Com. v. Smith, R.

• Court: Superior Court of Pennsylvania
• Decided: April 8, 2021
• Docket: 2717 EDA 2018
• Status: Unpublished

Opinion

J-S46020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAFIQ SMITH : : Appellant : No. 2717 EDA 2018

Appeal from the PCRA Order Entered August 28, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003850-2013

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: Filed: April 8, 2021

Appellant, Rafiq Smith, appeals pro se from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

On April 10, 2014, a jury convicted Appellant of rape, involuntary

deviate sexual intercourse (“IDSI”), robbery, sexual assault, and kidnapping.1

The convictions stem from an attack committed against a woman after she

had an evening out with her coworkers and approached her public transit train.

On May 15, 2015, the trial court found Appellant to be a sexually violent

predator and sentenced him to serve an aggregate term of incarceration of

twenty to forty years. This Court affirmed Appellant’s judgment of sentence

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1 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3701(a)(1), 3124.1, and 2901(a)(2), respectively. J-S46020-20

on July 11, 2016, and our Supreme Court denied his petition for allowance of

appeal on December 13, 2016. Commonwealth v. Smith, 154 A.3d 849,

1777 EDA 2015 (Pa. Super. filed July 11, 2016) (unpublished memorandum),

appeal denied, 164 A.3d 456 (Pa. 2016).

On December 1, 2017, Appellant timely filed, pro se, the instant PCRA

petition. Court appointed counsel entered his appearance on December 18,

2017. On July 23, 2018, counsel filed a Turner/Finley no-merit letter.2 On

July 31, 2018, the PCRA court entered a Pa.R.Crim.P. 907 notice of intent to

dismiss the PCRA petition without a hearing. Appellant filed a response, in

which he requested an extension of time to file objections and leave to amend

his PCRA petition on August 24, 2018. On August 28, 2018, the PCRA court

entered an order dismissing the PCRA petition and granting counsel’s motion

to withdraw. This timely appeal followed. Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

1. Should the Court review the PCRA proceedings sua sponte, because the [c]ourt below erred in accepting and ruling on Appellant’s pro-se motions, including a pro-se Response to the [PCRA c]ourt’s Rule 907 Notice of Intent to Dismiss when the pro- se pleadings constituted hybrid representation and therefore a nullity because PCRA counsel, though he abandoned Appellant, was still counsel of record having not been permitted to withdraw from representation?

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)

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Appellant’s Brief at 4.

In his sole claim for relief, Appellant argues that the PCRA court erred

in accepting his pro se response to the PCRA court’s Rule 907 notice of intent

to dismiss. Appellant’s Brief at 10-15. Appellant contends that although

counsel had requested to withdraw, the motion had not been granted and

Appellant’s pro se filing was the equivalent of hybrid representation. Id. at

11. Appellant asserts that his pro se filing was a legal nullity. Id. at 13.

Before we address the merits of Appellant’s issue, we must determine

whether the claim presented has been properly preserved for our

consideration. Our Courts have consistently ruled that where a lower court

directs a defendant to file a concise statement pursuant to Pennsylvania Rule

of Appellate Procedure 1925, any issues not raised in that statement shall be

waived. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008)

(citing Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998)). In

Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002), our Supreme

Court reaffirmed its holding in Lord and stated: “In Lord, however, this Court

eliminated any aspect of discretion and established a bright-line rule for waiver

under Rule 1925 …. Thus, waiver under Rule 1925 is automatic.” See also

Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa. Super. 2008) (noting

that Lord “requires a finding of waiver whenever an appellant fails to raise an

issue in a court-ordered Pa.R.A.P. 1925(b) statement”).

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We are mindful that Rule 1925 is intended to aid trial judges in

identifying and focusing upon those issues that the parties plan to raise on

appeal. The absence of a trial court opinion addressing a particular claim

poses a substantial impediment to meaningful and effective appellate review.

Commonwealth v. Lemon, 804 A.2d 34, 36 (Pa. Super. 2002). Rule 1925

is thus a crucial component of the appellate process. Lemon, 804 A.2d at 37.

“When a court has to guess what issues an appellant is appealing, that is not

enough for meaningful review.” Commonwealth v. Dowling, 778 A.2d 683,

686 (Pa. Super. 2001). In addition, claims that are not raised before the trial

court are waived. See Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.

Super. 2000) (stating that “[a] claim which has not been raised before the

trial court cannot be raised for the first time on appeal.”); Commonwealth

v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006) (citing Commonwealth v.

Gordon, 528 A.2d 631, 638 (Pa. Super. 1987) (reiterating that “[a] theory of

error different from that presented to the trial jurist is waived on appeal, even

if both theories support the same basic allegation of error which gives rise to

the claim for relief.”)).

Our review of the certified record reflects that on September 17, 2018,

the PCRA court issued an order directing Appellant to file a Pa.R.A.P. 1925(b)

statement within twenty-one days. The record further reflects that after the

granting of multiple extensions of time, Appellant filed his Rule 1925(b)

statement on February 15, 2019. Appellant’s Rule 1925(b) statement

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contained ten issues. However, the Rule 1925(b) statement did not include

the issue Appellant currently presents to this Court. Accordingly, we are

constrained to conclude that this issue is waived. Bullock, 948 A.2d at 823.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/8/21

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