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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                   v.                     :
                                          :
MELVIN McILWAINE,                         :           No. 983 EDA 2015
                                          :
                        Appellant         :


          Appeal from the Judgment of Sentence, March 13, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0009171-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 05, 2016

      Melvin McIlwaine appeals the judgment of sentence in which the Court

of Common Pleas of Philadelphia County sentenced him to serve an

aggregate term of seven years three months to fourteen years six months of

imprisonment followed by five years of reporting probation for dealing in

proceeds of unlawful activities, three counts of theft by unlawful taking, and

three counts of theft by deception.1

      The charges against appellant stemmed from his defrauding an elderly

gentleman out of his home, money, personal property, and two vintage

automobiles.     On     December    16,   2014,    appellant   pled   guilty   in   a

non-negotiated plea. The trial court ordered a pre-sentence investigation at


1
  18 Pa.C.S.A. § 5111(a)(1), 18 Pa.C.S.A. § 3921(a), and 18 Pa.C.S.A.
§ 3922(a)(1), respectively.
J. S30027/16


that time.   The trial court scheduled a sentencing hearing for February 6,

2015.     After four witnesses testified for the Commonwealth and five for

appellant, appellant announced that he was innocent of all charges. The trial

court permitted appellant to withdraw his plea.       The trial court set a trial

date of March 2, 2015. Following a trial, the jury found appellant guilty of

the charges described above.         The trial court sentenced appellant on

March 13, 2015.

        On April 6, 2015, appellant appealed to this court.             Appellant’s

attorney, Michael Huff, Esq., moved to withdraw as counsel, which the trial

court granted on May 29, 2015.       Appellant wished to continue his appeal

pro se. This court ordered that the trial court conduct a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine whether

appellant’s waiver of counsel was knowing, intelligent, and voluntary.

Following a hearing on July 31, 2015, the trial court issued an order on

August 6, 2015, which permitted appellant to continue his appeal pro se

because the trial court determined that appellant’s waiver of the right to

counsel was knowing, intelligent, and voluntary. In the order, the trial court

also decreed:

             (3)   Pursuant     to   Pa.R.A.P.     1925(b)(3),    the
                   [appellant] shall file of record with the Clerk of
                   Court a Statement of Matters Complained of on
                   Appeal within twenty (21) [sic] days from the
                   date of this Order;

             (4)   A copy of the Statement of Matters Complained
                   of on Appeal shall be served by the [appellant]


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                  upon the Clerk of Court, the trial judge and
                  counsel for the Commonwealth and in
                  accordance with the applicable Rules of Court;

            (5)   Any issue not properly raised in a timely filed
                  and properly served Statement of Matters
                  Complained of on Appeal shall be deemed
                  waived.

Trial court order, 8/6/15 at 1-2, ¶¶3-5.

      In an opinion filed with this court on November 15, 2015, the trial

court stated that appellant failed to comply with its order and did not file a

statement of matters complained of on appeal. As a result, the trial court

stated that appellant had waived any claims of error and his appeal should

be dismissed. (Trial court opinion, 11/15/15 at 3.)

      Before we can address the merits of appellant’s appeal, we must first

determine whether appellant’s issues have been waived.

            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
            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.
            We yet again repeat the principle first stated in
            [Commonwealth v.] Lord that must be applied


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            here:    “[I]n order to preserve their claims for
            appellate    review,  [a]ppellants  must     comply
            whenever the trial court orders them to file a
            Statement of Matters Complained of on Appeal
            pursuant to Pa.R.A.P. 1925. Any issues not raised in
            a Pa.R.A.P. 1925(b) statement will be deemed
            waived.” [719 A.2d 306, 309 (Pa. 1998).]

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

      Here, appellant failed to submit a concise statement of errors

complained of on appeal as ordered by the trial court. We, therefore, are

constrained to find his issues waived for the purposes of appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2016




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