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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MELVIN McILWAINE, : No. 983 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, March 13, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009171-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 05, 2016
Melvin McIlwaine appeals the judgment of sentence in which the Court
of Common Pleas of Philadelphia County sentenced him to serve an
aggregate term of seven years three months to fourteen years six months of
imprisonment followed by five years of reporting probation for dealing in
proceeds of unlawful activities, three counts of theft by unlawful taking, and
three counts of theft by deception.1
The charges against appellant stemmed from his defrauding an elderly
gentleman out of his home, money, personal property, and two vintage
automobiles. On December 16, 2014, appellant pled guilty in a
non-negotiated plea. The trial court ordered a pre-sentence investigation at
1
18 Pa.C.S.A. § 5111(a)(1), 18 Pa.C.S.A. § 3921(a), and 18 Pa.C.S.A.
§ 3922(a)(1), respectively.
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that time. The trial court scheduled a sentencing hearing for February 6,
2015. After four witnesses testified for the Commonwealth and five for
appellant, appellant announced that he was innocent of all charges. The trial
court permitted appellant to withdraw his plea. The trial court set a trial
date of March 2, 2015. Following a trial, the jury found appellant guilty of
the charges described above. The trial court sentenced appellant on
March 13, 2015.
On April 6, 2015, appellant appealed to this court. Appellant’s
attorney, Michael Huff, Esq., moved to withdraw as counsel, which the trial
court granted on May 29, 2015. Appellant wished to continue his appeal
pro se. This court ordered that the trial court conduct a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine whether
appellant’s waiver of counsel was knowing, intelligent, and voluntary.
Following a hearing on July 31, 2015, the trial court issued an order on
August 6, 2015, which permitted appellant to continue his appeal pro se
because the trial court determined that appellant’s waiver of the right to
counsel was knowing, intelligent, and voluntary. In the order, the trial court
also decreed:
(3) Pursuant to Pa.R.A.P. 1925(b)(3), the
[appellant] shall file of record with the Clerk of
Court a Statement of Matters Complained of on
Appeal within twenty (21) [sic] days from the
date of this Order;
(4) A copy of the Statement of Matters Complained
of on Appeal shall be served by the [appellant]
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upon the Clerk of Court, the trial judge and
counsel for the Commonwealth and in
accordance with the applicable Rules of Court;
(5) Any issue not properly raised in a timely filed
and properly served Statement of Matters
Complained of on Appeal shall be deemed
waived.
Trial court order, 8/6/15 at 1-2, ¶¶3-5.
In an opinion filed with this court on November 15, 2015, the trial
court stated that appellant failed to comply with its order and did not file a
statement of matters complained of on appeal. As a result, the trial court
stated that appellant had waived any claims of error and his appeal should
be dismissed. (Trial court opinion, 11/15/15 at 3.)
Before we can address the merits of appellant’s appeal, we must first
determine whether appellant’s issues have been waived.
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
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.
We yet again repeat the principle first stated in
[Commonwealth v.] Lord that must be applied
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here: “[I]n 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 Pa.R.A.P. 1925. Any issues not raised in
a Pa.R.A.P. 1925(b) statement will be deemed
waived.” [719 A.2d 306, 309 (Pa. 1998).]
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
Here, appellant failed to submit a concise statement of errors
complained of on appeal as ordered by the trial court. We, therefore, are
constrained to find his issues waived for the purposes of appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2016
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