Com. v. Marcolongo, C. (memorandum)
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J-S21009-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. CHRISTOPHER MARCOLONGO, Appellant No. 299 EDA 2012 Appeal from the Judgment of Sentence Entered January 23, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006215-2007 BEFORE: BENDER, J., BOWES, J., and LAZARUS, J. MEMORANDUM BY BENDER, J.: FILED FEBRUARY 24, 2014 Appellant, Christopher Marcolongo, appeals nunc pro tunc from the judgment of sentence imposed after the trial court found him guilty of robbery, theft, and possessing an instrument of crime (PIC). On appeal, Appellant seeks to challenge the sufficiency of the evidence to sustain his convictions, as well as discretionary aspects of his sentence. For the following reasons, we dismiss this appeal. Appellant was convicted of the above-stated crimes based on his robbing a pizza delivery man at knifepoint on May 13, 2007. He was sentence motions or a direct appeal. However, he filed a timely petition for post conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42 J-S21009-13 Pa.C.S. ยงยง 9541-9546, seeking the restoration of his appeal rights nunc pro That petition was granted, counsel was appointed, and the instant tunc. appeal followed. this Court a petition to withdraw his representation of Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and amended in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). On May 3, 2013, we issued a memorandum decision concluding that Attorney Anders brief utterly failed to comply with the requirements of Anders/Santiago. Therefore, we directed that Attorney Scott file either an and brief that complied with Anders/Santiago. Over seven months have now passed with no action by Attorney Scott. Normally, we would issue another order providing Attorney Scott with a specific number of days to comply with our order before dismissing lready been delayed so substantially that we believe the more appropriate course of action is to dismiss his appeal now. This way, Appellant may forthwith file a restoration of his appeal rights nunc pro tunc. Mikell See Commonwealth v. - -2- J-S21009-13 failure to perfect an appeal is per se without the effective assistance of (emphasis omitted). Furthermore, under this approach, Appellant will be entitled to new counsel if he ultimately files a nunc pro tunc direct appeal, and will be relieved of the incompetent representation afforded by Attorney Scott. Appeal dismissed. Judge Bowes files a dissenting statement. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/24/2014 -3-
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