Com. v. Lighty, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRY LIGHTY
Appellant No. 302 MDA 2016
Appeal from the PCRA Order January 28, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No: CP-36-CR-0000893-2011
BEFORE: STABILE, DUBOW, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2016
Appellant, Terry Lighty, appeals pro se from the January 28, 2016
order entered in the Court of Common Pleas of Lancaster County (“PCRA
court”), denying his petition for collateral relief pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously summarized the procedural and factual history of
the matter as follows.
Appellant was charged and convicted of one count of
burglary of an occupied structure and one count of theft by
unlawful taking. These charges stemmed from Appellant’s
unauthorized entry into an occupied residence at 136
North Mary Street in Lancaster, Pennsylvania on January
18, 2011. The victim testified that she awoke to find
Appellant in her house and that he told her that he was
going to take her television. Appellant also warned the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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victim not to call the police because he had “friends”
downstairs and he knew where she lived.
The victim’s neighbor, Brian Manning, noticed
Appellant leaving the residence carrying some of the
victim’s property. Mr. Manning called 911 immediately
after witnessing this and provided the police with a
detailed description of Appellant’s clothing and physical
characteristics. A fresh snow was falling on the night of
the burglary. Sergeant Philip Berkheiser tracked a single
set of boot prints leading away from the crime scene down
Mill Avenue, until they reached 500 West Orange Street,
where he noticed other sets of footprints in the snow.
While tracking these prints, Sergeant Berkheiser located
an abandoned box which contained an air purifier and palm
sander owned by the victim.
After Mr. Manning provided him with the suspect’s
description as a “black male … wearing a gray hoody, gray
pants, a blue vest, and gloves,” Officer Ben Bradley sent
out a police radio to call all officers at 1:00 a.m.. Sergeant
William Hickey received this call and, just before 2:00
a.m., he observed a black male who matched Mr.
Manning’s description, walking through the parking lot
where his patrol vehicle was parked and heading toward
the convenience store across the street. Officer Chris
Genetti arrived to back up Sergeant Hickey and the two
approached Appellant and identified themselves. Sergeant
Hickey explained to Appellant that a burglary had just
occurred at a nearby house and that he matched the
suspect’s description. He then asked Appellant if he would
step outside the store so that he could ask him some
questions about the incident.
During this period of questioning, Sergeant Hickey
learned Appellant’s identity and that he claimed to be
staying at 602 West King Street, Apartment 5, with a
person named “B” or “Bob.” Appellant was patted-down
for weapons, and police officers took photographs of his
clothing and boots. Sergeant Hickey contacted the officers
who had been at the crime scene and asked if they could
bring anyone who could identify the suspect to the
convenience store. Mr. Manning was brought to the store
and was allowed to view Appellant from inside a police
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vehicle. He identified Appellant’s clothing as matching that
of the suspect but was not able to conclusively state that
Appellant was the person who he observed at the crime
scene.
Appellant’s photograph was later included in a photo
array shown to Willy Robertson who occupied an
apartment in the same building in which Appellant claimed
that he was staying. Mr. Robertson identified Appellant as
the person who had brought him a television the same
night of the burglary. This television was recovered from
Mr. Robertson’s apartment by police and was identified as
the same one stolen from the victim.
Appellant’s trial counsel failed to file a suppression
motion seeking to preclude the introduction of evidence
obtained during Appellant’s Terry stop outside the
convenience store. Consequently Appellant’s statements,
items seized, and the photographs taken from this
encounter with the police were later offered into evidence
at trial.
A jury convicted Appellant of burglary of an occupied
structure and theft by unlawful taking. The trial court
imposed the mandatory minimum sentence of twenty-five
to fifty years imprisonment pursuant to 42 Pa.C.S. §
9714(a)(2) because Appellant had a prior record that
included at least two crimes of violence. We affirmed the
judgment of sentence on August 14, 2012, and our
Supreme Court denied allowance of appeal on April 16,
2013.
On December 24, 2013, Appellant filed a timely pro
se PCRA petition. Appointed counsel filed an amended
PCRA petition that alleged Appellant’s trial counsel
provided ineffective assistance for failing to file an omnibus
pretrial motion seeking to suppress the evidence derived
from his detention outside of the convenience store and
the search of his person. Appellant requested that the
PCRA court vacate his sentence and remand the matter for
a new trial without the allegedly tainted evidence.
An evidentiary hearing was held on Appellant’s PCRA
petition on April 16, 2014.
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...
The PCRA court denied relief on February 5, 2015, on
the grounds that Appellant, “failed to demonstrate by a
preponderance of the evidence that [counsel’s failure to
file a] motion to suppress rises to the level of a claim of
arguable merit,” because trial counsel’s testimony
indicated that he had done the necessary investigation of
Appellant’s interaction with the police before determining
that there were no meritorious suppression issues.
Commonwealth v. Lighty, No. 297 MDA 2015, unpublished memorandum,
at 1-3 (Pa. Super filed Sep. 2, 2015) (internal citations omitted) (footnote
omitted). This Court affirmed the PCRA court’s finding that Appellant failed
to meet his burden; therefore, he was not entitled to relief. Id. at 6.
On December 11, 2015, Appellant filed a second PCRA petition. On
December 23, 2015, the PCRA court sent Appellant a notice pursuant to
Pa.R.Crim.P. 907 indicating its intent to dismiss the PCRA petition. On
January 14, 2016, Appellant amended his second PCRA petition in response
to the PCRA court’s notice. On January 28, 2016, the PCRA court dismissed
Appellant’s PCRA petition.
Appellant filed a timely notice of appeal on February 19, 2016. On
March 1, 2016, the PCRA court directed Appellant to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant failed to file a concise statement, and the PCRA court issued an
opinion on April 4, 2016.
Appellant presents seven questions in his brief; however, this Court
must first address Appellant’s failure to file a concise statement of matters
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complained of on appeal. See Appellant’s Brief at 7-16. Pursuant to the
Rules of Appellate Procedure,
[i]f 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 the 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.
Pa.R.A.P. 1925(b). Furthermore, the Rules provide that “[i]ssues 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)(4)(vii).
“Waiver occurs when an appellant fails to file a Rule 1925 statement, but
only if the appellant is ‘ordered’ to file one.” Commonwealth v. Gonzalez,
840 A.2d 326, 328 (Pa. Super. 2003).
In the matter sub judice, Appellant failed to file a concise statement of
matters complained of on appeal after the PCRA court ordered him to do so.
In his brief Appellant acknowledged receipt of the PCRA court’s order
directing him to file a concise statement. Appellant’s Brief at 7. Thus, it is
clear that Appellant received the order from the PCRA court directing him to
file a concise statement and he failed to comply. Consequently, all of
Appellant’s claims are waived. See Pa.R.A.P. 1925(b)(4)(vii).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
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