Com. v. Baez, M. ( 2019 )

J-S19038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MANUEL BAEZ, :
:
Appellant : No. 1032 EDA 2018
Appeal from the PCRA Order April 2, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003914-2016
BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 21, 2019
Manuel Baez (Appellant) appeals pro se from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm the order based upon Appellant’s failure to file timely
a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). We also deny Appellant’s April 19, 2019 motion in limine as moot.
Briefly, on December 16, 2016, Appellant pleaded guilty to third-degree
murder and robbery and was sentenced to an aggregate term of 30 to 60
years of imprisonment. He did not file a post-sentence motion or direct
appeal. Appellant filed pro se the instant PCRA petition, his first, on June 9,
2017.1 The PCRA court appointed counsel. Subsequently, counsel filed a
* Retired Senior Judge assigned to the Superior Court.
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petition to withdraw 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 1, 2018, the PCRA court notified Appellant of its intention to
dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant did not file a response, and on April 2, 2018, the PCRA court
dismissed Appellant’s petition and permitted counsel to withdraw.
Appellant timely filed a notice of appeal. Nevertheless, we are unable
to reach the merits of any issue presented by Appellant based upon Appellant’s
failure to file a concise statement of matters complained of on appeal pursuant
to Pa.R.A.P. 1925(b).
Rule 1925(b) permits a trial court to order an appellant to file with the
trial court and serve upon the trial judge a concise statement of errors
complained of on appeal. Pa.R.A.P. 1925(b). “Rule 1925 is a crucial
component of the appellate process.” Commonwealth v. Smith, 955 A.2d
391, 393 (Pa. Super. 2008). The purpose of the rule is “to aid trial judges in
identifying and focusing upon those issues which the parties plan to raise on
1Subsequently, Appellant attempted to amend his petition on July 28, 2017,
but never sought or obtained permission of the PCRA court to do so. See
Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012) (holding that
amendments to pending PCRA petitions are not self-authorizing and petitions
cannot be amended simply by filing a supplemental pleading; rather,
amendments are permitted only by the direction or leave of the PCRA court).
He also filed another petition on July 30, 2017, while the instant appeal was
pending.
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appeal.” Id. Thus, when a trial court orders an appellant to file a concise
statement, the appellant must comply. Commonwealth v. Castillo, 888
A.2d 775, 780 (Pa. 2005) (citing Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998)). Any issue not raised in a Rule 1925(b) statement is waived.
“It is well settled that an appellant’s failure to comply with a trial court’s Rule
1925(b) [o]rder results in a waiver of all issues on appeal.” Commonwealth
v. Chester, 163 A.3d 470, 472 (Pa. Super. 2017) (citing Castillo, 888 A.2d
at 780; Pa.R.A.P. 1925(b)(4)(vii)).
In the instant case, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 30 days of the entry of the order. Rule 1925(b) Order, 4/9/2018, at 1.
Thus, Appellant’s concise statement was due on or before May 9, 2018. The
PCRA court warned Appellant that “[f]ailure to comply with this directive may
be construed as a waiver of all objections to the order, ruling, or other matter
complained of.”2 Id.
2 This language placed Appellant on notice that failure to comply could result
in waiver. Commonwealth v. Medina, __ A.3d __, 2019 WL 1648115, at 3
(Pa. Super. 2019) (holding that substantially similar language sufficiently
complied with Pa.R.A.P.1925(b)(3)(iv), which requires notice to appellants
that failure to comply risks waiver). Further, the record indicates that the
PCRA court served this order upon Appellant on April 9, 2018, and provided
Appellant with a period to respond that exceeded 21 days. Rule 1925(b)
Order, 4/9/2018, at 1-2; see Chester, 163 A.3d at 472 (noting that the
docket must indicate the date of service to an appellant; further noting that
Rule 1925(b) requires at least 21 days for the appellant to respond).
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Appellant did not comply, and on August 21, 2018, the PCRA court filed
an opinion pursuant to Rule 1925(a) positing that Appellant had waived all
issues for appellate review. PCRA Court Opinion, 8/21/2018, at 2. The court
“decline[d] to guess which issue Appellant may want to pursue on appeal” and
reiterated that issues presented to it in the PCRA petition were meritless. Id.
On April 15, 2019 – over a year after he was ordered to file a concise
statement, seven months after the PCRA court filed its Rule 1925(a) opinion,
and five months after Appellant filed his brief – Appellant attempted to file a
concise statement with this Court.3 This effort comes too little, too late.
Appellant’s “pro se status does not relieve him of his duty to follow the Rules
of Appellate Procedure.”4 Commonwealth v. Vurimindi, 200 A.3d 1031,
1037-38 (Pa. Super. 2018). While “Pennsylvania courts endeavor to be fair
to pro se litigants in light of the challenges they face conforming to practices
with which attorneys are far more familiar,” we cannot overlook failure to
comply substantially with our rules of procedure. Commonwealth v. Spuck,
86 A.3d 870, 874 (Pa. Super. 2014). Appellant’s belated attempt at
3 Specifically, Appellant submitted a handwritten document entitled “Motion in
Limine,” followed by another handwritten document entitled “‘Concise
Statement of Matters’ Complained of on Appeal.”
4 We observe that Appellant had requested multiple times for this Court to
appoint him counsel on appeal. However, each time we properly denied his
request. Although this is an appeal from the denial of Appellant’s first PCRA
petition, a first-time petitioner’s right to appointed counsel ceases upon
counsel’s withdrawal pursuant to the Turner/Finley procedure.
Commonwealth v. Williams, 204 A.3d 489, 493 (Pa. Super. 2019).
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compliance is the functional equivalent of no compliance at all, as it provided
the PCRA court with no opportunity to prepare an opinion addressing the
issues being raised on appeal. See Commonwealth v. Smith, 955 A.2d 391,
393 (Pa. Super. 2008) (“When the trial court has to guess what issues an
appellant is appealing, that is not enough for meaningful review.”). Thus,
Appellant has waived all issues for appeal based upon his failure to comply
with the trial court’s directive in the April 9, 2018 order.5
Since Appellant failed to preserve any issue for appellate review, we
affirm the PCRA Court’s order.6
Order affirmed. Motion in limine denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2019
5 We also note that Appellant makes no attempt to organize his brief in the
manner required by our rules. Compare generally Appellant’s Brief with
Pa.R.A.P. 2111, 2114-2119. Even if we could excuse Appellant’s failure to
comply with Rule 1925(b), we would dismiss his appeal based upon substantial
defects in his brief that deprive us of meaningful appellate review. See
Pa.R.A.P. 2101 (requiring briefs to conform materially to the Rules of Appellate
Procedure; substantial defects in a brief subject the appeal to dismissal).
6Given our disposition, we deny Appellant’s April 15, 2019 motion in limine as
moot.
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