J-S21028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

RICKY WELBORNE

                            Appellant                        No. 3039 EDA 2014


                  Appeal from the PCRA Order October 3, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1100541-2004


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                                  FILED MARCH 04, 2016

        Ricky Welborne appeals from the order entered in the Court of

Common Pleas of Philadelphia County that dismissed as untimely his second

petition filed pursuant to the Post Conviction Relief Act (PCRA).1                After

careful review, we affirm.

        On July 26, 2006, a jury convicted Welborne of first-degree murder

and possession of an instrument of crime (PIC). The trial court sentenced

him to a mandatory term of life imprisonment plus a concurrent term of 9 to

60 months.         This Court affirmed the judgment of sentence.                   See

Commonwealth           v.   Welborne,          943   A.2d   325   (Pa.   Super.   2007)

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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(unpublished memorandum). Our Supreme Court denied Welborne’s petition

for allowance of appeal. See Commonwealth v. Welborne, 946 A.2d 688

(Pa. 2008).

     Welborne filed a timely pro se PCRA petition on November 17, 2008.

Counsel was appointed and filed an amended petition alleging ineffective

assistance of trial counsel. The court dismissed the petition on September 3,

2010, and on March 7, 2012, this Court affirmed. See Commonwealth v.

Welborne, 47 A.3d 1236 (Pa. Super. 2012).

     On June 11, 2012, several years after Welborne’s judgment of

sentence became final, he filed the instant PCRA petition.    On October 3,

2014, the court dismissed the petition as untimely.

     Welborne filed a notice of appeal on October 22, 2014, and by order

dated October 27, 2014, the court directed him to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Welborne did not

file a Rule 1925(b) statement, and on December 5, 2014, the trial court

issued a Rule 1925(a) opinion stating that it would not address any issues

due to Welborne’s failure to file a Rule 1925(b) statement.

     On appeal to this Court, Welborne raises the following issues for our

review:

     1. Did the trial court commit reversible error when it failed to
        instruct the jury on third-degree murder?




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       2. Did the trial court commit reversible error when it failed to
          give a Kloiber2 instruction as to the eyewitness testimony of
          James Ruffin?

       3. Did the trial court commit reversible error when it failed to
          read a complete and accurate jury instruction concerning
          circumstantial evidence to the jury?

       4. Was trial counsel ineffective for failing to argue evidence
          regarding the voluntariness of [Welborne’s] statement made
          to the police?

Appellant’s Brief, at [4].

       With respect to the failure to file a Rule 1925(b) statement, our

Supreme Court has stated:

       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 [719 A.2d
       306 (Pa. 1998)] that must be applied 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 [Errors] 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 at 309.

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


2
    Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).



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       In light to Welborne’s failure to file a Rule 1925(b) statement, we

affirm the order of the PCRA court.3

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




____________________________________________


3
  Even if Welborne had filed a timely Rule 1925(b) statement, he would not
be entitled to relief. Any petition under the PCRA must be filed within one
year of the date the judgment of sentence becomes final. 42 Pa.C.S.
9545(b)(1). Welborne’s judgment of sentence became final on July 8, 2008,
when the time in which to file a petition for a writ of certiorari in the United
States Supreme Court expired. See U.S. S.Ct. R. 13. Because Welborne
has failed to allege and prove any of the exceptions to the time bar set forth
in section 9525(b)(1)(i)-(iii), the petition was untimely.        “An untimely
petition renders this Court without jurisdiction to afford relief.”
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citation
omitted).



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