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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY WAYNE EARLS
Appellant No. 3408 EDA 2016
Appeal from the PCRA Order October 12, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004736-2009
BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JULY 13, 2017
In this pro se appeal, we are tasked with determining whether
Appellant, Anthony Earls, has presented a prima facie case that the clerk of
courts failed to provide him notice of the Post Conviction Relief Act (“PCRA”)
court’s order that directed him to file a statement of matters complained of
on appeal pursuant to Pa.R.A.P. 1925(b). If we were to conclude that he has
established a prima facie case, we would be obligated to remand this matter
to the PCRA court for a hearing on the issue. However, since we conclude
that Earls has failed to present a prima facie case, we agree with the PCRA
court that his failure to file a Rule 1925(b) statement has caused all of his
claims on appeal to be waived. We therefore affirm.
In 2010, a jury convicted Earls of, among other crimes, first-degree
murder arising from the gangland-style killing of Fard Simms while Simms
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was waiting in line for pizza. This Court affirmed his judgment of sentence,
and the Supreme Court of Pennsylvania denied his petition for allowance of
appeal on May 30, 2013.
Earls filed a pro se PCRA petition on January 24, 2014, and the PCRA
court appointed counsel to represent Earls. Approximately one year later,
counsel requested permission to withdraw from the case, asserting that it
had no merit. Earls requested to proceed pro se, and after a Grazier
hearing, the PCRA court permitted him to do so.
Shortly thereafter, Earls filed an amended PCRA petition, which the
PCRA court ultimately dismissed without a hearing. Earls filed a timely
appeal, as well as a request to proceed in forma pauperis (“IFP”). The PCRA
court granted Earl’s request for IFP status, and also ordered Earl to file a
Rule 1925(b) statement of matters complained of on appeal.
Earl never filed a Rule 1925(b) statement. In its opinion on appeal, the
PCRA court concludes, pursuant to Commonwealth v. Lord, 719 A.2d 306
(Pa. 1998), and its progeny, that Earl’s failure to file the Rule 1925(b)
statement causes waiver of all of Earl’s issues on appeal.
The certified docket entries indicate that the clerk of courts served Earl
with these two orders via first class mail on November 2, 2016. In a
subsequent filing, Earl asserted that the envelope he received on November
3, 2016, contained two copies of the order granting his request for IFP
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status and did not contain a copy of the order directing him to file a Rule
1925(b) statement.
“[A] party’s failure to file a Rule 1925(b) statement will [not] be
excused based merely upon bald allegations that the party did not receive a
1925(b) order.” Commonwealth v. Hess, 810 A.2d 1249, 1255 n.9 (Pa.
2002) (citation omitted). In Hess, the appellant asserted that he had not
received the Rule 1925(b) order. In support, he provided multiple affidavits
asserting the absence of such an order from the records, and noted that trial
court’s docket entries, in violation of Pa.R.Crim.P. 114, did not indicate the
date and manner by which he had been served with the order. The Court
concluded that Hess had not been served with the order, and therefore that
waiver was inappropriate. See id.
This Court has consistently applied Hess when confronted with cases
where the docket entries do not indicate the date and manner of service of
the Rule 1925(b) statement. See, e.g., Commonwealth v. Davis, 867
A.2d 585 (Pa. Super. 2005). However, the case currently before us differs
from Hess in this crucial aspect. Here, the certified docket entries indicate
the date and manner by which the Rule 1925(b) order was served on Earls.
Earls has attempted to file a signed statement from an associate that
corroborates his claim that the envelope Earls received on November 3,
2016, did not contain a copy of the order directing him to file a Rule 1925(b)
statement.
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However, this signed statement does not qualify as an affidavit. In
order to qualify as an affidavit, it must be
a statement … of fact or facts, signed by the person making it,
that either (1) is sworn to or affirmed before an officer
authorized by law to administer oaths, or before a particular
officer or individual designated by law as one before whom it
may be taken, and officially certified to in the case of an officer
under seal of officer, or (2) is unsworn and contains a statement
that it is made subject to the penalties of 18 Pa.C.S.A. § 4904
relating to unsworn falsification to authorities.
Pa.R.C.P. 76. There is no indication that the statement filed by Earls was
sworn to or affirmed before an officer authorized by the law, and it does not
contain a statement that it was made pursuant to the penalties of 18
Pa.C.S.A. § 4904.
Furthermore, as the PCRA court notes, Earl acknowledges that he
received the order granting him IFP status. In footnote 2 of that order, the
PCRA court indicated that “[p]er a separate order of this same date (October
28, 2016), this court directed [Earls] to lodge a concise statement of matters
complained of on appeal no later than twenty-one (21) days subsequent.
See Order dated October 28, 2016.” Trial Court Order, 10/28/16.
As the certified docket entries indicate the date and manner of service
of the order, and there is no other evidence that he was not served, we are
left with a bald allegation. Pursuant to Hess, this is insufficient to exempt
Earls from compliance with the order directing him to file a Rule 1925(b)
statement. In addition, the IFP order put Earls on notice that the order
directing the filing of a Rule 1925(b) statement had been entered by the
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PCRA court. We therefore agree with the PCRA court that all of Earl’s issues
on appeal have been waived.
Order affirmed. Jurisdiction relinquished.
President Judge Emeritus Ford Elliott joins in the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2017
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Com. v. Earls, A.
Combined Opinion