J-S09045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES JERMAINE POTTS, JR.,

                            Appellant                No. 2453 EDA 2016


                    Appeal from the PCRA Order July 22, 2016
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0001123-2012


BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 26, 2017

        Appellant, James Jermaine Potts, Jr., appeals pro se from the order of

July 22, 2016, which dismissed, without a hearing, his first petition brought

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

For the reasons discussed below, we affirm the dismissal of the PCRA

petition.

        We take the underlying facts and procedural history in this matter

from this Court’s March 3, 2015 memorandum on direct appeal and our

independent review of the certified record.

             At approximately 2:00 a.m. on January 27, 2012, Towayne
        Uqdah, his cousin Andre Tutt and Kevin Morgan were walking
        toward Morgan’s car, which was parked on a street in West
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*
    Retired Senior Judge assigned to the Superior Court.
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        Chester. Two men ran up to them, yelled at them not to move,
        and then started shooting. Tutt ran away and was shot once.
        Uqdah was shot nine times, and died from his injuries.

              Police arrested [Appellant] and Greg Arrington for the
        shootings. Arrington subsequently pled guilty to the murder of
        Uqdah.

               [Appellant’s] trial began on September 30, 2013, and
        ended on October 3, 2013, when the jury found him guilty of
        [murder in the first degree, two counts of attempt to commit
        criminal homicide, two counts of aggravated assault, possessing
        an instrument of crime, five counts of recklessly endangering
        another person, and criminal conspiracy.1] On November 26,
        2013, the [trial] court sentenced [Appellant] to [not less than]
        life imprisonment plus [not less than twenty-seven nor more
        than fifty-four] years’ incarceration.

(Commonwealth v. Potts, 2015 WL 7458798, at *1 (Pa. Super. 2015)

(unpublished memorandum)).

        On March 3, 2015, this Court affirmed the judgment of sentence.

(See id.).     Appellant did not seek leave to appeal to the Pennsylvania

Supreme Court.

        On May 1, 2015, Appellant, acting pro se, filed a petition for

transcripts and other court documents. The trial court denied the petition on

July 29, 2015. On March 4, 2016, Appellant, acting pro se, filed the instant,

timely PCRA petition. On March 7, 2016, the PCRA court appointed counsel.

On April 11, 2016, Appellant, despite being represented by counsel, filed a

pro se petition for a writ of habeas corpus.     On April 29, 2016, the PCRA

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1
    18 Pa.C.S.A. §§ 2502(a), 901, 2702(a), 907, 2705, and 903, respectively.



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court directed that the petition for a writ of habeas corpus be treated as a

PCRA petition and forwarded it to counsel.

       On May 18, 2016, PCRA counsel filed a motion to withdraw and

submitted a Turner/Finley letter addressing issued raised in both PCRA

petitions.2 On June 14, 2016, the PCRA court issued notice of its intent to

dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure

907(1). On June 16, 2016, Appellant, despite being represented by counsel,

filed a second petition for transcripts and other court documents and

records. On July 1, 2016, Appellant, acting pro se, filed a response to the

Rule 907 notice. On July 21, 2016, the PCRA court granted counsel’s motion

to withdraw. On July 22, 2016, the PCRA court denied Appellant’s petition

for transcripts and denied his PCRA petition.      The instant, timely appeal

followed.3

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

       I.     Did the PCRA court’s denial of the trial record deprive
              Appellant of the right to meaningfully challenge PCRA
              counsel’s no-merit letter?



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2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
  On August 10, 2016, the PCRA court directed Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement. See id. On September 28,
2016, the PCRA court filed an opinion. See Pa.R.A.P. 1925(a).



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      II.    Did the PCRA court’s denial of the trial record deprive
             Appellant of the right to vindicate his Sixth Amendment
             right to the effective assistance of trial counsel?

      III.   Did the PCRA court’s denial of the trial record deny
             Appellant the right to proceed pro se during the PCRA
             proceedings?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

      We review the denial of a post-conviction petition to determine

whether the record supports the PCRA court’s findings and whether its order

is otherwise free of legal error.   See Commonwealth v. Faulk, 21 A.3d

1196, 1199 (Pa. Super. 2011).        To be eligible for relief pursuant to the

PCRA, Appellant must establish, inter alia, that his conviction or sentence

resulted from one or more of the enumerated errors or defects found in 42

Pa.C.S.A. § 9543(a)(2).     See 42 Pa.C.S.A. § 9543(a)(2).        He must also

establish that the issues raised in the PCRA petition have not been

previously litigated or waived.      See 42 Pa.C.S.A. § 9543(a)(3).          An

allegation of error “is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal or in a prior

state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Further,

            . . . a PCRA petitioner is not automatically entitled to an
      evidentiary hearing.    We review the PCRA court’s decision
      dismissing a petition without a hearing for an abuse of
      discretion.

                   [T]he right to an evidentiary hearing on a post-
             conviction petition is not absolute. It is within the
             PCRA court’s discretion to decline to hold a hearing if
             the petitioner’s claim is patently frivolous and has no
             support either in the record or other evidence. It is

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              the responsibility of the reviewing court on appeal to
              examine each issue raised in the PCRA petition in
              light of the record certified before it in order to
              determine if the PCRA court erred in its
              determination that there were no genuine issues of
              material fact in controversy and in denying relief
              without conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

        Initially, we note that all of Appellant’s issues are interrelated, each

claiming that because the PCRA court denied his motion for transcripts he

was unable to prosecute his PCRA petition. Therefore, we will address them

together.

        It is well settled that a defendant need not possess transcripts and

other    court   documents       before    pursuing   post-conviction   relief.   See

Commonwealth v. Crider, 735 A.2d 730, 733 (Pa. Super. 1999).

Discovery in PCRA proceedings is governed by Pennsylvania Rule of Criminal

Procedure 902(E)(1), which states in pertinent part, “[e]xcept as provided in

paragraph (E)(2),[4] no discovery shall be permitted at any stage of the

proceedings, except upon leave of court after a showing of exceptional

circumstances.” Pa.R.Crim.P. 902(E)(1). Appellant has not met this hurdle.




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4
    Relating to death penalty cases. See Pa.R.Crim.P. 902(E)(2).




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         In his brief, Appellant vaguely states he is certain that if supplied with

transcripts and the myriad of other documents he requested, 5 he will be able

to “[scour] the record in search of claims warranting reversal of the

judgment.”      (Appellant’s Brief, at 10).         He notes his belief that collateral

review “entails” a “fishing expedition” wherein he will search for a claim.

(Id.).      These bald assertions do not convince us that exceptional

circumstances existed to compel the PCRA court to grant Appellant’s broad-

based discovery motion. See Commonwealth v. Lark, 746 A.2d 585, 590-

91   (Pa.    2000)    (affirming     denial    of   discovery   request   during   PCRA

proceedings and stating, “[w]e will not sanction a fishing expedition when

[a]ppellant fails to       provide    even a minimal basis for            his claim.”);

Commonwealth v. Williams, 732 A.2d 1167, 1175 (Pa. 1999) (affirming

denial of discovery request for broad-based discovery in PCRA proceedings

where appellant did not cite to any specific ground supporting request).

Thus, Appellant has not shown that the PCRA court erred in denying his

request for discovery.6


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5
  In his petition, Appellant sought all transcripts, including preliminary
hearing and motion hearing transcripts, all motions filed in the case, all trial
court opinions, and all grand jury transcripts. (See Petition for Transcripts,
Other Records, and Documents, 6/16/16, at 2).
6
 We note that Appellant does not challenge the denial of his PCRA petition
on any grounds other than the denial of his petition for transcripts. (See
Appellant’s Brief, at 4).



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      Accordingly, for the reasons discussed above, we affirm the PCRA

court’s dismissal of Appellant’s PCRA petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




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