Seifullah Abdul-Salaam (“appellant”), who is represented by the Federal Community Defender of the Eastern District of Pennsylvania, 1 purports to appeal from a “Praecipe for Entry of Adverse Order Denying and Dismissing Petitioner/Appellant’s Third Protective Petition for Habeas Corpus Relief’ that he filed at the same time he filed a Notice of Appeal from his praecipe. The appeal is interlocutory and we therefore quash it.
On March 15, 1995, a jury convicted appellant of robbery, conspiracy, and the first-degree murder of Police Officer Willis Cole of the New Cumberland Police Department in Cumberland County. Appellant was sentenced to death after a jury decided that the aggravating circumstances presented by the Commonwealth outweighed the mitigating circumstances proffered by the defense. This Court affirmed the judgment of sentence.
Commonwealth v. Abdul-Salaam,
Following these post-conviction proceedings in the courts of this Commonwealth, appellant filed a petition for federal habeas corpus relief in 2002.
2
Over five years later, on January 16, 2007, while the federal collateral petition was still pending, appellant filed his third petition for state collateral relief in the Cumberland County Court of Common Pleas. Notwithstanding
On August 4, 2008, again back in the Cumberland County Court of Common Pleas, the Commonwealth filed a request for an evidentiary hearing on the alleged new claim, and attached a copy of the federal court’s July 7, 2008 stay order. On August 27, 2008, appellant filed what he styled as a “Supplement to Third Protective Petition for Habeas Corpus Relief’ and asked for additional discovery and an evidentiary hearing. In April 2009, appellant and the Commonwealth filed additional pleadings regarding this “Third Protective Petition,” but the common pleas court took no immediate action on any of these filings.
5
Four months later, on August 24, 2009, appellant filed, in tandem, both a “Praecipe for Entry of Adverse Order Pursuant to Pennsylvania Rule of Appellate Procedure 301 D & E” and a Notice of Appeal.
6
Given the
contemporaneous notice of appeal, no actual “adverse” order was entered by the court below in response to appellant’s praecipe. Indeed, it appears appellant never intended to appeal any court order; as he stated in his notice of appeal and in his brief to this Court, he purports to appeal “from the Praecipe”
The praecipe and notice of appeal are actually dated August 18, 2009, and appellant's notice of appeal, Jurisdictional Statement, and brief all state that he "filed” the praecipe on August 18, 2009. The notice of appeal states that appellant "hereby appeals to the Pennsylvania Supreme Court from each and every aspect of the Praecipe for Entry of Adverse Order denying and dismissing Petitioner/Appellant’s Third Protective Petition for Habeas Corpus Relief Under 42 Pa.C.S. § 9542 et seq. and Consolidated Memorandum of Law filed on January 16, 2007, as amended and supplemented on August 26, 2008 and April 17, 2009, said Praecipe having been filed in this Court on August 18, 2009” (emphasis in original). Appellant’s certificates of service indicate that he sent the documents to the PCRA court judge and the Commonwealth's attorney by overnight mail on August 18, 2009, but the filing date of Monday, August 24 no doubt reflects when the mailed documents were actually received by the clerk of courts. The salient point for our purposes is that the appeal was filed аt the same time as the praecipe.
In the Pa.R.A.P.1925(a) Opinion it filed after being served with the notice of appeal, the court below notes, accurately enough, that the label of “protective petition” on appellant’s serial PCRA filings was misleading and that, “had the latest petition been read more closely, the court would have taken action.” PCRA Ct. Op. at 2. The court further notes thаt this is not a case where appellant will be “unable to secure the formal entry of an appealable order pursuant to the usual procedures” if the matter is pursued in the first instance in the lower court. The court suggests that a remand or quashal will bring the matter before it with the “requirement that some decision be made with regard to it.” Id. at 3.
In the jurisdictional statement in his brief, appellant declares that this Court has jurisdiction under 42 Pa.C.S. § 9546(d), because the appeal involves a final court order in a PCRA death penalty case. In the body of his brief, appellant insists that the PCRA court’s supposed delay compelled his action and that Pa.R.A.P. 301(e) “was designed just for circumstances like this one.” Appellant’s Brief at 23. Appellant attempts to justify his action by declaring that he “is a death row prisoner. His attempts to have his claims heard were thwarted by the inaction of the PCRA court, despite requests for a hearing from both sides... After all of this waiting, Appellant was well within his rights to file the Praecipe after enduring more than another year of inexplicable delay.” Appellant’s Brief at 23-24. 8 Appellant did not inquire of the trial court concerning the status of his mislabeled PCRA petition before filing his praecipe and cоncomitant appeal, PCRA Ct. Op. at 3, nor did he request expedition, nor did he seek a writ of mandamus from this Court to direct the lower court to decide the case more promptly. See, e.g., 42 Pa.C.S. § 721(2) (Supreme Court shall have original jurisdiction of all cases of mandamus to courts of inferior jurisdiction).
Notwithstanding the absence of any ruling, order, or adverse action by the court below, appellant claims that, in this “appeal” from a praecipe, this Court should resolve the substantive issues in his serial collateral attack, in his favor, in the first instance, as this Court’s review is “plenary.” Appellant’s Brief at 1. Specifically, appellant asks that we “vacate his convictions and sentences” and “preclude retrial on state double jeopardy grounds,” or else remand the matter for an evidentiary hearing. Appellant’s Brief at 40.
In its responsive brief, the Commonwealth correctly challenges the propriety of the appeal.
9
The Commonwealth argues that the matter is not properly before this Court because appellant has essentially appealed a delay of proceedings, rather than a final order. The Commonwealth accurately notes that appellant filed his
Our review confirms that there has been no final, appealable order entered in this matter. Indeed, no action of any kind, much less any action or order adverse to appellant’s interests, was taken by the PCRA court concerning appellant’s deceptively labeled serial PCRA petition. Appellant’s praecipe was not any kind of order of court, let alone a final order. See Pa.R.A.P. 102 (order includes “judgment, decision, decree, sentence and adjudication”); Pa.R.AP. 341 (final order is one that disposes of all claims and all parties; or is expressly defined as such by statute; or is entered upon trial court’s determination that immediate appeal from otherwise interlocutory order would facilitate resolution of entire case). Appellant’s claim in his brief that his self-help praecipe serves as the appealable order wrongly assumes that his action was justified under the Rule he invokes. In the praecipe he filed below and again in his appellate brief, appellant cites Pa. R.A.P. 301(d) and (e) as establishing a basis for jurisdiction via his praecipe. Neither subsection of Rule 301 was properly invokеd.
Rule 301 provides, in pertinent part, as follows:
(d) Entry of appealable orders. Subject to any inconsistent general rule applicable to particular classes of matters, the clerk of the lower court shall on praecipe of any party (except a party who by law may not praecipe for entry of an adverse order) forthwith prepare, sign and enter an appropriate order, judgment or final decree in the docket, evidencing any action from which an appeal lies either as of right or upon permission to appeal or allowance of appeal.
(e) Emergency appeals. Where the exigency of the case is such as to impel an immediate appeal and the party intending to appeal an adverse action is unable to secure thе formal entry of an appealable order pursuant to the usual procedures, the party may file in the lower court and serve a praecipe for entry of an adverse order, which action shall constitute entry of an appealable order for the purposes of these rules. The interlocutory or final nature of the action shall not be affected by this subdivision.
Pa.R.A.P. 301. Respеcting Rule 301(d), the docket reflects that the clerk of the lower court did not enter any order based on appellant’s self-help praecipe. Thus, even if it is assumed that appellant’s praecipe was properly filed, the absence of an order from the clerk renders this appeal subject to quashal as a Rule 301(d) matter. Moreover, as the praecipe and notice of appeal were filed simultaneously, appellant did not even engage in the pretense of waiting for entry of any such order. Appellant obviously did not intend to permit the clerk to perform his function under Rule 301(d).
More importantly, the clerk could not properly have entered an order or judgment in this case under Rule 301(d) because appellant’s praecipe obviously did not sаtisfy the plain terms of the rule. Subsection (d) requires that the praecipe relate to an “action from which an appeal lies either as of right or upon permission to appeal or allowance of appeal.” There is no mechanism for an appeal “as of right” from the trial court’s “inaction” in the four months following appellant’s latest, mislabeled PCRA pleading.
Cf.
Pa.R.Civ.P. No.
Appellant’s citation to Rule 301(e) was equally improper. By its plain terms, this subsection contemplates: 1) an exigency that not merely authorizes, but “compels” an immediate appeal; 2) an actual “adverse action” by the tribunal below which is the proper subject of an immediate appeal, but which has not yet been recognized by the formal entry of an order; and 3) an “inability” (not a mere disinclination) on the part of the aggrieved party to “secure” the formality of entry of the order by “usual procedures.” The Rule thus contemplates an existing, appealable adverse action, and exigent circumstances; with the “mere formality” of the entry of the order missing; where normal channels of seeking entry of the ordеr have been attempted, to no avail. None of these elements, essential to a party’s invoking the rather extraordinary avenue of appeal provided in Rule 301(e), were remotely present here.
First, even assuming there was an appealable adverse action by the court below, appellant never identified the “exigency” that compelled an immediate appeal. 10 If appellant truly was concerned with the delay in disposing of his serial collateral attack, he could have filed a motion in the PCRA court regarding the status of the “protective” petition, or a request for expedition. Tellingly, he did not. Second, in point of fact, there was no “adverse,” appealable “action” by the PCRA court, lacking only recognition by the “formality” of entry of an order, for appellant to appeal. Appellant’s feigned complaint here is that the trial court failed to act within a time frame that appellant appears to believe he is at liberty to establish — a failure attributable, in no small measure, to appellant’s deceptive labeling of what could only properly have been a serial PCRA petition. That is not an аppealable, adverse “action.”
This Court is not naive. We do not discount the possibility that appellant’s misleading characterization of his serial PCRA petition was designed to create confusion, and to set the stage for the very maneuvering and inherent delay that followed. It is also not lost upon this Court that appellant’s maneuvering purported to deprive the court below of jurisdiction at the very moment he first forwarded his supрosed complaint about the matter not being decided promptly. Although appellant cited Rule 301(d), he obviously had no intention of permitting the court or the Commonwealth to address his supposed concern, since he took his “appeal” immediately. Appellant’s maneuvering has succeeded in building-in a year’s delay in the disposition of his serial PCRA petition. We do not condone the taсtic.
This appeal is a nullity. The PCRA court notes that a remand or quashal will bring the matter before it with the “requirement that some decision be made with regard to it.” PCRA Ct. Op. at 3. We agree and hold that quashal is appropriate; the court should decide the serial PCRA petition — styled by appellant as his “Third Protective Petition” and supplements thereto — as expeditiously as possible.
Appeal quashed. Jurisdiction relinquished.
Notes
. Counsel of record are Michael Wiseman, David Zuckerman and Elizabeth Larin.
. Appellant claimed, inter alia, that the Commonwealth improperly withheld exculpatory blood/DNA evidence.
. The complete, prolix title of appellant's filing is "Seifullah Abdul-Salaam's Third Protective Petition for Habeas Corpus Relief Pursuant to Articlе I, Section 14 of the Pennsylvania Constitution And Statutory Post-Conviction Relief Under 42 Pa.C.S. § 9542 et seq. and Consolidated Memorandum of Law” (emphasis in original).
. This sort of delay-inducing "ping-ponging” between state and federal courts, unfortunately, is not uncommon in Pennsylvania capital cases; the known local federal practice of holding pending habeas petitions in abeyance while counsel files frivolous, time-barred serial PCRA petitions naturally encourages state capital litigants to pursue serial PCRA petitions, thus ensuring delay in the ultimate resolution of their cases.
. Despite the fact that the federal matter had by that time been stayed, appellant still styled his August 2008 and April 2009 filings as "protective," going so far as to underline the word "protective” in the first paragraph of his August 2008 pleading.
. The lower court docket reflects that appellant’s praecipe, notice of appeal, Motion for Leave to Appeal in Forma Pauperis, and related statements were all filed, and date-stamped "FILED,” on August 24, 2009, a Monday. The deputy clerk of courts entered an order that same day, granting appellant leave to appeal in forma pauperis.
. Appellant would raise the following substantive issues here: 1) was appellant denied due process of law when the Commonwealth suppressed exculpatory blood evidence; 2) was appellant denied due process of law when the jury was permitted to consider fingerprint evidence which is now known to be scientifically unreliable; 3) are these due process violations material to his convictions and sentenсes; 4) are these claims waived and/or previously litigated. Appellant's Brief at 1-2. Of course, the controlling preliminary issue is whether appellant can satisfy the PCRA’s limitations on presumptively time-barred serial petitions.
. Appellant’s measure of the supposed "delay” here lacks candor, since he filed the praecipe a mere four months after his latest filing regarding what he was still referring tо as his "Third Protective Petition.”
. The Commonwealth did not file a motion to quash the appeal in advance of briefing.
. Although this is a capital case, execution has been stayed pending federal review (Order dated December 9, 2002), and federal review has been stayed pending state review (Order dated July 7, 2008).
Compare Commonwealth v. Abdul-Salaam,