Com. v. Washington, A. ( 2017 )

J-S73012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALVIN WASHINGTON :
:
Appellant : No. 1066 MDA 2017
Appeal from the Order Entered June 6, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005006-2013
BEFORE: OLSON, DUBOW and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 21, 2017
Appellant, Alvin Washington, appeals pro se from the June 6, 2017 order
denying him permission to appeal nunc pro tunc. We affirm.
The factual background and procedural history of this case are as
follows. On September 28, 2013, Appellant struck Lisa Ganns (“Ganns”) with
a machete. Ganns suffered a significant knee injury because of this attack.
On January 20, 2015, Appellant pled guilty to one count of aggravated assault1
and was immediately sentenced to 9 to 20 years’ imprisonment. On direct
appeal, this Court affirmed the judgment of sentence. Commonwealth v.
Washington, 131 A.3d 107, 2015 WL 6087392 (Pa. Super. 2015)
(unpublished memorandum).
1 18 Pa.C.S.A. § 2702(a)(1).
* Retired Senior Judge assigned to the Superior Court
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On October 16, 2015, Appellant filed a pro se motion for return of
property. After counsel was appointed to represent Appellant in Post-
Conviction Relief Act proceedings, the trial court denied the motion. On June
2, 2016, after counsel withdrew, Appellant filed a second pro se motion for
return of property. On September 12, 2016, the trial court denied the motion.
On September 28, 2016, Appellant moved for reconsideration. The trial
court did not act on that motion. On November 7, 2016, Appellant appealed
from the September 12 order denying his motion for return of property. This
Court quashed the appeal as untimely without prejudice to Appellant’s right
to seek permission from the trial court to appeal nunc pro tunc.
Commonwealth v. Washington, 1837 MDA 2016 (Pa. Super. Dec. 20,
2016) (per curiam). On December 29, 2016, Appellant filed a petition seeking
to appeal from the September 12 order nunc pro tunc. On June 2, 2017,
Appellant filed an amended petition seeking permission to appeal nunc pro
tunc. On June 6, 2017, the trial court denied the petition. This timely appeal
followed.2
Appellant presents three issues for our review:
1. Did the trial court abuse its discretion by denying Appellant [the
ability to file a nunc pro tunc appeal]?
2 On July 7, 2017, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal (“concise statement”). See Pa.R.A.P.
1925(b). On July 17, 2017, Appellant filed his concise statement. On July 19,
2017, he filed a supplemental concise statement. On July 24, 2017, the trial
court issued its Rule 1925(a) opinion. All of Appellant’s issues were included
in his concise statement.
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2. Was the trial court’s denial of return of property an abuse of
discretion and/or contrary to law?
3. Was the forfeiture of Appellant’s vehicle by the Commonwealth
unconstitutional?
Appellant’s Brief at 4.
In his first issue, Appellant argues that the trial court erred in denying
his request to file a nunc pro tunc appeal. “The denial of an appeal nunc pro
tunc is within the discretion of the trial court, and we will only reverse for an
abuse of that discretion.” Vietri ex rel. Vietri v. Delaware Valley High
Sch., 63 A.3d 1281, 1284 (Pa. Super. 2013) (citation omitted). This Court
has explained that a
[t]rial [c]ourt may grant an appeal nunc pro tunc when a delay in
filing [an appeal] is caused by extraordinary circumstances
involving fraud or some breakdown in the court’s operation
through a default of its officers. Where an appeal is not timely
because of non-negligent circumstances . . . and the appeal is filed
within a short time after the appellant . . . learns of and has an
opportunity to address the untimeliness, and the time period
which elapses is of very short duration, and appellee is not
prejudiced by the delay, the court may allow an appeal nunc pro
tunc.
Fischer v. UPMC Nw., 34 A.3d 115, 122 (Pa. Super. 2011) (emphasis
removed; citation omitted).
Appellant argues that he was not negligent in filing an untimely notice
of appeal because he was in the restricted housing unit of his prison. He avers
that the prison denied him access to paper while he was in the restricted
housing unit and, therefore, he could not file a timely notice of appeal. This
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argument is waived. “Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). In his
amended petition, Appellant made a bald assertion that he was unable to file
a timely notice of appeal because of governmental interference. See
Amended Petition For Nunc Pro Tunc Appeal, 6/2/17, at 1. He failed to aver
that he was unable to file a timely notice of appeal because he was in the
restricted housing unit of his prison. Thus, Appellant waived his argument
that he was unable to file a timely notice of appeal because he was denied
paper while in the restricted housing unit of his prison. The trial court only
had a bald assertion of governmental interference when it ruled on Appellant’s
petition. Under these facts, we conclude that the trial court did not abuse its
discretion by denying Appellant’s petition to appeal nunc pro tunc.
In his second and third issues, Appellant challenges the merits of the
trial court’s denial of his petition for return of property. We lack jurisdiction
over these claims because Appellant did not file a timely notice of appeal and
we conclude that the trial court did not abuse its discretion in denying
Appellant’s request to appeal nunc pro tunc. Accordingly, we affirm the order
denying Appellant the right to file a nunc pro tunc appeal and do not reach
the merits of the underlying claims.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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