J-S09043-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN ANTONIO CRUZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1865 EDA 2020

Appeal from the PCRA Order Entered August 21, 2020

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

No(s): CP-39-CR-0000702-2015

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: Filed: April 22, 2021

John Antonio Cruz (“Cruz”) appeals, pro se, from the Order dismissing 

his Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On May 25, 2016, a jury found Cruz guilty of receiving stolen property, 

terroristic threats, and simple assault, arising out of an incident in which Cruz 

threatened another individual by holding a handgun to his head.

1

 The trial 

court found Cruz guilty of person not to possess firearms.2 The trial court 

subsequently sentenced Cruz to an aggregate term of 131⁄2 to 27 years in 

prison. On July 18, 2017, this Court affirmed Cruz’s judgment of sentence, 

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1 18 Pa.C.S.A. §§ 3925(a), 2706(a)(1), 2701(a)(3).

2 18 Pa.C.S.A. § 6105(a)(1).
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after which Pennsylvania Supreme Court denied allowance of appeal. See 

Commonwealth v. Cruz, 166 A.3d 1249 (Pa. Super. 2017), appeal denied, 

180 A.3d 1207 (Pa. 2018).

On March 26, 2020, Cruz, pro se, filed a “Motion to Modify and Reduce 

Sentence Nunc Pro Tunc.” Therein, Cruz argued that his trial counsel failed to 

file post-sentence motions on his behalf. By an Order entered on April 14, 

2020, the PCRA court stated that it would consider Cruz’s Motion to Modify as 

a PCRA Petition,3 and appointed Cruz PCRA counsel. Counsel appeared, via 

video conference, with Cruz during a hearing on August 7, 2020. On the same 

date, Counsel filed a Petition to withdraw from representation and a 

Turner/Finley4 no-merit letter. The PCRA court granted counsel’s Petition to 

withdraw, and Cruz indicated that he wished to proceed pro se. The PCRA 

court scheduled an additional hearing for August 21, 2020, in order to allow 

Cruz time to prepare his claims. Following the August 21, 2020 hearing, the 

PCRA court dismissed Cruz’s Petition.

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3 “[A]ny petition filed after the judgment of sentence becomes final will be 

treated as a PCRA petition.” Commonwealth v. Jackson, 30 A.3d 516, 521 

(Pa. Super. 2011); see also 42 Pa.C.S.A. § 9542 (providing that the PCRA 

“shall be the sole means of obtaining collateral relief”).

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

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

In the Turner/Finley no-merit letter, counsel identified the claims Cruz 

sought to raise under 42 Pa.C.S.A. § 9545(b)(i)-(ii), and stated that Cruz’s

trial counsel did not file a post-sentence motion for reconsideration of 

sentence on his behalf. See Petition to Withdraw, 8/7/20, Exhibit A (No-Merit 

Letter). 
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Cruz filed a pro se Notice of Appeal, which was entered on the PCRA 

court’s docket on September 28, 2020. The PCRA court directed Cruz to file 

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and 

Cruz timely complied.

Cruz now raises the following issues for our review:

1. Did the PCRA court err in dismissing [Cruz’s] PCRA [P]etition 

without allowing [Cruz an] opportunity to amend [the P]etition 

after it was notified of newly[-]discovered evidence?

2. Did the PCRA court err by not postponing the hearing to provide 

[Cruz] a reasonable opportunity to for [sic] investigation and 

preparation regarding newly[-]discovered evidence?

3. Did the PCRA court err by failing to determine all material issues 

raised by [Cruz’s PCRA P]etition?

4. Did the PCRA court err by failing to notify [Cruz] of his appellate 

rights upon dismissing [his P]etition? 

Brief for Appellant at 7.

Before turning to the issues presented by Cruz, we must address the 

timeliness of his appeal. A notice of appeal “shall be filed within 30 days after 

the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). 

Because Cruz’s pro se Notice of Appeal was docketed on September 28, 2020, 

beyond the 30-day appeal period, this Court issued a Rule to Show Cause why 

this appeal should not be quashed as untimely filed. In his pro se Response, 

Cruz argued that he mailed his Notice of Appeal from SCI – Benner Township 

on September 19, 2020. Response, 12/4/20, at 1-2. Cruz, relying on the 

prisoner mailbox rule, pointed out that the envelope containing his Notice of 
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Appeal was time-stamped on September 21, 2020. Id.; see also

Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (stating 

that, “in the interest of fairness, the prisoner mailbox rule provides that a pro 

se prisoner’s document is deemed filed on the date he delivers it to prison 

authorities for mailing.”); Pa.R.A.P. 121(c) (providing that “a pro se filing 

submitted by a person incarcerated in a correctional facility is filed as of the 

date of the prison postmark or the date the filing was delivered to the prison 

authorities for purposes of mailing as documented by a properly executed 

prisoner cash slip or other reasonably verifiable evidence.” (emphasis 

added)). Cruz failed to provide evidence of the date on which he deposited 

his Notice of Appeal with prison authorities.5 However, this does not end our 

inquiry.

Cruz also argued in his pro se Response that the PCRA court did not 

properly advise him of his appellate rights at the close of the PCRA hearing. 

Response, 12/4/20, at 2. Regarding a court’s duty to advise a PCRA petitioner 

of his appellate rights following PCRA hearings, Pa.R.Crim.P. 908(E) provides 

as follows:

If the judge disposes of the case in open court in the presence of 

the defendant at the conclusion of the hearing, the judge shall 

advise the defendant on the record of the right to appeal from the 

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5 After receiving Cruz’s pro se Response, this Court issued a second Rule to 

Show Cause on December 7, 2020, directing Cruz to provide evidence of the 

date on which he mailed his Notice of Appeal. No response appears in the 

record. On January 22, 2021, this Court discharged the Rules to Show Cause, 

and referred the issue to the merits panel.
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final order disposing of the petition and of the time within which 

the appeal must be taken. If the case is taken under advisement, 

or when the defendant is not present in open court, the judge, by 

certified mail, return receipt requested, shall advise the defendant 

of the right to appeal from the final order disposing of the petition 

and of the time limits within which the appeal must be filed.

Pa.R.Crim.P. 908(E). Here, our review confirms that the PCRA court’s Order 

dismissing Cruz’s PCRA Petition did not advise Cruz of his appellate rights or 

the relevant time period for filing his appeal.6 See PCRA Court Order, 

8/21/20. Accordingly, we decline to quash Cruz’s appeal. See 

Commonwealth v. Meehan, 628 A.2d 1151, 1155 (Pa. Super. 1993) 

(excusing the untimely filing of a notice of appeal, stating that “we cannot say 

with certainty that the PCRA court’s failure to follow the directives of Rule 

[908] had no effect on appellant’s ability to perfect his appeal....”).

Next, we determine whether Cruz’s claims are preserved for our review. 

In his appellate brief, Cruz asserts that he contacted his previous employer, 

Ruben Rodriguez, who wrote a letter of support on his behalf, detailing the 

events of the “police encounter” that occurred following the underlying

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6 The transcripts of the PCRA hearing are not contained in the certified record;

thus, there is no evidence that PCRA court properly advised Cruz of his 

appellate rights on the record.
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incident. See Brief for Appellant at 11-13.7 Cruz did not include this argument 

in his pro se PCRA Petition. Because Cruz did not raise this argument before 

the PCRA court, it cannot be raised for the first time on appeal. See

Commonwealth v. Bedell, 954 A.2d 1209, 1216 (Pa. Super. 2008) 

(concluding that appellant waived his claim by failing to raise it in his PCRA 

petition); see also Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the 

trial court are waived and cannot be raised for the first time on appeal.”). 

Accordingly, Cruz’s claims are waived.8

Order affirmed.

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7 Cruz did not include a separate argument for each of the questions raised in 

his Statement of Questions Involved. See Pa.R.A.P. 2119(a) (providing that 

“[t]he argument shall be divided into as many parts as there are questions to 

be argued[.]”).

8 Of the four claims Cruz identifies in his Statement of Questions Involved, 

only one claim was preserved in his Pa.R.A.P. 1925(b) Concise Statement. 

See Pa.R.A.P. 1925(b)(4)(viii) (providing that “[i]ssues not included in the 

Statement ... are waived.”); Commonwealth v. Dowling, 778 A.2d 683, 686 

(Pa. Super. 2001) (concluding that appellant waived his claim by failing to 

raise it in his Rule 1925(b) concise statement). However, Cruz failed to 

adequately develop and support his argument with citations to the record or 

any pertinent legal authority. See Pa.R.A.P. 2119(a) (requiring the argument 

to include “such discussion and citation of authorities as are deemed 

pertinent.”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) 

(stating that “where an appellate brief fails to provide any discussion of a claim 

with citation to relevant authority or fails to develop the issue in any other 

meaningful fashion capable of review, that claim is waived.”). Cruz’s claims 

are therefore waived for these reasons as well.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/22/21