J-S23013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC FUEHRER :
:
Appellant : No. 2670 EDA 2017
Appeal from the PCRA Order July 25, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007839-2013
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: Filed July 20, 2018
Appellant, Eric Fuehrer, appeals pro se from the order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The PCRA court summarized the history of this case as follows:
[Appellant] was arrested and charged for crimes which
occurred on October 2, 2013. [Appellant] and Mr. Dunn, his co-
defendant, brutally assaulted Christopher Thomas on the streets
of Norristown, PA. Thomas had multiple facial fractures and
missing teeth. He was flown to Jefferson Medical Center for
treatment. At trial, the evidence established that Deborah
Thomas was at her daughter’s house, and Christopher Thomas,
her brother, left the same house to get a cigarette from a car.
She was unable to see the initial attack, but after hearing a
commotion, she went to the window and saw Mr. Dunn kicking her
brother while he lay on the ground. She stated that [Appellant]
was in a nearby car. Ms. Thomas had also been approached a few
days prior to the assault by [Appellant] to sell drugs for him. She
refused. She further testified that she saw [Appellant] arrange to
have the owner whose car was doused in blood from the attack
paid off to stay quiet.
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* Former Justice specially assigned to the Superior Court.
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Mr. Thomas testified that both defendants assaulted him
which was corroborated by Ms. Nixon who saw two people kicking
the victim. Finally, Mako Henderson, the victim’s nephew,
testified that [Appellant] had asked him to sell drugs. There were
text messages presented, where [Appellant] texted Mako
Henderson that “I told u I got love for u like a brother. But it’s a
green light for the rest of your team and its out of. My hands. :(
(sic).” Mr. Henderson testified that [Appellant] had tried to recruit
him several times to sell drugs, and after receiving this text
message, he got news that his Uncle Christopher Thomas had
been attacked.
Tanea Jones testified and claimed the victim initiated the
fight. However, she initially told police that neither defendant was
involved, statements corroborated by an audio recording from
that night. She also testified that she made the initial-statement
to protect the defendants. Her statements were contradictory,
and incredible. The Commonwealth alleged that her testimony
had been corrupted. Eric Dunn, the co-defendant, testified that
Thomas made a comment to him and took a swing at him.
Thereafter, Dunn claimed to have punched Thomas several times
in defense before he claimed [Appellant] pulled him off Thomas.
After a trial by jury, [Appellant] was found guilty of
Aggravated Assault, Conspiracy-Aggravated Assault, and Simple
Assault. [On June 29, 2015, Appellant] received an aggregate
sentence of 11-22 years’ incarceration followed by 5 years’ of
probation. An appeal was filed, and [on October 3, 2016,] this
[c]ourt’s decision was affirmed. [Commonwealth v. Fuehrer,
159 A.3d 32 (Pa. Super. 2016). Appellant] filed a Petition for
Allowance of Appeal with the Pennsylvania Supreme Court as well
as a PCRA [petition]. The PCRA petition was deferred pending the
outcome of the Petition for Allowance of Appeal. [Appellant] then
requested that the Allowance of Appeal be withdrawn. This [c]ourt
ordered Patrick McMenamin, Esquire, to review the PCRA petition.
On June 23, 2017, counsel filed a Finley No Merit Letter [and a
request to withdraw]. This [c]ourt provided its Notice of Intent to
Dismiss on July 5, 2017,[1] and it’s [sic] Dismissal of the PCRA
Petition following [Appellant’s] response on July 25, 2017.
____________________________________________
1 Also on that date, the PCRA court granted PCRA counsel’s request to
withdraw.
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On August 10, 2017, [Appellant] filed a timely Notice of
Appeal.
Trial Court Opinion, 9/25/17, at 1-3.
The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement.
The PCRA court docket reflects that Appellant failed to file the statement as
directed. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant presents the following issues for our review, which we
reproduce verbatim:
1. Was trial counsel ineffective when he failed to request a limiting
instruction regarding the purpose which evidence of other crimes
had been admitted?
2. Was trial counsel ineffective when he failed to request a charge
pursuant to Commonwealth v. Kloiber for Ms. Brenda Nikone
testimony?
3. Was trial counsel ineffective when he failed to impeach Deborah
Thomas, Christopher Thomas and Mako Henderson, the
Commonwealth’s key witnesses, by bringing out on cross-
examination that each had a particular reason to be biased or
evngefull [sic] against Petitioner, arising from events that
preceded the incident between Mr.Dunn and Mr. Thomas?
4. Was trial counsel ineffective when he failed to object when
Deborah Thomas testified to alleged statements Ms. Jennifer told
Deborah Thomas Petitioner made to her?
5. Was trial counsel ineffective for not objecting to the illegal
sentence.
6. Was Direct Appeal Counsel ineffective for failing to file
Petitioner's Brief on time, leading to petitioner’s Direct Appeal to
be Dismissed for failure to file brief with the Superior Court? See
Attached Appendix “C”
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7 Was trial counsel ineffective for failure to investigate and call
eye witnesses. See Appendix “D”
Appellant’s Brief at 3.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
We must first address the consequences of Appellant’s failure to file the
court-ordered Pa.R.A.P. 1925(b) statement.2 Rule 1925(b)(4)(vii) directs that
____________________________________________
2 The PCRA court’s order filed on August 16, 2017, which directed Appellant
to file a Pa.R.A.P. 1925(b) statement, provides as follows:
AND NOW, this 16th day of August, 2017, upon consideration of
the instant appeal filed on August 15, 2017, Appellant is directed
to file of record in this [c]ourt a concise statement of the errors
complained of on the appeal (“Statement”). The Statement shall
be filed upon the docket 21 days after the date this Order is filed
upon the docket. The Statement shall be served upon the
undersigned Judge pursuant to Pa.R.A.P. 1925(b)(1). Appellant
is notified that issues shall be deemed waived if not properly
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“[i]ssues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(vii).
In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), our Supreme Court
established the bright-line rule that “in 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 Rule
1925. Any issues not raised in a 1925(b) statement will be deemed waived.”
Id. at 309; see also Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)
(Pa.R.A.P. 1925 “obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered.”). Furthermore, “the courts lack the authority
to countenance deviations from the Rule’s terms; [and] the Rule’s provisions
are not subject to ad hoc exceptions or selective enforcement[.]” Hill, 16
A.3d at 494.
Our review of the record reflects that on August 16, 2017, the PCRA
court entered an order directing Appellant to file a Pa.R.A.P. 1925(b)
statement within twenty-one days. The record further reveals that Appellant
did not file a Pa.R.A.P. 1925(b) statement as directed. As the PCRA court
aptly stated in its Pa.R.A.P. 1925(a) opinion, “[The August 16, 2017] order
gave [Appellant] 21 days to provide a concise statement; otherwise, his issues
____________________________________________
included in the Statement timely filed and served pursuant to
Pa.R.A.P. 1925(b).
PCRA Court Order, 8/16/17, at 1.
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would be waived. No concise statement has been provided as of the date of
this opinion. . . . [Appellant] . . . has failed to provide the requested
Statement of Errors (Concise Statement). Accordingly, all issues have been
waived.” PCRA Court Opinion, 9/25/17, at 3. Consequently, by failing to file
the court-ordered Pa.R.A.P. 1925(b) statement, Appellant waived all of the
issues he raises in this appeal. Lord, 719 A.2d at 309.
In addition, we are mindful that in 2007, our Supreme Court amended
Rule 1925 and added subsection (c)(3), which directs us to remand for the
filing of a statement nunc pro tunc if we are convinced that counsel has been
per se ineffective. Pursuant to this provision, this Court remands where a
counseled appellant in a criminal case fails to file a Rule 1925(b) statement
or an untimely statement that amounts to per se ineffectiveness. See
Commonwealth v. Scott, 952 A.2d 1190 (Pa. Super. 2008) (holding that
counsel’s failure to file Rule 1925(b) statement constitutes per se
ineffectiveness requiring a remand).
This rule providing for a remand pursuant to Pa.R.A.P. 1925(c)(3) is not
applicable in this matter. Because he is pro se, Appellant cannot assert his
own ineffectiveness. See Commonwealth v. Fletcher, 986 A.2d 759, 773
(Pa. 2009) (“The law prohibits a defendant who chooses to represent himself
from alleging his own ineffectiveness”) (citing Faretta v. California, 422 U.S.
806, 834 n.46 (1975)). Indeed, our Supreme Court has stated that a pro se
defendant “may not rely upon his own lack of expertise as a ground for relief.”
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Commonwealth v. Bryant, 855 A.2d 726, 737 (Pa. 2004). Accordingly,
Appellant’s failure to file a Rule 1925(b) statement waives all claims. See
Pa.R.A.P. 1925(b)(4)(vii) (Issues not included in the Rule 1925(b) statement
or not raised in accordance with the provisions of this paragraph (b)(4) are
waived).
Moreover, we note that, in order to excuse his failure to properly file the
Pa.R.A.P. 1925(b) statement as ordered, Appellant has attempted to invoke
the prisoner mailbox rule. Appellant’s Brief at 10-11. Specifically, Appellant,
who is incarcerated, contends that he placed his Pa.R.A.P. 1925(b) statement
in the institutional mailbox and “[w]hat occurred after it was in their
possession was a breakdown in the courts [sic] operation or obstruction by
state officials.” Id. at 11. Thus, Appellant has ostensibly employed the
prisoner mailbox rule.
“Under the prisoner mailbox rule, we deem a pro se document filed on
the date it is placed in the hands of prison authorities for mailing.”
Commonwealth v. Brandon, 51 A.3d 231, 234 n.5 (Pa. Super. 2012)
(citation omitted). See Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa.
Super. 2006) (recognizing that under the “prisoner mailbox rule,” a document
is deemed filed when placed in the hands of prison authorities for mailing).
However, it is incumbent upon the incarcerated pro se litigant to “supply
sufficient proof of the date of mailing[.]” Thomas v. Elash, 781 A.2d 170,
176 (Pa. Super. 2001). Under the rule, “we are inclined to accept any
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reasonably verifiable evidence of the date that the prisoner deposits the [pro
se document] with the prison authorities. . . .” Commonwealth v. Perez,
799 A.2d 848, 851 (Pa. Super. 2002) (quoting Commonwealth v. Jones,
700 A.2d 423, 426 (Pa. 1997)).
In Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997), our Supreme
Court, in discussing the prisoner mailbox rule, provided a non-exhaustive list
of documents that can aid in establishing the date of mailing under the
prisoner mailbox rule:
Next, we turn to the type of evidence a pro se prisoner may
present to prove that he mailed the appeal within the deadline.
As provided in [Pa.R.A.P.] 1514, a Postal Form 3817, Certificate
of Mailing, constitutes proof of the date of mailing. In Smith [v.
Pennsylvania Board of Probation and Parole, 546 Pa. 115,
683 A.2d 278 (1996)], we said that the “Cash Slip” that the prison
authorities gave Smith noting both the deduction from his account
for the mailing to the prothonotary and the date of the mailing,
would also be sufficient evidence. We further stated in Smith that
an affidavit attesting to the date of deposit with the prison officials
likewise could be considered. This Court has also accepted
evidence of internal operating procedures regarding mail delivery
in both the prison and the Commonwealth Court, and the delivery
route of the mail, to decide the last possible date on which the
appellant could have mailed an appeal based on the date that the
prothonotary received it. Miller v. Unemployment
Compensation Board of Review, 505 Pa. 8, 476 A.2d 364
(1984). Proof is not limited to the above examples and we are
inclined to accept any reasonably verifiable evidence of the date
that the prisoner deposits the appeal with the prison authorities.
Jones, 700 A.2d at 426.
We observe that Appellant has appended to his appellate brief an
unsigned and undated copy of a letter from himself to the PCRA court, in care
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of the Clerk of Courts in Montgomery County. Appellant’s Brief at Appendix
“B.” The complete text of the letter follows:
September , 2017
Mr. Garrett D. Page
Court of Common Pleas
Norristown, PA 19404-0311
Re: Commonwealth v. Eric Fuehrer
No. 7839-2013
Dear Judge Page:
A 1925(b) motion pursuant to Pa.R.A.P. was submitted in
the above entitled criminal matter.
To date, I have not received a time stamped copy of same
nor Your Honor’s opinion regarding the issues raised therein.
Kindly provide a copy of both or, in the []alternative, direct
the Office of the Clerk to provide the above documents.
I look forward to hearing from you.
Very truly yours,
Eric Fuehrer
[**] Overlook Drive
LaBelle, PA 15450
EF/
Clerk of Court
cc:
Appellant’s Brief at Appendix “B” at 1.
We observe that the date at the top of the letter states: “September ,
2017.” Id. In addition, the signature line contains Appellant’s typed name,
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but no written signature. Id. Further, our review of the certified record
reflects that this letter, addressed to the trial court, was never docketed as
having been received by the trial court. Also, there is no copy of the letter in
the certified record. More significantly, Appellant’s letter contains no
indication of the date that the Pa.R.A.P. 1925(b) statement was allegedly
deposited with prison officials. Although we will accept reasonable, verifiable
evidence of the date that a prisoner deposits the pro se document with prison
authorities, a date of the alleged deposit with those authorities is necessary
to prove a date of mailing and to trigger the prisoner mailbox rule. Indeed, it
is incumbent upon the incarcerated pro se litigant to supply sufficient proof of
the date of mailing. Thomas, 781 A.2d at 176. Because Appellant has failed
to provide evidence that the Pa.R.A.P. 1925(b) statement was allegedly
deposited with prison authorities, his attempt to invoke the prisoner mailbox
rule fails. Hence, no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
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