. See Application for

Recusal and Request for Hearing on Same, 11/27/2017, at unnumbered 1-2.

Brown insists “the tone and facts of this Court’s opinions … reflects a deep

hatred and animosity for [him], and an intent to discredit him personally and

paint him as a frivolous and abusive litigator[.]” Id. at 1. Furthermore, he

maintains his criminal convictions are the result of a discriminatory justice

system. See id. However, our review of the prior decisions of this Court

adjudicating Brown’s appeals reveals no fixed bias or appearance of

impartiality. Brown either failed to follow the appellate rules of procedure, or

was unable to prove his claims. In either case, the repeated denial of relief

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does not provide a basis for recusal. Accordingly, we deny his application

before this Court.

Order affirmed. Application for Extension of Time denied. Application

for Recusal and Request for Hearing on Same denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/18

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