J-S27022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY L. GAINS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3596 EDA 2018

Appeal from the PCRA Order Entered November 13, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-1208141-2005

BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED JULY 24, 2020

Timothy L. Gains (Appellant) appeals, pro se, from the order entered in 

the Philadelphia County Court of Common Pleas dismissing his first petition 

filed pursuant to the Post Conviction Relief Act1 (PCRA), seeking relief from 

his jury conviction of first-degree murder2 and related offenses. Appellant 

contends the PCRA court erred when it did not ensure that he had the 

opportunity to respond to the Pa.R.Crim.P. 907 notice of its intent to dismiss 

the petition. For the reasons below, we quash this appeal, and remand the 

case to the PCRA court for further proceedings.

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 2502(a).
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On May 4, 2009, a jury convicted Appellant of first-degree murder, 

retaliation against a witness, and criminal conspiracy3for his role in the 

October 2005 shooting death of Robert Edwards. A few weeks before the 

shooting, Edwards witnessed Appellant’s co-defendant murder a rival drug

dealer, and Edwards was cooperating with the police. Commonwealth v. 

Gaines,

4 1807 EDA 2009 (unpub. memo. at 1) (Pa. Super. 2009), appeal 

denied, 437 EAL 2014 (Pa. 2015). During the penalty phase of the trial, the 

jury found no aggravating circumstances, and sentenced Appellant to life 

imprisonment. Sentencing Verdict Slip, 5/6/09, at 3-4 (unpaginated). On 

June 17, 2009, the trial court imposed a sentence of life imprisonment for 

first-degree murder, a consecutive term of 31⁄2 to 7 years’ imprisonment for 

retaliation against a witness, and a concurrent term 10 to 20 years’ 

imprisonment for conspiracy. This Court affirmed the judgment of sentence 

on direct appeal, and, on March 17, 2015, the Pennsylvania Supreme Court 

denied Appellant’s petition for allowance of appeal. Gaines, 1807 EDA 2009.

On February 18, 2016, Appellant filed a timely PCRA petition, his first. 

Counsel was appointed, but on November 3, 2016, filed a petition to withdraw 

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3 18 Pa.C.S. §§ 903 and 4953(a).

4 We note that in the prior memorandum, Appellant’s name was spelled 

“Gaines.” The lower court filings refer to Appellant as “Gains.” Appellant has 

used both spellings in his pro se documents. See Appellant’s “Statement of 

Matters Complained on Appeal,” 11/13/18, at 1 (“Gains”); Notice of Appeal, 

12/7/18, at 1 (“Gaines”). 
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and a Turner/Finley5 “no merit” letter. The next day, the PCRA court issued 

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without first 

conducting an evidentiary hearing. Appellant did not respond to the Rule 907 

notice, and on December 16, 2016, the PCRA court entered an order 

dismissing Appellant’s petition. 

Nineteen months later, on September 19, 2018, Appellant requested a 

copy of his “recent court document sheet.” Appellant’s Letter, 9/19/18. 

Thereafter, on November 13, 2018, Appellant filed a document, which the 

clerk of courts docketed as a “Statement of Matters Complained on Appeal.” 

See Docket Entry, 11/13/18. On December 7, 2018, Appellant filed a notice 

of appeal, purportedly from an order entered November 13, 2018. In the 

same document, Appellant included a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal.6 On November 13, 2019, this Court issued a per 

curiam rule for Appellant to show cause why this appeal should not be 

quashed. Appellant filed a response, and this Court discharged the rule, but 

referred the matter to the merits panel.

Appellant lists the following two issues in his brief:

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5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

6 We note that this Court twice dismissed Appellant’s appeal: once, when he 

failed to file a docketing statement, and once when he failed to file a brief. 

See Order 2/5/19; Order, 5/3/19. However, both times, the appeal was 

reinstated upon application by Appellant. See Order, 3/25/19: Order, 

5/30/19.
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Did the PCRA court err when it did not ensure that Appellant was 

afforded the opportunity to respond to the Notice of Intent to 

Dismiss that was allegedly filed in Appellant’s case?

Appellant contends that this Honorable Court should remand the 

case sub judice back to the PCRA Court as the PCRA Court is 

primarily suited to determine if there is merit to[A]appellant’s 

claims.

Appellant’s Brief at 8. 

Before we may consider any substantive claims raised by Appellant, we 

must first determine if this appeal is properly before us. As this Court alerted 

Appellant in the rule to show cause, the “notice of appeal states the appeal is 

from the order entered November 13, 2018[, but t]here is no indication on 

the trial court docket of an order being entered on November 13, 2018.”7 

Show Cause Order, 11/13/19. Indeed, the only docket entry on that date is 

Appellant’s “Statement of Matters Complained on Appeal.” Docket Entry, 

11/13/18. 

In his response to the rule to show cause, Appellant clarified his 

intention was to appeal the order dismissing his PCRA petition. Appellant’s 

Objection to the Court[’]s Order to Quash Appeal, 11/27/19, at 2 

(unpaginated). He claims he never received either the PCRA court’s Rule 907 

notice or its December 16, 2016, final order. Id. Rather, Appellant insists he 

first learned of the dismissal of his PCRA petition when he inquired with this 

Court in November of 2018. Id. See also Appellant’s Brief at 13-14, 17. 

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7 Specifically, the notice of appeal states Appellant “hereby appeals . . . from 

the last order of the court’s denying [his] PCRA in 11-2018.” Appellant’s 

Notice of Appeal, 12/7/18 at 1.
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We note that “[i]t is implicit in Pennsylvania Rule of Appellate Procedure 

904, which governs the content of the notice of appeal, that the correct date 

of the order appealed should be included in the notice of appeal.” 

Commonwealth v. Martin, 462 A.2d 859, 860 (Pa. Super. 1983), 

disapproved on other grounds, Commonwealth v. Graves, 508 A.2d 1198 

(Pa. 1986). Here, the notice of appeal purports to appeal from an order which 

does not appear of record. On that basis alone, we could quash this appeal.

Furthermore, even if we were to overlook this error, and determine 

Appellant meant to appeal from the December 16, 2016, order dismissing his 

PCRA petition, we would conclude the appeal — filed nearly two years later —

is manifestly untimely. See Pa.R.A.P. 903(a) (notice of appeal must be filed 

within 30 days after entry of order on appeal). As the Pennsylvania Supreme 

Court explained:

The timeliness of an appeal and compliance with the statutory 

provisions granting the right to appeal implicate an appellate 

court’s jurisdiction and its competency to act. Absent 

extraordinary circumstances, an appellate court lacks the power 

to enlarge or extend the time provided by statute for taking an 

appeal. Thus, an appellant’s failure to appeal timely an order 

generally divests the appellate court of its jurisdiction to hear the 

appeal. 

Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (citation 

omitted). Thus, we are constrained to quash this appeal.

Nevertheless, our review of the document filed by Appellant on 

November 13, 2018 — which the clerk of courts described as a “Statement of 
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Matters Complained on Appeal”8 — reveals that it was, in actuality, an attempt 

by Appellant to file a second PCRA petition. The statement provides the 

procedural history of his first petition, which he concludes was “in limbo,” and 

states, “now comes a second PCRA under untimely manner.” Appellant’s 

“Statement of Matters Complained on Appeal,” 11/13/18, at 1. Appellant then 

invokes the newly discovered facts timeliness exception to the PCRA. Id. See 

42 Pa.C.S. § 9545(b)(1)(ii) (PCRA petition must be filed within one year of 

date judgment of sentence is filed unless petitioner pleads and proves, inter 

alia, “the facts upon which the claim is predicated were unknown to the 

petitioner and could not have been ascertained by the exercise of due 

diligence”).

Accordingly, we conclude that the PCRA court should have construed 

Appellant’s November 13, 2018, filing to be a second PCRA petition. Thus, we 

remand this case to the PCRA court to allow Appellant to proceed in this 

matter. The court shall consider Appellant’s second PCRA petition to have 

been filed on November 13, 2018.

Appeal quashed. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished.

President Judge Emeritus Stevens joins this Memorandum.

Judge Shogan Concurs in the result. 

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8 Docket Entry, 11/13/18.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/20