Com. v. Gates, G. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY LEE GATES :
:
Appellant : No. 518 WDA 2022
Appeal from the Judgment of Sentence Entered December 20, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011095-2017
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: July 19, 2023
Appellant, Gary Lee Gates, appeals from the December 20, 2018
judgment of sentence entered in the Court of Common Pleas of Allegheny
County that imposed an aggregate sentence of 8 to 18 years’ incarceration to
be followed by 5 years’ probation. Appellant was convicted, following a jury
trial, of two counts of aggravated assault.1 For the reasons set forth herein,
we vacate the April 21, 2022 order reinstating Appellant’s direct appeal rights
nunc pro tunc, quash this appeal, and remand the case for further
proceedings.
The record demonstrates that Appellant was charged with the
aforementioned crimes, as well as criminal attempt – criminal homicide
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2702(a)(1).
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(1 count) and recklessly endangering another person (“REAP”) (2 counts).2
Criminal Information, 11/20/17. These charges stemmed from an incident on
July 3, 2017, wherein Appellant shot a victim while the victim stood next to
his vehicle and the victim’s minor child was present in the vehicle. Criminal
Complaint, 7/11/17, at Affidavit of Probable Cause.
On September 28, 2018, a jury convicted Appellant of two counts of
aggravated assault.3 On December 20, 2018, the trial court imposed a
sentence of 5 to 10 years’ incarceration for Appellant’s aggravated assault
conviction, as it pertained to the victim (Count 2). The trial court imposed a
sentence of 3 to 8 years’ incarceration for Appellant’s aggravated assault
conviction, as it related to the victim’s minor child (Count 3). As part of the
sentence imposed for Count 3, the trial court also ordered Appellant to serve
5 years’ probation, with said probation set to run consecutively to Appellant’s
overall sentence of incarceration.4 The sentence imposed for Count 3 was set
to run consecutively to the sentence imposed for Count 2.
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2 18 Pa.C.S.A. §§ 901(a) (and 2501(a)) (1 count), and 2705 (2 counts),
respectively.
3 The jury remained deadlocked and was unable to return a verdict on the
charge of criminal attempt – criminal homicide. The trial court nolle prossed
the criminal attempt charge on December 20, 2018. The Commonwealth
withdrew both REAP charges before trial.
4 Appellant was given credit for time served (526 days) towards his sentence
imposed for Count 2 and, as part of the sentence imposed for Count 3,
Appellant was ordered to pay restitution in the amount of $8,400.85.
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On January 4, 2019, trial counsel filed a motion to withdraw as counsel
for Appellant. That same day, trial counsel also filed, outside the 10-day
period established by Pennsylvania Rule of Appellate Procedure 720(A)(1), a
post-sentence motion requesting a modification of Appellant’s sentence on the
ground that the consecutive sentences resulted in “an unduly harsh sentence.”
Post-Sentence Motion, 1/4/19, at ¶4; see also Pa.R.A.P. 720(A)(1) (requiring
a timely post-sentence motion to be filed within 10 days of the imposition of
sentence). Later, that same day, the trial court granted trial counsel’s motion
to withdraw. Trial Court Order, 1/4/19. In a separate order, filed on January
4, 2019, the trial court denied Appellant’s post-sentence motion to modify his
sentence. No direct appeal was filed.5
On April 1, 2019, Appellant filed pro se a petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.6 On April 18,
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5 Appellant’s judgment of sentence became final on Tuesday, January 22,
2019, 30 days after the imposition of his sentence on December 20, 2018,
because Appellant’s January 4, 2019 motion for modification of sentence was
untimely. See Pa.R.Crim.P. 720(A)(1); see also Commonwealth v.
Dreves, 839 A.2d 1122, 1127 (Pa. Super. 2003) (holding that, an untimely
filed post-sentence motion does not toll the 30-day period in which to file a
notice of appeal); 1 Pa.C.S.A. § 1908 (stating that, whenever the last day of
any period of time referred to in a statute “shall fall on Saturday or Sunday,
or on any day made a legal holiday by the laws of this Commonwealth or of
the United States, such day shall be omitted from the computation”); 5
U.S.C.A. § 6103(a) (listing the Birthday of Martin Luther King, Jr. as the third
Monday in January).
6 Appellant’s PCRA petition was timely filed because it was filed within one
year of the date the judgment of sentence became final. 42 Pa.C.S.A
§ 9545(b)(1) (stating, a PCRA petition, including second and subsequent
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2019, the PCRA court appointed Randall McKinney, Esquire (“Attorney
McKinney”) as counsel to represent Appellant. On December 23, 2019,
Attorney McKinney filed an amended PCRA petition, requesting the
reinstatement of Appellant’s direct appeal rights nunc pro tunc. On March 4,
2020, the PCRA court granted Appellant’s petition and reinstated his direct
appeal rights nunc pro tunc. Attorney McKinney, who remained counsel of
record for Appellant, did not file a notice of appeal in response to the order
reinstating Appellant’s direct appeal rights.7
On April 30, 2020, Appellant filed pro se a notice of appeal. The trial
court docketed Appellant’s pro se notice of appeal and sent a copy to, inter
alia, Attorney McKinney, who remained counsel of record for Appellant. The
trial court, however, did not forward a copy of the notice of appeal to this
Court pursuant to Pennsylvania Rule of Appellate Procedure 905(b). See
Pa.R.A.P. 905(b) (stating that, a clerk of courts or prothonotary “shall
immediately transmit to the prothonotary of the appellate court named in the
notice of appeal a copy of the notice of appeal and all attachments”); see also
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petitions, must be filed within one year of the date a petitioner’s judgment of
sentence becomes final).
7 Pursuant to Pennsylvania Rule of Criminal Procedure 120, an attorney
appointed by the trial court shall continue his or her representation through
direct appeal or until granted leave to withdraw by the trial court.
Pa.R.Crim.P. 120(A)(4) and (B)(1); see also Pa.R.Crim.P. 122(A)(2) (stating,
when counsel if appointed, “the appointment shall be effective until final
judgment, including any proceedings upon direct appeal”); Pa.R.Crim.P. 904
Comment (stating, appointed [PCRA] counsel retains his or her assignment
until final judgment”).
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Commonwealth v. Williams, 151 A.3d 621, 623-624 (Pa. Super. 2016)
(holding that, a pro se notice of appeal filed by a represented criminal
defendant shall be accepted by the trial court, forwarded to this Court, and
docketed by this Court without offending the considerations prohibiting hybrid
representation because a defendant has a constitutional right of appeal). As
such, Appellant’s pro se notice of appeal was never docketed with this Court.
On May 13, 2020, Appellant sent a letter to Attorney McKinney
requesting that Attorney McKinney file a direct appeal on behalf of Appellant.
Appellant sent a similar letter to Attorney McKinney on June 8, 2020.8 That
same day, Appellant also filed pro se a motion for relief due to extraordinary
circumstances, requesting the trial court ascertain the status of Attorney
McKinney’s representation of Appellant and appoint new counsel if the trial
court found that Attorney McKinney abandoned Appellant.
On June 10, 2020, Appellant sent a third letter to Attorney McKinney
requesting that he file a direct appeal on behalf of Appellant. On August 3,
2020, Appellant sent a letter to the trial court requesting the appointment of
new counsel because, in Appellant’s opinion, Attorney McKinney abandoned
Appellant. Appellant sent a similar letter directed to the trial court on
December 17, 2020.
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8 Copies of Appellant’s letters directed to Attorney McKinney were also sent to
the clerk of courts for the Court of Common Pleas of Allegheny County and
filed as part of the certified record.
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On July 20, 2021, Appellant filed pro se a petition to reinstate his direct
appeal rights.9 On July 28, 2021, the trial court appointed J. Richard Narvin,
Esquire (“Attorney Narvin”) as counsel to represent Appellant “on all appellate
matters[.]” Trial Court Order, 7/28/21. On February 10, 2022, Attorney
Narvin filed a motion to withdraw as counsel for Appellant, which the trial
court subsequently granted on February 16, 2022. Trial Court Order, 2/16/22.
Notwithstanding the February 2022 judicial order granting his request
to withdraw as Appellant’s counsel, Attorney Narvin, on April 5, 2022, filed a
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9 Typically, “any petition filed after the judgment of sentence becomes final
will be treated as a PCRA petition.” Commonwealth v. Taylor, 65 A.3d 462,
466 (Pa. Super. 2013) (original quotation marks and citation omitted). For
reasons discussed in greater detail infra, Appellant’s judgment of sentence, as
of July 2021, had not yet become final because a direct appeal is currently
pending before this Court, stemming from the filing of Appellant’s pro se notice
of appeal on April 30, 2020. 42 Pa.C.S.A. § 9545(b)(3) (stating, “a judgment
becomes 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”). Therefore,
Appellant’s July 20, 2021 petition to reinstate his direct appeal rights cannot
be treated as a PCRA petition. See Taylor, 65 A.3d at 466.
Moreover, the trial court was without jurisdiction to grant relief on Appellant’s
petition because a direct appeal is currently pending before this Court.
Pa.R.A.P. 1701 (stating that, in general, upon the filing of a notice of appeal,
a trial court may no longer proceed in a matter except to, inter alia, preserve
the status quo and take action permitted or required by the Pennsylvania
Rules of Appellate Procedure or otherwise ancillary to the appeal). As such,
the trial court’s July 28, 2021 order appointing counsel to represent Appellant,
and the trial court’s subsequent orders granting, inter alia, collateral relief are
null and void ab initio. Commonwealth v. Fantauzzi, 275 A.3d 986, 998
(Pa. Super. 2022) (stating that, judicial decisions and orders granting, or
denying, subsequent relief that flow from an order by a trial court without
jurisdiction are null and void ab initio).
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PCRA petition, requesting, inter alia, the reinstatement of Appellant’s direct
appeal rights nunc pro tunc.10 On April 21, 2022, the PCRA court granted
Appellant’s petition and reinstated his direct appeal rights nunc pro tunc.
On April 29, 2022, Attorney Narvin filed a notice of appeal, which was
docketed in this Court at 518 WDA 2022. On May 2, 2022, the trial court
directed Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed
his Rule 1925(b) statement on June 9, 2022. The trial court filed its Rule
1925(a) opinion on July 26, 2022.
Appellant raises the following issues for our review:
1. Did the trial court err when it denied [Appellant’s] motion
for a mistrial when it was disclosed that the Commonwealth
failed to inform the defense of [the victim-witness’s] pretrial
statement that [Appellant] brandished a gun at sometime
during the incident as the [trial] court's instruction to the
jury was insufficient to cure the prejudice to [Appellant]?
2. Did the trial court err when it charged the jury on the
defense of justification when it included instructions on
other criminal activity when the Commonwealth presented
no evidence of such activity?
3. Did the trial court err when it overruled [a defense]
objection to [D]etective Martin Kail's testimony regarding
[Appellant’s] knowledge of information about the victim
when it was both leading and improper opinion testimony?
Appellant’s Brief at 3.
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10Although Attorney Narvin’s PCRA petition was captioned as an “amended
PCRA petition,” said petition was, in fact, an original PCRA petition filed on
Appellant’s behalf.
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Preliminarily, we examine the procedural posture of the case sub judice
as it implicates this Court’s jurisdiction. Commonwealth v. Grove, 170 A.3d
1127, 1136-1137 (Pa. Super. 2017) (stating, “[t]his Court may consider the
issue of jurisdiction sua sponte” (original quotation marks and citation
omitted)), appeal denied, 185 A.3d 967 (Pa. 2018). Our examination of the
procedural timeline begins on March 4, 2020, which is the date on which the
PCRA court granted Appellant collateral relief and reinstated Appellant’s direct
appeal rights nunc pro tunc for the first time. Ordinarily, to take full advantage
of the March 4, 2020 order, Appellant needed to file a notice of appeal, upon
reinstatement of his direct appeal rights nunc pro tunc, on or before April 3,
2020. See Pa.R.A.P. 903(a) (stating that, a notice of appeal “shall be filed
within 30 days of the entry of the order from which the appeal is taken”). In
this instance, however, during the 30-day period following the March 4, 2020
reinstatement of Appellant’s direct appeal rights nunc pro tunc, our Supreme
Court declared a general, statewide judicial emergency due to the COVID-19
global pandemic. In re: General Statewide Judicial Emergency, 228 A.3d
1281 (Pa. 2020) (stating, “AND NOW, this 16th day of March, 2020, pursuant
to Rule of Judicial Administration 1952(A), [our Supreme] Court DECLARES a
general, statewide judicial emergency until April 14, 2020, on account of
COVID-19”). In a March 18, 2020 per curiam order, our Supreme Court
closed, inter alia, the court of common pleas facilities in all judicial districts to
non-essential functions through at least April 3, 2020, and suspended “all time
calculations for purposes of time computation relevant to court cases or other
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judicial business, as well as time deadlines” through April 3, 2020. In re:
General Statewide Judicial Emergency, 228 A.3d 1283, 1285-1286 (Pa.
2020). Our Supreme Court directed that,
In all events, any legal papers or pleadings which are required to
be filed between March 19, 2020, and April 3, 2020, SHALL BE
DEEMED to have been timely filed if they are filed by April 6, 2020,
or on a later date as permitted by the appellate or local court in
question upon consideration of the potential volume of such
filings.
Id. at 1285. By virtue of subsequent per curiam orders addressing the
general, statewide judicial emergency, our Supreme Court continued the
suspension of all time calculations through May 8, 2020. In re: General
Statewide Judicial Emergency, 229 A.3d 229, 230 (Pa. 2020); see also
In re: General Statewide Judicial Emergency, 230 A.3d 1015, 1017 (Pa.
2020). Ultimately, “[i]n all events, legal papers or pleadings (other than
commencement of actions where statutes of limitations may be in issue) which
are required to be filed between March 19, 2020, and May 8, 2020, generally
SHALL BE DEEMED to have been filed timely if they are filed by close of
business on May 11, 2020.” In re: General Statewide Judicial
Emergency, 230 A.3d at 1017. As such, in the case sub judice, Appellant
had until May 11, 2020, to file a timely notice of appeal from the March 4,
2020 order reinstating his direct appeal rights nunc pro tunc.
On April 30, 2020, Appellant filed pro se a notice of appeal. Generally,
Pennsylvania prohibits hybrid representation except in the limited instance
where a defendant files, inter alia, a pro se notice of appeal. Williams, 151
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A.3d at 624 (stating, “a notice of appeal protects a constitutional right[ and,
therefore,] is distinguishable from other filings that require counsel to provide
legal knowledge and strategy in creating a motion, petition, or brief”); see
also 210 Pa. Code § 65.24 (stating that, “[a] pro se notice of appeal received
from the trial court shall be docketed [by this Court], even in instances where
the pro se [appellant] was represented by counsel in the trial court”). As such,
Appellant’s April 30, 2020 pro se notice of appeal was timely filed with the
trial court because it was filed before May 11, 2020, and the pro se aspect of
the filing does not offend the prohibition against hybrid representation.
Appellant’s pro se notice of appeal was entered on the trial court docket
on April 30, 2020, and a copy of the notice of appeal was provided to Attorney
McKinney, Appellant’s then-counsel of record. The trial court, however, did
not provide a copy of the notice of appeal to this Court, and it appears, from
a review of the record, that Attorney McKinney took no further action upon
receipt of Appellant’s pro se notice of appeal. See Pa.R.A.P. 905(a)(3)
(requiring that, “[u]pon receipt of [a] notice of appeal, the clerk [of courts or
prothonotary] shall immediately stamp it with the date of receipt, and that
date shall constitute the date when the appeal was taken, which date shall be
shown on the docket”); see also Pa.R.A.P. 905(b) (requiring that, the clerk
of courts or prothonotary “shall immediately transmit to the prothonotary of
the appellate court named in the notice of appeal a copy of the notice of appeal
and all attachments”). The failure to forward a copy of Appellant’s pro se
notice of appeal to this Court constituted a breakdown in the judicial system
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that prevented the docketing of Appellant’s notice of appeal with this Court.
See Williams, 151 A.3d at 623-624 (finding that, the docketing of Williams’
pro se notice of appeal in the trial court and forwarding of the same to counsel
of record but failing to forward the pro se notice of appeal to this Court
constituted a breakdown of the judicial system). As such, Appellant’s direct
appeal, as a result of his April 30, 2020 pro se notice of appeal, is currently
pending before this Court and must be perfected by the forwarding of the
notice of appeal to this Court, whereupon it shall be docketed.
Therefore, based upon the procedural posture of the case sub judice,
we vacate the PCRA court’s April 21, 2022 order reinstating Appellant’s direct
appeal rights nunc pro tunc. Furthermore, we quash the instant appeal
because, inter alia, a prior appeal, stemming from Appellant’s April 30, 2020
pro se notice of appeal, is currently pending before this Court. We remand
this case so the trial court may immediately forward a copy of Appellant’s pro
se notice of appeal to this Court, whereupon it shall be docketed. Additionally,
it is apparent from the record that Attorney McKinney abandoned Appellant
on his direct appeal. If, on remand, the trial court remains satisfied that
Appellant qualifies for in forma pauperis status, the trial court may appoint
Attorney Narvin, or new counsel, to represent Appellant on direct appeal. The
trial court may then take action with direct appeal proceedings in accordance
with Pennsylvania Rule of Appellate Procedure 1925, directing Appellant to file
a concise statement of errors complained of on appeal and filing a Rule
1925(a) opinion upon Appellant’s filing of a Rule 1925(b) statement.
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April 21, 2022 order vacated. Appeal quashed. Case remanded.
Jurisdiction relinquished.
Judge Pellegrini joins.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2023
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