J-S39035-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN MATTHEW SOWERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 687 MDA 2023

Appeal from the Order Entered April 14, 2023

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

No(s): CP-01-CR-0000882-2022

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 7, 2023

John Matthew Sowers (Appellant) appeals pro se from the April 14, 

2023, order entered in the Adams County Court of Common Pleas, denying 

his petition for a writ of coram nobis. The trial court determined that Appellant 

was attempting to withdraw his guilty plea and denied relief on the merits. 

We conclude that the petition should have been treated as a request for relief 

under the Post Conviction Relief Act (PCRA).

1

 As Appellant’s only criminal 

sanction was a fine, he is ineligible for PCRA relief. We affirm on that 

alternative basis. 

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1 42 Pa.C.S. §§ 9541-9545.
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The underlying facts are largely immaterial to our disposition. Briefly, 

the Commonwealth alleged that Appellant confronted his neighbor.

2

 During

the ensuing verbal altercation Appellant threw a rock and shoved the neighbor 

to the pavement. A witness told police that Appellant took out a pocketknife

and made threatening remarks. The Commonwealth charged Appellant with 

one count of terroristic threats and one count of summary harassment.3 Both 

charges were held for court following a preliminary hearing. 

On September 19, 2022, the parties entered into a negotiated plea 

agreement. In exchange for the Commonwealth withdrawing terroristic 

threats, Appellant pled guilty to harassment. The trial court immediately 

sentenced Appellant to a $200 fine and all associated court costs and fees.

Appellant did not file post-sentence motions or a direct appeal. On 

March 31, 2023, Appellant filed a pro se document, titled “Writ in Error Coram 

Nobis.” Appellant alleged that the sentence “was imposed on the basis of facts 

that were materially untrue.” Appellant’s Coram Nobis Petition at 1. Appellant 

further alleged that he pled guilty “to a crime he did not commit and a statute 

he did not violate,” and requested whatever relief the court deemed 

appropriate. Id.

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2 This factual summary is taken from a police report attached as an exhibit to 

Appellant’s petition. See Appellant’s Petition for Writ in Error Coram Nobis

(Appellant’s Coram Nobis Petition), 3/13/23, at Exhibit “#2.”

3 18 Pa.C.S. §§ 2706(a)(1) and 2709(a)(1), respectively.
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On April 14, 2023, the court issued an order denying Appellant’s 

petition, on the basis it “is essentially a post-sentence request to withdraw a 

guilty plea.” Order, 4/14/23, at 1. The court deemed this request “untimely 

and without merit and is therefore denied.” Id. Appellant filed a timely notice 

of appeal, and the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise 

statement of matters complained of on appeal within 21 days. The court also

informed Appellant that failure to comply with its order “shall result in waiver 

of all issues.” Order, 5/10/23, at 1. 

Meanwhile, on May 8, 2021, the Pennsylvania Supreme Court docketed 

Appellant’s petition for a writ of habeas corpus, which it received on April 13, 

2023. This petition substantively raised the same issues as the instant 

petition. The Supreme Court denied the petition on September 5, 2023. See 

Commonwealth v. Sowers,54 MM 2023 (Pa. Sept. 5, 2023) (per curiam 

order). 

Appellant failed to file a concise statement and as a result the trial 

court’s Rule 1925(a) opinion deemed all issues waived. See Trial Ct. Op., 

6/6/23, at 1. Appellant raises the following issues on appeal. 

1. Did the [trial] court err in denying the Appellant’s writ in error 

coram nobis?

2. Did the [trial] court err by characterizing and dismissing the 

Appellant’s writ in error coram nobis as a meritless attempt to 

withdraw a guilty plea?

3. Did the Commonwealth or magistrate judge establish a prima 

facie case against the Appellant for the charge of harassment 

before holding the Appellant for court on that charge?
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4. Did the Commonwealth or magistrate show the necessary mens 

rea to charge the Appellant with harassment? 

5. Did the Commonwealth and magistrate judge violate the 

Appellant’s constitutional and due process rights by failing to 

establish mens rea or a prima facie case against the Appellant for 

the charge of harassment?

6. Did the Commonwealth show that the Appellant committed an 

actual violation of the harassment statute by tossing a rock, in 

play, a singular time, towards an individual’s foot, or were the 

Appellant’s actions a de minimis infraction that should have been 

or should be dismissed?

7. Did the [trial] court err by not dismissing the charge of 

harassment against the Appellant as a remedy for a crime that the 

Appellant pled guilty to but did not commit that continues to 

adversely affect the Appellant in a grievous and unconstitutional 

manner in the form of loss of liability for a parole violation and a 

parole denial?

8. Do the errors involved invalidate the Appellant’s plea 

proceeding of September 19, 2022? 

Appellant’s Brief at 3 (unpaginated). 

Initially, we decline to deem all issues waived due to Appellant’s failure 

to file a concise statement as ordered. Appellant concedes that he failed to 

comply with the trial court’s Rule 1925(b) order, alleging that he refrained 

from filing the statement due to uncertainty of the court’s jurisdiction to act 

after the Supreme Court docketed his petition for a writ of habeas corpus. 

See Appellant’s Brief at 12 (unpaginated). While Appellant could have 

apprised the court of that issue or sought a clarification or extension, we 

acknowledge that the Supreme Court received Appellant’s petition one day 

before the trial court denied Appellant’s petition. Furthermore, the trial court’s 
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Rule 1925(b) order was issued two days after the Supreme Court docketed 

the petition. We decline to address sua sponte what effect, if any, these 

events had on the trial court’s ability to proceed, as we conclude that Appellant 

was not entitled to relief in any event. 

The trial court did not determine whether Appellant’s petition should 

have been treated as a PCRA petition. Section 9542 of the PCRA states the 

Act “shall be the sole means of obtaining collateral relief and encompasses all 

other common law and statutory remedies for the same purpose that exist 

when this subchapter takes effect, including habeas corpus and coram nobis.” 

42 Pa.C.S. § 9542. Appellant’s judgment of sentence became final on October 

19, 2022, 30 days after he was sentenced. See 42 Pa.C.S. § 9545(b)(3) 

(defining finality of judgment where no direct appeal is filed as the expiration 

of time for seeking that review); see also Pa.R.A.P. 903(c)(3) (stating that 

notice of appeal must be filed within 30 days of judgment of sentence in open 

court where no post-sentence motions have been filed). His March 31, 2023,

petition for a writ of coram nobis was, therefore, facially subject to the PCRA. 

As Appellant had no opportunity to address this analysis, we observe 

that Section 9542 is not read literally, as a writ may be obtained if the claim 

“falls outside the ambit of the potential claims cognizable under the PCRA.” 

Commonwealth v. West, 938 A.2d 1034, 1044 (Pa. 2007) (holding that 

petition for a writ of habeas corpus based on nine-year delay between 

sentencing and commencement of incarceration was reviewable outside of the 
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PCRA). We thus look beyond the caption to determine whether Appellant’s 

request for relief is cognizable under the PCRA. See Commonwealth v. 

Porter, 35 A.3d 4, 12 (Pa. 2012) (“Misdesignation does not preclude a court 

from deducing the proper nature of a pleading.”). In Scott v. Pennsylvania 

Bd. of Prob. & Parole, 284 A.3d 178, 189 (Pa. 2022), the Supreme Court 

stated that cases like Porter “indicate that a court should examine the 

arguments and the requested relief to discern the true ‘nature’ of the claim.” 

Id. at 189. 

Examining the arguments and Appellant’s requested relief, Appellant 

challenged trial counsel’s stewardship. Appellant maintained that he did not 

commit harassment as the thrown rock “did not touch” the victim and the 

statute requires physical contact. Appellant’s Coram Nobis Petition at 1.4

Appellant thus “ultimately pled guilty . . . without ever having violated the 

statute.” Id. Appellant stated that he “was represented by paid counsel who 

did not notice” the errors alleged by Appellant within the petition at issue. Id. 

Appellant therefore alleges that counsel ineffectively advised Appellant to 

accept the negotiated guilty plea. This claim is cognizable under the PCRA. 

“A defendant is permitted to withdraw his guilty plea under the PCRA if 

ineffective assistance of counsel caused the defendant to enter an involuntary 

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4 Appellant’s petition does not address the allegation that he shoved the victim 

to the ground.
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plea of guilty.” Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa. Super. 

2005). 

Because this claim is cognizable under the PCRA, we must treat it as 

such. “[T]he General Assembly intended that claims that could be brought 

under the PCRA must be brought under that Act. No other statutory or 

common law remedy ‘for the same purpose’ is intended to be available; 

instead, such remedies are explicitly ‘encompassed’ within the PCRA.” 

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001). Additionally, “the 

timeliness of any PCRA petition is a jurisdictional requisite.” Commonwealth 

v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019). “It is not this Court’s role 

to override the gatekeeping function of the PCRA time-bar and create 

jurisdiction where it does not exist.” Commonwealth v. Lee, 206 A.3d 1, 11 

(Pa. Super. 2019). 

As this was Appellant’s first request for collateral relief, we would 

normally be required to remand for appointment of counsel. Rule of Criminal 

Procedure 904(C) states that “when an unrepresented defendant satisfies the 

judge that the defendant is unable to afford or otherwise procure counsel, the 

judge shall appoint counsel to represent the defendant on the defendant’s first 

petition for post-conviction collateral relief.” Pa.R.Crim.P. 904(C). A violation 
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of this rule-right based to counsel5requires a remand, even if the petition is 

facially untimely. See Commonwealth v. Stossel, 17 A.3d 1286, 1288 (Pa. 

Super. 2011) (remanding for appointment of counsel despite petition’s facial 

untimeliness); Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998) 

(“The denial of PCRA relief cannot stand unless the petitioner was afforded the 

assistance of counsel.”). However, a petitioner’s statutory ineligibility for 

relief is an exception to this procedure.

This [C]ourt has held that the failure to appoint counsel for a 

petitioner under the PCRA who has served his sentence is 

harmless error, and that a remand for appointment of counsel is 

not appropriate, as a remand would be futile under such a 

circumstance. The purpose for appointing counsel for a first-time 

petitioner, even where the petition appears to be untimely filed, 

is for the petitioner to attempt to establish an exception to the 

one-year time limitation. Obviously, where the petitioner is no 

longer serving a sentence of imprisonment, probation or parole, 

establishing such an exception is a legal impossibility, as the 

statute no longer applies. The law does not require the 

performance of a futile act.

Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006) (citations 

omitted).

Appellant’s sentence was limited to a fine, and he was therefore

ineligible for PCRA relief. See 42 Pa.C.S. § 9543(a)(1)(i) (“To be eligible for 

relief under this subchapter, the petitioner must [be] . . . currently serving a 

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5 Appellant was represented by private counsel during his plea proceedings. 

The court granted Appellant in forma pauperis status during these 

proceedings. 
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sentence of imprisonment, probation or parole for the crime[.]”); 

Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa. Super. 1997) (holding 

that Section 9543(a)(1)(i) “precludes relief for those petitioners whose only 

uncompleted aspect of their sentence is the payment of a fine”) (footnote 

omitted).

6

 Appellant’s statutory ineligibility therefore does not require a 

remand for the appointment of counsel under Rule 904. As the trial court 

lacked jurisdiction to address Appellant’s petition, we affirm on that basis.

7

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/07/2023

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6

In Commonwealth v. Delgros, 183 A.3d 352, 353 (Pa. 2018), the Supreme 

Court announced that the statutory inability to seek PCRA relief from a 

sentence imposing only a fine warranted an exception to the general rule that 

collateral claims cannot be raised on direct appeal. The Delgros Court noted 

that its holding did not disturb cases, like Fisher, construing the PCRA’s 

eligibility provisions. Id. at 362-63. Thus, Appellant could have raised his 

ineffectiveness claims on direct appeal. 

7 “It is well-settled that this Court may affirm a trial court’s ruling on any 

basis.” Commonwealth v. Kennedy, 151 A.3d 1117, 1127 n.14 (Pa. Super.

2016).