Case Information

*1 J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF : PENNSYLVANIA

v. ANTHONY THOMASON, No. EDA 2016

Appellant Appeal from the Order, December 2015, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0500321-2004 BEFORE: BOWES, J., DUBOW, AND FORD ELLIOTT, P.J.E. FILED APRIL 04, 2017

MEMORANDUM BY FORD ELLIOTT, P.J.E.: Anthony Thomason appeals from order dismissing pursuant Post -Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, affirm. underlying facts of this case were summarized court and need reiterated here. (See court opinion, 2/10/16 at 3-4.) In sum, found guilty first -degree murder, possessing instruments of crime, carrying firearm license, carrying firearm public streets or public property Philadelphia' after he shot killed James Preston Thomas the early morning hours of August March 27, sentenced mandatory aggregate ' Pa.C.S.A. §§ 2502, 907, 6106, 6108, respectively.

term life imprisonment without possibility of parole. On October 18, 2007, this court affirmed appellant's judgment of sentence, our supreme court denied appellant's petition for allowance of on May 8, See Commonwealth v. Thomason, 943 A.2d 324 (Pa.Super. 2007) (unpublished memorandum), appeal denied, 947 A.2d 737 (Pa. 2008).

On April 14, 2009, filed timely pro se PCRA petition counsel was appointed represent him. Appellant filed amended petitions on August 17, 2009 August 13, 2010. On November 4, 2011, the PCRA court entered an order dismissing appellant's petition. On 20, this court affirmed the court's order, for allowance of our supreme court on January 14, 2014. See Thomason, A.3d 515 (Pa.Super. 2013) (unpublished memorandum), appeal denied, A.3d 811 2014).

While his petition for allowance of appeal was pending before our supreme court, appellant the instant pro petition, second, on March 2014.2 September 2014, the court sent appellant notice of its intent dismiss hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant responded to court's Rule 907 notice on September 2014. Following several continuances, PCRA court entered November 2015, dismissing appellant's record reflects appellant's petition for allowance of appeal was ultimately denied by our supreme on May 21, 2014. (See certified record at 31.)

petition. The docket entry for this order incorrectly indicates that appellant had been appointed counsel who requested permission withdraw in accordance Commonwealth v. Turner, 544 A.2d 927 1988), Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The record further reflects that court mistakenly entered a second Rule 907 notice November 2015, rather than forwarding appellant its November order accordance Rule 907(4).3 The court erroneously indicated this Rule 907 notice that appellant's in appointed counsel had filed Turner/Finley letter and concluded his issues were without merit. (See Rule 907 notice, 11/19/15; certified record at 35.) Appellant response to court's dismissal notice on December 2015. 2015, the entered order vacating its

November order "because copy of ORDER not sent to [appellant.]" (PCRA court order, 12/7/15; certified record at 37.) This order Rule 907(4) provides as follows:

(4) When petition dismissed hearing, the judge promptly shall issue an order effect shall advise defendant certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition time limits within which the appeal must be filed. shall served provided Rule Pa.R.A.P. 907(4).

dismissed second a hearing because it was both untimely filed premature. (Id.) The order further instructed that November 17, docket entry be amended to reflect that, "[appellant's] was dismissed because it was untimely filed because it filed while petition for allowance of appeal was still pending." (Id.) The court clarified that no Turner/Finley letter had been filed and appellant had been appointed counsel "because the instant matter commenced the filing of a premature untimely PCRA petition." (Id.)

Appellant filed pro se notice of appeal docketed on January 13, 2016.4 On May 5, 2016, this court directed to show cause why January 2016 appeal should not be quashed as (Per curiam order, 5/5/16.) May 2016, this court untimely. entered discharging its May 2016 rule to show cause (Per curiam order, referred the timeliness issue to instant panel. 5/25/16.)

Preliminarily, must address whether pro appeal is It is well settled "notice . timely. . shall within . days after entry of the order from which the taken." Although not ordered do so, concise statement errors complained of appeal, accordance Pa.R.A.P. 1925(b), on February 2016. filed its Rule 1925(a) opinion on February

Pa.R.A.P. 903(a). In the instant matter, notice of appeal was on January 13, 2016, 37 days after the entry of the December 7, 2015 dismissing petition. Although appellant's notice of appeal appears to untimely on its face, we conclude that the prisoner mailbox rule applies this case. Where pro se is incarcerated, is case here, an appeal is deemed filed on the date the prisoner deposits the appeal prison authorities or places it prison mailbox. See Chambers, A.3d 34, (Pa.Super. 2011), appeal denied, 46 A.3d 715 2012).

Instantly, record reflects deposited his pro notice prison mailbox on 20, 2015, with proof of service the notice mailed on date. (See "Supplemental Response to Order to Show Cause Issued on May 5, 2016," 6/13/16 at Exhibit AA, at 4-5.) Appellant's notice of appeal, however, mistakenly omitted two digits from the case docket number.5 As result, the clerk of courts returned the notice of appeal to appellant with undated letter (Id. at advising him to resubmit "motion" correct number. Exhibit AA, at 8-9.) The envelope accompanying this letter post -marked January received prison authorities at SCI Benner on January 2016. (Id. at Exhibit AA, at 7.) January appellant caption notice contained docket number CP-51-CR-05321-2004; the correct docket number CP-51-CR-0500321- deposited pro se notice of prison authorities that included the correct docket number; this notice of appeal was docketed that same day. (See notice of appeal, 1/13/16; certified record at 38.)

There no indication that pro notice of appeal was time -stamped with the date it initially received the clerk of courts.6 However, record reflects that the envelope accompanying the appeal time -stamped as having been received on 2015, well before the 30 -day appeal period expired. (See "Supplemental Response to Order to Show Cause Issued on May 2016," 6/13/16 at Exhibit AA, at 10.) Pennsylvania Rule of Appellate Procedure 905 requires that, "[u]pon receipt of the notice of the clerk shall immediately stamp it date of receipt, date shall constitute the date when appeal was taken, which date shall shown on docket." Pa.R.A.P. 905(a)(3). The "[f]ailure an to take any step other than the timely filing of notice of appeal does affect the validity of the appeal." Pa.R.A.P. Accordingly, deem instant appeal to be timely. See Williams, 106 A.3d 585-589 2014) (holding clerk of courts lacks authority reject, defective, otherwise timely notice of appeal; "therefore [it is] obligated accept process notices appeal upon receipt accordance with the Rules of Appellate We note court -appointed counsel entered her appearance this court June 10, and has brief on behalf.

- - Procedure, notwithstanding any perceived defects therein" (citations omitted)). appeal, presents the following issues for our review:

[1.] Whether the Order 2015 not free of legal err [sic] because PCRA Court did comply with Pa.R.Cr[im].P. 907 provide notice informing [appellant] of the reasons for dismissing PCRA Petition hearing effectively denying [appellant] meaningful opportunity to amend PCRA petition? [2.] Whether the PCRA Court abused its discretion in dismissing the second PCRA petition without hearing where review of the record indicates [appellant] was denied the assistance of counsel in connection first PCRA petition?

[3.] Whether the PCRA Court abused its discretion dismissing second PCRA petition for lack jurisdiction because it was while the for allowance of from the denial of the first pending? [4.] Whether the Court abused its discretion when it found Petition be untimely?

[5.] Whether the conviction obtained sentence imposed violation of the right to effective assistance counsel guaranteed by the Sixth Fourteenth Amendments Constitution of the United States?

Appellant's brief at 2-3.

We must begin addressing whether lacked jurisdiction over appellant's petition. The record reflects filed the instant pro PCRA petition on March 2014, during the pendency of from the order denying his first PCRA petition. It is well settled an appellant cannot file a successive PCRA petition while previous PCRA petition is still pending on appeal. "When appellant's PCRA appeal is pending before court, subsequent PCRA petition cannot be until the resolution of review of the pending PCRA petition the highest state court which review is sought, or upon the expiration of the time for seeking such review." Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000); see also Commonwealth Ali, A.3d 282, 320 2010) (citing Lark for the proposition "as [a] matter jurisdiction, [a] PCRA court cannot entertain new PCRA claims or [a] new PCRA when [a] prior petition still under review appeal"). Accordingly, agree with PCRA it did possess jurisdiction address merits of second petition.

Furthermore, even if of appellant's first was not pending, the timeliness second petition implicates jurisdiction of this court court. See v. Davis, A.3d 887 (Pa.Super. 2014) (citation omitted). All PCRA petitions, including subsequent petitions, must within one year of when defendant's judgment of sentence becomes final. Pa.C.S.A. § 9545(b)(1). "A judgment becomes final at the conclusion of direct review, including discretionary review the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of the time for seeking the review." Id. § 9545(b)(3). If PCRA petition is untimely, court lacks jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).

Here, it undisputed March 2014 PCRA petition is patently untimely. Appellant's judgment sentence became final on August 90 days after our supreme court denied petition for allowance of and the time for filing petition for certiorari the United States Supreme Court expired. See Pa.C.S.A. § 9545(b). As result, the PCRA court lacked jurisdiction to review appellant's on this basis well, unless alleged proved one of the statutory Section 9545(b)(1). See exceptions to time bar set forth Lawson, 90 A.3d (Pa.Super. 2014). Here, we agree well -reasoned rationale of the PCRA court appellant failed to prove any of the statutory exceptions PCRA time -bar. (See court opinion, 2/10/16 at 5-9.)

Accordingly, find lacked jurisdiction consider merits properly dismissed it as untimely prematurely filed. We affirm the December of court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn,

Prothonotary

Date: 4/4/2017

- -