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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MARCELLUS OLIPHANT, : No. 779 EDA 2015

:

 Appellant :

Appeal from the PCRA Order, February 12, 2015,

in the Court of Common Pleas of Chester County

Criminal Division at No. CP-15-CR-0002145-2009

BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 05, 2016

Marcellus Oliphant appeals, pro se, from the order of February 12, 

2015, dismissing his PCRA1 petition and granting court-appointed counsel 

permission to withdraw. We affirm.

Following a four-day jury trial in October 2010, appellant was found 

guilty of numerous offenses, including four counts of robbery. The charges 

were brought in connection with a bank robbery on April 30, 2005, during 

which appellant acted as the getaway driver. On April 12, 2011, appellant 

was sentenced to 101⁄2 to 21 years’ imprisonment. Appellant took a direct 

appeal, and this court affirmed on June 5, 2012. Commonwealth v. 

Oliphant, 53 A.3d 924 (Pa.Super. 2012) (unpublished memorandum). 

 

1

Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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Appellant did not file a petition for allowance of appeal with the Pennsylvania 

Supreme Court.

On June 25, 2013, appellant filed a timely pro se PCRA petition. 

Counsel was appointed, and on October 4, 2013, filed a petition to withdraw 

and a Turner/Finley “no-merit” letter.2 On November 14, 2013, the PCRA 

court issued a Rule 907 20-day notice of intent to dismiss the petition 

without a hearing.3 On January 16, 2014, appellant filed a pro se response 

to Rule 907 notice. On June 13, 2014, the PCRA court directed counsel to 

review appellant’s pro se response and file either an amended PCRA petition 

on appellant’s behalf or another petition for leave to withdraw pursuant to 

Turner/Finley. On June 30, 2014, PCRA counsel filed an answer to 

appellant’s pro se response to Rule 907 notice, addressing the issues raised 

therein. On February 12, 2015, the PCRA court dismissed the petition and 

granted counsel leave to withdraw.

A timely pro se notice of appeal was filed on March 11, 2015.4 On 

March 23, 2015, the PCRA court granted appellant in forma pauperis

 

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

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

3

Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A.

4 Although appellant’s appeal notice was not docketed until March 16, 2015, 

it was dated March 11, 2015. See Commonwealth v. Jones, 700 A.2d 

423, 426 (Pa. 1997) (an appeal by a pro se prisoner is deemed filed on the 

date the prisoner deposits the appeal with prison authorities and/or places it 

in the prison mailbox).
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status and also ordered appellant to file a concise statement of errors 

complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 

42 Pa.C.S.A. The criminal docket indicates that the PCRA court’s Rule 1925 

order was sent to appellant by certified mail on March 25, 2015. On May 5, 

2015, the PCRA court filed a Rule 1925(a) opinion, stating that appellant had 

failed to file a concise statement as ordered and has therefore waived any 

alleged errors complained of on appeal.

In 1998, our Supreme Court held that “in order to 

preserve their claims for appellate review, Appellants 

must comply whenever the trial court orders them to 

file a Statement of Matters Complained of on Appeal 

pursuant to Rule 1925.” Commonwealth v. Lord, 

553 Pa. 415, 719 A.2d 306, 309 (1998). 

Subsequently, in Commonwealth v. Castillo, 585 

Pa. 395, 888 A.2d 775 (2005), the Supreme Court 

affirmed its holding in Lord, ruling that a failure to 

file a 1925(b) statement within 14 days[Footnote 8] 

after entry of an order requesting the statement, 

regardless of the length of the delay, results in 

automatic waiver.

[Footnote 8] Lord and Castillo

examined the application of the previous 

version of Pa.R.A.P. 1925. Under that 

version, when the trial court entered an 

order directing the appellant to file a 

concise statement, the appellant had 

only 14 days to file the statement. 

Pa.R.A.P. 1925(b) (2007).

Commonwealth v. Thompson, 39 A.3d 335, 338 (Pa.Super. 2012) 

(additional footnotes omitted).

Our jurisprudence is clear and well-settled, and 

firmly establishes that: Rule 1925(b) sets out a 

simple bright-line rule, which obligates an appellant 
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to 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; the courts lack 

the authority to countenance deviations from the 

Rule’s terms; the Rule’s provisions are not subject to 

ad hoc exceptions or selective enforcement; 

appellants and their counsel are responsible for 

complying with the Rule’s requirements; Rule 1925 

violations may be raised by the appellate court 

sua sponte, and the Rule applies notwithstanding 

an appellee’s request not to enforce it; and, if 

Rule 1925 is not clear as to what is required of an 

appellant, on-the-record actions taken by the 

appellant aimed at compliance may satisfy the Rule. 

We yet again repeat the principle first stated in Lord

that must be applied here: “[I]n order to preserve 

their claims for appellate review, [a]ppellants must 

comply whenever the trial court orders them to file a 

Statement of Matters Complained of on Appeal 

pursuant to Pa.R.A.P. 1925. Any issues not raised in 

a Pa.R.A.P. 1925(b) statement will be deemed 

waived.” 719 A.2d at 309.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).

Instantly, the record indicates that appellant failed to comply with the 

trial court’s Rule 1925 order. While appellant claims that he filed a concise 

statement on April 6, 2015 (appellant’s brief at 5-6), none appears 

anywhere in the certified record, nor did he attach any such statement to his 

brief as required by Pa.R.A.P. 2111(d).5 As such, appellant has waived all 

issues on appeal.6

 

5

In support of his assertion that he filed a concise statement on April 6, 

2015, appellant attaches to his brief his April 2015 “Monthly Account 

Statement,” indicating that $1.61 in postage fees was deducted from his 

prisoner account on that date. (Appellant’s brief, Appendix “D”.) This does 

not prove anything, except that appellant mailed something on that date. 

Appellant does not attach a copy of his Rule 1925(b) statement to his brief, 
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We further note that because appellant is pro se, the remand 

procedure added to Rule 1925 in 2007 does not apply. See

Pa.R.A.P. 1925(c)(3) (“If an appellant in a criminal case was ordered to file a 

Statement and failed to do so, such that the appellate court is convinced 

that counsel has been per se ineffective, the appellate court shall remand for 

the filing of a Statement nunc pro tunc and for the preparation and filing of 

an opinion by the judge.”) (codifying the procedure established by this court 

in Commonwealth v. West, 883 A.2d 654 (Pa.Super. 2005)); see also 

Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc) 

(extending the remedy in Rule 1925(c)(3) to untimely Rule 1925 concise 

statements).

In addition, this is an appeal from dismissal of a PCRA petition. Our 

supreme court has held that the procedure devised in West, as codified in 

Rule 1925(c)(3), does not apply to PCRA appeals. Hill, 16 A.3d at 496-497.

 

as required by the Rules of Appellate Procedure, nor can it be found in the 

certified record. The PCRA court did not receive it, as indicated in its 

Rule 1925(a) opinion finding waiver. Appellant does not allege that he was 

not properly served with the PCRA court’s Rule 1925 order; in fact, he insists 

that he filed a concise statement in compliance with the rules. Therefore, 

we are compelled to find waiver.

6 We note that appellant does not raise any legality of sentencing claims 

which could be considered non-waivable. See, e.g., Commonwealth v. 

Edrington, 780 A.2d 721, 723 (Pa.Super. 2001) (“So long as jurisdictional 

requirements are met, [a]n illegal sentence can never be waived and may be 

reviewed sua sponte by this court.” (internal quotation marks and citations 

omitted)). All of appellant’s issues allege ineffectiveness of trial and/or 

PCRA counsel.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/5/2016