J-S53030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLARK EMMANUEL MEAD, JR.,
Appellant No. 1900 MDA 2015
Appeal from the PCRA Order October 2, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000306-2012
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 11, 2016
Appellant, Clark Emmanuel Mead, Jr., appeals from the order entered
on October 2, 2015, in the Schuylkill County Court of Common Pleas that
denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court, which addressed Appellant’s direct appeal,
provided the following facts and procedural history:
Appellant was the boyfriend of the mother of the
minor male victims, ZA and IA, with whom he
resided along with their mother. When the mother
was at work, the children were left in Appellant’s
care. Eventually, the mother and Appellant split up.
One month after Appellant moved out of the
residence, the older of the two boys began to tell his
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*
Former Justice specially assigned to the Superior Court.
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mother what Appellant had done, and the mother
reported the allegations to the police.
The events occurred during the last few months of
2005 and the first half of 2006. ZA was five years old
at the time. He testified that he, his younger brother,
IA, and his half-brother, CM, lived with his mother
and Appellant. (Appellant and the boys’ mother are
the natural parents of CM, who is younger than both
complainants). ZA testified that he was called into
Appellant’s bedroom, where Appellant forced him to
perform oral sex on Appellant and then Appellant
performed anal sex on ZA. He could not say exactly
how often these assaults occurred other than to say
it was more than once. Each time, when Appellant
was done with him, Appellant instructed him to
return to the bedroom he shared with IA and to send
IA to Appellant. He testified that the assaults did not
occur the same way each time. Sometimes he was
only required to put his mouth on Appellant’s penis;
sometimes he was assaulted anally; and sometimes
both occurred.
ZA testified that the same things happened to him
on occasion when he and Appellant were alone in the
living room of their residence. He testified that his
mother was at work when all of the assaults
occurred, and no one else was home except his
brothers. He also testified that he did not tell anyone
at the time because each time he was assaulted,
Appellant threatened to hurt him if he told anyone.
IA, who was four years old when the events
occurred, testified that almost daily while his mother
was at work, he would be required to join Appellant
in the bedroom Appellant shared with his mother. No
one was home but him and his brothers. He testified
that CM was only months old at the time. During
each assault, IA was required to perform oral sex on
Appellant; then Appellant performed oral sex on IA;
and finally, Appellant would perform anal sex on IA.
IA also testified that occasionally, when the boys
were in the living room watching television with
Appellant, Appellant made him perform oral sex on
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Appellant and then watch while ZA was forced to do
the same. Whenever he was made to perform oral
sex on Appellant, IA testified that Appellant “peed” in
his mouth and told him to swallow it; but he always
spit it out in the sink. Each time he was assaulted,
Appellant threatened to hurt him if he told anyone.
R.G. “Aunt”, the mother’s aunt, testified that the
mother brought all three boys to live with her near
the end of April of 2006. The mother told Aunt that
the boys had been abused and asked Aunt to take
them to the county’s Children and Youth Agency
(“CYA”). Shortly thereafter, the mother abandoned
the boys, and Aunt was given kinship custody of ZA,
IA, and CM.
ZA had been interviewed very briefly by a
representative of CYA. During this interview, ZA said
that he and IA were forced to perform oral sex on
Appellant while in his bedroom, that stuff came out
of Appellant’s penis into their mouths, and that they
had to spit it out into a sink. ZA did not mention anal
sex during the interview.
Both ZA and IA were also interviewed by the
Children’s Resource Center (“CRC”). ZA told CRC
that he was forced to perform oral sex and subjected
to anal sex. IA told CRC that Appellant had only
touched him and ZA inappropriately with his hand.
Aunt, who had taken ZA and IA for these interviews,
testified that IA told her on the way home that he
had not told the interviewer everything because he
was afraid, but that he was no longer afraid. Aunt
called CYA when they got home, and a couple of
days later IA was reinterviewed at the local police
station.
Trial Court Opinion, 11/26/12, at 1-4.
Based upon the foregoing events, the McAdoo Police
Department, on December 21, 2011, filed a criminal complaint
that charged Appellant with six counts of involuntary deviate
sexual intercourse with a child, six counts of indecent assault,
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two counts of corruption of minors, and two counts of
endangering the welfare of a child. Following a preliminary
hearing convened on February 23, 2012, the district magistrate
bound all charges over to the Schuylkill County Court of
Common Pleas.
At the conclusion of trial on June 5, 2012, a jury found
Appellant guilty of six counts of involuntary deviate sexual
intercourse with a child, six counts of indecent assault (person
less than 13 years of age), two counts of corruption of minors,
and two counts of endangering the welfare of a child. Thereafter,
on September 27, 2012, the trial court sentenced Appellant to
27½ - 5[5] years’ imprisonment in a state correctional facility.[1]
Commonwealth v. Mead, 2239 MDA 2012, 93 A.3d 509 (Pa. Super. filed
December 13, 2013) (unpublished memorandum at 1-4) (internal footnotes
omitted) (footnote added). This Court affirmed Appellant’s judgment of
sentence, id., and on July 2, 2014, the Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Mead, 94 A.3d 1009
(Pa. 2014).
On July 1, 2015, Appellant, through counsel, filed a timely PCRA
petition. In an order filed on October 2, 2015, the PCRA court denied relief.
Appellant filed a timely appeal, and on October 29, 2015, the PCRA court
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1
In his brief, Appellant repeats the typo from our earlier decision listing
Appellant’s aggregate sentence as twenty-seven and one-half to fifty-four
years of incarceration. Appellant’s Brief at 3. However, a review of the
sentencing transcript and sentencing order reveals that the trial court
imposed an aggregate sentence of twenty-seven and one-half to fifty-five
years of incarceration. N.T., Sentencing, 9/27/12, at 31-32; Order 9/27/12,
at unnumbered 1.
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directed Appellant to file and serve a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-five days.
Initially, it appears that Appellant’s court-ordered Pa.R.A.P. 1925(b)
statement was filed late. The PCRA court ordered Appellant to file the
statement on or before November 23, 2015, but the record reflects that it
was not filed until November 25, 2015. Nevertheless, this untimely filing is
not fatal to Appellant’s appeal.
The untimely filing of a court-ordered Rule 1925(b) statement
does not automatically result in wavier of the issues on appeal. If
the trial court accepts an untimely Rule 1925(b) statement and
addresses the issues raised in its Rule 1925(a) opinion, we will
not determine the issues to be waived. …
Commonwealth v. Rodriguez, 81 A.3d 103, 105 n.2 (Pa. Super. 2013)
(internal citations and quotation marks omitted).
Here, Appellant’s Pa.R.A.P. 1925(b) statement was late, but the trial
court accepted the filing and attempted to address the issue raised therein.
Appellant’s Pa.R.A.P. 1925(b) statement reads, in its entirety, as follows:
“The trial court erred by denying defendant’s petition for relief under the
Pennsylvania Post Conviction Relief Act.” Pa.R.A.P. 1925(b) statement,
11/25/15. In its effort to address Appellant’s concise statement, the PCRA
court responded as follows: “The defendant’s statement pursuant to
Pa.R.A.P. No. 1925(b) merely states that this court erred in denying his
PCRA petition, without specifying why the denial was in error. Accordingly,
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there is nothing to which a response can be made.” Pa.R.A.P. 1925(a)
Opinion, 11/24/15.2
Our standard of review of an order denying relief under the PCRA
requires us to determine whether the decision of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014). The
PCRA court’s decision will not be disturbed unless there is no support for the
findings in the certified record. Id.
After review, we agree with the PCRA court’s assessment, and we
conclude that Appellant has waived any issues he might have raised on
appeal.
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
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2
Appellant’s Pa.R.A.P. 1925(b) statement contains a proof of service
revealing that it was served upon the PCRA court on November 20, 2015.
While the Pa.R.A.P. 1925(b) statement was not filed until November 25,
2015, we are satisfied that the PCRA court was served with the Pa.R.A.P.
1925(b) statement before November 24, 2015, thus explaining why the filing
date of the opinion predates the filing date of the Pa.R.A.P. 1925(b)
statement.
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to enforce it …. We yet again repeat the principle first stated in
[Commonwealth v.] Lord[, 719 A.2d 306 (Pa. 1998),] that
must be applied here: “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 Pa.R.A.P. 1925. Any issues not raised in a
Pa.R.A.P. 1925(b) statement will be deemed waived.”
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (quoting Lord, 719
A.2d at 309; and see G. Ronald Darlington, Kevin J. McKeon, Daniel R.
Schuckers, and Kristen W. Brown, PENNSYLVANIA APPELLATE PRACTICE, §
1925:27 (2009–2010 edition) (“No remand is authorized in situations in
which a criminal appellant actually timely files a required concise statement
but phrases issues in a vague manner or omits certain issues.”).
The record reveals that Appellant had counsel, and counsel filed the
court-ordered Pa.R.A.P. 1925(b) statement, albeit two days late. As noted,
the PCRA court declined to find waiver based on the untimely filing and
chose to proceed with a merits review. Accordingly, this was not a situation
where an untimely Pa.R.A.P. 1925(b) statement was the equivalent of filing
no statement at all. See Pa.R.A.P. 1925(c)(3) (“If an appellant in a criminal
case was ordered to file a Statement and failed to do so, such that the
appellate court is convinced that counsel has been per se ineffective, the
appellate court shall remand for the filing of a Statement nunc pro tunc and
for the preparation and filing of an opinion by the judge.”). Rather, the
PCRA court overlooked the untimeliness of Appellant’s Pa.R.A.P. 1925(b)
statement, and in reviewing the statement, the PCRA court rendered a
judicial determination that the issue Appellant raised was too vague to
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preserve any questions for appellate review. Thus, we conclude that
remanding this matter for an amended concise statement is not appropriate
under the circumstances. Appellant filed the Pa.R.A.P. 1925(b) statement
that was accepted by the PCRA court, but it was deemed deficient.
After review, we conclude that Appellant failed to preserve any issues
for appellate review, and we discern no error in the PCRA court’s
determination. Accordingly, we affirm the order denying Appellant’s PCRA
petition.
Order affirmed.
Judge Bowes joins the Memorandum.
Justice Fitzgerald Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2016
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Com. v. Mead, C., Jr.
Combined Opinion