J. S23037/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

NORMAN T. STEWARD, JR., : No. 3009 EDA 2019

:

 Appellant :

Appeal from the PCRA Order Entered October 9, 2019,

in the Court of Common Pleas of Lehigh County

Criminal Division at No. CP-39-CR-0002043-2006

BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 22, 2020

Norman T. Steward, Jr., appeals pro se from the October 9, 2019 order 

entered in the Court of Common Pleas of Lehigh County that dismissed, 

without a hearing, his petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We vacate the order and remand for 

the appointment of counsel and further proceedings pursuant to the PCRA.

The record reflects that a jury convicted appellant of criminal homicide –

murder of the second degree, robbery, and conspiracy to commit robbery on 

October 24, 2007.1 On November 15, 2007, the trial court imposed a life 

sentence for the murder conviction and concurrent sentences of six to 

twelve years of incarceration for the robbery conviction and five to ten years 

 

1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), and 903(a)(1).
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of incarceration for the conspiracy conviction. This court affirmed appellant’s 

judgment of sentence on August 13, 2010. Commonwealth v. Steward, 

11 A.3d 1024 (Pa.Super. 2010).2

On May 2, 2011, appellant filed a pro se PCRA petition. The PCRA court 

appointed counsel. On March 26, 2012, the PCRA court granted appellant’s 

request to file a petition for allowance of appeal of this court’s affirmance of 

appellant’s judgment of sentence nunc pro tunc.

3

 Appellant filed his petition 

seeking discretionary review on April 25, 2012. On March 1, 2013, our 

supreme court denied appellant’s petition for allowance of appeal. 

Commonwealth v. Steward, 63 A.3d 1247 (Pa. 2013).

On August 27, 2019, appellant filed, pro se, the PCRA petition that is 

the subject of this appeal. The PCRA court filed a notice of intent to dismiss 

on September 10, 2019, pursuant to Pa.R.Crim.P. 907(1) wherein it 

erroneously concluded that appellant’s judgment of sentence became final on 

June 27, 2013 pursuant to 42 Pa.C.S.A. 9545(b)(3). (Order of court, 9/10/19 

at 1 n.1.) Appellant filed a pro se response on October 4, 2019. On 

October 9, 2019, the PCRA court entered the order that dismissed appellant’s 

 

2 We note that the procedural history section of the PCRA court’s Rule 1925(a) 

opinion contains errors with respect to various dates that are important to that 

history.

3 We note that despite granting the requested relief and granting appellant 

the right to file a petition for discretionary review with our supreme court, the 

PCRA court went on to deny appellant’s unrelated ineffectiveness assistance 

of counsel claim. (Order of court and accompanying memorandum opinion, 

3/26/12.) This was error.
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petition. Appellant filed a timely notice of appeal. The PCRA court ordered 

appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The PCRA court 

then filed its Rule 1925(a) opinion.

Appellant raises the following issues for our review:

(A) Whether appellant[’]s mental incompetence 

that caused four trips to State Hospital evidence 

for lack of due diligence as appellant was 

[d]iagnosed as paranoid-schizohprenic [sic] (a 

delusional mental illness)?

(B) Whether the [trial] court erred in admitting the 

preliminary hearing testimony of 

Nathan Petruska at trial as [appellant] was not 

afforded a full and fair opportunity to 

cross[-]exsamine [sic] him?

(C) Whether the [trial] court erred in allowing 

testimonial evidence to a recovered 

fire arm [sic] that the [C]ommonwealth never 

had in evidence lacking on the chain of custody 

therefore making the prosecution[’s] 

presentation of no gun but [sic] testimony 

hearsay?

(D) Whether appellant[’]s trial counsel 

ineffective [sic] for failing to call witness 

Alberto Santiago to testify for [appellant], in 

which would [sic] have been contrary to the 

prosecution [sic] theory and as evidence of 

innocence for [appellant]?

(E) Whether the [trial] court erred in allowing the 

testimony of Jarret Hursh, denying the truth of 

a out [sic] of court statement in which the trial 

[court] prejudicially gave jury instructions 

knowing his testimony is recanted and after the 

conspiracy has been terminated?
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Appellant’s brief at 3-4.

This court reviews the “denial of PCRA relief to determine whether the 

findings of the PCRA court are supported by the record and free of legal error.”

Commonwealth v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016), quoting 

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015). “Any petition”

filed under the PCRA “shall be filed within one year of the date the judgment 

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1).

At the outset, we note that the PCRA court determined that this is 

appellant’s second PCRA petition. (PCRA court opinion, 11/20/19 at 3.) That 

conclusion, however, is erroneous. When the PCRA court granted the relief 

that appellant requested in his first PCRA, which was reinstatement of his right 

to seek discretionary review with our supreme court with respect to his direct 

appeal, that reset the clock for the calculation of the finality of appellant’s

judgment of sentence for PCRA purposes. See Commonwealth v. 

McKeever, 947 A.2d 782, 785 (Pa.Super. 2008) (determining that where a 

successful PCRA petition neither restores petitioner’s direct appeal rights nor 

disturbs the conviction, clock is not reset for the calculation of judgment of 

sentence for PCRA purposes). As such, the instant petition must be deemed 

appellant’s first PCRA petition.

We further note that in order to be timely filed, a PCRA petition must be 

filed within one year of when an appellant’s judgment of sentence becomes 

final. 42 Pa.C.S.A. § 9545(b)(1). Here, appellant’s judgment of sentence 
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became final on May 30, 2013, 90 days after our supreme court denied 

discretionary review and the deadline for filing a petition for writ of certiorari

in the Supreme Court of the United States expired. See 42 Pa.C.S.A. 

§ 9545(b)(3); see also U.S. Sup. Ct. R. 13(1) (stating, “[a] petition for a writ 

of certiorari seeking review of a judgment of a lower state court that is 

subject to discretionary review by the state court of last resort is timely when 

it is filed with the Clerk within 90 days after entry of the order denying 

discretionary review.”). Therefore, appellant’s PCRA petition filed August 27, 

2019, which was more than six years after his judgment of sentence became 

final, is patently untimely.

Notwithstanding the obvious untimeliness of appellant’s PCRA petition, 

such untimeliness is irrelevant for purposes of entitlement to appointed 

counsel on a first PCRA petition. This court has held that there is an absolute 

right to appointed counsel for a first PCRA petition, even if a PCRA petition is 

facially untimely. See Commonwealth v. Ferguson, 722 A.2d 177, 179

(Pa.Super. 1998); Commonwealth v. Evans, 866 A.2d 442, 444 (Pa.Super. 

2005); Commonwealth v. Guthrie, 749 A.2d 502, 504 (Pa.Super. 2000). 

Additionally, our supreme court has held that “an indigent petitioner, who files 

his first PCRA petition, is entitled to have counsel appointed to represent him 

during the determination of whether any of the exceptions to the one-year 

time limitation apply.” Commonwealth v. Smith, 818 A.2d 494, 499 

(Pa. 2003). Finally, this court has held that “where an indigent, first-time 
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PCRA petitioner was denied his right to counsel — or failed to properly waive 

that right — this [c]ourt is required to raise this error sua sponte and remand 

for the PCRA court to correct that mistake.” Commonwealth v. Stossel, 

17 A.3d 1286, 1290 (Pa.Super. 2011).

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/20