J-S16022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CHAD CRAIG RENFRO-NARDUZZI                 :
                                               :
                      Appellant                :   No. 944 MDA 2017


                 Appeal from the PCRA Order August 10, 2017
      In the Court of Common Pleas of Centre County Criminal Division at
                        No(s): CP-14-CR-0001195-2014


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                                FILED APRIL 25, 2018

        Chad Craig Renfro-Narduzzi (Appellant) appeals pro se from the order

denying his first Post Conviction Relief Act1 (PCRA) petition because it was

untimely filed.     Although we find that the petition was timely under the

prisoner mailbox rule, we affirm the PCRA court because Appellant’s issues

are waived.2

        On May 31, 2014, Appellant was an inmate at the Centre County

Correctional Facility.     Corrections Officer (CO) David Zettle and CO David

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* Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.

2An appellate court can affirm on any basis. Prieto Corp. v. Gambone
Const. Co., 100 A.3d 602, 606 (Pa. Super. 2014).
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Galleher were attempting to transport Appellant, who was handcuffed, from

his cell to the restrictive housing unit. Appellant, however, “dug his heels”

into the floor, threw his elbows about, and attempted to head-butt the COs.

N.T. Trial, 10/20/14, at 16. CO Zettle tried to pull Appellant down to the floor

but fell and hit his head. Subsequently, CO Zettle testified that his eyeglasses

were broken and that he suffered a concussion, a “very severe bloody nose,”

a black eye and cut above his eye, and abrasions to his hand and elbow. Id.

at 21-25.

        Appellant was charged with simple assault, aggravated assault, and

harassment.3 The case proceeded to a bench trial on October 20, 2014. At

the beginning of the proceedings, the trial court conducted an oral colloquy as

to Appellant’s desire to proceed pro se, and thereafter permitted Appellant to

represent himself.4 Id. at 4-6. CO Zettle testified to the incident and his

injuries as summarized above, and the Commonwealth played an eight-

minute video depicting the incident. Appellant testified in his defense, denying

that he struck CO Zettle, and instead explaining that he had an existing knee

injury and was merely trying to pull away from the COs, who were rushing


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3   18 Pa.C.S.A. §§ 2701(a)(1), 2702(a)(3), and 2709(a)(1).

4While the record does not include a written colloquy, the court’s statements
on the record indicate that it had previously conducted a colloquy with
Appellant. See N.T., 10/20/14, at 3 (“[S]hould we go through the colloquy
once more just to be sure?”).



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and pushing him as they were walking. The trial court found Appellant guilty

of all three charges.

       On November 14, 2014, the trial court imposed a sentence of two to

four years’ imprisonment for aggravated assault.5 The court advised Appellant

on the record that he had 10 days to file a post-sentence motion and 30 days

to appeal. N.T. Sentencing, 11/14/14, at 9. Later that same day, Appellant

reappeared pro se before the trial court under a different docket, CP-14-CR-

1981-2014 (“Case 1981”) and entered a negotiated guilty plea.6             The

Commonwealth informed the court it was recommending a sentence of two to

four years’ imprisonment to run consecutive to the sentence in this case, and

furthermore, that Appellant agreed to not file an appeal in that case, nor in

the instant case. Id. at 15. The trial court accepted the plea agreement, but

nevertheless upon sentencing, advised Appellant: “I know you talked about

not appealing, but I still have to say the reason for [the sentence — that it

was the term agreed upon by the parties]. You have thirty days to appeal,

ten days to file post-sentence motions.” Id. at 23.


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5The count of simple assault merged with aggravated assault for sentencing
purposes. The court imposed a $25 fine for the harassment charge. N.T.
Sentencing, 11/14/14, at 8.

6While the sentencing transcript in this case includes the plea proceedings for
Case 1981, the charges in Case 1981 were not specified on the record. See
N.T., 11/14/14, at 10-24.




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       Appellant did not file any post-sentence motion or direct appeal.7 His

30-day period for filing an appeal fell on Sunday, December 14, 2014, and

thus Appellant had until the next day, December 15th, to appeal.          See 1

Pa.C.S.A. § 1908 (providing that when the last day of any period of time

referred to in any statute falls on a Saturday, Sunday, or legal holiday, such

day shall be omitted from computation); Pa.R.A.P. 903(a) (appeal shall be

filed within 30 days of entry of order). Because Appellant did not appeal, his

judgment of sentence became final on that day, and generally, he had one

year, until December 15, 2015, to file a PCRA petition. See 42 Pa.C.S.A. §

9545(b)(1) (generally, any PCRA petition shall be filed within one year of the

date the judgment becomes final), (3) (judgment becomes final at the

conclusion of direct review or at the expiration of time for seeking review).

       Appellant mailed a pro se PCRA petition to the court for filing. The stamp

on the envelope is dated December 15, 2015 — the very deadline imposed by

Section 9545(b)(1) — but the petition was stamped by the court as “filed” on

December 18, 2015, and the corresponding docket entry is dated December

21st. The petition, however, made no mention of the timeliness requirements



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7 On December 10, 2014 and February 5, 2015, Appellant filed pro se requests
for copies of the trial transcript. However, neither request raised any claim
for relief; instead, Appellant merely stated he desired the transcript to prepare
a PCRA petition (without stating any particular claim) and simply to have a
copy of the transcript for his personal records. The trial court did not rule on
either of these requests.


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of the PCRA, instead averring only that CO Zettle committed perjury because

he lacked the proper training and education to testify about his medical

diagnosis.

      On January 21, 2016, the PCRA court appointed Justin P. Miller, Esquire,

to represent Appellant.   The Commonwealth filed an answer to the pro se

PCRA petition, contending that Appellant filed the petition on December 21,

2015 (which was the date of the docket entry), and thus six days beyond the

one-year filing deadline, and that none of the timeliness exceptions at 42

Pa.C.S.A. § 9545(b)(1) applied.       Appellant then filed a pro se motion to

proceed pro se, as well as various pro se motions for relief. On June 3, 2016,

following a hearing, the PCRA court once again granted Appellant’s request to

proceed pro se, and on February 16, 2017, Appellant filed a pro se amended

PCRA petition.    While this petition was filed under the instant docket,

Appellant’s sole claim was that in Case 1981, the Commonwealth and the trial

court improperly led him to believe that he did not have a right to file an

appeal. Appellant again did not address the timeliness of his initial petition,

despite the Commonwealth’s argument that it was untimely.

      On May 24, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s PCRA petition without a hearing, stating, without

further explanation, that the petition was untimely.      On June 12, 2017,

Appellant filed a notice of appeal.     On June 29, 2017, the court directed

Appellant to file, within 21 days, a Pa.R.A.P. 1925(b) statement of matters


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complained of on appeal. Having received no statement from Appellant, the

court issued an order on July 26, 2017, suggesting that Appellant’s failure to

comply with its Rule 1925(b) order was a waiver of all claims. On August 1,

2017, Appellant filed a Rule 1925(b) statement, which invoked, for the first

time, the prisoner mailbox rule.

        On appeal, this Court initially noted that no final order disposing of

Appellant’s PCRA petition had been entered, and issued a rule to show cause

as to why the appeal should not be quashed. Responding to our inquiry, the

PCRA court filed an order denying the petition on August 10, 2017, and

consequently, this appeal is now properly before us.8 See Pa.R.A.P. 905(a)(5)

(“A notice of appeal filed after the announcement of a determination but

before the entry of an appealable order shall be treated as filed after such

entry and on the day thereof.”).

        Appellant presents four issues on appeal:

        (1) Did the Court of Common Pleas of Centre County err when it
        allowed the District Attorney to answer opposing the timely filing
        of the my Post Conviction Relief Act Petition and subsequently
        dismissed the petition, when the Prisoner Mail–Box Rule was not
        applied to the PCRA Petition?

        2. Did the Court of Common Pleas of Centre County err when it
        allowed the Trial to commence against . . . me, knowing that I had
        just received the Discovery until two (2) days prior to trial and
        was not allowed to review the evidence prior to trial constituting
        “Trial by Ambush”?

        3. Did the Court of Common Pleas of Centre County err when it
____________________________________________


8   The PCRA court did not issue a Pa.R.A.P. 1925(a) opinion.

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      allowed the Officer to give conflicting statements contrary to the
      facts and also allowed the Officer who is not licensed to give
      Medical Professional determinations to matters which conflict to
      expert medical facts constitute "Trial by Ambush"?

      4. Did the Court of Common Pleas of Centre County err when it
      failed to take into consideration that I suffer from a mental health
      diagnosis "Post Traumatic Stress Disorder" when it allowed me to
      represent myself without knowledge of me being competent to
      represent myself?

Appellant’s Brief at 4-5.

      In his first issue, Appellant avers that the PCRA court abused its

discretion and erred in falling to apply the prisoner-mailbox rule, and that

under the rule, his petition was timely.       While Appellant provides case

authority explaining the rule, he does not present any explanation, with

relevant dates. See id. at 10-11.

      “Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA court's

determination is free of legal error.” Commonwealth v. Brown, 143 A.3d

418, 420 (Pa. Super. 2016).       The PCRA’s timely-filing requirements are

mandatory and jurisdictional in nature. Id. “Under the prisoner mailbox rule,

we deem a pro se document filed on the date it is placed in the hands of prison

authorities for mailing.” Commonwealth v. Crawford, 17 A.3d 1279, 1281

(Pa. Super. 2011). Our Supreme Court has further stated that “[t]he appellant

bears the burden of proving that he or she in fact delivered the appeal within

the appropriate time period,” and that acceptable forms of proof include: a

prison “cash slip” that indicates a deduction from an inmate’s account for

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postage and the date of the mailing; an affidavit attesting to the date of

deposit with the prison officials; and evidence of internal operating procedures

regarding mail delivery in the prison. Commonwealth v. Jones, 700 A.2d

423, 426 (Pa. 1997).

      As stated above, the one year-deadline for Appellant to file his petition

was December 15, 2015, but the petition was not stamped as “filed” until

December 18th. The Commonwealth correctly observes that Appellant did not

provide any explanation of the pertinent dates that would support the

application of the prisoner mailbox rule to his petition, see Commonwealth’s

Brief at 9, and we are cognizant that a petitioner bears the burden of “proving

that he in fact delivered the appeal within the appropriate time period.”

Jones, 700 A.2d at 426.          Nevertheless, an investigation as to when

particularly Appellant furnished his petition to prison authorities for mailing

was not necessary, as the date on the envelope’s postage, December 15,

2015, fell within the PCRA’s one-year filing period. See Crawford, 17 A.3d

at 1281. Thus, under the particular facts of this case, we decline to find that

Appellant waived his claim for relief under the prisoner mailbox rule.

      We next consider the PCRA court’s suggestion that Appellant’s

remaining issues are waived because he failed to file a timely Rule 1925(b)

statement. Generally, “if an appellant fails to file a timely 1925(b) statement

as ordered by the trial court, all issues will be waived for purposes of appellate

review.”   Commonwealth v. Hess, 810 A.2d 1249, 1252 (Pa. 2002).


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However,

      for an appellant to be subject to waiver for failing to file a timely
      1925(b) statement . . . the clerk of courts has a mandatory duty
      to furnish copies of the order to each party or their attorney. In
      reaching this conclusion, we relied on Pa.R.Crim.P. 114 . . . , which
      sets forth the obligations of the clerk of courts as follows:

         Upon receipt of an order from a judge, the clerk of courts
         shall immediately docket the order and record in the docket
         the date it was made. The clerk shall forthwith furnish a
         copy of the order, by mail or personal delivery, to each party
         or attorney, and shall record in the docket the time and
         manner thereof.

      [Pa.R.Crim.P. 114(A)(1). T]he word “shall” in Rule 114 [is]
      mandatory [and] leaves no question that the clerk’s obligations
      are not discretionary.

Id. at 1252-53 (emphasis added). In Hess, our Supreme Court held that the

appellant’s untimely Rule 1925(b) statement did not result in waiver where,

inter alia, the trial docket did not indicate the date and manner of service of

the court’s Rule 1925(b) order in violation of Pa.R.Crim.P. 114. Hess, 810

A.2d at 1254-55.

      Here, the PCRA court issued an order on June 29, 2017, for Appellant to

file a Rule 1925(b) statement within 21 days — by July 20, 2017 — but

Appellant did not file a statement until August 1st, and the record does not

include any request for additional time to file a Rule 1925(b) statement.

However, we note the docket entry for the court’s Rule 1925(b) order states:

                              CP Filed Date        Document Date
                              06/29/2017           06/28/2017

         Concise Statement Order
      [Commonwealth attorney’s name]

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         06/30/2017
      [Appellant’s name]
         06/30/2017

Trial Docket at 16.

      Even if we were to presume that the dates under each of the parties’

names signified the date service of the order was made, we note the docket

does not state the manner of service, as required by Rule 114.                 See

Pa.R.Crim.P. 114. Additionally, the record does not include any certificate of

service for the Rule 1925(b) order, which would indicate the date and manner

of service. While we acknowledge that Appellant was incarcerated and thus,

presumably, the court would have mailed the order to him, we note the

mandatory nature of Rule 114 and thus decline to find waiver on the basis of

an untimely Rule 1925(b) statement. See Hess, 810 A.2d at 1254-55.

      Nevertheless, we conclude that Appellant’s issues are waived for other

reasons. Appellant’s second claim on appeal is that the trial court erred in

conducting trial despite the fact Appellant had just received discovery two

days earlier. His fourth claim is that the trial court erred in failing to determine

whether he was competent to proceed pro se at trial, as it failed to consider

he suffered from post-traumatic stress disorder. Neither of these issues were

raised in Appellant’s initial or amended PCRA petition, and thus they are

waived from our review. See Commonwealth v. Washington, 927 A.2d

586, 601 (Pa. 2007) (any claim not raised in the PCRA petition is waived and

not cognizable on appeal). They are also waived because they could have


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been raised on direct appeal. See Commonwealth v. Jones, 815 A.2d 598,

607 (Pa. 2002) (“An issue is waived under the PCRA ‘if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state postconviction proceeding.’      42 Pa.C.S.[A.] §

9544(b).”).

      Appellant’s remaining claim is that the trial court erred in allowing CO

Zettle to testify about his medical condition when he was not a licensed

medical professional and no medical report was entered into evidence.

Although Appellant included this argument in his PCRA petition, it is waived

because Appellant could have raised it on direct appeal. See Jones, 815 A.2d

at 607.

      For the foregoing reasons, we find that Appellant has waived his claims

and is therefore not entitled to relief. Accordingly, we affirm the order denying

Appellant’s PCRA petition.

      Order affirmed.

      Judge Bowes joins the memorandum.

      Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/25/18

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