Com. v. Brown, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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