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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1346 EDA 2017
Appeal from the PCRA Order December 30, 2016
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001095-1997
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 22, 2018
Appellant Alton Daniel Brown appeals pro se from the order dismissing
his fifth Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant
claims that the PCRA court erred in (1) failing to consider his recusal motion,
(2) refusing to consider his alleged status as a political prisoner as a claim for
habeas corpus relief, and (3) rejecting his claim that he timely filed the instant
petition upon recently discovering the fact that he is a political prisoner. We
quash.
A detailed recitation of the history of Appellant’s 1998 sentence of
twenty to forty years’ imprisonment for possessing an instrument of crime and
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1 42 Pa.C.S. §§ 9541-9546.
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robbery2 is unnecessary in this matter. Of relevance here, Appellant filed the
instant pro se “Petition for Writ of Habeas Corpus and/or Post Conviction
Relief” on November 14, 2016.3
On November 30, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition. Appellant filed a pro se “Response
to Notice of Intent to Dismiss and Request for Recusal.”4 The PCRA court
dismissed Appellant’s petition on December 30, 2016, but did not address his
request for recusal.
Appellant filed a pro se notice of appeal that was docketed on April 25,
2017. The notice of appeal was dated January 6, 2017. An envelope
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2 18 Pa.C.S. §§ 907 and 3701, respectively.
3 Appellant claimed that he was a political prisoner and raised several PCRA
claims. Appellant asserted that he discovered he was a political prisoner after
the courts of the Commonwealth and the United States denied him relief. He
maintained his innocence, asserted that various errors limited his right to
present a full defense, and stated that officials sabotaged his efforts to obtain
relief. In a section requesting habeas corpus relief, Appellant requested that
he be officially recognized as a political prisoner “instead of being classified as
a legally convicted and sentenced prisoner.” Pet. for Writ of Habeas Corpus
and/or Post Conviction Relief, 11/14/16, at 6.
4 Appellant asserted that he was claiming political prisoner status for the first
time and that he stated at least two exceptions to the PCRA time bar based
on that status. Additionally, Appellant asserted that the PCRA court’s intended
dismissal of his petition evinced the court’s involvement in the conspiracy to
sabotage his efforts to obtain relief. Appellant thus claimed there was the
appearance of partiality or an actual conflict of interest and demanded that
“[a]ll current and further proceeding regarding th[is] case . . . be automatically
referred to the Office of the Court Administrator for reargument.” Appellant’s
Resp. & Request for Recusal, 12/21/16, at 1.
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postmarked April 19, 2017, with $0.46 in postage paid was attached to the
notice of appeal. Additionally, a DC-138A prison cash slip dated January 6,
2017 in Appellant’s handwriting was attached. The cash slip did not bear a
signature of a prison official or a notation of a deduction from Appellant’s
account.
The PCRA court issued an order for the filing of a Pa.R.A.P. 1925(b)
statement. Appellant timely filed his Rule 1925(b) statement after obtaining
an extension of time. The court filed a responsive opinion suggesting that
Appellant’s notice of appeal was untimely and that Appellant failed to establish
that he timely filed his PCRA petition.
On June 23, 2017, this Court issued a rule to show cause why this appeal
should not by quashed. Appellant responded pro se and maintained that he
delivered his notice of appeal to prison officials on January 6, 2017.
In his response to the rule to show cause, Appellant averred that he
requested a completed copy of the prison cash slip, but his request was
refused. In support, he attached a handwritten note to the prison business
office, dated January 19, 2017, requesting a cash slip. On that document,
Appellant wrote, “I did not date this cash slip, but it should have been signed
by staff on or about 1/6/17. It is needed to prove that I mailed my PCRA
petition to the court on or about 1/6/16 (cash slip enclosed).” A handwritten
response at the bottom of the note stated, “This is not considered legal” and
referred Appellant to his monthly billing statement. The response was
apparently dated April 20, 2017.
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Appellant also attached a copy of his monthly billing statement and
averred that the entry for January 6, 2017, confirmed that his notice of appeal
was mailed on that date. The entry for January 6, 2017, however, indicates
a mailing to Norristown with a deduction of $0.88 from his account.
Appellant further averred that after discovering that a notice of appeal
had not been docketed in the trial court, he filed a petition for nunc pro tunc
relief on April 18, 2017. According to Appellant, he attached a copy of his
January 6, 2017 notice of appeal and the copy of the cash slip to his petition
for nunc pro tunc relief. Appellant thus claimed that the court clerk must have
disregarded his petition for nunc pro tunc relief and instead filed the attached
copy of the notice of appeal and cash slip with the envelope postmarked April
19, 2017.5
This Court discharged the rule to show cause and referred the matter to
this panel. For the reasons that follow, we conclude that this appeal was not
timely filed.
“It is well settled that the timeliness of an appeal implicates our
jurisdiction and may be considered sua sponte. Jurisdiction is vested in the
Superior Court upon the filing of a timely notice of appeal.” Commonwealth
v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) (citations and quotation
marks omitted). Generally, an appellant invokes this Court’s jurisdiction by
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5 The record does not contain a copy of Appellant’s petition for nunc pro tunc
relief.
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filing a notice of appeal within thirty days of the entry of the order being
appealed. See Pa.R.A.P. 903(a).
In an appeal from the denial of PCRA relief, the Pennsylvania Supreme
Court has reiterated that a pro se prisoner’s notice of appeal will be deemed
filed when it is placed in a prison mailbox or deposited with prison authorities.
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing the
“prisoner mailbox” rule). The pro se prisoner, however, “bears the burden of
proving that he or she in fact delivered the appeal within the appropriate time
period.” Id.
Jones instructs that courts should be “inclined to accept any reasonably
verifiable evidence of the date that the prisoner deposits the appeal with the
prison authorities.” Id. Examples of such evidence include postmarks on the
envelope used to mail the notice of appeal or postal forms that indicate the
date of mailing. Id. The prisoner may also produce a cash slip “noting both
the deduction from his account for the mailing to the prothonotary and the
date of the mailing,” or an “affidavit attesting to the date of deposit.” Id.
Evidence regarding the prison’s or the court’s mail policies may also establish
the last possible date on which an appeal was delivered to prison officials. Id.
Here, the PCRA court refused to consider Appellant’s incomplete prison
cash slip as reasonably verifiable evidence. The court noted that the cash slip
did not indicate that postage was deducted from his account and was not
signed by a prison official. We agree with the court’s analysis that the
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incomplete cash slip did not constitute reasonably verifiable evidence of the
date Appellant allegedly deposited his notice of appeal. See id.
Appellant’s attempts to bolster his claim that he deposited his notice of
appeal with prison officials on January 6, 2017, are unavailing. Appellant’s
handwritten note to the business office not only suffered from dubious
authenticity, but also contained internal inconsistencies. First, the notations
suggested that Appellant made his request on January 19, 2017—thirteen
days after he purported to have delivered his notice of appeal to prison
officials, but some two months before he alleged he discovered his appeal was
not yet docketed. Second, the request was made to verify the filing of a “PCRA
petition,” not a notice of appeal. Third, the handwritten response was dated
April 20, 2017.
Appellant’s billing statement was also problematic. It only indicated that
$0.88 was deducted from his account for mail to Norristown on January 6,
2017, yet the envelope attached to his notice of appeal was postmarked for
$0.46 postage paid.
We acknowledge Appellant’s allegation that he attached a copy of his
notice of appeal as an exhibit to a petition for nunc pro tunc relief that he
mailed in April of 2017. Nevertheless, we cannot blindly accept his theory
that court officials discarded his petition for nunc pro tunc relief and filed the
exhibit with the attached envelope for his April 2017 mailing.
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Thus, Appellant has not produced reasonably verifiable evidence that he
timely filed his notice of appeal. See Jones, 700 A.2d at 426. Accordingly,
we must quash this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/18
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