J-S79030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALTON DANIEL BROWN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1118 EDA 2017

Appeal from the PCRA Order February 14, 2017

In the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-00000296-1997

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED MARCH 27, 2018

Alton Daniel Brown appeals pro se from the order entered February 14, 

2017, in the Delaware County Court of Common Pleas dismissing his serial 

petition for collateral relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”).1 Brown seeks relief from the judgment of sentence of an aggregate 

term of 35 to 70 years’ imprisonment, imposed on October 30, 1997, following 

his jury conviction of robbery,2 aggravated assault,

3 and related charges. On 

appeal, Brown contends the PCRA court erred by (1) dismissing his petition 

based upon its purported lack of jurisdiction, and (2) refusing to recuse itself 

from the proceedings. Brown also filed a separate application requesting this 

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 3701(a)(2).

3 18 Pa.C.S. § 2702(a).
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Court recuse itself from adjudicating his appeal. For the reasons below, we 

affirm the order of the PCRA court, and deny Brown’s recusal request.

The facts underlying Brown’s convictions, and the complicated 

procedural history that followed, are well-known to the parties, and we need 

not reiterate them herein. We note only that Brown did not file a direct appeal, 

but sought post-conviction relief on six prior occasions in the PCRA court. Each 

time his request for relief was denied, Brown filed an appeal. This Court either 

affirmed the ruling or dismissed the appeal for a procedural error.4 On January 

30, 2017, Brown filed the instant PCRA petition, his seventh, alleging 

numerous claims concerning his status as a self-described “political prisoner,” 

claiming he is serving an illegal sentence, and asserting all governmental 

officials involved in his case obstructed his attempt to obtain a direct appeal 

from his judgment of sentence. See Petition for Writ of Habeas Corpus and/or 

Post-Conviction Collateral Relief, 1/30/2017. The same day, Brown also filed 

a motion seeking recusal of the trial court, and reassignment of his case to 

“an impartial tribunal, perferably (sic) in a jurisdiction located in the States of 

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4 See Commonwealth v. Brown, 938 EDA 99 (Pa. Super. Sept. 14, 1999)

(dismissed for failure to file brief); Commonwealth v. Brown, 839 A.2d 1149 

(Pa. Super. 2003) (unpublished memorandum), appeal denied, 875 A.2d 1072 

(Pa. 2004); Commonwealth v. Brown, 928 A.2d 1119 (Pa. Super. 2007) 

(unpublished memorandum), appeal denied, 934 A.2d 1275 (Pa. 2007); 

Commonwealth v. Brown, 68 A.3d 364 (Pa. Super. 2013) (unpublished 

memorandum), appeal denied, 75 A.3d 1280 (Pa. 2013); Commonwealth v. 

Brown, 2058 EDA 2015 (Pa. Super. Aug. 5, 2016) (dismissed for failure to 

file brief); Commonwealth v. Brown, 3015 EDA 2016 (Pa. Super. Jan. 30, 

2017) (dismissed for failure to file docketing statement).
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New York, New Jersey, or Ohio[.]” Motion for Recusal, 1/30/2017, at 1. On 

February 14, 2017, the PCRA court entered two orders: (1) denying Brown’s 

PCRA petition for lack of jurisdiction, and (2) denying Brown’s motion for 

recusal. See Orders, 2/14/2017. This timely appeal followed.5

Preliminarily, we note that while Brown addresses the propriety of both 

orders in his brief,

6 his notice of appeal referenced only the “ORDER of 

2/14/2017, denying post-conviction relief.” Notice of Appeal, 3/20/2017. 

Accordingly, the order denying Brown’s motion for recusal of the PCRA court 

is not before us.

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) 

(internal punctuation and citation omitted). Further, a PCRA court may 

dismiss a petition “without an evidentiary hearing if there are no genuine 

issues of material fact and the petitioner is not entitled to relief.” Id. at 1284 

(citations omitted).7

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5 The PCRA court did not direct Brown to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

6 See Brown’s Brief at unnumbered 1-2, 6-7.

7 We note the PCRA court did not provide Brown with the requisite notice of 

its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. Nevertheless, 

because Brown has failed to raise this claim of error on appeal, “he waived 

any defect in notice.” Commonwealth v. Zeigler, 148 A.3d 849, 852 n.2 

(Pa. Super. 2016). Moreover, as we note infra, Brown’s petition is also 
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Here, the PCRA court provided a myriad of reasons for dismissing 

Brown’s petition. See PCRA Court Opinion, 7/10/2017, at 3-10. First and 

foremost, however, the court determined it lacked jurisdiction to consider the 

present petition because, at the time it was filed, an appeal from the denial of 

Brown’s prior petition was still pending in this Court. See id. at 3-4. The 

court opined:

The Petition that is the subject of this Opinion is a duplicate 

of a Petition filed by [Brown] on [August 11], 2016.[8] That 

Petition was denied by this Court and appealed to the 

Pennyslvania Superior Court. The Superior Court issued an order 

dismissing the appeal on January 20, 2017. Under Pennsylvania 

Rule of Appellate Procedure 1113, [Brown] has 30 days from the 

date of the Superior Court’s denial of his Petition to file an appeal 

to the Supreme Court. Pa.R.A.P. 1113(a). At the time [Brown] 

filed this duplicate Petition with this Court on January 30, 2017, 

the Superior Court had not yet remanded the case back to the 

Court of Common Pleas. As such, this Court lacks the jurisdication 

to hear this Petition and denied the Petition for that reason. See 

also Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) 

(“Appellant could not have filed his second PCRA petition in the 

court of common pleas while his first PCRA petition was still 

pending before this court. The trial court had no jurisdiction to 

adjudicate issues directly related to this case; only this court 

did.”).

Id. at 3-4 (footnote omitted).

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patently untimely, and the “failure to issue Rule 907 notice is not reversible 

error where the record is clear that the petition is untimely.” Id.

8 The docket reflects Brown filed another PCRA petition on November 21, 

2016, which the court denied on November 29, 2016. However, neither the 

petition, nor the PCRA court’s order denying relief, are included in the certified 

record.
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Brown argues the PCRA court erred when it dismissed his petition for 

lack of jurisdiction because the Superior Court had issued a final order 

(dismissing the appeal) before he filed the instant petition, and he simply 

chose not to appeal that order. See Brown’s Brief at unnumbered 4-5. He 

maintains the fact that the appellate court had not yet remanded the record

back to the PCRA court did not affect the PCRA court’s jurisdiction. See id. at 

unnumbered 5.

We disagree. In Lark, supra, the Pennsylvania Supreme Court held: 

[W]hen an appellant’s PCRA appeal is pending before a court, a 

subsequent PCRA petition cannot be filed until the resolution of 

review of the pending PCRA petition by the highest state court in 

which review is sought, or upon the expiration of the time for 

seeking such review.

Lark, supra, 746 A.2d at 588 (emphasis supplied). Here, on January 20, 

2017, this Court entered an order, at Docket No. 3015 EDA 2016, dismissing 

Brown’s appeal from the August 17, 2016, order of the PCRA court, which 

denied his serial PCRA petition.9 When Brown filed his most recent petition 

on January 30, 2017, the 30-day period for appealing this Court’s January 20, 

2017, order had not yet expired. Therefore, under Lark, the PCRA court had 

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9 The appeal was dismissed because Brown failed to file a docketing statement 

as required by Pa.R.A.P. 3517. See Docket No. 3015 EDA 2016, Order, 

1/20/2017.
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no jurisdiction to review the petition. Accordingly, the PCRA court’s dismissal 

of the petition was proper.10

Nevertheless, even if we were to find the PCRA court could have 

reviewed the petition under Lark, we would still affirm the order on appeal. 

Indeed, as the PCRA court noted in its opinion, Brown’s petition was manifestly 

untimely,11 and Brown failed to prove the applicability of any of the timing 

exceptions found in 42 Pa.C.S. § 9545(b). See PCRA Court Opinion, 

7/10/2017, at 4-6. Although Brown attempts to raise the governmental 

interference exception in his pro se petition,12 his argument focuses on what 

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10 We note this Court’s recent en banc decision in Commonwealth v. 

Montgomery, ___ A.3d ___, 2018 PA Super 54 (Pa. Super. 2018) (en banc), 

does not compel a different result. In that case, our Court carved out an 

exception to Lark, supra, and held “PCRA courts are not jurisdictionally 

barred from considering multiple PCRA petitions related to the same judgment 

of sentence at the same time[.]” Montgomery, supra, 2018 PA Super 54, 

at 10 (emphasis supplied). However, the Montgomery panel explained that 

Lark still applies in cases such as the one before us, and “precludes 

consideration of a subsequent petition from the time a PCRA order is appealed 

until no further review of that order is possible.” Id. at 8. 

11 A PCRA petition must be filed within one year of the date the judgment of 

sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Here, Brown’s 

judgment of sentence was final on December 1, 1997. Although the thirtieth 

day following his sentencing was November 29, 1997, that day fell on a 

Saturday. Therefore, Brown had until Monday, December 1st to file a timely 

direct appeal. See 1 Pa.C.S. § 1908. 

12 See 42 Pa.C.S. § 9545(b)(1)(i) (providing an exception to the one-year 

filing requirement when the petitioner proves that “the failure to raise the 

claim previously was the result of interference by government officials with 

the presentation of the claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws of the United States”).
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he perceives to be a governmental conspiracy to sabotage his right to file a 

direct appeal. See Petition for Writ of Habeas Corpus and/or Post-Conviction 

Collateral Relief, 1/30/2017, at 7-8. Brown has attempted to resurrect his 

direct appeal rights since his first PCRA petition filed in 1998. Furthermore,

he alleged as early as in his second petition that his failure to file a direct 

appeal was the result of governmental interference. See Brown, supra, 839 

A.2d 1149 (unpublished memorandum at 4) (“Appellant asserts his failure to 

file a direct appeal was due to either trial counsel’s ineffective assistance or 

governmental interference (in the form of a failure to appoint new counsel), 

and the PCRA court, therefore, erred in denying his request for a nunc pro 

tunc direct appeal.”). Accordingly, even if we were able to review this claim, 

we would find Brown is unable to satisfy the 60-day requirement for raising a 

timeliness exception under 42 Pa.C.S. § 9545(b)(2). See id. (“Any petition 

invoking an exception provided in paragraph (1) shall be filed within 60 days 

of the date the claim could have been presented.”). Therefore, Brown is 

entitled to no relief.

We note, however, that Brown also filed two motions in this Court while 

his appeal was pending: (1) an application for extension of time to file a reply 

brief; and (2) an application for recusal of this Court and request for a hearing. 

Because we agree the PCRA court had no jurisdiction to consider Brown’s 

petition, we deny his application for an extension of time to file a reply brief.

 With regard to his recusal motion, we note:
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As a general rule, a motion for recusal is initially directed to 

and decided by the jurist whose impartiality is being 

challenged. In considering a recusal request, the jurist must 

first make a conscientious determination of his or her ability 

to assess the case in an impartial manner, free of personal 

bias or interest in the outcome. The jurist must then 

consider whether his or her continued involvement in the 

case creates an appearance of impropriety and/or would 

tend to undermine public confidence in the judiciary. This is 

a personal and unreviewable decision that only the jurist can 

make.... In reviewing a denial of a disqualification motion, 

we recognize that our judges are honorable, fair and 

competent.

Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 

(Pa.) (citations omitted), cert. denied, 528 U.S. 810, 120 S.Ct. 

41, 145 L.Ed.2d 38 (1998). “It is the burden of the party 

requesting recusal to produce evidence establishing bias, 

prejudice or unfairness which raises a substantial doubt as to the 

jurist's ability to preside impartially.” Id.

Commonwealth v. Melvin, 103 A.3d 1, 23 (Pa. 2014).

Here, the basis for Brown’s recusal motion appears to be this Court’s 

consistent denial of relief to him in his prior appeals. See Application for 

Recusal and Request for Hearing on Same, 11/27/2017, at unnumbered 1-2. 

Brown insists “the tone and facts of this Court’s opinions ... reflects a deep 

hatred and animosity for [him], and an intent to discredit him personally and 

paint him as a frivolous and abusive litigator[.]” Id. at 1. Furthermore, he 

maintains his criminal convictions are the result of a discriminatory justice 

system. See id. However, our review of the prior decisions of this Court 

adjudicating Brown’s appeals reveals no fixed bias or appearance of 

impartiality. Brown either failed to follow the appellate rules of procedure, or 

was unable to prove his claims. In either case, the repeated denial of relief 
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does not provide a basis for recusal. Accordingly, we deny his application 

before this Court.

Order affirmed. Application for Extension of Time denied. Application 

for Recusal and Request for Hearing on Same denied. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/18