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Commonwealth v. Shaw

Superior Court of Pennsylvania

August 16, 2019

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
PIEATTRO SHAW Appellant

          Appeal from the PCRA Order January 22, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CR-51-CR-0807931-2005

          BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS [*] , J.

          OPINION

          GANTMAN, P.J.E.

         Appellant, Pieattro Shaw, appeals from the order entered in the Philadelphia County Court of Common Pleas, which dismissed as untimely his first petition filed under the Post Conviction Relief Act ("PCRA").[1] We affirm.

         This Court has previously set forth the relevant facts of this case as follows:

On July 13, 2004, [Appellant] entered the home of Darlene Peck ["Ms. Peck"] at 5121 Locust Street in Philadelphia without permission. The record in the trial court established that [Appellant] held Ms. Peck down and tried to kiss her and then fled the scene. [Appellant] and Ms. Peck were involved romantically two years prior to this altercation. Several weeks leading up to this incident, [Appellant] saw Ms. Peck in public. She was eight months pregnant at the time, which upset him.
The next day, on July 14, 2004, [Appellant] again entered Ms. Peck's residence without permission. [Victim], Ms. Peck's live-in boyfriend and father of her then two-week old child, told [Appellant] to leave. As [Victim] escorted [Appellant] out of the house, [Appellant] withdrew a .380 caliber handgun and fired once striking [Victim] in the head. [Victim] lost consciousness.
Police were summoned to the scene and Ms. Peck gave them a description of [Appellant's] car. A car matching Ms. Peck's description was located heading back toward the residence. Police ordered [Appellant] to pull over and he was apprehended. They recovered a .380 caliber handgun from [Appellant's] waistband. One spent cartridge casing and two live rounds of .380 caliber ammunition were recovered at the scene.
[Victim] never regained consciousness and died several days later on July 17, 2004. The coroner determined the cause of death was the gunshot wound to the right parietal lobe from a .380 caliber bullet recovered during the autopsy.

Commonwealth v. Shaw, 2470 EDA 2006, at 2-3 (Pa.Super. filed April 7, 2008) (unpublished memorandum).

         The Commonwealth charged Appellant with murder generally, burglary, firearms not to be carried without a license, and related offenses. Appellant proceeded to a bench trial on June 13, 2006. Appellant underwent a psychiatric evaluation prior to trial and was deemed competent to stand trial. At trial, Appellant presented expert testimony to support his claim that he lacked the requisite intent to commit first-degree murder due to his history of mental illness. The Commonwealth presented its own expert to rebut Appellant's claim. On June 15, 2006, the court convicted Appellant of third-degree murder, burglary, firearms not to be carried without a license, and possessing instruments of crime. The court sentenced Appellant that day to an aggregate term of 36 to 72 years' imprisonment. This Court affirmed the judgment of sentence on April 7, 2008, and our Supreme Court denied allowance of appeal on July 30, 2008. Commonwealth v. Shaw, 953 A.2d 839 (Pa.Super. 2008), appeal denied, 598 Pa. 766, 956 A.2d 434 (2008).

         On May 16, 2015, Appellant filed pro se a first PCRA petition. Appellant subsequently filed pro se two supplemental PCRA petitions. The court appointed counsel, who filed a petition to withdraw and a Turner/Finley[2] "no-merit" letter on December 22, 2016. On April 27, 2017, the court issued notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907. At a hearing before the court on June 1, 2017, when the court was prepared to dismiss the petition formally, Appellant's brother appeared on Appellant's behalf and asked the court for an extension of time for Appellant to file a response to counsel's Turner/Finley "no-merit letter." Appellant's brother also asked the court to appoint new PCRA counsel for Appellant, alleging that Appellant cannot read or write. Appellant's brother suggested that others had helped Appellant draft his earlier pro se filings. The court granted the request, let original PCRA counsel withdraw, and appointed new PCRA counsel to review all filings including original PCRA counsel's Turner/Finley letter.

         On June 25, 2017, second PCRA counsel filed a petition to withdraw and a Turner/Finley "no-merit" letter. Appellant responded pro se on August 15, 2017. The court issued Rule 907 notice for a second time on December 4, 2017, and formally dismissed the petition as untimely on January 22, 2018, and let second PCRA counsel withdraw. Appellant timely filed a pro se notice of appeal on February 20, 2018. On March 8, 2018, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant's brother subsequently filed a Rule 1925(b) statement on Appellant's behalf, which the court rejected. On June 8, 2018, the court appointed ...


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