Com. v. Nicoloudakis, F.

J-A03004-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

FRANKLIN D. NICOLOUDAKIS :

:

Appellant : No. 353 EDA 2025

Appeal from the PCRA Order Entered December 18, 2024

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

No(s): CP-09-SA-0000584-2021

BEFORE: BOWES, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY BOWES, J.: FILED JANUARY 14, 2026

Franklin D. Nicoloudakis appeals pro se from the order that denied his

petition purporting to seek relief pursuant to the Post Conviction Relief Act

(“PCRA”). We affirm.

The facts underlying Appellant’s conviction are as follows. While on

patrol on the night of August 26, 2021, Officer Joshua Kowalski of the Upper

Makefield Police Department observed Appellant stray from his driving lane,

crossing the center line multiple times into the lane for oncoming traffic.

Officer Kowalski stopped Appellant, who admitted that he was prescribed

oxycodone. The officer arrested Appellant after conducting field sobriety

tests, and he voluntarily submitted to a blood test. The Commonwealth

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* Retired Senior Judge assigned to the Superior Court.

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charged Appellant with driving under the influence (“DUI”) and the summary

offense of failing to drive within a single lane as required by 75 Pa.C.S.

§ 3309(1). The Commonwealth dismissed the DUI charge at the preliminary

hearing, and Appellant pled guilty to the traffic violation. He appealed for a

de novo trial, which resulted in a guilty verdict and a sentence of $25 fine plus

costs.

On direct appeal to this Court, Appellant raised ten issues, including the

court’s denial of a serial request for a continuance of the de novo trial.

However, most of Appellant’s arguments touched upon matters pertinent to

the dismissed DUI charge rather than his summary conviction. For example,

he complained that: (1) he did not timely receive discovery materials such as

the lab result from his blood draw; (2) the trial court improperly disallowed

cross-examination of Officer Kowalski regarding the field sobriety testing; and

(3) he should have been acquitted of the traffic offense to make up for the

harm he suffered due to the actions of the “‘overzealous small-town cop’ who

was overly eager to make an arrest for DUI.” Commonwealth v.

Nicoloudakis, 303 A.3d 733, 2023 WL 4348313, at *6 (Pa.Super. 2023)

(non-precedential decision). We rejected his arguments, concluding our

decision as follows:

There is no merit to Appellant’s claim that he was entitled to an

acquittal of the [§] 3309 offense based on sympathy.

Further, Appellant fails to . . . offer any legal authority to support

his claim that he is entitled to an acquittal on the [§] 3309 charge,

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which he clearly committed, simply because the DUI charge was

withdrawn.

Lastly, to the extent that Appellant believes that Officer Kowalski

improperly arrested him for suspicion of DUI, this was not the

appropriate forum to seek relief. The sole matter before this Court

is the appeal of Appellant’s summary conviction under [§] 3309.

It is undisputed that the Commonwealth presented sufficient

evidence to prove that Appellant violated [§] 3309 when the

testimony of the arresting officer and video recordings confirm

that Appellant’s vehicle crossed the center double yellow line four

times. Appellant is not entitled to relief.

Id. at *6-7 (cleaned up).

Apparently believing a PCRA proceeding was the appropriate forum to

seek relief for what he perceived to be violations of his civil rights in connection

with his DUI arrest, Appellant filed a petition in which he claimed that the

Commonwealth had “a moral imperative” to reimburse him the associated

$260 cost of the tow of his vehicle. See PCRA Petition, 8/5/24, at 1. He

asserted that the Commonwealth instead “played the role of Mr. Rogers[’]

Neighborhood” by “mak[ing] believe there was never a false arrest for a crime,

there was no anxiety suffered by petitioner while his freedom was deprived,

no fear of a false positive appearing in the lab report, [and] there were no

financial costs connected to having the vehicle towed[.]” Id. at 4 (emphases

omitted). Appellant additionally asserted other claims that he raised or could

have raised on direct appeal, such as his circumscribed cross-examination, a

suppression issue, alleged deficiencies in the affidavit of probable cause, and

the denial of his third motion to continue the de novo trial. Id. at 2-4.

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The PCRA court initially ordered counsel to represent Appellant but

quickly rescinded the appointment in favor of giving Appellant the right to

procure private counsel or apply for representation through the Public

Defender’s Office.1 Appellant did neither of those things. The PCRA court

issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without

a hearing because he was not eligible for PCRA relief as defined by 42 Pa.C.S.

§ 9543 since he was not currently serving a sentence of imprisonment,

probation, or parole. Appellant filed a response, offering rhetorical questions

and quotations from ancient cases to support his moral-imperative theory of

relief, rather than providing any reasoned analysis of the eligibility mandates

of § 9543. Accordingly, the PCRA court denied his petition by order of

December 18, 2024.

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1 The Rules of Criminal Procedure provide that “when an unrepresented

defendant satisfies the judge that the defendant is unable to afford or

otherwise procure counsel, the judge shall appoint counsel to represent the

defendant on the defendant’s first petition for post-conviction collateral relief.”

Pa.R.Crim.P. 904(C). Although Appellant eventually established his in forma

pauperis status, he does not challenge the PCRA court’s decision regarding

counsel. In any event, since we ultimately conclude that Appellant was not

eligible for PCRA relief, any error on the part of the PCRA court in failing to

provide counsel was harmless. See Commonwealth v. Hart, 911 A.2d 939,

942 (Pa.Super. 2006) (holding that the failure to appoint counsel for a

petitioner who is not serving an enumerated type of sentence is harmless error

because remand to correct the error would be futile).

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This timely appeal followed. The PCRA court ordered Appellant to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, 2 and

Appellant timely filed a twenty-seven issue statement. The PCRA court

complied with Rule 1925(a), opining that Appellant “has not, and cannot,

demonstrate that he satisfies any one of the bases of eligibility for relief set

forth in § 9543(a)(1).” PCRA Court Opinion, at 17. The court further posited

that all the claims in Appellant’s petition were previously litigated or waived

through operation of § 9543(a)(3).3 Id.

In this Court, Appellant presents the following questions for

consideration:

1.) Is Restorative justice in accord with fundamental fairness?

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2 We remind the PCRA court that all Rule 1925(b) orders must indicate the

addresses to which the statement may be mailed and served by hand-delivery.

See Pa.R.A.P. 1925(b)(3)(iii).

3 The court additionally suggested that Appellant waived all his appellate

issues due to his non-compliance with Rule 1925(b), in that his filing:

is a confusing and rambling statement made up of, in large part,

purported legal maxims and definitions, citations to legal

authority, quotations from historical figures, and a reference to

the dismissal of criminal charges filed against former

Congressman George Santos. It is not at all what is contemplated

by [Rule] 1925(b).

Id. at 21. While the trial court’s description of Appellant’s statement is not

inaccurate, we decline to apply waiver doctrine where the court was able to

ascertain Appellant’s issues and did not make a finding that he acted in bad

faith. Cf. Jiricko v. Geico Ins. Co., 947 A.2d 206, 214 (Pa.Super. 2008)

(finding waiver where the appellant’s statement demonstrated “a deliberate

attempt to circumvent the meaning and purpose of Rule 1925(b) and to

overwhelm the court system”).

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2.) Does the Commonwealth have the moral obligation to make

one whole who was wrongly accused of criminality where

said person suffered financial loss and extreme physical

pain?

3.) Does the District Attorney for the Commonwealth have the

discretion to prosecute and/or drop charges in every case?

4.) Where the [District Attorney] refuses to drop a minor traffic

charge after the defendant was wrongly arrested and

accused of a crime ([DUI]), could that declination be seen

as an abuse of discretion?

5.) Where [A]ppellant was required to take an oath of integrity

prior to the commencement of trial (even without taking the

stand) and was willing to certify as to the accuracy of all

medical documentation being proffered as evidence, did the

court abuse its discretion by sustaining the Commonwealth’s

objection to admission of said medical documents?

6.) Did the Commonwealth’s blockage of medical

documentation being admitted into evidence unfairly cripple

[A]ppellant’s ability to mount an affirmative defense as to

why he crossed the middle lane[,] which might have

resulted in a dismissal of 75 [Pa.C.S. §] 3309?

7.) Does the [Twelve-]Step concept of making amends when

someone is wronged have validity and relevance to

situations involving erroneous government action?

8.) Would [A]ppellant[’]s medical documentation (denied

admission at trial) have clearly established that [A]ppellant

suffers from chronic insomnia, sleep apnea and possible

structural defect in his bronchial tubes that may require

corrective surgery?

9.) Was the Commonwealth’s interference with admission of

relevant medical information to support an affirmative

defense to the charge of crossing the middle lane harmless

error?

10.) Does the Commonwealth have the power to offset all fines

and costs imposed by the amount of cash [A]ppellant paid

($260) to secure the release of his vehicle from impound

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after the [DUI] charge was withdrawn due to negative lab

reports?

11.) Does the Commonwealth have a moral imperative to rectify

a situation where someone was falsely accused of a crime

and then incurred direct cost as a result of that suspicion?

12.) Does a conviction for a summary offense somehow

overshadow or negate being wrongly accused of a crime?

Appellant’s brief at ii-iii (suggested answers omitted).

We begin with the applicable legal principles. This Court will “review an

order dismissing or denying a PCRA petition as to whether the findings of the

PCRA court are supported by the record and are free from legal error.”

Commonwealth v. Howard, 285 A.3d 652, 657 (Pa.Super. 2022) (cleaned

up). “It is an appellant’s burden to persuade us that the PCRA court erred

and that relief is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161

(Pa.Super. 2019) (cleaned up).

The paramount reason offered by the PCRA court for its rejection of

Appellant’s petition is that he is not eligible for relief under § 9543, which

provides as follows in pertinent part:

(a) General rule.--To be eligible for relief under this subchapter,

the petitioner must plead and prove by a preponderance of the

evidence all of the following:

(1) That the petitioner has been convicted of a crime under the

laws of this Commonwealth and is at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation

or parole for the crime;

(ii) awaiting execution of a sentence of death for the crime;

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(iii) serving a sentence which must expire before the person

may commence serving the disputed sentence; or

(iv) has completed a sentence of imprisonment, probation

or parole for the crime and is seeking relief based upon DNA

evidence obtained under section 9543.1(d) (relating to

postconviction DNA testing).

....

(3) That the allegation of error has not been previously litigated

or waived.

42 Pa.C.S. § 9543.

This Court has interpreted this statutory language to reflect the

legislature’s intention to limit the PCRA’s remedies to individuals whose liberty

interests are constrained by criminal supervision:

The PCRA only affords relief to those who are “currently serving a

sentence of imprisonment, probation[,] or parole for the

crime.” 42 Pa.C.S. § 9543(a)(1)(i) (emphasis added). By

specifically limiting its scope to those sentences involving

imprisonment, probation[,] or parole, the PCRA does not provide

relief to those petitioners whose only sentence is a fine. Had the

statutory language read, “currently serving a sentence for the

crime,” then . . . the statute would not limit the types of sentences

eligible for PCRA relief. However, the clear language of the

“currently serving” requirement as it is written precludes relief for

those petitioners whose only uncompleted aspect of their sentence

is the payment of a fine.

Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa.Super. 1997).

Here, it is plain from the certified record that Appellant was never

serving a sentence of imprisonment, probation, or parole, or awaiting

execution, for his conviction of a traffic violation. Nor was he pursuing a DNA

claim related to a completed sentence of imprisonment, probation, or parole.

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Hence, he could not satisfy his burden pursuant to § 9543(a)(1) to establish

his eligibility for PCRA relief.

In his initial brief, Appellant barely acknowledged the requirements of

§ 9543. His only reference to the statutory provision was the following

unsupported statement included in his argument summary:

The fact that to obtain relief the petitioner must have been

convicted of a Pa. crime and is serving a sentence (42 [Pa.C.S.

§] 9543(a)(1)) does not foreclose all relief under the Constitution.

In fact, many courts have spoken how the Pennsylvania

Constitution affords greater rights than even the federal

Constitution.

Appellant’s brief at iv.

After the Commonwealth aptly discussed Fisher in its appellate brief,

Appellant in his reply brief countered with our Supreme Court’s decision in

Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018). In that case, our

High Court considered, in the defendant’s direct appeal from his judgment of

sentence, “whether a defendant, who is ineligible for statutory collateral

review because he was sentenced to pay a fine without incarceration or

probation, may obtain review of ineffective assistance of counsel claims

presented in post-sentence motions filed in the trial court.” Id. at 353. The

Court answered that question in the affirmative, creating a new exception to

the general rule that claims of ineffective assistance of counsel are not

properly raised on direct appeal, but must be deferred to subsequent PCRA

proceedings. Id. at 361.

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Appellant acknowledges that the Delgros ruling “pertained to [the

Six]th Amendment right to effective assistance of counsel, that was

considered a fundamental right.” Appellant’s reply brief at 12. However, he

maintains that the fundamental fairness aspect of due process is a parallel

constitutional right, observing that, while his liberty interests are not directly

impacted by his sentence, “failure to pay a fine subjects a defendant to

potential loss of driving privileges, arrest if driving on the revoked list and

potential incarceration.” Id. Thus, Appellant argues that the holding of

Delgros warrants allowing his PCRA claims to be heard notwithstanding

§ 9543’s strictures. Id.

We are unpersuaded by Appellant’s arguments. First, the Delgros

Court held not that a defendant sentenced only to the payment of fines could

pursue a PCRA petition after his direct appeal concluded, but that the statutory

ineligibility which necessarily flowed from § 9543(a)(1) allowed the defendant

to vindicate his Sixth Amendment rights on direct appeal. Indeed, Appellant

was able to, and did, pursue his fundamental fairness arguments on direct

appeal, which establishes another reason for his ineligibility for PCRA relief.

See 42 Pa.C.S. § 9543(a)(3).

Moreover, the Delgros Court expressly limited its ruling to claims raised

on direct appeal involving the Sixth Amendment right to counsel, and

endorsed Fisher’s interpretation of § 9543(a)(1), stating:

[A]s this appeal involves the examination of ineffectiveness claims

presented in post-sentence motions, prior decisions governed by

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the PCRA that construe that statute’s eligibility requirements are

left undisturbed. See, e.g., Commonwealth v. Fisher, 703 A.2d

714 (Pa.Super. 1997) (holding that [§] 9543(a)’s eligibility

requirement of current incarceration, probation or parole

precludes PCRA relief for those petitioners who were sentenced

only to pay a fine).

Delgros, 183 A.3d at 362–63. It is not within the power of the instant panel

of this Court to overrule Fisher, even if we thought it appropriate. See, e.g.,

Commonwealth v. May, 271 A.3d 475, 482 (Pa.Super. 2022) (“This panel

is bound by existing precedent and, therefore, lacks the authority to overturn

another panel decision.”).

The fact that Appellant may face additional collateral ramifications from

his sentence does not allow him to pursue PCRA relief when he is not

imprisoned, on probation, or on parole in connection with his conviction. See,

e.g., Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa.Super. 2009)

(“The PCRA is not intended to provide relief from collateral consequences of a

criminal conviction.” (cleaned up)).

Finally, we note that application of § 9543 and the precedent

interpreting it by no means leaves individuals who are never sentenced to

imprisonment or other qualifying criminal supervision without a remedy for

civil rights violations at the hands of overzealous law enforcement officers. 4

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4 See, e.g., York v. Kanan, 298 A.3d 533, 535 (Pa.Cmwlth. 2023) (“York

brought a civil suit against [Philadelphia police officers] alleging false arrest

and malicious prosecution stemming from York’s arrest and prosecution for

three criminal offenses of which he was acquitted.”); Brown v. Gee, 295 A.3d

(Footnote Continued Next Page)

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Rather, the controlling authority discussed above indicates that Appellant has

once again chosen an inappropriate forum to pursue redress for the harms he

claims to have sustained.

Order affirmed. Oral argument scheduled for January 27, 2026, is

hereby cancelled.5

Date: 1/14/2026

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752 (Pa.Cmwlth. 2023) (involving action for, inter alia, false arrest and civil

rights violations brought by individual whose criminal charges were nolle

prossed by the district attorney’s office).

5 Pursuant to the Superior Court Operating Procedures, appeals from PCRA

orders are generally not subject to oral argument. See 210 Pa. Code

§ 65.36(A) (“All post-conviction hearing cases shall be submitted on the briefs

and record unless otherwise directed by the Court upon its own motion or

upon application of a party.”). Appellant here made a bald request for oral

argument, which a motions judge of this Court granted without explanation.

For the reasons detailed above, we have ascertained that it is impossible for

Appellant to prevail before this panel. Therefore, oral argument would serve

no purpose.

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