J-S14012-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
MICHAEL PINKNEY,                          :
                                          :
                    Appellant             : No. 389 EDA 2014

                 Appeal from the PCRA Order December 26, 2013,
                    Court of Common Pleas, Delaware County,
                 Criminal Division at No. CP-23-CR-0001251-2011

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED MARCH 24, 2015

      Michael Pinkney (“Pinkney”) appeals pro se from the order entered on

December 26, 2013 by the Court of Common Pleas of Delaware County,

Criminal Division, denying his petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the relevant facts and procedural history

of this case as follows:

            On February 4, 2011, [Pinkney] was arrested and
            charged with First, Second and Third-Degree Murder,
            Robbery and various other related charges.

            On July 31, 2012, defendant entered into a
            negotiated plea to the charges of Murder in the Third
            Degree and Criminal Conspiracy to Commit Robbery.
            Immediately thereafter, the [c]ourt sentenced
            [Pinkney], consistent with the terms of the
            negotiated plea, to a sentence of [twelve to twenty-
            four] years [of] incarceration on the Murder charge
            and [ten] years [of] probation on the Conspiracy
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           charge. The Conspiracy sentence was concurrent to
           the Murder sentence. [Pinkney] did not file a post-
           sentence motion or an appeal to the Superior Court.

           On July 10, 2013, [Pinkney] filed a pro se PCRA
           petition in which he alleged that his court-appointed
           counsel was ineffective in that he failed to direct the
           court’s attention to inconsistent statements made by
           witnesses. Counsel also failed to move to suppress
           identification evidence.

           This [c]ourt appointed Scott Galloway, Esq. to
           represent [Pinkney] in his petition. On October 17,
           2013, Mr. Galloway issued and filed a “no merit”
           letter, in which he noted that [Pinkney] did not voice
           these concerns during the guilty plea and sentencing
           hearing. Had [Pinkney] proceeded to trial and been
           convicted of Third Degree Murder, the sentence
           would have been far more severe. Therefore, the
           allegations of ineffectiveness lack merit.

           Mr. Galloway also advised the [c]ourt that his
           independent review of the record revealed no
           additional errors of a constitutional nature. He asked
           for leave to withdraw his representation. He sent a
           copy of his “no merit” letter and “Application to
           Withdraw Appearance” to [Pinkney].

           On November 8, 2013, this [c]ourt issued a Notice of
           Intent to Dismiss Post Conviction Relief Action
           Petition Without a Hearing. [Pinkney] responded to
           that Notice. On December 26, 2013, this [c]ourt
           entered an Order dismissing the PCRA petition.
           [Pinkney] filed a Notice of Appeal.

           On March 13, 2014, this [c]ourt issued an Order
           requiring that [Pinkney] file and serve a Concise
           Statement of Errors Complained of on Appeal within
           twenty-one days.

           On April 21, 2014, [thirty-nine] days later, [Pinkney]
           filed a Concise Statement of Errors Complained of on
           Appeal.

PCRA Court Opinion, 5/12/14, at 1-2.


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      Because Pinkney did not file his pro se concise statement of the errors

complained of on appeal within twenty-one days pursuant to the PCRA

court’s order and Rule 1925(b) of the Pennsylvania Rules of Appellate

Procedure, the PCRA court found that Pinkney had waived all of the issues

he wished to raise on appeal. Id. at 2-3. Consequently, the PCRA court’s

opinion does not address any of the issues Pinkney raised in his Rule

1925(b) statement. See id.

      It is well-settled 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.

Any issues not raised in a 1925(b) statement will be deemed waived.”

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Additionally, this

Court has held that “the waiver analysis set forth in Lord applied not only to

cases where an appellant failed to file a concise statement or omitted

appellate issues from a concise statement, but also to cases where he filed a

court-ordered statement in an untimely manner.”         Commonwealth v.

Lane, 81 A.3d 974, 979-80 (Pa. Super. 2013), appeal denied, 92 A.3d 811

(Pa. 2014).   In Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), our

Supreme Court stated the following with respect to waiver under Rule

1925(b) of the Pennsylvania Rules of Appellate Procedure:

            Our jurisprudence is clear and well-settled, and
            firmly establishes that: Rule 1925(b) sets out a
            simple bright-line rule, which obligates an appellant



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             to file and serve a Rule 1925(b) statement, when so
             ordered; any issues not raised in a Rule 1925(b)
             statement will be deemed waived; the courts lack
             the authority to countenance deviations from the
             Rule’s terms; the Rule’s provisions are not subject to
             ad hoc exceptions or selective enforcement;
             appellants and their counsel are responsible for
             complying with the Rule’s requirements; Rule 1925
             violations may be raised by the appellate court sua
             sponte, and the Rule applies notwithstanding an
             appellee’s request not to enforce it; and, if Rule
             1925 is not clear as to what is required of an
             appellant, on-the-record actions taken by the
             appellant aimed at compliance may satisfy the Rule.

Id. at 494 (footnote omitted).

       Based on our review of the certified record on appeal, the PCRA court

was indeed correct in finding that Pinkney’s Rule 1925(b) statement was

untimely. Moreover, Pinkney did not file an application with the PCRA court

pursuant to Rule 1925(b)(2) requesting a time extension for filing his Rule

1925(b) statement.      See Pa.R.A.P. 1925(b)(2).1      Accordingly, we must



1
    Rule 1925(b)(2) reads:

             (2) Time for filing and service.--The judge shall allow
             the appellant at least 21 days from the date of the
             order's entry on the docket for the filing and service
             of the Statement. Upon application of the appellant
             and for good cause shown, the judge may enlarge
             the time period initially specified or permit an
             amended or supplemental Statement to be filed.
             Good cause includes, but is not limited to, delay in
             the production of a transcript necessary to develop
             the Statement so long as the delay is not
             attributable to a lack of diligence in ordering or
             paying for such transcript by the party or counsel on
             appeal. In extraordinary circumstances, the judge


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conclude that Pinkney has failed to preserve any issues for appeal, and we

affirm the PCRA court’s order dismissing his PCRA petition on that basis.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2015




            may allow for the filing of a Statement or amended
            or supplemental Statement nunc pro tunc.

Pa.R.A.P. 1925(b)(2).


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