Com v. Henry, C. ( 2018 )

J-S46024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAROL H. HENRY :
:
Appellant : No. 2193 EDA 2017
Appeal from the PCRA Order June 29, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002114-2013
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 06, 2018
Appellant, Carol H. Henry, appeals pro se from the order denying her
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The PCRA court summarized the facts of the crime and procedural
history as follows:
Appellant, Carol Henry, was arrested at or near 7:30 p.m.
the evening of Halloween, October 31, 2012, in the aftermath of
a fatal multi-vehicle crash along 7th Street just west of Sproul
Street before the intersection with Barclay Street, a residential
street in Chester, Delaware County, Pennsylvania.
The Appellant had been consuming alcohol at Diane’s bar in
Chester just before her ride home on the evening of October 31,
2012 along 7th Street through the intersection with Barclay Street
towards Sproul Street. The Appellant[] first side swiped a vehicle
at a red light. The Appellant continued to drive along 7 th Street
into the oncoming lanes and caus[e] a second collision. The
Appellant then brought her vehicle to a stop but instead of
exchanging information as required by law accelerated at a high
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rate of speed in an attempt to flee. In her flight she reached
speeds in excess of 70 miles an hour.1 As Appellant fled along 7th
toward Sproul she crossed into the opposing lane of travel and
crashed head-on with a mini-van operated by Arnette Rice who
later died from her crash-related injuries. This impact was so
violent and forceful the mini-van was turned sideways and driven
into and through the vehicle that was directly behind it on 7th.
(N.T. 3/18/14, pp. 38-86).
1The posted speed limit along 7th Street is 25 miles
per hour. There was testimony that a church
Halloween celebration had been dispersing with
parents and children crossing 7th street to their parked
cars dispersing from the event at the time of these
collisions.
On March 26, 2013, Appellant, Carol Henry, waived her
Preliminary Hearing on over forty (40) criminal charges variously
including Murder of the Third Degree, Homicide by Vehicle while
Driving under the Influence, Aggravated Assault and Homicide by
Vehicle, Driving Under the Influence and Recklessly Endangering
Another Person.
After a three (3) day Bench Trial2 which was conducted
between March 18, 2014 and March 20, 2014, the Appellant was
convicted of Murder of the Third Degree, 18 [Pa.C.S.] § 2502[(c)],
Homicide by Vehicle While Driving under the Influence, 75
[Pa.C.S.] § 3735[(A)], Aggravated Assault by Vehicle While
Driving under the Influence, 75 [Pa.C.S.] § 3735.1[(a)], Homicide
by Vehicle, 75 [Pa.C.S.] § 3732[(a)] and Accidents involving
Death or Personal Injury, 75 [Pa.C.S.] § 3742[(a)], DUI Highest
Rate, 75 [Pa.C.S.] § 3802[(c)] and DUI Gen. Impairment 75
§ 3[802(a)].
2 Appellant knowingly, voluntarily and intelligently
waived [her] right to a Jury Trial on March 18, 2014
and elected to proceed with a Bench Trial. (N.T.
3/18/14, pp. 4-8).
On May 30, 2014 the Appellant, Carol Henry, was sentenced
as follows: Murder in the 3rd Degree, 108 months to 216 months
incarceration SCI; Homicide by Vehicle DUI related, 36 months to
72 months incarceration concurrent confinement to count 1;
Homicide by Vehicle, 12 months [to] 24 months concurrent to
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prior counts; Accidents involving Death or Serious Personal Injury,
60 months’ probation concurrent supervision to prior counts.
Appellant filed no direct appeal; however, on September 4,
2014 the Appellant filed a pro se Post-Conviction Collateral Relief
Petition. The Appellant’s court-appointed counsel filed a
Turner/Finley[1] “no merit” letter on December 21, 2015.
On May [2]4, 2017 the Trial Court filed its Notice of Intent
to Dismiss the Appellant’s PCRA Petition. On June 16, 2017 the
Appellant filed a Notice of Appeal[2] to the dismissal of her PCRA
petition[3] and on July 5, 2017 the Appellant was ordered to file a
Concise Statement of Matters Complained of on Appeal from the
denial of her PCRA petition.
The record and review of the dockets demonstrate the
Appellant did not comply with that July 5, 2017 Order and has not
filed any Concise Statement of Matters Complained of on Appeal
in accordance with Pa.R.A.P. 1925 (b).
PCRA Court Opinion, 4/9/18, at 1–3 (unnecessary emphases omitted).
Appellant raises the following issues on appeal:
1) WHY WASN’T THE 203 BLOOD ALCOHOL ARGUED?
2) HOW DO WE KNOW THIS IS THE CORRECT ALC. LEVEL?
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 As noted, Appellant filed her notice of appeal on June 16, 2017, which was
subsequent to the PCRA court’s May 24, 2017 notice of intention to dismiss
the petition pursuant to Pa.R.Crim.P. 907(1). The PCRA petition was
dismissed on June 29, 2017. Pursuant to Pa.R.A.P. 905(a), “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.” Pa.R.A.P. 905(a)(5). Thus, our appellate rules direct that we may
treat the notice of appeal in the instant case as having been filed on June 29,
2017.
3 The June 29, 2017 order dismissing the PCRA petition also granted PCRA
counsel’s request to withdraw.
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3) WHY WAS THE KIT LEFT IN THE ER, ON 10-31-2012?
4) WHY WAS THERE UNVAILABLE NURSES ON 10-31-2012?
5) WHY WAS THERE SHORT OF STAFF'S ON 10-31-2012?
6) WHY WERE THERE MULTIPLE SOURCES HAVING CUSTODY
ON THE EVIDENCE?
7) WHY WAS THE EVIDENCE DESTROYED TEN DAYS LATER
AFTER THE BLOOD WAS TESTED?
WAS ANY OF THESE ISSUES INVESTIGATED BY THE LOWER
COURT, OR CHALLENGED?
Appellant’s Brief, Statement of Questions Involved, unnumbered (verbatim).
When reviewing the propriety of an order denying PCRA relief, we
consider the record in the light most favorable to the prevailing party at the
PCRA level. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015);
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc).
This Court is limited to determining whether the evidence of record supports
the conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in the
certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super.
2014).
Initially, we address Appellant’s failure to file the court-ordered
Pa.R.A.P. 1925(b) statement. Rule 1925(b)(4)(vii) directs that “[i]ssues not
included in the Statement and/or not raised in accordance with the provisions
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of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(vii). In
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), our Supreme Court
established the bright-line rule that “in order to preserve their claims for
appellate review, [a]ppellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal pursuant to Rule
1925. Any issues not raised in a 1925(b) statement will be deemed waived.”
Id. at 309; see also Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)
(Pa.R.A.P. 1925 “obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered.”). Furthermore, “the courts lack the authority
to countenance deviations from the Rule’s terms; [and] the Rule’s provisions
are not subject to ad hoc exceptions or selective enforcement[.]” Hill, 16
A.3d at 494.
On July 5, 2017, the PCRA court entered the following order, in pertinent
part:
1. Pursuant to Pennsylvania Rules of Appellate Procedure, Rule
1925(b), the Appellant shall provide to this [c]ourt [a] Concise
Statement of Errors Complained of on . . . Appeal no later than
twenty-one (21) days after the date of this Order. This Statement
must be served upon the court pursuant to 1925(b)(1) and must
also be filed of record.
2. The Statement shall concisely identify each ruling or error that
the Appellant intends to challenge with sufficient details to identify
all pertinent issues for judicial review. . . .
3. Any issue not properly included in the Statement timely filed
and served in compliance with this Order and Pa.R.A.P. 1925(b)
shall be deemed waived.
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4. Within five (5) days of this Order, the Appellant shall provide
to this [c]ourt a proposed Order requesting any additional
transcripts of any pertinent hearings held in this matter.
Order, 7/5/17. The order was sent to Appellant via first class mail at SCI
Cambridge Springs, and it is properly noted on the docket. By letter dated
July 10, 2017, and docketed on July 17, 2017, Appellant responded,
requesting transcripts and offering a proposed order in compliance with the
July 5, 2017 order. She never filed a Pa.R.A.P. 1925(b) statement. The PCRA
court found that Appellant waived all issues by her failure to comply with its
July 5, 2017 order. PCRA Court Opinion, 4/9/18, at 4. We similarly conclude
that Appellant waived all issues raised in this appeal by her failure to file the
court-ordered Pa.R.A.P. 1925(b) statement. Lord, 719 A.2d at 309.
Moreover, we note that Pa.R.A.P. 1925(c)(3) is not applicable in this
matter. Subsection (c)(3) directs us to remand for the filing of a statement
nunc pro tunc if we are convinced that counsel has been per se ineffective.
See Commonwealth v. Scott, 952 A.2d 1190 (Pa. Super. 2008) (holding
that counsel’s failure to file Rule 1925(b) statement constitutes per se
ineffectiveness requiring a remand). However, because she is pro se,
Appellant cannot assert her own ineffectiveness. Accord Commonwealth v.
Fletcher, 986 A.2d 759, 773 (Pa. 2009) (“The law prohibits a defendant who
chooses to represent himself from alleging his own ineffectiveness”);
Commonwealth v. Bryant, 855 A.2d 726, 737 (Pa. 2004) (pro se defendant
“may not rely upon his own lack of expertise as a ground for relief.”).
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Accordingly, as the PCRA court concluded, Appellant’s failure to file a Rule
1925(b) statement waives all claims. See Pa.R.A.P. 1925(b)(4)(vii) (Issues
not included in the Rule 1925(b) statement or not raised in accordance with
the provisions of this paragraph (b)(4) are waived). Cf. Commonwealth v.
Oliver, 128 A.3d 1275, 1279 (Pa. Super. 2015) (PCRA petitioner’s failure to
file Rule 1925(b) statement, where PCRA counsel was permitted to withdraw
in PCRA court, permitted Superior Court to find that the petitioner waived all
issues; however, due to irregularities in the substance and timing of the PCRA
court’s treatment of counsel’s Turner/Finley letter and lack of notice to the
petitioner, Superior Court declined to apply waiver “in the very limited and
narrow circumstances of [the] case.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/18
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