J-S30021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEXANDER MELO :
:
Appellant : No. 1617 MDA 2016
Appeal from the PCRA Order September 21, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005500-2009
BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JUNE 14, 2017
Appellant Alexander Melo appeals from the order entered September
21, 2016, denying as untimely his second petition for collateral relief filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
Following a jury trial, Appellant was convicted of rape, indecent
assault, and related offenses arising out of the rape of a thirteen-year-old
daughter of his live-in girlfriend. Appellant was sentenced to five to ten
years of incarceration. This Court affirmed his judgment of sentence and
allocator was denied. See Commonwealth v. Melo, 31 A.3d 747 (Pa.
Super. 2011) (unpublished memorandum), alloc. denied, 30 A.3d 1192 (Pa.
2011).
In June 2012, Appellant pro se filed a timely PCRA petition. Appellant
subsequently filed an amended, counseled PCRA petition. In October 2013,
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the court dismissed Appellant’s PCRA petition. Counsel timely filed a notice
of appeal and court ordered 1925(b) statement.
In April 2014, Appellant filed an application to proceed pro se on
appeal and for a remand for the PCRA court to conduct a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to challenge the
effectiveness of PCRA counsel. This Court granted Melo’s application. After
conducting a hearing, the PCRA court granted Appellant permission to
proceed pro se, finding that his decision was made knowingly, intelligently
and voluntarily. Thereafter, Appellant pro se filed a brief claiming ineffective
assistance of counsel regarding the denial of Appellant’s PCRA petition. This
Court affirmed the denial of his petition. See Commonwealth v. Melo,
118 A.3d 451 (Pa. Super. 2015).
In March 2016, Appellant filed another PCRA petition, asserting that
the untimeliness of his claims premised on Alleyne v. United States, 133
S.Ct. 2151 (2013), and Commonwealth v. Neiman, 84 A.3d 603 (Pa.
2013), may be excused by Montgomery v. Louisiana, 136 S.Ct. 718
(2016), Welch v. United States, 136 S.Ct. 1257 (2016), and
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), and requesting
appointment of counsel. Counsel was appointed in April 2016. On July 26,
2016, counsel filed a Turner/Finley letter and motion to withdraw.1 In
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1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);
Commonwealth v. Finley, 550 A.3d 1998 (Pa. Super. 1998) (en banc).
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August 2016, the court granted counsel’s motion to withdraw and issued
notice of intent to dismiss Appellant’s petition without a hearing pursuant to
Pa.R.Crim.P. 907(1).
On September 27, 2016, Appellant filed a notice of appeal. The court
issued a concise-statement order. The docketing statement and the record
do not reveal that a 1925(b)-compliant concise statement was ever filed.2
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
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2
The PCRA court nevertheless proceeded to address the timeliness of
Appellant’s PCRA petition, correctly concluding “neither Alleyne nor Neiman
applies retroactively to [Appellant], whose case was pending on collateral
review when he filed the instant petition.” Order, 9/21/2016, at 2.
Accordingly, the PCRA court found that Appellant failed to satisfy an
exception to the time bar. We agree. Appellant’s petition is patently
untimely. Appellant’s judgment of sentence became final on January 17,
2012, at the expiration of the ninety day time period for seeking review with
the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a
judgment of sentence becomes final at the conclusion of direct review or the
expiration of the time for seeking the review); Commonwealth v. Owens,
718 A.2d 330, 331 (Pa. Super. 1998) (noting that Sup.Ct.R. 13 grants an
Appellant ninety days to seek review with the United States Supreme Court).
Thus, Appellant has until January 17, 2013, to file his petition (as January 16
was Martin Luther King Day). The instant PCRA petition was filed March 21,
2016, more than three years late.
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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, 719 A.2d
306 (Pa. 1998)] that must be applied 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 at 309.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).
As a result of Appellant’s failure to file a 1925(b) statement as ordered
by the PCRA court, he has waived all of his issues on appeal. While this
court is willing to liberally construe materials filed by a pro se litigant, we
note that Appellant is not entitled to any particular advantage because he
lacks legal training. Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa.
Super. 1996).3
Accordingly, we conclude that all of Appellant’s issues on appeal have
been waived, and therefore, we affirm the order of the PCRA court. See
Hill, supra; see also In re Ullman, 995 A.2d 1207, 1211–12 (Pa. Super.
2010) (“This Court may quash or dismiss an appeal if the appellant fails to
conform to the requirements set forth in the Pennsylvania Rules of Appellate
Procedure.”); see Pa.R.A.P. 2101.
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3
We note further that Appellant’s brief falls well below our basic
requirements: Appellant has failed to include a statement of jurisdiction, text
of the order in question, statement of the questions involved, statement of
the case, summary of the argument, and copy of the PCRA court’s opinion.
See Pa.R.A.P. 2114-2119.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
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