J-S84023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DONTEL HAWES

                            Appellant                  No. 216 EDA 2016


              Appeal from the PCRA Order Dated January 21, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010090-2011


BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 29, 2016

        Appellant Dontel Hawes appeals pro se from the order dismissing his

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

        On January 15, 2013, Appellant entered into a negotiated guilty plea

to third degree murder.1 In accordance with the plea negotiations, Appellant

was sentenced to 12½ to 30 years’ incarceration, and his remaining charges

were nolle prossed. N.T., 1/15/13, at 18.

        Appellant did not file post-sentence motions or a direct appeal.   On

February 7, 2014, he filed a timely pro se PCRA petition that made no

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
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mention     of   ineffective   assistance      of   Appellant’s   trial   counsel.   On

February 13, 2014, Appellant mailed a pro se Amended PCRA Petition,

alleging for the first time that Appellant’s trial counsel had been ineffective.

See Amended Petition at 2-3. Appellant’s Amended Petition was docketed

on February 21, 2014. Appellant never requested permission from the PCRA

court to supplement or amend his original request for post-conviction relief

to include this ineffectiveness claim.

       The PCRA court appointed counsel for Appellant’s PCRA proceeding.

PCRA counsel did not petition to supplement or amend Appellant’s original

PCRA petition. Ultimately, PCRA counsel filed a Turner/Finley2 letter and

motion to withdraw as counsel, averring that Appellant’s PCRA petition had

no merit and that there were no additional issues that could be raised in an

amended PCRA petition.

       On December 15, 2014, the PCRA court issued a notice of its intent to

dismiss Appellant’s PCRA petition pursuant to Rule 907 of the Pennsylvania

Rules of Criminal Procedure. Appellant did not file a response to that notice.

On January 14, 2015, the PCRA court granted counsel’s motion to withdraw,

and, on January 21, 2015, the PCRA court dismissed Appellant’s PCRA

petition.    Appellant filed a timely appeal to this Court on or about

January 25, 2015, but the Court of Common Pleas’ Clerk of Courts did not

____________________________________________


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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record the notice of appeal on the docket.      Order, 1/15/16; PCRA Court

Opinion, 5/13/16, at 2. Appellant subsequently filed a PCRA petition asking

the court to reinstate his appellate rights nunc pro tunc, and the court

granted that petition on January 15, 2016.        This timely pro se appeal

followed. Id.

      On appeal, Appellant raises the following issues for our review:

      I.   [(A)] WHETHER PCRA COUNSEL RENDERED INEFFECTIVE
      ASSISTANCE FOR FAILING TO INVESTIGATE AND EXPLORE
      THAT THE COMMONWEALTH VIOLATED BRADY V. MARYLAND,
      373 U.S. 83 (1963) BY FAILING TO DISCLOSE INDEPENDENT OR
      CONSTRUCTIVE     KNOWLEDGE      OF   THE   INVESTIGATIONS
      SURROUNDING DETECTIVES DOVE AND PITTS, AND [(B)] WAS
      TRIAL COUNSEL INEFFECTIVE FOR FAILING TO INVESTIGATE
      AND FORMALLY REQUEST ADDITIONAL D[I]SCOVERY WHERE
      SUCH WOULD HAVE CHANGED THE OUTCOME OF THIS CASE?

      II.  WHETHER PCRA COUNSEL RENDERED INEFFECTIVE
      ASSISTANCE BY FAILING TO RAISE [A CLAIM THAT]
      APPELLANT’S GUILTY PLEA WAS UNLAWFULLY INDUCED WHERE
      THE CIRCUMSTANCES OF THIS CASE RENDERED THE PLEA NOT
      INTELLIGENTLY OR VOLUNTARILY ENTERED?

Appellant’s Brief at 4.   We note that the issues raised in what we have

identified above as I(A) and II both raise for the first time a claim that

Appellant’s PCRA counsel was ineffective.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence


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of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We defer to the PCRA court’s findings that are supported in

the record and will not disturb them unless they have no support in the

certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.

2014).

      Before reviewing the merits of Appellant’s issues, we must determine

whether they are properly before us. We begin with Issues I(A) and II, each

of which claims ineffectiveness of Appellant’s PCRA counsel.         Although

Appellant did not raise an issue regarding his PCRA counsel in his PCRA

petition, he had an opportunity to bring that issue before the PCRA court in

response to the PCRA court’s notice of an intent to dismiss his petition under

Rule 907.   The purpose of a Rule 907 pre-dismissal notice is “to allow a

petitioner an opportunity to seek leave to amend his petition and correct any

material defects, see Commonwealth v. Williams, 566 Pa. 553, 782 A.2d

517, 526 (2001), the ultimate goal being to permit merits review by the

PCRA court of potentially arguable claims.” Rykard, 55 A.3d at 1189. The

response to the Rule 907 notice “is an opportunity for a petitioner and/or his

counsel to object to the dismissal and alert the PCRA court of a perceived

error, permitting the court to ‘discern the potential for amendment.’”    Id.

(quoting Williams, 782 A.2d at 527). The response is also the opportunity

for the petitioner to object to counsel’s effectiveness at the PCRA level.


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Rykard, 55 A.3d at 1189.       Accordingly, the Supreme Court has held in

circumstances similar to those in this case that a failure to raise

ineffectiveness of PCRA counsel in response to a Rule 907 notice waives that

claim. Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009).

      Our review of the record confirms that Appellant failed to respond to

the PCRA court’s Rule 907 notice at any time before the court dismissed his

petition.   Therefore, all of his issues concerning PCRA counsel’s asserted

ineffectiveness are waived. Appellant may not raise those issues for the first

time on appeal. See Commonwealth v. Smith, 121 A.3d 1049, 1055-56

(Pa. Super. 2015), appeal denied, 136 A.3d 981 (Pa. 2016). Accordingly,

Issues I(A) and II in the “Statement of Questions Involved” in Appellant’s

Brief are waived.

      As for Appellant’s remaining claim of ineffective assistance of trial

counsel – I(B) in Appellant’s “Statement of Questions Involved” — we find

that the issue also has not been preserved for our review. That issue of trial

counsel’s ineffectiveness was not raised in Appellant’s original PCRA petition,

and neither he nor his PCRA counsel sought leave to add it by an

amendment to that petition.    Appellant did file an unauthorized “Amended

Petition” that asserted the ineffectiveness claim, but the Supreme Court of

Pennsylvania has “condemned the unauthorized filing of supplements and

amendments to PCRA petitions, and held that claims raised in such

supplements are subject to waiver.”      Commonwealth v. Reid, 99 A.3d


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470, 484 (Pa. 2014) (finding claims raised in unauthorized supplemental

petitions waived despite trial court entertaining and ruling on claims); see

also Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013) (holding that

claim alleging trial counsel’s ineffectiveness is waived because it wasn't

included in PCRA Petition and PCRA court did not give permission to amend

PCRA petition). Because Appellant did not include in his initial PCRA petition

a claim of ineffective assistance of trial counsel, and because Appellant failed

properly to seek the PCRA court’s permission to amend his PCRA petition to

add that claim, Appellant waived appellate review of this remaining

ineffectiveness issue. Id.

      As Appellant has failed to preserve any issues for our review, we affirm

the order dismissing Appellant’s PCRA petition.

      Order affirmed.

Judge Olson joins the memorandum.

Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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