Com. v. Gains, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TIMOTHY L. GAINS :
:
Appellant : No. 3596 EDA 2018
Appeal from the PCRA Order Entered November 13, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1208141-2005
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED JULY 24, 2020
Timothy L. Gains (Appellant) appeals, pro se, from the order entered in
the Philadelphia County Court of Common Pleas dismissing his first petition
filed pursuant to the Post Conviction Relief Act1 (PCRA), seeking relief from
his jury conviction of first-degree murder2 and related offenses. Appellant
contends the PCRA court erred when it did not ensure that he had the
opportunity to respond to the Pa.R.Crim.P. 907 notice of its intent to dismiss
the petition. For the reasons below, we quash this appeal, and remand the
case to the PCRA court for further proceedings.
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. § 2502(a).
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On May 4, 2009, a jury convicted Appellant of first-degree murder,
retaliation against a witness, and criminal conspiracy3 for his role in the
October 2005 shooting death of Robert Edwards. A few weeks before the
shooting, Edwards witnessed Appellant’s co-defendant murder a rival drug
dealer, and Edwards was cooperating with the police. Commonwealth v.
Gaines,4 1807 EDA 2009 (unpub. memo. at 1) (Pa. Super. 2009), appeal
denied, 437 EAL 2014 (Pa. 2015). During the penalty phase of the trial, the
jury found no aggravating circumstances, and sentenced Appellant to life
imprisonment. Sentencing Verdict Slip, 5/6/09, at 3-4 (unpaginated). On
June 17, 2009, the trial court imposed a sentence of life imprisonment for
first-degree murder, a consecutive term of 3½ to 7 years’ imprisonment for
retaliation against a witness, and a concurrent term 10 to 20 years’
imprisonment for conspiracy. This Court affirmed the judgment of sentence
on direct appeal, and, on March 17, 2015, the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal. Gaines, 1807 EDA 2009.
On February 18, 2016, Appellant filed a timely PCRA petition, his first.
Counsel was appointed, but on November 3, 2016, filed a petition to withdraw
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3 18 Pa.C.S. §§ 903 and 4953(a).
4 We note that in the prior memorandum, Appellant’s name was spelled
“Gaines.” The lower court filings refer to Appellant as “Gains.” Appellant has
used both spellings in his pro se documents. See Appellant’s “Statement of
Matters Complained on Appeal,” 11/13/18, at 1 (“Gains”); Notice of Appeal,
12/7/18, at 1 (“Gaines”).
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and a Turner/Finley5 “no merit” letter. The next day, the PCRA court issued
Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without first
conducting an evidentiary hearing. Appellant did not respond to the Rule 907
notice, and on December 16, 2016, the PCRA court entered an order
dismissing Appellant’s petition.
Nineteen months later, on September 19, 2018, Appellant requested a
copy of his “recent court document sheet.” Appellant’s Letter, 9/19/18.
Thereafter, on November 13, 2018, Appellant filed a document, which the
clerk of courts docketed as a “Statement of Matters Complained on Appeal.”
See Docket Entry, 11/13/18. On December 7, 2018, Appellant filed a notice
of appeal, purportedly from an order entered November 13, 2018. In the
same document, Appellant included a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.6 On November 13, 2019, this Court issued a per
curiam rule for Appellant to show cause why this appeal should not be
quashed. Appellant filed a response, and this Court discharged the rule, but
referred the matter to the merits panel.
Appellant lists the following two issues in his brief:
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5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6 We note that this Court twice dismissed Appellant’s appeal: once, when he
failed to file a docketing statement, and once when he failed to file a brief.
See Order 2/5/19; Order, 5/3/19. However, both times, the appeal was
reinstated upon application by Appellant. See Order, 3/25/19: Order,
5/30/19.
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Did the PCRA court err when it did not ensure that Appellant was
afforded the opportunity to respond to the Notice of Intent to
Dismiss that was allegedly filed in Appellant’s case?
Appellant contends that this Honorable Court should remand the
case sub judice back to the PCRA Court as the PCRA Court is
primarily suited to determine if there is merit to[A]appellant’s
claims.
Appellant’s Brief at 8.
Before we may consider any substantive claims raised by Appellant, we
must first determine if this appeal is properly before us. As this Court alerted
Appellant in the rule to show cause, the “notice of appeal states the appeal is
from the order entered November 13, 2018[, but t]here is no indication on
the trial court docket of an order being entered on November 13, 2018.”7
Show Cause Order, 11/13/19. Indeed, the only docket entry on that date is
Appellant’s “Statement of Matters Complained on Appeal.” Docket Entry,
11/13/18.
In his response to the rule to show cause, Appellant clarified his
intention was to appeal the order dismissing his PCRA petition. Appellant’s
Objection to the Court[’]s Order to Quash Appeal, 11/27/19, at 2
(unpaginated). He claims he never received either the PCRA court’s Rule 907
notice or its December 16, 2016, final order. Id. Rather, Appellant insists he
first learned of the dismissal of his PCRA petition when he inquired with this
Court in November of 2018. Id. See also Appellant’s Brief at 13-14, 17.
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7 Specifically, the notice of appeal states Appellant “hereby appeals . . . from
the last order of the court’s denying [his] PCRA in 11-2018.” Appellant’s
Notice of Appeal, 12/7/18 at 1.
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We note that “[i]t is implicit in Pennsylvania Rule of Appellate Procedure
904, which governs the content of the notice of appeal, that the correct date
of the order appealed should be included in the notice of appeal.”
Commonwealth v. Martin, 462 A.2d 859, 860 (Pa. Super. 1983),
disapproved on other grounds, Commonwealth v. Graves, 508 A.2d 1198
(Pa. 1986). Here, the notice of appeal purports to appeal from an order which
does not appear of record. On that basis alone, we could quash this appeal.
Furthermore, even if we were to overlook this error, and determine
Appellant meant to appeal from the December 16, 2016, order dismissing his
PCRA petition, we would conclude the appeal — filed nearly two years later —
is manifestly untimely. See Pa.R.A.P. 903(a) (notice of appeal must be filed
within 30 days after entry of order on appeal). As the Pennsylvania Supreme
Court explained:
The timeliness of an appeal and compliance with the statutory
provisions granting the right to appeal implicate an appellate
court’s jurisdiction and its competency to act. Absent
extraordinary circumstances, an appellate court lacks the power
to enlarge or extend the time provided by statute for taking an
appeal. Thus, an appellant’s failure to appeal timely an order
generally divests the appellate court of its jurisdiction to hear the
appeal.
Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (citation
omitted). Thus, we are constrained to quash this appeal.
Nevertheless, our review of the document filed by Appellant on
November 13, 2018 — which the clerk of courts described as a “Statement of
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Matters Complained on Appeal”8 — reveals that it was, in actuality, an attempt
by Appellant to file a second PCRA petition. The statement provides the
procedural history of his first petition, which he concludes was “in limbo,” and
states, “now comes a second PCRA under untimely manner.” Appellant’s
“Statement of Matters Complained on Appeal,” 11/13/18, at 1. Appellant then
invokes the newly discovered facts timeliness exception to the PCRA. Id. See
42 Pa.C.S. § 9545(b)(1)(ii) (PCRA petition must be filed within one year of
date judgment of sentence is filed unless petitioner pleads and proves, inter
alia, “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”).
Accordingly, we conclude that the PCRA court should have construed
Appellant’s November 13, 2018, filing to be a second PCRA petition. Thus, we
remand this case to the PCRA court to allow Appellant to proceed in this
matter. The court shall consider Appellant’s second PCRA petition to have
been filed on November 13, 2018.
Appeal quashed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
President Judge Emeritus Stevens joins this Memorandum.
Judge Shogan Concurs in the result.
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8 Docket Entry, 11/13/18.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/20
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