Commonwealth v. Brown, 052920 PASUP, 1824 MDA 2019

Docket Nº:1824 MDA 2019
Opinion Judge:OLSON, J.
Judge Panel:BEFORE: OLSON, J., MURRAY, J., and COLINS, J.
Case Date:May 29, 2020
Court:Superior Court of Pennsylvania




No. 1824 MDA 2019

Superior Court of Pennsylvania

May 29, 2020


Appeal from the PCRA Order Entered September 26, 2019 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0007803-2011




Appellant, David Michael Brown, appeals from an order entered September 26, 2019, which dismissed his petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The relevant factual and procedural history of this case are as follows. On November 20, 2013, following a bench trial, Appellant was convicted of receiving stolen property, persons not to possess a firearm, and possession of a controlled substance. He was later sentenced to eight to 16 years' incarceration. This Court affirmed Appellant's judgment of sentence on July 30, 2015 and our Supreme Court subsequently denied allocatur on December 7, 2015. Commonwealth v. Brown, 2016 WL 6114626 (Pa. Super. 2015), appeal denied, 128 A.3d 218 (Pa. 2015).

On November 16, 2016, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel and, on March 23, 2017, counsel filed an amended PCRA petition on Appellant's behalf. Appellant's petition claimed, inter alia, that both trial and appellate counsel were ineffective. The PCRA court held an evidentiary hearing on August 24, 2018, during which only Appellant testified. Ultimately, on September 26, 2019, the PCRA court dismissed Appellant's PCRA petition. This appeal followed.1

Appellant raises the following issues on appeal: I. Whether the PCRA court erred in failing to appoint substitute PCRA counsel[] under Pa.R.Crim.P. 904, whe[n] it permitted appointed PCRA counsel to withdraw several days before [the expiration of] the time for filing a timely appeal?

II. Whether the PCRA court erred in finding that trial [] and appellate counsel were effective in [litigating Appellant's] Rule 600 claim?

III. Whether [Appellant] was denied his . . . constitutional due process rights to effective assistance of PCRA counsel and his rule-based right to such assistance[] whe[n original] PCRA counsel provided ineffective assistance in litigating

Appellant's Rule 600 claims]? Appellant's Brief at 9.

We "review a denial of PCRA relief to determine whether the PCRA court's findings are supported by the record and free of legal error." Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). "[Our] scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party." Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008).

As a prefatory matter, we must address the timeliness of Appellant's appeal. The timeliness of an appeal implicates our jurisdiction, which we may raise sua sponte. Commonwealth v. Andre, 17 A.3d 951, 957-958 (Pa. Super. 2011). Pursuant to Pa.R.A.P. 903, a "notice of appeal. . . shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). This Court has, however, previously recognized that: [t]he pro se prisoner's state of incarceration prohibits him from directly filing an appeal with the appellate court and prohibits any monitoring of the filing process. Therefore[, ] . . . a pro se prisoner's appeal shall be deemed to be filed on the date that he delivers the appeal to prison authorities and/or places his notice of appeal in the institutional mailbox.

Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (parallel citations omitted).

We conclude that Appellant filed a timely notice of appeal. The PCRA court dismissed Appellant's PCRA petition on September 26, 2019. Thus, to be considered timely, Appellant needed to file his notice of appeal by October 28, 2019. See 1 Pa.C.S.A. § 1908. On October 25, 2019, the PCRA court granted Appellant's counsel permission to withdraw; hence, as of that date, Appellant was no longer represented by counsel and could act pro se without implicating any concerns with hybrid representation. Appellant's pro se notice of appeal is dated October 28, 2019, which is the final date of the appeal period. Because Appellant, as a pro se prisoner, is entitled to the benefit of the prisoner mailbox rule, we may accept "any reasonably verifiable evidence" that Appellant "deposit[ed] the appeal with the prison authorities" on or before October 28, 2019. Perez, 799 A.2d at 851. Appellant's notice of appeal dated October 28, 2019 supports the conclusion that he timely deposited the notice with prison authorities. Accordingly, for purposes of this matter, we shall treat Appellant's notice of appeal as timely filed.2

Next, Appellant argues that trial and appellate counsel provided ineffective assistance. The following principles govern our review of

Appellant's claim: To establish [] counsel's ineffectiveness, a petitioner must demonstrate: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for the course of action or inaction chosen; and (3) counsel's action or inaction prejudiced the petitioner.

Furthermore, a PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him.

Counsel's assistance is deemed constitutionally effective once this Court determines that the defendant has not established any one of the prongs of the ineffectiveness test.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014) (internal citations...

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