J-S17009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

WARREN EARL YERGER,

                          Appellant                  No. 2119 EDA 2018


             Appeal from the PCRA Order Entered June 12, 2018
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0002650-2013


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 05, 2019

      Appellant, Warren Earl Yerger, appeals from the order dismissing his

timely petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546.     As Appellant’s de facto notice of appeal from that

order is untimely, we are compelled to quash his appeal.

      On December 22, 2014, a jury convicted Appellant on 158 counts related

to the sexual abuse of four child victims and, on June 17, 2015, the trial court

sentenced him to an aggregate term of 339-690 years’ incarceration.

Appellant filed a timely notice of appeal from his judgment of sentence. This

Court affirmed, and our Supreme Court denied further review.               See

Commonwealth v. Yerger, 168 A.3d 319 (Pa. Super. 2017) (unpublished

memorandum), aff’d, 170 A.3d 1020 (Pa. 2017).
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       On October 6, 2017, Appellant filed a timely, pro se PCRA petition (“the

Petition”). The PCRA court appointed PCRA counsel, who subsequently filed a

Turner/Finley1 no-merit letter and a motion to withdraw as Appellant’s

counsel. Appellant filed a response to counsel’s no-merit letter, and counsel

then filed another no-merit letter addressing the matters contained in

Appellant’s response. On May 11, 2018, the PCRA court issued a notice of its

intent to dismiss the Petition without a hearing pursuant to Pa.R.Crim.P. 907.

Appellant did not file a timely response thereto. The PCRA court dismissed

the Petition and granted counsel’s motion to withdraw on June 12, 2018.

       Appellant filed an untimely, pro se, de facto notice of appeal on July 16,

2018.2,3    He filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on




____________________________________________


1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 In fact, Appellant filed, pro se, a document entitled “Reply to Dismissal of
[PCRA] Clerk of Courts” on that date, which the PCRA court properly construed
as a notice of appeal, as it clearly demonstrated Appellant’s intent to challenge
the denial of the Petition. See Order, 7/24/18, at 1.

3 As the order denying PCRA relief was issued on June 12, 2018, Appellant
had until July 12, 2018 to file a timely notice of appeal. Pa.R.A.P. 903(a)
(“The notice of appeal … shall be filed within 30 days after the entry of the
order from which the appeal is taken.”). Appellant did not file his notice of
appeal until July 16, 2018, rendering it untimely on its face. We note that the
order denying PCRA relief clearly instructed Appellant that he had 30 days
from the date of that order to appeal to the Superior Court.




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August 16, 2018, and the PCRA court issued its Rule 1925(a) opinion on

August 21, 2018.

      On July 31, 2018, this Court issued a rule to show cause why the appeal

should not be quashed as untimely filed. Order, 7/31/18, at 1. Appellant was

afforded ten days to respond, but he failed to do so. On September 13, 2018,

this Court issued an order indicating that the issue raised in the rule to show

cause—the apparent untimeliness of Appellant’s notice of appeal—would be

deferred to the panel for consideration.

      In his brief, Appellant presents two questions for our review; however,

we must first address the apparent untimeliness of his notice of appeal, as we

“lack jurisdiction to consider untimely appeals, and we may raise such

jurisdictional issues sua sponte.”   Commonwealth v. Capaldi, 112 A.3d

1242, 1244 (Pa. Super. 2015).

      Appellant’s notice of appeal is facially untimely. See footnote 3, supra.

However, we recognize that Appellant is acting pro se, and is incarcerated.

Under the ‘prisoner mailbox rule,’ an appeal by a pro se prisoner is deemed

filed on the date the prisoner deposits the appeal with prison authorities or

places it in a prison mailbox, though the appeal is actually received after the

deadline for filing an appeal. See Commonwealth v. Chambers, 35 A.3d

34, 38 (Pa. Super. 2011). “Pursuant to that rule, we are inclined to accept

any reasonably verifiable evidence of the date that the prisoner deposits the

appeal with the prison authorities.” Commonwealth v. Perez, 799 A.2d 848,

851 (Pa. Super. 2002) (cleaned up).

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      Here, however, Appellant has not provided any such documentation for

our review in response to our rule to show cause order or in his brief, and the

certified record contains no certificates of mailing, postal receipts, or any other

documentation indicating when Appellant’s de facto notice of appeal was

deposited with prison authorities. Although that de facto notice of appeal is

self-dated on July 7, 2018, that does not adequately demonstrate that

Appellant mailed it from prison on that date, it merely suggests that the date

on which the document was written. As Appellant makes no attempt to argue

that we have jurisdiction to consider his claims, despite the facial untimeliness

of his notice of appeal, we are compelled to quash. See Capaldi, supra.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/19




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