J-S56028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK FORD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 338 EDA 2019

Appeal from the Judgment of Sentence Entered March 20, 2017

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

No(s): CP-51-CR-0002874-2015

COMMONWEALTH OF PENNSYLVANIA

v.

MARK FORD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 339 EDA 2019

Appeal from the Judgment of Sentence Entered March 20, 2017

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

No(s): CP-51-CR-0004136-2015

BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 03, 2019

Appellant, Mark Ford, purports to appeal nunc pro tunc from the 

judgment of sentence entered in the Court of Common Pleas of Philadelphia 

County after the court granted his petition filed pursuant to the Post Conviction 

Relief Act (“PCRA”) 42 Pa.C.S.A. §§ 9541-9546, and restored his right to file 

a direct appeal. We hold that the PCRA court lacked jurisdiction to reinstate 
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Appellant’s direct appeal rights nunc pro tunc. Accordingly, we vacate the 

PCRA court’s order and quash Appellant’s appeal for lack of jurisdiction. 

On December 5, 2016, Appellant entered an open guilty plea in two 

cases. Specifically, regarding Docket Number CP-51-CR-0002874-2015 

(hereinafter, Docket Number 2874-2015), Appellant entered an open guilty 

plea to: rape by forcible compulsion,1involuntary deviate sexual intercourse

(“IDSI”) by forcible compulsion,2robbery,3 kidnapping for ransom,4 unlawful 

restraint,5 possession of an instrument of crime,6 and terroristic threats.

7

 In 

addition, regarding Docket Number CP-51-CR-0004136-2015 (hereinafter, 

Docket Number 4136-2015), Appellant pled guilty to robbery, kidnapping for 

ransom, access device fraud,8indecent assault by forcible compulsion,9 and 

terroristic threats. 

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1 18 Pa.C.S.A. § 3121(a)(1). 

2 18 Pa.C.S.A. § 3123(a)(1). 

3 18 Pa.C.S.A. § 3701(a)(1)(i). 

4 18 Pa.C.S.A. § 2901(a)(1). 

5 18 Pa.C.S.A. § 2902(a)(1). 

6 18 Pa.C.S.A. § 907(a).

7 18 Pa.C.S.A. § 2706(a)(1). 

8 18 Pa.C.S.A. § 4106(a)(1). 

9 18 Pa.C.S.A. § 3126(a)(2).
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The PCRA court set forth the relevant factual and procedural background 

of this matter as follows:

On [Docket Number 2874-2015, Appellant] pled guilty to the 

following facts. 

If she were to testify, [the victim, I.J.] would testify that on 

[February 8, 2015] around 5:50 [a.m.], at the time she was 

[22-years-old,] [I.J.] was walking on 66th Avenue from 

Broad Street on her way to go to work and catch the bus. 

[Appellant] approached [I.J.] from behind[,] put an object 

to her back which [I.J.] believed to be a gun, pulled her into 

a secluded driveway, vaginally raped her, and forced [I.J.] 

to perform oral intercourse on [Appellant] until [he] 

ejaculated in her mouth.

At that point, [Appellant] had [I.J.] spit into a paper, wipe 

her tongue, and ordered [I.J.] to give [Appellant] her 

underwear. He also took [I.J.’s] identification card, cell 

phone, and bank card[,] as well as [$5.00]. He told [I.J.] 

that if she told anyone what happened, he would kill her and 

her family. [I.J.] disclosed to her grandmother. Police were 

notified. A rape kit was taken from her. [Appellant’s]

DNA was found on [I.J.’s] tongue. 

On [Docket Number 4136-2015, Appellant] pled guilty to the 

following facts. 

[T.A.] would testify that on February 10, 2015, around 

10:30 [p.m.], at the time she was [23-years-old,] [T.A.] 

was waiting for her bus at 6600 5th Street when [Appellant] 

approached her and grabbed her. [T.A.] tried to scream for 

help. [Appellant] placed a scarf over [T.A.’s] mouth and 

told her he had a gun, [and] that he was going to rob her 

and then kill her afterwards. He led [T.A.] to a secluded 

area between some houses where he demanded money 

from her and began looking through her purse. [Appellant] 

demanded [T.A.] call her bank to see how much money she 

had in her account[.] When he found out how much money 

she had, [Appellant] took [T.A.] to the Sunoco gas station 

located at 440 West Cheltenham Avenue in Philadelphia[, 

Pennsylvania]. This is all on surveillance video. [Appellant] 

had [T.A.] withdraw money from an ATM inside the store. 

[T.A.] withdrew [$200.00] and gave it to [Appellant]. He 
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then took the debit card and withdrew an additional 

[$200.00] from her account. When he left, [Appellant] took 

[T.A.’s] identification card, [and] told her he wanted to know 

where she lived and what she looked like in case she 

reported the incident to police. [Appellant] then grabbed 

[T.A.’s] butt and said [] that she had a soft butt and he 

wanted to take her to a hotel. He had her call a cab, which 

is reflected in [T.A.’s] phone records, to take them to a 

hotel. [While] they were waiting for a cab to pick them up, 

someone in the gas station called the police. [The police] 

arrive[d]. They arrested [Appellant]. They recovered from 

[Appellant] [the] withdrawn money, [T.A.’s] identification 

card, and the ATM receipt. 

After the incident, a photo array was presented to [I.J., 

wherein she positively identified Appellant]. That would be 

the sum and substance of the Commonwealth’s case. 

Following a thorough colloquy, [the trial court] accepted 

[Appellant’s] guilty plea to the above facts and deferred 

sentencing to March 20, 2017, pending completion of a 

presentence investigation, mental health evaluation, and an 

evaluation by the Sexual Offenders Assessment Board. [Before 

his sentencing hearing], [Appellant] filed a pro se motion to 

withdraw his guilty plea. The Commonwealth filed a response on 

March 6, 2017. On March 20, 2017, prior to being sentenced, 

defense counsel informed [the trial court] that [Appellant] was 

withdrawing his pro se motion. That same day, [Appellant] was 

sentenced to an aggregate term of [12] to [41] years[’] of 

incarceration. 

PCRA Court Opinion, 3/6/19, at 1-3 (footnotes omitted). 

On March 30, 2017, Appellant filed a motion for reconsideration of 

sentence. Appellant’s Motion for Reconsideration, 3/30/17, at 1. While 

Appellant’s motion for reconsideration was still pending, on June 22, 2017, 

Appellant filed a pro se PCRA petition. Appellant’s PCRA Petition, 6/22/17, at 

1-9. Within his petition, Appellant claimed that trial counsel was ineffective 
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for failing to file a direct appeal. Id. Thus, he sought leave to file a direct 

appeal nunc pro tunc. Id. at 5. 

The trial court denied Appellant’s motion for reconsideration of sentence 

on July 17, 2017. Trial Court Order, 7/17/17, at 1. Three days later, counsel

appointed to represent Appellant in connection with his PCRA petition entered 

his appearance. PCRA Court Opinion, 3/6/19, at 3. On February 27, 2018, 

court-appointed counsel filed a motion to withdraw as counsel and a no-merit 

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). “On 

March 14, 2018, after finding [] counsel’s Finley letter inadequate, [the PCRA 

court] permitted counsel to withdraw and ordered a new attorney to be 

appointed to represent [Appellant].” PCRA Court Opinion, 3/6/19, at 3. 

Subsequently, on October 30, 2018, new counsel filed an amended PCRA 

petition asserting that trial counsel was ineffective for failing to file a direct 

appeal on Appellant’s behalf. Appellant’s Amended PCRA Petition, 10/30/18, 

at 1-13. On January 25, 2019, the PCRA court reinstated Appellant’s appellate 

rights nunc pro tunc. PCRA Court Opinion, 3/6/19, at 3. This timely appeal 

followed.

10

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10 Appellant filed two notices of appeal on January 30, 2019, separately listing 

each docket number. See Commonwealth v. Walker, 185 A.3d 969, 977 

(Pa. 2018). On February 4, 2019, the trial court ordered Appellant to file a 

Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). 

Appellant timely complied. The trial court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on March 6, 2019.
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Appellant raises the following issue on appeal: 

Did the trial court err by imposing an unduly harsh and excessive 

sentence in light of the mitigating factors presented by Appellant?

See generally Appellant’s Brief at 7. 

Before we address the merits of Appellant’s discretionary sentencing 

claim, we must determine whether the PCRA court had jurisdiction to hear 

Appellant’s PCRA petition. “This Court may consider the issue of jurisdiction 

sua sponte.” Commonwealth v. Grove, 170 A.3d 1127, 1136–1137 (Pa. 

Super. 2017), quoting Commonwealth v. Ivy, 146 A.3d 241, 255 (Pa. 

Super. 2016). “When a PCRA court lacks jurisdiction to consider the merits of 

a petition, we likewise lack jurisdiction to consider an appeal from disposition 

of the petition.” Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015). 

Pursuant to 42 Pa.C.S.A. §§ 9545(b)(1), a PCRA petition must be “filed 

within one year of the date the judgment [of sentence] becomes final.” 42 

Pa.C.S.A. §§ 9545(b)(1). “[A] judgment becomes final at the conclusion of 

direct review, including discretionary review in the Supreme Court of the 

United States and the Supreme Court of Pennsylvania, or at the expiration of 

time for seeking the review.” 42 Pa.C.S.A. §§ 9545(b)(3). The PCRA, 

however, “has no applicability until [an appellant’s] judgment of sentence 

becomes final.” See Commonwealth v. Kubis, 808 A.2d 196, n.4 (Pa. 

Super. 2002), appeal denied 813 A.2d 839 (Pa. 2002). Indeed, if a PCRA 

petition is filed before the petitioner “has waived or exhausted his direct 

appeal rights,” the PCRA court lacks jurisdiction to proceed in the action. 
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Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000); see also 

Commonwealth v. Fralic, 625 A.2d 1249, n.1 (Pa. Super. 1993); 

Commonwealth v. O’Neil, 573 A.2d 1112, 1116 (Pa. Super. 1990). 

In this case, Appellant’s judgment of sentence became final on August 

16, 2017, 30 days after the time for seeking appellate review with this Court 

expired. Appellant’s PCRA petition, however, was filed on June 22, 2017, 25 

days before the trial court denied reconsideration of his sentence, and 55 days 

before his right to file a direct appeal from his judgment of sentence expired. 

Because Appellant filed his PCRA petition before he waived or exhausted his 

direct appeal rights and before his judgment of sentence became final, it was 

premature. See Leslie, 757 A.2d at 985-986; see also 42 Pa.C.S.A. §§ 

9545(b)(3). Therefore, the PCRA court lacked jurisdiction to proceed in this 

action. As such, we are constrained to vacate the PCRA court’s order granting 

Appellant leave to file a nunc pro tunc appeal from the judgment of sentence. 

Appeal quashed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/3/19