J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THEOPHILUS L. BALDWIN

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1811 MDA 2019
Appeal from the PCRA Order Entered October 9, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0000302

- 2014

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 23, 2021

Theophilus L. Baldwin (Appellant) appeals pro se 1 from the order

dismissing his petition filed pursuant to the Post Conviction Relief Act
, 42

Pa.C.S.A. §§ 9541

- 9546. We affirm.

The PCRA court summarized the relevant background as follows :

The procedural history of this case is somewhat convoluted. . . . [Appellant] was charged with several violations of the controlled substance, drug, device and cosmetic a ct, 35 P.S. § 780

- 101, et seq . (Controlled Substances Act). Several of the charges against [Appellant] were severed and two were nol prossed

. [Appellant] was prosecuted for the remaining severed charges under the criminal i nformation docketed at [No. 686

- 2015] , wherein [Appellant] entered a plea of guilty. Under the instant docket, [ i.e.
, CP

- 14

- CR

- 0000302

- 2014 ( No. 302

- 2014)), Appellant] was tried by a jury of his peers and found guilty of four violations of the Controlled Substances Act on November 4, 2014. [Appellant]

_________________ __________ ______ ____ _______

1 Appellant has also filed a counseled appeal at a separate docket, CP

- 14

- CR

686

- 2015 (No. 686

- 2015)
, which is before this panel at No. 1795 MDA 2019, and in which Appellant challenges the dismissal of a different PCRA petition

.J

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- 2

-

was subsequently sentenced on December 18, 2014. [Appellant ’s ] sentence was amended on February 12, 2015, following [Appellant ’s ] post

- sentence motion. [Appellant ] filed a notice of appeal to the Superior Court and [the trial] court’s judgment of sentence was affirmed. See Commonwealth v. Baldwin
, 144 A.3d 185 (Pa. Super. 2016) (unpublished memorandum). [Appellant did not seek allowance of appeal with the Pennsylvania Supreme Court.]

[Appellant ] filed his first pro se PCRA petition on October 11, 2016.

. . . [Appellant] was assigned [] PCRA counsel but then he hired private counsel to argue his PCRA claims under the current docket. [Appellant ’s] private counsel was granted leave to withdraw as counsel for personal reasons and [Appellant ] was assigned new PCRA counsel, Attorney Justin P . Miller [(Attorney Miller)] . On October 9, 2018, [Appellant] filed a second pro se PCRA petition. [ 2 ] On January 28, 2019, [the PCRA] court directed [ Attorney Miller] to file an amended PCRA petition. On July 29, 2019, [ Attorney Miller] filed a motion for leave to withdraw
appearance and attached a . . . “No Merit” brief[, 3 pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ) ]

. [The PCRA] court filed a notice of intention to d ismiss the PCRA petition on August 21, 2019 [(907 notice) , and the court permitted Attorney Miller to withdraw as counsel ]

. [Appellant] filed his response to the [907] notice

. . . on September 18, 2019.

_________________ __________ ______ ____ _______

2 On October 29, 2018, Appellant filed a pro se motion asking the PCRA court to consolidate No. 302

- 2014 and No. 686

- 2015 . Appellant asserted, inter alia
, that the “factual nexus and legal premise for both cases are closely tied, and facts in support of ea ch case relate to the other.” The PCRA court denied the motion on November 13, 2018.

3 Attorney Miller opined
, inter alia , that Appellant wanted to raise claims that were not cognizable under the PCRA. Attorney Miller further stated that Appellant’s claim of improper severance of No. 302

- 2014 and No. 686

- 2015 was previously rejected by the Superior Court on direct appeal, a nd there was no merit to Appellant’s claim that tampering with evidence by a police officer impacted Appellant’s case.J

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-

PCRA Court Opinion, 1/3/20 , at 1

- 2 (unnumbered ) (footnotes added
, citations

modified, some capitalization omitted ).

By order entered October 9, 2019, the PCRA court dismissed Appellant’s

petition without a hearing

. On November 4, 2019, Appellant filed a pro se

notice of appeal (Notice)

. 4 On November 22, 2019, the PCRA court entered

an order , which it served upon Appellant, directing him to file a Pa.R.A.P.

1925(b) concise s tatement of errors complained of on appeal “ within twenty

one (21) days of the filing of this Order.” Concise Sta tement Order,

11/22/19

. 5 The order advised Appellant that “ any issue not properly included

in the timely filed Statement shall be deemed waived by the app ellate court. ”

Id.

As stated above, Appellant filed a counseled and timely Rule 1925(b)

statement at No . 686

- 2015

. I n this case, however, Appellant fil ed a pro se

Rule 1925(b) statement on December 16, 2019
, which was late by three days

.
On January 3, 2020, the PCRA court issued a Rule 1925(a) o pinion briefly

address ing Appellant’s claims

.

_________________ __________ ______ ____ _______

4 The N otice mistakenly listed the date of the order on appeal as October 2, 2019. Appellant ’s brief on appeal, however, includes the co rrect order, entered October 9, 2019. Also
, although the Notice’s caption list s No. 302

- 2014
, A ppellant wrote on the caption
, “Changed to CP

- 14

- CR

- 686

- 2015.”

5 One week p rior to the concise statement order, at No. 686

- 2015 , Appellant filed a counseled Ru le 1925(b) statement, p ursuant to a separate order entered on October 29, 2019. The PCRA court in No. 686

- 2015 subsequently issued an opinion rejecting the merits of Appellant’s claims.J

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-

Appellant has failed to preserve his issues for review

. Our well

- settled

jurisprudence sets forth a “clear ” and “bright

- line” rule that mandates

appellants to timely “ file and serve a Rule 1925(b) statement, when so

ordered; any issues not raised in a Rule 1925(b) statement will be deemed

waived[.]” Commonwealth v. Hill
, 16 A.3d 484, 494 (Pa

. 2011) (relying on

Commonwealth v. Lord
, 719 A.2d 306, 309 (Pa. 1998) ); see also

Commonwealth v. Butler
, 812 A.2d 631, 633

- 34 (Pa. 2002). Further, the

Superior Court does “ not have the discretion to countenance deviations from

the Rule’ s requirements [

. ]” Hill
, 16 A.3d at 494 ; see also id. (holding “ the

Rule’ s provisions are not subject to ad hoc excepti ons or selective

enforcement ” ). The Supreme Court in Hill cited with approval the Court’s

prior holding in Commonwealth v
. Castillo
, 858 A.2d 1156 (Pa. 2004)

(reaffirming that failure to file a timely 1925(b) statement, regardless of the

length of the delay, results in automatic waiver)

. Hill
, 16 A.3d at 492.

Castillo “ disapproved of
, inter alia
, Commonwealth v. Alsop
, 799 A.2d 129

(Pa. Super. 2002), which h ad permitted merits review of issues raised in

untimely Rule 1925 (b) statement because trial court discussed issues in Rule

1925(a) opinion .” Hill
, 16 A.3d at 492 (citing Castillo ) ; see also Greater

Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc. , 88 A.3d 222, 225

(Pa. Super. 2014) ( en banc ) ( same).

Here , the court’s order directe d Appellant to file a Rule 1925(b )

s tatement within 21 days of November 22, 2019

. Appellant filed theJ

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- 5

-

statement 3 days late. 6 Consistent with the foregoing legal authority
, we “do

not have discretion to countenance deviations from the Rule’s requirements,”

and Appellant ’s issues are waived

. See Castillo
, supra ; Hill
, supra

. 7

Even if not waived, Appellant ’s claims do not merit relief. Appellate

courts review a PCRA court’s dismissal of a PCRA petition for an abuse of

discretion. Commonwealth v. Roney , 79 A.3d 595, 60 3 (Pa. 2013). Here,

t he PCRA court addressed Appellant’s contention that he:

was denied a fair and meaningful PCRA process because his PCRA
p etition was denied without a hearing, and [ Attorney Miller] rendered ineffective assistance of counsel by not pursuing [Appellant’s] claims. Upon receipt of Attorney Miller’ s Turner / Finley “ No Merit” brief, the c ourt reviewed it, as well as [Appellant’s] numerous letters addressed to this c ourt, and [Appellant’s] pro se PCRA p etition. In paragraph 5(ii) of his PCRA
p etition, [Appellant] alleges he pled guilty to the charges against him under the criminal information docketed at No. 686

- 2015 with insufficient information
, because he was unaware that former State College Police Department Sergeant Thomas E. Dann pled guilty to tampering with evidence in [Appellant’s] case. In paragraph 6 of th e PCRA p etition, [Appellant] again contests his negotiated guilty plea [at N o. 686

- 2015 ,] and argues the [trial]

_________________ __________ ______ ____ _______

6 Appellant did not request, nor did the PCRA court grant, an extension of time to file the underlying 1925(b) statement.

7 We recognize that when “a Rule 1925(b) statement is filed late by a represented criminal defendant, such constitutes per se ineffectiveness so that the proper remedy is to remand for the filing of such a statement nunc pro tunc .” Commonwealth v. Grohowski
, 980 A.2d 113, 114 (Pa. Super. 2009) (emphasis added, citation omitted) ; see also Pa.R.A.P. 1925(c)( 3)

. H owever, in this appeal, Appellant is pro se

. See Commonwealth v. Blakeney , 108 A.3d 739, 766 (Pa. 2014) (“ Although the courts may liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon a litigant , and a court cannot be expected to become a litigant’s counsel [.]”). We further note that Appellant is represented by counsel in his appeal from the PCRA order at No. 686

- 2014

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c ourt erred in allowing the Commonwealth to amend the Information after trial.

Neither issue [Appellant] raises reflects the criminal proceedings that occurred under the current docket . The issue regarding the amendment of the criminal information was resolved by the Superior Court, and that argument was renewed by [Appellant’s] PCRA c ounsel under No. 686

- 2015. See Commonwealth v. Bald win
, 181 A.3d 1254 (Pa. Super. 2017) (unpublished memorandum) [(stating, inter alia , that “[w] here the court’s assignment of a new docket number on the severed charges was merely an administrative act to clarify the docket with regard to the remaining, sev ered charges, we find no error,” and holding that jurisdiction was not lacking

. Id. at *6).] The issues presented in [Appellant’s] response to this c ourt’ s [907] n otice

. .

. also alleged [ Attorney Miller] was ineffective by not pursuing [Appellant’s] claims

. [Appellant] also raised a ju risdictional issue
, stating the c ourt did not have jurisdiction to accept his guilty plea while the judgment of sentence in the instant docket was on appeal in the Superior Court. Again, this issue has been argued unde r No. 686

- 2015, and it was not properly before this c ourt under the current docket. [Appellant] has PCRA representation under No. 686

- 2015, and the [PCRA] court’ s decision to dismiss [Appellant’s] PCRA p etition without a hearing under that docket is currently on appeal to the Superior Court.

PCRA Court Opinion, 1/3/20, at 4

- 5 (unnumbered) ( emphasis added, citations

modified , some capitalization omitted ).

Our review confirms the accuracy of the PCRA court’s assess ment.

Accordingly, we affirm the di smiss al of Appellant’s pro se PCRA petition.

Order affirmed; Application denied. 8

_________________ __________ ______ ____ _______

8 On November 24 , 2020, Appellant filed a pro se application for relief with this Court (Applicat ion). Appellant essentially seeks leave to refile appendices to his appellate brief, including a copy of his 1925(b) statement a nd other documents. We have reviewed the documents attached to the Application, which also appear of record. Therefore, we de ny the Application as moot.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/23/2021