Commonwealth v. Fountain

1

COMMONWEALTH OF PENNSYLVANIA v. DANTE FOUNTAIN Appellant COMMONWEALTH OF PENNSYLVANIA v. DANTE FOUNTAIN Appellant COMMONWEALTH OF PENNSYLVANIA v. DANTE FOUNTAIN Appellant COMMONWEALTH OF PENNSYLVANIA v. DANTE FOUNTAIN Appellant

Nos. 2080 EDA 2021, 2081 EDA 2021, 2082 EDA 2021, 2162 EDA 2021

Nos. J-S45003-22, J-S45004-22, S45005-22, S45006-22

Superior Court of Pennsylvania

April 5, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered April 2, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002318-2018 CP-51-CR-0002320-2018, CP-51-CR-0002321-2018 CP-51-CR-0002319-2018

Joseph D. Seletyn, Esq.

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM

OLSON J.:

Appellant, Dante Fountain, appeals nunc pro tunc from the judgments of sentence entered April 2, 2019, as made final by the denial of his post-sentence motions on October 5, 2021. We quash, in part, and affirm, in part.

The relevant facts and procedural history of this case are as follows. On September 28, 2017, Appellant forcibly entered the home of complainant, Dominique Starks, where she lived with three children. Ultimately, an altercation ensued upon which, Appellant struck Stark and her five-month-old child, Za.S.^[1]

Thereafter, the Commonwealth filed bills of information against Appellant. At docket number CP-51-CR-0002318-2018 ("Docket Number 2318-2018"), the Commonwealth charged Appellant with possession of a firearm prohibited, possession of a firearm without a license, carrying a firearm on a public street in Philadelphia, making terroristic threats, simple assault, recklessly endangering another person ("REAP"), possession of an instrument of a crime ("PWIC"), burglary, criminal trespass and conspiracy. At docket number CP-51-CR-0002320-2018 ("Docket Number 2320-2018"), the Commonwealth charged Appellant with simple assault, REAP, aggravated assault, and PWIC. At docket number CP-51-CR-0002319-2018 ("Docket Number 2319-2018"), the Commonwealth charged Appellant with endangering the welfare of a child ("EWOC"), making terroristic threats, simple assault, REAP, aggravated assault and PWIC. Finally, at docket number CP-51-CR-0002321-2018, ("Docket Number 2321-2018"), the Commonwealth charged Appellant with simple assault, REAP and PWIC.

Appellant's jury trial commenced on January 31, 2019. On February 4, 2019, the jury found Appellant guilty of aggravated assault, two counts of simple assault, making terroristic threats, three counts of EWOC, and criminal trespass.^[2] On April 2, 2019, the trial court sentenced Appellant to 105 months to 25 years' imprisonment.

Appellant filed a post-sentence motion pursuant to Pa.R.Crim.P. 720 on April 9, 2019. Appellant, however, only filed the post-sentence motion at Docket Number 2318-2018. Post-Sentence Motion, 4/9/19, at *1-*3 (unpaginated). Hence, Appellant did not file post-sentence motions at Docket Number 2320-2018, Docket Number 2319-2018 or Docket Number 2321-2018. On August 7, 2019, Appellant's post-sentence motion, filed only at Docket Number 2318-2018, was denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a).

On August 30, 2019, Appellant filed a pro se petition under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. PRCA Petition, 8/30/19, at 1-10. The trial court^[3] appointed PCRA counsel on September 5, 2019. Trial Court Order, 9/5/19, at 1. On February 17, 2020, counsel filed an amended PCRA petition in which he claimed that trial counsel was ineffective for including only one docket number on the April 9, 2019 post-sentence motion and for failing to file a direct appeal. Amended PCRA Petition, 2/17/20, at 3, 11-18. On August 11, 2020, the Commonwealth filed a response, indicating that it did not oppose the reinstatement of Appellant's appellate rights. Commonwealth Response, 8/11/20, at 6. On May 25, 2021, the court reinstated Appellant's right to file post-sentence motions and Appellant's appellate rights nun pro tunc. Trial Court Order, 5/25/21, at 1-2. Appellant filed post-sentence motions at all four trial court dockets on May 31, 2021. The post-sentence motions were subsequently denied by operation of law on September 28, 2021. See Pa.R.Crim.P. 720(B)(3)(a). This appeal followed.^[4]

Before we address the merits of Appellant's appeal, we must first address whether we have jurisdiction over the underlying PCRA petition. "The timeliness requirement for PCRA petitions is mandatory and jurisdictional in nature." Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (en banc), appeal denied, 190 A.3d 1134 (Pa. 2018) (cleaned up). A PCRA petition is timely if it is "filed within one year of the date the judgment [of sentence] becomes final." 42 Pa.C.S.A. § 9545(b)(1). "[A] judgment [of sentence] becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 903(a) (explaining that an appellant has "30 days after the entry of the order from which the appeal is taken" to file an appeal).

"It is well-settled that '[a] PCRA petition may only be filed after an appellant has waived or exhausted his direct appeal rights.'" Commonwealth v. Smith, 244 A.3d 13, 17 (Pa. Super. 2020) (quotation omitted). "Indeed, '[t]he PCRA provides petitioners with a means of collateral review, but has no applicability until the judgment of sentence becomes final.'" Id. (quotation omitted). Therefore, a PCRA petition filed before the judgment of sentence becomes final is considered a "premature petition" and "does not constitute a first PCRA petition." Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002). Instead, it is considered a legal nullity and, as such, the PCRA court must "dismiss[] the PCRA petition without prejudice as premature." Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (internal citation omitted); see Commonwealth v. Neisser, 2020 WL 603614, at *3 (Pa. Super. Feb. 7, 2020) (unpublished memorandum) (holding that the appellant "filed his PCRA petition prior to the finality of his judgment of sentence" and, as such, the appellant's "filing was a legal nullity, and the PCRA court lacked authority to consider it and should have dismissed it without prejudice toward [the a]ppellant's right to file a PCRA petition once the time for him to file a direct appeal had expired").

Herein, Appellant was charged and convicted at four separate dockets: Docket Number 2318-2018; Docket Number 2320-2018; Docket Number 2319-2018; and Docket Number 2321-2018. The trial court sentenced Appellant on April 2, 2019. Appellant filed a timely post-sentence motion on April 9, 2019, but only at Docket Number 2318-2018. The post-sentence motion, filed only at Docket Number 2318-2018, was denied by operation of law on August 7, 2019. See Pa.R.Crim.P. 720(B)(3)(a). Hence, Appellant's judgment of sentence as to Docket Number 2318-2018 was not final until September 7, 2019, 30 days after his post-sentence motion was denied by operation of law. See id. Appellant, however, filed a pro se PCRA petition at all four trial court dockets on August 30, 2019, before the time for filing an appeal expired at Docket Number 2318-2018 and, hence, before his judgment of sentence became final in that matter. "Ergo, [Appellant's] PCRA petition [with regard to Docket Number 2318-2018] was premature." Neisser, 2020 WL 603614 at *2. Consequently, Appellant's PCRA petition at Docket Number 2318-2018, as well as the court's order granting it, were legal nullities. Id. For this reason, Appellant's appeal with respect to Docket Number 2318-2018 is subject to quashal. See id. ("Case law is clear that a premature PCRA petition must be quashed."); see also Smith, 244 A.3d at 17 (quashing appeal because the appellant filed a PCRA petition prior to his judgment of sentence becoming final, rendering the PCRA petition and the PCRA court's order denying it legal nullities). Based upon the foregoing, we are constrained to quash Appellant's appeal at Docket Number 2318-2018.^[5]

This does not end our inquiry, however. As stated above, Appellant was charged and convicted at four separate dockets and only filed his April 9, 2019 post-sentence motion at Docket Number 2318-2018. Appellant therefore did not file post-sentence motions at Docket Number 2320-2018, Docket Number 2319-2018 or Docket Number 2321-2018, rendering his judgments of sentence at the aforementioned dockets final on May 2, 2019, 30 days after the imposition of his sentence. See Pa.R.Crim.P. 720 ("If the defendant does not file a timely post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence."). Thus, the PCRA petition filed at all four trial court dockets on August 30, 2019 was filed after his judgments of sentence became final at Docket Number 2320-2018, Docket Number 2319-2018 and Docket Number 2321-2018. As to those court dockets, Appellant's PCRA petition was not premature. We therefore have jurisdiction over Appellant's appeal with respect to Docket Number 2320-2018, Docket Number 2319-2018 and Docket Number 2321-2018. Appellant raises the following issues on appeal:

1. Whether the verdict was against the weight of the evidence?

2. Whether Appellant's sentence was unduly harsh and excessive?

3. Whether the court erred in granting the Commonwealth's motion to introduce two prior bad acts stemming from previous allegations of domestic violence as the prejudicial value outweighed the probative value?

4. Whether the court erred in allowing the Commonwealth to introduce

...