J-S02019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GABRIEL ESPINAL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 692 MDA 2021

Appeal from the PCRA Order Entered April 21, 2021

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0001761-2008

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.: FILED: JUNE 29, 2023

Appellant, Gabriel Espinal, appeals pro se from the order entered April 

21, 2021, dismissing his petition filed pursuant to the Post Conviction Relief 

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

The PCRA court summarized the relevant facts and procedural history 

of this case as follows. 

On February 26, 2009, following a two-day jury trial, Appellant 

. . . was found guilty of criminal attempt to commit criminal 

homicide, two counts of aggravated assault, simple assault, 

firearms not to be carried without a license, and possessing 

instruments of [a] crime. On March 27, 2009, Appellant was 

sentenced to an aggregate term of [22 to 44] years[’ 

incarceration], to be served in a state correctional facility. 

Thereafter, Appellant filed a counseled appeal that was later 

dismissed [by this Court on October 7, 2009] for failure to file 

a brief. 

On December 4, 2009, Appellant, through [original direct 

appeal] counsel, filed his first [PCRA petition in which counsel 

attempted to assert his own ineffectiveness in the direct appeal 

proceedings. The PCRA court dismissed the petition and an 
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appeal followed. This] Court quashed the appeal for lack of 

jurisdiction due to the untimeliness of the notice of appeal. 

[See Commonwealth v. Espinal, 13 A.3d 995 (Pa. Super. 

2010)]. 

Appellant filed his second PCRA petition on January 13, 2011, 

and the [PCRA] court appointed counsel, who then filed an 

amended petition. [On January 12, 2012,] the [PCRA] court 

granted PCRA relief and reinstated Appellant[‘s direct appeal 

rights nunc pro tunc]. Counsel filed [a direct appeal nunc pro 

tunc but, ultimately, this Court] affirmed Appellant’s judgment 

of sentence. [See Commonwealth v. Espinal, 60 A.3d 563 

(Pa. Super. 2013). Our Supreme Court subsequently denied 

allocatur on January 29, 2013. See Commonwealth v. 

Espinal, 63 A.3d 774 (Pa. 2013)]. 

On April 27, 2013, Appellant filed a document entitled “Informal 

Pro Se Petitioner Request for Discovery,” which [the PCRA] 

court denied for lack of jurisdiction. In a subsequent filing dated 

July 8, 2013, Appellant requested copies of various transcripts 

and renewed his request for discovery, indicating that he 

intended to file another PCRA petition. However, finding that 

no such PCRA petition had been filed, th[e PCRA court] denied 

the request as no matter was currently pending before the 

court. 

On September 5, 2013, Appellant filed a subsequent pro se

PCRA petition. On [January 2, 2014], th[e PCRA] court again 

assigned PCRA counsel to represent Appellant in the new PCRA 

matter. On December 1, 2014, PCRA counsel filed a [no-merit]

letter pursuant to Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988) and Commonwealth v. Turner, 544 A.2d 

927 (Pa. 1988) and a petition to withdraw as counsel. On 

December 18, 2014, th[e PCRA] court granted PCRA counsel’s 

petition to withdraw and filed a notice of intent to dismiss the 

petition without an evidentiary hearing pursuant to 

Pa.R.Crim.P. 907(a). On January 6, 2015, Appellant filed a [pro 

se] response to the court’s notice of intent to dismiss in which 

he claimed that he should be provided a copy of his transcript 

and that he should be provided new appointed counsel. In so 

doing, Appellant asserted that “it [was] highly unlikely that 

[PCRA] counsel found that no constitutional violations occurred 

during [Appellant’s] trial as it is well-known that no trial is 

perfect.” Appellant further argued that if provided his 

transcript[,] he could assert additional claims. Thereafter, on 
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January 26, 2015, th[e PCRA] court dismissed Appellant’s 

petition without an evidentiary hearing. The same day, [the 

PCRA court] ordered that Appellant be provided with the 

transcripts of his trial and sentencing. 

On February 25, 2015, Appellant filed a notice of appeal, dated 

February 18, 2015, to th[is Court]. By order dated April 23, 

2015, [this Court] dismissed Appellant’s appeal for failure to 

comply with Pa.R.A.P. 3517.

On October 8, 2020, Appellant filed the instant pro se PCRA 

petition. While Appellant acknowledged that the petition was 

untimely, he claim[ed] that he [was] eligible for the 

governmental interference exception pursuant to 42 Pa.C.S.A. 

§ 9545(b)(1)(i) because the [PCRA] court denied his July [8,]

2013 request for transcripts[.] 

Th[e PCRA] court filed a [Rule 907 Notice] on December 2, 

2020, citing Appellant’s untimely petition and his failure to 

[validly invoke] any of the exceptions to the time[-bar] under 

42 Pa.C.S.A. § 9545(b)(1). On December 22, 2020, Appellant 

filed a response to the [PCRA] court’s notice [arguing that the 

PCRA court’s failure to provide him with transcripts and 

discovery before he filed his PCRA petition constituted 

governmental interference and, as such, his petition was timely 

pursuant to Section 9545(b)(i)(1)]. On April 21, 2021, th[e 

PCRA] court issued an order dismissing Appellant’s petition. 

[On May 16, 2020, Appellant filed a timely notice of appeal to 

this Court]. 

PCRA Court Statement in Lieu of Opinion, 7/8/21, at *1-*3 (unpaginated)

(internal citations and superfluous capitalization omitted). 

After Appellant filed his notice of appeal, the PCRA court ordered 

Appellant to file and serve a concise statement of errors complained of on 

appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). See

PRCA Court’s Order 6/10/21, at 1. The order directed Appellant to file and 

serve his concise statement within 21 days from the date the order was 

entered. Id. Appellant, however, failed to file a timely Rule 1925(b) 
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statement and, thus, Appellant failed to comply with the PCRA court’s order.1

As such, Appellant's claims on appeal are necessarily waived. See

Pa.R.A.P.1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)] 

Statement and/or not raised in accordance with the provisions of [Rule 

1925(b)(4)] are waived”); Greater Erie Indus. Dev. Corp. v. Presque Isle 

Downs, Inc., 88 A.3d 222, 223 and 227 (Pa. Super. 2014) (en banc) (holding 

that an appellant waives all claims on appeal where the appellant “fail[s] to 

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1 On November 22, 2021, Appellant filed an application for special relief, 

requesting this Court to grant a stay and “remand [his case] back to [the 

PCRA] court to . . . amend[ his 1925(b) statement.” Appellant’s Application 

of Relief, 11/22/21, at 1. On December 7, 2021, this Court remanded the 

matter for 21 days and ordered the PCRA court to rule on the merits of 

Appellant’s motion. Superior Court Order, 12/7/21, at 1. On December 27, 

2021, the PCRA court issued an order holding that Appellant’s motion “fail[ed] 

to set forth any good cause or extraordinary circumstances” permitting the 

PCRA court to “grant the opportunity to amend or supplement with a 1925(b) 

concise statement especially since Appellant failed to file any concise 

statement within the allotted period of time.” PCRA Court Order, 12/27/21, 

at 1. Appellant, however, filed an “amended” 1925(b) statement on 

December 20, 2021 despite the PCRA court’s order. Then, on May 9, 2022, 

Appellant filed another application for special relief, again requesting this 

Court to “stay [] his appeal” and to remit the matter to the PCRA court so 

Appellant could “supplement his 1925(b) statement to add [a]fter 

[d]iscovered [e]vidence.” Appellant’s Application for Special Relief, 5/9/22, 

at *1 (unpaginated). On May 12, 2022, this Court remanded the matter for 

14 days and ordered the PCRA court to rule on the merits of Appellant’s 

petition. Superior Court Order, 12/7/21, at 1. Then, on May 23, 2022, the 

trial court granted Appellant’s request to supplement his 1925(b) concise 

statement and further ordered Appellant to do so within 21 days of the date 

of its order. PCRA Court’s Order, 5/23/22, at 1. Appellant filed an amended 

1925(b) statement on May 24, 2022. We offer these procedural developments 

by way of background as our disposition of this matter rests upon Appellant’s 

original failure to file a 1925(b) statement within 21 days of the PCRA court’s 

June 10, 2021 order and the PCRA court’s subsequent refusal to permit 

Appellant to “supplement” an unfiled concise statement. 
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comply timely with the trial court's order directing it to file a concise statement 

of errors pursuant to [Rule 1925(b)]”); see also PCRA Court Statement in 

Lieu of Opinion, 7/8/21, at *3 (noting that all appellate issues were waived 

because Appellant failed to file a 1925(b) statement). 

Order affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/29/2023