J-S49042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                   v.

RACHIEM GODFREY,

                          Appellant                No. 356 MDA 2015


             Appeal from the Order Entered February 10, 2015
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0001154-2008

BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                         FILED AUGUST 28, 2015

     Appellant, Rachiem Godfrey, appeals from the order entered on

February 10, 2015, dismissing as untimely his second petition filed pursuant

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

this appeal, Appellant filed his court-ordered concise statement of errors

complained of on appeal (“concise statement”) three weeks after the

deadline set by the PCRA court. Because PCRA proceedings are technically

civil in nature, we hold that Pennsylvania Rule of Appellate Procedure

1925(c)(3), and the waiver procedure announced in Commonwealth v.

Burton, 973 A.2d 428 (Pa. Super. 2009) (en banc), do not apply in PCRA

appeals.   As such, we may not overlook Appellant’s failure to comply with

Rule 1925 and we conclude that he has waived all of his issues on appeal.

Accordingly, we affirm.
J-S49042-15


        The trial court accurately summarized the factual background of this

case as follows.

        Officer Bret Fisher testified he was dispatched to Gary’s Bar and
        Grill (Gary’s) for both a disturbance and a gun on the premises.
        When he arrived at Gary’s, patrons explained [that] a man at the
        end of the bar had a gun. One of these men was [Appellant].
        Upon noticing police inside Gary’s, [Appellant] got up from his
        seat and began to move towards the back of the bar. Officer
        Fisher told [Appellant] to stop; [Appellant] kept walking at a
        quick pace away from law enforcement. Officer Fisher then
        caught up to [Appellant] and grabbed him. As he did so, he felt
        what he believed to be a gun on [Appellant]’s person.
        [Appellant] wriggled and moved in such a way as to prevent
        Officer Fisher from holding him still. Eventually, [Appellant],
        Officer Fisher, and Sergeant Baylor fell to the ground due to the
        momentum of the tussle. [Appellant] fell and layed face down
        on the bar floor. His hands were locked beneath him, aimed
        towards his belt buckle. [Appellant]’s hands were thus at the
        same place where Officer Fisher felt what he believed to be a
        firearm. [Appellant] was eventually tasered and relaxed his
        arms. The officers stood [Appellant] up. A firearm lay on the
        ground, directly beneath where [Appellant] previously laid.
        Officer Fisher testified the firearm was loaded, operational, with
        a barrel length of less than [15] inches; the serial number was
        removed.

Trial Court Opinion, 7/24/09, at 4 (internal citations omitted).

        The relevant procedural history of this case is as follows. On March 2,

2009, Appellant was found guilty of possession of a firearm by a prohibited

person,1 carrying a firearm without a license,2 possession of a firearm with




1
    18 Pa.C.S.A. § 6105(a)(1).
2
    18 Pa.C.S.A. § 6106(a)(1).




                                      -2-
J-S49042-15


an obliterated serial number,3 resisting arrest,4 and disorderly conduct.5 He

was sentenced to an aggregate term of 12½ to 25 years’ imprisonment. On

July 26, 2011, this Court affirmed Appellant’s judgment of sentence.

Commonwealth v. Godfrey, 32 A.3d 281 (Pa. Super. 2011) (unpublished

memorandum). Appellant did not seek further review.

        On July 13, 2012, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition.           On October 29, 2012, after

attempting to hold an evidentiary hearing,6 the PCRA court denied

Appellant’s first PCRA petition. This Court affirmed the denial of Appellant’s

first   PCRA   petition    and   our   Supreme   Court   denied   further   review.

Commonwealth v. Godfrey, 82 A.3d 1073 (Pa. Super. 2013) (unpublished

memorandum), appeal denied, 80 A.3d 775 (Pa. 2013).

        On December 19, 2014, Appellant filed this, his second, pro se PCRA

petition. In his petition, Appellant did not allege an exception to the PCRA’s

one-year time bar.         Counsel once again was appointed; however, no

amended petition was filed. On January 12, 2014, the PCRA court, citing the

petition’s untimeliness, issued notice of its intent to dismiss Appellant’s

3
    18 Pa.C.S.A. § 6110.2(a).
4
    18 Pa.C.S.A. § 5104.
5
    18 Pa.C.S.A. § 5503(a)(4).
6
  Appellant refused to participate in the evidentiary hearing. Specifically, he
refused to confirm that he was Rachiem Godfrey. See N.T., 10/22/12, at 2-
8. Therefore, the PCRA court did not proceed with the evidentiary hearing.



                                        -3-
J-S49042-15


second PCRA petition without an evidentiary hearing. See Pa.R.Crim.P. 907.

On January 22, 2015, Appellant filed a response to the Rule 907 notice

which again failed to aver an exception to the PCRA’s one-year time bar. On

February 11, 2015, the PCRA court dismissed Appellant’s second PCRA

petition and, contemporaneously therewith, issued an opinion explaining that

Appellant’s petition was untimely and failed to satisfy any of the PCRA’s

timeliness exceptions. This timely appeal followed.

      On February 26, 2015, the PCRA court ordered Appellant to file a

concise statement within 21 days.      See Pa.R.A.P. 1925(b).     On April 9,

2015, Appellant filed his concise statement.    On April 10, 2015, the PCRA

court issued an order adopting its February 11, 2015 opinion.

      Appellant presents three issues for our review:

      1. Did the trial court err in determining that Appellant’s second
         PCRA petition was untimely?

      2. Did the trial court err in determining that Appellant did not
         meet the standard for second or subsequent PCRA petitions
         as set forth in Commonwealth v. Szuchon, [] 633 A.2d
         1098 ([Pa.] 1993)?

      3. Did the trial court err in determining that [Appellant’s] first
         PCRA counsel [] was not ineffective for failing to amend
         Appellant’s first PCRA petition to include additional arguments
         Appellant requested, namely that the trial court did not
         instruct the jury that Appellant was presumed to be innocent;
         that trial counsel was ineffective for failing to hire an
         investigator, as Appellant requested; and that the trial judge
         denied his right to confront witnesses?

Appellant’s Brief at 4 (extraneous capitalization omitted).




                                     -4-
J-S49042-15


       Appellant raises three issues for our consideration.               “Prior to

addressing the substance of [Appellant’s arguments; however,] we must

determine whether [he] properly preserved [the issues].” Madrid v. Alpine

Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011), appeal denied, 40

A.3d 1237 (Pa. 2012) (citation omitted).            In its brief, the Commonwealth

argues that Appellant waived all of his issues raised on appeal because his

concise statement was untimely.               See Commonwealth’s Brief at 3 n.1.

“Because this argument requires us to interpret a procedural rule, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Noel, 53 A.3d 848, 851 (Pa. Super. 2012), aff’d, 104

A.3d 1156 (Pa. 2014) (citation omitted).

       In order to understand the background of Rule 1925(c)(3) and

Burton, we begin with a brief overview of Pennsylvania Rule of Appellate

Procedure 1925. Under Rule 1925, the trial court may order the appellant to

file a concise statement of the errors complained of on appeal. 7 Pa.R.A.P.

1925(b). The order requiring a concise statement must set forth the time

for filing said statement; however, the appellant must be given at least 21

days   to   file   his   or   her   concise    statement.   Pa.R.A.P.   1925(b)(2),


7
  The rules for concise statements in children’s fast track, Abortion Control
Act, and Pennsylvania Code of Military Justice cases differ from those in
traditional cases.    See Pa.R.A.P. 1925(a)(2)(i), 3802, 4004(b).         For
simplicity, we only address Rule 1925 as it pertains to traditional civil and
criminal cases.




                                          -5-
J-S49042-15


1925)(b)(3)(i). Failure to file a timely concise statement or failure to include

an issue in a concise statement results in that issue being waived.8

Pa.R.A.P. 1925(b)(4)(vii). After the filing of the concise statement, the trial

court must issue a Rule 1925(a) opinion or indicate where in the record the

reasoning for its decision can be found.9 Pa.R.A.P. 1925(a).

      Rule 1925 became effective July 1, 1976. Shortly after Rule 1925 took

effect, our Supreme Court held that failure to include an issue in a concise

statement resulted in waiver of that issue.     See In re Harrison Square,

Inc., 368 A.2d 285, 288 (Pa. 1977) (finding waiver under former Supreme

Court Rule 56 which was replaced by Rule 1925).              Slowly, this Court

developed exceptions to this rule.      For example, in Commonwealth v.

Cortes, 659 A.2d 573 (Pa. Super. 1995), this Court held an issue was not

waived despite the failure of the appellant to include the issue in his concise

statement.    This Court reasoned in Cortes that the failure to include the

issue in the appellant’s concise statement did not prevent effective review of

the issue.    Id. at 574.      Subsequently, however, our Supreme Court

abrogated Cortes and similar cases.       See Commonwealth v. Lord, 719

A.2d 306 (Pa. 1998).      In Lord, our Supreme Court held that failure to

8
   There are, however, certain issues that cannot be waived. For example, an
illegal sentencing claim cannot be waived.         Commonwealth v. Orie
Melvin, 103 A.3d 1, 52 (Pa. Super. 2014) (citations omitted).
9
 If a different judge issued the order giving rise to the appeal, the trial court
may ask that judge to prepare a Rule 1925(a) opinion.                  Pa.R.A.P.
1925(a)(1).



                                      -6-
J-S49042-15


include an issue in a concise statement resulted in waiver. Id. at 309. Our

Supreme Court later clarified that waiver was automatic and that this Court

lacked the discretion to address the merits of issues not included in a

concise statement. See Commonwealth v. Butler, 812 A.2d 631, 633 (Pa.

2002).

      Despite Lord and Butler, however, this Court continued to hold that,

in certain circumstances, issues were preserved when they were included in

an untimely concise statement. E.g., Commonwealth v. Alsop, 799 A.2d

129 (Pa. Super. 2002); Commonwealth v. Ortiz, 745 A.2d 662 (Pa. Super.

2000).   In Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005), our

Supreme Court abrogated Alsop, Ortiz, and similar cases and held that

issues included in an untimely concise statement are automatically waived.

Id. at 776-780.

      As noted above, Appellant was ordered to file his concise statement on

or before March 19, 2015. Appellant did not seek an extension of time to

file his concise statement nor did he seek leave to file his concise statement

nunc pro tunc. See Pa.R.A.P. 1925(b)(2) (permitting trial court to extend

the time for filing a concise statement or allow the filing of a concise

statement nunc pro tunc). Instead, Appellant filed his concise statement 21

days late, on April 9, 2015. Therefore, it appears that, under Castillo and

its progeny, Appellant has waived all of his issues.




                                     -7-
J-S49042-15


     After Castillo, however, Rule 1925 was amended. See 37 Pa.B. 2405

(May 26, 2007). Specifically, Rule 1925 was amended, inter alia, to add the

following subsection:

     If an appellant in a criminal case was ordered to file a [concise
     s]tatement and failed to do so, such that the appellate court is
     convinced that counsel has been per se ineffective, the appellate
     court shall remand for the filing of a [concise s]tatement nunc
     pro tunc and for the preparation and filing of an opinion by the
     [trial court].

Pa.R.A.P. 1925(c)(3) (emphasis added).     Construing Rule 1925(c)(3), this

Court in Burton held that Rule 1925(c)(3) allows appellate review of issues

raised in untimely concise statements where the trial court has addressed

the claims in its Rule 1925(a) opinion. Burton, 973 A.2d at 430-433. If, on

the other hand, the trial court does not address the issues raised in an

untimely concise statement, this Court will remand to the trial court to

address those issues. Id.

     This case presents the question of whether the waiver rule announced

in Burton applies in the PCRA context.10 We begin with the plain language

of Rule 1925(c)(3). When the language of a rule of appellate procedure is

“clear and free from all ambiguity, the letter of it is not to be disregarded

under the pretext of pursuing its spirit.”     1 Pa.C.S.A. § 1921(b); see

Pa.R.A.P. 107 (The Statutory Construction Act “so far as not inconsistent

with any express provision of these rules, shall be applicable to the

10
   Our own research confirms that, to date, no appellate court in
Pennsylvania has applied Rule 1925(c)(3) or Burton in the PCRA context.



                                    -8-
J-S49042-15


interpretation of these rules and all amendments hereto to the same extent

as if these rules were enactments of the General Assembly.”).

      The plain language of Rule 1925(c)(3) makes it applicable only in

criminal cases.     Our Supreme Court, this Court, and the Commonwealth

Court have held that “[t]he PCRA system is not part of the criminal

proceeding itself, but civil in nature.” Commonwealth v. Haag, 809 A.2d

271, 284 (Pa. 2002), citing Pennsylvania v. Finley, 481 U.S. 551, 557

(1987); Commonwealth v. Renchenski, 52 A.3d 251, 259 (Pa. 2012)

(citations omitted); Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa.

2007); Commonwealth v. Martorano, 89 A.3d 301, 302 (Pa. Super.

2014); Commonwealth v. Real Prop. & Improvements Known as 2304

Cecil B. Moore Ave. Phila., PA 19121-2927, 2012 WL 8685547, *2 n.11

(Pa. Cmwlth. Nov. 14, 2012) (citation omitted). Therefore, under the plain

language of Rule 1925(c)(3), it does not apply to PCRA proceedings.      As

Burton’s waiver rule was solely based upon application of Rule 1925(c)(3),

it too is inapplicable in the PCRA context.

      Furthermore, our Supreme Court has stated in dicta that Burton does

not apply in the PCRA context.     In Commonwealth v. Hill, 16 A.3d 484

(Pa. 2011), our Supreme Court confronted a case governed by the 1988

version of Rule 1925. Id. at 494-495. Thus, Rule 1925(c)(3) did not apply

in Hill.   Id.   Nonetheless, our Supreme Court opined, in dicta, that “[w]e

need not determine whether the circumstances presented would satisfy the



                                      -9-
J-S49042-15


terms of amended Rule 1925(c)(3), if the amendment applied.             We note,

however, that the amendment speaks of remand only in ‘criminal cases.’

Technically, the PCRA is civil in nature.” Hill, 16 A.3d at 495 n.14.

      Although our Supreme Court’s statement in Hill was dicta, we find it

persuasive. See In re J.V., 762 A.2d 376, 381 (Pa. Super. 2000) (“To the

extent our highest court’s reasoned analyses may be dicta, we find the

reasoning persuasive[.]”).       Our Supreme Court relied upon the plain

language of Rule 1925(c)(3) when opining that it does not apply in the PCRA

context.   Hill, 16 A.3d at 495 n.14.     As noted above, this is the same

rationale we used to determine that Rule 1925(c)(3) does not apply in the

PCRA context.

      For these reasons, we hold that the waiver rule this Court announced

in Burton does not apply in the PCRA context. Instead, issues included in

an untimely concise statement in a PCRA appeal are automatically waived

under Castillo. As Appellant filed an untimely concise statement, all of the

issues he raises on appeal are waived. Accordingly, we affirm the dismissal

of his second PCRA petition.11


11
   Even if we reached the merits of Appellant’s issues raised on appeal, we
would conclude that the PCRA court correctly held that it lacked jurisdiction
over Appellant’s second PCRA petition. Appellant’s second PCRA petition was
patently untimely as it was filed more than one year after his judgment of
sentence became final. 42 Pa.C.S.A. § 9545(b)(1). Therefore, in order for
the PCRA court to possess jurisdiction, one of the three statutory timeliness
exceptions must apply. See Commonwealth v. Callahan, 101 A.3d 118,
121 (Pa. Super. 2014). In order to invoke a timeliness exception, a PCRA
(Footnote Continued Next Page)


                                     - 10 -
J-S49042-15


      Order affirmed.

      President Judge Emeritus Bender and Judge Allen concur in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2015




                       _______________________
(Footnote Continued)
petitioner must plead and prove the exception in his or her PCRA petition.
See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Burton, 936 A.2d 521,
525 (Pa. Super. 2007), appeal denied, 959 A.2d 927 (Pa. 2008). In this
case, Appellant failed to plead the applicability of a timeliness exception in
his petition.

Furthermore, even if we concluded that Appellant pled a timeliness
exception, we would conclude that it would not apply. Specifically, in his
Rule 907 response, Appellant averred that he became aware of newly
discovered evidence – our Supreme Court’s denial of his petition for
allowance of appeal - in December 2013. See Response to the PCRA Court’s
Rule 907 Notice, 1/22/15, at 2. Appellant did not file the instant petition
until December 2014, well outside the 60-day timeframe for filing a petition
under the newly discovered evidence exception. 42 Pa.C.S.A. § 9545(b)(2).
Accordingly, the PCRA court correctly held that it lacked jurisdiction over the
petition.



                                           - 11 -
