J-S19014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH KINARD                               :
                                               :
                       Appellant               :   No. 1645 EDA 2018

                   Appeal from the PCRA Order April 24, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0013967-2014


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 08, 2019

       Keith Kinard, appeals pro se from the order, entered in the Court of

Common Pleas of Philadelphia County, dismissing his petition filed pursuant

to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After

careful review, we affirm.1

       The PCRA court set forth the underlying facts of this matter as follows:

       On November 11, 2014, [Kinard] was arrested and charged with
       possession of a firearm prohibited, firearms not to be carried
       without a license, and carrying firearms public in Philadelphia. On
       June 26, 2015, at the conclusion of his jury trial, [Kinard] was
       found guilty on all charges. On September 3, 2015, [Kinard] was
       sentenced to five to ten years’ confinement on the charges of
       possession of a firearm prohibited, three to seven years’
       [confinement] on the charge of firearms not to be carried without
____________________________________________


1 The Commonwealth has not filed a timely brief, filing its brief on April 3,
2019 — 46 days after the deadline for the third and final extension granted
by this Court. We deny the Commonwealth’s fourth application for extension
of time to file a brief.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      license, and one to two years’ [confinement] on the charge of
      carrying firearms public in Philadelphia[,] for an aggregate
      sentence of nine to nineteen years’ incarceration. Due to three
      outbursts during the sentencing hearing, [Kinard] was also found
      in Criminal Contempt and sentenced to three consecutive periods
      of confinement of 60 to 120 days.

PCRA Court Opinion, 8/15/18, at 1-2.

      After his sentencing, Kinard filed a timely notice of appeal with this Court

and we affirmed his judgment of sentence on March 28, 2017.                  See

Commonwealth v. Kinard, No. 3019 EDA 2015 (Pa. Super. filed Mar. 28,

2017) (unpublished memorandum).             Kinard timely filed a petition for

allowance of appeal with the Pennsylvania Supreme Court, which it denied on

September 20, 2017. The next day, September 21, 2017, Kinard timely filed

a pro se PCRA petition; the court appointed counsel who filed a “no-merit”

letter and petition to withdraw as counsel on February 13, 2018, pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Kinard received notice

of the court’s intent to dismiss his petition without a hearing pursuant to

Pa.R.Crim.P. 907 on February 26, 2018. Thereafter, Kinard twice responded

to counsel’s “no-merit” letter on March 8, 2018, and March 16, 2018. The

PCRA court dismissed Kinard’s petition without a hearing on April 24, 2018,

and granted counsel’s petition to withdraw. The court’s proof of service shows

the dismissal order was mailed to Kinard on April 26, 2018.




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       On May 29, 2018, Kinard filed this pro se appeal. Both Kinard and the

PCRA court complied with Pa.R.A.P. 1925. In its Rule 1925(a) opinion, the

PCRA court recommended we quash Kinard’s appeal as untimely.

       We must, therefore, address whether this appeal is properly before us.

In order to invoke appellate jurisdiction, Pennsylvania Rule of Appellate

Procedure requires that all “notice[s] 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); see also Commonwealth v. Nahavandian, 954 A.2d 625, 629 (Pa.

Super. 2008). Because this filing period is jurisdictional in nature, it must be

strictly construed and “may not be extended as a matter of indulgence or

grace.” Commonwealth v. Pena, 31 A.3d 704, 706 (Pa. Super. 2011).

       As noted above, the order dismissing Kinard’s PCRA petition was filed

on April 24, 2018; however, the PCRA court’s proof of service, included within

the certified record, shows the order dismissing Kinard’s petition was not

mailed, at the earliest, until April 26, 2018. Thus, Kinard’s May 29, 2018,

appeal was timely filed.2        See    Pa.R.A.P. 108(a)(1) (“[I]n computing any

period of time under these rules involving the date of entry of an order by a



____________________________________________


2 We observe that 30 days from April 26, 2018, was Saturday, May 26, 2018,
and that Monday, May 28, 2018, was Memorial Day. We have long recognized
that “whenever the last day of any such period shall fall on a Saturday or
Sunday, or on any day made a legal holiday . . . such day shall be omitted
from the computation.” 1 Pa.C.S.A. § 1908. Kinard consequently had until
Tuesday, May 29, 2018, to timely file his appeal.


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court or other government unit, the day of entry shall be the day the clerk of

the court or the office of the government unit mails or delivers copies of the

order to the parties[.]”); see also Commonwealth v. Gaines, 127 A.3d 15,

18 (Pa. Super. 2015) (en banc). Accordingly, we decline to quash Kinard’s

appeal as untimely.

      We, nonetheless, find ourselves unable to review Kinard’s largely

unintelligible brief. Even pro se appellants are required to submit briefs in

conformity, in all material respects, with the Pennsylvania Rules of Appellate

Procedure, as nearly as the circumstances of the particular case will permit.

Pa.R.A.P. 2101. This Court may “quash or dismiss an appeal if the appellant

fails to conform to the requirements set forth” in the Rules of Appellate

Procedure. Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003),

appeal denied, 879 A.2d 782 (Pa. 2005).

      We find that Kinard’s brief fails in numerous respects to conform with

our Rules of Appellate Procedure.        His brief contains no statement of

jurisdiction, no specification of the order or determination sought to be

reviewed, and no statement of the scope or standard of review. Pa.R.A.P.

2111(a)(1)-(3).   Additionally, Kinard does not properly develop any of his

purported claims by including any meaningful discussion of, or citation to, any

relevant legal authority. See Pa.R.A.P. 2119(b) (compels finding of waiver

“where an appellate brief fails to provide any discussion of a claim with citation




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to relevant authority or fails to develop the issue in any meaningful fashion

capable of review.”). Thus, we find Kinard’s claims are not reviewable.

       In reaching this decision, we must note that “[a]lthough this Court is

willing to liberally construe materials filed by a pro se litigant, pro se confers

no special benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d

496, 498 (Pa. Super. 2005). Instead, the pro se litigant must “assume the

risk that [his] lack of expertise and legal training will prove [his] undoing.”

Id.

       Since the defects in Kinard’s pro se brief are substantial and preclude

this Court from conducting any meaningful appellate review, we are

constrained to affirm the PCRA court’s order.3

       Order affirmed. Application for extension of time to file brief denied.




____________________________________________


3 Notwithstanding the fatal defects of Kinard’s appellate brief, we would find
his claims waived regardless. The issues we glean from Kinard’s brief
challenge the court’s denial of his motion to suppress based upon whether
officers had a legally sufficient basis for his stop and the evidence derived
therefrom. However, on direct appeal, Kinard brought only a claim of
prosecutorial misconduct and did not raise any suppression issues. Kinard
could have raised these claims on direct appeal but did not, and they are,
therefore, waived under the PCRA. 42 Pa.C.S.A. § 9554(b) (issue waived if
petitioner failed to raise issue and it could have been raised before trial, at
trial, on appeal, in habeas corpus proceeding or in prior proceeding under
PCRA); see also Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa.
2012).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/19




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