J-S07044-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   Appellee              :
                                         :
          v.                             :
                                         :
NOEL L. BROWN,                           :
                                         :
                   Appellant             :    No. 2388 EDA 2019

                Appeal from the PCRA Order Entered July 1, 2019
                 in the Court of Common Pleas of Wayne County
               Criminal Division at No(s): CP-64-CR-0000258-2016

BEFORE:        NICHOLS, J., KING, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                    FILED MARCH 24, 2020

      Noel L. Brown (Appellant) appeals pro se from the July 1, 2019 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.        Upon review, we dismiss this appeal

based on Appellant’s deficient brief.

      A prior panel of this Court provided the following background.

            [O]n June 29, 2016, A.C., the fifteen-year-old victim in
      this case, was reported as a runaway. A.C. had answered an
      online advertisement seeking escorts and strippers. On that
      day, A.C. left her mother’s house with Appellant. By tracking
      A.C.’s cellular telephone, Pennsylvania State Police were able to
      locate A.C. at a local motel. When the police arrived, they
      noticed that A.C. appeared intoxicated; A.C. stated that
      Appellant had given her vodka. The troopers transported A.C. to
      the State Police barracks and questioned her regarding the
      events of the prior evening. A.C. told the troopers that she had
      answered an online advertisement for escorts, and Appellant
      picked her up and drove her to the motel. At the motel,
      Appellant provided A.C. with liquor and A.C. fell asleep. Police
      discovered that after A.C. fell asleep, Appellant undressed A.C.,

*Retired Senior Judge assigned to the Superior Court.
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     exposed her breasts, took a photograph of the minor’s breasts,
     and placed the photograph online in an effort to utilize A.C. as a
     prostitute. Police also recovered a document signed by A.C.
     wherein she agreed to work for Appellant, and Appellant would
     act as her pimp.

            Police arrested Appellant and charged him with numerous
     crimes in connection with the aforementioned events. [Prior to
     trial, Appellant indicated that he wanted to proceed pro se.
     Accordingly],     there    was    a   colloquy    consistent    with
     Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), and      1

     a thorough discussion of the factors outlined in Pa.R.Crim.P.
     121(A)(2) concerning pro se representation. … The trial court
     ultimately permitted Appellant to proceed pro se, but the trial
     court appointed standby counsel.           Following a jury trial,
     Appellant was found guilty of interference with custody of
     children, dissemination of photos of child sex acts, corruption of
     minors, furnishing liquor to minors, and trafficking in minors.
            ______
            1 In []Grazier, [] the Supreme Court of Pennsylvania held

            that when a defendant wishes to waive counsel, an on-the-
            record determination should be made that said waiver is
            knowing, intelligent, and voluntary.

           On February 3, 2017, the trial court sentenced Appellant to
     an aggregate term of 180 to 384 months of incarceration.
     Appellant filed post[-]sentence motions that were denied, and on
     February 9, 2017, Appellant filed a timely appeal. Throughout
     the proceedings Appellant remained pro se.

Commonwealth v. Brown, 179 A.3d 590 (Pa. Super. 2017) (unpublished

memorandum at 2-3) (citations to the record and some footnotes omitted).

     On direct appeal to this Court, we were “constrained to conclude that

none of the issues [raised by Appellant was] supported by cogent legal

argument or citation to relevant authority; rather, Appellant’s argument

[was] a nonsensical invective on the proceedings in the trial court.”       Id.

(unpublished memorandum at 4).       Accordingly, due to the “overwhelming


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deficiencies in Appellant’s brief,” this Court concluded that Appellant had

waived all issues on appeal and affirmed his judgment of sentence.            Id.

(unpublished memorandum at 4-5).           Appellant untimely filed petitions for

allowance of appeal to our Supreme Court, which were denied.

      On October 25, 2018, Appellant timely filed the instant PCRA petition.

Counsel was appointed and, following investigation of Appellant’s numerous

claims, counsel filed a no-merit letter and motion to withdraw pursuant to

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On May 1, 2019, the

PCRA court issued notice of its intent to dismiss Appellant’s petition without

a hearing pursuant to Pa.R.Crim.P. 907, and granted counsel’s motion to

withdraw. Appellant pro se filed a response, and the PCRA court dismissed

Appellant’s PCRA petition on July 1, 2019.         Appellant filed a motion for

reconsideration, which the PCRA court denied on July 17, 2019.          Appellant

pro se filed the instant notice of appeal on August 16, 2019.1

      As a preliminary matter, we must determine whether we have

jurisdiction to entertain this appeal.    A notice of appeal shall be filed within




1 On September 13, 2019, this Court issued a rule to show cause as to why
the appeal should not be quashed as interlocutory. In his pro se response,
Appellant stated that he was appealing from the July 1, 2019 dismissal of his
PCRA petition. See Appellant[’s] Show of Cause for Granting Appeal of
PCRA Petition, 9/23/2019. Accordingly, this Court discharged the rule to
show cause and deferred consideration to this panel. We are satisfied that
this appeal is not interlocutory and need not address this issue further.

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30 days after the entry of the order from which the appeal is taken.

Pa.R.A.P. 903(a).

      The timeliness of an appeal and compliance with the statutory
      provisions granting the right to appeal implicate an appellate
      court’s jurisdiction and its competency to act.            Absent
      extraordinary circumstances, an appellate court lacks the power
      to enlarge or extend the time provided by statute for taking an
      appeal. See Pa.R.A.P. 105. Thus, an appellant’s failure to
      appeal timely an order generally divests the appellate court of its
      jurisdiction to hear the appeal.

Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (some internal

citations omitted).    “[T]he prisoner mailbox rule provides that a pro se

prisoner’s document is deemed filed on the date he delivers it to prison

authorities for mailing.”   Commonwealth v. DiClaudio, 210 A.3d 1070,

1074 (Pa. Super. 2019).

      Instantly, for Appellant’s notice of appeal to be considered timely, he

had to file it within 30 days of the July 1, 2019 order dismissing his PCRA

petition, namely by July 31, 2019.        As such, Appellant’s August 16, 2019

notice of appeal is facially untimely.

      On October 1, 2019, this Court issued a rule to show cause as to why

the instant appeal should not be quashed as untimely filed. In his pro se

response, Appellant alleged that he timely filed a notice of appeal

immediately after the PCRA court denied his motion for reconsideration.

Appellant further averred that he filed a second notice of appeal, the August

notice of appeal that was received by this Court, when he did not receive a

response from the PCRA court. See Appellant[’]s Show of Cause in Favor of

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Appeal, 10/9/2019.      According to Appellant, he believed that “the second

copy of his notice of appeal ha[d superseded] the first, or the first notice of

appeal was some[]how disc[a]rded.” Id. at 1 (unnumbered).

      This Court ordered Appellant to file proof of the date that Appellant

mailed the first notice of appeal.      Per Curiam Order, 10/11/2019.        In

response, Appellant submitted copies of two postage cash slips to support

his contention that he filed the first notice of appeal on July 23, 2019, and

the second notice of appeal on August 13, 2019.         Letter from Appellant,

10/21/2019 (Exhibits 1 & 2). The July postage cash slip is hand-dated “07-

22-19,” but the date stamp of when it was received is illegible.       See id.

(Exhibit 1). This Court discharged the rule to show cause and referred the

issue to this panel.

      Upon review, this Court is unable to verify an exact date of when the

postage cash slip in Exhibit 1 was received.     Nonetheless, we are able to

conclude from the faint outline of “JUL” that it was received in July. Because

Appellant’s notice of appeal had to have been filed by July 31, 2019, the last

day in July, in order to be considered timely, we are satisfied that this notice

of appeal mailed in the month of July was timely filed. Insofar as the July

notice of appeal failed to reach this Court, we deem this a breakdown in the

operation of the courts and accept Appellant’s August 2019 notice of appeal

as if timely-filed.    See Commonwealth v. Williams, 151 A.3d 621, 624

(Pa. Super. 2016).


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      Before reaching the merits of any purportedly-raised claims, however,

we observe that “[a]ppellate briefs must conform materially to the

requirements of the Pennsylvania Rules of Appellate Procedure, and this

Court may [] dismiss an appeal if the defect in the brief is substantial.”

Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017)

(citation omitted).   “Although this Court is willing to construe liberally

materials filed by a pro se litigant, a pro se appellant enjoys no special

benefit. Accordingly, pro se litigants must comply with the procedural rules

set forth in the Pennsylvania Rules of the Court.” Id. (citation omitted).

      [I]t is an appellant’s duty to present arguments that are
      sufficiently developed for our review. The brief must support the
      claims with pertinent discussion, with references to the record
      and with citations to legal authorities. This Court will not act as
      counsel and will not develop arguments on behalf of an
      appellant. If a deficient brief hinders this Court’s ability to
      address any issue on review, we shall consider the issue waived.

Commonwealth v. Adams-Smith, 209 A.3d 1011, 1018 (Pa. Super. 2019)

(citations and quotation marks omitted).

      Instantly, Appellant fails to comply with multiple rules of appellate

procedure. Compare generally Appellant’s Brief with Pa.R.A.P. Chapter 21

(relating to briefs and reproduced records); see also Pa.R.A.P. 2111

(requiring appellant’s brief to contain, inter alia, a separate and distinct

statement of jurisdiction; order in question; statement of scope and

standard of review; statement of questions involved; statement of the case;

summary of the argument; argument; and conclusion with relief sought);


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Pa.R.A.P. 2116 (requiring a statement of questions involved that states

concisely the issues to be resolved); Pa.R.A.P. 2119 (requiring the argument

section to be divided into as many parts as there are questions to be

argued).   Moreover, Appellant has failed to develop any issue in any

meaningful fashion capable of review. Accordingly, we dismiss this appeal.

     Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2020




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