J-S69008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERRY LIGHTY

                            Appellant                 No. 302 MDA 2016


                 Appeal from the PCRA Order January 28, 2016
               In the Court of Common Pleas of Lancaster County
                Criminal Division at No: CP-36-CR-0000893-2011


BEFORE: STABILE, DUBOW, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 22, 2016

        Appellant, Terry Lighty, appeals pro se from the January 28, 2016

order entered in the Court of Common Pleas of Lancaster County (“PCRA

court”), denying his petition for collateral relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        This Court previously summarized the procedural and factual history of

the matter as follows.

                    Appellant was charged and convicted of one count of
              burglary of an occupied structure and one count of theft by
              unlawful taking. These charges stemmed from Appellant’s
              unauthorized entry into an occupied residence at 136
              North Mary Street in Lancaster, Pennsylvania on January
              18, 2011. The victim testified that she awoke to find
              Appellant in her house and that he told her that he was
              going to take her television. Appellant also warned the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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          victim not to call the police because he had “friends”
          downstairs and he knew where she lived.

                The victim’s neighbor, Brian Manning, noticed
          Appellant leaving the residence carrying some of the
          victim’s property. Mr. Manning called 911 immediately
          after witnessing this and provided the police with a
          detailed description of Appellant’s clothing and physical
          characteristics. A fresh snow was falling on the night of
          the burglary. Sergeant Philip Berkheiser tracked a single
          set of boot prints leading away from the crime scene down
          Mill Avenue, until they reached 500 West Orange Street,
          where he noticed other sets of footprints in the snow.
          While tracking these prints, Sergeant Berkheiser located
          an abandoned box which contained an air purifier and palm
          sander owned by the victim.

                After Mr. Manning provided him with the suspect’s
          description as a “black male … wearing a gray hoody, gray
          pants, a blue vest, and gloves,” Officer Ben Bradley sent
          out a police radio to call all officers at 1:00 a.m.. Sergeant
          William Hickey received this call and, just before 2:00
          a.m., he observed a black male who matched Mr.
          Manning’s description, walking through the parking lot
          where his patrol vehicle was parked and heading toward
          the convenience store across the street. Officer Chris
          Genetti arrived to back up Sergeant Hickey and the two
          approached Appellant and identified themselves. Sergeant
          Hickey explained to Appellant that a burglary had just
          occurred at a nearby house and that he matched the
          suspect’s description. He then asked Appellant if he would
          step outside the store so that he could ask him some
          questions about the incident.

                During this period of questioning, Sergeant Hickey
          learned Appellant’s identity and that he claimed to be
          staying at 602 West King Street, Apartment 5, with a
          person named “B” or “Bob.” Appellant was patted-down
          for weapons, and police officers took photographs of his
          clothing and boots. Sergeant Hickey contacted the officers
          who had been at the crime scene and asked if they could
          bring anyone who could identify the suspect to the
          convenience store. Mr. Manning was brought to the store
          and was allowed to view Appellant from inside a police


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          vehicle. He identified Appellant’s clothing as matching that
          of the suspect but was not able to conclusively state that
          Appellant was the person who he observed at the crime
          scene.

                Appellant’s photograph was later included in a photo
          array shown to Willy Robertson who occupied an
          apartment in the same building in which Appellant claimed
          that he was staying. Mr. Robertson identified Appellant as
          the person who had brought him a television the same
          night of the burglary. This television was recovered from
          Mr. Robertson’s apartment by police and was identified as
          the same one stolen from the victim.

                 Appellant’s trial counsel failed to file a suppression
          motion seeking to preclude the introduction of evidence
          obtained during Appellant’s Terry stop outside the
          convenience store. Consequently Appellant’s statements,
          items seized, and the photographs taken from this
          encounter with the police were later offered into evidence
          at trial.

                 A jury convicted Appellant of burglary of an occupied
          structure and theft by unlawful taking. The trial court
          imposed the mandatory minimum sentence of twenty-five
          to fifty years imprisonment pursuant to 42 Pa.C.S. §
          9714(a)(2) because Appellant had a prior record that
          included at least two crimes of violence. We affirmed the
          judgment of sentence on August 14, 2012, and our
          Supreme Court denied allowance of appeal on April 16,
          2013.

                On December 24, 2013, Appellant filed a timely pro
          se PCRA petition. Appointed counsel filed an amended
          PCRA petition that alleged Appellant’s trial counsel
          provided ineffective assistance for failing to file an omnibus
          pretrial motion seeking to suppress the evidence derived
          from his detention outside of the convenience store and
          the search of his person. Appellant requested that the
          PCRA court vacate his sentence and remand the matter for
          a new trial without the allegedly tainted evidence.

                 An evidentiary hearing was held on Appellant’s PCRA
          petition on April 16, 2014.


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                  ...

                   The PCRA court denied relief on February 5, 2015, on
            the grounds that Appellant, “failed to demonstrate by a
            preponderance of the evidence that [counsel’s failure to
            file a] motion to suppress rises to the level of a claim of
            arguable merit,” because trial counsel’s testimony
            indicated that he had done the necessary investigation of
            Appellant’s interaction with the police before determining
            that there were no meritorious suppression issues.

Commonwealth v. Lighty, No. 297 MDA 2015, unpublished memorandum,

at 1-3 (Pa. Super filed Sep. 2, 2015) (internal citations omitted) (footnote

omitted). This Court affirmed the PCRA court’s finding that Appellant failed

to meet his burden; therefore, he was not entitled to relief. Id. at 6.

      On December 11, 2015, Appellant filed a second PCRA petition.       On

December 23, 2015, the PCRA court sent Appellant a notice pursuant to

Pa.R.Crim.P. 907 indicating its intent to dismiss the PCRA petition.      On

January 14, 2016, Appellant amended his second PCRA petition in response

to the PCRA court’s notice. On January 28, 2016, the PCRA court dismissed

Appellant’s PCRA petition.

      Appellant filed a timely notice of appeal on February 19, 2016.     On

March 1, 2016, the PCRA court directed Appellant to file a concise statement

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant failed to file a concise statement, and the PCRA court issued an

opinion on April 4, 2016.

      Appellant presents seven questions in his brief; however, this Court

must first address Appellant’s failure to file a concise statement of matters



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complained of on appeal.    See Appellant’s Brief at 7-16.     Pursuant to the

Rules of Appellate Procedure,

            [i]f the judge entering the order giving rise to the notice of
            appeal (“judge”) desires clarification of the errors
            complained of on appeal, the judge may enter the order
            directing the appellant to file of record in the trial court
            and serve on the judge a concise statement of the errors
            complained of on appeal.

Pa.R.A.P. 1925(b).     Furthermore, the Rules provide that “[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)(4)(vii).

“Waiver occurs when an appellant fails to file a Rule 1925 statement, but

only if the appellant is ‘ordered’ to file one.” Commonwealth v. Gonzalez,

840 A.2d 326, 328 (Pa. Super. 2003).

      In the matter sub judice, Appellant failed to file a concise statement of

matters complained of on appeal after the PCRA court ordered him to do so.

In his brief Appellant acknowledged receipt of the PCRA court’s order

directing him to file a concise statement. Appellant’s Brief at 7. Thus, it is

clear that Appellant received the order from the PCRA court directing him to

file a concise statement and he failed to comply.         Consequently, all of

Appellant’s claims are waived. See Pa.R.A.P. 1925(b)(4)(vii).




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




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