Commonwealth v. Gonzalez

• Decision Date: 07 December 2021
• Docket Number: 2233 EDA 2020
• Citation: 270 A.3d 1121 (Table)
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jean GONZALEZ, Appellant
• Court: Pennsylvania Superior Court

270 A.3d 1121 (Table)

COMMONWEALTH of Pennsylvania, Appellee

v.Jean GONZALEZ, Appellant

No. 2233 EDA 2020

Superior Court of Pennsylvania.

Filed December 7, 2021

MEMORANDUM BY STEVENS, P.J.E.:

Appellant, Jean Gonzalez, appeals from the December 11, 2019 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. Counsel has petitioned to withdraw pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc ). After review, we grant counsel's petition to withdraw and affirm the order of the PCRA court.

Factual and Procedural History

The following facts were set forth by the Commonwealth at Appellant's June 22, 2018 guilty plea hearing

[O]n December 23rd of 2016, at approximately 10:30 p.m., the victim in this case, Edgar Morales, age 17, was at 226 East Stella Street in Philadelphia when two of his friends, his mother[,] and another female engaged in a fist fight with a group of people including Appellant's cousin, Ramon Luz.... During that fight the victim and his friends assaulted Mr. Luz.

After that fight came to an end, Mr. Ramon Luz picked Appellant up in his vehicle. He also picked up his brother, Orlando. Those three men ... proceeded to 246 East Stella Street, which is the home of Edgar Morales. Appellant, his cousin Ramon Luz[,] and his cousin Orlando Bruno, as well as approximately fifteen to twenty other people, knocked on the door of 246 East Stella Street so forcefully that the pane of glass on the outer storm door broke, demanding that Edgar Morales come out and engage in another fight. Mr. Morales emerged from the house with two of his friends and his mother. Mr. Morales had a 1x2 piece of wood. His friends had a wooden broomstick and a baseball bat. His mother did not have any objects in her hand. They engaged in a second fight ... [with] ... Mr. Ramon Luz and other members of the fifteen to twenty people outside the block. During this fight Appellant produced a handgun from his hoodie pocket and fired four or five shots at Mr. Morales, striking him once in the upper right chest. Appellant then fled on foot with the gun.

Mr. Morales was taken by a private vehicle to ... Episcopal Hospital where he was pronounced [dead] at 11:16 p.m. by Doctor Arnold. On December 24, 2016, Doctor Brown at the Philadelphia Medical Examiner's Office conducted a post-mortem examination of Edgar Morales's remains. He determined to a reasonable degree of scientific certainty that the cause of death was a gunshot wound to the chest, and the manner of death was homicide. The gunshot wound specifically was deep; penetrated Mr. Morales's right and left lungs and lodged in his back where it was recovered by the assistant medical examiner. Mr. Morales had a negative toxicology screen.

Appellant was wanted for murder after an arrest warrant was issued February 28th of 2017 and remained a fugitive until April 5th of 2017 when Philadelphia police officers responded to a call for a person with a gun and saw him at the corner of Frankford and Orleans Street in Philadelphia. Police Officer Delossantos approached Appellant, at which point Appellant ran and led Officer Delossantos on a foot pursuit. During that foot pursuit, Officer Delossantos saw Appellant throw a fanny pack that was later recovered by Police Officer Tyler Smith. Inside of which was a loaded nine[-]millimeter firearm with an obliterated serial number and additional magazine containing twenty-two rounds and an additional twenty-two loose live rounds of ammunition. That was recovered and placed on Property Receipt 329682. Two bullet fragments were recovered from outside of the murder scene at 246 East Stella Street and one projectile was recovered from the body of the decedent. There were no fired cartridge casings recovered. The firearms examiner determined that the bullet fragments were consistent with being fired from a revolver. And further determined that the two bullet fragments recovered and the projectile recovered from the decedent's body were all fired from the same firearm. The examiner performed a cross-check of that ballistic evidence to the nine[-]millimeter which was recovered on April 5, 2017, and determined that the ballistic evidence was not fired from the nine[-]millimeter recovered on April 5, 2017. Appellant does not have a valid license to carry a firearm in Pennsylvania. He was ineligible to carry one based on his two prior convictions for Possession With Intent to Deliver. They were specifically under Common Pleas Docket Number 10177-2013 and Municipal Court Docket 29934-2012.

N.T., 6/22/2018, at 33-36 (party designations altered).

After agreeing that these facts were accurate, Appellant pleaded guilty to third-degree murder, 18 Pa.C.S.A. § 2502(c), and possession of a firearm prohibited, 18 Pa.C.S.A. § 6105(a)(1), at docket number CP-51-CR-0004450-2017 ("Murder Docket"). On the same date, in accordance with the plea agreement, the plea court sentenced Appellant to 15 to 30 years of incarceration for third-degree murder and a concurrent term of five to ten years of incarceration for possession of a firearm.

As part of the negotiated plea, Appellant also pleaded guilty to possession of a firearm prohibited, 18 Pa.C.S.A. § 6105(a)(1), at docket number CP-51-CR-0004486-2017 ("Firearm Docket"). Appellant's sentence of five to ten years of incarceration at the Firearm Docket ran concurrent to his sentence at the Murder Docket, for an aggregate sentence of 15 to 30 years’ incarceration at both dockets. Appellant did not file a direct appeal to this Court.

On January 25, 2019, Appellant pro se timely filed a PCRA petition, alleging, inter alia , that he was entitled to relief pursuant to 42 Pa.C.S.A. § 9543(a)(i), (iii), and (viii). PCRA Petition, 1/25/2019, at 2-3. His petition referenced both the Murder Docket and the Firearm Docket. Specifically, Appellant raised claims that he would not have pleaded guilty if counsel had informed him that he would receive the maximum sentence for third-degree murder, as well as claims relating to the plea court's jurisdiction, constitutionality of the third-degree statute, and legality of his sentence. See PCRA Petition, 1/25/2019, at 4; see also PCRA Petition, 1/25/2019, at Exh. 1 (Statement of Relief at 2-16).

Counsel was appointed to represent Appellant in his PCRA matter. In lieu of amending Appellant's petition, counsel filed a letter and accompanying motion to withdraw pursuant to Turner/Finley , indicating his belief that Appellant's petition had no merit.

On October 19, 2020, the PCRA court filed notice of intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant pro se filed a response on October 28, 2020, raising new claims of ineffective assistance of plea counsel,¹ claiming that plea counsel failed to (1) consult with Appellant and investigate his case; (2) inform Appellant of the applicability of a defense of self-defense, crime of passion, or mutual combat, causing Appellant to plead guilty; and (3) advise Appellant of his right to file a post-sentence motion or file a direct appeal. Response to Rule 907 Notice, 10/28/2020, at 4-7.

Finally, Appellant raised a layered claim of ineffective assistance of PCRA counsel. That is, he contended that PCRA counsel was ineffective for not consulting with him and not raising the ineffectiveness of plea counsel within an amended petition. Id. at 3, 6-7.

Prior to the PCRA court's taking any further action on Appellant's petition or response, Appellant pro se filed the instant notice of appeal on October 28, 2020. Curiously, Appellant claimed to appeal from an order entered on October 28, 2020, despite no such order appearing on the docket. This notice of appeal, which referenced only the Murder Docket, was docketed in this Court as 2233 EDA 2020. While the appeal was pending in this Court, the PCRA court filed an order dismissing the petition on November 30, 2020. The same order also granted PCRA counsel's petition to withdraw.² Order, 11/30/2020, at 1. For reasons that are unclear, the PCRA court filed an order on January 11, 2021, once again granting PCRA counsel's motion to withdraw.

On January 28, 2021, this Court issued a rule to show cause at the instant docket, 2233 EDA 2020, as to why this Court should not dismiss Appellant's appeal because the October 28, 2020 order from which he purportedly appealed was not entered on the PCRA court's Murder Docket. Appellant did not file a response. On March 3, 2021, this Court discharged the rule to show cause at docket number 2233 EDA 2020 and referred the issue to the panel. On April 15, 2021, the PCRA court appointed new counsel, Stephen T. O'Hanlon, Esquire, to represent Appellant on appeal. Attorney O'Hanlon filed a statement pursuant to Pa.R.A.P. 1925(c)(4) indicating that he intended to file a Turner/Finley letter brief and motion to withdraw, both of which he ultimately filed on May 24, 2021, following the PCRA court's filing of a Pa.R.A.P. 1925(a)(1) opinion. Appellant has not filed a brief pro se or through new counsel.

Appellate Jurisdiction

Before we address the merits, we must address the preliminary matter of whether we have jurisdiction over this appeal. Our review of the Murder Docket did not reveal an order entered on October 28, 2020. In context, however, it appears that Appellant intended to appeal from the PCRA court's Rule 907 notice of dismissal entered on October 19, 2020, and erroneously referred to the incorrect date.³ We will treat it as such.

Because the PCRA court had not yet entered its order formally dismissing Appellant's petition, Appellant's appeal is technically premature. Nevertheless, Appellant's premature appeal was perfected on November 30, 2020, when the PCRA court filed the order dismissing Appellant's PCRA petition and granting PCRA counsel's motion to withdraw. See Pa.R.A.P. 905(a)(5) (providing that a "notice of appeal filed after...