Com. v. Perralta, E.

• Court: Superior Court of Pennsylvania
• Decided: May 26, 2026
• Docket: 435 MDA 2025
• Status: Unpublished
• Author: Bender

Opinion

J-S14045-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EMELIO PERRALTA : : Appellant : No. 435 MDA 2025

Appeal from the PCRA Order Entered April 1, 2025 In the Court of Common Pleas of Lancaster County Criminal Division at No. CP-36-CR-0006636-2019

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: MAY 26, 2026

Emelio Perralta (Appellant) appeals pro se from the order, following

remand, which denied his petition filed pursuant to the Post-Conviction Relief

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

On November 23, 2019, Appellant was arrested and charged with

delivery of fentanyl, delivery of fentanyl resulting in death, and possession

with intent to deliver (PWID) fentanyl. See Commonwealth v. Perralta,

329 A.3d 638, 690 MDA 2023, 2024 WL 4533600 at *1 (Pa. Super. filed Oct.

21, 2024) (unpublished memorandum). We previously explained:

On December 9, 2021, [a] jury convicted Appellant of all charges. On March 9, 2022, the trial court sentenced Appellant to an aggregate term of imprisonment of 9 to 18 years’ incarceration, consisting of consecutive sentences of 6 to 12 years for the drug delivery resulting in death conviction and 3 to 6 years for PWID[,] and concurrent sentences of 2 to 5 years on the other charges. Appellant filed timely direct appeals but discontinued the appeals on April 21, 2022. J-S14045-26

Id. at *2 (citations omitted).

On April 29, 2022, Appellant filed a pro se PCRA petition claiming that

his trial counsel was ineffective. The PCRA court appointed counsel, who filed

an amended PCRA petition. The PCRA court held a hearing on January 3,

2023, and issued an order denying relief on April 19, 2023. Appellant filed a

pro se appeal claiming that both trial counsel and PCRA counsel were

ineffective. The PCRA court appointed new counsel to represent Appellant on

appeal. This Court affirmed the PCRA court’s ruling regarding “the ground for

relief litigated below … but vacate[d] in part its denial of the PCRA petition and

remand[ed] for the PCRA court to address five claims of PCRA counsel

ineffectiveness that Appellant has raised in this appeal.” Id. at *1; see

Commonwealth v. Bradley, 261 A.3d 381, 401-05 (Pa. 2021) (holding an

appellant may raise claims of PCRA counsel’s ineffectiveness for the first time

on appeal when PCRA counsel represented the appellant until the appeal). We

explained that we were

remand[ing] for the PCRA court to address and, if necessary, conduct further proceedings on [Appellant’s five] claims that PCRA counsel was ineffective for not seeking relief based on trial counsel’s failure to call an alibi witness, failure to challenge consolidation of the cases, failure to challenge the admissibility of cellphone evidence, failure to bring out evidence of a relationship between the lead detective and witness Blantz and his family, and failure to move to suppress Blantz’s out-of-court identification of Appellant.

Perralta, supra at *7.

-2- J-S14045-26

Following remand, the PCRA court appointed new counsel to represent

Appellant, and directed counsel to file an amended PCRA petition “asserting

those claims [identified by the Superior Court] that [counsel] finds to be

meritorious or a no-merit letter.” Order, 12/5/24, at 2.

On March 3, 2025, counsel filed a motion to withdraw and no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

March 6, 2025, the PCRA court issued separate orders granting the motion to

withdraw and providing Appellant with notice of the court’s intention to dismiss

his petition pursuant to Pa.R.Crim.P. 907. The PCRA court entered the order

denying Appellant’s PCRA petition on April 1, 2025. Appellant filed a pro se

notice of appeal.1,2

Critically, Appellant has failed to file a Pa.R.A.P. 1925(b) concise

statement as ordered by the PCRA court. In his notice of appeal, prior to

being ordered to file a Rule 1925 concise statement, Appellant states that he

“verif[ies] the contents of this statement of errors complained of on appeal is ____________________________________________

1 Appellant filed his notice of appeal on March 28, 2025, in response to the

PCRA court’s March 6, 2025 notice of intention to dismiss the PCRA petition. Although the PCRA court did not enter its final order denying relief until April 1, 2025, Pa.R.A.P. 905(a)(5) provides that a “notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.”

2 Pennsylvania law “forbids appointment of new counsel where a proper Turner/Finley no-merit letter has been accepted and counsel was permitted to withdraw.” Commonwealth v. Williams, 204 A.3d 489, 493 (Pa. Super. 2019) (citation omitted). Instead, a petitioner must use their own resources to retain counsel or proceed pro se. Id.

-3- J-S14045-26

true and correct to the best of my first hand knowledge and beliefs and are

not to mislead anyone.” Notice of Appeal, 3/28/25, at 3. However, Appellant

did not raise or identify any claims of error. The PCRA court subsequently

“issued an [o]rder requiring [Appellant] to file a statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on or before April 30,

2025.” Pa.R.A.P. 1925 Opinion, 5/13/25, at 1. Appellant did not comply with

the order, and thus the PCRA concluded “all claims of error are waived.” Id.

We agree.

Issues not included in a court-ordered concise statement are waived.

Pa.R.A.P. 1925(b)(4)(vii). We have explained that “failure to comply with the

minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver.”

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 224 (Pa. Super. 2014) (en banc) (citation omitted). Likewise, our

Supreme Court has stated that an appellant’s “failure to comply with the PCRA

court’s order to file a Rule 1925(b) statement result[s] in the automatic waiver

of any issues he may have raised on appeal.” Commonwealth v. Butler,

812 A.2d 631, 634 (Pa. 2002) (finding “Superior Court properly deemed

[a]ppellant’s issues waived under Rule 1925, notwithstanding that the

Commonwealth never briefed or argued Rule 1925 waiver”).3 While we

recognize that Appellant is pro se, his pro se status “confers no special

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

____________________________________________

3 The Commonwealth has not filed an appellate brief in this case.

-4- J-S14045-26

For the above reasons, we affirm the PCRA court’s order denying

Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/26/2026

-5-