J-S23028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AARON BRADLEY                              :
                                               :
                       Appellant               :   No. 364 EDA 2019

             Appeal from the PCRA Order Entered January 16, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010497-2012


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

MEMORANDUM BY McCAFFERY, J.:                              FILED JUNE 22, 2020

        Aaron Bradley (Appellant) appeals from the order entered in the

Philadelphia County Court of Common Pleas dismissing his first petition filed

pursuant to the Post Conviction Relief Act1 (PCRA), seeking relief from his jury

conviction of first degree murder2 and related offenses. On appeal, he argues

prior PCRA counsel rendered ineffective assistance. We affirm.

        On July 9, 2012, Appellant was arrested and charged with first degree

murder, possessing an instrument of crime (PIC), and carrying a firearm on a

public street in Philadelphia3 for his involvement in the shooting death of Bruce
____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. § 2502(a).

3 18 Pa.C.S. §§ 907(a), 6108. Appellant’s criminal information also included
a charge of carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1), but
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Fox. The case proceeded to a jury trial, which commenced on February 19,

2014.4 The facts presented at trial, underlying Appellant’s conviction, were

summarized by this Court in a prior appeal as follows:

             In the early morning hours of March 27, 2010, police
       responded to a call of shots fired and discovered Bruce Fox shot
       several times . . . [in] his vehicle. Upon determining that Fox was
       unresponsive but breathing, the officers removed Fox from his
       vehicle and transported him in their police cruiser to a local trauma
       center. Fox was pronounced dead at 2:34 a.m.

             At trial, the Commonwealth called Tanaya Nelson to testify.
       Nelson testified that she and Appellant were previously involved
       in a romantic relationship. Nelson testified to suffering physical
       abuse at the hands of Appellant throughout their relationship.
       Nelson also testified that an incident occurred that led to Appellant
       choking her, followed by her attacking him, and resulting in
       criminal charges against Nelson.

              In October 2009, Nelson began attending All State Career
       Trade School, where she met the victim, Bruce Fox.            The
       relationship between Nelson and Fox was friendly, but Nelson
       testified it was never romantic. In January 2010, Fox took Nelson
       shopping and bought her some clothes. When Appellant found
       out about Fox taking Nelson shopping, he became enraged and
       tore up the clothes Fox had purchased.

              On the Friday leading up to the incident, Nelson and
       Appellant went shopping at Wal–Mart. Appellant purchased a
       dresser for Nelson while at Wal–Mart, and then dropped Nelson
       off at her cousin's house, where Nelson lived. About an hour after
       arriving at her cousin’s house, Nelson realized she had
       approximately ten missed calls from Appellant. Nelson called
       Appellant back, and he began to question where she was and who
       she was with. Appellant then went to the house and took Nelson’s
       phone and started to go through it, wherein he saw a text from
____________________________________________


the Commonwealth did not pursue that charge at trial.          See Information,
9/11/12.

4Appellant was represented by privately retained counsel, Gregory Pagano,
Esquire.

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        Fox which made him angry. Appellant then left and took Nelson’s
        cell phone with him. Nelson repeatedly called Appellant from her
        cousin’s phone and her cousin’s boyfriend’s phone. Appellant
        returned Nelson’s phone the following morning on March 27, 2010
        by leaving it in Appellant’s cousin’s mailbox.

              Upon recovering her phone, Nelson received a phone call
        from Philadelphia detectives asking to come and speak with her.
        Nelson realized that her call and text message logs had been
        deleted, and she had not deleted them prior to Appellant taking
        her phone.

Commonwealth v. Bradley, 2064 EDA 2014 (unpub. memo. at 2-3) (Pa.

Super. 2015) (citation omitted), appeal denied, 506 EAL 2015 (Pa. 2015).

        The Commonwealth retrieved the deleted call log and text messages

via a forensic examination.     N.T., 2/19/14, at 111-12.    The examination

revealed a number of text messages were sent between Nelson’s phone and

Fox’s phone between 1:07 a.m. and 2:42 a.m. The messages from Nelson’s

phone requested that Fox pick her up at the location where the murder

occurred. Fox’s responses indicated that he agreed to do so. See Bradley,

2064 EDA 2014 (unpub. memo. at 4-5) (citation omitted). “Nelson testified

that she did not send or receive any of these texts[,] that when her phone

was returned to her, all these texts had been deleted from her phone[, and

that]   she had no animosity towards Fox and he was ‘a sweet guy.’”        Id.

(unpub. memo. at 5).

        On February 26th, the jury found Appellant guilty of all charges. That

same day, the trial court sentenced Appellant to the mandatory term of life

imprisonment for his conviction of first degree murder, and concurrent terms

of two and one-half to five years’ imprisonment for PIC and the firearms


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offense. Appellant filed a timely post-sentence motion that was denied by

operation of law on June 26, 2014.

       On direct appeal, Appellant was represented by court-appointed

counsel, John Belli, Esquire.        This Court affirmed Appellant’s judgment of

sentence in an unpublished decision, and the Pennsylvania Supreme Court

denied his petition for allocator review on December 30, 2015. See Bradley,

2064 EDA 2014 (unpub. memo.) (Pa. Super. 2015).

       On November 23, 2016, Appellant filed the present, timely PCRA

petition, pro se. Although an attorney was appointed to represent Appellant,

he was later permitted to withdraw when Appellant privately retained D.

Wesley Cornish, Esquire to litigate his petition. On June 21, 2017, counsel

filed an amended petition, which he titled a Motion for a New Trial, raising a

claim of after-discovered evidence.5             Counsel subsequently filed three

supplemental petitions raising various challenges to trial counsel’s effective

assistance, as well as the trial court’s failure to conduct a hearing before

admitting the Commonwealth’s expert testimony.6 On October 5, 2018, the

____________________________________________


5 Specifically, the petition alleged that one of the investigating officers,
Detective Ronald Dove, was convicted of hindering prosecution and tampering
with evidence in an unrelated case, and that fact could have been utilized at
Appellant’s trial to demonstrate the detective’s habit of falsifying documents
and tampering with evidence. Appellant’s Motion for a New Trial Based on
After-Discovered Evidence, 6/21/17, at ¶¶ 29-30, 33, 46.

6 On September 15, 2018, Appellant filed another supplemental petition, pro
se, which appeared to raise the same ineffectiveness claims as in his original
pro se petition.


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Commonwealth filed a motion to dismiss the PCRA petition, asserting

Appellant’s claims were meritless, underdeveloped or previously litigated.

Commonwealth’s Motion to Dismiss, 10/5/18, at 2-3. On December 11th, the

PCRA court issued notice of its intent to dismiss the petition without first

conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907, and properly

informed Appellant he had 20 days to file a response. On January 2, 2019,

the 22nd day after the court issued its Rule 907 notice, counsel filed a motion

for extension of time to file a response. The PCRA court did not address that

motion, but rather, on January 16, 2019, entered an order dismissing

Appellant’s PCRA petition. Counsel filed a timely notice of appeal on January

31, 2019.7

        On March 13, 2019, Appellant’s present attorney, Michael Wiseman,

Esquire, entered his appearance as retained counsel.8 On September 10th,

counsel filed a motion for remand in this Court, requesting a remand so that

he could raise sundry claims of prior counsel’s ineffectiveness in the PCRA

court, and “vindicate Appellant’s right to effective post-conviction counsel.”

Appellant’s Motion to Remand, 9/10/19, at 1. On September 30th, this Court

entered a per curiam order denying the motion without prejudice to Appellant

to raise the issue before the merits panel. Order, 9/30/19.

____________________________________________


7The PCRA court did not direct Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).

8   Prior counsel was later permitted to withdraw.


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      Appellant raises the following two, related claims on appeal:

      1. Was [Appellant] denied effective assistance of initial PCRA
      counsel . . . when that lawyer raised claims that were denied on
      curable procedural grounds, while at the same time failing to raise
      or properly raise other claims that are of arguable merit?

      2. Is remand appropriate where the only available mechanism to
      raise [prior PCRA counsel’s] ineffectiveness was not adequate
      under the circumstances of this case?

Appellant’s Brief at 1-2.

      When considering an order dismissing a PCRA petition:

      The standard of review . . . is whether that determination is
      supported by the evidence of record and is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Williams, 220 A.3d 1086, 1090 (Pa. Super. 2019)

(citation omitted).

      In the case before us, Appellant does not challenge the PCRA court’s

ruling on any of the claims raised by prior PCRA counsel in the supplemental

petitions, and addressed by the court in its opinion. Rather, his sole requested

relief is a remand to the PCRA court so that present counsel may raise

allegations of prior PCRA counsel’s ineffective assistance. Appellant’s Brief at

27. Appellant argues PCRA counsel was ineffective for failing to raise several

claims concerning both trial and direct appeal counsel’s ineffectiveness, and

for raising issues in the amended petition which were previously litigated on

direct appeal. Appellant’s Brief at 17-25. Significantly, the Commonwealth

has filed a brief in support of Appellant’s request for remand.             See

Commonwealth’s Brief at 6 (“The Commonwealth does not oppose [ ] a

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remand.”). We conclude we are constrained by prior case law to deny that

request.

      It is well-established that petitioners have a “rule-based right” to the

assistance of counsel to litigate their first PCRA petition. Pa.R.Crim.P. 904(C)

(“[W]hen an unrepresented defendant satisfies the judge that the defendant

is unable to afford or otherwise procure counsel, the judge shall appoint

counsel to represent the defendant on the defendant’s first petition for post-

conviction collateral relief.”); Commonwealth v. Holmes, 79 A.3d 562, 632

(Pa. 2013).    Moreover, although the Pennsylvania Supreme Court has

recognized that the Pa.R.Crim.P. 904(C) right to counsel includes “‘an

enforceable right’ to the effective assistance of counsel[,]” the Court

acknowledged that it has “struggled with the question of how to enforce the

‘enforceable’ right to effective PCRA counsel within the strictures of the PCRA,

as the statute was amended in 1995.” Holmes, 79 A.3d at 632 (emphasis

added). What has emerged through case law is an imperfect solution: in

order to challenge the ineffectiveness of PCRA counsel within the time

constraints of the statute, a petitioner must raise a claim of PCRA counsel’s

ineffectiveness in response to the PCRA court’s Pa.R.Crim.P. 907 notice of

intent to dismiss the petition. Petitioners may not challenge PCRA counsel’s

ineffectiveness for the first time on appeal. See Commonwealth v. Jette,

23 A.3d 1032, 1044 n.14 (Pa. 2011); Commonwealth v. Pitts, 981 A.2d

875, 879 n.3, 880 n.4 (Pa. 2009); Commonwealth v. Henkel, 90 A.3d 16




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(Pa. Super. 2014) (en banc); Commonwealth v. Ford, 44 A.3d 1190 (Pa.

Super. 2012).9

       With this background in mind, we consider the specific arguments

presented by Appellant and the Commonwealth. Appellant contends the “907-

Objection” method of preserving allegations of PCRA counsel’s ineffectiveness

was inadequate in his case because he was still represented by the purportedly

ineffective counsel at the time the Rule 907 response was required; thus,

counsel would face a conflict of interest when required to raise allegations of

their own ineffectiveness. Appellant’s Brief at 12-13. Moreover, Appellant

emphasizes that where, as here, the ineffective counsel failed to file a timely

response to the Rule 907 notice, it “cannot reasonably be held to constitute a

waiver of the contention that the same lawyer was ineffective.” Id. at 13.

       Rather, Appellant maintains the burden falls on the pro se petitioner to

recognize (1) that PCRA counsel was ineffective, and (2) their obligation to

raise ineffectiveness allegations in a pro se Rule 907 response. Appellant’s

Brief at 14. Appellant acknowledges a petitioner in that predicament could

hire new counsel, but argues that is not a “reliable mechanism” to raise PCRA

counsel ineffectiveness claims, particularly because Rule 907 provides only a

20-day window for a response. Id. at 14-15. Thus, Appellant asserts, under

the current law, during that brief 20-day period, (1) the pro se petitioner must

____________________________________________


9 Both Henkel and Ford provide a thorough review of the decisions leading
to the current state of the law. See Henkel, 90 A.3d at 22-29; Ford, 44 A.3d
at 1195-99.

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recognize present counsel’s ineffectiveness and hire new counsel, and (2) new

counsel must then review the entire record and file a response raising prior

counsel’s ineffectiveness. Id. at 15. Appellant also contends that, in his case,

the PCRA court erred when it failed to provide a detailed explanation of the

reasons for dismissing his petition in its Rule 907 notice,10 when some of the

defects in the petition “could have been cured.” Id.

       In supporting Appellant’s request for a remand, the Commonwealth

points out “Rule 907 does not explicitly address either claim preservation on

appeal or ineffective assistance of PCRA counsel.” Commonwealth’s Brief at

7. Rather, the Commonwealth emphasizes the requirement that PCRA counsel

ineffectiveness claims be raised in a Rule 907 response originated from a

footnote in Pitts, a case in which PCRA counsel filed a Turner/Finley11 “no

merit” letter and sought permission to withdraw before the court issued its

Rule 907 notice. Id. at 7-8 n.3. See also Pitts, 981 A.2d at 880 n.4. The

Commonwealth argues the rule creates a “particular conundrum for

defendants, such as [Appellant] here, whose counsel actively advocated for

them throughout the PCRA process (as opposed to having sought to withdraw

pursuant to Finley).” Commonwealth’s Brief at 8. Moreover, considering the
____________________________________________


10 The PCRA court’s Rule 907 notice checked the following box as the reason
for the dismissal: “The issues raised in the P.C.R.A. petition filed by your
attorney are without merit.” Notice Pursuant to Pennsylvania Rule of Criminal
Procedure 907, 12/11/18.

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


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PCRA’s timing restrictions, the Commonwealth asserts “the likelihood that a

petitioner would be able to raise such claims in a subsequent PCRA petition is

questionable[.]”     Id. at 9.   Indeed, the Commonwealth maintains present

counsel’s motion for remand was the “first opportunity for [Appellant] to raise

his claims of PCRA counsel’s ineffectiveness.” Id. at 10.

         The concerns expressed by both Appellant and the Commonwealth are

valid.     We agree the procedure for raising claims of PCRA counsel’s

ineffectiveness — especially when counsel does not seek to withdraw in the

PCRA court — is flawed. Moreover, due to the PCRA’s time restrictions, it is

difficult, if not impossible, for a petitioner to seek relief from an ineffective

PCRA attorney in a subsequent petition. See 42 Pa.C.S. § 9545(b)(1) (“Any

[PCRA] petition . . . , including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final” unless petitioner

pleads and proves a timing exception).

         Nevertheless, the concerns raised herein have been considered, and

rejected, by this Court in Ford and Henkel.             In Ford, the PCRA court

conducted an evidentiary hearing on one claim raised in the petition. Ford,

44 A.3d at 1193. After the court denied relief, initial PCRA counsel filed a

notice of appeal one day late. Id. The Ford Court described the ensuing

procedural history as follows:

         A panel of this Court quashed the appeal as untimely and [the
         petitioner] filed a pro se petition for allowance of appeal asserting
         that PCRA counsel was ineffective in failing to file a timely appeal.
         PCRA counsel filed a motion to withdraw before the PCRA court
         based on the allegation of her ineffectiveness. The Supreme

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     Court, under the impression that PCRA counsel was permitted to
     withdraw, remanded to the PCRA court “for a determination of
     representation.” The High Court further instructed that [the
     petitioner] could request nunc pro tunc relief from the [order
     denying PCRA relief] within thirty days of the PCRA court’s
     determination regarding counsel’s status.

     The PCRA court appointed current counsel who timely filed this
     nunc pro tunc PCRA appeal.

Id. at 1193–94 (record citations omitted). In a court-ordered Rule 1925(b)

statement, new PCRA counsel raised a claim asserting prior PCRA counsel’s

ineffectiveness, which the PCRA court addressed and rejected in its opinion.

Id. at 1194.

     Despite the fact that the petitioner challenged prior PCRA counsel’s

ineffectiveness at the first opportunity when he was not represented by prior

counsel, and the PCRA court addressed the claim in its opinion, the three-

judge Ford panel concluded it was precluded from considering the claim on

appeal:

     [A] majority of the Supreme Court agrees that issues of PCRA
     counsel effectiveness must be raised in a serial PCRA petition or
     in response to a notice of dismissal before the PCRA court. In
     addition, the Supreme Court’s remand order in the instant case
     allowed for the appointment of counsel, not for the collateral
     review process to begin anew. Therefore, we hold that, absent
     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.

Ford, 41 A.3d at 1200–01.

     This Court’s subsequent en banc decision in Henkel solidified the rule

that claims asserting PCRA counsel’s ineffectiveness must be raised in either



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a Rule 907 response, or in a subsequent PCRA petition. Henkel, 90 A.3d at

29-30. Indeed, the dissenting opinion in Henkel — authored by President

Judge Emeritus Bender and joined by Judges Lazarus and Wecht — raised

many of the concerns Appellant and the Commonwealth address herein. See

Henkel, 90 A.3d at 33 (Dissenting Op. by Bender, P.J.E.) (the origin of the

rule requiring petitioners to raise PCRA counsel ineffectiveness in response to

a Rule 907 notice was a “non-binding dicta” footnote in Pitts), 36 (Dissenting

Op. by Bender, P.J.E.) (failing to address PCRA counsel ineffectiveness claims

on appeal “makes it impossible” for petitioner to raise claims at the “state

level” because of PCRA timing requirements). However, even the Dissenting

Opinion in Henkel focused on the fact that “a PCRA hearing was held and no

Pa.R.Crim.P. 907 notice was issued” as the basis for providing relief. Id. at

33 (Dissenting Op. by Bender, P.J.E.).       Conversely, here, the PCRA court

issued Rule 907 notice, and informed Appellant of his right to file a response.

      Furthermore, the fact that Appellant was represented by the allegedly

ineffective counsel at the time the Rule 907 notice was issued does not provide

a basis for relief. In Commonwealth v. Smith, 121 A.3d 1049 (Pa. Super.

2015), a panel of this Court rejected a petitioner’s attempt to challenge PCRA

counsel’s ineffectiveness raised for the first time on appeal when, like here,

they were represented by private counsel at the time the court issued Rule

907 notice.   Id. at 1054-55.     Neither the petitioner nor counsel filed a

response, and the PCRA court subsequently dismissed the petition. Id. The




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court appointed new       counsel     on   appeal who   raised   prior   counsel’s

ineffectiveness. Id. at 1055. The Smith panel rejected the claim holding:

            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.
      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.

Id. at 1055 (citations omitted and emphasis added). Moreover, the Court also

rejected the petitioner’s argument that the Rule 907 notice was deficient

because it did not inform the petitioner of his obligation to raise claims of PCRA

counsel’s ineffectiveness in response to the notice. Id. (“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.”).

      We are bound by the decisions of this Court in Ford, Henkel and Smith.

See Pa.R.A.P. 3103(b) (“An opinion of the court en banc is binding on any

subsequent panel of the appellate court in which the decision was rendered.”);

Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (one panel of

Superior Court “is not empowered to overrule another panel of the Superior

Court”). Accordingly, we are constrained to conclude Appellant waived any



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challenge to prior PCRA counsel’s ineffectiveness when he failed to raise the

claim in response to the PCRA court’s Rule 907 notice. See Smith, 121 A.3d

at 1055; Henkel, 90 A.3d at 29-30; Ford, 44 A.3d at 1200-01. While we

note Appellant herein is seeking a remand of the ineffectiveness claims, rather

than asking this Court to review them in the first instance, we find that to be

a distinction without a difference.            This Court has explicitly stated that a

challenge to PCRA counsel’s ineffectiveness must be raised before the

petitioner appeals the denial of relief. See Smith, 121 A.3d at 1055 (“Once

Appellant filed a notice of appeal, he waived his right to complain about PCRA

counsel’s stewardship[.]”); Ford, 44 A.3d at 1201 (“[C]laims of PCRA counsel

ineffectiveness cannot be raised for the first time after a notice of appeal has

been taken from the underlying PCRA matter.”).

        Thus, because we are constrained by binding precedent to conclude

Appellant waived his only issues on appeal, we affirm the order dismissing his

PCRA petition.12

        Order affirmed.

        Judge Nichols did not participate in the consideration or decision of this

case.


____________________________________________


12We note the Henkel majority, in a footnote, suggested the Supreme Court
procedural rules committee consider amending the rules concerning post-
PCRA motion practice for first-time petitioners to provide them with a better
opportunity to raise claims concerning PCRA counsel’s ineffective assistance.
See Henkel, 90 A.3d at 29 n.4. This present case underscores the need for
such consideration.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/20




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