J-S73012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    ALVIN WASHINGTON                      :
                                          :
                     Appellant            :   No. 1066 MDA 2017

                  Appeal from the Order Entered June 6, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005006-2013


BEFORE:      OLSON, DUBOW and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 21, 2017

        Appellant, Alvin Washington, appeals pro se from the June 6, 2017 order

denying him permission to appeal nunc pro tunc. We affirm.

        The factual background and procedural history of this case are as

follows. On September 28, 2013, Appellant struck Lisa Ganns (“Ganns”) with

a machete. Ganns suffered a significant knee injury because of this attack.

On January 20, 2015, Appellant pled guilty to one count of aggravated assault1

and was immediately sentenced to 9 to 20 years’ imprisonment. On direct

appeal, this Court affirmed the judgment of sentence. Commonwealth v.

Washington, 131 A.3d 107, 2015 WL 6087392 (Pa. Super. 2015)

(unpublished memorandum).




1   18 Pa.C.S.A. § 2702(a)(1).


* Retired Senior Judge assigned to the Superior Court
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      On October 16, 2015, Appellant filed a pro se motion for return of

property.    After counsel was appointed to represent Appellant in Post-

Conviction Relief Act proceedings, the trial court denied the motion. On June

2, 2016, after counsel withdrew, Appellant filed a second pro se motion for

return of property. On September 12, 2016, the trial court denied the motion.

      On September 28, 2016, Appellant moved for reconsideration. The trial

court did not act on that motion. On November 7, 2016, Appellant appealed

from the September 12 order denying his motion for return of property. This

Court quashed the appeal as untimely without prejudice to Appellant’s right

to seek permission from the trial court to appeal nunc pro tunc.

Commonwealth v. Washington, 1837 MDA 2016 (Pa. Super. Dec. 20,

2016) (per curiam). On December 29, 2016, Appellant filed a petition seeking

to appeal from the September 12 order nunc pro tunc.          On June 2, 2017,

Appellant filed an amended petition seeking permission to appeal nunc pro

tunc. On June 6, 2017, the trial court denied the petition. This timely appeal

followed.2

      Appellant presents three issues for our review:

      1. Did the trial court abuse its discretion by denying Appellant [the
         ability to file a nunc pro tunc appeal]?

2 On July 7, 2017, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal (“concise statement”). See Pa.R.A.P.
1925(b). On July 17, 2017, Appellant filed his concise statement. On July 19,
2017, he filed a supplemental concise statement. On July 24, 2017, the trial
court issued its Rule 1925(a) opinion. All of Appellant’s issues were included
in his concise statement.



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      2. Was the trial court’s denial of return of property an abuse of
         discretion and/or contrary to law?

      3. Was the forfeiture of Appellant’s vehicle by the Commonwealth
         unconstitutional?

Appellant’s Brief at 4.

      In his first issue, Appellant argues that the trial court erred in denying

his request to file a nunc pro tunc appeal. “The denial of an appeal nunc pro

tunc is within the discretion of the trial court, and we will only reverse for an

abuse of that discretion.” Vietri ex rel. Vietri v. Delaware Valley High

Sch., 63 A.3d 1281, 1284 (Pa. Super. 2013) (citation omitted). This Court

has explained that a

      [t]rial [c]ourt may grant an appeal nunc pro tunc when a delay in
      filing [an appeal] is caused by extraordinary circumstances
      involving fraud or some breakdown in the court’s operation
      through a default of its officers. Where an appeal is not timely
      because of non-negligent circumstances . . . and the appeal is filed
      within a short time after the appellant . . . learns of and has an
      opportunity to address the untimeliness, and the time period
      which elapses is of very short duration, and appellee is not
      prejudiced by the delay, the court may allow an appeal nunc pro
      tunc.

Fischer v. UPMC Nw., 34 A.3d 115, 122 (Pa. Super. 2011) (emphasis

removed; citation omitted).

      Appellant argues that he was not negligent in filing an untimely notice

of appeal because he was in the restricted housing unit of his prison. He avers

that the prison denied him access to paper while he was in the restricted

housing unit and, therefore, he could not file a timely notice of appeal. This



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argument is waived. “Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”      Pa.R.A.P. 302(a).    In his

amended petition, Appellant made a bald assertion that he was unable to file

a timely notice of appeal because of governmental interference.             See

Amended Petition For Nunc Pro Tunc Appeal, 6/2/17, at 1. He failed to aver

that he was unable to file a timely notice of appeal because he was in the

restricted housing unit of his prison. Thus, Appellant waived his argument

that he was unable to file a timely notice of appeal because he was denied

paper while in the restricted housing unit of his prison. The trial court only

had a bald assertion of governmental interference when it ruled on Appellant’s

petition. Under these facts, we conclude that the trial court did not abuse its

discretion by denying Appellant’s petition to appeal nunc pro tunc.

      In his second and third issues, Appellant challenges the merits of the

trial court’s denial of his petition for return of property. We lack jurisdiction

over these claims because Appellant did not file a timely notice of appeal and

we conclude that the trial court did not abuse its discretion in denying

Appellant’s request to appeal nunc pro tunc. Accordingly, we affirm the order

denying Appellant the right to file a nunc pro tunc appeal and do not reach

the merits of the underlying claims.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




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