J-S66006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

THOMAS ANTHONY SCOTT

                         Appellant                      No. 1354 WDA 2014


                Appeal from the PCRA Order June 26, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0003918-2011


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED DECEMBER 14, 2015

      Appellant, Thomas Anthony Scott, appeals pro se from the order

entered on June 26, 2014, dismissing his petition filed under the Post-

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

      The trial court previously summarized the evidence presented during

Appellant’s jury trial. As the trial court explained:

        City of Pittsburgh Police Sergeant Jason Snyder, a narcotics
        detective, testified that[,] on March 9, 2011, he was on
        patrol in a high crime area of Pittsburgh while in an
        unmarked police vehicle with Detective Jedidiah Pollock.
        Detectives Ed Fallert and Mark Goob were trailing him in a
        second unmarked vehicle. Sergeant Snyder heard multiple
        gunshots to his right. He turned and saw a male in dark
        clothing in an alley firing a handgun. Sergeant Snyder, who
        testified he was wearing his badge around his neck, exited
        his vehicle and loudly declared “Pittsburgh Police, drop your
        weapon.”      The assailant, identified by the Sergeant as
        Appellant, immediately turned and fired more than eight
        rounds at the Sergeant. Sergeant Snyder returned fire and
        hit Appellant, causing him to fall face forward.

*Retired Senior Judge assigned to the Superior Court.
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       Detective Mark Goob also testified that he observed
       Appellant shoot at Sergeant Snyder. He heard the shots
       and saw the muzzle flash.        After Appellant was hit,
       Detective Goob approached him to determine if Appellant
       remained a threat and to render medical aid if possible.
       During his cautious approach, Detective Goob repeatedly
       instructed Appellant to drop the weapon[,] which the
       Detective could see in Appellant’s hand. Instead, while
       Detective Goob was approximately five yards away,
       Appellant turned, pointed his gun at Detective Goob and
       started to fire again.    Detective Goob heard the gun
       discharge and returned fire, hitting Appellant in the leg.
       The [Detective] saw the slide of Appellant’s gun lock back,
       an indication that Appellant was out of bullets. Appellant
       then said words indicating that he quit or was done and
       dropped the gun.

       Detective Edward Fallert testified similarly to having
       observed Appellant turn and fire at Sergeant Snyder. Once
       Sergeant Snyder shot Appellant to the ground, Detective
       Fallert heard Detective Goob repeatedly shout to Appellant
       to drop the gun.         Instead of complying with the
       [Detective’s] demand, Detective Fallert observed Appellant
       roll with gun in hand toward Detective Goob. After getting
       shot by Detective Goob, Detective Fallert saw Appellant
       drop the gun and surrender, the gun in slide-lock, open
       chamber position. Detective Fallert also noted an odor of
       alcohol emanating from Appellant.

       Detective Jeffrey Palmer recovered the Glock pistol, .40
       caliber belonging to Appellant and testified that the gun was
       recovered with the slide in the locked position.

       Detective Scott Evans arrived after the shooting and
       recovered shell casings at the scene. Eight of the casings
       were brass in color, which would not have been consistent
       with police-issued ammunition. Other casings recovered at
       the scene matched in caliber, make[,] and color with
       standard issue police “duty ammo.”       Detective Evans
       concluded that some casings were fired by police-issued
       weapons and others were not. Upon further research,
       [D]etective Evans discovered that the gun found at the


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          scene was owned by Appellant[,] who did not have a license
          to carry a firearm on his person.

Trial Court Opinion, 9/12/12, at 3-4 (internal citations omitted).

        The Commonwealth charged Appellant with numerous crimes arising

out of the above events and, following a trial, the jury found Appellant guilty

of two counts each of assault of a law enforcement officer, aggravated

assault, and recklessly endangering another person.1 On August 29, 2011,

the trial court sentenced Appellant to serve an aggregate term of 40 to 80

years in prison for the convictions.

        We affirmed Appellant’s judgment of sentence on June 18, 2013 and,

on November 19, 2013, our Supreme Court denied Appellant’s petition for

allowance of appeal.       Commonwealth v. Scott, 82 A.3d 463 (Pa. Super.

2013) (unpublished memorandum) at 1-8, appeal denied, 80 A.3d 776 (Pa.

2013).

        On April 30, 2014, Appellant filed a timely, pro se PCRA petition,

wherein Appellant raised the following claims for relief:

          My counsel       was     ineffective   in   presenting   my   case
          [because:]

          [1.] [C]ounsel did not present[] know[n] evidence or
          argument that [Appellant] did not fire at [the] officers[;]
          medical [records] show that [Appellant] was shot from
          behind and could not have been facing [the] officers[;]

          [2.] Counsel did not argue that the photographs show that
          [Appellant] fired nine times before [the] officers got out [of
____________________________________________


1
    18 Pa.C.S.A. §§ 2702.1(a), 2702(a)(1), and 2705, respectively.



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         their] cars and could not have fired as many times as
         said[;]

         [3.] Perjured testimony affected the judgment of the jury[;]
         perjured testimony that [Appellant] turn[ed] around and
         fired at [the] officer and was shot in the chest violated
         [Appellant’s] due process rights.

Appellant’s PCRA Petition, 4/30/14, at 4.

       The PCRA court appointed counsel to represent Appellant. However,

on June 4, 2014, appointed counsel filed a “no merit” letter and a petition to

withdraw as counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)

(en banc).

       On June 6, 2014, the PCRA court issued notice that it intended to both

grant counsel’s petition to withdraw and dismiss Appellant’s PCRA petition in

20 days, without holding a hearing. See Pa.R.Crim.P. 907(1). On June 26,

2014, the PCRA court finally granted counsel’s petition to withdraw and

dismissed Appellant’s PCRA petition.

       Appellant filed a timely, pro se notice of appeal on July 23, 2014 and

the PCRA court ordered Appellant to file and serve a concise statement of

errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b).2         Appellant complied and, within his Rule 1925(b)

statement, Appellant listed the following claims:
____________________________________________


2
 Appellant’s notice of appeal was time-stamped and entered on the docket
on July 28, 2014. Yet, the envelope that Appellant used to mail the notice of
appeal is postmarked July 23, 2014. Thus, in accordance with the prisoner
(Footnote Continued Next Page)


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         1. Trial counsel was ineffective for failing to provide medical
         records at trial. Trial Counsel failed to provide medical
         record[s] to support testimony of [Appellant] and disprove
         testimony of [C]ommonwealth witnesses.

         2. Trial counsel was ineffective for failing to argu[e] the
         forensic photograph. Trial counsel failed to argue forensic
         photograph [which conflicted] with testimony of the
         [C]ommonwealth witnesses.

         3. [Appellant’s] due process right was violated by perjured
         testimony.      Multiple witnesses of the [C]ommonwealth
         testified falsely violating [Appellant’s] due right process.

Appellant’s Rule 1925(b) Statement, 9/17/14, at 1.

      On appeal, Appellant raises the following claims:

         1. Whether [the] PCRA [court] erred when [it] allow[ed]
         PCRA counsel to withdraw after filing [the] Turner/Finley
         “no merit” letter, and dismissing [Appellant’s] pro se
         petition without a hearing, depriv[ing Appellant] of a
         substantial right to amend defective pro se petition[?]

         2. PCRA counsel was ineffective by failing to amend pro se
         petition to argue trial counsel’s ineffectiveness in failing to
         employ expert’s investigation into the exculpatory and
         impeachment evidence presented by the Commonwealth, to
         [bolster] defense trial strategy involving [Appellant’s]
         testimony and credibility.

         3. PCRA counsel was ineffective by failing to argue trial
         counsel’s ineffectiveness in neglecting to suppress
         [Appellant’s] statement.


                       _______________________
(Footnote Continued)

mailbox rule, “Appellant’s pro se [notice of appeal] is deemed to be filed
when it was handed to prison officials” for mailing – which was, at the latest,
July 23, 2014. Commonwealth v. Ousley, 21 A.3d 1238, 1241 n.2 (Pa.
Super. 2011).



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        4. PCRA counsel was ineffective by failing to argue
        [Appellate] counsel’s ineffectiveness in neglecting to
        preserve and raise for appellate review the issue that the
        sentence was manifestly excessive and unreasonable.

Appellant’s Brief at 5, 16, 34, and 40.

      All of Appellant’s claims on appeal are waived, as Appellant did not

include the claims in his PCRA petition or in his court-ordered Rule 1925(b)

statement.    Commonwealth v. McGill, 832 A.2d 1014, 1021-1022 (Pa.

2003) (a claim that PCRA counsel was ineffective is separate and distinct

from a claim that trial counsel was ineffective); Commonwealth v. Rigg,

84 A.3d 1080, 1085 (Pa. Super. 2014) (“where the new issue is one

concerning PCRA counsel’s representation, a petitioner can preserve the

issue by including that claim in his Rule 907 response or raising the issue

while the PCRA court retains jurisdiction.     Since [a]ppellant did not seek

leave to amend his petition or otherwise preserve his . . . PCRA counsel

ineffectiveness claims, he waived the issues he raised for the first time in his

[Rule] 1925(b) statement[]”) (internal citations omitted); Commonwealth

v. Jacobs, 727 A.2d 545, 547 (Pa. 1999) (“issues [that] were not raised in

[an] original PCRA petition, counsel’s amended petition, or the oral

amendments made to [a] petition before the PCRA court . . . are waived”);

Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)

s]tatement . . . are waived”); Commonwealth v. Castillo, 888 A.2d 775,

780 (Pa. 2005) (“[a]ny issues not raised in a Pa.R.A.P. 1925(b) statement

will be waived”).

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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