J-S69008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TERRY LIGHTY

Appellant No. 302 MDA 2016

Appeal from the PCRA Order January 28, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No: CP-36-CR-0000893-2011

BEFORE: STABILE, DUBOW, and PLATT,*JJ. 

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2016

Appellant, Terry Lighty, appeals pro se from the January 28, 2016 

order entered in the Court of Common Pleas of Lancaster County (“PCRA 

court”), denying his petition for collateral relief pursuant to the Post 

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

This Court previously summarized the procedural and factual history of 

the matter as follows.

Appellant was charged and convicted of one count of 

burglary of an occupied structure and one count of theft by 

unlawful taking. These charges stemmed from Appellant’s 

unauthorized entry into an occupied residence at 136 

North Mary Street in Lancaster, Pennsylvania on January 

18, 2011. The victim testified that she awoke to find 

Appellant in her house and that he told her that he was 

going to take her television. Appellant also warned the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S69008-16

- 2 -

victim not to call the police because he had “friends” 

downstairs and he knew where she lived.

The victim’s neighbor, Brian Manning, noticed 

Appellant leaving the residence carrying some of the 

victim’s property. Mr. Manning called 911 immediately 

after witnessing this and provided the police with a 

detailed description of Appellant’s clothing and physical 

characteristics. A fresh snow was falling on the night of 

the burglary. Sergeant Philip Berkheiser tracked a single 

set of boot prints leading away from the crime scene down 

Mill Avenue, until they reached 500 West Orange Street, 

where he noticed other sets of footprints in the snow. 

While tracking these prints, Sergeant Berkheiser located 

an abandoned box which contained an air purifier and palm 

sander owned by the victim.

After Mr. Manning provided him with the suspect’s 

description as a “black male ... wearing a gray hoody, gray 

pants, a blue vest, and gloves,” Officer Ben Bradley sent 

out a police radio to call all officers at 1:00 a.m.. Sergeant 

William Hickey received this call and, just before 2:00 

a.m., he observed a black male who matched Mr. 

Manning’s description, walking through the parking lot 

where his patrol vehicle was parked and heading toward 

the convenience store across the street. Officer Chris 

Genetti arrived to back up Sergeant Hickey and the two 

approached Appellant and identified themselves. Sergeant 

Hickey explained to Appellant that a burglary had just 

occurred at a nearby house and that he matched the 

suspect’s description. He then asked Appellant if he would 

step outside the store so that he could ask him some 

questions about the incident. 

During this period of questioning, Sergeant Hickey 

learned Appellant’s identity and that he claimed to be 

staying at 602 West King Street, Apartment 5, with a 

person named “B” or “Bob.” Appellant was patted-down 

for weapons, and police officers took photographs of his 

clothing and boots. Sergeant Hickey contacted the officers 

who had been at the crime scene and asked if they could 

bring anyone who could identify the suspect to the 

convenience store. Mr. Manning was brought to the store 

and was allowed to view Appellant from inside a police 
J-S69008-16

- 3 -

vehicle. He identified Appellant’s clothing as matching that 

of the suspect but was not able to conclusively state that 

Appellant was the person who he observed at the crime 

scene.

Appellant’s photograph was later included in a photo 

array shown to Willy Robertson who occupied an 

apartment in the same building in which Appellant claimed 

that he was staying. Mr. Robertson identified Appellant as 

the person who had brought him a television the same 

night of the burglary. This television was recovered from 

Mr. Robertson’s apartment by police and was identified as 

the same one stolen from the victim. 

Appellant’s trial counsel failed to file a suppression 

motion seeking to preclude the introduction of evidence 

obtained during Appellant’s Terry stop outside the 

convenience store. Consequently Appellant’s statements, 

items seized, and the photographs taken from this 

encounter with the police were later offered into evidence 

at trial.

A jury convicted Appellant of burglary of an occupied 

structure and theft by unlawful taking. The trial court 

imposed the mandatory minimum sentence of twenty-five 

to fifty years imprisonment pursuant to 42 Pa.C.S. § 

9714(a)(2) because Appellant had a prior record that 

included at least two crimes of violence. We affirmed the 

judgment of sentence on August 14, 2012, and our 

Supreme Court denied allowance of appeal on April 16, 

2013.

On December 24, 2013, Appellant filed a timely pro 

se PCRA petition. Appointed counsel filed an amended 

PCRA petition that alleged Appellant’s trial counsel 

provided ineffective assistance for failing to file an omnibus 

pretrial motion seeking to suppress the evidence derived 

from his detention outside of the convenience store and 

the search of his person. Appellant requested that the 

PCRA court vacate his sentence and remand the matter for 

a new trial without the allegedly tainted evidence. 

An evidentiary hearing was held on Appellant’s PCRA 

petition on April 16, 2014.
J-S69008-16

- 4 -

. . .

The PCRA court denied relief on February 5, 2015, on 

the grounds that Appellant, “failed to demonstrate by a 

preponderance of the evidence that [counsel’s failure to 

file a] motion to suppress rises to the level of a claim of 

arguable merit,” because trial counsel’s testimony 

indicated that he had done the necessary investigation of 

Appellant’s interaction with the police before determining 

that there were no meritorious suppression issues.

Commonwealth v. Lighty, No. 297 MDA 2015, unpublished memorandum, 

at 1-3 (Pa. Super filed Sep. 2, 2015) (internal citations omitted) (footnote 

omitted). This Court affirmed the PCRA court’s finding that Appellant failed 

to meet his burden; therefore, he was not entitled to relief. Id. at 6. 

On December 11, 2015, Appellant filed a second PCRA petition. On 

December 23, 2015, the PCRA court sent Appellant a notice pursuant to 

Pa.R.Crim.P. 907 indicating its intent to dismiss the PCRA petition. On 

January 14, 2016, Appellant amended his second PCRA petition in response 

to the PCRA court’s notice. On January 28, 2016, the PCRA court dismissed 

Appellant’s PCRA petition. 

Appellant filed a timely notice of appeal on February 19, 2016. On 

March 1, 2016, the PCRA court directed Appellant to file a concise statement 

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Appellant failed to file a concise statement, and the PCRA court issued an 

opinion on April 4, 2016.

Appellant presents seven questions in his brief; however, this Court 

must first address Appellant’s failure to file a concise statement of matters 
J-S69008-16

- 5 -

complained of on appeal. See Appellant’s Brief at 7-16. Pursuant to the 

Rules of Appellate Procedure, 

[i]f the judge entering the order giving rise to the notice of 

appeal (“judge”) desires clarification of the errors 

complained of on appeal, the judge may enter the order 

directing the appellant to file of record in the trial court 

and serve on the judge a concise statement of the errors 

complained of on appeal.

Pa.R.A.P. 1925(b). Furthermore, the Rules provide that “[i]ssues not 

included in the Statement and/or not raised in accordance with the 

provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). 

“Waiver occurs when an appellant fails to file a Rule 1925 statement, but 

only if the appellant is ‘ordered’ to file one.” Commonwealth v. Gonzalez, 

840 A.2d 326, 328 (Pa. Super. 2003). 

In the matter sub judice, Appellant failed to file a concise statement of 

matters complained of on appeal after the PCRA court ordered him to do so. 

In his brief Appellant acknowledged receipt of the PCRA court’s order 

directing him to file a concise statement. Appellant’s Brief at 7. Thus, it is 

clear that Appellant received the order from the PCRA court directing him to 

file a concise statement and he failed to comply. Consequently, all of 

Appellant’s claims are waived. See Pa.R.A.P. 1925(b)(4)(vii).
J-S69008-16

- 6 -

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016