Com. v. Rush, B.

J-S26011-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN K. RUSH :
:
Appellant : No. 29 EDA 2023
Appeal from the PCRA Order Entered November 17, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at Nos.: CP-09-CR-0001253-2015,
CP-09-CR-0002968-2018, CP-09-CR-0004190-2018
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 1, 2023
Brian K. Rush pro se appeals from the November 17, 2022 order of the
Court of Common Pleas of Bucks County (“PCRA county”), which denied
without a hearing his request for collateral relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-56. Upon review, we
affirm.
The facts and procedural history of this case are undisputed. As
summarized by the PCRA court:
On March 8, 2018, on docket number CP-09-CR-1253-2015,
Appellant entered a negotiated guilty plea to criminal attempt—
theft by deception and bad checks. On April 22, 2019, Appellant
entered negotiated guilty pleas on two separate informations. On
docket number CP-09-CR-2968-2018, Appellant pled guilty to
identity theft, forgery, access device fraud, theft by deception,
and receiving stolen property. On docket number CP-09-CR-
4190-2018, Appellant pled guilty to bad checks, access device
fraud, theft by deception, forgery, and identity theft.
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On November 19, 2021, Appellant appeared before [the court] for
a violation hearing after violating his probation on all three
dockets by incurring criminal convictions on two new cases, one
of which was for a suboxone drug ring he ran while in the Bucks
County Correctional Facility (hereinafter “BCCF”). This was
Appellant’s first violation on the 2018 dockets and his second
violation on the 2015 docket. At the hearing, Appellant admitted
that he was in violation of his probation but contested the
Commonwealth’s recommended sentence. After hearing
testimony, th[e c]ourt sentenced Appellant to no less than
eighteen (18) to no more than thirty-six (36) months
incarceration in the state correctional institution (hereinafter
“SCI”) on both docket number CP-09-CR-1253-2015 and docket
number CP-09-CR-2968-2018 and to twenty-four (24) months of
probation on docket number CP-09-CR-4190-2018. [The c]ourt
directed that these sentences be served consecutively, as well as
consecutively to the sentence imposed on Appellant’s suboxone
drug-ring case (docket number CP-09-CR-209-2020).
On November 29, 2021, Appellant filed a motion for
reconsideration of sentence. After a hearing on December 17,
2021, [the c]ourt denied Appellant’s motion. Appellant then
attempted to file several improper pro se motions that were placed
in Appellant’s file and forwarded to Appellant’s attorney of record
pursuant to Pa. R.Crim.P. 576(a)(4). On April 21, 2022, Appellant
filed a pro se PCRA petition. [The PCRA court] appointed Bonnie-
Ann Brill Keagy, Esquire to represent Appellant. On September
12, 2022, Ms. Keagy filed a petition to withdraw as [Appellant’s]
counsel after reviewing the files and determining that Appellant’s
pro se PCRA petition did not have legal merit and could not be
amended to state meritorious claims.[1]
On September 21, 2022, [the c]ourt issued a notice of intent to
dismiss without a hearing pursuant to Pa.R.Crim.P. 907 and
granted Ms. Keagy’s motion to withdraw as counsel. After
Appellant responded to th[e c]ourt’s notice of intent to dismiss
without a hearing, [the c]ourt formally denied Appellant’s pro se
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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PCRA petition on November 17, 2022. On December 16, 2022,
Appellant [pro se] filed a notice of appeal to the Superior Court.[2]
PCRA Court Opinion, 2/9/23, at 1-3 (unnecessary capitalizations and footnotes
omitted). Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On appeal,3 Appellant presents two issues for our review.
[I.] Did the PCRA court err as a matter of law in granting appointed
counsel’s petition to withdraw as defendant’s counsel?
[II.] Did the PCRA court err in dismissing the instant PCRA petition
pursuant to Pa.R.Crim.P. 907 without convening an evidentiary
hearing?
Appellant’s Brief at 4.
At the outset, upon review of the record, we are constrained to agree
with the PCRA court’s and Commonwealth’s position that Appellant’s issues
____________________________________________
2 Appellant filed a single notice of appeal listing the three docket numbers at
issue sub judice. Ordinarily, the listing of multiple docket entries would run
afoul of the requirements set forth in Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018). However, in Commonwealth v. Stansbury, 219 A.3d 157(Pa. Super. 2019), this Court concluded that a breakdown in the courts occurs,
as did here, when a PCRA court advises petitioners that they can pursue
appellate review by filing a single notice of appeal, even though the order
disposes of petitions pending at multiple docket numbers. See also
Commonwealth v. Larkin, 235 A.3d 350, 352-54 (Pa. Super. 2020) (en
banc) (reaffirming Stansbury). Specifically, the PCRA court advised
Appellant in the November 17, 2022 order that he “has thirty (30) days from
the entry of this Order to file an appeal with the Pennsylvania Superior Court.”
PCRA Court Order, 11/17/22 (emphasis added). Accordingly, in overlooking
Appellant’s noncompliance with Walker, we find that there was a breakdown
in the courts as per Stansbury and Larkin. We allow this appeal to proceed.
3 “In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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before us, relating to the PCRA court’s grant of counsel’s withdrawal petition
and denial of relief without a hearing, are waived because he failed to assert
and thereby preserve them in his Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Appellant’s Rule 1925(b) statement, reproduced
verbatim, provides in pertinent part:
a. The Trail court did not have statutory authority to revoke a
consecutive order of probation before it began.
b. Illegal sentence.
c. Legality of sentence.
d. Judgement of sentence imposed.
Appellant’s Rule 1925(b) Statement, 2/6/23 (sic). As the PCRA court aptly
reasoned:
[The court] believes that all of Appellant’s arguments are waived
due to his failure to file a coherent 1925(b) statement. Rule
1925(b)(ii) specifically states that “[t]he Statement shall concisely
identify each error that the appellant intends to assert with
sufficient detail to identify the issue to be raised for the judge.”
Further, Appellate courts have held that “Pa.R.A.P. 1925(b) is not
satisfied by simply filing any statement. Rather, the statement
must be ‘concise’ and coherent as to permit the trial court to
understand the specific issues being raised on appeal.” Tucker
v. R.M. Tours, 939 A.2d 343, 346 (Pa. Super. 2007). Because
Appellant has raised a number unspecific, unintelligible, and
incoherent issues without explanations, this court argues that
Appellant “ha[s] deliberately circumvented the meaning and
purpose of Rule 1925(b) and ha[s] thereby effectively precluded
appellate review of the issues they now seek to raise.” Kanter v.
Epstein, 866 A.2d 394, 401 (Pa. Super. 2004).
PCRA Court Opinion, 2/9/23, at 4. Indeed, issues not raised in a court-ordered
1925(b) statement are waived. Pa.R.A.P. 1925(b)(4)(vii); see also
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Commonwealth v. Given, 244 A.3d 508, 510 (Pa. Super. 2020) (appellant
waived all issues on appeal by failing to raise them in his Rule 1925(b)
statement); Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998),
superseded by rule on other grounds in Commonwealth v. Burton, 973
A.2d 428, 431 (Pa. Super. 2009). Moreover, an appellant cannot raise an
issue for the first time on appeal. See Pa.R.A.P. 302(a). Accordingly,
Appellant does not obtain relief.
Order affirmed.
Date: 11/01/2023
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