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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHRISTOPHER CARROLL :
:
Appellant : No. 837 EDA 2017
Appeal from the PCRA Order January 25, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002626-2009
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 30, 2018
Appellant, Christopher Carroll, appeals pro se from the January 25,
2017, order entered in the Court of Common Pleas of Philadelphia County
dismissing his first petition filed under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing. After a careful
review, we affirm.
The relevant facts and procedural history are as follows: On January 4,
2009, at approximately 6:20 p.m., Martin Griffin, who had been a full-time
Philadelphia firefighter for twenty-three years, was watching a football game
in a Philadelphia bar when Appellant came to the front door of the bar, called
Mr. Griffin a derogatory name, and demanded that he come outside. See
Commonwealth v. Carroll, No. 3231 EDA 2010 (Pa.Super. filed 3/28/12)
(unpublished memorandum). Mr. Griffin complied and, once he was outside,
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* Former Justice specially assigned to the Superior Court.
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Appellant struck him with brass knuckles. See id. Mr. Griffin suffered serious
injury from the attack, and a jury convicted Appellant of aggravated assault
and simple assault. The trial court sentenced Appellant to an aggregate of
ten years to twenty years in prison.
Appellant filed a counseled direct appeal contending the trial court erred
in permitting a police officer to testify concerning the content of two radio calls
received on January 4, 2009, and the prosecutor committed misconduct
during closing arguments. Rejecting Appellant’s issues, this Court affirmed
the judgment of sentence on March 28, 2012. See id.
Thereafter, Appellant did not file a petition for allowance of appeal with
our Supreme Court; however, he filed a timely, pro se PCRA petition. The
PCRA court appointed counsel, who filed a motion to withdraw his
representation and a Turner/Finley1 no-merit letter. By order entered on
September 23, 2016, the PCRA court provided Appellant with notice of its
intent to dismiss Appellant’s PCRA petition.
On December 15, 2016, Appellant filed a pro se response to counsel’s
Turner/Finley no-merit letter, as well as the PCRA court’s notice of intent to
dismiss. By order entered on January 25, 2017, the PCRA court dismissed
Appellant’s PCRA petition,2 and this timely, pro se appeal followed.
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1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc.)
2 The PCRA court also filed an order granting counsel’s motion to withdraw.
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On March 27, 2017, the PCRA court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). The trial court’s order complied fully with
Pa.R.A.P. 1925. Specifically, the order informed Appellant that he was
required to file his concise statement within twenty-one days, that he was
required to file a copy and serve a copy of the statement on the trial judge,
and that the failure to comply with the order would result in waiver of issues
on appeal. The concise statement order was docketed, and a notation on the
docket indicates that the order was served on Appellant via first class mail on
March 27, 2017.
Thereafter, on June 27, 2017, Appellant filed a pro se Rule 1925(b)
Statement,3 in which he set forth the following (verbatim):
COMES NOW, [Appellant] in the above captioned appeal,
who in compliance with the Order of the Honorable Michael E.
Erdos dated March 27, 2017, hereby provides the following
statement of matters complained of on appeal with respect to the
PCRA court’s denial of the PCRA petition on January 25, 2017.
1. With holding [sic] exculpatory evidence
2. The courts denied Defendant his right to speedy
trial (18 months for trial) et al.
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3 Although Appellant’s Rule 1925(b) statement was entered on the docket on
June 28, 2017, we deem it to have been filed on June 27, 2017, when
Appellant handed it to prison officials for mailing. See Commonwealth v.
Wilson, 911 A.2d 942, 944 n.2 (Pa.Super. 2006) (noting that pursuant to the
prisoner mailbox rule, a document is deemed filed when placed in the hands
of prison authorities for mailing).
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Appellant’s Pro Se Rule 1925(b) Statement, filed 6/27/17. On August 29,
2017, the PCRA court filed a Pa.R.A.P. 1925(a) opinion in which it declined to
address the “issues” raised in Appellant’s Rule 1925(b) statement and,
instead, indicated that Appellant waived his issues for appellate review.
On appeal, in his appellate brief, Appellant sets forth the following issues
in his Statement of Questions Involved (verbatim):
1. Did the PCRA Court err in concluding that [Appellant’s]
previously unlitigated issues in his petition was [sic] waived
because he raised issues under the rubric of ineffective
assistance of counsel?
2. Whether the PCRA Court erred in finding [Appellant’s] petition
did not meet the standards of pleadings drafted by lawyers that
the claims of ineffective assistance of counsel were not
cognizable?
3. Was PCRA Counsel ineffective by failing to argue trial counsel’s
ineffectiveness in neglecting to assert that [Appellant’s] Sixth
Amendment right to Counsel and his corresponding State
Constitutional right to Counsel were violated?
4. Was [Appellant] abandoned by PCRA Counsel when he failed to
amend [the] petition and file Appellant Brief realecting [sic] to
assert that [Appellant’s] Sixth Amendment right to Counsel
were violated?
Appellant’s Pro Se Brief at 3.
Initially, we address the Commonwealth’s argument that Appellant has
waived his issues for appellate review. In general, issues raised in an untimely
Pa.R.A.P. 1925(b) statement are waived. Commonwealth v. Castillo, 585
Pa. 395, 888 A.2d 775, 776 (2005). When a criminal defendant is represented
by counsel, counsel’s failure to file a timely Pa.R.A.P. 1925(b) statement
constitutes ineffective assistance per se. Commonwealth v. Thompson, 39
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A.3d 335, 340, n.11 (Pa.Super. 2012). The remedy for such ineffectiveness
is remand to the trial court, either for the filing of a Rule 1925(b) statement
nunc pro tunc or the filing of a Rule 1925(a) opinion addressing the issues
raised in an untimely 1925(b) statement. See Pa.R.A.P.1925(c)(3);
Thompson, supra.
However, Pa.R.A.P. 1925 makes no such allowance when (as here) the
criminal defendant represents himself on appeal pro se. In general, a pro se
defendant’s failure to file a timely Pa.R.A.P. 1925(b) statement in a PCRA
appeal constitutes waiver of all issues.4 See Commonwealth v. Butler, 571
Pa. 441, 812 A.2d 631, 634 (2002) (holding PCRA defendant’s failure to
comply with order to file Pa.R.A.P.1925(b) statement resulted in automatic
waiver of any issues he may have raised on appeal). By filing an untimely
Pa.R.A.P. 1925(b) statement pro se, Appellant has waived his issues on appeal
in the case sub judice.5
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4 Issues relating to the legality of the defendant’s sentence constitute an
exception to the waiver rule. Commonwealth v. Orellana, 86 A.3d 877,
883 n.7 (Pa.Super. 2014) (citation omitted) (Superior Court “is endowed with
the ability to consider an issue of illegality of sentence sua sponte”). However,
in the case sub judice, Appellant has not presented legality of sentencing
claims.
5 As indicated supra, the PCRA court’s Rule 1925(b) order complied fully with
the requirements of Rule 1925. See In re L.M., 923 A.2d 505, 509-10
(Pa.Super. 2007) (holding that the “strict application of the bright line rule in
[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1990),] necessitates
strict interpretation of the rules regarding notice of Rule 1925(b) orders.”).
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Additionally, as the Commonwealth notes, Appellant’s issues are further
waived as his Rule 1925(b) statement is vague and does not reasonably
suggest any of the issues, which he presented in his appellate brief. See
Pa.R.A.P. 1925(b)(4)(ii), (vii).
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/18
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