Com. v. Waller, R.

J-A15015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RONELLE WALLER,
Appellant No. 3783 EDA 2017
Appeal from the PCRA Order Entered October 20, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004980-2010
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 21, 2019
Appellant, Ronelle Waller, appeals from the post-conviction court’s
October 20, 2017 order denying his first petition under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In February of 2010, Appellant was arrested and charged with numerous
offenses, including possession of a firearm by a person prohibited, 18 Pa.C.S.
§ 6105. At his jury trial, the following evidence was presented:
Philadelphia Police Detective Matthew Farley testified that on
February 2, 2010, he went to 5332 Yocum Street, Philadelphia, a
two story row home, with his partner[,] Detective Daniel Brooks[,]
and two police officers, to execute two bench warrants in an
unrelated matter for the arrest of a Jessie Wallace. On executing
the warrants, Detective Farley and the officers entered the
residence without force, and on clearing the first floor did not find
Mr. Wallace.
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* Retired Senior Judge assigned to the Superior Court.
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Detective Farley and the others continued their search upstairs.
On entering the middle bedroom on the second floor[,] they found
[Appellant] lying on a bed and talking with an unidentified female,
both of whom were fully clothed. On entering the room, Detective
Farley also observed a shotgun, loaded with three rounds of live
ammunition, leaning against a wall to his left, approximately two
and a half feet from where [Appellant] was lying.
The officers also discovered two unloaded rifles hidden between
the mattress and box spring of the bed that [Appellant] had been
lying on. Detective Farley further testified that the guns were not
registered to [Appellant] or anyone else. Detective Farley also
testified that it appeared that someone was living in the small
bedroom, noting that in addition to the bed, there was a significant
amount of male clothing, and a stereo in the room. Philadelphia
Police Officer Michael Wooding completed a biographical
information report on [Appellant] on February 2, 2010, as part of
his duties transporting [Appellant] from 5532 Yocum Street to
Southwest Detective Division…. Officer Wooding testified that
[Appellant] reported his resident address as 5532 Yocum Street.
Commonwealth v. Waller, No. 3508 EDA 2012, unpublished memorandum
at 1-2 (Pa. Super. filed April 14, 2014) (quoting Trial Court Opinion, 6/26/13,
at 2-3) (footnoted omitted).
At the conclusion of Appellant’s jury trial, he was found guilty of the
section 6105 firearm offense. On December 12, 2012, he was sentenced to a
term of seven years’ probation. He filed a timely direct appeal, and this Court
affirmed. See id. Our Supreme Court denied his subsequent petition for
allowance of appeal. Commonwealth v. Waller, 97 A.3d 744 (Pa. 2014).
On October 1, 2014, Appellant filed a timely, pro se PCRA petition.
Counsel was appointed and filed an amended petition on August 4, 2016. On
September 8, 2017, the court issued a Pa.R.Crim.P. 907 notice of its intent to
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dismiss Appellant’s petition without a hearing.1 On October 20, 2017, the
court filed an order formally dismissing Appellant’s petition.
Appellant filed a timely notice of appeal. The court then issued an order
for Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. That order advised Appellant “that any issue not
properly included in the Statement … shall be deemed waived.” PCRA Court
Order, 11/27/17, at 1. On December 7, 2017, Appellant filed a timely Rule
1925(b) statement, setting forth the following two issues:
1. The court was in error in denying [Appellant’s] PCRA [petition]
without an evidentiary hearing.
2. The court was in error in denying [Appellant’s] [a]mended PCRA
petition] filed by PCRA counsel.
Pa.R.A.P. 1925(b) Statement, 12/7/17, at 1. On July 25, 2018, the PCRA
court filed a Rule 1925(a) opinion.
Herein, Appellant states three issues for our review:
I. Whether Appellant’s [Rule] 1925(b) [c]oncise [s]tatement
specifically identified issues presently under consideration[?]
II. Whether the PCRA [c]ourt erred in denying Appellant’s PCRA
[p]etition without an evidentiary hearing on the issues raised in
the [a]mended PCRA [p]etition[?]
____________________________________________
1 The certified record does not contain the Rule 907 notice, nor a docket entry
verifying that it was filed. However, the PCRA court states in its opinion that
notice was given orally at a hearing on September 8, 2017, and the docket
indicates that on that date, the case was continued for the court to send a
formal Rule 907 notice. See PCRA Court Opinion (PCO), 7/25/18, at 2.
Appellant does not raise any issue concerning the adequacy of the notice
procedures applied below.
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III. Whether the PCRA [c]ourt was in error in not granting relief
on the issue that counsel was ineffective for:
a. Failing to effectively argue the motion to suppress and to
object to the admissibility of the firearm and for failing to
ask for the alleged warrant[?]
b. Failing to argue the motion to quash[?]
c. Failing to argue a [Pa.R.Crim.P.] 600 violation[?]
Appellant’s Brief at 8.
In his first issue, Appellant challenges the PCRA court’s conclusion that
he waived his appellate claims by filing a vague Rule 1925(b) statement. See
PCO at 2-3. The PCRA court premised its waiver decision on the fact that, in
Appellant’s concise statement, he “simply complain[ed] that the court erred
in dismissing his amended [c]ounseled PCRA petition without further
elaboration.” Id. at 2. Quoting Commonwealth v. Dowling, 778 A.2d 683,
686-87 (Pa. Super. 2001), the court stressed that, “a [c]oncise [s]tatement
which is too vague to allow the court to identify the issues raised on appeal is
the functional equivalent of no [c]oncise [s]tatement at all.” Id.
In objecting to the court’s waiver conclusion, Appellant confusingly
contends that we can overlook his vague Rule 1925(b) statement because
“courts have … allowed nunc pro tunc relief in ‘non-negligent circumstances,
either as they relate to appellant or his counsel[,]’ that occasion the delay.”
Appellant’s Brief at 13 (quoting McKeown v. Bailey, 731 A.2d 628, 630 (Pa.
Super. 1999)). We are uncertain what ‘nunc pro tunc relief’ Appellant is
seeking, and his reliance on McKeown offers no clarity. There, we discussed
that “a [t]rial [c]ourt may grant an appeal nunc pro tunc when a delay in
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filing is caused by extraordinary circumstances involving fraud or some
breakdown in the court’s operation through a default of its officers.”
McKeown, 731 A.2d at 630 (emphasis added; internal quotation marks
omitted). Obviously, McKeown does not address the issue of a vague Rule
1925(b) statement and, therefore, it is inapplicable.
Instead, we agree with the PCRA court that under Dowling, Appellant’s
non-specific Rule 1925(b) statement is inadequate to preserve his issues for
our review. Appellant raised multiple claims of trial counsel’s ineffectiveness
in his amended PCRA petition, yet he only vaguely asserted in his Rule 1925(b)
statement that the court erred by denying that petition. This left the court to
guess at what specific errors Appellant intended to raise on appeal. Indeed,
Appellant highlights this fact when he argues that the PCRA “court completely
fails to address the warrant aspect” of his suppression-based ineffectiveness
claim. Appellant’s Brief at 19. Clearly, the court failed to address the ‘warrant
aspect’ of this issue because Appellant did not identify that specific claim in
his Rule 1925(b) statement. Accordingly, we agree with the PCRA court that
Appellant’s vague Rule 1925(b) statement failed to preserve the specific
arguments he raises on appeal.
In any event, even had Appellant’s Rule 1925(b) statement been
sufficient, we would deem his claims waived for other reasons. For instance,
in support of Appellant’s first ineffectiveness claim, in which he alleges that
counsel “fail[ed] to effectively argue the motion to suppress[,]” Appellant
contends that “counsel could have and should have challenged the plain view
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exception” and that “counsel should have also challenged the warrant to be
defective in that it failed to properly describe the person to be arrested.”
Appellant’s Brief at 19. These claims were not presented in Appellant’s PCRA
petition and, thus, they are waived. See Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”).
Appellant also argues that counsel raised in the suppression motion the
fact that he “was on the second floor in a bedroom of the house in-question
[sic]” and he “was not the subject of the alleged warrant[, so] there should
have been no further inquiry or search of the room Appellant was in.”
Appellant’s Brief at 20. However, Appellant offers no legal authority or
developed discussion to support this claim. Accordingly, it is waived. See
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When
briefing the various issues that have been preserved, it is an appellant’s duty
to present arguments that are sufficiently developed for our review. The brief
must support the claims with pertinent discussion, with references to the
record and with citations to legal authorities. … [W]hen defects in a brief
impede our ability to conduct meaningful appellate review, we may dismiss
the appeal entirely or find certain issues to be waived.”).
Likewise, Appellant has also waived his remaining two ineffectiveness
claims based on his failure to meaningfully develop them. Specifically,
Appellant avers that his counsel acted ineffectively by not pursuing a ruling
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by the court on a motion to quash that his prior counsel filed early on in this
case. However, Appellant does not provide any developed analysis to
demonstrate, nor cite any legal authority to support, that the motion would
have been granted. Rather, he simply claims that “counsel who handled the
case at the preliminary hearing believed there was reasonable grounds to
grant the motion, as the filing of said motion would indicate.” Appellant’s Brief
at 21. This inadequate argument is insufficient to preserve Appellant’s
ineffectiveness claim for our review. See Hardy, supra.
For this same reason, Appellant has also waived his contention that
counsel should have filed a Rule 600 motion to dismiss. In deciding if a Rule
600 violation has occurred, we must first calculate the mechanical and
adjusted run dates.
The mechanical run date is the date by which the trial must
commence under [Rule 600]. It is calculated by adding 365 days
(the time for commencing trial under [Rule 600]) to the date on
which the criminal complaint is filed. … [T]he mechanical run date
can be modified or extended by adding to the date any periods of
time in which delay is caused by the defendant. Once the
mechanical run date is modified accordingly, it then becomes an
adjusted run date.
If the defendant’s trial commences prior to the adjusted run date,
we need go no further.
If, however, the defendant’s trial takes place outside of the
adjusted run date, we must determine, pursuant to Rule 600(G),
whether the delay occurred despite the Commonwealth’s due
diligence.
Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. Super. 2007).
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Here, Appellant does not identify the mechanical run date, discuss the
dates of any delays, or calculate the adjusted run date. Instead, he simply
asserts that his case was brought to trial outside the 365-day period, and then
baldly claims that “the Commonwealth did not exercise due diligence.”
Appellant’s Brief at 23. We conclude that Appellant’s undeveloped argument
is insufficient to preserve his claim that counsel acted ineffectively by failing
to file a Rule 600 motion to dismiss.
For all of these reasons, Appellant has waived his ineffective-assistance-
of-counsel issues for our review. Consequently, he has also not demonstrated
that the PCRA court erred by denying his petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2019
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