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[U] Commonwealth v. Brown

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA,
v.
NICODEMUS LEE BROWN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order, November 26, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0011505-2001.

Joseph D. Seletyn, Esq.

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND PLATT, [*] JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.:

Appellant appeals from the order denying relief on appellant's second petition brought pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We quash.

On January 31, 2002, a jury convicted appellant of first-degree murder and two firearms charges. Less than one week after his conviction, he entered a counseled negotiated guilty plea to three counts of statutory sexual assault, two counts of involuntary deviate sexual intercourse, one count of indecent assault, and one count of corruption of minors.[1] Appellant was sentenced to a mandatory term of life imprisonment without the possibility of parole on the first-degree murder conviction, to run consecutively to an aggregate sentence of five to ten years' imprisonment on the firearms convictions and a negotiated sentence of two to four years' imprisonment on the sex crimes charge, to run concurrently with his life sentence. Subsequently, a panel of this court affirmed appellant's judgment of sentence for first degree murder and reversed his judgment of sentence for the firearms convictions. Commonwealth v. Brown, 849 A.2d 601 (Pa.Super. 2004) (unpublished memorandum). Allowance of appeal was denied by the Pennsylvania Supreme Court on November 1, 2004. Commonwealth v. Brown, 580 Pa. 694, 860 A.2d 121 (2004).

Appellant filed his first petition under the PCRA on March 3, 2005. Following the appointment of counsel, relief was ultimately denied on February 22, 2006. The denial of relief was affirmed on appeal on February 19, 2008, Commonwealth v. Brown, 951 A.2d 1206 (Pa.Super. 2008) (unpublished memorandum), and allowance of appeal was thereafter denied on July 30, 2008. Commonwealth v. Brown, 598 Pa. 761, 956 A.2d 431 (2008).

Appellant filed his second pro se PCRA petition on August 23, 2012. (Docket #38.) Pursuant to Pa. R.Crim.P. 907, the PCRA court filed a notice of intention to dismiss the petition without a hearing. (Docket #39.) Appellant filed a response; however, on November 26, 2012, an order was filed dismissing appellant's petition. (Docket #41.) Thereafter, on February 4, 2013, appellant filed a pro se notice of appeal, seeking acceptance "as nuc [sic] pro tunc". (Docket #42.) On March 4, 2013, the trial court ordered appellant to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.

"Before addressing the merits of Appellant's claims, we must address the timeliness of this appeal as it implicates our jurisdiction." Commonwealth v. Yarris, 557 Pa. 12, ___, 731 A.2d 581, 587 (1999) (appellate courts may consider the issue of jurisdiction sua sponte). "Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal." Commonwealth v. Nahavandian, 954 A.2d 625, 629 (Pa.Super. 2008), citing Commonwealth v. Miller, 715 A.2d 1203, 1205 (Pa.Super. 1998). "This Court does not have jurisdiction to hear an untimely appeal." Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa.Super. 2007), citing Commonwealth v. Green, 862 A.2d 613, 615 (Pa.Super. 2004).

Appellant was required to file notice of appeal within 30 days of the November 26, 2012 order denying his PCRA petition. Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. Thus, appellant had to file a timely appeal on or before Wednesday, December 26, 2012. Appellant's pro se notice of appeal, filed February 4, 2013, is untimely.

It is important to note that the trial court never expressly granted appellant the permission to file a notice of appeal nunc pro tunc in this case. The trial court did not even acknowledge that the notice of appeal was untimely filed. If the trial court does not expressly grant nunc pro tunc relief, the time for filing an appeal is neither tolled nor extended. See Commonwealth v. Dreves, 839 A.2d 1122, 1128-1129 (Pa.Super. 2003). Nor is the trial court's resolution of the merits of appellant's claim a substitute for an order expressly granting nunc pro tunc relief. Appellant's notice of appeal was clearly untimely. Accordingly, we must quash this appeal.

Appeal quashed.


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