Com. v. Nellom, F.

• Court: Superior Court of Pennsylvania
• Decided: May 2, 2017
• Docket: Com. v. Nellom, F. No. 2178 EDA 2016
• Status: Unpublished

Opinion

J-A13031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANK NELLOM : : Appellant : No. 2178 EDA 2016

Appeal from the Judgment of Sentence June 20, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0008070-2013

BEFORE: LAZARUS, OTT, and FITZGERALD, JJ.*

MEMORANDUM BY FITZGERALD, J.: FILED MAY 02, 2017

Appellant, Frank Nellom, appeals from the judgment of sentence

entered at CR-8070-2013 in the Delaware County Court of Common Pleas

following revocation of his parole. We dismiss the appeal and deny both

parties’ motions.

The relevant facts and procedural history of this appeal are as follows.

The trial court convicted Appellant of two counts of driving under the

influence (“DUI”)1 on October 22, 2014, and sentenced him to seventy-two

hours’ to six months’ imprisonment on February 19, 2015. Thereafter,

Appellant timely filed a pro se petition pursuant to the Post-Conviction Relief ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 75 Pa.C.S. § 3802(a)(1), (c). J-A13031-17

Act (“PCRA”)2 challenging his DUI convictions. On June 30, 2015, the court

issued an order appointing counsel and setting forth a filing schedule.

Counsel filed an application to withdraw and a “no merit” letter on

September 9, 2015, to which Appellant responded pro se.

On May 5, 2016, a jury convicted Appellant at CR-1043-2016 of simple

assault.3 The court subsequently sentenced Appellant on June 20, 2016.

That same day, the court conducted a Gagnon II4 hearing, revoked

Appellant’s parole at CR-8070-2013, and ordered him to serve the full back

time of 174 days to run concurrent with his sentence at CR-1043-2016.

Appellant timely appealed pro se from the parole revocation and complied

with the court’s Pa.R.A.P. 1925(b) order. The court issued a responsive

opinion in which it stated that Appellant’s PCRA petition would be “stayed”

pending the instant appeal, and that the court would not file Pa.R.Crim.P.

907 notice “unless instructed otherwise.” Trial Ct. Op., 11/10/16, at 1.

Appellant raises the following issue pro se:

Should the trial court’s request to delay judgment after 18 months on [a] properly filed PCRA petition claim that the affidavit of probable cause[] and preliminary hearing testimony of the arresting officer of record establish[] [a] violation of [p]ublic [p]olicy which vitiated the evidence ____________________________________________

2 42 Pa.C.S. §§ 9541-9546. 3 Appellant has filed a separate appeal from his simple assault conviction, which has been docketed in this Court at 2179 EDA 2016. 4 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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necessary to convict of DUI[?] [Does] [t]he Commonwealth having voice[d] no opposition require the trial court judgment [to] be vacated with prejudice?

Appellant’s Brief at 6.

It is well settled that while a pro se litigant is granted the same rights,

privileges, and considerations as those accorded an appellant represented by

counsel, pro se status does not entitle an appellant to any particular

advantage because the appellant lacks legal training. See Commonwealth

v. Rivera, 685 A.2d 1011, 1013 (Pa. Super. 1996). Appellant has a duty to

file a comprehensible brief and to raise and develop his issues sufficiently for

appellate review. See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.

Super. 2007). Accordingly, “a pro se litigant must comply with the

procedural rules set forth in the Pennsylvania Rules of Court.”

Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003) (citation

omitted). This Court may quash or dismiss an appeal if an appellant fails to

conform to the requirements set forth in the Pennsylvania Rules of Appellate

Procedure. See Pa.R.A.P. 2101.

Instantly, Appellant has failed to raise any issues regarding his

Gagnon II hearing or revocation sentence. Rather, Appellant raises

challenges to his underlying DUI convictions as well as the court’s decision to

stay judgment on his pending PCRA petition. Nevertheless, as Appellant

never filed a direct appeal from his DUI convictions, any claims pertaining to

these underlying convictions are waived. See Commonwealth v. Infante,

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888 A.2d 783, 790 (Pa. 2005) (“the scope of review in an appeal following a

sentence imposed after . . . revocation is limited to the validity of the

revocation proceedings and the legality of the sentence imposed following

revocation”); see also Pa.R.A.P. 903(a). Furthermore, the trial court’s June

30, 2015 order in the PCRA proceeding, which Appellant appears to

challenge in this appeal, is not a final, appealable order, nor has a final order

been entered in that matter. See Pa.R.A.P. 341. Therefore, because

Appellant has failed to properly raise and argue any issues pertaining to his

parole revocation hearing, we dismiss the appeal, deny Appellant’s

Emergency Application for Order,5 and deny the Commonwealth’s Motion to

Strike as moot.6

Appeal dismissed; Appellant’s Emergency Application denied;

Commonwealth’s Motion to Strike denied.

____________________________________________

5 Appellant’s emergency application claims his suspended driver’s license should be reinstated so that he may continue his produce delivery service. 6 The Commonwealth’s motion alleges that Appellant is not entitled to oral argument without this Court’s permission, as he is purporting to appeal from a PCRA order.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/2/2017

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