J-S30031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CLARENCE HENRY HART

                            Appellant                No. 871 EDA 2015


               Appeal from the PCRA Order entered April 1, 2015
                 in the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001737-2009


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED MAY 13, 2016

        Appellant Clarence Henry Hart (“Appellant”) appeals from the dismissal

of his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. § 9541 et seq. After careful review, we affirm.

        On March 18, 2010, a jury convicted Appellant of robbery, 1 burglary,2

theft by unlawful taking,3 simple assault,4 criminal conspiracy to commit

robbery,5 and criminal conspiracy to commit burglary.6        The convictions

____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(iv).
2
    18 Pa.C.S. § 3502(a).
3
    18 Pa.C.S. § 3921(a).
4
    18 Pa.C.S. § 2701(a)(1).
5
    18 Pa.C.S. § 3701(a)(1)(iv); 18 Pa.C.S. § 903.
J-S30031-16



stemmed from a 2008 incident in which Appellant attacked and robbed an

83-year-old woman in her home. On July 6, 2010, the trial court sentenced

Appellant to 5 to 10 years’ incarceration on the robbery conviction, 10 to 20

years’ incarceration on the burglary conviction, 1 to 2 years’ incarceration on

the simple assault conviction, 10 to 20 years’ incarceration on the criminal

conspiracy to commit burglary conviction, and 5 to 10 years’ incarceration

on the criminal conspiracy to commit robbery conviction.            The trial court

ordered all sentences to run consecutively, for an aggregate sentence of 31

to 62 years’ incarceration.

        Appellant filed post-sentence motions challenging the sufficiency and

weight of the evidence and requesting the trial court reconsider and modify

the sentence imposed.           The trial court denied Appellant’s post-sentence

motions on July 29, 2010.            Appellant filed a direct appeal to this Court,

which affirmed his judgment of sentence on August 9, 2011.                     See

Commonwealth v. Hart, 2419 EDA 2010 (unpublished memorandum).

Appellant filed a petition for allowance of appeal, which our Supreme Court

denied on February 9, 2012.

        Appellant filed a timely pro se PCRA petition on February 12, 2013.7

The PCRA court appointed counsel, who filed a Turner/Finley8 no merit
                       _______________________
(Footnote Continued)
6
    18 Pa.C.S. § 3502(a); 18 Pa.C.S. § 903.
7
  Because Appellant did not file a petition for allocatur to the Supreme Court
of the United States, his judgment of sentence became final on May 9, 2012,
(Footnote Continued Next Page)


                                            -2-
J-S30031-16



letter on April 16, 2013. The PCRA court conducted a hearing on May 16,

2013, at which counsel reiterated her conclusions from the Turner/Finley

letter that there was no legal basis on which to proceed with Appellant’s

PCRA petition. The PCRA court permitted counsel to withdraw. Appellant,

however, indicated his desire to proceed at a later date with the claims

contained in his PCRA petition.          The PCRA court accordingly continued the

hearing until October 17, 2013, to give Appellant an opportunity to hire

private counsel or proceed pro se.

      The PCRA court conducted a further evidentiary hearing on October

17, October 22, November 13, and December 4, 2013, with Appellant

proceeding pro se. Thereafter, in an effort to streamline Appellant’s issues

for review, the PCRA court directed Appellant to file an amended PCRA

petition on or before January 17, 2014, which date the court then extended

to July 21, 2014.

                       _______________________
(Footnote Continued)

90 days after the Supreme Court of Pennsylvania denied his petition for
allocatur. See 42 Pa.C.S. § 9545(b)(3) (“a judgment of sentence becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.”); see also
U.S.Sup.Ct.Rule 13.1 (allowing 90 days for the filing of a writ of certiorari in
the Supreme Court of the United States); Commonwealth v. Fairiror, 809
A.2d 396, 398 (Pa.Super.2002).         2012 was a Leap Year.         Therefore,
Appellant had until May 9, 2013 to timely file his PCRA petition.
8
  Commonwealth v. Turner, 544 A.2d 927 (Pa.1988)                             and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).




                                            -3-
J-S30031-16



       The PCRA court scheduled another evidentiary hearing for February

26, 2015.      Appellant requested the PCRA court appoint him counsel to

proceed in his PCRA representation, which request the PCRA court denied on

February 4, 2015.        Appellant appealed the denial of his request for the

appointment of counsel on February 25, 2015, the day before the scheduled

hearing.

       At the February 26, 2015 hearing, the PCRA court again instructed

Appellant to file an amended PCRA petition, and cautioned Appellant his

failure to comply would result in the dismissal of his original petition.

Appellant failed to file an amended PCRA petition as instructed, and on April

1, 2015, the court filed an order dismissing Appellant’s PCRA petition,

together with a Rule 1925(a) opinion discussing Appellant’s appeal of the

court’s denial of Appellant’s request for the appointment of counsel.

Appellant appealed.9




____________________________________________


9
   Appellant originally filed his notice of appeal on February 12, 2015 in
response to the PCRA court’s February 4, 2015 denial of his request for the
appointment of second PCRA counsel following his PCRA counsel’s
Turner/Finley letter. This appeal was not reviewable as interlocutory.
However, because the PCRA court denied Appellant’s PCRA petition on April
1, 2015, we treat Appellant’s interlocutory appeal as having been properly
and timely filed in response to the denial of his PCRA petition. See Pa.R.A.P.
905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”). We have changed the
caption to reflect this procedural posture.



                                           -4-
J-S30031-16



      In his pro se brief, filed with this Court on November 12, 2015,

Appellant raises the following issues for review:

      I. Trial counsel was ineffective under the Sixth and Fourteenth
      Amendment[s] of the United States Constitution and the
      Pennsylvania Constitution for failing to investigate [Appellant’s]
      mental health history and/or develop it as a possible defense
      and/or trial strategy.

      II. Trial counsel was ineffective under the Sixth and Fourteenth
      Amendment[s] of the United States Constitution and the
      Pennsylvania Constitution for failing to investigate and present
      available mitigation evidence during [Appellant’s] sentencing
      hearing.

      III. Trial counsel was ineffective under the Sixth and Fourteenth
      Amendment[s] of the United States Constitution and the
      Pennsylvania Constitution for failing to present any mitigation
      defense during the sentencing hearing.

      IV. PCRA counsel was ineffective under the Sixth and Fourteenth
      Amendment[s] of the United States Constitution and the
      Pennsylvania Constitution for failing to adequately review
      [Appellant’s] case files [sic] and/or challenge the deficient
      stewardship of trial counsel.

      V. [Appellant] also seeks to challenge the legality of the
      mandatory minimum sentence that was imposed by the Court of
      Common Pleas [of] Lehigh County.

Appellant’s Brief, pp. 10, 12, 13-14, 15            (unnecessary   capitalization

removed).

      Our standard of review is well-settled.       “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).

“The PCRA court’s findings will not be disturbed unless there is no support


                                     -5-
J-S30031-16



for the findings in the certified record.”           Commonwealth v. Barndt, 74

A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations

omitted). “The scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the

prevailing party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294,

311 (Pa.2014) (citation omitted).              “It is well-settled that a PCRA court’s

credibility determinations are binding upon an appellate court so long as

they are supported by the record.” Commonwealth v. Robinson, 82 A.3d

998, 1013 (Pa.2013) (citation omitted).              However, this Court reviews the

PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d

1080, 1084 (Pa.Super.2014) (citation omitted).

        Pennsylvania courts apply the Pierce10 test to review claims of

ineffective assistance of counsel:

        When a petitioner alleges trial counsel’s ineffectiveness in a
        PCRA petition, he must prove by a preponderance of the
        evidence that his conviction or sentence resulted from ineffective
        assistance of counsel which, in the circumstances of the
        particular case, so undermined the truth-determining process
        that no reliable adjudication of guilt or innocence could have
        taken place. We have interpreted this provision in the PCRA to
        mean that the petitioner must show: (1) that his claim of
        counsel’s ineffectiveness has merit; (2) that counsel had no
        reasonable strategic basis for his action or inaction; and (3) that
        the error of counsel prejudiced the petitioner-i.e., that there is a
        reasonable probability that, but for the error of counsel, the
        outcome of the proceeding would have been different. We

____________________________________________


10
     Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



                                           -6-
J-S30031-16


       presume that counsel is effective, and it is the burden of
       Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             The petitioner bears the burden of

proving all three prongs of this test.         Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).               “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

       Appellant first alleges trial counsel provided ineffective assistance by

failing to investigate and develop his mental history as a possible defense.

See Appellant’s Brief, pp. 10-12. This claim is waived.

       Appellant did not raise this claim in his PCRA petition and neither

appointed counsel nor Appellant filed an amended petition. Appellant also

did not file a response to appointed counsel’s Turner/Finley letter.

Accordingly, Appellant waived this issue for appeal.11 See Pa.R.A.P. 302(a)
____________________________________________


11
    We acknowledge that Appellant’s PCRA petition raised a claim that trial
counsel was ineffective for failing to inform the sentencing court at the time
of sentencing that Appellant’s mental health was impaired due to his
allegedly having refrained from food and drink for the previous ten days.
See PCRA Petition, Typed Portion, p. 2, ¶ 14. This claim, however differs
from Appellant’s claim that trial counsel provided ineffective assistance by
failing to investigate and develop a trial defense regarding Appellant’s
mental health history. See Commonwealth v. Rush, 959 A.2d 945, 949
(Pa.Super.2008) (noting appellate court cannot review legal theory in
support of a claim unless that particular legal theory was presented to the
lower court).



                                           -7-
J-S30031-16



(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”); see also Commonwealth v. Colavita, 993

A.2d   874,   891    (Pa.2010)     (“[The   Pennsylvania    Supreme]       Court   has

consistently held that an appellate court cannot reverse a trial court

judgment on a basis that was not properly raised and preserved by the

parties.”).

       Appellant’s next two claims allege trial counsel provided ineffective

assistance by failing to present mitigation witnesses at sentencing.               See

Appellant’s Brief, pp. 12-24. This claim fails.

              [I]n the particular context of the alleged failure to call
       witnesses, counsel will not be deemed ineffective unless the
       PCRA petitioner demonstrates: (1) the witness existed; (2) the
       witness was available; (3) counsel knew of, or should have
       known of[,] the existence of the witness; (4) the witness was
       willing to testify for the defense; and (5) the absence of the
       testimony was so prejudicial to petitioner to have denied him or
       her a fair trial.

Commonwealth v. Miner, 44 A.3d 684, 687 (Pa.Super.2012); see also

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa.2009) (quoting

Commonwealth         v.   Washington,        927   A.2d    586,   599      (Pa.2007)).

“Moreover,    [the   petitioner]   must     show   how    the   uncalled    witnesses’

testimony would have been beneficial under the circumstances of the case.”

Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa.2008).

       Here, Appellant has not identified any individuals he alleges trial

counsel should have called on his behalf, whether trial counsel knew of such

persons’ existence or whether such individuals were willing to testify on

                                        -8-
J-S30031-16



Appellant’s behalf.   Further, Appellant does not provide a statement or

affidavit from any possible witnesses or otherwise outline their expected

testimony to allow the PCRA court to determine whether the absence of the

witnesses’ testimony prejudiced Appellant. In short, Appellant has failed to

illustrate any of the five requirements proving ineffectiveness for a failure to

call a witness claim. As a result, Appellant’s ineffectiveness claim fails.

      Next, Appellant claims PCRA counsel provided ineffective assistance of

counsel by failing to adequately review the record and raise trial counsel’s

inadequacies. See Appellant’s Brief, pp. 14-15. This claim is waived.

      Claims of PCRA counsel ineffectiveness cannot be raised for the first

time on appeal.       See Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa.Super.2014). Instead, such claims must be raised in response to PCRA

counsel’s Turner/Finley letter or in response to a PCRA court’s Pa.R.A.P.

Rule 907 notice of intent to dismiss.     See Commonwealth v. Pitts, 981

A.2d 875, 880 n.4 (Pa.2009) (noting appellant’s failure to object to PCRA

counsel’s stewardship after receiving counsel’s withdrawal letter and the

notice of the PCRA court’s intent to dismiss his petition pursuant to

Pa.R.Crim.P. 907, results in waiver of PCRA counsel ineffectiveness claim).

      Here, Appellant did not object to PCRA counsel’s performance in a

response to counsel’s Turner/Finley letter, the PCRA court’s notice of

intent to dismiss, or otherwise.     Instead, Appellant attempts to bring his

claim of PCRA counsel ineffectiveness for the first time on appeal, and it is

accordingly waived.

                                      -9-
J-S30031-16



       Finally, Appellant argues the imposition of a mandatory minimum

sentence resulted in an illegal sentence under Alleyne v. United States, --

U.S. ---, 133 S.Ct. 2151 (2013).12 See Appellant’s Brief, pp. 15-19. He is

incorrect.

       A review of the record reveals the trial court did not impose any

mandatory minimum sentence on Appellant.           Because Appellant was not

sentenced pursuant to any mandatory minimum statute, Alleyne does not

apply and affords Appellant no relief.

       Appellant’s claims fail for the reasons stated above. 13 Accordingly, we

affirm the order of the PCRA court dismissing Appellant’s PCRA petition.

       Order affirmed.




____________________________________________


12
  In Alleyne, the Supreme Court of the United States held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133
S.Ct. at 2155.
13
   To the extent Appellant further alleges the trial court erred in not
appointing PCRA counsel, we note that trial court did, in fact, appoint
counsel, who performed a conscientious review of the record and determined
Appellant’s issues were meritless. Following counsel’s Turner/Finley letter,
Appellant had a right to proceed with private counsel or pro se, which he did.
The PCRA court did not err by denying Appellant’s request to appoint new
counsel following counsel’s Turner/Finley letter and withdrawal.



                                          - 10 -
J-S30031-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016




                          - 11 -
