Com. v. Mayer, K. ( 2019 )

J-S04039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLE EDWARD MAYER :
:
Appellant : No. 1093 MDA 2018
Appeal from the PCRA Order Entered June 5, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005425-2015
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 05, 2019
Appellant, Kyle Edward Mayer, appeals pro se from the June 5, 2018,
order entered in the Court of Common Pleas of Dauphin County denying his
first petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9451-9546, without an evidentiary hearing. Finding Appellant’s claims to
be waived, we affirm.
On October 28, 2016, Appellant, who was represented by counsel,
entered a guilty plea to numerous crimes, including burglary and robbery. On
that same date, the trial court sentenced Appellant to an aggregate of five
years to ten years in prison to be followed by two and one-half years of
probation. Appellant filed neither post-sentence motions nor a direct appeal.
On November 2, 2017, Appellant filed a timely, pro se PCRA petition,
and new counsel was appointed to assist Appellant. On April 23, 2018, PCRA
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* Former Justice specially assigned to the Superior Court.
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counsel filed a petition seeking to withdraw, as well as a Turner/Finley1 “no-
merit” letter. On May 3, 2018, the PCRA court granted counsel’s petition to
withdraw and provided Appellant with notice of its intent to dismiss without
an evidentiary hearing. On June 5, 2018, the PCRA court denied Appellant
relief under the PCRA, and this timely, pro se appeal followed.
On July 12, 2018, the lower court entered an order pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Therein, the lower court
directed Appellant to file of record and serve upon the trial court, in person or
by mail, a concise statement of errors complained of on appeal within twenty-
one days of the order. The lower court specifically warned Appellant that he
risked waiver of all issues if he failed to comply with the order. Accordingly,
the lower court’s order fully complied with the mandates of Pa.R.A.P.
1925(b)(3).
Further, the record reveals that the Clerk of Courts mailed the lower
court’s Pa.R.A.P. 1925(b) order to Appellant on July 12, 2018, at the same
prison address Appellant provided in connection with this appeal. Thereafter,
Appellant failed to file a Pa.R.A.P. 1925(b) statement. On September 17,
2018, the lower court filed an opinion suggesting that Appellant waived all
appellate issues by failing to comply with the court’s July 12, 2018, Pa.R.A.P.
1925(b) order.
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1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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On appeal, Appellant sets forth the following issues in the “Statement
of Questions Involved” portion of his appellate brief (verbatim):
1. Ineffective Assistance of Counsel. Defendant forced into Plea.
2. Ineffective Assistance of Counsel, Failure to call witnesses to
cast doubt on Prosecution key witness.
3. Ineffective Assistance of Counsel, Failure to Suppress
Discovery evidence.
Appellant’s Brief at 4 (suggested answers and bold omitted).
Initially, we must determine whether Appellant has preserved his issues
for review. It is well-settled that a pro se litigant is granted the same rights,
privileges, and considerations as those accorded a party represented by
counsel; however, pro se status does not entitle a litigant to any particular
advantage due to the lack of legal training and the pro se litigant must comply
with the Pennsylvania Rules of Appellate Procedure. See Commonwealth v.
Adams, 882 A.2d 496, 497-98 (Pa.Super. 2005). “[I]n order to preserve []
claims for appellate review, [an] appellant must comply whenever the trial
court orders [the appellant] 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,
585 Pa. 395, 888 A.2d 775, 780 (2005) (quotation marks and quotation
omitted). See Pa.R.A.P. 1925(b)(4)(vii).
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Accordingly, in the case sub judice, since Appellant failed to file a
Pa.R.A.P. 1925(b) concise statement in response to the lower court’s order
requiring him to do so, Appellant has waived his issues on appeal.2
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/05/2019
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2 Additionally, we note Appellant’s brief is deficient and he has failed to
develop his appellate issues, thus preventing meaningful review. See
Pa.R.A.P. 2119.
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