J-A13013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NIGEL JOHNSTON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 930 WDA 2023

Appeal from the PCRA Order Entered July 18, 2023

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

No(s): CP-02-CR-0008386-2020

BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY OLSON, J.: FILED: June 20, 2024

Appellant, Nigel Johnston, appeals from the July 18, 2023 order 

dismissing, as untimely, his petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–9546. We affirm. 

On April 6, 2021, Appellant entered a negotiated guilty plea to theft by 

deception, access device fraud, and conspiracy. That same day, Appellant 

was sentenced to an aggregate term of six years’ probation. Appellant did not

file a direct appeal; thus, his judgment of sentence became final on May 6, 

2021. See 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final, 

inter alia, on expiration of time for seeking review). On or about June 30, 
J-A13013-24

- 2 -

2022, Appellant filed a pro se PCRA petition.1 The PCRA court subsequently 

appointed counsel who, on December 19, 2022, filed an amended PCRA 

petition on Appellant’s behalf. On June 27, 2023, the PCRA court issued notice 

of its intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907, citing

____________________________________________

1 Appellant’s pro se PCRA petition does not appear in the certified record or 

on the docket. The PCRA court, however, noted that it was received and dated 

June 30, 2022. See PCRA Court Opinion, 11/13/23, at 8. 
J-A13013-24

- 3 -

the untimeliness of Appellant’s petition. On July 18, 2023, the PCRA court 

dismissed Appellant’s petition. This appeal timely followed. 2,3

____________________________________________

2

It is well-settled that a notice of appeal must be filed within “30 days after 

the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(b). In 

the absence of a timely notice of appeal, we must quash. See 

Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (“[Superior] 

Court has no jurisdiction to entertain an untimely appeal.”). 

In this instance, the PCRA court issued an order dismissing Appellant’s PCRA 

petition on July 18, 2023. The trial court docket also indicates that the order 

was served on Appellant’s counsel that day. Appellant then filed a notice of 

appeal. The trial court docket indicates that Appellant’s notice of appeal was 

filed August 17, 2023, but the trial court timestamp on the notice of appeal is 

dated August 18, 2023. In light of this discrepancy, we issued a rule to show 

cause order why the appeal should not be quashed. Appellant’s counsel filed 

a response to the rule to show cause order in which she indicated that she 

“prepared and e-filed” Appellant’s notice of appeal via the Unified Judicial 

System of Pennsylvania’s PACFile system on August 17, 2023. Appellant’s 

Response to Rule to Show Cause Order, 9/18/23, at *1 (unpaginated). 

Appellant’s counsel stated that she did so because she was court-appointed to 

represent Appellant and, as such, was proceeding in forma pauperis wherein 

no filing fees are required. Id. Appellant’s counsel further stated, however, 

that, on August 18, 2023, she “discovered” that the notice of appeal was 

rejected. Id. Counsel then contacted the Allegheny County Clerk of Courts 

to determine the reason for its rejection and was informed that “[n]otices of 

[a]ppeal normally cannot be filed via the PACfile system” because, 

presumably, there is no way to pay the required filing fee thereon. Id. 

Accordingly, counsel “re-file[d]” Appellant’s notice of appeal on August 18, 

2023 and was advised that it would be “docketed as having been timely filed.” 

Id. Because Appellant’s notice of appeal was not officially filed until August 

18, 2023, 31 days after the PCRA court dismissed his PCRA petition, it appears 

untimely. 

Importantly, however, this Court recently addressed a substantially similar 

situation in Commonwealth v. Shelton, 2023 WL 5097214 *1, *3-*4 (Pa. 

Super. Aug. 9, 2023) (non-precedential decision). In particular, counsel for 

the appellant in Shelton “attempted to electronically file the notice of appeal” 

in a timely manner via PACFile but subsequently noticed that it was rejected. 

Id. at *3. Counsel was then informed that “she could not use the PACFile 

(Footnote Continued Next Page)
J-A13013-24

- 4 -

Appellant raises the following issues on appeal:

____________________________________________

system to file the notice of appeal because there was no way to pay filing fees 

on that system as a privately-retained attorney.” Id. Accordingly, this Court 

considered whether Shelton’s notice of appeal, timely submitted but ultimately 

rejected, could be considered timely. Id. In so doing, the Shelton Court 

noted that this Court previously considered whether “the failure to file a filing 

fee require[d] the dismissal of an appeal” in First Union Nat. Bank v. F.A. 

Realty Invs. Corp., 812 A.2d 719, 723 (Pa. Super. 2002). Id. at *3. Initially, 

the First Union Nat. Bank Court recognized that, pursuant to Pa.R.A.P. 

902(b), the “[f]ailure of an appellant to take any step other than the timely 

filing of a notice of appeal does not affect the validity of the appeal, but is 

subject to such action as the appellate court deems appropriate.” First Union 

Nat. Bank, 812 A.2d at 723. Ultimately, the First Union Nat. Bank Court 

instructed that the decision to dismiss an appeal based on the “failure to 

tender the required fee” is discretionary and provided examples of incidents 

in which dismissal is appropriate. Id. at 723 (noting that dismissal is 

appropriate if, inter alia, “the filing party unduly delays paying the requisite 

fee or undue delays seeking leave to appeal in forma pauperis”). Based upon 

the foregoing, as well as the fact that “none of the factors mentioned in First 

Union Nat. Bank . . . [made] it appropriate to quash the appeal, the Shelton

Court declined to dismiss the appellant’s appeal. Shelton, 2023 WL 5097214

at *5. 

We similarly decline to quash Appellant’s appeal. We note that, like in 

Shelton, Appellant’s counsel timely submitted a notice of appeal, but it was 

rejected. In addition, we find it significant that Appellant is proceeding in this 

appeal in forma pauperis and, as such, no filing fee is required. Finally, we 

note that none of the factors mentioned in First Union Nat. Bank apply. We 

therefore decline to quash Appellant’s appeal and will consider it to be timely 

filed. 

3 On August 23, 2023, the PCRA court ordered Appellant to file a Rule 1925(b) 

statement within 21 days of the docketing of the order, i.e., on or before 

September 13, 2023. PCRA Court Order, 8/23/23, at *1 (unpaginated). The 

order also informed Appellant that “[a]ny issues not properly included in the 

[s]tatement, timely filed and served, shall be deemed waived.” Id. On 

September 22, 2023, Appellant filed a motion for leave to file a Rule 1925(b) 

statement nunc pro tunc, as well as a substantive Rule 1925(b) statement. 

The PCRA court issued an order on September 26, 2023 granting Appellant 

nunc pro tunc relief and accepting Appellant’s substantive Rule 1925(b) 

statement “as timely filed.” PCRA Court Order, 9/26/23, at *1 (unpaginated). 
J-A13013-24

- 5 -

1. Did the [PCRA] court abuse its discretion in denying 

[Appellant’s] PCRA [p]etition[], as amended, without a 

hearing on the grounds that it lack[ed] jurisdiction to 

address the substantive claims because the petition was 

untimely?

2. Did the [PCRA] court err in denying [Appellant’s PCRA 

petition] without a hearing insofar as [Appellant] raised a 

meritorious claim that his plea was unknowing and 

involuntary due to counsel’s failure to discuss the merits of 

filing a motion to suppress evidence, and failure to file a 

motion to suppress?

Appellant’s Brief at 4. 

Our standard of review is as follows:

Our review of a PCRA court's decision is limited to examining 

whether the PCRA court's findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. We view the findings of the PCRA court and the evidence 

of record in a light most favorable to the prevailing party. With 

respect to the PCRA court's decision to deny a request for an 

evidentiary hearing, or to hold a limited evidentiary hearing, 

such a decision is within the discretion of the PCRA court and 

will not be overturned absent an abuse of discretion. The PCRA 

court's credibility determinations, when supported by the 

record, are binding on this Court; however, we apply a de novo

standard of review to the PCRA court's legal conclusions[.]

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations 

omitted).

We have reviewed the briefs of the parties, the relevant law, the certified 

record, and the opinion of the able PCRA court judge, the Honorable Susan F. 

Evashavik-DiLucente. We conclude that Appellant is not entitled to relief in 

this case for the reasons expressed in Judge Evashavik-DiLucente’s November 

13, 2023 opinion. Therefore, we affirm based on Judge Evashavik-DiLucente’s 
J-A13013-24

- 6 -

opinion and adopt it as our own. In any future filing with this or any other 

court addressing this ruling, the filing party shall attach copies of Judge 

Evashavik-DiLucente’s November 13, 2023 opinion. 

Order affirmed. 

6/20/2024
Circulated 05/28/2024 02:37 PM