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[U] Commonwealth v. Cruz

Superior Court of Pennsylvania

February 11, 2014

GEORGE CRUZ, Appellant


Appeal from the PCRA Order January 4, 2013 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0014224-2009

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]



Appellant, George Cruz, appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because the PCRA court improperly proceeded on the merits of the petition before Appellant had waived or exhausted his reinstated direct appeal rights, we vacate the order denying PCRA relief.

On February 8, 2010, following a bench trial, the trial court found Appellant guilty of possession with intent to deliver a controlled substance and criminal conspiracy.[1] The charges stemmed from Appellant's sale of heroin packets to several individuals on a North Philadelphia street corner in May of 2009. On April 6, 2010, the trial court sentenced Appellant to a term of not less than two nor more than four years' incarceration, followed by five years' probation. Appellant did not file a direct appeal.

On July 28, 2010, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition on January 13, 2012 seeking reinstatement of Appellant's direct appeal rights. On May 30, 2012, the PCRA court entered an order granting PCRA relief and reinstating Appellant's direct appeal rights nunc pro tunc.

On June 26, 2012, before Appellant's direct appeal rights expired, [2] he filed a "supplemental" PCRA petition seeking to amend the original petition to request reinstatement of his right to file post-sentence motions nunc pro tunc.[3] On December 27, 2012, the Commonwealth filed a motion to dismiss the supplemental petition. On January 4, 2013, the PCRA court entered its order denying the petition. This timely appeal followed.[4]

Appellant raises three issues for our review:

I. Whether the evidence was insufficient to support Appellant's convictions where the Commonwealth failed to establish that he physically or constructively possess[ed] the heroin or shared the intent to deliver heroin with his alleged co-conspirator[?]
II. Whether the PCRA [c]ourt erred when it denied [Appellant's] PCRA requesting his right to file post sentence motions, when trial counsel's failure to challenge his sentence or the weight of the evidence at the [p]ost [s]entence level was ineffective per se and prejudice presumed[?]
III. Whether trial counsel was ineffective for not filing or litigating a [m]otion to [s]uppress and attacked [sic] the witness' credibility that reasonably could have suppressed key evidence which could have affected the outcome of his trial[?]

(Appellant's Brief, at 4).

Our standard of review for an order denying a PCRA petition is whether the PCRA court's determination is supported by the evidence of record and is free of legal error. See Commonwealth v. Lambert, 57 A.3d 645, 647 (Pa.Super. 2012), appeal denied, 67 A.3d 795 (Pa. 2013). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Id. (citation omitted).

Preliminarily, we must consider whether it was proper for the PCRA court to proceed with Appellant's "supplemental" PCRA petition before he waived or exhausted his direct appeal rights. Pennsylvania Rule of Criminal Procedure 901 provides that "[a] petition for post-conviction collateral relief shall be filed within one year of the date the judgment becomes final, except as otherwise provided by statute." Pa.R.Crim.P. 901(A); see also 42 Pa.C.S.A. § 9545(b)(1). A judgment becomes final at the conclusion of direct review by this Court or the Pennsylvania or United States Supreme Courts, or at the expiration of the time for seeking such review. See 42 Pa.C.S.A. § 9545(b)(3).

In Commonwealth v. Leslie, 757 A.2d 984 (Pa.Super. 2000), the appellant filed a PCRA petition before he exhausted his direct appeal rights. This Court held that the PCRA court lacked jurisdiction to proceed in the action, stating:

A PCRA petition may only be filed after an appellant has waived or exhausted his direct appeal rights. See Commonwealth v. Fralic, 425 Pa.Super. 581, 625 A.2d 1249, 1252 n.1 (1993) [(noting that defendant's PCRA petition was premature because it was filed before he had exhausted his direct appeal rights)]. The comments to Pa.R.Crim.P. [901] clearly state that the PCRA "is not intended to be a substitute for . . . the availability of appeal or a post-sentence motion." Pa.R.Crim.P. [901]. Further, "the defendant must raise . . . all grounds for relief available after conviction and exhaustion of the appellate process [either by affirmance or by the failure to take a timely appeal.]" Id.

Leslie, supra at 985-86 (emphasis in original)[5]; see also Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa.Super. 2002), appeal denied, 813 A.2d 839 (Pa. 2002) (stating that PCRA has no applicability until judgment of sentence becomes final).

Here, Appellant's judgment of sentence became final upon the expiration of the thirty-day period to seek appellate review with this Court, June 29, 2012. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.Crim.P. 910, comment. However, Appellant filed the instant PCRA petition on June 26, 2012, three days before his right to file a direct appeal from his judgment of sentence expired. Because Appellant filed the PCRA petition before he waived or exhausted his direct appeal rights and before the judgment became final, the petition was premature. See Leslie, supra at 985-86; see also 42 Pa.C.S.A. § 9545(b)(3). Although the PCRA court should have dismissed the petition as premature, see Leslie, supra at 985-86, the court instead addressed it on the merits. Because the PCRA court lacked jurisdiction to proceed in the action before Appellant waived or exhausted his direct appeal rights, we vacate the PCRA court's order denying the petition.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

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