Com. v. Dennis, R. — freecase.ai

Full text

Com. v. Dennis, R.

J-S27014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD DENNIS : : Appellant : No. 2608 EDA 2018

Appeal from the Order Entered August 15, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003567-2012

BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.* MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 30, 2020

Appellant, Richard Dennis, appeals from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

The PCRA court summarized the procedural history of this case as follows:

On February 20, 2015, at the conclusion of his bifurcated jury trial, [Appellant] was found guilty on the charges of Possession of a Firearm by a Person Prohibited,1 Carrying a Firearm without a License,2 and carrying a firearm on the streets of Philadelphia.³ On April 30, 2015, [Appellant] was sentenced to an aggregate period of confinement of 9 to 20 years. On May 10, 2015, [Appellant] timely filed post-trial motions, which the [c]ourt denied on September 21, 2015, after a hearing.

1 Pursuant to 18 Pa.C.S.A. §6105(a)(1)[.] 2 Pursuant to 18 Pa.C.S.A. §6106[.] ____________________________________________

• Former Justice specially assigned to the Superior Court.

J-S27014-20

appeal with the lower court.” Answer to Rule to Show Cause, 6/24/19, at 1. Appellant further stated:

The Commonwealth of Pennsylvania suffers no prejudice should this appeal continue as the appropriate Order was ledgered on the docketing statement and the court’s Opinion, which has already been filed, reflects the Order which was intended to be appealed. Any failure to include the date of the Order of the Notice of Appeal was a clerical error.

Id. at 1. Appellant attached to his Answer to Rule to Show Cause, as “Exhibit A,” the amended notice of appeal which stated the following: “NOTICE IS HEREBY GIVEN that [Appellant], hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter JUNE 15, 2018, denying the PCRA.” Answer to Rule to Show Cause, 6/24/19, at 4, “Exhibit A.” The docket reflects that this Amended Notice of Appeal was filed on June 24, 2019.4

Rule 301 of the Pennsylvania Appellate Rules, provides, in relevant part: “[N]o order of a court shall be appealable until it has been entered upon the appropriate docket in the trial court.” Pa.R.A.P. 301(a)(1). Furthermore, Pa.R.A.P 904(e) states: “The notice of appeal shall include a statement that the order appealed from has been entered on the docket.” 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 ____________________________________________

4This Court issued an order discharging the Rule to Show Cause on September 12, 2019, referring the matter to the panel assigned to consider the merits of the appeal.

-4-

J-S27014-20

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 filed September 6, 2018, does not identify any docketed order from which the appeal purportedly was taken. On that basis alone, we could quash this appeal. Additionally, we note that in response to the rule to show cause, Appellant indicated that he filed an amended notice of appeal. The amended notice of appeal states that Appellant is appealing from the order entered on June 15, 2018. A review of the record, however, reflects no docketed order issued on that date. Moreover, Appellant’s amended notice of appeal filed on June 24, 2019, arguably from the August 15, 2018 order, 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).

Furthermore, even if we were to overlook these multiple errors and determine that Appellant intended to appeal the August 15, 2018 order dismissing his PCRA petition, and had timely appealed, we would conclude that his claims for relief on appeal lacked merit. The PCRA court’s Pa.R.A.P. 1925(a) opinion thoroughly and accurately addresses Appellant’s issues. Thus, if we were to reach the merits of Appellant’s claims, we would affirm

-5-

J-S27014-20

the PCRA court’s decision dismissing Appellant’s appeal from the denial of his PCRA petition.5

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/30/20 ____________________________________________

5 The parties are directed to attach a copy of the PCRA Court’s Opinion filed September 26, 2019, in the event of further proceedings in this matter.

-6-Circulated 10/21/2020 11:44 AM

Footnotes

[3] Pursuant to 18 Pa.C.S.A. §6108[.] On September 21, 2015, [Appellant] timely filed a direct appeal to the Superior Court of Pennsylvania, at 3122 EDA 2015, which affirmed his judgment of sentence on May 22, 2017. [Appellant] did not file a petition for allowance of appeal to the Supreme Court of Pennsylvania. On September 22, 2017, [Appellant] timely filed the instant PCRA petition. On April 23, 2018, the Commonwealth filed a motion to dismiss. On May 11, 2018, after a hearing, the [c]ourt issued a notice of intent to dismiss pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure. On August [15], 2018,[1] the [c]ourt, after a hearing and receiving no response to its Rule 907 notice, dismissed [Appellant’s] PCRA petition. On September 6, 2018, [Appellant] . . . filed the instant appeal to the Superior Court of Pennsylvania.[2] On September 10, 2018, this [c]ourt filed and served on [Appellant] an Order pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing [Appellant] to file and serve a Statement of Errors Complained of on Appeal, within twenty-one days of the Court’s Order. On September 18, 2018, [Appellant] timely filed his Statement of Matters Complained of on Appeal. By Order dated June 14, 2019, the Superior Court, finding [Appellant’s] original notice of appeal to be deficient, directed [Appellant] to show cause why his appeal should not be quashed. On June 24, 2019, [Appellant] filed an “Amended Notice of Appeal.” On July 11, 2019, this Court filed and served on [Appellant] a second Order pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing [Appellant] to file and serve a Statement of Errors Complained of on Appeal, within twenty-one days of the [c]ourt’s Order. Although, to date [Appellant] has not responded, the [c]ourt accepts [Appellant’s] amended notice of appeal was intended to correct the deficiencies in his original notice. The [c]ourt, therefore, assumes [Appellant] ____________________________________________ 1The order denying Appellant’s PCRA petition was entered on the docket on August 15, 2018. 2 As will be discussed infra, the timeliness of Appellant’s notice of appeal is of issue. -2- intended to proceed in reliance on his initial statement of matters and is thus deemed compliant. PCRA Court Opinion, 9/26/19, at 1-3. Appellant presents the following issues for our review: 1. Did the court abuse its discretion in dismissing a PCRA, where trial counsel was ineffective for failing to request a new trial on the basis of inadmissable and irrelevant testimony regarding a firearm that was not the firearm in the subject crime was presented that was so harmful to require a new trial? 2. Did the court abuse its discretion in in dismissing a PCRA on the basis trial counsel was ineffective in stipulating to operability of the firearm? Appellant’s Brief at 6 (full capitalization omitted). Before we may consider any substantive claims raised by Appellant, we must determine if this appeal is properly before us. As this Court alerted Appellant in the rule to show cause, the counseled notice of appeal “fails to state the date of the order being appealed.”3 Show Cause Order, 6/14/19. The order further directed Appellant to show cause “why this appeal should not be quashed as having been taken from a purported order which is not entered upon the appropriate docket of the lower court. See Pa.R.A.P. 301(a)(1).” Id. In his counseled response to the rule to show cause, Appellant stated that “counsel had subsequently filed an amended notice of ____________________________________________ 3The notice of appeal, which does not include the date of the order being appealed, is defective. Pa.R.A.P. 904. -3-