J-S58016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 WENDY M. MAHICH                         :
                                         :
                   Appellant             :    No. 353 WDA 2019

           Appeal from the PCRA Order Entered January 15, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0010626-2016


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED JANUARY 7, 2020

      Appellant, Wendy M. Mahich, appeals pro se from the post-conviction

court’s January 15, 2019 order denying her petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After review, we are

compelled to quash this appeal as untimely.

      Briefly, on September 7, 2017, Appellant entered an open guilty plea to

three counts each of aggravated assault and recklessly endangering another

person, and one count of endangering the welfare of children. Appellant’s

convictions were based on evidence that she caused serious bodily injury to

her then-six-month-old son by striking him in the head, and by throwing him

into a portable crib that was positioned against a wall. See N.T. Guilty Plea,

9/7/17, at 4-5.    Due to Appellant’s abuse, the victim suffered a cranial

fracture, significant swelling, and subdural and retinal hemorrhages. Id. at
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4. On February 23, 2018, Appellant was sentenced to an aggregate term of

9 to 18 years’ incarceration.

       Appellant filed a direct appeal, which this Court ultimately discontinued

upon the motion of Appellant. On July 25, 2018, Appellant filed a timely, pro

se PCRA petition and counsel was appointed. On December 19, 2018, counsel

filed a motion to withdraw and a Turner/Finley1 ‘no-merit’ letter, to which

Appellant did not respond.         On January 4, 2019, the PCRA court granted

counsel’s petition to withdraw, and notified Appellant of its intent to dismiss

her petition in accordance with Pa.R.Crim.P. 907.      While the court’s order

stated that Appellant had 21 days within which to respond to the Rule 907

notice, the court nevertheless issued an order dismissing her petition just 11

days later, on January 15, 2019.2

       Appellant filed a pro se notice of appeal on February 27, 2019, and she

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The court filed a Rule 1925(a)

opinion on July 15, 2019. Herein, Appellant states three issues for our review,

which we reproduce verbatim:


____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 Appellant has not challenged the court’s failure to afford her 21 days to
respond to its Rule 907 notice. Thus, any issue related to that error is waived.
See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (finding
Taylor waived his challenge to the court’s failure to issue a Rule 907 notice
and afford him the opportunity to respond by not raising that claim on appeal).

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      A. Whether the PCRA Court erred in the denial and dismissal of
      Appellant’s Post-Conviction Relief Act Petition and not grant relief
      on issue of alleged Trial and Appellant counsels were ineffective?

      B. Whether the PCRA Court erred in the denial and dismissal of
      Appellant’s Post-Conviction Relief Act Petition and did not grant
      relief on issue of not allowing Mitigating Evidence and Mental
      Health Evaluations to be introduced in Appellant’s behalf?

      C. Whether the PCRA Court erred in not granting relief to Appellant
      as her plea was entered into without her being deemed mentally
      competent, knowing, and fully understanding the ramifications
      and implications of sentencing ranges, or that she could pull said
      plea?

Appellant’s Brief at 4.

      Preliminarily, we must sua sponte address whether we have jurisdiction

over Appellant’s facially untimely appeal. See Commonwealth v. Capaldi,

112 A.3d 1242, 1244 (Pa. Super. 2015) (“We lack jurisdiction to consider

untimely appeals, and we may raise such jurisdictional issues sua sponte.”)

(citation omitted).   Again, the PCRA court’s order dismissing Appellant’s

petition was filed on January 15, 2019, yet her pro se notice of appeal was

not time-stamped until February 27, 2019, which was beyond the 30-day

period for a timely appeal to be filed. See Pa.R.A.P. 903(a) (directing that an

appeal “shall be filed within 30 days after the entry of the order from which

the appeal is taken”).

      We recognize that, along with her notice of appeal, Appellant filed a

petition to proceed in forma pauperis that was hand-dated February 14, 2019.

If that was the date on which Appellant mailed both her notice of appeal and

her petition for in forma pauperis status, her appeal could be deemed timely



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under the “prisoner mailbox rule.” See Commonwealth v. Jones, 700 A.2d

423, 426 (Pa. 1997) (holding that an appeal by a pro se prisoner is deemed

filed on the date he or she deposits it with prison authorities and/or places it

in the prison mailbox). However, Appellant did not provide any proof that she

mailed her appeal, or turned that document over to prison authorities, on

February 14, 2019.        See id. (stating that a pro se prisoner must present

“reasonably verifiable evidence of the date that the prisoner deposits the

appeal with prison authorities” in order to invoke application of the prisoner

mailbox rule). Moreover, we discern no error or breakdown in the operations

of the court that would excuse Appellant’s late filing. Consequently, we must

quash her appeal for lack of jurisdiction. See Capaldi, 112 A.3d at 1245.3

       Appeal quashed.


____________________________________________


3  Nevertheless, we observe that, even if Appellant’s appeal had been timely
filed, we would affirm the order denying her petition. The only cognizable and
preserved PCRA claim that Appellant raises herein is that her trial counsel was
ineffective by not producing, at the sentencing hearing, her medical records
detailing her extensive history of mental health issues. However, as her PCRA
counsel explained in his Turner/Finley no-merit letter, the medical records
would have been merely cumulative of the “comprehensive summary of
[Appellant’s] mental health history” that was contained in her presentence
report, and discussed at the sentencing hearing. See Turner/Finley Letter,
12/19/18, at 5; N.T. Sentencing, 2/22/18, at 6-7. Accordingly, we would
conclude that Appellant has failed to demonstrate that she was prejudiced by
her trial counsel’s failure to present the sentencing court with her medical
records. Additionally, to the extent Appellant asserts various other claims of
counsel’s ineffectiveness and challenges to the validity of her plea, those
issues were not raised in her petition and, thus, they are waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2020




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