Opinion
J-S27003-19 No. 236 WDA 2018
09-10-2019
COMMONWEALTH OF PENNSYLVANIA v. MILTON MORGAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 21, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008291-2016 BEFORE: OLSON, J., OTT, J., and COLINS, J. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Milton Morgan, appeals from the judgment of sentence entered on December 21, 2017 in the Criminal Division of the Court of Common Pleas of Allegheny County. We affirm.
We adopt the trial court's thorough recitation of the factual background of this case. See Trial Court Opinion, 9/6/18, at 3-6. At the conclusion of trial on September 1, 2017, a jury found Appellant guilty of four counts of possession with intent to deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30), and two counts of possession of a controlled substance, 35 P.S. § 780-113(a)(16). Thereafter, on December 21, 2017, the trial court imposed an aggregate sentence of three to six years' incarceration.
Appellant filed a pro se notice of appeal on January 18, 2018. After extending the deadline in which to file his concise statement of errors complained of on appeal, Appellant filed a timely counseled concise statement on June 29, 2018 listing two of the three issues included in his brief to this Court. See Pa.R.A.P. 1925(b). The trial court issued its Rule 1925(a) opinion on September 6, 2018.
Appellant requested extensions of the filing date in order to receive transcripts of the proceedings before the trial court.
Appellant's brief identified three issues for our consideration.
[Whether this] case must be remanded to the [trial court] for a hearing to determine if [Appellant] intends to discontinue this appeal and file a [petition pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546,] in order to effectuate [a resentencing order entered on September 25, 2018?]Appellant's Brief at 6.
[Whether the trial court] erred in denying the defense objection to Detective DeTemple's testimony that the [confidential informant] identified [Appellant] from a picture, when the [confidential informant] did not testify, and the out of court statement was clearly hearsay[?]
[Whether the assistant district attorney] committed prosecutorial misconduct during closing argument by stating that drug dealers like [Appellant] kill [confidential informants], and stating the [confidential informant's] friend died from what [Appellant] did, when neither statement was supported by any facts in evidence, and both statements were meant to cast [Appellant] in a negative light and inflame the jury, thereby depriving [Appellant] of his constitutionally guaranteed right to a fair trial and due process[?]
Appellant's first issue arose from an unusual set of events that occurred long after he filed his notice of appeal and, indeed, after he filed his concise statement and the trial court issued its Rule 1925(a) opinion. Hence, the issue is not included in Appellant's concise statement. Appellant's brief explained the events underlying this issue as follows:
On September 25, 2018, [Appellant] appeared before [the trial court] to proceed to trial on other, unrelated criminal cases.[] [] The record reflects that [Appellant] informed the [trial c]ourt that he wanted to withdraw the [instant] appeal and instead file an "oral PCRA," [to allow the trial court] to vacate the [sentence imposed in this case] and to resentence [Appellant]. Accordingly, [the trial court] accepted [Appellant's] withdrawal of the instant appeal, granted his oral PCRA, vacated the sentence imposed on December 21, 2017, and resentenced [Appellant to two to four years' incarceration. The trial court retained] jurisdiction. [Appellant] was given credit for all time served, paroled forthwith, and interest in the underlying case closed.Appellant's Brief at 11 (record citations omitted).
Appellate counsel concedes that she was not present for the trial court proceedings that took place on September 25, 2018. After learning what occurred, however, counsel asked Appellant to confirm whether he sought to discontinue this appeal and to take other necessary steps to effectuate the modified sentencing scheme outlined during the September 25, 2018 hearing. To date, Appellant has not responded to counsel's inquiries. Asserting that Appellant is entitled to pursue the benefits of the amended sentence imposed during the September 25, 2018 hearing, counsel requests that this case be remanded to the trial court for a hearing to address whether Appellant intends to discontinue this appeal.
For several reasons, we are unable to accede to counsel's request. As a preliminary matter, absent extraordinary circumstances that permit a trial court to invoke its inherent powers to modify orders that contain patent or obvious mistakes, Pennsylvania trial courts surrender their authority to amend or rescind orders 30 days after entry or where an appeal has been lodged. See 42 Pa.C.S.A. § 5505. Section 5505 governs modification of orders and provides:
The certified record includes neither transcripts of the September 25, 2018 hearing nor orders reflecting the relief allegedly awarded by the trial court. As such, we are unable to confirm that the trial court took the actions described by counsel. Our analysis, therefore, should be read as reasons we reject counsel's request for remand and not a definitive determination that the trial court erred in the proceedings that occurred before it.
§ 5505. Modification of orders42 Pa.C.S.A. § 5505.
Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
When applying § 5505 to judgments of sentence, this Court has explained:
Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, if no appeal is taken. 42 Pa.C.S.A. § 5505; Commonwealth v. Quinlan , 639 A.2d 1235, 1238 (Pa. Super. 1994). Generally, once the thirty-day period is over, the trial court loses the power to alter its orders. Quinlan , 639 A.2d at 1238. When an appeal is taken, the trial court has no jurisdiction to modify its sentence. Id. We note, however, that the time constraint imposed by section 5505 does not affect
the inherent powers of the court to modify a sentence in order to "amend records, to correct mistakes of court officers or counsel's inadvertencies, or to supply defects or omissions in the record...." Id. at 1239. Therefore, where the mistake is patent and obvious, the court has the power to correct it even though the 30-day appeal period has expired. Commonwealth v. Rohrer , 719 A.2d 1078, 1080 (Pa. Super. 1998). It is also well-established that where a showing of fraud or another circumstance "so grave or compelling as to constitute 'extraordinary causes justifying intervention by the court,'" then a court may open or vacate its order after the 30-day period has expired. Cardwell v. Chrysler Fin. Corp., 804 A.2d 18, 22 (Pa. Super. 2002).Commonwealth v. Walters , 814 A.2d 253, 255-256 (Pa. Super. 2002), appeal denied, 831 A.2d 599 (Pa. 2003).
In this case, the trial court imposed sentence upon Appellant on December 21, 2017. Thereafter, the court purported to amend Appellant's sentence on September 25, 2018, approximately nine months later. As such, the court's authority under § 5505 to modify Appellant's sentence within 30 days had long since expired. In addition, the trial court lost jurisdiction to amend its sentence once Appellant filed an appeal to this Court on January 18, 2018. Lastly, there is no claim that the trial court modified Appellant's sentence to correct a patent or obvious mistake or to address a fraud. Since the court lacked jurisdiction to act, the order amending Appellant's sentence on September 25, 2018 would be null and void. See id. at 256.
Not only did the trial court lack authority to modify Appellant's sentence under § 5505, it also lacked authority to resentence Appellant by way of a collateral proceeding. Appellant did not file a written PCRA petition but instead tendered an oral request for collateral relief. Entertaining an oral request for collateral relief (while a direct appeal is pending) is improper in several respects.
Rule 901 of our rules of criminal procedure governs the initiation of collateral proceedings. In relevant part, it states: "A proceeding for post-conviction collateral relief shall be initiated by filing a petition and [three] copies with the clerk of the court in which the defendant was convicted and sentenced." Pa.R.Crim.P. 901(B). The commentary to Rule 901 admonishes: "By statute, a court may not entertain a request for any form of relief in anticipation of the filing of a petition for post-conviction collateral relief." Pa.R.Crim.P. 901(B), cmt., citing 42 Pa.C.S.A. § 9545(a). Vacating Appellant's sentence by granting an oral request for collateral relief violates both the PCRA statute and the procedural rules governing collateral proceedings.
In addition, pertinent case law precluded Appellant from seeking collateral relief during the pendency of his direct appeal. It is well-settled that a petitioner who seeks collateral relief may only file a PCRA petition after he "has waived or exhausted his direct appeal rights." Commonwealth v. Williams , 2019 PA Super 225, at *1 (Pa. Super. 2019), quoting Commonwealth v. Leslie , 757 A.2d 984, 985 (Pa. Super. 2000). "If a petition is filed while a direct appeal is pending, the PCRA court should dismiss it without prejudice towards the petitioner's right to file a petition once his direct appeal rights have been exhausted." Williams , supra. The pendency of the instant appeal thus barred Appellant from seeking collateral relief before the trial court.
As a final matter, Appellant did not follow proper procedures in attempting to discontinue this appeal through oral application before the trial court on September 25, 2018. Discontinuances of appeals pending before the Superior Court are governed by Pa.R.A.P. 1973. See Superior Court Operating Procedure § 65.23. In relevant part, Rule 1973 provides:
Rule 1973. DiscontinuancePa.R.A.P. 1973.
(b) Filing of discontinuance.--If an appeal has not been docketed, the appeal may be discontinued in the lower court. Otherwise all papers relating to the discontinuance shall be filed in the appellate court and the appellate prothonotary shall give written notice of the discontinuance in person or by first class mail to the prothonotary or clerk of the lower court or to the clerk of the government unit, to the persons named in the proof of service accompanying the appeal or other matter and to the Administrative Office. If an appeal has been docketed in the appellate court, the prothonotary or clerk of the lower court or the clerk of the government unit shall not accept a praecipe to discontinue the action until it has received notice from the appellate court prothonotary or certification of counsel that all pending appeals in the action have been discontinued.
The certified record in this case confirms that our prothonotary's office forwarded docketing notices and statements to the trial court, Appellant, and the Commonwealth on February 21, 2018. Since this appeal was docketed well in advance of the proceedings before the trial court on September 25, 2018, all paperwork pertaining to a discontinuance of this appeal needed to be filed in this Court. Since this procedure was not followed, the events before the trial court on September 25, 2018 had no impact on the pendency of this appeal. Thus, for each of the foregoing reasons, we reject counsel's request to remand this matter to the trial court.
We turn now to Appellant's last two issues in which he challenges the admission of certain testimony and raises claims of prosecutorial misconduct. In reviewing both of these claims, we have carefully examined the submissions of the parties, the opinion of the trial court, and the certified record on appeal. Based upon our review, we conclude that Appellant's claims are without merit and that the trial court has adequately and accurately addressed the merits of these issues. For this reason, we shall adopt the trial court's analysis as our own. The parties are hereby directed to attach a copy of the trial court's opinion to all future filings concerning our disposition of this appeal.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/10/2019
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