J-S61020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                                  OF
                                                             PENNSYLVANIA


                        v.

    DANIEL LEWIS

                             Appellant                     No. 757 EDA 2017


                  Appeal from the PCRA Order January 19, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1201581-2005


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                              FILED OCTOBER 17, 2017

        Appellant, Daniel Lewis, appeals from the order entered January 19,

2017, denying his petition for collateral relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        We adopt the following procedural history from the PCRA court opinion,

which in turn is supported by the record. See PCRA Court Opinion (PCO),

1/20/17, at 1-3. In September 2005, Appellant was arrested and charged

with murder and related offenses.              Following a February 2007 mistrial,

Appellant was convicted by a jury on September 19, 2007, of first-degree

murder, firearms not to be carried without a license, and possession of an

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S61020-17



instrument of crime.1 That same day, Appellant was sentenced to mandatory

life imprisonment and an additional three and one-half to seven years of

incarceration.

        Appellant’s judgment of sentence was affirmed on appeal.             See

Commonwealth v. Lewis, 981 A.2d 925 (Pa. Super. 2009) (unpublished

memorandum).         In July 2010, Appellant pro se filed a PCRA petition.    In

January 2012, he requested that his right to petition for allowance of appeal

to the Pennsylvania Supreme Court be reinstated. This request was granted,

and the Supreme Court denied allowance of appeal. See Commonwealth v.

Lewis, 54 A.3d 437 (Pa. 2012) (unpublished memorandum).

        In September 2013, Appellant pro se timely filed a PCRA petition, a

request for leave to file an amended petition, a motion for production of

transcripts and original discovery, and a request for discovery and

Brady/Giglio2 material. The PCRA petition itself did not outline any claims

Appellant wished to raise beyond checking boxes indicating he would raise

claims of a violation of the Constitution of the Commonwealth or the United

States, and ineffective assistance of counsel.

        Counsel was appointed, but did not file an amended petition on

Appellant’s behalf. In July 2016, the court appointed Gary Server, Esq., to

____________________________________________


1   See 18 Pa.C.S. §§ 2502(a), 6106, and 907, respectively.

2See United States v. Giglio, 92 S. Ct. 763 (1972); Brady v. Maryland,
83 S. Ct. 1194 (1963).



                                           -2-
J-S61020-17



represent Appellant. Attorney Server filed a Turner/Finley3 letter and sought

to withdraw representation.         The letter averred that Attorney Server had

reviewed Appellant’s motions and the records and had contacted him for

clarification. The court indicates that Appellant mailed a letter indicating he

would respond to the Finley letter. However, this letter was not filed and

does not appear on the docket or in the certified record. On September 29,

2016, the court sent Appellant notice pursuant to Pa.R.Crim.P. 907 that his

petition would be dismissed without a hearing.

       The court indicates that on October 21, 2016, Appellant mailed a

response to the Finley letter raising additional claims. However, this letter

was not filed and does not appear on the docket or in the certified record.

Attorney Server filed an amended Finley letter on December 15, 2016. By

letter dated December 15, 2016, and post-marked December 27, 2016,

Appellant filed a motion requesting additional time to file a response to the

notice of intent to dismiss and Finley letter. He claimed that he mistakenly

sent his responses directly to the court and not the filing office and that

Attorney Server’s Finley letter was in legal error.      Appellant did not raise

additional or specific claims.

       On January 20, 2017, the court formally dismissed Appellant’s petition

by order and opinion.         It did not order him to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal or issue a further opinion.
____________________________________________


3 See Commonwealth v. Turner, 544 A.2d 927                        (Pa.   1998);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).

                                           -3-
J-S61020-17



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

       A. Is PCRA counsel’s Finley letter holding that Appellant’s PCRA
       is frivolous and the record of his case contains no meritorious
       claims and the [court’s] agreement with the Finley letter in legal
       error, when the record contains meritorious claims that are
       apparent and appellant presented meritorious claims?

       B. Did PCRA counsel and [the court] commit legal error in his
       Finley by holding as meritless appellant’s claim that Judge
       Hughes abused discretion in denying defense motion to recuse
       based on prejudice/biasness [sic] judicial misconduct that created
       the appearance of impropriety, and appellant counsel wasn’t
       ineffective for failing to raise issue on appeal?

       C. Did PCRA counsel and [the court] commit legal error by using
       Finley to hold as meritless appellant’s claim that Judge Hughes
       committed bad faith judicial misconduct that denied appellant a
       fair trial and due process and that appellate counsel wasn’t
       ineffective for failing to raise issue [sic] on appeal?

       D. Did PCRA counsel and [the court] commit legal error by using
       Finley to hold as meritless appellant’s claim that Judge Hughes
       abused her discretion in denying defense motion to disqualify a
       biased juror who had engaged in jury misconduct/ex parte contact
       with a commonwealth witness and appellate counsel wasn’t
       ineffective for not raising issue on appeal?

Appellant’s Brief at vii.4

       Initially, we note several deficiencies in Appellant’s brief. He does not

include a proper statement of the scope and standard of review.               See

Pa.R.A.P. 2111(a)(3).        Additionally, it contains a number of exhibits in the

reproduced record which were not included in the certified record below. See

Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (noting that
____________________________________________


4 Appellant’s brief was untimely filed. However, on September 1, 2017,
Appellant filed an application for relief, requesting that we consider his brief
timely filed. We grant his application and will consider the merits of his brief.

                                           -4-
J-S61020-17



matters not of record cannot be considered on appeal, and an appellate court

is limited to considering only the materials in the certified record). However,

based upon our resolution of Appellant’s issues, we need not find waiver on

that basis.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).

      Appellant raises a number of issues of ineffective assistance of counsel.

However, claims that are not raised in a PCRA petition may not be raised for

the first time on appeal. See Commonwealth v. Rigg, 84 A.2d 1080, 1084

(Pa. 2014); see also Pa.R.A.P. 302(a). Appellant filed a number of motions

in the court below, but did not plead and preserve these issues in his PCRA

petition. The PCRA petition itself states only that he seeks to raise issues of

constitutional violations and ineffective assistance of counsel, but Appellant

never articulated his claim.   Nor did Appellant seek leave to amend his

petition.   See, e.g., Commonwealth v. Mason, 130 A.3d 601, 627 (Pa.

2015); see also Pa.R.C.P. 905(A). Accordingly, all claims related to trial and

appellate issues are waived. See Riggs, 84 A.2d at 1084; Pa.R.A.P. 302.




                                     -5-
J-S61020-17



      Additionally, Appellant’s claims related to PCRA counsel’s ineffectiveness

are waived.      Such a claim may be raised in a response to the court’s

Pa.R.Crim.P. 907 notice. See, e.g., Commonwealth v. Henkel, 90 A.3d 16,

20 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014). However, the

notice, issued September 26, 2016, provided that Appellant must file a

response within twenty days. Appellant did not file a response until December

27, 2016, far beyond the provided time period. Accordingly, he has waived

his issue for purposes of appeal.

      Counsel was properly permitted to withdraw after fulfilling the

requirements of Turner/Finley. Where counsel determines that there are no

meritorious issues raised in a PCRA petition, and the court agrees, counsel

may withdraw after filing a “no merit” letter. See Turner, 544 A.2d at 928-

29; Finley, 550 A.2d at 215. Specifically, 1) counsel must detail the nature

and extent of his review; 2) counsel must list each issue the petitioner wishes

to have reviewed; 3) counsel must explain why petitioner’s issues are

meritless; 4) the PCRA court conducts its own independent review of the

record; and 5) the PCRA court agrees with counsel that the petition is

meritless.    Id.    Attorney Server complied with the requirements of

Turner/Finley, and the PCRA court conducted its own review of the record

and found Appellant’s issues to be meritless. Accordingly, there was no error

in the court’s order granting counsel’s petition to withdraw and dismissing the

PCRA petition.    Brown, 48 A.3d at 1277.

      Application for relief granted. Order affirmed. Jurisdiction relinquished.

                                     -6-
J-S61020-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




                          -7-
