Com. v. Spence, L.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA :

v. :

: :

LEVAR LEE SPENCE :

:

Appellant : No. 87 MDA 2021 Appeal from the PCRA Order Entered January 4, 2021

In the Court of Common Pleas of York County Criminal Division at No(s):

CP-67-CR-0003301-2015

BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.* MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 30, 2021

Levar Lee Spence (Appellant) appeals pro se from the January 4, 2021, order of the York County Court of Common Pleas dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA).1 He argues that the PCRA court erred in finding his petition to be untimely. We affirm. We also deny Appellant’s pro se “Application to Expedite” this appeal.

On April 15, 2015, a search warrant was executed by the York County Drug Task Force at a room at the Econolodge [in York, Pennsylvania,] based on probable cause gained from a heroin buy setup between a confidential informant and [Appellant]. Appellant was found inside the hotel room along with a large amount of heroin packaged for distribution, cash, and a small amount of marijuana.

PCRA Ct. Op., 3/10/21, at 1-2. Appellant’s convictions arise therefrom. He presents the following two questions for our review:

1. Did Appellant’s judgment of sentence become final on March 31, 2016?

2. Did the PCRA court err in finding [that] none of the exceptions to the one-year filing period applied in this case?

Appellant’s Brief at 15.

Appellant was caught with a terrific amount of heroin, an amount that could only indicate an intent to distribute. See PCRA Ct. Op. at 1-2; N.T. Trial, 1/12/16 & 1/14/16, at 178-79.2 He was caught with packaging material. See id. He was caught selling and he was subsequently convicted upon proof beyond a reasonable doubt. See id. Since his arrest, he has chosen to obstruct, obscure, and deflect rather than participate in good faith in his trial, sentencing, or rehabilitation.3 This does not bode well for his prospects at becoming reacquainted with free society. You may think this Court is exaggerating. We are not.

Since his arrest, Appellant has insisted on representing himself, and has taken these proceedings on a twisted path that we describe below. Ultimately, we have no jurisdiction to grant the relief he requests, and the irony of that fact can only be appreciated in the context of Appellant’s behavior.

Appellant has pursued a legal strategy that is both utterly ineffective for its intended purpose, and a source of harm for its user. Appellant seems unaware that his strategy is not having its intended effect, and the more energy and effort he invests in his pseudolegal artifice, the more plainly he is exposed.

From Appellant’s catalogue of complaints, several themes emerge. Appellant asserts that the trial court lacked jurisdiction over him, and thus that his trial, conviction, and judgment of sentence are void ab initio. In the beginning, this theory had a distinctly “sovereign citizen” contour.4 He made the following assertions in court, prior to his trial:

• “You do not have me on record as a party defendant.” N.T. Trial at 13. • “. . . [T]he contract says, am I a human being or am I a legal entity or are they the same?” Id. at 17. • “When you say myself, you’re speaking of the party defendant on record, correct?” Id. at 20. • “Now, I am a nonjuridical person.” Id. at 22. • “I’m not a legal entity, nor am I a juridical person, so a nonjuridical person would be a natural person or a human being.” Id. at 23. • “Actually, I wasn’t notified, nor was the party, the Defendant, notified.”

Id. at 25. • “Once again, can you procure a jury of my peers that are nonjuridical?”

Id. at 26. • “Is it noted on the court that I am the occupant of the executive office still [appearing] specially and not generally? . . . Of the all capital letters — I’m going to repeat the question — of the all capital letters, [Appellant then spelled his name] Estate, on behalf of — what I’d asked was, is it on the Court’s record that I am the sole and private occupant of the executor office of the, all capital letters, [Appellant’s name] Estate appearing specially and not generally.” Id. at 39-40.

• “You do understand I can only sign [the jury waiver form] in a representative capacity.” Id. at 43.

Though later he would take great umbrage at being characterized as having claimed to be a sovereign citizen, Appellant’s early interactions in these proceedings are plainly rife with the characteristics of that quixotic and malign school of pathological legal behavior.5 Foundational to the sovereign citizen playbook is the idea that one can simply opt out of the rules that bind the rest of us, while still living in the United States and enjoying the fruits of civilization as administered therein. Like a sovereign citizen claimant, Appellant played silly games in court filings, such as listing his address as within the “Spence Province” of Philadelphia, in the United States Minor Outlying Islands. See, e.g., “Breve Libertatis,” 3/16/16, at 9 (unpaginated).6

Appellant was convicted at a bench trial on January 14, 2016, of possession with intent to deliver a controlled substance (PWID) and possession of a small amount of marijuana. On March 1, 2016, he received a sentence of three to eight years of imprisonment for PWID, with a concurrent term of 15 to 30 days of imprisonment for possession of a small amount of marijuana.7 There was no appeal.

On January 9, 2020, Appellant filed a pro se petition pursuant to the PCRA.8 On February 4, 2020, this Court received a petition from Appellant, which was sent to the PCRA court. Appellant filed several subsequent petitions or similar filings while that petition was still pending. On December 1, 2020, the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907, and on December 31st, the PCRA court dismissed Appellant’s PCRA petition (and the subsequent filings). On January 8, 2021, Appellant filed a notice of appeal, and he filed a statement pursuant to Pa.R.A.P. 1925(b) on January 19th.

The PCRA court recognized, as we must also, that Appellant’s filings are facially untimely under the PCRA. PCRA Ct. Op. at 4-6. Thus, regardless of the gravamen of Appellant’s substantive complaints, unless he establishes that his filings satisfy the requirements of an exception to the PCRA’s time bar, no jurisdiction lies to grant relief. The PCRA requires that any petition filed over one year after the petitioner’s conviction has become final must allege, and the petitioner prove, that:

(i) 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;

(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). The PCRA court correctly observes that Appellant’s sentence became final on March 31, 2016, thirty days after imposition of sentence on the first of the month. To be timely filed, Appellant’s petition thus had to have been filed within one year of that date. It plainly was not; Appellant filed his first petition on January 9, 2020. “Appellant in one of his five petitions made the bald assertion that all of his claims fall within one or more of the timeliness exceptions — specifically, interference by government officials or newly discovered evidence.” PCRA Ct. Op. at 5-6 (footnote omitted). He now claims that he actually filed a timely notice of appeal, and that government interference and new facts create adequate jurisdictional grounds. Appellant’s Brief at 15.

Appellant’s legal theory at trial (which he maintains; see below) was untenable in the extreme. He asserted that Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., does not apply to human beings. “Human beings are not included in 780-113 or 780-102 even in 30 or 31.” N.T. Trial at 24. As a matter of statutory interpretation, this argument is so faulty as to be laughable – reading the statute in its entirety, it plainly lays out the consequences for the behavior of individuals who violate it. Therefore, how could the General Assembly have intended that it not apply to such individuals? It is unclear whether this “argument” is related to Appellant’s feint at a pretrial challenge to jurisdiction.

The majority of Appellant’s interactions with the courts have proceeded similarly, with Appellant advancing legal theories that make it clear Appellant has no intention of taking his own time in court (or the court’s time) seriously at any point. However, there are some claims that this Court must submit to serious analysis in its resolution of this case. Appellant claims that he actually did file a timely notice of appeal from his judgment of sentence, which was not docketed by the trial court. He describes his “Breve Quorum Praetextu” as “for all intent[s] and purposes a ‘NOTICE to appeal,’ that had also incorporated a written request for ‘the entire trial transcript’ and claims raised for direct appeal.”9 Appellant’s Brief at 13. He claims this “filing” was dated March 9, 2016. Id.

Appellant was explicitly warned during his colloquy that if he wanted to represent himself, he would be held to the same standard as an attorney, and would have to comply with the same rules that an attorney would. N.T. Trial at 17. A review of his “Breve Quorum Praetextu” reveals that it bears absolutely no resemblance to Pa.R.A.P. 904, governing the form and content of a notice of appeal.10 It lists its contents as a “nonjuridical assertion,” a contents page, a “breve libertatis,” a statement, and an introductory “Breve Ad Gravamen to Breve Videlicet, which all comprise (1) One Breve Quorum Praetextu . . .” but no notice of appeal. See Appellant’s Brief, Exh. 5 at 1. If we thought it even remotely possible that Appellant was participating in good faith but simply filed a deficient notice of appeal, this would be a very different matter. Instead, Appellant prioritized his preening routine of foolish, bad-faith interactions with the courts, and quite intentionally flouted the appellate process he now claims he intended to invoke.

Further, the trial court entered an “Order Regarding Request for Trial Transcripts” that notified Appellant of the plain fact that this filing he now claims was a notice of appeal “does not even approximate the form and content required of a proper notice of appeal.” See Order, 5/12/16. It also notes the tardiness of Appellant’s filing for purposes of appeal, and that as a result “[t]his court . . . has no jurisdiction to act in this matter.” Id. Upon receipt of this order, Appellant failed to take action to correct his error. His PCRA petition was not filed until 2020.

Appellant argues that the trial court denied him his right to counsel at trial, and that if it had not done so, “he would have been able to assert his rights without denial or delay.” Appellant’s Brief at 15. On January 14, 2016, while the trial court was trying to take Appellant through the appropriate colloquies, he asserted that he is a “nonjuridical person” and that “[t]here is no attorney that can represent me.” N.T. Trial at 14, 22.11 Thus, his assertion that the trial court denied him his right to counsel, see Appellant’s Brief at 15, plainly reveals itself as an easily-punctured falsehood. We can find no fault with the PCRA court’s conclusion that this cannot support a finding of “government interference.” See PCRA Ct. Op. at 6. Appellant also asserts that he received a “Supplemental Affidavit” of probable cause, and accuses the Commonwealth of withholding it from his discovery. Appellant’s Brief at 22. Review of the trial transcript reveals that any possible challenge based on discovery deficiencies is waived, as Appellant, explicitly and on the record, refused his discovery.12

Appellant also asserts his sentence is illegal and that this issue is not subject to waiver. Appellant’s Brief at 23, 29.13 He then reiterates his argument that he is “specifically exclude[d]” from the Controlled Substance, Drug, Device, and Cosmetic Act. Appellant’s Brief at 29. He also claims that he has “searched the various statutes” and can find none that would authorize his sentence. Id. at 30. Whether Appellant is arguing that it is perfectly legal for anyone to sell heroin in Pennsylvania or whether there is some special quality only he holds that makes it legal for him to sell heroin here, this argument cannot support relief.14

Appellant also asserts that every ill that has befallen him in this litigation is due to “the sum of judicial bias, a bias that also permeated his appeals.” Appellant’s Brief at 23. Our review of the record, by contrast, reveals that the judges who have dealt with Appellant have demonstrated the patience of Job. His assertions to the contrary are frivolous and made in bad faith. His criticisms of his colloquies, which he repeatedly and insistently interrupted with arguments he knew to be nonsensical, are likewise made in bad faith and cannot support relief. See Appellant’s Brief at 25-27.

Finally, Appellant has filed an “Application to Expedite” consideration of this matter; this Court received said filing on August 2, 2021. It lists no legitimate reason why Appellant is entitled to such preference. Appellant has not participated in good faith in this litigation. We conclude that he is not entitled to this Court’s, nor any court’s, endless patience and good faith, when he makes repeated bad-faith engagement.

Order affirmed. Appellant’s “Application to Expedite” denied. ____________________________________________ It is a frivolous claim, especially given his refusal of discovery and his insistence on behaving as he did at trial. Further, he has not established that it is preserved, and since he chose to represent himself, it cannot possibly be raised as an ineffectiveness claim. Commonwealth v. Fletcher, 986 A.2d 759, 778 (Pa. 2009) (in self-representing, a defendant “relinquishes many of the benefits associated with the right to counsel, including the future right to allege ineffectiveness of counsel”).

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary Date: 08/30/2021