Com. v. Pinkney, M.

J-S14012-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL PINKNEY, :
:
Appellant : No. 389 EDA 2014
Appeal from the PCRA Order December 26, 2013,
Court of Common Pleas, Delaware County,
Criminal Division at No. CP-23-CR-0001251-2011
BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MARCH 24, 2015
Michael Pinkney (“Pinkney”) appeals pro se from the order entered on
December 26, 2013 by the Court of Common Pleas of Delaware County,
Criminal Division, denying his petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
On February 4, 2011, [Pinkney] was arrested and
charged with First, Second and Third-Degree Murder,
Robbery and various other related charges.
On July 31, 2012, defendant entered into a
negotiated plea to the charges of Murder in the Third
Degree and Criminal Conspiracy to Commit Robbery.
Immediately thereafter, the [c]ourt sentenced
[Pinkney], consistent with the terms of the
negotiated plea, to a sentence of [twelve to twenty-
four] years [of] incarceration on the Murder charge
and [ten] years [of] probation on the Conspiracy
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charge. The Conspiracy sentence was concurrent to
the Murder sentence. [Pinkney] did not file a post-
sentence motion or an appeal to the Superior Court.
On July 10, 2013, [Pinkney] filed a pro se PCRA
petition in which he alleged that his court-appointed
counsel was ineffective in that he failed to direct the
court’s attention to inconsistent statements made by
witnesses. Counsel also failed to move to suppress
identification evidence.
This [c]ourt appointed Scott Galloway, Esq. to
represent [Pinkney] in his petition. On October 17,
2013, Mr. Galloway issued and filed a “no merit”
letter, in which he noted that [Pinkney] did not voice
these concerns during the guilty plea and sentencing
hearing. Had [Pinkney] proceeded to trial and been
convicted of Third Degree Murder, the sentence
would have been far more severe. Therefore, the
allegations of ineffectiveness lack merit.
Mr. Galloway also advised the [c]ourt that his
independent review of the record revealed no
additional errors of a constitutional nature. He asked
for leave to withdraw his representation. He sent a
copy of his “no merit” letter and “Application to
Withdraw Appearance” to [Pinkney].
On November 8, 2013, this [c]ourt issued a Notice of
Intent to Dismiss Post Conviction Relief Action
Petition Without a Hearing. [Pinkney] responded to
that Notice. On December 26, 2013, this [c]ourt
entered an Order dismissing the PCRA petition.
[Pinkney] filed a Notice of Appeal.
On March 13, 2014, this [c]ourt issued an Order
requiring that [Pinkney] file and serve a Concise
Statement of Errors Complained of on Appeal within
twenty-one days.
On April 21, 2014, [thirty-nine] days later, [Pinkney]
filed a Concise Statement of Errors Complained of on
Appeal.
PCRA Court Opinion, 5/12/14, at 1-2.
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Because Pinkney did not file his pro se concise statement of the errors
complained of on appeal within twenty-one days pursuant to the PCRA
court’s order and Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, the PCRA court found that Pinkney had waived all of the issues
he wished to raise on appeal. Id. at 2-3. Consequently, the PCRA court’s
opinion does not address any of the issues Pinkney raised in his Rule
1925(b) statement. See id.
It is well-settled 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 Rule 1925.
Any issues not raised in a 1925(b) statement will be deemed waived.”
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Additionally, this
Court has held that “the waiver analysis set forth in Lord applied not only to
cases where an appellant failed to file a concise statement or omitted
appellate issues from a concise statement, but also to cases where he filed a
court-ordered statement in an untimely manner.” Commonwealth v.
Lane, 81 A.3d 974, 979-80 (Pa. Super. 2013), appeal denied, 92 A.3d 811
(Pa. 2014). In Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), our
Supreme Court stated the following with respect to waiver under Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure:
Our jurisprudence is clear and well-settled, and
firmly establishes that: Rule 1925(b) sets out a
simple bright-line rule, which obligates an appellant
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to file and serve a Rule 1925(b) statement, when so
ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack
the authority to countenance deviations from the
Rule’s terms; the Rule’s provisions are not subject to
ad hoc exceptions or selective enforcement;
appellants and their counsel are responsible for
complying with the Rule’s requirements; Rule 1925
violations may be raised by the appellate court sua
sponte, and the Rule applies notwithstanding an
appellee’s request not to enforce it; and, if Rule
1925 is not clear as to what is required of an
appellant, on-the-record actions taken by the
appellant aimed at compliance may satisfy the Rule.
Id. at 494 (footnote omitted).
Based on our review of the certified record on appeal, the PCRA court
was indeed correct in finding that Pinkney’s Rule 1925(b) statement was
untimely. Moreover, Pinkney did not file an application with the PCRA court
pursuant to Rule 1925(b)(2) requesting a time extension for filing his Rule
1925(b) statement. See Pa.R.A.P. 1925(b)(2).1 Accordingly, we must
1
Rule 1925(b)(2) reads:
(2) Time for filing and service.--The judge shall allow
the appellant at least 21 days from the date of the
order's entry on the docket for the filing and service
of the Statement. Upon application of the appellant
and for good cause shown, the judge may enlarge
the time period initially specified or permit an
amended or supplemental Statement to be filed.
Good cause includes, but is not limited to, delay in
the production of a transcript necessary to develop
the Statement so long as the delay is not
attributable to a lack of diligence in ordering or
paying for such transcript by the party or counsel on
appeal. In extraordinary circumstances, the judge
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conclude that Pinkney has failed to preserve any issues for appeal, and we
affirm the PCRA court’s order dismissing his PCRA petition on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2015
may allow for the filing of a Statement or amended
or supplemental Statement nunc pro tunc.
Pa.R.A.P. 1925(b)(2).
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