Com. v. Fretti, J. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JASON M. FRETTI, : No. 2587 EDA 2015
:
Appellant :
Appeal from the PCRA Order, August 4, 2015,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0004001-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 03, 2016
Jason M. Fretti appeals, pro se, from the order entered in the Court of
Common Pleas of Lehigh County that dismissed, without a hearing, his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The record reflects that a jury convicted appellant of rape of a child,
sexual assault, aggravated indecent assault of a child, corrupting the morals
of a minor, and indecent assault.1 Following his convictions, the trial court
sentenced appellant to 18 to 36 years’ incarceration.
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3121(c), 3124.1, 3125(b), 6301(a)(1), and 3126(a)(7),
respectively.
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Appellant then filed timely post-sentence motions, which the trial court
denied. On direct appeal, this court affirmed appellant’s judgment of
sentence.2 Thereafter, our supreme court denied appellant’s petition for
allowance of appeal.3
The PCRA court set forth the remaining, relevant procedural history, as
follows:
On January 14, 2015, the appellant filed a
pro se [PCRA petition,] and on January 15, 2015,
Matthew Rapa, Esquire, was appointed to represent
the appellant. Subsequently, on May 14, 2015,
counsel for the appellant filed a “Motion to Withdraw
As Counsel” and [a Turner/Finley4] letter indicating
that the issues raised in [appellant’s PCRA petition]
are without merit. On May 20, 2015, notice was
provided to the appellant pursuant to Pa.R.Crim.P.
907(1) that his petition was subject to dismissal and
permitting him twenty (20) days to submit a
response. Thereafter, on June 10, 2015, the
appellant filed a “Pettion [sic] Objection to Intention
to dismiss [PCRA.]” On August 4, 2015, the
appellant’s PCRA petition was dismissed.
A Notice of Appeal was filed on August 26,
2015. Thereafter, this Court directed the appellant
to comply with Pa.R.A.P. 1925(b), and on
September 14, 2015, this Court received appellant’s
[Rule 1925(b) statement].
PCRA court opinion, 10/26/15 at 2 (footnotes omitted).
2
Commonwealth v. J.F., 87 A.3d 394 (Pa.Super. 2013) (unpublished
memorandum).
3
Commonwealth v. J.F., 85 A.3d 482 (Pa. 2014).
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Appellant requests that we review the following issues:
I. DID THE LOWER TRIAL COURT ERR WHEN IT
DISMISSED PETITIONERS [SIC] CLAIM
WITHOUT AN EVIDENTIARY HEARING TO
DETERMINE MERIT[?]
II. DID COUNSEL APPOINTED TO PETITIONER
FAIL TO PROPERLY “PLEAD AND PROVE”
ISSUES AND AMMEND [SIC] ANY PRO SE
PETITIONS[,] INADEQUEICES [SIC] OR
DEFECIENCES [SIC][?]
III. DID THE LOWER TRIAL COURT ERR WHEN IT
ACCEPTED A BOILER PLATE “FINLEY LETTER”
AS A BASIS TO DISMISS APPELANTS [SIC]
PETITION[?]
Appellant’s brief at 2.
The failure to raise an issue in an ordered Rule 1925(b) statement
results in waiver of that issue on appeal. Commonwealth v. Dowling, 883
A.2d 570, 578 (Pa. 2005), citing Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998). Here, appellant raised the following issues in his
Pa.R.A.P. 1925(b) statement:
1. DID THE [PCRA] COUNSEL IMPROPERLY FILE A
DEFICENT [SIC] “[FINLEY] LETTER” AFTER
FAILING TO CONFER WITH THE [PCRA
PETITIONER] FOR THE PURPOSES OF
INVESTIGATION AND AMMENMENT [SIC] OF
HIS VIABLE AND SUBSTANATIVE [SIC]
COLLATERAL APPEAL?
2. DID THE [PCRA] COURT ERR WHEN IT
ACCEPTED A DEFECIENT [SIC] “[FINLEY]
LETTER” AND DISMISSED [PETITIONER’S]
[PCRA] PETITION OUT OF HAND?
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Docket #80.
Clearly, the first issue presented in appellant’s brief on appeal was not
included in the court-ordered Pa.R.A.P. 1925(b) statement filed on
September 14, 2015, and is, therefore, not properly before us for review.
We also note that in the argument section of appellant’s brief, appellant
raises issues that he failed to include in his Rule 1925(b) statement. These
claims are also not properly before us.
With respect to appellant’s remaining issues as set forth in the
“statement of questions involved” section of his brief, appellant waives these
claims because he fails to cite to any authority that supports his position and
he fails to fully develop any meaningful argument concerning those claims.
See Commonwealth v. Rompilla, 983 A.2d 1207, 1210 (Pa. 2009);
Commonwealth v. Brougher, 978 A.2d 373 (Pa.Super. 2009) (claim is
waived if there is no citation to authority); Commonwealth v. Spotz, 716
A.2d 580, 585 n.5 (Pa. 1998) (petitioner waives undeveloped and/or unclear
claims).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2016
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