J-S51024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHAWN EDWARDS                            :
                                               :
                       Appellant               :   No. 1688 EDA 2017

                   Appeal from the PCRA Order April 20, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014637-2011

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 25, 2018

        Pro se Appellant Rashawn Edwards appeals from the order denying his

first Post Conviction Relief Act (“PCRA”)1 petition. He raises several claims

that PCRA counsel was ineffective. We affirm.

        We state the background as follows:

        [Aaron] Young allegedly had a dispute with inmate Sean Sullivan
        over a [prison] job. Sullivan passed “bangers” [i.e., prison
        knives,] to [co-defendants Jalik Peay, Appellant, and Haleem
        Poole,] and devised a plan to attack; the plan included distracting
        the prison guards so that the perpetrators could invade cell 15
        which housed victims Young and Gyton. Bostic was nearby
        watching television in a dayroom when he was attacked by the co-
        defendants.

        Bostic died of multiple stab wounds to the neck, chest, back and
        right arm, one of which partially severed his aorta. Gyton and
        Young were seriously injured when they were stabbed in the hand,

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1   42 Pa.C.S. §§ 9541-9456.
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      head, arm and stomach by the co-defendants. The perpetrators
      used shanks and bangers to carry out the bloody attacks.

      Police officers interviewed Gyton at Hahnemann Hospital at the
      time he was being treated for his stab wounds. The officers
      memorialized Gyton’s statements in a document, which was later
      read into the record at both the preliminary hearing and at trial.
      In the document, Gyton identifies the co-defendants as the
      individuals who stabbed the inmate-victims. At trial, however,
      Gyton testified he did not know who stabbed him, he recanted
      statements he allegedly made during a prison assessment that
      indicated he needed to be separated in jail from the co[-
      ]defendants because he feared they would harm him again, and
      he testified about a letter he sent to the co-defendants explaining
      that his “story” about them committing the crimes had been
      fabricated.

      Peay, [Appellant,] and Poole were tried together before Judge
      McDermott. After a seven-day trial, the jury convicted . . .
      Edwards of two counts each of attempted murder, aggravated
      assault, and one count each of PIC, prohibited offensive weapons,
      and criminal conspiracy to commit murder.

Commonwealth v. Edwards, 2395 EDA 2013, at 2-3 (Pa. Super. Jan. 21,

2015) (unpublished mem.), appeal denied, 125 A.3d 1198 (Pa. Oct. 7, 2015).

The trial court sentenced Appellant to an aggregate sentence of nineteen to

forty-two years’ imprisonment.      Id.   Appellant appealed, and this Court

affirmed on January 21, 2015. Id.

      Appellant filed a timely PCRA petition on October 4, 2016, raising a

single claim: trial counsel was ineffective for failing to file a Pa.R.Crim.P. 600

motion. Appellant’s PCRA Pet., 10/4/16, at 4. On December 16, 2016, the

court docketed Appellant’s pro se motion to file a supplemental PCRA claim.

Appellant alleged that trial counsel was ineffective by failing to file a motion

for acquittal, by not requesting proper jury instructions on the “Rule of

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Testimonial Evidence,” and by not arguing the unreliability of Gyton’s

testimony during closing argument.             Appellant’s Mot. to File Suppl. Cl. to

PCRA, 12/16/16, at 3. The PCRA court appointed PCRA counsel.

       On March 2, 2017, PCRA counsel filed a Turner/Finley2 letter, which

addressed Appellant’s original and supplemental claims. On March 10, 2017,

Appellant filed another pro se supplemental PCRA petition, claiming that he

lacks “transcripts/documents/briefs” from his trial and appeals. Appellant’s

Suppl. PCRA Pet., 3/10/17, at 3.3 The petition also included a handwritten

letter purportedly by Tommi Williams. In that letter, Williams states he spoke

with Gyton (one of the victims), who purportedly said he lied about Appellant

being the culprit. Id. at Ex. A. The record does not reflect that the PCRA

court granted Appellant permission to amend his initial PCRA petition.

       On March 16, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss. Appellant did not file a response to the Rule 907 notice. On

April 20, 2017, the PCRA court dismissed Appellant’s PCRA petition and

granted PCRA counsel’s petition to withdraw.




____________________________________________


2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3  The supplemental petition did not acknowledge PCRA counsel’s
Turner/Finley letter, but Appellant has not raised any issue about not
receiving it. The record reflects counsel’s petition to withdraw and the court’s
Rule 907 notice attached the Turner/Finley letter.


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      Appellant timely appealed on May 15, 2017. The PCRA court did not

order Appellant to comply with Pa.R.A.P. 1925(b), but filed a responsive

opinion. Appellant raises a single claim:

      The PCRA court erred as a matter of law and abused its discretion
      when dismissing Appellant’s post conviction collateral relief
      petition adding its imprimatur to appointed PCRA counsel’s
      insufficient and ineffective analysis/investigation of Appellant’s
      PCRA claims/facts denying petitioner his right to the effective
      assistance of counsel and denying petitioner a fair and meaningful
      PCRA process.

Appellant’s Brief at iv.

      Appellant claims PCRA counsel was ineffective by not communicating

with him via telephone. Id. at 9-10. Because PCRA counsel failed to speak

with him, Appellant continues, PCRA counsel failed to obtain statements from

“material witnesses.” Id. at 10-12. Those witnesses, Appellant asserts, would

have recanted their inculpatory testimony. Id. at 13-14.

      Our standard of review is well-settled:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level. This
      review is limited to the findings of the PCRA court and the evidence
      of record. We will not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted). Failure to challenge PCRA counsel’s effectiveness in response to the

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PCRA court’s Rule 907 notice results in waiver of any such claim on appeal.

Id. at 1198 (holding that “when counsel files a Turner/Finley no-merit letter

to the PCRA court, a petitioner must allege any claims of ineffectiveness of

PCRA counsel in a response to the court’s notice of intent to dismiss”); accord

id. at 1200-01.

      Here, Appellant raised the issue of PCRA counsel’s effectiveness for the

first time on appeal. Because Appellant failed to file a response to the PCRA

court’s Rule 907 notice, he cannot raise this issue for the first time on appeal.

See id. at 1198, 1200-01; see also Pa.R.A.P. 302.           Accordingly, having

discerned no error, we affirm the order below. See Ford, 44 A.3d at 1194.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/18




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