Com. v. Donahue, S. ( 2023 )

J-A04032-23, J-A04036-23, J-A04040-23, J-A04042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN DONAHUE :
:
Appellant : No. 1876 MDA 2018
Appeal from the Order Entered November 1, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003501-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN DONAHUE :
:
Appellant : No. 1647 MDA 2019
Appeal from the Order Entered September 24, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003501-2012
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SEAN DONAHUE :
: No. 566 MDA 2021
Appellant
J-A04036-23
Appeal from the Order Entered April 5, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003501-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN DONAHUE :
:
Appellant : No. 743 MDA 2022
Appeal from the Order Entered February 9, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003501-2012
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM PER CURIAM: FILED MARCH 09, 2023
We address together these four appeals, taken by serial pro se filer Sean
Donahue (Appellant), from orders entered between 2018 and 2022 at the
same criminal docket in the Luzerne County Court of Common Pleas.1
____________________________________________
1 Throughout this matter, Appellant has inundated the courts with numerous
filings, each lengthy and including hundreds of pages of attachments. The
trial docket spans 89 pages. The briefs for three of these appeals, together
with their exhibits, each exceed 600 pages; the brief, with attachments, for
743 MDA 2022 alone is 1,778 pages long.
Appellant has previously taken five appeals in this matter, all of which
were dismissed or quashed. See 1623 MDA 2018 (Pa. Super. Dec. 28, 2018
order) (quashing appeal from non-final June 14, 2018, trial court order
denying “motion for return of all civil rights”); 364 MDA 2019 (Pa. Super.
Dec. 10, 2019 order) (quashing appeal from same June 14, 2018, trial court
(Footnote Continued Next Page)
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Appellant seeks relief after a jury found him guilty of one count of terroristic
threats,2 on July 10, 2017, and the court imposed a sentence of 120 days to
23 months’ imprisonment on September 18, 2017. At Docket No. 1876 MDA
2018, contemporaneous with the appeal, counsel for Appellant, Mary Deady,
Esquire, seeks permission to withdraw from representation pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).3 Based on the following, we grant
counsel's petition to withdraw and affirm the court’s order. At the remaining
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order, which had been entered on trial docket a second time); 1608 MDA
2019 (Pa. Super. Feb. 20, 2020 order) (dismissing as duplicative of appeal at
1647 MDA 2019); 150 MDA 2021 (Pa. Super. Mar. 29, 2021 order) (quashing
appeal from non-final January 4, 2021, order denying motion for extension of
time to file a post-conviction relief petition); 926 MDA 2022 (Pa. Super. Jul.
26, 2022 order) (dismissing as duplicative of appeal at 743 MDA 2022).
Additionally, currently before this panel are Appellant’s eight pro se
appeals relating to his harassment convictions in the Dauphin County Court of
Common Pleas at Docket No. CP-22-CR-0003716-2015. See 1168 MDA
2018, 920 MDA 2019, 1179 MDA 2019, 1582 MDA 2019, 589 MDA
2020, 947 MDA 2020, 502 MDA, 182 MDA 2022. In that matter, Appellant
sent four threatening email messages to approximately 50 individuals,
including employees of the Pennsylvania Department of Labor, which included
statements like, “I will pursue punishment of you,” and “You won’t have to
explain to a judge how you rectify me having spent so much money on civil
court actions instead of just buying a $200 gun and $20 box of ammunition
and killing your employees . . . .” Commonwealth v. Donahue, 1469 MDA
2016 (unpub. memo. at 2) (Pa. Super. June 5, 2017) (direct appeal), appeal
denied, 610 MAL 2017 (Pa. Jan. 30, 2018).
2 18 Pa.C.S. § 2706(a)(1).
3As will be discussed in detail below, Attorney Deady adopted prior counsel’s
Anders brief.
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dockets, Docket Nos. 1647 MDA 2019, 566 MDA 2021, 743 MDA 2022, we
affirm the orders denying Appellant’s multiple petitions for writ of coram nobis
and Post Conviction Relief Act (PCRA)4 relief, on the ground he is no longer
serving his sentence.5 Appellant has also filed four applications for relief6 with
this Court at Docket Nos. 1647 MDA 2019 and 743 MDA 2022; we deny all of
them.
I. 2017 Trial, Judgment of Sentence, & Subsequent Proceedings
The underlying charges arose from Appellant’s sending, in August of
2012, an email message to the Luzerne County District Attorney, threatening
to “essentially engage in a gun fight with police officers[ ] if the District
Attorney does not do as he desires[, and stating] people will be killed if he
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4 42 Pa.C.S. §§ 9541-9546.
5 See 42 Pa.C.S. §§ 9542 (PCRA “shall be the sole means of obtaining
collateral relief and encompasses all other common law . . . remedies . . .
including . . . coram nobis.”), 9543(a)(1)(i) (to be eligible for PCRA relief,
petitioner must be “currently serving a sentence of imprisonment, probation
or parole for the crime”).
6 Specifically, Appellant filed: (1) an “Application for Relief Per Pa.R.A.P.
1926(b)(1) to Supplement the Certified Trial Court Record with the Attached
Copy of the Trial Exhibits and Trial Transcript, which Indexes the Exhibits” on
January 22, 2023 at Docket No. 743 MDA 2022; (2) a “Notice to the Superior
Court Regarding Appellant’s January 25, 2022 Request to the Trial Court
Regarding Trial Exhibits” on February 2, 2023, also at Docket No. 743 MDA
2022; (3) a “Second Notice to the Superior Court Regarding Appellant’s
January 25, 2022 Request to the Trial Court Regarding Trial Exhibits” on
February 8, 2023, also at Docket No. 743 MDA 2022; and (4) an “Application
for Relief” on February 6, 2023, at Docket No. 1647 MDA 2019. We will
dispose of these applications concertedly with their related appeals.
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does not get the actions that he demands.” Commonwealth v. Donahue,
1949 MDA 2017 (unpub. memo. at 1-2) (Pa. Super. Aug. 22, 2018) (direct
appeal), appeal denied, 753 MAL 2018 (Pa. Apr. 23, 2019), cert. denied, 19-
5808 (U.S. Oct. 15, 2019). Appellant continued to send additional e-mails to
the District Attorney, which contained “threats of violence towards
government employees and police officers.” Id.
The Commonwealth charged Appellant with terroristic threats and
harassment. Subsequently, Appellant filed a writ of habeas corpus to dismiss
the charges. On October 28, 2013, the trial court dismissed the charges, to
which the Commonwealth filed an appeal. A panel of this Court affirmed the
dismissal of the harassment charge, but reversed the dismissal of the
terroristic threats charge, and remanded the matter to the trial court for
further proceedings. See Commonwealth v. Donahue, 2184 MDA 2013
(Pa. Super. May 19, 2015) (unpub. memo. at 8-19), appeal denied, 660 MAL
2015 (Pa. Dec. 22, 2015).
As noted above, on July 10, 2017, a jury found Appellant guilty of
terroristic threats. On September 18, 2017, the trial court sentenced him to
a term of 120 days to 23 months’ imprisonment, with 280 days credit for time
served, and he was immediately paroled. See Donahue, 1949 MDA 2017
(unpub. memo. at 6). Thereafter, Matthew P. Kelly, Esquire, was appointed
as Appellant’s conflict counsel. Appellant filed a post-sentence motion, which
the court denied on December 7, 2017. Appellant filed a direct appeal, and
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Attorney Kelly filed a petition to withdraw as counsel and an accompanying
brief pursuant to Anders. This Court affirmed the judgment of sentence on
August 22, 2018, and granted Attorney Kelly’s motion to withdraw.
Donahue, 1949 MDA 2017. Appellant filed a petition for reargument, which
was denied on October 17, 2018. The Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on April 23, 2019, and the United
States Supreme Court denied his petition for writ of certiorari on October 15,
2019.
In the interim, Appellant filed a pro se motion for stay of sentence on
October 9, 2018, “so that he will still be able to file a PCRA Petition and so
that [he] will not be time barred.” Appellant’s Motion for Stay of Sentence,
10/9/18, at 1. On October 31, 2018, the trial court held a hearing on the
motion. Appellant and Attorney Kelly were both present at the proceeding.
Attorney Kelly stated that his appearance was due to “a procedural
quagmire[,]” because while he had been granted the motion to withdraw as
to Appellant’s direct appeal, he was “still counsel of record” as to Appellant’s
“pending appeal for return of property[.]” N.T., 10/31/18, at 3-4.7 For
purposes of these appeals, and as will be discussed supra, it appears Attorney
Kelly was also considered counsel of record in relation to Appellant’s motion
____________________________________________
7 That matter regarding the return of property is not before us.
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for stay of sentence. See id. at 19 (“THE COURT: But you’re not representing
him because you’re out of the case. [Attorney Kelly]: I’m back in, Judge.”).
The following day, the trial court entered an order, denying Appellant’s
motion for the following reasons:
1. A serious question exists as to whether we have jurisdiction to
even consider this motion in light of the fact that [Appellant] has
a petition for allowance of appeal pending before the
[Pennsylvania] Supreme Court from the denial of his direct
appeal.
2. While it might be a difficult decision for him, [Appellant] does
have the ability to preserve his PCRA rights by withdrawing his
motion for allowance of appeal to the Supreme Court and filing a
PCRA petition prior to November [21], 2018, which all counsel
seem to agree is the max[imum] date of his existing sentence.
Order of Court, 11/1/2018, at 1-2 (unpaginated). Appellant appealed from
the trial court’s order, which is currently docketed before this panel at No.
1876 MDA 2018.
Since then, Appellant has filed copious petitions advancing various
grievances. The remaining three appeals (Docket Nos. 1647 MDA 2018, 566
MDA 2021, 743 MDA 2022) are taken from orders, entered between August
2019 and February 2022, denying relief as to Appellant’s multiple petitions for
writ of coram nobis. Appellant’s numerous appeals have resulted in the
transmittal, back and forth, of the certified record between the trial court and
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this Court. This Court directed that his related appeals be listed consecutively,
and they are now before this merits panel.8
Upon informal inquiry by this panel, the trial court provided a letter from
the Luzerne County Department of Probation Services (DPS), explaining that
Appellant completed serving his supervision (or sentence) on November 21,
2018.9 See Letter from Briana Cantwell, Luzerne County Department of
Probation Services, 1/26/23.
II. 1876 MDA 2018
November 1, 2018, Denial of Motion for Stay of Sentence, Anders
Brief, & Counsel’s Motion to Withdraw
As mentioned, Appellant filed a pro se notice of appeal regarding the
trial court’s November 1, 2018, order denying his motion to stay of his
sentence. He then filed a pro se application for the appointment of new
counsel which this Court denied without prejudice to seek relief in the trial
court. See Order, 12/21/18. On January 10, 2019, Attorney Kelly filed an
Anders brief and an application to withdraw as counsel. On January 30, 2019,
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8 This Court previously continued oral argument for these matters on
December 10, 2021. See Order, 12/10/21. Appellant asked for a second
continuance on January 29, 2023. We denied his request. See Order, 2/6/23.
9 At the October 31, 2018, hearing, the trial court indicated Appellant’s
maximum sentence date was November 12, 2018, as opposed to November
21st, as stated in the DPS letter. See N.T., 10/31/18, at 17. The discrepancy
of nine days does not affect our analysis, but we will apply the later date to
our analysis.
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this Court issued a rule to show cause (RTSC) why the appeal should not be
quashed as interlocutory. See Order, 1/30/19. Appellant filed a pro se
response to the RTSC, which was forwarded to Attorney Kelly. See Jette10
Letter Sent to Counsel, 2/4/19. On February 8, 2019, Attorney Kelly also filed
a response to the RTSC, which merely stated: “[A]ppellant alleges that said
Order is a final Order of Court and that this matter is ripe for disposition.” See
Attorney Kelly’s Response to Rule to Show Cause, 2/8/19.
During this time, on December 31, 2018, Appellant filed a pro se request
for the appointment of new counsel in the trial court. The trial court entered
an order on February 5, 2019, in response to Appellant’s request, which
removed Attorney Kelly and appointed Attorney Deady to represent Appellant.
In light of the trial court’s February 5th order, this Court denied Attorney
Kelly’s petition to withdraw as counsel as moot. See Order, 2/15/19. On
March 5, 2019, we directed Attorney Deady to enter her appearance in this
Court, to respond to the RTSC, and to advise the Court whether she intends
to rely on the Anders brief filed by Attorney Kelly or file a new brief. See
Order, 3/5/19.
On March 15, 2019, Attorney Deady filed a response to the RTSC,
stating that pursuant to Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013),
Appellant was entitled to unitary review of both his direct appeal and PCRA
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10 Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).
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issues as he met the exception of a short sentence, and therefore, a claim
that Attorney Kelly was ineffective had arguable merit, but did not satisfy the
remaining requirements for obtaining ineffective assistance of counsel relief.11
See Appellant’s Response as to Why Appeal Should Not Be Quashed, 3/15/19,
at 4-5. Specifically, Attorney Deady stated that: (1) the record was not
developed enough and, therefore, did not support the claim that counsel
lacked a reasonable strategic basis for his actions; (2) she was not aware of
any law or rule of appellate procedure that would provide for simultaneous
jurisdiction over the issue of judgment of sentence at both the trial court and
appellate level; and (3) Appellant was no longer serving his sentence and,
consequently, there would be no point to staying his sentence. Id. at 5-6.
Attorney Deady stated that she would rely on prior counsel’s Anders brief and
“would concur that this appeal should be quashed as interlocutory.” Id. at 6.
The following day, Appellant filed a pro se answer to Attorney Deady’s
reply. On April 3, 2019, this Court discharged the RTSC and referred the issue
to the merits panel. The matter went dormant until October 8, 2021, when
this Court directed Attorney Deady to file a separate petition to withdraw as
counsel — because we had denied Attorney Kelly’s withdrawal motion as moot
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11 Counsel is presumed effective, and to overcome that presumption, a
petitioner must plead and prove: (1) the underlying claim has arguable merit;
(2) counsel lacked a reasonable basis for his act or omission; and (3)
petitioner suffered actual prejudice. Commonwealth v. Treiber, 121 A.3d
435, 445 (Pa. 2015). A claim will be denied if the petitioner fails to meet any
one of these prongs. See id.- 10 -
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— and Attorney Deady complied on October 8, 2021.12 The matter is now
properly before us.
Appellant presents, via counsel’s Anders brief, the following issue for
our review:
I. Whether trial court has jurisdiction and authority to consider
Appellant’s Motion for Stay of Sentence[?]
Anders Brief at 1.
When, as here, Attorney Deady files a petition to withdraw and
accompanying Anders brief, we must first examine the request to withdraw
before addressing any of the substantive issues raised on appeal.
Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An
attorney seeking to withdraw from representation on appeal must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, an Anders brief must also:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
____________________________________________
12 Notably, Appellant filed a pro se answer to Attorney Deady’s application to
withdraw, which was 649 pages in length. See Appellant Response to
Incorrect Claims Made by [Attorney] Deady in her October 8, 2021 Application
to Withdraw, 10/19/21.
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counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Id., quoting Santiago, 978 A.2d at 361.
In the present case, both Attorney Kelly and Attorney Deady filed
petitions for leave to withdraw on January 10, 2019 and October 8, 2021,
respectively.13 In Attorney Deady’s petition, she averred she reviewed the
record and determined “this appeal is wholly frivolous and that no meritorious
issues exist.” Attorney Deady’s Petition to Withdraw as Counsel, 10/8/21, at
1 (unpaginated). While Attorney Deady’s petition did not include a copy of
any letter to Appellant advising him of his appellate rights, we presume he
received the document because he filed a response to it on October 19, 2021.
See Appellant’s Response to Incorrect Claims Made by [Attorney] Deady in
her October 8, 2021 Application to Withdraw, 10/19/21. Moreover, Attorney
Kelly had sent a letter to Appellant, advising him of his right to proceed with
newly retained counsel or pro se, and to raise any additional points deemed
worthy for this Court’s attention. See Attorney Kelly’s Letter to Appellant,
1/9/19 at 1 (unpaginated); see also Commonwealth v. Millisock, 873 A.2d
748 (Pa. Super. 2005).
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13 Based on history of this case, we find it necessary to review both attorneys’
filings.
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The Anders brief raises the “stay of sentence” challenge, as well as
counsel’s reasons why the issues would be wholly frivolous. See Anders Brief
at 6-8. Appellant filed a pro se response to the brief on February 28, 2019,
and on March 16, 2019, after Attorney Deady indicated that she would rely on
Attorney Kelly’s brief. Accordingly, we determine Attorney Deady has
complied with the technical requirements of Anders and Santiago. See
Cartrette, 83 A.3d at 1032.
We now review the issue presented in the Anders brief and conduct an
independent review of the record to discern if there are non-frivolous issues.
See Commonwealth v. Ziegler, 112 A.3d 656, 660 (Pa. Super. 2015). We
conclude there are none.
Appellant claims that the trial court erred by denying his motion for stay
of sentence. See Anders Brief at 6. Appellant sought the stay of sentence
because: (1) his time for filing a PCRA petition was limited since his sentence
was to expire approximately one month later; (2) his direct appeal was still
ongoing but he wanted the opportunity to file a PCRA petition; (3) there were
“many issues that were deemed by the trial court to be matters that must
wait, until after the [d]irect [a]ppeal is complete and the PCRA phase of the
case is initiated, [which] could have actually been simultaneously considered
during the [d]irect [a]ppeal process.” Appellant’s Motion for Stay of Sentence,
10/9/18, at 1-2.
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A review of the record reveals that at the October 2018 hearing on the
matter, both counsel for Appellant and the Commonwealth indicated there
were two appellate matters pending — the petition for allowance of appeal
before the Pennsylvania Supreme Court as to the denial of Appellant’s direct
appeal as well as an appeal before this Court relating to Appellant’s motion
for a return of property. N.T., 10/31/18, at 4, 6. Furthermore, the parties
and the court acknowledged Appellant’s sentence would be completed in mid-
November 2018. Id. at 10. Moreover, Attorney Kelly indicated that Appellant
“could withdraw his appeal and deal with the PCRA. I’ve seen that happen all
the time. Because you can’t address the PCRA while there’s an appeal
pending. . . . That’s the only way to do it, I think.” Id. at 7.
Appellant’s argument fails for several reasons. First, pursuant to
Pennsylvania Rule of Appellate Procedure 1701(a), “after an appeal is taken
or review of a quasijudicial order is sought, the trial court . . . may no longer
proceed further in the matter.” Pa.R.A.P. 1701(a); see Commonwealth v.
Smith, 244 A.3d 13, 17 (Pa. Super. 2020) (“Once an appeal is filed, a trial
court has no jurisdiction to proceed further in the matter, absent limited
exceptions not applicable here.”). Accordingly, here, the court lacked
jurisdiction to review a PCRA petition while Appellant’s direct appeal was still
pending. See Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super.
2000) (“A PCRA petition may only be filed after an appellant has waived or
exhausted his direct appeal rights.”); see also Commonwealth v. Williams,
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215 A.3d 1019, 1023 (Pa. Super. 2019) (explaining that “[i]f a petition is filed
while a direct appeal is pending, the PCRA court should dismiss it without
prejudice towards the petitioner’s right to file a petition once his direct appeal
rights have been exhausted”) (citation omitted).
Indeed, as Attorney Kelly pointed out at the hearing, Appellant could
have withdrawn his direct appeal and then filed a PCRA petition, thereby,
preserving and protecting his purported PCRA claims. He has presented no
law to support his contention that he may proceed on both a direct appeal and
a PCRA review simultaneously.14
Second, when a defendant completes a sentence, he is no longer subject
to any direct criminal or civil consequences thereto, and thus any challenge to
the sentence is incapable of review and moot. See Commonwealth v.
Schmohl, 975 A.2d 1144, 1149 (Pa. Super. 2009); Commonwealth v. King,
786 A.2d 993, 996-97 (Pa. Super. 2001). As stated above, the Luzerne
County DPS confirmed that Appellant completed his sentence in November of
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14 It merits mention that Holmes, which Appellant references, does not stand
for the proposition that an appellant may pursue a direct appeal and a PCRA
petition at the same time. Rather, Holmes held that a trial court retained
discretion to entertain ineffectiveness claims on post-verdict motions and
direct appeal “only if (1) there is good cause shown, and (2) the unitary review
so indulged is preceded by the defendant’s knowing and express waiver of his
entitlement to seek PCRA review from his conviction and sentence, including
an express recognition that the waiver subjects further collateral review to the
time and serial petition restrictions of the PCRA.” Holmes, 79 A.3d at 564
(footnotes omitted).
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2018. Accordingly, we deem Appellant’s present appeal is moot. See id.Moreover, our independent review of the record reveals no non-frivolous
issues to be raised on appeal. See Ziegler, 112 A.3d at 660.
In sum, we agree with Attorney Deady that Appellant’s desired issue is
frivolous, and conclude the record reveals no other potential, non-frivolous
issue for appeal at Docket No. 1876 MDA 2018. Accordingly, we grant
Attorney Deady’s petition to withdraw from representation and affirm the
November 1, 2018, order denying his motion for stay of sentence.
III. 1647 MDA 2019, 566 MDA 2021, & 743 MDA 2022
For ease of discussion, we review Appellant’s ensuing filings in
chronological order. All of them were filed after he had filed the above appeal,
1876 MDA 2018, and after he completed his sentence.
A. PCRA Standard of Review & Eligibility for Relief
We first note: “Our standard of review of the denial of a PCRA petition
is limited to examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.”
Commonwealth v. Beatty, 207 A.3d 957, 960-61 (Pa. Super. 2019).
The PCRA “shall be the sole means of obtaining collateral relief and
encompasses all other common law . . . remedies . . . including . . . coram
nobis.” 42 Pa.C.S. § 9542.
“To be eligible for [PCRA] relief[,] the petitioner must plead and prove
by a preponderance of the evidence” they are “currently serving a sentence
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of imprisonment, probation or parole for the crime[.]” 42 Pa.C.S. §
9543(a)(1)(i). Additionally, as stated above:
Pennsylvania law makes clear the trial court has no jurisdiction to
consider a subsequent PCRA petition while an appeal from the
denial of the petitioner’s prior PCRA petition in the same case is
still pending on appeal. A petitioner must choose either to appeal
from the order denying his prior PCRA petition or to file a new
PCRA petition; the petitioner cannot do both, . . . because
“prevailing law requires that the subsequent petition must give
way to a pending appeal from the order denying a prior petition.”
If the petitioner pursues the pending appeal, then the PCRA court
is required . . . to dismiss any subsequent PCRA petitions filed
while that appeal is pending.
Beatty, 207 A.3d at 961 (citations omitted & paragraph break added).
B. 1647 MDA 2019
September 24, 2019, Order Denying Petition for Writ of Coram Nobis
On August 26, 2019, Appellant filed a pro se document entitled: “I.
Addendum to Transcription of October 3, 2012 Preliminary Hearing Transcript;
II. Petition for Writ of Coram Nobis (New Transcript); III. Petition for Writ of
Habeas Corpus (New Transcript).” Appellant raised the issue of “after-
discovered evidence,” and sought relief under 42 Pa.C.S. §§ 9542,
9543(a)(2)(i), (ii), (iv), (vi), and 9545(b)(1)(i)-(ii), (b)(2). See Appellant’s
Petition for Writ of Coram Nobis, 8/26/19, at 26-27. On September 24, 2019,
the trial court denied the petition, stating: “Initially, we decline to take action
based on our belief that [Appellant] is no longer serving a sentence. With
respect to the merits of the [p]etition, we are satisfied beyond any doubt that
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the new ‘evidence’ would not have had any effect on the jury’s verdict.” Order,
9/24/19.15
At this juncture, we note that Appellant filed his petition while his direct
appeal was still pending before the United States Supreme Court, which did
not deny his petition for writ of certiorari until October of 2019. Based on this
procedural detail, it appears the trial court, in its subsequent opinion,
however, suggested: “A remand is necessary to vacate [its] September 24,
2019, [o]rder denying [Appellant]’s [p]etition for [w]rit of [c]oram [n]obis and
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15 During this time, Appellant filed several more pro se coram nobis petitions;
(1) May 30, 2019, petition for writ of coram nobis; (2) June 13, 2019,
corrected petition for writ of coram nobis; (3) July 10, 2019, petition for writ
of coram nobis; (4) July 15, 2019, petition for writ of coram nobis III and
petition for writ of habeas corpus II; and (5) July 25, 2019, petition for writ
of habeas corpus III. Appellant mistakenly believed that the September 24,
2019, order denied all of these petitions. As such, he filed a single notice of
appeal at Docket No. 1608 MDA 2019, purporting to appeal from the denial of
all the petitions. He later filed new notices of appeal at 1640-1647 MDA 2019.
The trial court clarified that its September 24th order denied only his
August 26, 2019, petition. On December 16, 2019, this Court directed
Appellant to show cause why the appeal at 1608 MDA 2019 should not be
quashed (1) as non-complaint with Pa.R.A.P. 341 because on its face, the
notice of appeal appeared to be appealing from nine separate orders, and (2)
as duplicative of the present appeal. See Order, 12/16/19. Appellant filed a
response, admitting that the appeals were identical and did not object to 1608
MDA 2019 being quashed.
By separate orders, this Court quashed the appeal at 1608 MDA 2019
and directed that Appellant be permitted to file a Pa.R.A.P. 1925(b) concise
statement and that the trial court file a supplemental opinion. See Orders,
2/20/20. Appellant filed his concise statement on February 26, 2020, and the
trial court filed a supplemental opinion on August 27, 2020.
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reconsider [his] [p]etition . . . as a [p]etition under the [PCRA].” Trial Ct. Op.,
8/27/20, at 3 (unpaginated). The court further noted: “All of [Appellant]’s
claims are cognizable under the PCRA as they seek relief from his judgment
of sentence after it became final and involve claims that should be brought in
a PCRA petition.” Id. at 4 (unpaginated).16 We conclude that no relief is due.
First, regardless of Appellant’s titling his filing as a petition for writ of
coram nobis, the claims presented were cognizable under the PCRA, and thus
“the PCRA [was] the only method of obtaining” the requested review. See 42
Pa.C.S. § 9542 (PCRA “shall be the sole means of obtaining collateral relief
and encompasses all other common law . . . remedies . . . including . . . coram
nobis.”), Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016)
(“[P]ursuant to the plain language of Section 9542, where a claim is
cognizable under the PCRA, the PCRA is the only method of obtaining collateral
review.”). As such, the court correctly treated this petition as a PCRA petition
in its September 24th order and denied relief because Appellant was no longer
____________________________________________
16 By letter filed August 19, 2021, the trial court again requested that this
Court remand the matter so that the petition at issue could be addressed
pursuant to the PCRA. See Letter from Senior Judge Stephen B. Lieberman
to Superior Court, 8/19/21, at 1 (unpaginated). The next day, Appellant filed
a pro se response in opposition to the remand. Three days later, this Court
directed the Commonwealth to show cause why the appeal should not be
remanded. See Order, 8/24/21. The Commonwealth filed a response,
explaining that that it understood the trial court’s position but noting that the
trial court lacked jurisdiction to proceed under the PCRA while the record
remained with this Court. See Commonwealth’s Answer to Rule to Show
Cause Order, 8/25/21, at 1-2.
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serving his sentence when he filed the petition. See 42 Pa.C.S. §
9543(a)(1)(i) (to be eligible for PCRA relief, petitioner must be “currently
serving a sentence of imprisonment, probation or parole for the crime”).
Indeed, this Court has previously opined:
[T]he Pennsylvania Supreme Court has held that, to be eligible for
relief under the PCRA, the petitioner must be “currently serving a
sentence of imprisonment, probation or parole for the crime.” 42
Pa.C.S. § 9543(a)(1)(i). As soon as his sentence is completed,
the petitioner becomes ineligible for relief, regardless of whether
he was serving his sentence when he filed the petition. In
addition, this court determined in Commonwealth v. Fisher,
703 A.2d 714 (Pa. Super. 1997), that the PCRA precludes relief
for those petitioners whose sentences have expired, regardless of
the collateral consequences of their sentence.
Commonwealth v. Hart, 911 A.2d 939, 941-42 (Pa. Super. 2006).
Accordingly, we discern that a remand is not necessary as the trial court did
not err in its denial of PCRA relief.17
Second, it appears Appellant was represented by counsel during this
time,18 and therefore, the denial of relief was also proper under our long
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17 Moreover, Appellant improperly filed this petition while his direct appeal was
still pending. See Williams, 215 A.3d at 1023. He should have withdrawn
his direct appeal with the United States Supreme Court if he wanted to pursue
his petition.
18 It merits repeating the trial court entered an order on February 5, 2019,
which removed Attorney Kelly and appointed Attorney Deady to represent
Appellant as to his motion for stay of sentence. Appellant filed his pro se
petition approximately six months later. The court copied Attorney Deady and
Attorney Kelly on its September 24, 2019, order and its August 27, 2020,
opinion.
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standing policy precluding hybrid representation. The Pennsylvania Supreme
Court has explained:
[A] defendant in a criminal case may not confuse and overburden
the courts by filing his own pro se briefs at the same time his
counsel is filing briefs for him
* * *
[This] rationale . . . applies equally to PCRA proceedings[.]
We will not require courts considering PCRA petitions to struggle
through the pro se filings of defendants when qualified counsel
represent those defendants. . . .
Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999). See also
Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[T]he proper
response to any pro se pleading is to refer the pleading to counsel, and to
take no further action on the pro se pleading unless counsel forwards a
motion.”).19 Again, we reiterate that Appellant completed serving his
sentence as of November 2018 — approximately ten months before he filed
this petition. Accordingly, Appellant is not entitled to relief, and the court
properly denied Appellant’s August 26, 2019, petition.
____________________________________________
19 Even if Appellant was not represented by counsel at the time, Pennsylvania
Rule of Criminal Procedure Rule 904, which requires the PCRA court to appoint
counsel to represent an appellant in his first petition, would not be applicable.
In Hart, supra, a panel of this Court held: “Although it is axiomatic that a
first-time PCRA petitioner is entitled to assistance of counsel, regardless of
whether or not the petition is timely on its face, the failure to appoint
counsel is not reversible error where the petitioner’s sentence has
expired.” Hart, 911 A.2d at 942 (emphasis added).
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At this Superior Court docket, on February 6, 2023, Appellant filed with
this Court an application for relief. He attached a copy of his August 26th
petition “with the intent of making it easier for [this] Court to identify the
underlying petition in the original record.” See Application for Relief, 2/6/23,
at 1. As this Court located the petition in the certified record, despite
Appellant’s voluminous filings, we deny this application as moot.
C. 566 MDA 2021
April 5, 2021, Order Denying Petition for Writ of Coram Nobis
On March 16, 2021, Appellant filed a document entitled “Petitions for
Writ of Coram Nobis, Habeas Corpus, Equitable Relief and Attachments.” The
trial court denied this petition on April 5, 2021, stating it was without
jurisdiction to consider the petition “as the appeal in this case was still pending
before the Superior Court of Pennsylvania.” Order, 4/5/21.
We conclude Appellant was not entitled to relief on the March 16, 2021,
PCRA petition, because he had completed serving his sentence and an appeal
from the denial of a prior PCRA petition was pending. See 42 Pa.C.S. §
9543(a)(1)(i); Beatty, 207 A.3d at 961. We thus affirm the trial court’s order.
Furthermore, we note that Appellant’s March 16th PCRA petition appears
to be untimely. “The PCRA’s time restrictions are jurisdictional in nature, and
a court may not entertain untimely PCRA petitions.” Commonwealth v.
Burton, 158 A.3d 618, 627 (Pa. 2017). Here, Appellant’s judgment of
sentence became final on October 15, 2019, when the United States Supreme
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Court denied his petition for writ of certiorari. See 42 Pa.C.S. § 9545(b)(3).
Appellant then had one year from that date to file a PCRA petition. See 42
Pa.C.S. § 9545(b)(1). Thus, this March 6, 2021, PCRA petition was facially
untimely.
D. 743 MDA 2022
February 9, 2022, Order Denying Petition for Writ of Coram Nobis
On February 2, 2022, Appellant filed a document entitled “Petition for
Writ of Coram Nobis, Habeas & Equitable Relief & Application for Relief.” In
this petition, he alleges that the email that he sent to the District Attorney,
which led to his underlying conviction, qualifies as “free speech” and there
were “inaccuracies within the four corners of the charging documents [which
gave] rise to a legitimate material challenge to the content within the four
corners of the charging documents.” Appellant’s Petition for Writ of Coram
Nobis, 2/2/22, at 3-4. The trial court denied this petition seven days later,
again stating it was without jurisdiction to consider the petition “as the appeal
in this case is still pending before the Superior Court of Pennsylvania.” Order,
2/9/22.
Akin to the appeal at Docket No. 566, the trial court’s denial of relief
was proper because there was a pending appeal pertaining to a prior PCRA
petition. See Beatty, 207 A.3d at 961. We also affirm the order on the
ground Appellant was no longer serving his sentence. See 42 Pa.C.S. §
9543(a)(1)(i). Furthermore, the petition appears to be facially untimely
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pursuant to 42 Pa.C.S. § 9545 and Burton, 158 A.3d at 627. Accordingly,
the trial court properly denied Appellant’s February 2nd petition.
At this Superior Court docket, Appellant has filed an application for
relief, entitled “Application for Relief Per Pa.R.A.P. 1926(b)(1) to Supplement
the Certified Trial Court Record with the Attached Copy of the Trial Exhibits
and Trial Transcript, which Indexes the Exhibits.” He avers the certified record
may be missing certain documents, and requests to supplement the record.
Appellant also has filed a “Notice to the Superior Court Regarding Appellant’s
January 25, 2022 Request to the Trial Court Regarding Trial Exhibits” and a
“Second Notice to the Superior Court Regarding Appellant’s January 25, 2022
Request to the Trial Court Regarding Trial Exhibits.” These filings pertain to
Appellant’s request to the trial court to order the release of several trial
exhibits. As no appellate relief is due for the reasons stated above, we deny
these applications.
XI. Conclusion
For the foregoing reasons, we conclude Appellant is not entitled to any
relief.20
____________________________________________
20 We caution Appellant to carefully consider his litigious behavior in the
future, and hereby notify him that excessively filing frivolous claims, and/or
engaging in other conduct that is abusive to our court system, may result in
sanctions and/or the filing of injunctions. We point out our Rules of Appellate
Procedure permit parties to file an application with this Court for reasonable
counsel fees in cases of frivolous appeals and obdurate, vexatious conduct.
See Pa.R.A.P. 2744, 2751, 2572; see also Commonwealth v. Wardlaw,
(Footnote Continued Next Page)
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At 1876 MDA 2018, we affirm the November 1, 2018, order denying
Appellant’s motion for stay of sentence. We also grant Attorney Deady’s
petition to withdraw as counsel.
At 1647 MDA 2019, we affirm the September 24, 2019, order denying
Appellant’s petition, entitled “I. Addendum to Transcription of October 3, 2012
Preliminary Hearing Transcript; II. Petition for Writ of Coram Nobis (New
Transcript); III. Petition for Writ of Habeas Corpus (New Transcript).” We
also deny Appellant’s February 6, 2023, application for relief.
At 566 MDA 2021, we affirm the April 5, 2021, order denying Appellant’s
petition entitled “Petitions for Writ of Coram Nobis, Habeas Corpus, Equitable
Relief and Attachments.”
At 743 MDA 2022, we affirm the February 9, 2022, order denying
Appellant’s petition entitled “Petition for Writ of Coram Nobis, Habeas &
Equitable Relief & Application for Relief.” We also deny Appellant’s: (1)
January 22, 2023, “Application for Relief Per Pa.R.A.P. 1926(b)(1) to
Supplement the Certified Trial Court Record with the Attached Copy of the
Trial Exhibits and Trial Transcript, which Indexes the Exhibits;” (2) February
2, 2023, ‘Notice to the Superior Court Regarding Appellant’s January 25, 2022
____________________________________________
249 A.3d 937, 947 (Pa. 2021) (“For example, an appellate court ‘may award
as further costs damages as may be just,’ Pa.R.A.P. 2744, provided that, inter
alia, the party receiving such damages makes ‘[a]n application for further
costs and damages.’”) (citation omitted).
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Request to the Trial Court Regarding Trial Exhibits”; and (3) February 8, 2023,
“Second Notice to the Superior Court Regarding Appellant’s January 25, 2022
Request to the Trial Court Regarding Trial Exhibits.”
Orders at all appeals affirmed. All outstanding applications for relief
denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/09/2023
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