Com. v. Anderson, R. ( 2018 )

J-S06029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
RAMEL ANDERSON :
: No. 345 EDA 2017
Appellant :
Appeal from the PCRA Order January 30, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0607951-2004
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 26, 2018
Appellant Ramel Anderson appeals pro se from the order of the PCRA
court dismissing his second petition filed under the Post Conviction Relief Act
(“PCRA”).1 We affirm.
The underlying facts are not relevant to our disposition. In short,
Anderson was convicted in 2006 of second-degree murder, robbery, and
burglary, and was sentenced to life imprisonment.2 We affirmed the
judgement of sentence, and in May 2009, the Pennsylvania Supreme Court
denied Anderson’s Petition for Allowance of Appeal. See Commonwealth v.
____________________________________________
1 42 Pa.C.S.A. § 9541-46.
2Appellant was convicted of violating 18 Pa.C.S.A. §§ 2502(b), 3701, and
3502(a), following the 1998 murder of George Volz inside his home.
J-S06029-18
Anderson, 965 A.2d 286 (Pa.Super. 2008) (unpublished memorandum),
appeal denied, 972 A.2d 519 (Pa. 2009).
In May 2010, Anderson filed his first PCRA petition, pro se. Anderson
was appointed counsel, who subsequently filed a Petition to Withdraw
pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). The PCRA court granted counsel leave to withdraw and dismissed
Anderson’s PCRA Petition, and we affirmed; the Pennsylvania Supreme Court
denied allowance of appeal. See Commonwealth v. Anderson, 87 A.3d 876
(Pa.Super. 2013) (unpublished memorandum), review denied, 87 A.3d 814
(Pa. 2014).
On October 8, 2013, Anderson filed a second PCRA petition, which gave
rise to this appeal. In the Petition, Anderson claimed that he received a copy
of his criminal docket on September 17, 2013, at which time he discovered
that the Commonwealth did not file a criminal complaint against him until July
1, 2004, even though he was arrested on March 13, 2004, and held without
bail. See PCRA Petition, filed August 8, 2013, at 4.
The PCRA court took no action on Anderson’s second petition until May
19, 2014, when counsel was appointed to represent Anderson.3 On May 13,
2016, counsel filed a Finley letter. The PCRA court dismissed Anderson’s
second PCRA petition as untimely on January 6, 2017, and permitted counsel
to withdraw.
____________________________________________
3For reasons that do not appear in the record, new counsel was appointed for
Appellant on September 17, 2015.
-2-
J-S06029-18
Anderson filed a notice of appeal on January 10, 2017. However, on
January 30, 2017, the PCRA court vacated its order of January 6, 2017, and
issued a new order, again dismissing Anderson’s second PCRA petition and
permitting counsel to withdraw. It appears that the January 6, 2017 order of
the PCRA court permitted the wrong attorney to withdraw, spurring the
January 30, 2017 correction.
Anderson presents the following issues:
1. Is the Defendant entitled to a new trial because the trial
counsel failed to investigate time limits and exclusions under
the Speedy Trial Rule where the Commonwealth failed to file
charges against the Defendant within a proper time limit?
2. Is the Defendant entitled to a new trial because of [sic] the
Prosecutor’s closing remarks violated the Defendant’s
Constitutional rights?
3. Is the Defendant entitled to a new trial because trial counsel
failed to investigate and to seek out an expert witness to
rebut the medical examiner[’]s finding that could prove that
the decedent could have died other than [by] homicide?
4. Is the Defendant entitled to a new trial because the
Philadelphia Police’s search of the Defendant’s home was
unconstitutional and illegal because they were only allowed
to do a protective sweep and not search because they did
not have a search warrant so any evidence after that point
is suppose[d] to be thrown out because of fruit from a
poisonous tree?
Anderson’s Br. at 3 (answers below omitted).
“[I]n reviewing the propriety of an order granting or denying PCRA relief,
this Court is limited to ascertaining whether the evidence supports the
-3-
J-S06029-18
determination of the PCRA court and whether the ruling is free of legal error.”
Commonwealth v. Grove, 170 A.3d 1127, 1136 (Pa.Super. 2017).
We first consider whether Anderson’s Notice of Appeal was filed
prematurely, as the PCRA court vacated the January 6 order under appeal and
entered a subsequent final order on January 30, and Anderson filed no new
notice of appeal. Because the January 6 order was appealable at the time it
was entered, and because the January 30 order merely corrected a patent
error in the January 6 order, we will not quash the appeal as premature. See
Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof”).
We do not reach the merits of Anderson’s issues on appeal because the
PCRA court correctly determined that it lacked jurisdiction. The PCRA court
explained in its Pa.R.A.P. 1925(a) opinion that the PCRA’s timeliness
requirements are jurisdictional, and that under 42 Pa.C.S.A. § 9545(b)(1), all
PCRA petitions must be filed within one year of the date on which the
petitioner’s judgement of sentence becomes final, unless the petition meets
one of three exceptions. See PCRA Court Opinion, filed June 9, 2017, at 7-8.
The PCRA court found that although Anderson claimed the exception in
subsection 9545 (b)(1)(ii) (that “the facts upon which the claim is predicated
were unknown to the petitioner and could not have been ascertained by the
-4-
J-S06029-18
excellence of due diligence”), Anderson presented no newly discovered
evidence to validate his untimely petition. Id. at 8.
We agree with the PCRA court’s assessment. Anderson’s judgment of
sentence became final on August 26, 2009, 90 days after the Pennsylvania
Supreme Court denied Anderson’s petition for direct review, as Anderson did
not seek review in the United States Supreme Court. See 42 Pa.C.S.A. §
9545(b)(3) (stating that a judgment becomes final at the conclusion of direct
review, or the expiration of time for seeking direct review); U.S. Sup. Ct. R.
13 (allowing 90 days to file a petition for writ of certiorari with the United
States Supreme Court); Commonwealth v. Crews, 863 A.2d 498, 501 n.1
(Pa. 2004). Anderson then had one year, until August 26, 2010, to file a timely
PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Anderson’s petition, filed in
2013, is therefore patently untimely.
Anderson claims that his petition is timely under the after discovered
facts exception because the copy of the court docket he obtained in 2013
alerted him to the date of his arrest and the date the filing of the criminal
complaint. However, the after-discovered facts exception “requires [a]
petitioner to allege and prove that there were facts that were unknown to him
and that he could not have ascertained those facts by the exercise of due
diligence.” Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008)
(quotation marks and citation omitted). “The focus of the exception is on the
newly discovered facts, not on a newly discovered or newly willing source for
-5-
J-S06029-18
previously known facts.” Id. (quotation marks, citation, brackets, and
footnote omitted). The dates of Anderson’s arrest and the filing of the criminal
complaint in 2004 could have been ascertained by Anderson’s due diligence
at least at the time of his first PCRA petition, and therefore his 2013 receipt
of a copy of his court docket does not meet the after-discovered facts
exception. Thus, we affirm the PCRA court’s dismissal of Anderson’s untimely
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/18
-6-