J-S29013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILFREDO SANTIAGO                          :
                                               :
                       Appellant               :   No. 3639 EDA 2018

            Appeal from the PCRA Order Entered November 28, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0902211-1985


BEFORE:      PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                              Filed: August 20, 2020

        Wilfredo Santiago appeals from the order entered on November 28,

2018, in the Court of Common Pleas of Philadelphia County, dismissing his

first petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546, without a hearing. Santiago seeks relief from the judgment of

sentence of life imprisonment imposed on May 27, 2008, following his jury

conviction of first-degree murder and possessing an instrument of crime

(“PIC”).1 On appeal, Santiago asserts the PCRA court erred in failing to find

that trial counsel was ineffective for failing to challenge a purportedly defective

reasonable doubt instruction. Based on the following, we affirm. Additionally,


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
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we deny Santiago’s motion for remand seeking to raise an additional

ineffectiveness claim.

      For a recitation of the complete factual background and the procedural

history of this case on direct appeal, we refer the reader to this Court’s

memorandum in Commonwealth v. Santiago, 50 A.3d 243 [1708 EDA

2008] (Pa. Super. 2012) (unpublished memorandum at 1-6) (“Santiago II”).

Briefly, in May of 1985, Santiago, while on a bicycle, rode up to Officer Thomas

Trench’s patrol car, and shot the officer once in the face and once in the neck,

fatally wounding him. In August of 1986, a jury convicted Santiago of first-

degree murder and PIC. On direct appeal, a panel of this Court reversed the

judgment of sentence and remanded for a new trial. See Commonwealth v.

Santiago, 591 A.2d 1095 (Pa. Super. 1991) (en banc), appeal denied, 600

A.2d 953 (Pa. 1991) (“Santiago I”).

      After numerous years of litigation, the matter went to trial in May of

2008. A jury again convicted Santiago of first-degree murder and PIC. On May

28, 2008, the trial court sentenced Santiago to a term of life imprisonment for

the murder of Officer Trench, and a consecutive term of two-and-a-half to five

years for the PIC conviction. A panel of this Court affirmed the judgment of

sentence on May 26, 2012, and the Pennsylvania Supreme Court denied his

petition for allowance of appeal on September 9, 2013. See Commonwealth

v. Santiago, No. 285 EAL 2012 (Pa., filed September 18 2013).




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       Thereafter, on January 13, 2014, Santiago filed the instant, timely pro

se PCRA petition. Counsel was appointed, who originally filed a motion to

withdraw as counsel, but subsequently filed a praecipe to withdraw that

motion and contemporaneously filed an amended PCRA petition on September

4, 2017.2 The PCRA court issued notice of its intent to dismiss the petition

without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907 on

October 29, 2018, finding that the issue raised in Santiago’s petition was

without merit. Santiago did not file a response. On November 28, 2018, the

PCRA court dismissed his petition. Santiago filed a timely notice of appeal on

December 18, 2018.3

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2 In the counseled petition, Santiago raised one issue – whether trial counsel
was ineffective for failing to object to the court’s jury instruction regarding
reasonable doubt.

3 The PCRA court directed Santiago to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on December 26,
2018. Santiago complied with the order by filing a statement, dated January
20, 2019, which fell on a Sunday. The statement was docketed two days later.
Applying either date, the statement was filed in an untimely manner. An en
banc panel of this Court previously held that counsel’s “untimely filing of the
[Rule] 1925 concise statement is the equivalent of a complete failure to file[;
b]oth are per se ineffectiveness of counsel from which appellants are entitled
to the same prompt relief.” Commonwealth v. Burton, 973 A.2d 428, 433
(Pa. Super. 2009) (en banc) (footnote omitted). Moreover, the Burton Court
stated: “[I]f there has been an untimely filing [of the concise statement], this
Court may decide the appeal on the merits if the trial court had adequate
opportunity to prepare an opinion addressing the issues being raised on
appeal.” Id. Here, the PCRA court issued a Pa.R.A.P. 1925(a) opinion on
September 24, 2019, addressing Santiago’s claim. Accordingly, we will review
the merits of his claim.




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       In his sole issue on appeal, Santiago contends the PCRA court erred in

failing to find trial counsel was ineffective for not challenging the court’s

reasonable doubt instruction, which he claims was defective. See Appellant’s

Brief, at 13. He asserts that since the Commonwealth’s case was built on

witnesses with significant credibility issues, the alleged defective instruction

prejudiced him. Santiago also points to the jury deliberations, where the jury

remained deadlocked for six days. See id., at 21. Santiago claims “it is not

hard to see how this [jury] instruction could have negatively affected this

verdict against” him. Id.

       The court provided the following jury instruction, in relevant part:

             Now, ladies and gentlemen, the Commonwealth bears th[e]
       burden to prove Wilfredo Santiago guilty beyond a reasonable
       doubt. Although this does not mean that the Commonwealth must
       prove its case beyond all doubt. The Commonwealth is not
       required to meet a mathematical certainty, nor must the
       Commonwealth demonstrate the complete impossibility of
       innocence.

              A reasonable doubt is a doubt that would cause a
       reasonably, careful, and sensible person to pause, to hesitate, or
       to refrain from acting upon a matter of the highest importance to
       their own affairs.

             A reasonable doubt must fairly arise out of the evidence that
       was presented or out of the lack of evidence that was presented
       with respect to some element of each of the crimes charged.

             Now, ladies and gentlemen, I customarily give an example
       of reasonable doubt, and it’s actually very similar to the example


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It also merits mention that, during this time, Santiago retained private
counsel, who entered his appearance on March 7, 2019.

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     of reasonable doubt that was given by both the lawyers, because
     I find it to be very helpful to frame your thinking.

           When you do think about the fact that if someone you love
     dearly – and I know each one of you has someone in your life that
     you love dearly, because I had the great, good fortune to speak
     with each one of you individually – ladies and gentlemen, if you
     learned that your loved one had a life-threatening medical
     condition and the doctor said the best protocol is for surgery and
     you said, Okay, what else, you’d probably get a second opinion.
     You’d probably get a third opinion. You’d probably research
     everything there is to research about this condition.

          If you’re like me, you’d start going through your Rolodex
     and calling all yours friends in that unique business of medicine.
     What do you know? What do you know about this condition? What
     do you know about this surgery?

           Ladies and gentlemen, it’s not the research that gives rise
     to reasonable doubt. It’s when you have the record before you
     and the question is called, do I let my loved one go forward with
     this surgery or not?

           If you go forward, it’s not because all doubt [h]as been
     eliminated. There are no promises. There are no guarantees. If
     you go forward, it’s because you have moved beyond all the
     reasonable doubt.

           Ladies and gentlemen, your obligation is to look at this
     record in its entirety. What have I told you from the day I met
     you? Don’t talk about this case; don’t discuss it with one another;
     don’t discuss it with your family members, because I did not want
     you to make premature opinions. I did not want you to jump to
     judgment about this evidence.

           So every day I have cautioned you, even to the point of
     making jokes with you: Let’s watch American Idol tonight, let’s
     watch Dancing with the Stars, something to distract you, because
     you can’t make a good decision about my record until the record
     is complete. The record is now complete and now you evaluate
     the record.




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            A reasonable doubt, ladies and gentlemen, must be a real
      doubt. It may not be a doubt imagined or manufactured to avoid
      carrying out an unpleasant responsibility.

            When I met you, I told you, I wasn’t asking you to do
      something that was easy. Truthfully, ladies and gentlemen, if it
      was easy, I wouldn’t need you. I told you I needed you because I
      needed you to do something that was important, but I never said
      it was easy.

           A reasonable doubt must be a real doubt, not an imagined
      one or not one manufactured to avoid carrying out an unpleasant
      responsibility.

            You may not find Wilfredo Santiago guilty based upon a
      mere suspicion of guilt. The Commonwealth bears the burden of
      proving Wilfredo Santiago guilty beyond a reasonable doubt. If the
      Commonwealth has met that burden, then Wilfredo Santiago is no
      longer presumed to be innocent and you should find him guilty.
      On the other hand, if the Commonwealth has not met its burden,
      then you should find him not guilty.

N.T., 5/19/2008, at 203-206.

      Our standard of review for an order denying PCRA relief is well settled:

      This Court’s standard of review regarding a PCRA court’s order is
      whether the determination of the PCRA court is supported by the
      evidence of record and is free of legal error. Great deference is
      granted to the findings of the PCRA court, and these findings will
      not be disturbed unless they have no support in the certified
      record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

      Moreover, concerning ineffective assistance of counsel arguments, we

presume counsel is effective, and the appellant bears the burden to prove

otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012).

The appellant must demonstrate: (1) his underlying claim is of arguable merit;

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(2) the particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and (3) but for counsel’s

ineffectiveness, there is a reasonable probability that the outcome of the

proceedings would have been different. See Commonwealth v. Solano, 129

A.3d 1156, 1162-63 (Pa. 2015). Failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim. See Commonwealth v.

Jones, 815 A.2d 598, 611 (Pa. 2002).

        Lastly, “a jury charge must be read as a whole to determine whether it

is fair or prejudicial.” Commonwealth v. Miller, 746 A.2d 592, 604 (Pa.

2000). “The trial court has broad discretion in phrasing its instructions so long

as the law is clearly, adequately and accurately presented to the jury.” Id.

Nevertheless, “[a] trial court’s charge to the jury must contain a correct

statement of the law.” Commonwealth v. Patosky, 656 A.2d 499, 505 (Pa.

Super. 1995) (citations omitted).

        Santiago complains there is arguable merit to the underlying claim

because the court’s “medical example was so charged, both emotionally and

intellectually, that it elevated the reasonable doubt standard so much that it

unconstitutionally lessened the Commonwealth’s burden of proof.” Appellant’s

Brief, at 20. He states the instruction was constitutionally defective in two

ways:

              First, [the trial court] inserted a requirement that any doubt
        worthy of acquittal must, in essence, be serious and grave. The
        court did this by giving the jury the example, of a mother rejecting
        surgery for her dying loved one or even a child. However, the

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       [c]ourt not only used this example, but then had the client
       performing their own research and talking to all sorts of other
       doctors and friends to get opinions and be proactive in their search
       for the best protocol. Thus, the example provided both an
       intellectual undertaking plus an emotionally-charged one since a
       loved one, including a child, could be involved.

            Secondly, this example was central to the instruction itself
       and was virtually the same length, if not more, than the proper
       standard, however, it was aimed at a different level of the jury’s
       psyche, its emotions. Jurors are supposed to reach their decisions
       based on guilty and innocence dispassionately.

Id., at 22.

       In support of his argument, Santiago relies on Brooks v. Gilmore, No.

15-5659, 2017 WL 3475475, 2017 U.S. Dist. LEXIS 127703 (E.D. Pa. Aug. 11,

2017) (report and recommendation), which granted a writ of habeas corpus

on an ineffectiveness claim for counsel’s failure to object to a nearly identical

reasonable doubt instruction and given by the same trial judge as the one in

the present appeal. See Appellant’s Brief, at 24-25, 31-35.4 Santiago states

the jury instruction at issue elevated the level of doubt necessary for an

acquittal under the reasonable doubt standard, which amounted to a due

process violation, and “strongly encouraged jurors to resolve any doubts they



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4 Santiago also cites to other courts in the Eastern District of Pennsylvania
that have determined the instruction to be improper. See Appellant’s Brief, at
24-25; see also Brown v. Kaufman, 425 F. Supp. 3d 395 (E.D. Pa. 2019),
Jackson v. Capozza, No. 17-5126, 2019 U.S. Dist. LEXIS 34018, (E.D. Pa.
Feb. 27, 2019), McDowell v. Delblaso, No. 2:18-cv-01466-AB, 2020 WL
61162, 2020 U.S. Dist. LEXIS 1806 (E.D. Pa. 2020).



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may entertain in violation of the rule of Holland v. United States, 348 U.S.

121 (1954).” Appellant’s Brief, at 30.5

       Santiago further submits that counsel was ineffective for failing to object

to the instruction because his inaction could not have been the result of

reasonable professional judgment and prejudice is presumed based on the

structural error of the improper charge. See id., at 33-35.

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the PCRA court, we conclude

Santiago’s ineffectiveness argument merits no relief. The PCRA court opinion

comprehensively discusses and properly disposes of the question presented.

See PCRA Court Opinion, 9/24/2019, at 6-11) (finding: (1) Brooks, as a

federal district court decision, was not binding on the PCRA court; (2) this

Court6 as well as other federal district courts7 have repeatedly upheld the


____________________________________________


5Santiago points to the following language in Holland: “We think this section
of the [reasonable doubt] charge should have been in terms of the kind of
doubt that would make a person hesitate to act, rather than the kind on which
he would be willing to act.” Holland, 348 U.S. at 140 (citation omitted).

6 See Commonwealth v. Corbin, No. 537 EDA 2015 (Pa. Super., filed April
19, 2016) (unpublished memorandum); Commonwealth v. Gant, No. 1612
EDA 2007 (Pa. Super., filed September 21, 2009) (unpublished
memorandum); Commonwealth v. Clarkson, No. 2859 EDA 2003 (Pa.
Super., filed August 25, 2004) (unpublished memorandum); Commonwealth
v. Johnson, No. 1639 EDA 1999 (Pa. Super., August 23, 2000) (unpublished
memorandum).
7 See Gant v. Giroux, No. 15-4468, 2017 WL 2825927, 2017 U.S. Dist. LEXIS

100176, (E.D. Pa. Feb. 27, 2017); Johnson v. Varner, No. 01-CV-2409,
2003 U.S. Dist. LEXIS 29449 (E.D. Pa. Sep. 4, 2003).


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legality and constitutionality of the instruction at issue in non-precedential

decisions; (3) because Pennsylvania appellate courts have declined to find

error in the instruction, counsel cannot be deemed ineffective for failing to

raise a baseless claim; (4) the jury instruction was a proper and accurate

example that was used to explain a complicated legal concept; (5) at the

beginning and conclusion of the charge, the court included language that was

essentially identical to the suggested jury charge set forth in Pennsylvania

Suggested Standard Criminal Jury Instruction § 7.01 (titled “Presumption of

Innocence: Burden of Proof: Reasonable Doubt”); (6) the wording used in the

surgery example portion of the instruction did not elevate the level of doubt

needed to acquit Santiago; (7) the instruction, especially in the context of the

charge as a whole, did not reduce the burden placed upon the Commonwealth

to prove Santiago’s guilt beyond a reasonable doubt; and (8) trial counsel

cannot be considered ineffective for failing to object to a jury charge that was

repeatedly upheld by the our appellate courts as constitutional).8 Accordingly,

we affirm on the basis of that opinion, with several additional comments.


____________________________________________


8 The PCRA court also analyzed the issue in terms of appellate counsel’s
ineffectiveness for failing to challenge the instruction on direct appeal. See
PCRA Court Opinion, 9/24/2019, at 9, 11. A review of Santiago’s concise
statement reveals that he raised the issue in that filing. See Petitioner’s Rule
1925(b) Statement, 1/20/2019. However, in his appellate brief, Santiago
solely alleged that trial counsel was ineffective for failing to raise the claim.
Accordingly, he has abandoned the claim for appellate review purposes and
we need not address it in our disposition of the case. See Commonwealth
v. Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011) (issues raised in Pa.R.A.P.
1925 concise statement not developed in appellate brief are abandoned).

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       First, while the PCRA court relies on older unpublished decisions to

support its determination, we note there are more recent non-precedential

decisions, which we find are applicable, persuasive authority due to limited

precedent on the issue. See Commonwealth v. Nam, No. 3641 EDA 2018

(Pa.   Super.,     filed   August     21,      2019)   (unpublished     memorandum);

Commonwealth v. Moore, No. 3211 EDA 2017 (Pa. Super., filed December

13,    2019)   (unpublished      memorandum).9         See   also     Pa.R.A.P.   126(b)

(unpublished non-precedential decisions of the Superior Court filed after May

1 2019, may be cited for their persuasive value).

       In Nam, a panel of this Court addressed a nearly identical reasonable

doubt instruction and determined that “when read in context of the entire

instruction, the entire instruction states the law accurately.” Nam, 221 A.3d

301, 2019 WL 3946049, at *3. The panel also stated the trial court “used

language similar to the standard instruction both before and after using a

hypothetical to explain the concept of reasonable doubt,” and “[a]lthough [the

court’s] instruction was personalized, trial judges are granted a certain degree

of latitude in their jury instructions.” Id.

       In Moore, a panel of this Court analyzed a substantially similar jury

instruction and stated “[a] jury instruction violates due process if there is a


____________________________________________



9 Santiago acknowledges Nam and Moore in his brief, but alleges these
decisions either should not carry significant weight or should be construed in
his favor. See Appellant’s Brief, at 18, 28-29.

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reasonable likelihood that the jury interpreted the instruction to allow a

conviction based on a degree of proof below the reasonable doubt standard.

Moore, 225 A.3d 1155, 2019 WL 6825166, at *5, citing Victor v. Nebraska,

511 U.S. 1, 5 (1994). The panel suggested the surgery analogy part of the

instruction was “at best ambiguous” as to whether it lowered or increased the

degree of doubt. Moore, 225 A.3d 1155, 2019 WL 6825166, at *5.

Nevertheless, the panel concluded, “When we view the ambiguous medical

illustration in combination with the trial court’s accurate definition of the

reasonable doubt standard, we do not believe there is a ‘reasonable likelihood’

that the jury applied the reasonable doubt standard in an unconstitutional

manner.” Id.

      Turning to the present matter, in light of Nam and Moore, we agree

with the PCRA court that when reviewing the reasonable doubt instruction in

toto, the charge states the law accurately. Nam, 221 A.3d 301, 2019 WL

3946049, at *3. Moreover, we cannot conclude there is a “reasonable

likelihood” that the jury applied the reasonable doubt instruction in an

unconstitutional manner. See Moore, 225 A.3d 1155, 2019 WL 6825166, at

*5.

      Second, concerning Santiago’s reliance on Brooks, supra, we reiterate

that we are “not bound by the decisions of federal courts inferior to the U.S.

Supreme Court.” In re Stevenson, 40 A.3d 1212, 1216 (Pa. 2012). Even if

we were to find Brooks applicable, it merits mention that Santiago’s trial


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occurred in 2008, and the Brooks decision was not filed until 2017. “The law

in Pennsylvania is clear that counsel cannot be deemed ineffective for failing

to predict changes in the law.” Commonwealth v. Hays, 218 A.3d 1260,

1272 (Pa. 2019) (quotation and quotation marks omitted). As such, one

cannot deem Santiago’s trial counsel ineffective for failing to predict that a

federal district court would interpret the law concerning a jury instruction to

Santiago’s benefit nine years after his trial.

       Accordingly, we conclude the PCRA court did not err in finding the

underlying claim regarding the reasonable doubt instruction lacked merit, and

consequently, Santiago has not met his burden in establishing trial counsel

was ineffective for failing to object to the instruction. See Jones, 815 A.2d at

611 (failure to satisfy any prong of the ineffective assistance of counsel test

is fatal to the claim).

       Lastly, we turn to Santiago’s motion to remand the matter so that he

can raise trial counsel’s ineffectiveness for failing to present a critical witness,

Frank Crutchley.10 In his motion, Santiago is essentially alleging prior PCRA

counsel was ineffective for failing to raise the argument concerning trial

counsel’s purported ineffectiveness, and seeks to file a supplemental PCRA



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10 Santiago seeks Crutchley’s testimony because Crutchley was an inmate at
the same time Santiago was an inmate at the Philadelphia Detention Center.
Santiago avers Crutchley would have observed that Santiago did not talk to
other inmates about his case as these other inmates had alleged. See Motion
for Remand, 6/26/2020, at ¶¶ 5-11.

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petition to circumvent any timeliness restraints. See generally Motion for

Remand, 6/26/2020; see also 42 Pa.C.S.A. § 9545(b)(1) (time for filing

petition).

      Pursuant to Pennsylvania Rule of Criminal Procedure 904(C), a

petitioner has a “rule-based right” to the assistance of counsel to litigate his

first PCRA petition. See Pa.R.Crim.P. 904(C) (“[W]hen 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.”); see also Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.

Super. 2009) (en banc) (“[A] criminal defendant has a right to representation

of counsel for purposes of litigating a first PCRA petition through the entire

appellate process.”).

      Case law interpreting ineffectiveness claims being raised for the first

time on appeal is complex and protracted. See Commonwealth v. Henkel,

90 A.3d 16, 21-30 (Pa. Super. 2014) (en banc) (outlining “the history of the

right to collateral review counsel in Pennsylvania and the concomitant right to

effective representation”). Presently, the law provides that “absent recognition

of a constitutional right to effective collateral review counsel, claims of PCRA

counsel ineffectiveness cannot be raised for the first time after a notice of

appeal has been taken from the underlying PCRA matter.” Commonwealth

v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012). In order to preserve an


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argument     concerning      PCRA    counsel’s     ineffectiveness   within   the   time

constraints of the statute, one must raise the claim in response to the PCRA

court’s Rule 907 notice. See Henkel, 90 A.3d at 29-30; Ford, 44 A.3d at

1200-1201.11

       Rule 907, which provides the requirement of a notice of intent to
       dismiss and allows for the optional filing of a response, states that
       a PCRA court may dismiss a petition, grant leave to file an
       amended petition, or direct that proceedings continue twenty days
       after the date of the notice of dismissal, including if a defendant
       responds to the dismissal. The rule does not treat a response to
       its notice of dismissal as either an amended petition or a serial
       petition.

Commonwealth v. Rykard, 55 A.3d 1177, 1187 (Pa. Super. 2012).

       In Commonwealth v. Smith, 121 A.3d 1049 (Pa. Super. 2015), a

panel of this Court stated:

       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, the ultimate goal being to permit
       merits review by the PCRA court of potentially arguable claims.
       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. The response is also the
       opportunity for the petitioner to object to counsel’s effectiveness
       at the PCRA level. When a PCRA court properly issues Rule 907
       notice in compliance with the rules of criminal procedure, an
       appellant is deemed to have sufficient notice of dismissal.

Smith, 121 A.3d at 1054 (citations, quotations, and quotation marks

omitted).


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11See Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011);
Commonwealth v. Pitts, 981 A.2d 875, 879 n.3, 880 n.4 (Pa. 2009).

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      Here, Santiago did not raise the issue of trial counsel’s ineffectiveness

for failing to call a witness in his counseled September 2017 amended PCRA

petition. He also did not file a response to the PCRA court’s Rule 907 notice.

      We acknowledge that Santiago was represented by the purportedly

ineffective counsel at the time the PCRA court issued its Rule 907 notice.

However, this predicament does not warrant him any relief. In Smith, the

panel addressed a similar issue where the appellant was represented by

counsel at the time the Rule 907 notice was issued, and neither he nor his

counsel filed a response. Id., at 1054-1055. The appellant did not raise the

issue of PCRA counsel’s ineffectiveness until his Rule 1925(b) statement.

Based on these circumstances, the panel concluded:

      [An a]ppellant had an affirmative duty to preserve his claims. If
      [the a]ppellant wanted to assert claims of ineffective assistance
      of PCRA counsel, he should have consulted counsel and/or the
      court to learn the correct procedure.… Thus, [the a]ppellant’s
      substantive issues concerning PCRA counsel’s assistance are
      waived, because [the a]ppellant failed to respond to the PCRA
      court’s Rule 907 notice at any time before the court dismissed his
      petition. Once [the a]ppellant filed a notice of appeal, he waived
      his right to complain about PCRA counsel’s stewardship, because
      [the a]ppellant was unable to raise those claims for the first time
      in his Rule 1925(b)statement.

Id. at 1055 (citations omitted).

      Accordingly, in light of Ford, Henkel, and Smith, we conclude Santiago

has waived any challenge to prior PCRA counsel’s ineffectiveness for failure to

call a witness because he did not raise the claim in a response to the PCRA




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court’s Rule 907 notice. See Smith, 121 A.3d at 1055. Therefore, his motion

to remand is denied.12

       Order affirmed. Motion to remand denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/20




____________________________________________


12 Additionally, it merits mention that Santiago did raise the claim at issue in
his pro se January 2014 petition, and in his pro se September 27, 2018
supplemental PCRA petition that was filed while represented by counsel.
Nevertheless, the Pennsylvania Supreme Court has a “long-standing policy
that precludes hybrid representation.” Jette, 23 A.3d at 1036. Furthermore,
the Supreme Court also stated there is no constitutional right to hybrid
representation at trial or during PCRA proceedings. See Commonwealth v.
Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (trial matters); Commonwealth v.
Pursell, 724 A.2d 293 (Pa. 1999) (PCRA proceedings). The Pursell Court
specifically stated: “We will not require courts considering PCRA petitions to
struggle through the pro se filings of defendants when qualified counsel
represent those defendants.” Id., at 302. Therefore, in light of the fact that
Santiago had representation at the time, the PCRA court was only required to
address the issues raised in the amended, counseled filings and not the pro
se issues.

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