Com. v. Hollenshead, A. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY LYN HOLLENSHEAD :
:
Appellant : No. 1407 MDA 2020
Appeal from the PCRA Order Entered November 6, 2020
In the Court of Common Pleas of Fulton County Criminal Division at
No(s): CP-29-CR-0000107-2015
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: FEBRUARY 11, 2022
Appellant, Anthony Lyn Hollenshead, appeals pro se from the order
dismissing his first petition filed under the Post Conviction Relief Act
(“PCRA”).1 We affirm.
This Court previously summarized the factual background of this matter
as follows:
[D]uring the early morning hours of May 5, 2015, [Appellant] shot
and killed both his wife, Laura Hollenshead, and his stepdaughter,
Jaedi Weed, with a 20-gauge shotgun. Although [Appellant’s]
other daughter and stepdaughters described him as an abusive
and controlling husband and father, he claimed he was the victim
of physical abuse by his wife. Moreover, while admitting he fired
the shotgun that killed Laura and Jaedi, [Appellant] testified that
both victims attacked him first, striking him with a wooden board,
a wrench, and a flashlight. He claimed he shot Laura first
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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accidentally, while struggling over the shotgun, and then again as
she approached him with a wrench in her hand. [Appellant]
testified he then shot Jaedi because she was pointing a rifle at him
and screaming that she was going to kill him.
Commonwealth v. Hollenshead, No. 697 MDA 2018, 2019 WL 1873576, at
*1 (Pa. Super. filed April 26, 2019) (unpublished memorandum) (record
citations omitted).
On January 29, 2018, a jury convicted Appellant of two counts of first-
degree murder.2 On April 3, 2018, the trial court sentenced Appellant to two
consecutive terms of life imprisonment. Appellant thereafter filed an appeal
in which he challenged the sufficiency of the evidence supporting his
convictions. On April 26, 2019, this Court affirmed Appellant’s judgment of
sentence. Id. at *3. Appellant did not file a petition for allowance of appeal
with our Supreme Court.
On April 15, 2020, Appellant filed the instant, timely pro se PCRA
petition.3 The PCRA court appointed counsel to assist Appellant and directed
counsel to file an amended petition or notify the court that no amendment
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2 18 Pa.C.S. § 2502(a).
3 Appellant’s judgment of sentence became final on May 28, 2019, at the
expiration of the time period in which Appellant could have sought allowance
of appeal at the Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 1113; see also 1 Pa.C.S. § 1908 (when the last day for a statutory
filing deadline falls on a weekend or holiday, the deadline shall be extended
until the next business day); Pa.R.A.P. 107 (incorporating 1 Pa.C.S. § 1908
with respect to deadlines set forth in the Rules of Appellate Procedure). As
Appellant’s petition was filed within one year of the date the judgment became
final, the petition was timely. See 42 Pa.C.S. § 9545(b)(1) (“Any [PCRA]
petition [], including a second or subsequent petition, shall be filed within one
year of the date the judgment becomes final. . .”).
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was warranted. On July 23, 2020, PCRA counsel sought leave of the court to
withdraw from representing Appellant and submitted 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 October 9, 2020, the PCRA court entered an order notifying Appellant
pursuant to Rule of Criminal Procedure 907 that the court intended to grant
PCRA counsel’s request to withdraw and dismiss Appellant’s PCRA petition
without conducting a hearing. The order stated that Appellant could file a
response to the Rule 907 notice, either pro se or via privately retained counsel,
within 20 days of the date of the entry of the order. On October 29, 2020,
Appellant filed a pro se notice of appeal from the October 9, 2020 order. On
November 6, 2020, the PCRA court entered an order denying Appellant PCRA
relief and granting PCRA counsel leave to withdraw. On that same date, the
PCRA court entered an order directing Appellant to file a concise statement of
errors complained of on appeal pursuant to Rule of Appellate Procedure
1925(b).
Initially, we note that Appellant’s notice of appeal was premature as the
PCRA court had not yet ruled on his petition at the time his notice was filed.
However, we need not quash Appellant’s appeal as the PCRA court
subsequently entered a final order denying PCRA relief on November 6, 2020.
See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of
a determination but before the entry of an appealable order shall be treated
as filed after such entry and on the day thereof.”); Commonwealth v.
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Swartzfager, 59 A.3d 616, 618 n.3 (Pa. Super. 2012) (declining to quash
and considering merits of premature appeal from Rule 907 notice where PCRA
court subsequently entered order denying PCRA relief). Moreover, in spite of
the fact that PCRA counsel had not been granted leave to withdraw at the time
Appellant filed his pro se notice of appeal, his appeal is not barred by the rule
prohibiting hybrid representation. See Commonwealth v. Cooper, 27 A.3d
994, 1007-08 (Pa. 2011) (premature, pro se notice of appeal by represented
defendant should not be treated as a nullity as a result of the prohibition on
hybrid representation but rather as perfected at the time the final order was
entered); Commonwealth v. Williams, 151 A.3d 621, 623-24 (Pa. Super.
2016) (pro se notice of appeal is treated differently than other filings that
implicate hybrid representation rule and must be docketed in spite of the rule).
Prior to reaching the merits of this appeal, we must first address whether
Appellant waived his appellate issues by failing to file a Rule 1925(b)
statement. The PCRA court entered an order on November 6, 2020 providing
that Appellant was required to file and serve his concise statement within 21
days or else his appellate issues would be waived. The docket sheet as well
as the order itself reflect that the order was sent to Appellant by certified mail
on November 6th.4 Appellant’s Rule 1925(b) statement was thus due on
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4While Appellant did not address in his brief the PCRA court’s ruling that he
waived all of the issues in his appeal, he did attach a copy of the PCRA court’s
Rule 1925(b) order as an exhibit to his brief, indicating his receipt of the order.
Appellant’s Brief, Exhibit E.
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November 30, 2020, the first business day after the expiration of the 21-day
period. See 1 Pa.C.S. § 1908; Pa.R.A.P. 107. However, on December 7,
2020, the President Judge of the 39th Judicial District, which encompasses
Fulton County, issued an emergency judicial order in response to the Covid-
19 pandemic suspending the time calculation for all documents required to be
filed in the judicial district from November 19, 2020 through January 31, 2021.
See In re 39th Judicial District, No. 57 MM 2020, Emergency Judicial Order,
12/7/20. Appellant did not file a Rule 1925(b) statement by January 31, 2021
or at any point prior to the date that the record was certified to this Court. On
February 9, 2021, the PCRA court issued its Rule 1925(a) opinion, in which
the court noted that it had not received Appellant’s concise statement and
therefore Appellant’s appellate issues were deemed to be waived. PCRA Court
Opinion, 2/9/21, at 3.
A Rule 1925(b) statement “is a crucial component of the appellate
process because it allows the trial court to identify and focus on those issues
the parties plan to raise on appeal.” Commonwealth v. Bonnett, 239 A.3d
1096, 1106 (Pa. Super. 2020). Therefore, “any issue not raised in a Rule
1925(b) statement will be deemed waived for appellate review.” Id.; see
also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph (b)(4) are
waived.”); Commonwealth v. Parrish, 224 A.3d 682, 700 (Pa. 2020) (“[A]
litigant appealing from the denial of PCRA relief is required to strictly comply
with the provisions of Rule 1925(b), or his or her appellate issues are deemed
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to be waived.”). Waiver of all claims not included in a Rule 1925(b) statement
is required even where the lower court issued an opinion that discusses the
issues that the appellant seeks to raise on appeal; “the mere fact that a court
has authored an opinion addressing potential appellate issues does not excuse
an appellant from complying with Pa.R.A.P. 1925(b).” Parrish, 224 A.3d at
700; see also Commonwealth v. Castillo, 888 A.2d 775, 779-80 (Pa.
2005).
In this matter, the PCRA court issued an order in compliance with Rule
1925(b) as it indicated that Appellant was required to file his statement of
record within 21 days and he would waive any claim not included in the
statement. See Pa.R.A.P. 1925(b)(3)(i), (ii), (iv); Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998) (providing that the appellant must file a concise
statement pursuant to Rule 1925(b) whenever ordered to do so by the trial
court). The Rule 1925(b) order was served on Appellant by certified mail at
his state correctional institution. However, Appellant failed to comply with
this order by filing a Rule 1925(b) statement on or before January 31, 2021,
the extended deadline provided as a result of the Covid-19 judicial emergency.
While the PCRA court issued an opinion attempting to address the various
issues raised in Appellant’s PCRA petition, this does not affect our waiver
analysis. Parrish, 224 A.3d at 700; Castillo, 888 A.2d at 779-80. We further
note that, although we are required to remand in cases where appellate
counsel in a criminal case waives all appellate issues by failing to file a Rule
1925(b) statement, this rule of per se ineffectiveness only applies to
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represented parties and not to pro se criminal litigants such as Appellant. See
Pa.R.A.P. 1925(c)(3), Note; see also Commonwealth v. Blakeney, 108
A.3d 739, 766 (Pa. 2014) (“Although the courts may liberally construe
materials filed by a pro se litigant, pro se status confers no special benefit
upon a litigant, and a court cannot be expected to become a litigant’s
counsel[.]”).
Accordingly, we conclude that Appellant has waived all of the issues
asserted in this appeal based upon his failure to file a Rule 1925(b) statement.
See Bonnett, 239 A.3d at 1106. We therefore affirm the PCRA court’s
dismissal of Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2022
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