Commonwealth v. Bennett

• Decision Date: 04 February 2004
• Citation: 842 A.2d 953
• Parties: COMMONWEALTH of Pennsylvania, Appellees, v. Tony L. BENNETT, Appellant.
• Court: Pennsylvania Superior Court

842 A.2d 953

COMMONWEALTH of Pennsylvania, Appellees, v. Tony L. BENNETT, Appellant.

Superior Court of Pennsylvania.

Argued September 4, 2003.

Filed February 4, 2004.

Mitchell S. Strutin, Philadelphia, for appellant.

Heather D. Young, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before: DEL SOLE, P.J., JOHNSON, HUDOCK, FORD ELLIOTT, JOYCE, STEVENS, MUSMANNO, TODD, and KLEIN, JJ.

TODD, J.

¶ 1 Tony Bennett appeals nunc pro tunc the February 19, 1999 order dismissing his first petition brought pursuant to the Post Conviction Relief Act ("PCRA").¹ Because we are constrained to conclude that his second PCRA petition—in response to which the PCRA court reinstated nunc pro tunc Bennett's appeal from the denial of his first PCRA petition, resulting in the present appeal—was untimely, we must quash this appeal.

¶ 2 There is no question that Tony Bennett was entitled to a new trial: the accomplice liability charge given at his murder trial was erroneous, and his codefendant at trial was granted a new trial on that basis. Further, it appears that due solely to the ineffectiveness of his various counsel, the erroneous jury charge was not objected to, no direct appeal was filed to raise the issue, and an appeal of a timely, but erroneously-denied, PCRA petition which raised the issue was dismissed for failure to file a brief.² In sum, no appellate court has yet addressed Bennett's meritorious claim, apparently due to the serial ineffectiveness of counsel. Bennett thus stands convicted of first-degree murder, and sentenced to life imprisonment, based on an erroneous accomplice liability charge, for a killing which occurred when his co-conspirators robbed a jewelry store while he waited in the getaway car. Nevertheless, given the stringent interpretation of the time-bar of the PCRA by our Supreme Court, we are powerless to address these obvious and cumulative errors, and may not sanction the relief granted in a second PCRA petition, one that is untimely and not now cognizable under Supreme Court precedent.

¶ 3 Bennett and four co-conspirators— Kevin Wyatt, Paul Johnson, Michael Mayo, and Kecia Ray—robbed a jewelry store in 1990. During the robbery, a salesperson was shot to death. Bennett supplied the gun, but did not enter the store and, instead, manned the getaway car along with Wyatt. Ray acted as a lookout, while Johnson and Mayo performed the robbery. Mayo fired the fatal shots. Ray and Mayo pled guilty to murder, while Bennett, Wyatt and Johnson were jointly tried for murder and related crimes in 1993. Bennett was represented at trial by Thomas Ciccone, Esquire. Following the jury trial, Bennett and his co-conspirators were convicted of first-degree murder, and Bennett was sentenced to life imprisonment. No direct appeal was filed, but Bennett filed a timely PCRA petition on April 6, 1995. Tariq Karim El-Shabazz, Esquire was appointed to represent Bennett and an amended petition was filed in 1997. The amended petition alleged, inter alia, that trial counsel was ineffective for failing to file a direct appeal and for failing to object to the accomplice liability charge given at trial.

¶ 4 After several continuances, the petition was denied without a hearing in 1999 because the trial court found that the allegations in the petition were insufficient to warrant relief. Bennett appealed the denial, and different, although not "new", counsel was appointed: Attorney Ciccone, who represented Bennett at trial, and who the PCRA petition alleged to have been ineffective, was directed to again represent Bennett in his appeal. Due to Attorney Ciccone's failure to file a brief, however, this Court dismissed that appeal "without prejudice" on August 14, 2000. Shortly after discovering that his appeal had been dismissed, in October 2000, Bennett filed pro se a second PCRA petition requesting reinstatement of his PCRA appellate rights nunc pro tunc due to counsel's abandonment of the prior appeal. In September 2001, this request was granted, new counsel was appointed, and before us now is Bennett's appeal of the dismissal of his first PCRA petition.

¶ 5 On appeal, he asks:

I. Whether this Court has jurisdiction since the PCRA court properly reinstated the appellant's [appellate] rights and the Commonwealth has waived its jurisdictional argument.

II. Whether the appellant is entitled to a new trial as a result of trial counsel's ineffectiveness [ ] for failing to request a mistrial since the prosecutor used his peremptory challenges to exclude African-Americans from the jury and for failing to renew his challenge to the prosecutor's actions and the ineffectiveness of post-trial motions, direct appeal and post-conviction counsel for failing to raise this issue.

III. Whether the appellant is entitled to a new trial as a result of trial counsel's ineffectiveness for failing to request a mistrial after the Commonwealth failed to provide pretrial discovery of a letter that co-defendant Kevin Wyatt wrote to Commonwealth witness Kecia Ray and the ineffectiveness of post-trial motions, direct appeal and post-conviction counsel for failing to raise this issue.

IV. Whether the appellant is entitled to a new trial as a result of trial counsel's ineffectiveness for failing to request a mistrial based upon the prosecutorial misconduct and the ineffectiveness of post-trial motions, direct appeal and post-conviction counsel for failing to raise this issue.

V. Whether the appellant is entitled to a new trial as a result of trial counsel's ineffectiveness for failing to request the trial court to instruct the jury that the Commonwealth was required to prove that the appellant acted with the specific intent to kill to convict him of murder of the first degree and the ineffectiveness of post-trial motions, direct appeal and post-conviction counsel for failing to raise this issue.

VI. Whether the appellant is entitled to a new trial as a result of the trial court's denial of a motion for mistrial after testimony was presented identifying the appellant in a co-defendant's redacted statement and the ineffectiveness of post-trial motions, direct appeal and post-conviction counsel for failing to raise this issue.

VII. Whether the appellant is entitled to a new trial as a result of trial counsel's ineffectiveness for falling to object to the trial court's jury instruction that allowed a letter written by co-defendant Kevin Wyatt to be considered as substantive evidence against the appellant and the ineffectiveness of post-trial motions, direct appeal and post-conviction counsel for failing to raise this issue.

(Appellant's Brief at 5.)

¶ 6 Given our disposition of this appeal, however, we do not reach its merits. We note, though, at least regarding Bennett's challenge to the accomplice liability charge given at trial—Issue # 5— that there is no doubt that there is merit to this claim. Wyatt, Bennett's co-defendant at trial, also was convicted of first-degree murder and later filed a PCRA petition alleging, inter alia, that the accomplice liability charge given at the trial was defective. In Wyatt's appeal from the denial of PCRA relief, we concluded that the charge, indeed, was erroneous, that counsel was ineffective for failing to object to it, and, accordingly, we vacated his first-degree murder conviction and remanded for a new trial. Commonwealth v. Wyatt, 2050 EDA 1999, 782 A.2d 1061 (Pa.Super. filed July 16, 2001) (unpublished memorandum). Given that they were tried jointly, there is no question that Bennett is entitled to relief on the same basis.

¶ 7 Nevertheless, we may not grant a new trial to Bennett, as, under our Supreme Court's recent and clarifying pronouncements regarding the strict and absolute time limits for filings under the PCRA, Bennett's second PCRA petition was untimely. The PCRA court was thus without jurisdiction to grant any relief, including its grant of nunc pro tunc restoration of Bennett's PCRA appellate rights, which resulted in the present appeal. As a result, we are constrained to conclude that this Court is without jurisdiction to hear this appeal.

¶ 8 The PCRA provides the exclusive vehicle for obtaining collateral relief on claims which are cognizable under the PCRA, including claims for nunc pro tunc reinstatement of appellate rights. See Commonwealth v. Eller, 569 Pa. 622, 807 A.2d 838 (2002)

. Under 42 Pa.C.S.A. § 9545, as amended in 1995, any PCRA petition, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final. Bennett's judgment of sentence became final in 1993 when the appeal period expired following the entry of his judgment of sentence. His first PCRA petition was timely, however, as it was filed before the 1995 amendments.³ To the contrary, Bennett's second PCRA petition requesting nunc pro tunc relief, filed after the 1995 amendments, was untimely on its face. Indeed, in August 2000, when this Court dismissed without prejudice Bennett's appeal from the denial of his first PCRA petition, he was by then ineligible to file a subsequent PCRA petition.⁴ While the PCRA provides for three exceptions to the one-year time-bar, see 42 Pa. C.S.A. § 9545(b)(1), Bennett has neither pled nor shown the applicability of any of these exceptions.

¶ 9 Because Bennett's second PCRA petition was untimely filed and not subject to any of the enumerated exceptions to the time-bar, under Supreme Court precedent declaring the time limitations of the PCRA to be mandatory and jurisdictional in nature, the PCRA court was without jurisdiction to grant any relief, and this Court is, as a result, without jurisdiction to hear the resulting appeal. See, e.g., Commonwealth v. Pursell, 561 Pa. 214, 219, 749 A.2d 911, 913-14 (2000)

(timeliness requirements of the PCRA are jurisdictional in nature, and the courts lack jurisdiction to grant PCRA relief unless the petitioner can plead and prove that one of the exceptions to the time bar applies); Commonwealth...