J-S46020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RAFIQ SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2717 EDA 2018

Appeal from the PCRA Order Entered August 28, 2018

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

No(s): CP-51-CR-0003850-2013

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: Filed: April 8, 2021

Appellant, Rafiq Smith, appeals pro se from the order denying his 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

On April 10, 2014, a jury convicted Appellant of rape, involuntary 

deviate sexual intercourse (“IDSI”), robbery, sexual assault, and kidnapping.1 

The convictions stem from an attack committed against a woman after she 

had an evening out with her coworkers and approached her public transit train. 

On May 15, 2015, the trial court found Appellant to be a sexually violent 

predator and sentenced him to serve an aggregate term of incarceration of 

twenty to forty years. This Court affirmed Appellant’s judgment of sentence 

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1 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3701(a)(1), 3124.1, and 2901(a)(2), 

respectively.
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on July 11, 2016, and our Supreme Court denied his petition for allowance of 

appeal on December 13, 2016. Commonwealth v. Smith, 154 A.3d 849, 

1777 EDA 2015 (Pa. Super. filed July 11, 2016) (unpublished memorandum), 

appeal denied, 164 A.3d 456 (Pa. 2016).

On December 1, 2017, Appellant timely filed, pro se, the instant PCRA 

petition. Court appointed counsel entered his appearance on December 18, 

2017. On July 23, 2018, counsel filed a Turner/Finley no-merit letter.2 On 

July 31, 2018, the PCRA court entered a Pa.R.Crim.P. 907 notice of intent to 

dismiss the PCRA petition without a hearing. Appellant filed a response, in 

which he requested an extension of time to file objections and leave to amend 

his PCRA petition on August 24, 2018. On August 28, 2018, the PCRA court 

entered an order dismissing the PCRA petition and granting counsel’s motion 

to withdraw. This timely appeal followed. Appellant and the PCRA court 

complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

1. Should the Court review the PCRA proceedings sua sponte, 

because the [c]ourt below erred in accepting and ruling on 

Appellant’s pro-se motions, including a pro-se Response to the 

[PCRA c]ourt’s Rule 907 Notice of Intent to Dismiss when the prose pleadings constituted hybrid representation and therefore a 

nullity because PCRA counsel, though he abandoned Appellant, 

was still counsel of record having not been permitted to withdraw 

from representation?

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
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Appellant’s Brief at 4.

In his sole claim for relief, Appellant argues that the PCRA court erred 

in accepting his pro se response to the PCRA court’s Rule 907 notice of intent 

to dismiss. Appellant’s Brief at 10-15. Appellant contends that although 

counsel had requested to withdraw, the motion had not been granted and 

Appellant’s pro se filing was the equivalent of hybrid representation. Id. at 

11. Appellant asserts that his pro se filing was a legal nullity. Id. at 13.

Before we address the merits of Appellant’s issue, we must determine 

whether the claim presented has been properly preserved for our 

consideration. Our Courts have consistently ruled that where a lower court 

directs a defendant to file a concise statement pursuant to Pennsylvania Rule 

of Appellate Procedure 1925, any issues not raised in that statement shall be 

waived. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008) 

(citing Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998)). In 

Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002), our Supreme 

Court reaffirmed its holding in Lord and stated: “In Lord, however, this Court 

eliminated any aspect of discretion and established a bright-line rule for waiver 

under Rule 1925 .... Thus, waiver under Rule 1925 is automatic.” See also 

Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa. Super. 2008) (noting 

that Lord “requires a finding of waiver whenever an appellant fails to raise an 

issue in a court-ordered Pa.R.A.P. 1925(b) statement”).
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We are mindful that Rule 1925 is intended to aid trial judges in 

identifying and focusing upon those issues that the parties plan to raise on 

appeal. The absence of a trial court opinion addressing a particular claim 

poses a substantial impediment to meaningful and effective appellate review. 

Commonwealth v. Lemon, 804 A.2d 34, 36 (Pa. Super. 2002). Rule 1925 

is thus a crucial component of the appellate process. Lemon, 804 A.2d at 37. 

“When a court has to guess what issues an appellant is appealing, that is not 

enough for meaningful review.” Commonwealth v. Dowling, 778 A.2d 683, 

686 (Pa. Super. 2001). In addition, claims that are not raised before the trial 

court are waived. See Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa. 

Super. 2000) (stating that “[a] claim which has not been raised before the 

trial court cannot be raised for the first time on appeal.”); Commonwealth 

v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006) (citing Commonwealth v. 

Gordon, 528 A.2d 631, 638 (Pa. Super. 1987) (reiterating that “[a] theory of 

error different from that presented to the trial jurist is waived on appeal, even 

if both theories support the same basic allegation of error which gives rise to 

the claim for relief.”)).

Our review of the certified record reflects that on September 17, 2018, 

the PCRA court issued an order directing Appellant to file a Pa.R.A.P. 1925(b) 

statement within twenty-one days. The record further reflects that after the 

granting of multiple extensions of time, Appellant filed his Rule 1925(b) 

statement on February 15, 2019. Appellant’s Rule 1925(b) statement 
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contained ten issues. However, the Rule 1925(b) statement did not include 

the issue Appellant currently presents to this Court. Accordingly, we are 

constrained to conclude that this issue is waived. Bullock, 948 A.2d at 823.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/21