Com. v. Holland, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AVRON HOLLAND :
:
Appellant : No. 2695 EDA 2019
Appeal from the PCRA Order Entered August 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1206740-2004
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AVRON HOLLAND :
:
Appellant : No. 2696 EDA 2019
Appeal from the PCRA Order Entered August 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1206741-2004
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: Filed: November 19, 2020
In these consolidated appeals,1 Avron Holland (Appellant) appeals pro
se from the order entered in the Philadelphia County Court of Common Pleas,
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1On November 7, 2019, this Court consolidated these appeals sua sponte.
Order, 11/7/19.
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dismissing his serial petition filed pursuant to the Post Conviction Relief Act 2
(PCRA). Appellant seeks collateral relief from his jury convictions of
possession of an instrument of crime (PIC) and persons not to possess
firearms3 at trial court Docket No. CP-51-CR-1206740-2004 (Trial Docket No.
6740-2004) and first-degree murder4 at trial court Docket No. CP-51-CR-
1206741-2004 (Trial Docket No. 6741-2004). On appeal, Appellant argues
the PCRA court erred in dismissing his petition as untimely filed. For the
reasons that follow, we affirm.
The facts underlying Appellant’s convictions were detailed in a
September 2017 decision of this Court affirming the PCRA court’s dismissal of
a prior serial PCRA petition; thus, we need not reiterate them in detail herein.
See Commonwealth v. Holland, 3020 EDA 2016 (unpub. memo. at 1-3)
(Pa. Super. Sept. 11, 2017). For our purposes, we note that Appellant was
charged with first-degree murder, PIC, possession of a firearm without a
license,5 and persons not to possess firearms in connection with the April 2003
shooting death of Michael Jones, Jr. See id. at 1. In late November of 2005,
the Honorable Jane Cutler Greenspan presided over Appellant’s jury trial. On
December 5, 2005, the jury found Appellant guilty of PIC and possession of a
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2 42 Pa.C.S. §§ 9541-9546.
3 18 Pa.C.S. §§ 907, 6105.
4 18 Pa.C.S. § 2502.
5 18 Pa.C.S. § 6106.
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firearm without a license, but could not agree on a verdict for the murder
charge. Judge Greenspan subsequently convicted Appellant of persons not to
possess firearms, and discharged the jury’s conviction of the non-licensure
offense because she determined the Commonwealth failed to present evidence
of non-licensure at trial. Trial Ct. Op., 2/23/06, at 1 n.1. The case proceeded
to sentencing on December 8, 2005, at which time Judge Greenspan imposed
an aggregate term of seven and one-half to fifteen years’ imprisonment. Id.
at 2. Appellant was retried on the charge of first-degree murder before the
Honorable Shelia Woods-Skipper, and on January 10, 2006, a jury found
Appellant guilty of first-degree murder. Appellant was sentenced that same
day to a mandatory term of life imprisonment. See Trial Docket No. 6741-
2004.
Appellant filed direct appeals from both convictions, which were
consolidated for disposition. On June 4, 2007, this Court affirmed Appellant’s
judgments of sentence, and on December 14, 2007, the Pennsylvania
Supreme Court denied allocatur review. See Commonwealth v. Holland,
389 & 436 EDA 2006 (Pa. Super. Jun. 4, 2007), appeal denied, 351 & 352 EAL
2007 (Pa. Dec. 14, 2007).
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Appellant filed his first, timely PCRA petition, pro se, on July 23, 2008.6
The PCRA court dismissed the petition,7 this Court affirmed the dismissal, and
the Pennsylvania Supreme Court denied allocatur review. Holland, 2833 EDA
2011.
On July 6, 2015, Appellant filed a second pro se PCRA petition, claiming
he was in receipt of newly discovered evidence, namely an affidavit by
Commonwealth witness Bobby Scott, in which Scott recanted his trial
testimony. Appellant’s Motion for Post Conviction Collateral Relief, 7/6/15, at
3. The PCRA court appointed counsel, who later filed a Turner/Finley8 “no
merit” letter and motion to withdraw. Holland, 3020 EDA 2016 (unpub.
memo. at 4). On September 16, 2016, the PCRA court dismissed Appellant’s
petition without a hearing, and granted counsel’s motion to withdraw. Id.
(unpub. memo. at 5). This Court affirmed the denial of PCRA relief on
September 11, 2017. See id.
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6From this point forward, Appellant included both trial court docket numbers
on his filings.
7 We note that the PCRA court initially appointed counsel, who filed an
amended petition in January of 2010. Commonwealth v. Holland, 2833
EDA 2011 (unpub. memo. at 4) (Pa. Super. Jan. 11, 2013), appeal denied,
121 EAL 2013 (Pa. Jul. 3, 2013). However, Appellant subsequently requested
to proceed pro se, and, following a Grazier hearing, the court granted his
request. Id. See also Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
8Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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While that appeal was pending before this Court, Appellant filed a third
pro se PCRA petition in the trial court on December 12, 2016. See Appellant’s
Motion for Post Conviction Collateral Relief, 12/12/16. He averred that on
November 19, 2016, he obtained “affidavits” from two additional
Commonwealth witnesses — Gregory Brooks and Fredrick Brisbon — in which
they recanted their testimony at trial.9 Id. at 3. On March 16, 2017, the
PCRA court notified Appellant of its intent to dismiss the petition without first
conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907, because it
concluded the petition was untimely filed and failed to properly invoke a
timeliness exception. Notice Pursuant to Pennsylvania Rule of Criminal
Procedure 907, 3/16/17 (Rule 907 Notice). Further, the notice explicitly
stated:
You are her[e]by advised that in twenty (20) days from the date
of this NOTICE, your request for post-conviction relief will be
denied/dismissed without further proceedings. No response to
this NOTICE is required. If, however, you choose to respond,
your response is due within twenty (20) calendar days of the
above date. Such response must be filed in accordance with
the requirements of Pennsylvania Rule of Criminal
Procedure 576 (a copy should be sent to the Court).
Id. Appellant did not respond to the Rule 907 notice, and on April 21, 2017,
the trial court entered an order dismissing the petition.
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9 These “affidavits” were, in fact, transcripts from an interview each witness
conducted with a private investigator. See Appellant’s Motion for Post
Conviction Collateral Relief, 12/12/16, at Exhibit 1, Interview of Gregory
Brooks, 10/14/16; Exhibit 2, Interview of Frederick Brisbon, 11/2/16.
Furthermore, neither interview was signed by either the investigator or the
witness. Rather, both documents stated “See original for signature.” Id.
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More than a year later, on August 24, 2018, Appellant filed a motion
requesting the PCRA court reconsider its March 16, 2017, Rule 907 notice.
See Appellant’s Motion to Reconsider 907 Notice, 8/24/18. Appellant asserted
that the Rule 907 notice was “deemed void” because, at the time he filed his
third petition, the appeal from the denial of his second petition was still
pending, and “[u]nder PCRA case law, a petitioner can’t file a subsequent
PCRA petition if the appeal of a prior (dismissed) [petition] is pending.” Id.
at 1, citing Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), overruled on
other grounds, Commonwealth v. Small, ___ A.3d ___, 8 EAP 2019 (Pa.
Oct. 1, 2020); Commonwealth v. O’Neil, 573 .2d 1112 (Pa. Super. 1990).
Under the belief that the PCRA court never entered an order dismissing his
third petition after issuing its Rule 907 notice, Appellant further requested the
court “reconsider” its decision to dismiss the petition, and allow the petition
to proceed. Appellant’s Motion to Reconsider 907 Notice, at 1. The PCRA
court’s law clerk responded to Appellant’s filing by letter dated September 14,
2018, in which they informed Appellant that his third petition was dismissed
on April 21, 2017, and any motion for reconsideration or notice of appeal was,
thus, untimely. Order Denying Motion to Reconsider, 9/14/18.10
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10Although the document is a letter from Judge Woods-Skipper’s law clerk to
Appellant, it is docketed as an order denying Appellant’s motion for
reconsideration. See Trial Docket No. 6740-2004, 9/14/18; Trial Docket No.
6741-2004, 9/14/18.
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Thereafter, on November 30, 2018, Appellant filed the present PCRA
petition, pro se. He argued that the petition was timely filed based upon the
governmental interference and newly discovered evidence exceptions to the
PCRA’s timing requirements. Appellant’s Petition for Post-Conviction Relief,
11/30/18, at 2 (unpaginated). Specifically, he asserted that he did not receive
the PCRA court’s April 21, 2017, order dismissing his prior petition, and that
he filed the present petition within 60 days of receiving the law clerk’s letter.
Id. Thus, Appellant requested reinstatement of his PCRA appellate rights,
nunc pro tunc. Id. at 3. On July 24, 2019, the PCRA court sent Appellant
Rule 907 notice of its intent to dismiss his fourth petition as untimely filed.
Appellant filed a pro se response on August 15, 2019, requesting an
evidentiary hearing. On August 23, 2019, the PCRA court entered an order
dismissing Appellant’s petition. These timely appeals followed.11 The PCRA
court entered an order at Trial Docket No. 6740-2004, directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). No such order was filed at Trial Docket No. 6741-2004.
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11 We note that, in compliance with Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018), Appellant filed a separate notice of appeal at each trial court
docket. See id. at 977 (mandating that “when a single order resolves issues
arising on more than one lower court docket, separate notices of appeal must
be filed”). The appeal for Trial Docket No. 6740-2004 (PIC and persons not
to possess) is filed at appellate Docket No. 2695 EDA 2019, and the appeal
for Trial Docket No. 6741-2004 (murder) is filed at appellate Docket No. 2696
EDA 2019.
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Furthermore, there is no concise statement filed by Appellant at either trial
court docket.12
Appellant raises the following two questions on appeal:
[1] Where [Appellant] did not receive notice of his third PCRA
petition being dismissed, and where [Appellant] has been
continuously incarcerated, has [Appellant] otherwise satisfied the
requirements for an exception to the PCRA time bar under . . .
subsections 9543(a)(2)(iv); 9545(b)(1)(ii), (b)(2) based on
receiving a letter from [Judge Woods-Skipper’s law clerk],
informing [Appellant] that his third PCRA petition was dismissed,
such that warrants reinstatement of his post-conviction appeal
rights nunc pro tunc under Commonwealth v. Bennett, 930
A.2d 1264 (Pa. 2007)?
[2] Where [Appellant’s] second PCRA appeal . . . was still pending
before [the] Pennsylvania Superior Court, did [the] PCRA court err
in entertaining Holland’s third PCRA petition based on newly
discovered evidence under . . . Lark[?]
Appellant’s Brief at iv.13
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12 In its opinion, the PCRA court suggests that all of Appellant’s issues are
waived due to his failure to comply with its Rule 1925(b) order. PCRA Ct. Op.,
2/24/20, at 3. See also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1988) (“[I]n order to preserve their claims for appellate review, Appellants
must comply whenever the trial court orders them to file a Statement of
Matters Complained of on Appeal pursuant to Rule 1925[; a]ny issues not
raised in a 1925(b) statement will be deemed waived.”). Although Appellant
insists in his brief that he did file a concise statement, he has presented no
proof of his filing to this Court. See Appellant’s Brief at vi n.1. Thus, it would
appear that any claims raised in relation to Trial Docket No. 6740-2004 are
waived. Nevertheless, as will be discussed infra, we agree with the PCRA
court’s alternative determination that Appellant’s petition was untimely, and
he failed to demonstrate the applicability of a time-for-filing exception.
Because the untimeliness of the petition affects our jurisdiction, we affirm on
that basis.
13 We note that the briefs filed by Appellant at each docket are identical, and,
in fact, both briefs list only appellate Docket No. 2695 EDA 2019.
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Our review of an order denying a PCRA petition is well-settled: “we
must determine whether the PCRA court’s order ‘is supported by the record
and free of legal error.’” Commonwealth v. Johnson, 139 A.3d 1257, 1272
(Pa. 2016) (citation omitted). Preliminarily, we note there is no dispute that
the present petition, filed on November 30, 2018, was untimely pursuant to
Section 9545(b). See 42 Pa.C.S. § 9545(b)(1) (any petition, including second
or subsequent petition, must be filed within one year of the date judgment of
sentence is final). Here, Appellant’s judgment of sentence was final on March
13, 200814 — thus, the present petition, filed more than ten years later, is
untimely on its face. “We have construed the PCRA’s timing provisions as
jurisdictional in nature, and no court may entertain an untimely PCRA
petition.” Commonwealth v. Small, ___ A.3d ___, ___, 2020 WL 5833781,
at *8 (Pa. Oct. 1, 2020). See also 42 Pa.C.S. § 9545(b)(1).
Nevertheless, an untimely petition may be considered if one of the three
timeliness exceptions applies. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Here,
Appellant argues his petition was timely filed pursuant to both the
governmental interference and the newly discovered facts exceptions set forth
at Section 9545(b)(1)(i) and (ii). The governmental interference exception
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14A panel of this Court determined Appellant’s prior PCRA petition, filed in July
of 2015, was similarly untimely. See Holland, 3020 EDA 2016 (unpub.
memo. at 6-9) (explaining Appellant’s judgment of sentence was final on
March 13, 2008, 90 days after the Pennsylvania Supreme Court denied his
petition for allowance of appeal and “the time for filing a petition for writ of
certiorari with the United States Supreme Court expired”).
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provides that a PCRA court has jurisdiction to consider an otherwise untimely
petition if a petitioner pleads and proves that his “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.” 42 Pa.C.S.
§ 9545(b)(1)(i).
The proper question with respect to Subsection 9545(b)(1)(i)’s
timeliness exception is “whether the government interfered with
Appellant’s ability to present his claim and whether Appellant was
duly diligent in seeking the facts on which his claims are based.”
Commonwealth v. Chimenti, 218 A.3d 963, 975 (Pa. Super. 2019), appeal
denied, 229 A.3d 565 (Pa. 2020). Pursuant to the newly discovered facts
exception, a PCRA court may review a facially untimely petition if the
petitioner demonstrates “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.” 42 Pa.C.S. § 9545(b)(1)(ii). Furthermore, the Act requires
that any petition invoking one of the timeliness exceptions must be filed
“within 60 days of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).15
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15 This subsection was amended, effective December 24, 2018, to provide
petitioners with one year to invoke a timeliness exception regarding “claims
arising on Dec. 24, 2017 or thereafter.” 42 Pa.C.S. § 9545(b)(2); Section 3
of Act 2018, Oct. 24, P.L. 894, No. 146, effective in 60 days. Because the
petition at issue was filed on November 30, 2018, before the effective date of
the amendment, the amendment is not applicable here.
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Appellant’s argument conflates the two exceptions. First, he contends
that he did not receive the PCRA court’s April 17, 2017, order dismissing his
third PCRA petition — thus, he claims he first learned that his petition had
been dismissed when he received the letter from the PCRA court’s law clerk in
October of 2018.16 Appellant’s Brief at 1-2. Appellant argues the law clerk’s
letter informing him that his third PCRA petition had been dismissed
constituted a newly discovered fact, and that he could not have ascertained
that information earlier “through reasonable diligence.” Id. at 2. Second,
Appellant maintains that the new fact he discovered was governmental
interference with his “ability to raise an appeal.” Id. He insists the PCRA
court erred when it dismissed his third petition as untimely while the appeal
from the dismissal of his second petition was pending in this Court. Appellant’s
Brief at 4. Appellant contends that, pursuant to Lark, the PCRA court should
have “decline[d to] entertain[ ] the petition while [his] previous PCRA appeal
was already pending; or in the alternative should have stayed [his] third PCRA
proceedings until this Court’s resolution of review was finalized.” Id.
Accordingly, he asserts he is entitled to an evidentiary hearing on his third
petition, as well as reinstatement of his appeal rights from the denial of that
petition nunc pro tunc.
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16Although the letter was dated and mailed on September 14, 2018, in his
PCRA petition, Appellant claimed he did not receive the letter until October
17, 2018; he then filed his fourth petition less than 60 days later, on
November 30, 2018. Based upon our conclusion, we need not address this
potential discrepancy.
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In Lark, the Pennsylvania Supreme Court held that “when 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, 746 A.2d at 588 (footnote omitted). “If the
petitioner pursues the pending appeal, then the PCRA court is required under
Lark to dismiss any subsequent PCRA petitions filed while that appeal is
pending.” Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019),
appeal denied, 218 A.3d 850 (Pa. 2019). Furthermore, in Beatty, this Court
held that a PCRA court had “no authority” to hold a subsequent petition in
abeyance, while a prior petition was pending on appeal, and then reinstate
the subsequent petition when the appeal was final. Id. at 963.
We agree with Appellant that, pursuant to Lark, the PCRA court should
have summarily dismissed his third petition, which Appellant filed while the
appeal from the dismissal of his second petition was pending before this Court.
Nevertheless, we still conclude Appellant is entitled to no relief.
First, we note that contrary to Appellant’s assertion in his brief, the PCRA
court had “no authority to put Appellant’s [third] petition on pause until
Appellant’s pending appeal concluded.” See Beatty, 207 A.3d at 963;
Appellant’s Brief at 4 (arguing the PCRA court should have “stayed [his] third
PCRA proceedings until this Court’s resolution of review was finalized”).
Second, while we agree the PCRA court dismissed Appellant’s third
petition for the wrong reason, Appellant still cannot establish his fourth
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petition — the one at issue herein — was timely filed. In Lark, the Supreme
Court explained:
If the subsequent petition is not filed within one year of the date
when the judgment became final, then the petitioner must plead
and prove that one of the three exceptions to the time bar under
42 Pa.C.S. § 9545(b)(1) applies. The subsequent petition must
also be filed within sixty days of the date of the order which finally
resolves the previous PCRA petition, because this is the first “date
the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Lark, 746 A.2d at 588.
In the present case, this Court affirmed the dismissal of Appellant’s
second PCRA petition on September 11, 2017. Appellant did not file the
present petition within 60 days of that decision, as is required by Lark.
Rather, Appellant waited another 14 months, and filed the present petition on
November 30, 2018. Thus, under Lark, Appellant’s present petition is
untimely. See Lark, 746 A.2d at 588.
Furthermore, to the extent Appellant contends the PCRA court’s
dismissal of his third petition constituted a newly discovered fact — because
Appellant claims he never received the order — we find this argument
specious. Appellant concedes he received the court’s Rule 907 notice issued
on March 16, 2017.17 That notice specifically informed Appellant that his
petition would be dismissed within 20 days if he did not respond. See Rule
907 Notice. Appellant did not respond within the requisite 20-day period;
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17We note the record reveals both the Rule 907 order and dismissal order
were mailed to Appellant at the same prison address. See Rule 907 Notice,
Proof of Service; Order, 4/21/17, Proof of Service.
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rather he filed a motion requesting the court reconsider its intent to dismiss,
more than 17 months later, on August 24, 2018. See Appellant’s Motion to
Reconsider 907 Notice, 8/24/18. As the PCRA court notes in its opinion, under
either the governmental interference or newly discovered facts exception,
Appellant fails to meet his burden of demonstrating he acted with due
diligence in pursuing his claim. See PCRA Ct. Op. at 5 (“Appellant does not
explain what steps he took between March 16, 2017 and August 24, 2018, to
determine the status of his PCRA petition which is fatal to his claim.”). See
also 42 Pa.C.S. § 9545(b)(1)(ii); Chimenti, 218 A.3d at 975.
Moreover, regardless of how the PCRA court treated his third petition,
Appellant could have sought timely review of his 2016 recantation claims if he
had filed a petition within 60 days of the date this Court affirmed the denial of
his second petition, September 11, 2017. Appellant presents no argument as
to why he failed to do so. Instead, Appellant waited nearly a year, before
filing the motion seeking reconsideration of the court’s Rule 907 notice. Thus,
no relief is warranted.
Therefore, because we agree with the conclusion of the PCRA court that
Appellant’s fourth PCRA petition was untimely filed, and Appellant failed to
plead and prove the applicability of one of the PCRA timeliness exceptions, we
affirm the order on appeal.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/20
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