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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
ALAN PIERCE,                              :         No. 2008 MDA 2016
                                          :
                         Appellant        :


                Appeal from the PCRA Order, November 4, 2016,
                  in the Court of Common Pleas of York County
                Criminal Division at No. CP-67-CR-0000080-1974


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 06, 2017

        Alan Pierce, pro se, appeals the order of November 4, 2016, by the

Court of Common Pleas of York County that dismissed his second PCRA1

petition as untimely without a hearing. After careful review, we affirm.

        The factual history of this matter as recounted by the PCRA court is as

follows:

                     On May 24, 1974, [appellant] was found guilty
              of First Degree Murder.          On May 24, 1974,
              [appellant] was sentenced to life imprisonment
              without the possibility of parole. [Appellant] did not
              file an appeal with the Superior Court. Therefore,
              [u]nder the PCRA, [appellant’s] judgment of
              sentence became final on June 24, 197[4].[2]
              [Appellant] filed a PCRA petition on January 7, 1997,

1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
 The 30-day appeal period is extended one day because the 30th day fell on
Sunday, June 23, 1974. 1 Pa.C.S.A. § 1908.
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            which petition was denied by the Court of Common
            Pleas on December 31, 1997. [Appellant] then filed
            an appeal with the Superior Court. This appeal was
            denied by the Superior Court. [Appellant] filed the
            instant Petition, his second PCRA, on March 28,
            2016.

PCRA court opinion, 11/4/16 at 1.

      On October 3, 2016, pursuant to Pa.R.Crim.P. 907(1), the PCRA court

issued a notice of its intention to dismiss without a hearing. Appellant did

not respond to the notice. On November 4, 2016, the PCRA court dismissed

appellant’s petition.   Appellant filed a notice of appeal which was dated

November 28, 2016, but filed on December 6, 2016.3        On December 19,

2016, the PCRA court issued an order pursuant to Pa.R.A.P. 1925(b) and

directed appellant to file a concise statement of errors complained of on

appeal.

      On March 15, 2017, the PCRA court issued a statement pursuant to

Rule 1925(a) to the effect that appellant failed to respond to its Rule 1925

order and requested this court to dismiss the appeal.

                  In 1998, our Supreme Court held that “in order
            to preserve their claims for appellate review,
            Appellants must comply whenever the trial court
            orders them to file a Statement of Matters
            Complained of on Appeal pursuant to Rule 1925.”
            Commonwealth v. Lord, 553 Pa. 415, 719 A.2d
            306, 309 (1998). Subsequently, in Commonwealth
            v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), the

3
  Under the prisoner mailbox rule, a petition filed by a prisoner is deemed
“filed” on the date it is deposited with prison authorities for mailing.
Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997). Under this rule the
appeal was timely.


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            Supreme Court affirmed its holding in Lord, ruling
            that a failure to file a 1925(b) statement within
            14 days[Footnote 8] after entry of an order
            requesting the statement, regardless of the length of
            the delay, results in automatic waiver.

                    [Footnote    8]  Lord     and    Castillo
                    examined the application of the previous
                    version of Pa.R.A.P. 1925. Under that
                    version, when the trial court entered an
                    order directing the appellant to file a
                    concise statement, the appellant had
                    only 14 days to file the statement.
                    Pa.R.A.P. 1925(b) (2007).

Commonwealth v. Thompson, 39 A.3d 335, 338 (Pa.Super. 2012)

(additional footnotes omitted).

      Instantly, the record clearly indicates that appellant failed to comply

with the trial court’s Rule 1925(b) order.    The statement does not appear

anywhere in the certified record, nor did he attach any such statement to his

brief as required by Pa.R.A.P. 2111(d).      As such, appellant has waived all

issues on appeal.    See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in

the Statement and/or not raised in accordance with the provisions of this

paragraph are waived.”). Moreover, even if we were to address appellant’s

appeal, we would affirm the PCRA court’s denial of relief on the Miller v.

Alabama, 567 U.S. 460 (2012), issue in that appellant was 19 years old at

the time he committed the murder.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2017




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