Opinion
J-S04043-17 No. 784 EDA 2016
03-17-2017
COMMONWEALTH OF PENNSYLVANIA v. LUCKENSON DESRIVIERES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 20, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006042-2012 BEFORE: SHOGAN, OTT and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Luckenson Desrivieres ("Appellant") appeals, pro se, from the order entered in the Court of Common Pleas of Montgomery County dismissing his first petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546 without a hearing. Because Appellant has filed an untimely notice of appeal to this Court, we quash.
The trial court's Pa.R.A.P. 1925(a) opinion provides an apt factual and procedural history of Appellant's case such that we need not reproduce it here. It is sufficient for present purposes to note that a jury found Appellant guilty of first-degree murder and third-degree murder, among other related offenses, and that his judgment of sentence of life imprisonment became final in May of 2015, 90 days after the Pennsylvania Supreme Court denied his Petition for Allowance of Appeal.
On June 9, 2015, Appellant filed, pro se, this, his first, PCRA petition alleging ineffective assistance of counsel and imposition of an illegal sentence. The court appointed counsel, who eventually filed a Turner / Finley "no-merit" letter and petition for leave to withdraw. On September 30, 2015, the PCRA court entered an order granting counsel's petition to withdraw and issuing Rule 907 notice of its intent to dismiss Appellant's PCRA petition without a hearing within 20 days of the order. On October 28, 2015, having received no response from Appellant, the court entered a final order dismissing the PCRA petition. It vacated this order the following day, however, upon learning that Appellant had filed his pro se response with the Montgomery County Clerk of Courts on October 27, 2015.
Ultimately discerning no merit to the pro se filing, the PCRA court issued its Order of November 20, 2015, dismissing Appellant's petition for the reasons expressed in its earlier Rule 907 Notice. In the same order, the court advised Appellant of his right to appeal, either pro se or through privately retained counsel, to this Court within thirty days of the date of the Order. The order also indicates that the court forwarded a copy by certified mail to Appellant at SCI Forest, PO Box 945, Marienville, PA 16239 on November 20, 2015. 111 days later, on March 10, 2016, Appellant filed with this Court his notice of appeal.
Both the order and service page appear in the certified record and are noted on the docket sheet.
Appellant presents three questions for our consideration:
I. WHETHER TRIAL COUNSEL'S PERFORMANCE FELL BELOW AN OBJECTIVE STANDARD OF REASONABLENESS AND THAT AND IF SO [SIC] DID THAT DEFICIENT PERFORMANCE PREJUDICE THE DEFENDANT?Appellant's brief at 2.
II. WHETHER THE DEFENDANT IN THIS CRIMINAL CASE HAS BEEN DEPRIVED OF DUE PROCESS OF LAW IF HIS CONVICTION IS FOUNDED IN WHOLE OR IN PART BY HIS INVOLUNTARY CONFESSION?
III. WHETHER COUNSEL'S FAILURE TO IMPEACH THE WITNESSES WITH PRIOR INCONSISTANCE [SIC] STATEMENTS WAS INEFFECTIVE ASSISTANCE OF COUNSEL?
Preliminarily, we sua sponte address the timeliness of this appeal, which is patently untimely. By our Order of April 6, 2016, we directed Appellant to show cause why his appeal should not be quashed as untimely. "[T]he timeliness of an appeal is jurisdictional and can be raised by this Court sua sponte." Morningstar v . Hoban , 819 A.2d 1191, 1196 (Pa.Super. 2003) (citations omitted). "A notice of appeal must be filed within thirty days of the disputed order[.]" Krankowski v. O'Neil , 928 A.2d 284, 285 (Pa.Super. 2007) (citing Pa.R.A.P. 903(a)).
A notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). While the Pennsylvania Rules of Appellate Procedure can be liberally construed, such construction is inapplicable to appeal periods. Pa.R.A.P. 105(b) ("the court may not enlarge the time for filing a notice of appeal ...."); see also Singer v. Delaware , L. & W.R. Co., 98 A. 1059, 1060 (Pa. 1916) (court cannot extend the time for taking an appeal as set forth in a statute). However, the official note to Rule 105 creates an exception to this general rule, stating: "[s]ubdivision (b) of this rule is not intended to affect the power of a court to grant relief in the case of fraud or breakdown in the processes of a court." Pa.R.A.P. 105, note; see also Commonwealth v. Patterson , 940 A.2d 493, 498-99 (Pa.Super. 2007) (determining that, where an administrative breakdown in the court system occurs, the untimely filing of a notice of appeal may be excused).
Also relevant to matters involving belated appeals is the prisoner mailbox rule, which "applies to all pro se legal filings by incarcerated litigants. As such, a legal document is deemed filed by an incarcerated litigant, proceeding pro se, on the date it is delivered to the proper prison authority or deposited in the prison mailbox." Thomas v. Elash , 781 A.2d 170, 176 (Pa.Super. 2001).
Here, Appellant invokes none of these potential justifications for extending the appeal period. Instead, he baldly asserts he was unable to file his appeal in a timely manner because prison officials subjected him to a "few lock downs," which, he claims, prevented him from completing legal work necessary to preparing his appeal. See Appellant's "Motion for Good Cause Shown," 4/25/2016. He neither contests the propriety of the "lock-downs" nor indicates how many days during the 30-day appeal period he spent in lock-down. Without even an allegation, let alone a developed contention, from Appellant that governmental wrongdoing or a breakdown in the appeal process prevented him from filing a timely appeal, there exists no extenuating circumstance justifying our enlargement of his appeal period. Accordingly, we quash the present appeal.
Were we to address Appellant's claims on the merits, we would note they are absent from Appellant's Pa.R.A.P. 1925(b) concise statement and are, therefore, waived. Commonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005) (holding any issues not raised in Rule 1925(b) statement are waived); Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998). To the extent Appellant's Rule 1925(b) statement complains "[t]he defendant is entitled to a new trial as a result of trial counsel ineffectiveness," we note that issues only generally raised are also waived. See Pa.R.A.P.1925(b)(4)(ii) ("The [1925(b) ] Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge."). A Rule 1925(b) Statement "which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no ... Statement at all." Lineberger v. Wyeth , 894 A.2d 141, 148 (Pa. Super. 2006). --------
Appeal Quashed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/17/2017