J-S43044-15

                                  2015 PA Super 173



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

QUAWI SMITH

                            Appellant                  No. 1892 EDA 2014


                   Appeal from the PCRA Order June 27, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0406011-2004


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

OPINION BY GANTMAN, P.J.:                             FILED AUGUST 19, 2015

        Appellant, Quawi Smith, appeals from the order entered in the

Philadelphia Court of Common Pleas, which denied his first petition brought

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history are as follows:

           On March [30], 2006, following a bench trial, [Appellant]
           was found guilty of first-degree murder and possession of
           an instrument of crime. On May 19, 2006, this court
           imposed a sentence of life imprisonment. On March 27,
           2009, the Superior Court affirmed [Appellant’s] convictions
           and sentence. [Appellant] did not file an appeal with the
           state Supreme Court. On December 3, 2009, [Appellant]
           filed a timely pro-se [PCRA] petition, and later hired
           private attorney Brian McMonagle, Esq., who filed an
           amended     PCRA     petition   on  October     9,   2012.
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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          Subsequently, on January 16, 2014, this court issued a
          Notice of Dismissal pursuant to [Pa.R.Crim.P. 907] to both
          [Appellant] and Mr. McMonagle. On June 12, 2014, this
          court, following consideration and review, formally
          dismissed [Appellant’s] PCRA petition without a hearing.
          On July 7, 2014, [Appellant] filed a pro-se Notice of
          Appeal, and later that same week, Craig M. Cooley, Esq.,
          was appointed to represent [Appellant] for the appeal of
          his PCRA dismissal. Thereafter, Mr. Cooley filed a [Rule]
          1925(b) Statement, which is the basis for this opinion.[2]

          A brief summation of the facts in this case is as follows: On
          October 21, 2002, Jermaine Daniels, the victim, confronted
          [Appellant] in front of a Chinese food market at 59th and
          Belmar Streets in Philadelphia because [Appellant] had
          attempted to rob [the victim] a few days earlier.
          [Appellant] and the victim were engaged in a verbal
          confrontation when [Appellant] withdrew a firearm and
          shot the victim in the forehead. [Appellant] fired two
          additional shots as the victim was falling to the
          ground―one penetrating his heart and lung.                 As
          [Appellant] fled, he fired his gun back towards the crowd
          that quickly gathered. No one else was injured, but the
          victim died at the scene.

(PCRA Court Opinion, filed January 15, 2015, at 1-2) (internal citations and

footnotes omitted).

       Appellant raises two issues for our review:

          [APPELLANT] HAS A STATE AND/OR FEDERAL RIGHT TO
          EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS
____________________________________________


2
  The court ordered a Rule 1925(b) statement on July 28, 2014, but sent the
notice to Mr. McMonagle, who had already withdrawn from the case on July
15, 2014. New counsel claimed he did not receive notice of the Rule
1925(b) order until August 14, 2014. The next day, new counsel filed a
petition for an extension of time to file a Rule 1925(b) statement, to which
the court did not respond. New counsel filed a Rule 1925(b) statement on
behalf of Appellant on October 15, 2014. The court’s opinion responds to
that statement.



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          INITIAL-REVIEW POST-CONVICTION PROCEEDINGS. …

          THE PCRA COURT VIOLATED [APPELLANT’S] DUE PROCESS
          RIGHTS BY FINDING THAT [APPELLANT] WAIVED HIS
          PCRA INEFFECTIVENESS CLAIMS BECAUSE HE FAILED TO
          PRESENT THEM TO THE PCRA COURT TWENTY DAYS
          AFTER THE PCRA COURT ISSUED ITS 907 NOTICE. …

(Appellant’s Brief at i-ii).3

       Our standard of review of the denial of a PCRA petition is limited to

examining      whether     the    evidence      of   record    supports    the     court’s

determination      and     whether     its     decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007). “[A] petitioner is not entitled to a

PCRA hearing as a matter of right; the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact and the

petitioner is not entitled to post-conviction collateral relief, and no purpose

would be served by any further proceedings.” Commonwealth v. Taylor,

____________________________________________


3
  Appellant failed to include in his brief a separate statement of questions
involved. See Pa.R.A.P. 2116. Nevertheless, Appellant presents two issues
for review in the table of contents, followed by discussion of those issues
with citation to pertinent authorities in a separate argument section of the
brief. Consequently, our review is unimpeded. See Commonwealth v.
Carr, 543 A.2d 1232, 1234 (Pa.Super. 1988) (stating minor defects in brief
do not impair appellate court’s ability to exercise meaningful review).



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933 A.2d 1035, 1040 (Pa.Super. 2007), appeal denied, 597 Pa. 715, 951

A.2d 1163 (2008); Pa.R.Crim.P. 907(1). “A reviewing court on appeal must

examine each of the issues raised in the PCRA petition in light of the record

in order to determine whether the PCRA court erred in concluding that there

were no genuine issues of material fact and in denying relief without an

evidentiary hearing.” Commonwealth v. Derrickson, 923 A.2d 466, 468

(Pa.Super. 2007), appeal denied, 594 Pa. 685, 934 A.2d 72 (2007).

      Appellant asserts he had a constitutional right to effective trial and

appellate counsel.   Appellant avers he needed an effective initial-review

PCRA attorney to develop fully and meaningfully present his trial and

appellate counsel ineffectiveness claims, which is a federal due process right.

Appellant maintains he had a state-created liberty interest in obtaining relief

when he filed his pro-se PCRA petition based on ineffective assistance of

counsel, and the Commonwealth had to afford him reasonable procedures to

vindicate his liberty interest in obtaining relief based on trial counsel’s

ineffectiveness. Appellant asserts he had a federal due process right to an

effective PCRA attorney to uphold this state-created liberty interest.

      Appellant also contends his rule-based right to effective initial review

PCRA counsel qualifies as a state-created liberty interest under federal due

process principles. Appellant insists the PCRA court’s Rule 907 Notice and

twenty-day response period were fundamentally inadequate because the

notice did not inform Appellant of: (1) his right to effective PCRA counsel;


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(2) his right to challenge PCRA counsel’s effectiveness, which must be

brought within the response period; and (3) that a failure to file timely PCRA

counsel ineffectiveness claims results in waiver of those claims.    Appellant

submits the absence of these principles in the PCRA court’s Rule 907 notice

violated his due process rights and rendered his waiver of claims

unintelligent and unknowing because an indigent prisoner cannot waive his

PCRA counsel ineffectiveness claims based on the bare information provided

in the court’s Rule 907 notice.    Appellant concludes that this Court must

remand his case to the PCRA court with instructions to review and adjudicate

Appellant’s claims of PCRA counsel’s ineffectiveness which Appellant raised

for the first time in his Rule 1925(b) statement. We disagree.

      As a prefatory matter, we observe that due process requires the post-

conviction process to be fundamentally fair, even though procedural due

process protections for PCRA proceedings are less stringent than they are for

a trial or direct appeal.   Commonwealth v. Bennett, 593 Pa. 382, 930

A.2d 1264 (2007). “Thus, petitioners must be given the opportunity for the

presentation of claims at a meaningful time and in a meaningful manner.”

Id. at 398, 930 A.2d at 1273.

      Pennsylvania law makes clear:

         While a PCRA petitioner does not have a Sixth Amendment
         right to assistance of counsel during collateral review, this
         Commonwealth, by way of procedural rule, provides for
         the appointment of counsel during a [petitioner’s] first
         petition for post conviction relief.      Pursuant to our
         procedural rule, not only does a PCRA petitioner have the

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         “right” to counsel, but also he has the “right” to effective
         assistance of counsel. The guidance and representation of
         an attorney during collateral review should assure that
         meritorious legal issues are recognized and addressed, and
         that meritless claims are foregone.

Commonwealth v. Haag, 570 Pa. 289, 307-08, 809 A.2d 271, 282-83

(2002), cert. denied, 539 U.S. 918, 123 S.Ct. 2277, 156 L.Ed.2d 136 (2003)

(internal citations and most quotations marks omitted). The rule-based right

to counsel and to effective assistance of counsel extends throughout the

post-conviction proceedings, including any appeal from the disposition of the

PCRA petition.   Commonwealth v. Quail, 729 A.2d 571, 573 (Pa.Super.

1999); Pa.R.Crim.P. 904(E). “[O]nce counsel has entered an appearance on

a [petitioner’s] behalf he is obligated to continue representation until the

case is concluded or he is granted leave by the court to withdraw his

appearance.” Id.

      Rule 907 controls the disposition of a PCRA petition without a hearing

and states in relevant part:

         Rule 907. Disposition Without Hearing

         Except as provided in Rule 909 for death penalty cases,

         (1) the judge shall promptly review the petition, any
         answer by the attorney for the Commonwealth, and other
         matters of record relating to the defendant’s claim(s). If
         the judge is satisfied from this review that there are no
         genuine issues concerning any material fact and that the
         defendant is not entitled to post-conviction collateral relief,
         and no purpose would be served by any further
         proceedings, the judge shall give notice to the parties of
         the intention to dismiss the petition and shall state in the
         notice the reasons for the dismissal. The defendant may

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         respond to the proposed dismissal within 20 days of the
         date of the notice. The judge thereafter shall order the
         petition dismissed, grant leave to file an amended petition,
         or direct that the proceedings continue.

                                  *    *    *

         (4) When the petition is dismissed without a hearing, the
         judge promptly shall issue an order to that effect and shall
         advise the defendant by certified mail, return receipt
         requested, of the right to appeal from the final order
         disposing of the petition and of the time limits within which
         the appeal must be filed. The order shall be filed and
         served as provided in Rule 114.

Pa.R.Crim.P. 907(1), (4). 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.”        Commonwealth v.

Rykard, 55 A.3d 1177, 1189 (Pa.Super. 2012), appeal denied, 619 Pa. 714,

64 A.3d 631 (2013). 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.   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.

Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa.Super. 2011), appeal

denied, 612 Pa. 698, 30 A.3d 487 (2011).




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      “[A]bsent 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). A petitioner’s failure to raise an ineffectiveness of counsel claim after

receiving Rule 907 notice results in waiver of the claim. Commonwealth v.

Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009).               See also

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super. 2014) (waiving

Appellant’s claim of ineffectiveness of derivative PCRA counsel for failure to

assert it in response to Rule 907 notice); Ousley, supra at 1245 (stating

Pitts prohibits this Court’s review of petitioner’s ineffectiveness of PCRA

counsel claim, where issue was raised for first time in PCRA appeal). With

respect to the petitioner’s duties, PCRA claims are more civil than criminal in

nature, which places the burden of moving the case forward on the party in

the plaintiff’s position, who in this context is the PCRA petitioner.

Commonwealth v. Renchenski, 616 Pa. 608, 620, 52 A.3d 251, 258

(2012). The petitioner bears the burden of pleading and proving claims on

their merits, and demonstrating timeliness of a petition. See 42 Pa.C.S.A.

§§ 9543(a), 9545(b).

      In the instant case, Appellant filed a timely pro-se PCRA petition and

hired a private attorney, who filed an amended PCRA petition on October 9,

2012. Subsequently, on January 16, 2014, the PCRA court issued Rule 907


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notice to both Appellant and his privately-retained counsel.    The Rule 907

notice indicated the court intended to dismiss the petition for lack of merit.

The court also informed Appellant and his counsel that they had twenty days

to respond to the notice. No response was filed.

      Almost five months later, on June 12, 2014, the PCRA court formally

dismissed Appellant’s PCRA petition without a hearing. Appellant filed a pro-

se notice of appeal on July 7, 2014. The PCRA court appointed new counsel

on July 11, 2014, to represent Appellant for the appeal of his PCRA

dismissal; and Appellant’s privately-retained counsel withdrew from the case

on July 15, 2014. The court ordered Appellant on July 28, 2014, to file a

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

but sent the notice of the order to privately-retained counsel who had

already withdrawn.    Newly appointed counsel claimed he did not receive

notice of the Rule 1925(b) order until August 14, 2014. The next day, new

counsel filed a petition for an extension of time to file a Rule 1925(b)

statement, to which the court did not respond.     New counsel filed a Rule

1925(b) statement on behalf of Appellant on October 15, 2014.

      Initially, we conclude the PCRA court’s Rule 907 notice was adequate

where the court advised the parties of its reasons for dismissal and

informing them of the twenty-day time limit to file a response to the notice.

Here, the PCRA court’s Rule 907 notice indicated the reason for dismissal

was Appellant’s issues lacked merit and alerted Appellant to the twenty-day


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response period.      The court sent the Rule 907 notice to Appellant,

Appellant’s counsel, and the District Attorney’s Office.     The rule does not

impose on the court any duty to explain to Appellant how to proceed or

respond to the notice.

      Appellant had an affirmative duty to preserve his claims. If Appellant

wanted to assert claims of ineffective assistance of PCRA counsel, he should

have consulted counsel and/or the court to learn the correct procedure.

Instead, Appellant did nothing in the almost five months between the court’s

Rule 907 notice and dismissal of the petition. Thus, Appellant’s substantive

issues concerning PCRA counsel’s assistance are waived, because Appellant

failed to respond to the PCRA court’s Rule 907 notice at any time before the

court dismissed his petition.      See Rykard, supra; Ousley, supra;

Pa.R.Crim.P. 907.     Once Appellant filed a notice of appeal, he waived his

right to complain about PCRA counsel’s stewardship, because Appellant was

unable to raise those claims for the first time in his Rule 1925(b) statement.

      Moreover, throughout the PCRA proceedings Appellant, as petitioner,

bore the burden to plead and prove his claims.           See 42 Pa.C.S.A. §§

9543(a), 9545(b); Renchenski, supra (reiterating that petitioner has duty

to meet provisions of PCRA).     See, e.g., Commonwealth v. Bardo, ___

Pa. ___, 105 A.3d 678 (2014) (explaining counsel is presumed effective and

petitioner   bears   burden to   prove   ineffective   assistance   of counsel);

Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009) (noting


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petitioner must satisfy rigorous burden to warrant evidentiary hearing for

claims); Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 80 (2008), cert.

denied, 558 U.S. 1082, 130 S.Ct. 810, 175 L.Ed.2d 569 (2009) (stating

petitioner bears burden to demonstrate his issues have not been previously

litigated or waived).   Compare Commonwealth v. Ligons, 601 Pa. 103,

971 A.2d 1125 (2009) (plurality) (stating where PCRA petitioner in capital

case had evidentiary hearing on his PCRA claims, and Rule 907 notice was

not implicated, petitioner could raise ineffective assistance of PCRA counsel

claims for first time on appeal from denial of PCRA relief). Given Appellant’s

affirmative duties to preserve his claims of PCRA counsel’s service, in the

context of Rule 907 notice, Appellant cannot shift the burden to the court to

instruct Appellant how to do so.

      Notwithstanding Appellant’s rule-based right to effective assistance of

PCRA counsel, we further observe that the PCRA is a creature of legislative

bounty, bearing no “constitutional” Sixth Amendment right to effective

assistance of counsel during collateral review. See Haag, supra. Neither

the Commonwealth nor the court had any duty to instruct Appellant on how

to preserve his claims of ineffective assistance of counsel, including PCRA

counsel. In the framework of Rule 907 notice, the law makes clear Appellant

had to preserve his claims of PCRA counsel’s ineffectiveness in a response to

the notice.   See Pitts, supra; Rykard, supra.      Appellant’s Rule 1925(b)

statement could not be used as the vehicle to raise his issues for the first


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time.     Furthermore, although the certified docket entries indicate new

counsel filed another PCRA petition on Appellant’s behalf, no court could

consider the second PCRA petition (that he filed while the current first

petition was pending on appeal) as a resource for preservation of his claims.

See Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000) (holding

court has no jurisdiction to review second PCRA petition, filed while appeal

from first PCRA petition is still pending).

        Based upon the foregoing, we hold that in the context of Rule 907

notice, Appellant as PCRA petitioner had the duty to raise any claims of

ineffective assistance of PCRA counsel in a response to the notice. Once the

PCRA court finally adjudicated Appellant’s petition, any claims not properly

preserved in a response to the Rule 907 notice were waived and could not

be raised for the first time in Appellant’s Rule 1925(b) statement or in a

second PCRA petition filed while the first PCRA petition was still pending on

appeal. Accordingly, we affirm the order denying Appellant’s PCRA petition.

        Order affirmed.

        Judge Panella joins this opinion.

        Judge Olson concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2015




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