Com. v. Miller, O. ( 2023 )

J-S43045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR MILLER :
:
Appellant : No. 1863 EDA 2022
Appeal from the PCRA Order Entered July 7, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004797-2013
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 14, 2023
Appellant Omar Miller appeals from the order dismissing his first petition
filed pursuant to the Post Conviction Relief Act1 (PCRA) as untimely.2
Appellant argues that he satisfied the government interference exception to
the PCRA’s time-bar and contends that the PCRA court erred in dismissing his
petition. We affirm.
A prior panel of this Court summarized the relevant facts and procedural
history of in this case as follows:
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1 42 Pa.C.S. §§ 9541-9546.
2 As discussed in greater detail below, Appellant filed a prior PCRA petition
that resulted in the reinstatement of his direct appeal rights nunc pro tunc.
Because Appellant’s direct appeal rights were reinstated nunc pro tunc as a
result of the prior PCRA petition, the PCRA petition underlying the instant
appeal is considered a first PCRA petition for timeliness purposes.
Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super. 2014).
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On May 5, 2013, [Appellant], Andre Collier, Rasheed Teel, and
Charles Freeman devised a plan to rob nineteen-year-old Kareem
Borowy. Freeman drove the group to Borowy’s house in
Pottstown, Pennsylvania, and waited in the car while [Appellant],
Teel, and Collier entered the residence. Once inside, Collier,
armed with a .45 caliber Glock pistol, demanded that Borowy hand
over a large quantity of marijuana and $3,000.00 in cash. Borowy
pleaded with the robbers, insisting that there was no money in the
home.
Sensing that the trio was growing impatient, Borowy falsely told
them that he kept his money in a “stash house” at a different
location. The men then took Borowy outside and forced him into
the getaway car. Freeman drove away from the residence,
presumably intending to travel to Borowy’s contrived stash house.
When the vehicle slowed down on a rural roadway in Lower
Pottsgrove Township, Borowy managed to escape from the
vehicle. Collier chased after Borowy and shot him twice. When
he returned to the vehicle, Collier told the others that he saw
Borowy fall to the ground, and instructed Freeman to drive away.
Although severely injured, Borowy managed to crawl on his hands
and knees to the main roadway. A passing motorist spotted
Borowy laying beside the road a short time later and called 911.
When the police arrived, Borowy was unresponsive. He was
pronounced dead at the scene.
Four weeks later, on June 3, 2013, a team of federal, state, and
local law enforcement officers arrested [Appellant] on the
sidewalk outside of his uncle’s home in Philadelphia, Pennsylvania.
The officers took [Appellant] to the homicide unit of the
Montgomery County Detectives’ Bureau. Detective Todd Richard
brought [Appellant] into a conference room and informed him of
his right to remain silent and his right to counsel. On July 4, 2013,
at 12:49 a.m., [Appellant] signed a written waiver of those rights.
Over the course of the next eleven hours, [Appellant] made four
separate on-the-record statements. Each time, Detective Richard
transcribed both his questions and [Appellant’s] answers.
[Appellant] then reviewed Detective Richard’s transcriptions,
agreed that they were accurate, and signed them.
In [Appellant’s] first statement, which began at 1:01 a.m., he
stated that he could not recall whether he was in Pottstown on the
day that Borowy was killed. [Appellant] categorically denied
participating either in the robbery or in the murder. At 1:47 a.m.,
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Detective Richard gave [Appellant] a break to smoke a cigarette
and to use the restroom. At 2:22 a.m., Detective Richard
resumed his questioning. At that time, [Appellant] gave a second
statement to Detective Richard, which concluded at 2:48 a.m.
[Appellant] gave a third statement to Detective Richard, which
began at 6:35 a.m. [Appellant] admitted that he “didn’t tell [the
detectives] everything” in his earlier statements. [Appellant]
went on to confess that, on the afternoon of Borowy’s murder, he
overheard Collier, Freeman, and Teel planning a robbery. He also
stated that Collier was carrying a weapon, which [Appellant]
described as “a big ass black, semi-automatic with a clip sticking
out.” Still, [Appellant] denied that he had participated in either
the planning or the execution of the robbery.
After giving his third statement, [Appellant] asked for something
to eat. The detectives gave [Appellant] a breakfast sandwich and
apple juice. [Appellant] then asked to speak with Detective
Richard’s “boss.” Detective Richard left [Appellant] in the
conference room to finish his breakfast, and told his supervisor,
Lieutenant James McGowan, that [Appellant] wanted to speak
with him.
When Lieutenant McGowan entered the conference room, he
found [Appellant] with his head down on the table. Lieutenant
McGowan asked [Appellant] what he wanted to discuss, and
[Appellant] began crying. [Appellant] told Lieutenant McGowan
that he was at the scene of the murder and that he saw Collier
shoot Borowy. [Appellant] then stated that he wanted to continue
talking to Detective Richard.
Detective Richard reentered the conference room and took
another statement from [Appellant]. In [Appellant’s] fourth
statement, which began at 11:08 a.m., [Appellant] confessed that
he was present during the robbery and the murder. He told
Detective Richard that “[Collier] killed that boy and I told him not
to.” [Appellant] was charged with homicide, kidnapping, robbery,
persons not to possess a firearm, receiving stolen property, and
false imprisonment.[FN1] The Commonwealth also charged
[Appellant] with conspiracy to commit each of those offenses.[FN2]
18 Pa.C.S. §§ 2502, 2901(a)(3), 3701(a)(1)(i), 6105,
[FN1]
3925, and 2903, respectively.
[FN2]18 Pa.C.S. § 903(b).
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* * *
The Commonwealth joined the cases against [Appellant], Collier,
and Freeman for trial.[FN4] On April 21, 2014, following a five-day
jury trial, [Appellant] was convicted of second-degree murder,
robbery, kidnapping, conspiracy to commit kidnapping, and
conspiracy to commit robbery. On June 23, 2014, the trial court
sentenced [Appellant] to life imprisonment. . . .
[FN4]Teel pleaded guilty to third-degree murder, and agreed
to testify for the Commonwealth at his co-conspirators’ trial.
Commonwealth v. Miller, 3285 EDA 2014, 2015 WL 6662915, at *1–3 (Pa.
Super. filed Oct. 30, 2015) (Miller I) (unpublished mem.) (some citations
omitted).
Appellant filed timely post-sentence motions. The trial court held a
hearing and denied Appellant’s post-sentence motions on October 30, 2014.
Appellant filed a timely appeal, and on October 30, 2015, this Court affirmed
Appellant’s judgment of sentence. See id. at *3-5.
Appellant filed a timely PCRA petition requesting the reinstatement of
his post-sentence rights. The PCRA court denied the petition, and Appellant
filed a timely appeal. Upon review, this Court vacated the order denying
Appellant’s PCRA petition and remanded to permit Appellant to file an
amended PCRA petition. Commonwealth v. Miller, 29 EDA 2017, 2017 WL
4296658 (Pa. Super. filed Sept. 28, 2017) (Miller II) (unpublished mem.).
On remand, Appellant filed an amended PCRA petition, and the PCRA
court granted relief and reinstated Appellant’s post-sentence and direct appeal
rights nunc pro tunc. Order, 10/16/18. On October 26, 2018, Appellant filed
a timely post-sentence motion nunc pro tunc that was denied on December
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27, 2018. Thereafter, Appellant filed a timely nunc pro tunc direct appeal,
and this Court affirmed Appellant’s judgment of sentence. Commonwealth
v. Miller, 350 EDA 2019, 2019 WL 6907915 (Pa. Super. filed Dec. 17, 2019)
(Miller III) (unpublished mem.). Appellant did not petition for allowance of
appeal to our Supreme Court, and Appellant’s judgment of sentence became
final on January 16, 2020. See 42 Pa.C.S. § 9545(b)(3).
Appellant filed a pro se PCRA petition that was docketed on March 5,
2021.3 On March 22, 2021, the PCRA court denied Appellant’s PCRA petition
as untimely. Appellant filed a timely pro se notice of appeal, and following
review, this Court vacated the PCRA court’s order and remanded for the
appointment of counsel. Commonwealth v. Miller, 1036 EDA 2021, 2021
WL 4889607 (Pa. Super. filed Oct. 20, 2021) (Miller IV) (unpublished mem.).
____________________________________________
3 Although Appellant’s PCRA petition was docketed on March 5, 2021, the
record reflects that Appellant dated the petition February 16, 2021. Pro Se
PCRA Petition, 2/16/21. We note that “the prisoner mailbox rule provides that
a pro se prisoner’s document is deemed filed on the date he delivers it to
prison authorities for mailing.” Commonwealth v. DiClaudio, 210 A.3d
1070, 1074 (Pa. Super. 2019) (citation omitted and formatting altered).
Pursuant to the prisoner mailbox rule, the PCRA court concluded that Appellant
delivered his PCRA petition to prison authorities for mailing no earlier than
February 16, 2021. See PCRA Ct. Op., 8/5/22, at 2, 10. We agree with the
PCRA court that Appellant’s PCRA petition was delivered to prison authorities,
at the earliest, on February 16, 2021, pursuant to the prisoner mailbox rule,
and we shall deem Appellant’s PCRA petition filed on February 16, 2021.
However, it is undisputed that Appellant’s judgment of sentence became final
on January 16, 2020, and that Appellant until January 16, 2021, to file a timely
PCRA petition. See Appellant’s Brief at 8; Commonwealth’s Brief at 7; PCRA
Ct. Op., 8/5/22, at 2, 10. Moreover, even if Appellant’s instant PCRA petition
was filed on February 16, 2021, it is further undisputed that it was facially
untimely. See Appellant’s Brief at 8; Commonwealth’s Brief at 7; PCRA Ct.
Op., 8/5/22, at 2, 10.
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On remand, the PCRA court appointed Damien Brewster, Esq., to represent
Appellant. Order, 10/22/21.
On December 20, 2021, Attorney Brewster filed a motion for an
extension of time to file an amended PCRA petition. On December 28, 2021,
the PCRA court granted Attorney Brewster’s motion for an extension. Order,
12/28/21. In the order, the PCRA court provided Attorney Brewster an
extension of sixty days in which to confer with Appellant and determine
whether Appellant’s PCRA petition could be amended to plead and prove an
exception to the PCRA time-bar and assert a prima facie claim for PCRA relief.
See id. On February 16, 2022, Attorney Brewster filed a motion for a second
extension. Order, 2/16/22. In this motion, Attorney Brewster stated that he
had filed a right to know request with the Department of Corrections (DOC)
seeking the dates of the COVID-19 lockdown at SCI-Rockview and information
concerning restrictions on the use of the prison law library. See id. On
February 20, 2022, the PCRA court granted a second extension of sixty days.
Order, 2/20/22.
However, on April 19, 2022, Attorney Brewster filed a Turner/Finley4
no-merit letter and petition to withdraw as Appellant’s PCRA counsel. In the
no-merit letter, Attorney Brewster stated that Appellant’s PCRA petition was
untimely and that no exceptions applied. No-Merit Letter, 4/19/22, at 1-6
(unpaginated). On May 25, 2022, the PCRA court concluded that Attorney
____________________________________________
4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Brewster had satisfied the requirements to withdraw pursuant to
Turner/Finley, granted Attorney Brewster’s petition to withdraw, and notified
Appellant of its intent to dismiss his PCRA petition without a hearing pursuant
to Pa.R.Crim.P. 907.
Appellant filed a pro se response to the Rule 907 notice on June 27,
2022. In his response, Appellant asked the PCRA court to appoint new PCRA
counsel. On July 7, 2022, the PCRA court denied Appellant’s request for new
counsel and dismissed Appellant’s PCRA petition. On July 19, 2022, Appellant
filed a timely pro se notice of appeal. The PCRA court did not order Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and the PCRA court filed a Rule 1925(a) opinion on August
5, 2022. See PCRA Ct., Op. 8/5/22.
On appeal, Appellant raises the following issue:
Whether the PCRA Court erred by concluding that Appellant did
not meet the governmental interference exception because
Appellant should have somehow found paper and pen to file his
PCRA despite being on enhanced quarantine due to, at the time,
a deadly disease called COVID-19, which the prison or the
Appellant did not want any inmate-to-inmate contact to further
spread the disease?
Appellant’s Brief at 4.
Appellant first acknowledges that his judgment of sentence became final
on January 16, 2020, and that he had until January 16, 2021, to file a timely
PCRA petition. See id. at 8. Appellant argues that the Department of
Corrections (DOC) ordered a lockdown due to the COVID-19 pandemic and
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restricted access to the law library at SCI-Rockview. See id. at 8-9. Appellant
contends that without access to the library, he was unable to file his PCRA
petition prior to the January 16, 2021 deadline. See id. at 9-10. Appellant
asserts that although he does not fault the DOC for the COVID-19 restrictions,
the lockdown at SCI-Rockview nevertheless constituted government
interference with the presentation of a timely PCRA petition. See id. at 11-
12.
The Commonwealth responds by arguing that Appellant’s PCRA petition
was untimely, and he failed to plead and prove any exception to the PCRA
time-bar. Commonwealth’s Brief at 6. Additionally, the Commonwealth
contends that Appellant cannot avail himself of the government interference
exception to the PCRA time-bar, because Appellant cannot establish that any
government official engaged in an illegal act or constitutional violation that
prevented Appellant from filing a timely PCRA petition. See id. at 8-9.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record supports the PCRA court’s determination and
whether that determination is free of legal error. Commonwealth v. Davis,
262 A.3d 589, 595 (Pa. Super. 2021). “This Court grants great deference to
the findings of the PCRA court if the record contains any support for those
findings.” Id. (citation omitted).
Moreover, it is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.
Super. 2015) (citation omitted). “If a PCRA petition is untimely, courts lack
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jurisdiction over the petition.” Commonwealth v. Woolstrum, 271 A.3d
512, 513 (Pa. Super. 2022) (citations omitted). A PCRA petition “including a
second or subsequent petition, shall be filed within one year of the date the
judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A judgment is final “at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final only if the petitioner pleads and proves
one of the following three statutory exceptions:
(i) 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;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
It is the PCRA petitioner’s “burden to allege and prove that one of the
timeliness exceptions applies.” Commonwealth v. Albrecht, 994 A.2d
1091, 1094 (Pa. 2010) (citations omitted and some formatting altered). To
invoke one of the exceptions, the petitioner must file the petition “within one
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year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2). All exceptions to the time bar must be pled in the PCRA petition
and may not be raised for the first time on appeal. Commonwealth v.
Furgess, 149 A.3d 90, 93 (Pa. Super. 2016); see also Commonwealth v.
Burton, 936 A.2d 521, 525 (Pa. Super. 2007).
Here, Appellant’s facially untimely PCRA petition requested a nunc pro
tunc appeal and appointment of new counsel due to COVID-19. See Pro Se
PCRA Petition, 2/16/21, at 1-3. However, Appellant did not raise any
exceptions to the PCRA time-bar in the PCRA petition. The record reveals that
Appellant did not mention the government interference exception from Section
9545(b)(1)(i) until he filed his response to the PCRA court’s Rule 907 notice.
See Response to Rule 907 Notice, 6/27/22, at ¶25.
Presenting an exception to the PCRA time bar for the first time in the
response to Rule 907 notice does not properly raise or preserve the claim.
See Commonwealth v. Derrickson, 923 A.2d 466, 468-69 (Pa. Super.
2007). It is well settled that the PCRA court’s Rule 907 notice provides a
petitioner an opportunity to request leave to amend his petition to correct
material defects. See Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa.
Super. 2012), abrogated on other grounds by Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021). Rule 907 “does not treat a response to its notice of
dismissal as either an amended petition or a serial petition.” Id. at 1187; see
also Pa.R.Crim.P. 905(A). To properly raise the government interference
exception to the PCRA time bar, Appellant was required to request leave to
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amend his PCRA petition to include that claim. See Derrickson, 923 A.2d at
469. “A time-bar exception raised for the first time in response to a court’s
Rule 907 notice is not preserved for review unless the petitioner seeks, and
the PCRA court grants, permission to file an amended petition.”
Commonwealth v. Cannon, 1699 EDA 2019, 2019 WL 6999943, at *3 (Pa.
Super. filed Dec. 20, 2019) (unpublished mem.) (citing Derrickson, 923 A.2d
at 469).5 Appellant failed to properly present an exception to the PCRA time
bar, and therefore, the PCRA court lacked jurisdiction to consider Appellant’s
PCRA petition. See Woolstrum, 271 A.3d at 513. Accordingly, we affirm the
PCRA court’s order dismissing Appellant’s PCRA petition as untimely.
In any event, allegations of restrictions on access to law libraries or legal
resources, which do not completely prevent an inmate from preparing legal
filings, do not satisfy the government interference exception to the PCRA time-
bar. See Albrecht, 994 A.2d at 1095. Here, the PCRA court concluded that
the lockdown at SCI-Rockview occurred “beginning on October 30, 2020, and
ending approximately one week after January 25, 2021.” PCRA Ct. Op. at 7.
However, there is no argument or indication that there was any impediment
to Appellant filing a PCRA petition between January 16, 2020, when his
judgment of sentence became final and the lockdown beginning on October
30, 2020. Therefore, Appellant cannot establish the government interference
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5 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential
memorandum decisions of this Court filed after May 1, 2019, may be cited for
their persuasive value).
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exception applies. See Albrecht, 994 A.2d at 1095; see also
Commonwealth v. Bankhead, 217 A.3d 1245, 1248 (Pa. Super. 2019)
(concluding that a prison lockdown did not qualify for the government
interference exception to the PCRA time-bar where the lockdown did not
involve the entire relevant time). Moreover, Appellant did not contend that
“the conditions of his incarceration were illegal, as required to meet the
governmental interference exception to PCRA’s timeliness requirement.”
Commonwealth v. Rizvi, 166 A.3d 344, 348 (Pa. Super. 2017) (citations
omitted); see also 42 Pa.C.S. § 9545(b)(1)(i). We note that mere restrictions
on access to prison resources does not qualify for the government interference
exception to the PCRA time-bar. Rizvi, 166 A.3d at 348. For these reasons,
even if Appellant had raised his government interference claim as an exception
to the PCRA time-bar in his petition, we would conclude that he failed to satisfy
the requirements for the exception to apply.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2023
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