Com. v. Mapp, N.

J-S61028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NORMAN MAPP :

:

Appellant : No. 3785 EDA 2017

Appeal from the PCRA Order October 24, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0013788-2009

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 27, 2018

Norman Mapp appeals from the order dismissing his petition filed

pursuant to the Post Conviction Relief Act. We vacate the order and remand

with instructions.

In 2009, Appellant was arrested and charged with various firearms

offenses. The trial court granted his motion to suppress, and the

Commonwealth appealed. This Court reversed the suppression order and

remanded for trial. See Commonwealth v. Mapp, 43 A.3d 511 (Pa.Super.

2012) (unpublished memorandum). Appellant did not file a petition for

allowance of appeal in the Pennsylvania Supreme Court.

Thereafter, Appellant failed to appear for trial, and was convicted in

absentia of all charges. On August 23, 2013, he was sentenced in absentia to

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137 months to 306 months incarceration. Appellant did not file a direct

appeal.

On February 25, 2014, Appellant filed the instant timely pro se PCRA

petition. He subsequently filed numerous pro se motions and supplemental

petitions. The PCRA court appointed counsel, who, on June 28, 2016, filed an

amended PCRA petition asserting a single claim of ineffectiveness; namely,

that trial counsel was ineffective for failing to file a petition for allowance of

appeal in the Pennsylvania Supreme Court following this Court’s reversal of

the suppression order. In the amended petition, Appellant averred that he

requested counsel to seek discretionary review in our Supreme Court, but

counsel refused to do so.

The Commonwealth filed a motion to dismiss the amended petition. In

response, the PCRA court issued a single-paragraph Pa.R.Crim.P. 907 notice

of its intent to dismiss the petition without an evidentiary hearing, wherein it

stated:

I have made this decision because the issues raised in the petition

are meritless. Specifically, appellate counsel was not ineffective

and the claim that appellate counsel was ineffective for failing to

file a petition for allowance of appeal is undeveloped and

unsupported.

Pa.R.Crim.P. 907 Notice, 8/15/17, at 1. On October 24, 2017, the PCRA court

entered an order dismissing the petition, and Appellant subsequently filed a

timely notice of appeal. The PCRA court did not order Appellant to file a

Pa.R.A.P 1925(b) concise statement of errors complained of on appeal;

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however, it authored a Pa.R.A.P 1925(a) opinion in which it explained the

bases for its dismissal, including: (1) the amended petition was untimely; (2)

no evidentiary hearing was warranted because the amended petition did not

include a witness certification, as required by 42 Pa.C.S. § 9545(d)(1);1 and

(3) the amended petition lacked any meaningful discussion of the elements

required to establish counsel’s ineffectiveness. See PCRA Court Opinion,

2/1/18, at 4-11.

Appellant raises the following issues for our review:

I. Whether the Appellant filed his amended PCRA petition

timely in accordance with 42 Pa.C.S. § 9545(b)(2).

II. Whether the [PCRA] court erred in [dismissing] the

Appellant’s PCRA petition without an evidentiary hearing on

all of the issues raised in the amended PCRA petition

regarding counsel’s ineffectiveness.

III. Whether the [PCRA] court erred in not granting relief on the

PCRA petition alleging prior counsel was ineffective.

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1 Where a petitioner seeks an evidentiary hearing, subsection 9545(d)(1)

requires that

the petition shall include a signed certification as to each intended

witness stating the witness’s name, address, date of birth and

substance of testimony and shall include any documents material

to that witness’s testimony. Failure to substantially comply with

the requirements of this paragraph shall render the proposed

witness’s testimony inadmissible

42 Pa.C.S. § 9545(d)(1). See also Commonwealth v. Brown, 767 A.2d

576, 582 (Pa.Super. 2001) (“[W]here a petitioner requests an evidentiary

hearing, . . . the petition must include . . . a signed certification as to each

intended witness and the petitioner must also provide the witness’s name,

address, date of birth and the substance of the proposed testimony.”).

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Appellant’s brief at 8 (unnecessary capitalization omitted).

Our standard of review of an order dismissing a PCRA petition is well-

settled:

We review an order dismissing a petition under the PCRA in

the light most favorable to the prevailing party at the PCRA level.

This review is limited to the findings of the PCRA court and the

evidence of record. We will not disturb a PCRA court’s ruling if it

is supported by evidence of record and is free of legal error. This

Court may affirm a PCRA court’s decision on any grounds if the

record supports it. Further, we grant great deference to the

factual findings of the PCRA court and will not disturb those

findings unless they have no support in the record. However, we

afford no such deference to its legal conclusions. Where the

petitioner raises questions of law, our standard of review is de

novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012) (citations

omitted).

Appellant’s first issue concerns the timeliness of his petition. The

timeliness of a post-conviction petition is jurisdictional. Commonwealth v.

Furgess, 149 A.3d 90, 92 (Pa.Super. 2016). Under the PCRA, any PCRA

petition “shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final “at

the conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). Since the

timeliness requirements are jurisdictional, a court may not address the merits

of the issues raised if the PCRA petition was not timely filed. Commonwealth

v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010)

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Appellant contends that his petition was timely because it was filed

within one year of the date his judgment of sentence became final, pursuant

to 42 Pa.C.S. § 9545(b)(1). However, the PCRA court takes the position that

Appellant’s amended petition was untimely, as it was not filed within sixty

days of the date on which PCRA counsel learned that trial counsel was

ineffective for failing to seek discretionary review of our decision on the

suppression order in the Pennsylvania Supreme Court. See PCRA Court

Opinion, 2/1/18, at 9 (indicating that trial counsel’s failure “could be

considered a newly-discovered fact” under 42 Pa.C.S. § 9545(b)(2)).

The PCRA court’s reasoning is incorrect. According to

§ 9545(b)(3), Appellant’s judgment of sentence became final at the conclusion

of direct review or at the expiration of the period for seeking such review.

Since Appellant did not file a direct appeal, his judgment of sentence became

final thirty days after August 23, 2013, which was September 23, 2013. See

Commonwealth v. Jerman, 762 A.2d 366 (Pa.Super. 2000) (noting that

when PCRA Petitioner does not file a direct appeal his or her judgment of

sentence becomes final thirty days after imposition of sentence); Pa.R.A.P.

903(a). Appellant, therefore, had until September 23, 2014 to file his first

PCRA petition. As such, his pro se PCRA petition, filed on February 25, 2014,

was clearly timely. See Commonwealth v. Brown, 767 A.2d 576, 579 n.2

(Pa.Super. 2001).

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Moreover, the ineffectiveness claim at issue in this appeal was raised in

a counseled amendment to Appellant’s timely pro se PCRA petition. The PCRA

does not require that an amendment to a timely PCRA petition be filed within

one year of the date the judgment of sentence became final. See Pa.R.Crim.P.

905(A) (“The judge may grant leave to amend . . . a petition for post-

conviction relief at any time. Amendment shall be freely allowed to achieve

substantial justice.”) (emphasis added). The PCRA court’s reliance on

Commonwealth v. Williamson, 21 A.3d 236 (Pa.Super. 2011), for such a

proposition is misplaced. In Williamson, the PCRA court was presented with

an untimely second PCRA petition filed by initial PCRA counsel, and it granted

replacement PCRA counsel leave to file an amended petition alleging facts

bringing the otherwise untimely petition within the newly-discovered fact

exception at § 9545(b)(1)(ii). Id. at 240. Here, as we are not confronted

with an untimely PCRA petition, the PCRA court erred in determining that

Appellant was required to establish a timeliness exception in the amendment

to his timely petition.

In his second issue, Appellant contends that the PCRA court erred by

dismissing his petition without an evidentiary hearing. “There is no absolute

right to an evidentiary hearing on a PCRA petition, and if the PCRA court can

determine from the record that no genuine issues of material fact exist, then

a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906

(Pa.Super. 2008). However, pursuant to Pa.R.Crim.P. 907, after the PCRA

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court has “review[ed] the petition, any answer by the attorney for the

Commonwealth, and other matters of record relating to the defendant’s

claim(s)” and

is satisfied from this review that there are no genuine issues

concerning any material fact and that the defendant is not entitled

to post-conviction collateral relief, and no purpose would be

served by any further proceedings, the judge shall give notice to

the parties of the intention to dismiss the petition and shall state

in the notice the reasons for the dismissal. . . .

Pa.R.A.P. 907(1) (emphasis added).

In its Pa.R.A.P. 1925(a) opinion, the PCRA court explained that dismissal

of the petition without an evidentiary hearing was warranted because

Appellant had failed to attach to his petition a signed certification regarding

each intended witness, with the witness’s name, address, date of birth, and a

summary of the witness’s testimony, as required by 42 Pa.C.S. § 9545(d)(1).

See PCRA Court Opinion, 2/1/18, at 10-11.2

Although the failure to include a certification is arguably fatal to the

claim, this Court has refused to affirm a PCRA court’s dismissal on the basis

of inadequate witness certifications where the PCRA court did not provide

notice of the alleged defect and provide an opportunity to amend the petition

to comply with section 9545(d)(1), and the petitioner’s claim “potentially has

____________________________________________

2 As Appellant’s ineffectiveness claim hinges on a purported conversation

between him and his attorney, wherein Appellant told counsel to file a petition

for allowance of appeal, it is unclear who Appellant would call as a witness

other than himself and, presumably, trial counsel.

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arguable merit.” See Commonwealth v. Lippert, 85 A.3d 1095, 1101

(Pa.Super. 2014). As stated by the Court in Lippert,

in both its Pa.R.Crim.P. 907(1) notice and its order formally

dismissing Appellant’s petition, the PCRA court stated only that

the petition lacked issues of arguable merit. The court made no

mention of Appellant’s deficient witness certification; as a result,

Appellant was not afforded the opportunity to amend his petition

to comply with Subsection 9545(d)(1). We, therefore, cannot

affirm the PCRA court’s order based upon the deficient

certification. [Commonwealth v.] Robinson, 947 A.2d [710,]

710-11 [(Pa. 2008) (per curiam order)].

Lippert, supra at 1098.

Here, as in Lippert, the PCRA court did not indicate in either its Rule

907 notice or its order dismissing the petition that the petition was

procedurally deficient for lack of a witness certification. Instead, the Rule 907

notice stated only that the amended petition was “undeveloped,”

“unsupported” and “meritless.” Pa.R.Crim.P. 907 Notice, 8/15/17, at 1. Thus,

the Rule 907 notice did not apprise Appellant of the absence of a signed

witness certification, a procedural defect that likely could have been cured.

Additionally, Appellant’s ineffectiveness claim potentially has arguable

merit. Our Supreme Court has ruled that counsel’s unjustified failure to file a

requested direct appeal is ineffective assistance of counsel per se and that an

appellant need not show that he likely would have succeeded on appeal in

order to meet the prejudice prong of the test for ineffectiveness. See

Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999). In

Commonwealth v. Liebel, 825 A.2d 630, 635 (Pa. 2003), our Supreme

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Court looked to the principles of Lantzy and the failure to file a direct appeal,

and applied them to the situation of the failure to file a petition for allowance

of appeal. See Liebel, supra at 634-36. The Supreme Court held that, in

presenting a PCRA claim of ineffective assistance of counsel for failing to file

a requested petition for allowance of appeal, an appellant need not show that

the petition would likely have been granted, but merely that the appeal was

requested and counsel failed to act. See id. at 635.

Here, Appellant pled that he requested counsel to file a petition for

allowance of appeal, and that counsel refused to do so. Amended PCRA

Petition, 6/28/16, at 9. If Appellant can prove that he timely requested

counsel to file a petition for allowance of appeal, and that counsel disregarded

that request, the claim would have arguable merit. See Lippert, supra.

Given our conclusion that Appellant’s claim of ineffective assistance of

counsel has arguable merit, we agree with Appellant that he was entitled to

an evidentiary hearing in order to attempt to prove his claim. We, therefore,

vacate the order dismissing Appellant’s PCRA petition, and remand the matter

to the PCRA court.3 That court shall permit Appellant to amend his petition to

comply with 42 Pa.C.S. § 9545(d)(1). Thereafter, the court shall schedule an

evidentiary hearing on the merits of Appellant’s claim detailed above. See

Lippert, supra.

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3As we vacate the PCRA court’s order and remand for an evidentiary hearing,

we do not address the remaining issue raised on appeal.

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Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/18

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