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Commonwealth v. Kennedy

Pennsylvania Superior Court

December 16, 2021

The Pennsylvania Superior Court affirmed the denial of the defendant’s fourth PCRA petition because it was untimely. In 2011, the defendant filed his first PCRA petition, which the lower court dismissed. In the appeal of the dismissal of the first petition, the Superior Court ruled that all issues were waived because counsel did not file a Rule 1925(b) statement. The defendant filed a second PCRA petition and alleged PCRA counsel’s ineffectiveness. The lower court denied the petition. While the appeal of the denial of the second petition was pending, the defendant filed a third PCRA petition. The lower court quashed the petition as premature. Later, the defendant filed a fourth PCRA petition, which the lower court dismissed as untimely. The Superior Court affirmed. The defendant argued that PCRA counsel caused his appellate rights to be waived by failing to file a 1925(b) statement. The defendant claimed he was unaware that he could have filed a serial PCRA petition seeking reinstatement of his rights, still within the one-year time strictures of the PCRA. The Superior Court was not sympathetic. The Court found that the defendant “was presumably entitled to have his collateral appeal rights reinstated nunc pro tunc when his first collateral appeal was dismissed”. But his fourth PCRA petition wherein he sought reinstatement of his appellate rights was untimely, and he failed to plead and prove a PCRA timeliness exception.

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