Com. v. Guzman-Rodriguez, J. ( 2017 )

J-S46038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORGE VICTOR GUZMAN- :
RODRIGUEZ :
: No. 1969 MDA 2016
Appellant
Appeal from the PCRA Order November 23, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001476-2014,
CP-06-CR-0001491-2014
BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 14, 2017
Appellant Jorge Victor Guzman-Rodriguez appeals pro se from the
order of the Court of Common Pleas of Berks County denying Appellant’s
petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-
9546. As Appellant failed to file a statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), we
affirm.
On November 17, 2014, a jury convicted Appellant of Delivery of a
Controlled Substance and Possession of a Controlled Substance on two
separate dockets. On the same day, the trial court sentenced Appellant to
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S46038-17
three to six years’ imprisonment to be followed by three years’ probation.
Appellant’s timely post-sentence motion was denied. On September 8,
2015, this Court affirmed the judgment of sentence. On June 15, 2016, the
Supreme Court denied Appellant’s petition for allowance of appeal.
On July 14, 2016, Appellant filed a pro se PCRA petition. The PCRA
court appointed Appellant counsel, who subsequently sought to withdraw her
representation by filing 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). On September 27, 2017, the PCRA court granted
counsel’s petition to withdraw and issued notice of its intent to dismiss the
petition without a hearing. Although Appellant filed a response, the PCRA
court dismissed the petition on November 23, 2016. This timely appeal
followed.
On December 6, 2016, the trial court directed Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b) within twenty-one days of the trial court’s order, which also
indicated that “[a]ny issue not properly included in the timely filed and
served Statement shall be deemed waived.” Order, 12/6/16, at 1. On
January 3, 2017, the trial court filed a 1925(a) opinion, indicating that
Appellant failed to file a concise statement as directed. Appellant filed a
concise statement which was self-dated January 9, 2017.
On appeal, Appellant makes no attempt to explain why this Court
should overlook his failure to file a timely 1925(b) Statement. Instead, he
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raises a claim of prosecutorial misconduct and a challenge to the sufficiency
of the evidence.
However, Rule 1925 provides, in relevant part:
(b) Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial court. —
If the judge entering the order giving rise to the notice of appeal
(“judge”) desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (“Statement”).
***
(3) Contents of order.—The judge's order directing the filing and
service of a Statement shall specify:
***
(iv) that any issue not properly included in the Statement timely
filed and served pursuant to subdivision (b) shall be deemed
waived.
(4) Requirements; waiver.
***
(vii) Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are
waived.
Pa.R.A.P. 1925(b)(3)(iv), (4)(vii).
The Supreme Court of Pennsylvania has further clarified that, “in order
to preserve their claims for appellate review, appellants must comply
whenever the trial court orders them to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised
in a Pa.R.A.P. 1925(b) statement will be deemed waived.” Commonwealth
v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v.
Lord, 719 A.2d 306 (Pa. 1998)). Pro se appellants are not excused from
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compliance with this rule. See Commonwealth v. Freeland, 106 A.3d
768, 776 (Pa. Super. 2014) (“A pro se litigant must comply with the
procedural rules set forth in the Pennsylvania Rules of the Court [and] [t]his
Court may quash or dismiss an appeal if an appellant fails to conform with
the requirements set forth in the Pennsylvania Rules of Appellate
Procedure”).
Our review of the record confirms that Appellant failed to file a Rule
1925(b) Statement pursuant to the PCRA court's order, which informed
Appellant that his failure to file a timely statement would result in the waiver
of his claims. Accordingly, we agree with the PCRA court's conclusion that
Appellant's eligibility for appellate review has been waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2017
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