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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
LAMAR HAYMES,                             :         No. 1325 EDA 2019
                                          :
                        Appellant         :


            Appeal from the PCRA Order Entered April 24, 2019,
             in the Court of Common Pleas of Delaware County
            Criminal Division at Nos. CP-23-CR-0000051-2005,
                          CP-23-CR-0000865-2005


BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 13, 2020

      Lamar Haymes appeals pro se from the April 24, 2019 order entered in

the Court of Common Pleas of Delaware County that dismissed, without a

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

42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The record reflects that on January 30, 2007, a jury convicted appellant

of first-degree murder, rape, kidnapping, and abuse of a corpse at

No. CP-23-CR-0000051-2005.          These convictions arose from the murder,

rape, and dismemberment of 15-year-old Deanna Wright-McIntosh. Appellant

committed these crimes with his cohort, Anwar Gettys, who was tried and

convicted separately.    In the same proceeding, the jury also convicted

appellant of simple assault, aggravated assault, and false imprisonment at
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No. CP-23-CR0000865-2005.          These convictions arose from appellant’s

violent beating of a prostitute.    On the same day that the jury convicted

appellant of these crimes, the trial court sentenced appellant to life

imprisonment without parole on the first-degree murder conviction plus a

consecutive aggregate sentence of 285 to 570 months of imprisonment on the

remaining convictions. This court affirmed appellant’s judgment of sentence

on November 24, 2008. Commonwealth v. Haymes, No. 566 EDA 2007,

unpublished memorandum (Pa.Super. filed November 24, 2008). Appellant

did not seek discretionary review with our supreme court.

      On November 6, 2009, appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel, but appointed counsel never filed an

amended petition. The PCRA court then dismissed appellant’s pro se petition.

On appeal, this court noted the “deplorable” state of the record and ultimately

vacated the PCRA court’s order that dismissed appellant’s petition and directed

it to appoint counsel to file an amended petition.       Commonwealth v.

Haymes, No. 2136 EDA 2012, unpublished memorandum (Pa.Super. filed

October 29, 2013). Following appointment of counsel and the grant of several

extensions of time to file an amended PCRA petition, appointed counsel filed

the amended petition on June 26, 2015. On July 15, 2015, the PCRA court

reinstated appellant’s right to seek discretionary direct review by our supreme

court. On December 11, 2015, our supreme court denied appellant’s petition




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for allowance of appeal. Commonwealth v. Haymes, 130 A.3d 1287 (Pa.

2015). Appellant did not seek review by the United States Supreme Court.

        On November 7, 2016, appellant filed a pro se PCRA petition, and the

PCRA court then appointed counsel. Following numerous extensions of time

to file an amended petition, appointed counsel ultimately filed a motion for

leave to withdraw and a Turner/Finley1 letter on January 31, 2019.         On

March 28, 2019, the PCRA court filed a notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907. Appellant filed pro se “objections to notice of intent to

dismiss [PCRA] petition without hearing”2 on April 16, 2019.     On April 24,

2019, the PCRA court granted counsel’s request to withdraw and dismissed

the PCRA petition. Appellant filed a timely pro se notice of appeal.3 The PCRA

court then ordered appellant to file a concise statement of errors complained




1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2   Full capitalization omitted.

3 We note that because appellant filed one pro se notice of appeal that listed
two trial court docket numbers, this court issued a rule to show cause why the
appeal should not be quashed pursuant to Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018). Appellant filed a timely response. This court then
discharged the show-cause order and referred the issue to this panel. Because
the record reflects that the April 24, 2019 order that dismissed appellant’s
PCRA petition lists two docket numbers and because the order states that
appellant “has a right to file an appeal from this Order by filing a Notice of
Appeal to the Superior Court within thirty (30) days of the date of this order
is docketed,” we decline to quash. See Commonwealth v. Stansbury, 219
A.3d 157 (Pa.Super. 2019) (declining to quash pursuant to Walker where
record reflects a breakdown in court operations).


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of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied, and

the PCRA court filed its Rule 1925(a) opinion.

      Appellant raises the following issues:

            I.     Whether the prosecutor John F.X. Reilly violated
                   the appellant[’]s Constitutional Rights to the
                   Due Process Clause, Sixth and Fourteenth
                   Amendment by securing a conviction in Com v.
                   Gettys[] (Case No. 4425-2005) by arguing to
                   the jurors that Gettys[] was the one who
                   murdered       the    victim   Deanna      Wright
                   Macintosh[?] The prosecution then changed his
                   theory in Com v. Haymes (Case No. 051-2005)
                   in order to gain a second conviction for the same
                   murder, by claiming that Haymes and Gettys[]
                   both murdered the victim. Were these acts a
                   violation of the Due Process Clause guaranteed
                   by the Fourteenth Amendment. Also was this
                   judicial estoppel.

            II.    Whether the trial court committed an error of
                   law / abuse by violating the appellant[’]s
                   Fourteenth Amendment Right to Fundamental
                   Fairness and Equal Protection of the Law, and
                   Sixth Admendment [sic] Right to a Fair Trial, by
                   denying the defense the opportunity to
                   introduce   as    evidence  the    out-of-court
                   statements     of    Anwaar    Gettys[]     and
                   Lauren Lenton[?]

            III.   Whether trial counsel Mark P. Much Esq.
                   violated the appellant[’]s Constitutional Righ[ts]
                   guaranteed      by   the    Sixth    Amendment,
                   Fourteenth Amendment and Pa. Const. [A]rt. 1
                   § 9, due to the trial attorney’s failure / refusal
                   to     interview   Dayon     Pinder,    introduce
                   Dayon Pinder’s letters and statements to the
                   trial judge for review, call Dayon Pinder as a
                   witness to testify on behalf of the defense[?]
                   Trial counsel’s ineffectiveness denied the
                   appellant the opportunity to compel witnesses
                   on his behalf, require the prosecution[’]s case


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                to survive the crucible of meaningful adversarial
                testing, and present evidence that would
                aide [sic] and assist with the presentation of the
                appellant[’]s defense.

          IV.   Whether trial counsel Mark P. Much Esq.
                violated     the     appellant[’]s    Fourteenth
                Amendment Right to Fundamental Fairness and
                Equal Protection of the Law, Sixth Amendment
                Right to a Fair Trial and Effective Assistance of
                counsel by refusing to obtain the in-coming and
                out-going home and cell phone records of
                Zaron Holbrook and Anwaar Gettys[] which
                denied the appellant the opportunity to present
                exculpatory    evidence,    and     impeachment
                evidence in order to require the prosecution[’]s
                case to survive the crucible of meaningful
                adversarial testing[?]

          V.    Whether appellate counsel Patrick J. Connors
                violated the appellant[’]s Constitutional Rights
                guaranteed by the Sixth and Fourteenth
                Amendment[s] and Due Process Clause, by
                failing to seek review of appeable [sic] issues
                that were preserved by trial counsel and
                apart [sic] of the appellant[’]s records,
                (1) prosecutor changing versions of what he
                argued occurred in separate trials (Case
                No. 4425-2005 Com. v. Gettys[] and Case
                No. 51-2005 Com. v. Haymes) in order to gain
                convictio[ns] against both individuals. (2) The
                trial court abused it’s [sic] discretion when
                denying the defense the opportunity to present
                Anwaar Gettys’[s] and Lauren Lenton’s
                out[-]of[-]court statements to the jurors in
                order to show their course of action. These
                issues were not only obvious, they were
                stronger than the single issue that appellate
                counsel raised on direct appeal.

          VI.   Whether trial counsel violated the appellant[’]s
                Constitutional Rights guarantted [sic] by the
                Sixth Amendment, Fourteenth Amendment,
                Due Process Clause and Pa. Const. [A]rt. 1 § 9


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                   by the trial attorney failing to illict [sic]
                   testimony from the witness Anwar Robinson,
                   trial counsel’s deficient performance and
                   ineffective assistance of counsel prejudiced the
                   defense[?]

Appellant’s brief at 9-11 (emphasis and extraneous capitalization omitted).

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determinations are supported by the record and are free of legal error.”

Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 2014) (citation

omitted).   We defer to the PCRA court’s factual findings and credibility

determinations supported by the record.        Commonwealth v. Henkel, 90

A.3d 16, 20 (Pa.Super. 2014) (en banc). In contrast, we review the PCRA

court’s legal conclusions de novo. Id.

      Appellant first claims that the Commonwealth engaged in prosecutorial

misconduct by arguing to the jury in Gettys’s prosecution that Gettys

murdered Deanna Wright-McIntosh and then arguing to the jury in appellant’s

prosecution that appellant and Gettys murdered the girl. Under the PCRA, “an

issue is waived if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S.A. § 9544(b). Here, because appellant could have

raised this issue at trial, during unitary review, or on direct appeal, appellant

waives the issue on appeal.       Id.; see also Commonwealth v. Keaton,

45 A.3d 1050, 1060 (Pa. 2012).




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      Appellant next claims that the trial court abused its discretion by

denying his request to introduce certain out-of-court statements at trial.

Because appellant could have raised this issue at trial, during unitary review,

or on direct appeal, appellant waives the issue on appeal. See 42 Pa.C.S.A.

§ 9455(b); see also Keaton, 45 A.3d at 1060.

      Appellant’s remaining claims allege ineffective assistance of trial and

direct appeal counsel. A review of appellant’s original PCRA petition, however,

reveals that appellant did not include any of these issues in that petition. The

petition contains one bald allegation of ineffective assistance of counsel,

followed by 37 typed pages of facts in support of alleged errors upon which

the PCRA petition is based that merely rehash trial testimony and attack

witness credibility. (PCRA petition, 11/7/16 at 3, ¶ 5(C) and attachments.)

It is in appellant’s Rule 907 objections that appellant improperly raises his

ineffectiveness claims.

      It is well settled that where a petitioner fails to include an issue in his

original PCRA petition or any court-approved amended PCRA petition, the

petitioner waives the issue on appeal. See Commonwealth v. Ousley, 21

A.3d 1238, 1242 (Pa.Super. 2011) (reiterating that “issues not raised in a

PCRA petition cannot be considered on appeal” (citation omitted)), appeal

denied, 30 A.3d 487 (Pa. 2011). A petitioner may, however, raise claims not

presented in his original petition if he either (1) requests, and is granted,

permission from the PCRA court to file an amended petition, or (2) raises a



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claim asserting PCRA counsel’s ineffectiveness in response to the PCRA court’s

Rule 907 notice of intent to dismiss. Commonwealth v. Rykard, 55 A.3d

1177, 1186-1189 (Pa.Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).

The PCRA court is under no obligation to address new issues where the

petitioner fails to seek leave to amend his petition after counsel has filed a

Turner/Finley no-merit letter.    Commonwealth v. Rigg, 84 A.3d 1080,

1085 (Pa. Super. 2014).

      We emphasize that

            [t]he 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.” [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. The response is also
            the opportunity for the petitioner to object to
            counsel’s effectiveness at the PCRA level. Id.

Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.Super. 2015), appeal

denied, 136 A.3d 981 (Pa. 2016).

      Here, appellant did not seek permission from the PCRA court to file an

amended petition that included any of his ineffectiveness claims. Having failed

to do so, appellant waives his ineffectiveness claims on appeal.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/13/20




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