Brown, N. v. Tice, E.

J-S25004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NOEL BROWN : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

ERIC TICE : No. 1472 WDA 2021

Appeal from the Order Entered November 18, 2021

In the Court of Common Pleas of Somerset County Civil Division at

No(s): No 549 Civil 2021

BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 24, 2022

Appellant, Noel Brown, appeals pro se from the trial court’s November

18, 2021 order denying his petition for writ of habeas corpus. Appellant

contends his incarceration is illegal because he was ostensibly denied his right

to counsel at various stages of the trial proceedings in his underlying criminal

case. We affirm.

This Court previously summarized the facts and procedural history of

Appellant’s underlying criminal case, which was filed and prosecuted in the

Wayne County Court of Common Pleas, as follows:

The record reveals that on June 29, 2016, A.C., the fifteen-year-

old victim in this case, was reported as a runaway. A.C. had

answered an online advertisement seeking escorts and strippers.

On that day, A.C. left her mother’s house with Appellant. By

tracking A.C.’s cellular telephone, Pennsylvania State Police were

able to locate A.C. at a local motel. When the police arrived, they

noticed that A.C. appeared intoxicated; A.C. stated that Appellant

had given her vodka. The troopers transported A.C. to the State

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Police barracks and questioned her regarding the events of the

prior evening. A.C. told the troopers that she had answered an

online advertisement for escorts, and Appellant picked her up and

drove her to the motel. At the motel, Appellant provided A.C. with

liquor, and A.C. fell asleep. Police discovered that after A.C. fell

asleep, Appellant undressed A.C., exposed her breasts, took a

photograph of the minor’s breasts, and placed the photograph

online in an effort to utilize A.C. as a prostitute. Police also

recovered a document signed by A.C. wherein she agreed to work

for Appellant, and Appellant would act as her pimp.

Police arrested Appellant and charged him with numerous crimes

in connection with the aforementioned events. At the preliminary

hearing before a magisterial district judge, there was a colloquy

consistent with Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.

1998),1 and a thorough discussion of the factors outlined in

Pa.R.Crim.P. 121(A)(2) concerning pro se representation. N.T.,

7/18/16, at 8. At the subsequent hearing on pretrial motions,

Appellant informed the trial court that he remained steadfast in

his desire to represent himself. N.T., 10/3/16, at 4. The trial

court questioned Appellant, urged him to retain counsel, and

informed Appellant that the court would appoint counsel. Id.

Appellant reiterated that he would not accept counsel and would

represent himself. Id. The trial court ultimately permitted

Appellant to proceed pro se, but the trial court appointed standby

counsel. Id. Following a jury trial, Appellant was found guilty of

interference with custody of children, dissemination of photos of

child sex acts, corruption of minors, furnishing liquor to minors,

and trafficking [] minors.[1]

1 In Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.

1998), the Supreme Court of Pennsylvania held that when

a defendant wishes to waive counsel, an on-the-record

determination should be made that said waiver is knowing,

intelligent, and voluntary.

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118 Pa.C.S. § 2904(a), 18 Pa.C.S. § 6312(c), 18 Pa.C.S. § 6301(a)(1)(ii), 18

Pa.C.S. § 3011(b), and 18 Pa.C.S. § 6310.1(a), respectively.

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Commonwealth v. Brown, No. 649 EDA 2017, unpublished memorandum

at 1-3 (Pa. Super. filed Oct. 23, 2017) (some citations to the record and two

footnotes omitted).

On February 3, 2017, the Wayne County trial court sentenced Appellant

to an aggregate term of 180 to 384 months’ incarceration. He filed a timely,

pro se appeal, and we affirmed his judgment of sentence after concluding that

Appellant had waived his issues for our review due to the “overwhelming

deficiencies” in his pro se brief. Id. at 4.

In 2018, Appellant filed a pro se petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was appointed and

subsequently filed a ‘no-merit’ letter and petition to withdraw. The PCRA court

ultimately dismissed Appellant’s petition and granted counsel leave to

withdraw. Appellant filed a timely, pro se appeal, but we dismissed his appeal,

again on the basis that Appellant had filed a wholly deficient brief. See

Commonwealth v. Brown, 2388 EDA 2019, unpublished memorandum at

6-7 (Pa. Super. filed Mar. 24, 2020).

Appellant, who is currently serving his sentence in the State Correctional

Institution at Somerset (“SCI Somerset”), filed a petition for writ of habeas

corpus on September 30, 2021, in the Court of Common Pleas of Somerset

County. Appellant named Eric Tice — the purported warden of SCI Somerset

— as the respondent, and vaguely claimed that Tice was illegally detaining

him. On October 19, 2021, the trial court denied the petition, without

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prejudice, based on Appellant’s failing to set forth specific facts to make out a

prima facie case for the issuance of the writ.

On November 2, 2021, Appellant again filed, in the Somerset County

Court of Common Pleas, a petition for writ of habeas corpus, which he

construed as an amendment to his prior-filed petition. Therein, Appellant

raised various new claims, including, inter alia, that his rights to a speedy and

public trial were violated, that his due process rights were violated by a

suggestive identification procedure, that certain evidence should have been

suppressed at trial, that the trial court erred by not granting Appellant’s

request for a continuance at one point during the trial, and that the jury voir

dire process was invalid. On November 18, 2021, the court denied Appellant’s

petition. He filed a timely, pro se notice of appeal on December 8, 2021. In

his subsequently-filed, pro se brief (which does not adhere to the Rules of

Appellate Procedure in any meaningful fashion), Appellant seemingly raises a

wholly new claim that he was denied his right to counsel at various stages of

his criminal prosecution and, thus, that his incarceration is illegal.

Initially, the PCRA provides “the sole means of obtaining [post-

conviction] collateral relief and encompasses all other common law and

statutory remedies for the same purpose that exist…, including habeas corpus

and coram nobis.” 42 Pa.C.S. § 9542; see also Commonwealth v. Fowler,

930 A.2d 586, 591 (Pa. Super. 2007) (“It is equally well-settled that the PCRA

provides the sole means for obtaining collateral review, and that any petition

filed after the judgment of sentence becomes final will be treated as a PCRA

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petition”) (internal citation omitted). Furthermore, Pennsylvania Rule of

Criminal Procedure 901(B) states that “[a] proceeding for post-conviction

collateral relief shall be initiated by filing a petition and 3 copies with the

clerk of the court in which the defendant was convicted and

sentenced.” Pa.R.Crim.P. 901(B) (emphasis added). Pennsylvania Rule of

Criminal Procedure 902(A) requires that the petition shall bear the caption of

the case in which relief is requested.

Here, Appellant’s petition for writ of habeas corpus raises collateral

attacks on the validity of his underlying criminal conviction that are cognizable

under the PCRA. It must, therefore, be considered a PCRA petition pursuant

to Fowler, supra. Notably, Appellant incorrectly filed his PCRA petition in the

Court of Common Pleas of Somerset County, where he is currently serving his

sentence, rather than in the Court of Common Pleas of Wayne County, in

which he was convicted and sentenced. Appellant also mislabeled the caption

of his petition, naming Eric Tice as the respondent, rather than providing the

caption of his underlying criminal case in which he is seeking the requested

relief. Accordingly, the Somerset County Court of Common Pleas could not

have jurisdiction to grant Appellant PCRA relief from his conviction in the

Wayne County Court of Common Pleas.2

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2 Moreover, because Appellant was sentenced in 2017, and his present PCRA

petition was not filed until 2021, it is patently untimely, and he must plead

and prove the applicability of one of the exceptions to the PCRA’s one-year

time-bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant failed to meet this

(Footnote Continued Next Page)

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2022

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burden in his pro se petition. Thus, even if the Somerset County Court of

Common Pleas was the proper court in which to file Appellant’s petition, it

lacked jurisdiction to grant him post-conviction relief. See Commonwealth

v. Lawson, 90 A.3d 1, 8 (Pa. Super. 2014) (“Because the instant PCRA

petition was untimely and no exceptions apply, the PCRA court lacked

jurisdiction to address the claims presented and grant relief.”) (citing

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that the PCRA court lacks jurisdiction to hear untimely petition). Likewise,

this Court lacks jurisdiction to consider the merits of Appellant’s appeal from

the denial of his untimely petition. Id. (citing Commonwealth v. Johnson,

803 A.2d 1291, 1294 (Pa. Super. 2002) (holding that the Superior Court lacks

jurisdiction to reach merits of appeal from untimely PCRA petition)).

Accordingly, we would affirm the order denying Appellant post-conviction

relief on this basis, as well.

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