Com. v. Mathis, T. ( 2021 )

J-S23038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS MATHIS :
:
Appellant : No. 105 EDA 2021
Appeal from the PCRA Order Entered November 23, 2020
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0000226-1971
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 08, 2021
Appellant, Thomas Mathis, appeals pro se from the order of the Court of
Common Pleas of Northampton County that dismissed his petition filed under
the Post Conviction Relief Act (PCRA).1 We affirm.
The facts underlying this case were fully set forth by our Supreme Court
in Commonwealth v. Mathis, 398 A.2d 968 (1979) and this Court in
Commonwealth v. Mathis, 902 A.2d 979 (Pa. Super. 2006) (unpublished
memorandum). Therefore, we have no reason to restate them in detail here.
We briefly note that
[o]n April 28, 1972, a jury convicted Appellant of murder,2
burglary,3 larceny,4 and robbery5 in connection with the
September 1971 fatal stabbing of Sebastiano Patiri in his home in
Northampton County. On May 3, 1972, Appellant received a
sentence of life imprisonment for the murder and concurrent
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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terms of imprisonment for the other offenses. The trial court
denied Appellant’s post-sentence motions, and on March 18,
1975, our Supreme Court affirmed the judgment of sentence.
Commonwealth v. Mathis, 333 A.2d 846 (Pa. 1975) (per
curiam).
______
2 18 Pa.C.S. § 2502(a).
3 18 Pa.C.S. § 3502(a).
4 18 Pa.C.S. § 3921. Larceny is now theft by unlawful taking
or disposition.
5 18 Pa.C.S. § 3701.
Mathis, 902 A.2d 979 (unpublished memorandum at 1-2).
On January 21, 2020, Appellant filed his thirteenth PCRA petition. The
PCRA court appointed counsel on February 7, 2020, and held an evidentiary
hearing on October 16, 2020. Appellant and his brother, Edward Mathis, who
had been a co-defendant in the underlying crimes, testified in support of
Appellant’s claims of newly-discovered evidence and governmental
interference. N.T., 10/16/2020, at 19-20, 45-46. On October 29, 2020,
Appellant’s counsel, Tyree Blair, filed a no-merit letter and petition to withdraw
as counsel. On November 4, 2020, the PCRA Court permitted Attorney Blair
to withdraw and appointed Attorney Brian Monahan. On November 23, 2020,
the PCRA court denied Appellant’s petition by order and opinion on the
grounds that it was untimely filed. PCRA Court Opinion, 11/23/2020, at 2-3.
Attorney Monahan filed a petition to withdraw as counsel, which the PCRA
court granted on November 24, 2020, in an order advising Appellant that he
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may proceed with any appeal pro se or may hire a private attorney. PCRA
Court Order, 11/24/2020, at 1.
On December 21, 2020, Appellant pro se filed a timely notice of appeal.
That same day, the PCRA court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January
25, 2021, Appellant filed a motion requesting an extension of time to file a
Rule 1925(b) statement. The PCRA court granted Appellant’s motion on
February 3, 2021, and allowed Appellant thirty additional days to file his
statement. Appellant never filed a Rule 1925(b) statement. On April 19, 2021,
the PCRA court issued its Rule 1925(a) opinion concluding that Appellant had
waived all issues on appeal for failure to preserve any issues in a court-ordered
Rule 1925(b) statement. PCRA Court Opinion, 4/19/2021, at 1.
Appellant presents the following issues for our review:
1. Whether the PCRA [c]ourt erred in denying [A]ppellant’s
claims of newly discovered evidence.
2. Whether the PCRA [c]ourt erred by not verifying [former PCRA
counsel] Mr. Blair’s statement in “no merit letter.”
3. Whether the PCRA [c]ourt erred in it finding no newly
discovered evidence.
4. Whether the PCRA [c]ourt erred by not addressing
[Appellant’s] governmental interference claim.
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Appellant’s Brief at 2 (unnumbered) (suggested answers omitted).
“We review the denial of PCRA relief to decide whether the PCRA court’s
factual determinations are supported by the record and are free of legal error.”
Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting
Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)). First, we must
determine whether Appellant has preserved his issues for our review. “When
a trial judge orders a timely statement to be filed an appellant must comply
or risk waiver. Waiver is required when an ordered statement is not filed[.]”
Commonwealth v. Smith, 854 A.2d 597, 599 (Pa. Super. 2004) (citation
omitted); see also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”); Commonwealth v. Lord, 719 A.2d 306, 309
(Pa. 1998) (“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”; “[a]ny issues not
raised in a 1925(b) statement will be deemed waived”). Moreover, we observe
that where an appellant proceeds pro se, we recognize no remedy or exception
to the failure to file timely a Rule 1925(b) statement. Commonwealth v.
Boniella, 158 A.3d 162, 164 (2017) (holding that Rule 1925(c), which allows
this Court to remand for the filing a Rule 1925(b) statement nunc pro tunc
where a counseled defendant fails to file an ordered Rule 1925(b) statement,
does not apply to pro se appellants).
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On December 21, 2021, the PCRA court complied with the requirements
of Rule 1925(b)(3) and ordered Appellant to file a Rule 1925(b) statement
within 21 days of the date of the order. In the order, the PCRA court notified
Appellant that “any issue not properly included in the Statement... shall be
deemed waived.” PCRA Court Order, 12/21/2020, at 1. Subsequently, in
response to Appellant’s motion for an extension of time, the PCRA court gave
Appellant until March 5, 2021, to file his Rule 1925(b) statement. Appellant
never filed a Rule 1925(b) statement, nor did he address this failure in any of
his subsequent filings or his brief.
Accordingly, we conclude that Appellant has waived all of his issues on
appeal for failure to comply with the trial court’s order to file a concise
statement of errors complained of on appeal pursuant to Rule 1925(b).
Because Appellant has failed to preserve any issues for our review, we affirm
the PCRA court’s order. In re K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007)
(where issues are waived on appeal, we should affirm rather than quash).
Order affirmed.
Judge Lazarus joins this Memorandum.
Judge Kunselman concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2021
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