Com. v. Tucker, W.

• Court: Superior Court of Pennsylvania
• Decided: September 17, 2024
• Docket: 62 WDA 2024
• Status: Unpublished

Opinion

J-S29015-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WESLEY A. TUCKER, : APPELLANT : : No. 62 WDA 2024

Appeal from the PCRA Order Entered December 21, 2023 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0000449-2012

BEFORE: DUBOW, J., KING, J., and BENDER, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED: September 17, 2024

Wesley A. Tucker appeals pro se from the order denying his first petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46

(“PCRA”). In his brief, he challenges the stewardship of trial counsel and the

discretionary aspect of his sentence. Due to Appellant’s failure to file his

Pa.R.A.P. 1925(b) Statement as ordered by the court, Appellant waived his

issues. We, thus, affirm the order denying PCRA relief.

Following a trial in July of 2014, a jury convicted Appellant of Rape by

Forcible Compulsion, Terroristic Threats with Intent to Terrorize Another,

Indecent Assault Without Consent of Other Party, Unlawful Restraint Causing

serious Bodily Injury, and Simple Assault. The court sentenced him to 11½

to 34 years’ incarceration. On appeal, this Court vacated the sentence and

remanded for resentencing to reflect the merger of Indecent Assault with Rape

for purposes of sentencing. The court resentenced Appellant on July 6, 2016, J-S29015-24

to 11 to 32 years’ incarceration. Appellant filed a post-sentence motion

challenging, inter alia, his sentence as excessive. This Court affirmed

Appellant’s judgment of sentence and the Supreme Court denied allowance of

appeal on July 31, 2018. He sought no further relief. His sentence, thus,

became final on October 29, 2018.

On November 4, 2019, Appellant filed pro se a timely PCRA petition. On

November 20, 2019, Appellant’s counsel moved to withdraw his appearance.

On November 21, 2019, the court granted counsel’s motion and appointed

PCRA counsel, directing counsel to file an Amended PCRA Petition or a

Turner/Finley1 letter within 30 days. On December 2, 2022,2 appointed

counsel filed a Turner/Finley letter and a Motion to Withdraw as counsel. On

November 15, 2023, the PCRA court filed a Pa.R.Crim.P. 907 Notice of Intent

to Dismiss without a hearing. The court also indicated it would hold counsel’s

motion to withdraw until after receiving Appellant’s response to the Rule 907

Notice. Appellant filed a pro se motion to proceed in forma pauperis and an

extension to file a response to the court’s Rule 907 Notice. The court granted

the motion for an extension and Appellant filed a pro se Response. On

December 5, 2023, the court entered an order granting counsel’s motion to

withdraw and dismissing the Petition. Following Appellant’s motion for

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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988).

2The delay of three years is explained by PCRA counsel having filed 15 motions for extension of time to comply with the court’s order.

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reconsideration, on December 21, 2023, the court entered an order

acknowledging receipt of Appellant’s Rule 907 response and reaffirming its

order dismissing the Petition entered on December 5, 2023.

Appellant filed a timely appeal. On January 24, 2024, the PCRA court

ordered Appellant to file of record and serve on the judge a Concise Statement

of the Errors Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b),

indicating, inter alia, that the failure to file the Statement would result in

waiver. Appellant sent the Honorable Scott O. Mears, Jr., a Rule 1925(b)

Statement but he failed to file it with the clerk of courts. Judge Mears issued

a Rule 1925(a) Opinion noting, inter alia, Appellant’s failure to file the Rule

1925(b) Statement. PCRA Ct. Op., filed 3/7/24, at 2 n.2.

Although pro se Appellant raises six issues for our review, we are

constrained to find them waived. Our precedential case law provides that the

failure to file a court-ordered Rule 1925(b) Statement with the clerk of courts

results in waiver of all issues on appeal. See Commonwealth v. Butler, 812

A.2d 631, 634 (Pa. 2002) (applying the holding of Commonwealth v. Lord,

719 A.2d 306 (Pa. 1998) to PCRA appeals). An appellant does not satisfy Rule

1925(b) if he merely mails his Statement to the presiding judge. Butler, 812

A.2d at 634. Our review of the record and docket entries reveals that

Appellant did not file his Rule 1925(b) Statement as directed. Accordingly,

Appellant waived the issues raised in his brief. We, thus, affirm the order

denying Appellant’s first PCRA petition.

Order affirmed.

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President Judge Emeritus Bender joins the memorandum.

Judge King concurs in result.

DATE: 9/17/2024

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