J-S61033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DAVID PHILLIP PIERGROSSI                 :
                                          :
                    Appellant             :   No. 499 EDA 2018

                Appeal from the PCRA Order January 9, 2018
           In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0005014-2012


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                            FILED APRIL 09, 2019

      Appellant, David Phillip Piergrossi, appeals pro se from the order

dismissing his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541–9546. Appellant failed to appeal within the

mandatory time limitation. Accordingly, we quash.

      The PCRA court aptly summarized the relevant history of the case as

follows.

      Following a two day jury trial, [Appellant] was convicted of Count
      1 -Robbery, [] Count 3 - Terroristic[] Threats,[] Count 4 -Theft By
      Unlawful Taking,[] Count 5 -Receiving Stolen Property,[] Count 6
      -Possessing an Instrument of Crime[] and Count 9 -Simple
      Assault[]. On May 5, 2015, [Appellant] received an aggregate
      sentence of 11-25 years to be served in a State Correctional
      Facility. [Appellant] did not file any post sentence motions.
      [Appellant] filed a direct appeal. The Superior Court affirmed the
      judg[]ment of sentence by Opinion dated May 11, 2016. On
      November 8, 2016, the Pennsylvania Supreme Court denied
      Defendant’s Petition for Allowance of Appeal. On July 21, 2017,
      the [Appellant] filed a pro se “Petition Under the Post Conviction
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     Collateral Relief Act (PCRA)” alleging a constitutional violation
     such that no reliable adjudication of guilt or innocence could have
     taken place and that he received ineffective assistance of counsel.
     Robert Adshead, Esquire, was subsequently appointed to serve as
     PCRA counsel pursuant to an Order issued by [the PCRA] Court on
     July 26, 2017. In a “no merit” letter dated October 25, 2017, and
     prepared in accordance with Commonwealth v. Finley, 550 A.2d
     213 (Pa. Super. 1988), PCRA counsel advised [Appellant] that, in
     his opinion, [Appellant]is not eligible for the PCRA 142 Pa.C.S.[A.]
     § 9541 et seq. relief alleged in his Petition. By Order of November
     22, 2017, [the PCRA] Court notified the [Appellant] of its intention
     to dismiss the petition without a hearing. On December 17, 2018,
     the [Appellant]responded to the dismissal notice. On January 9,
     2018, [the PCRA] Court issued an Order dismissing the petition
     without a hearing. The [Appellant] filed a Notice of Appeal, which
     was docketed February 13, 2018. The envelope accompanying
     the Notice indicates it was mailed on February 9, 2018.

PCRA Court Opinion, 6/14/18, at 1-3 (footnotes omitted).

     Appellant raises four questions on appeal, which we reproduce

verbatim:

     I.    Was the Appellant ever properly arraigned on this matter in
     that:

               a. The Bill of information was not signed or filed by
                  the Commonwealth at the time of the Arraignment,
                  and
               b. The Appellant was allowed to proceed pro se
                  without the [c]ourt conducting a colloquy to
                  determine if the Appellant could represent himself
                  at the arraignment?


     II.  Was Counsel ineffective for allowing arraignment to proceed
     without objecting to proceedings in that he

                  As Mr. Nestor, Esq. failed to object to proceedings
                  [and] ask for arraignment to be rescheduled.

     III.   Was counsel ineffective in that she


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              a.     Carol Sweeney did not challenge formal
              [arraignment’s] validity at omnibus pre-trial motion[?]

        [IV]. Was counsel ineffective in that he

              a.   John McMahon, Esq. did not challenge validity of
              formal arraignment[ ] From Jan. 24, 2013 till Dec. 2014
              when he was fired.

Appellant’s Brief, at 1-2.1

        Before we may address the merits of Appellant’s issues, we must

address the timeliness of this appeal.           Pennsylvania Rule of Appellate

Procedure 903(a) provides that “the 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).

        It is well-settled that:

        Time limitations for taking appeals are strictly construed and
        cannot be extended as a matter of grace. This Court can raise the
        matter sua sponte, as the issue is one of jurisdiction to entertain
        the appeal. Absent extraordinary circumstances, this Court has
        no jurisdiction to entertain an untimely appeal.

Commonwealth v. Burks, 102 A.3d 497, 500 (Pa.Super.2014) (citations

omitted).

        Here, the record confirms that Appellant’s notice of appeal was

postmarked February 9, 2018, the 31st day after the entry of the order


____________________________________________


1   We note that Appellant’s brief is inconsistently paginated.




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dismissing his petition. See 1 Pa.C.S.A. § 1908.2      However, it contains no

evidence of extraordinary circumstances such as a court holiday or closing or

a breakdown in the operations of the court, which might excuse Appellant’s

untimely filing. Based on this record, because Appellant did not timely file his

notice of appeal, the PCRA court requests that we quash this appeal. See

PCRA Ct. Op., at unnumbered page 1, and 3. Appellant does not address the

issue of quashal in his brief. This Court lacks jurisdiction to review the merits

of his other issues. See Pa.R.A.P. 903(a); see also Burks, 102 A.3d at 500.

Accordingly, we quash.

       Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/19




____________________________________________


2  Therefore, even applying the prisoner mailbox rule, Appellant’s notice was
filed beyond the jurisdictional time limit. See Commonwealth v. Jones, 700
A.2d 423, 426 (Pa. 1997).



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