J-S08002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA        IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA
                  Appellee

                       v.

DARNELL DIXON

                            Appellant                   No. 148 WDA 2016


             Appeal from the PCRA Order dated December 25, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0017215-2008

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                                  FILED MAY 25, 2017

        Appellant, Darnell Dixon, appeals pro se from the order dismissing his

first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

        The facts of this case have been fully and correctly set forth in the trial

court’s opinion dated May 8, 2012, and the PCRA court’s opinion dated

August 8, 2016.       See Trial Ct. Op., 5/8/12, at 4-11, 14-15, 24; PCRA Ct.

Op., 8/8/16, at 12, 18, 23. On October 25, 2010, Appellant was convicted

by a jury of murder of the second degree, robbery, carrying firearms without

a license, and criminal conspiracy to commit robbery.1 A separate firearms




____________________________________________
1
    18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), 6106(a)(1), and 903, respectively.
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charge had been severed from the other four counts prior to the jury trial,

and, following a bench trial, Appellant was also convicted of that crime.2

        The court ordered a pre-sentence investigation report, and, on

February 15, 2011, Appellant was sentenced to life imprisonment for

second-degree murder, to 10-20 years’ imprisonment for robbery, and to

10-20 years’ imprisonment for criminal conspiracy, with the latter sentences

to be served consecutively to each other and to the life imprisonment. He

received no further penalty on the remaining counts.

        On February 22, 2011, Appellant filed a timely post-sentence motion,

and a hearing was held on June 20, 2011. At the conclusion of the hearing,

the motion was denied.

        On July 8, 2011, Appellant filed a timely notice of appeal to this Court.

On December 28, 2012, we “affirm[ed] the convictions, vacate[d] the

judgment of sentence for robbery, and affirm[ed] the judgment of sentence

for the remaining convictions.”           Commonwealth v. Dixon, 1133 WDA

2011, at 1-2 (Pa. Super., Dec. 28, 2012) (unpublished memorandum),

appeal denied, 32 WAL 2013 (Pa. Oct. 9, 2013). Appellant filed a petition

for allowance of appeal to the Supreme Court of Pennsylvania, which was

denied on October 9, 2013.

        Appellant filed this timely pro se PCRA petition on March 3, 2014. On

May 12, 2014, the PCRA court appointed Charles Pass III, Esquire, to
____________________________________________
2
    18 Pa.C.S. § 6105(a)(2)(i).



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represent Appellant. On June 2, 2014, Attorney Pass filed a Turner/Finley3

letter with a memorandum and a request to withdraw as PCRA counsel. On

July 7, 2014, the PCRA court granted Attorney Pass’ request to withdraw and

sent a notice to Appellant of its intention to dismiss his PCRA petition

pursuant to Pa.R.Crim.P. 907(1). The PCRA court gave Appellant 30 days to

file a response to this Rule 907 Notice.

       On July 22, 2014, the court docketed Appellant’s “Notice with Court

Explaining How Defendant Wishes to Proceed,” in which he stated that “he is

notifying this Honorable Court that he is proceeding Pr[o]-Se” (emphasis

removed) and that “he will be notifying this Honorable Court why court-

appointed counsel, Charles R. Pass, III should not be permitted to withdraw

as counsel in regards to the above-entitled matter,” even though Attorney

Pass had already been allowed to withdraw by the PCRA court.

       On September 21, 2014,4 Appellant filed a pro se motion for leave to

amend his PCRA petition, in which he stated that he wished to amend so he

could add a claim that Attorney Pass “rendered ineffective assistance of

counsel.”     On March 16, 2015, the PCRA court entered an order that

____________________________________________
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4
  The certificate of service was dated September 21, 2014, and the court
docketed the filing on September 30, 2014. See Commonwealth v.
Whitehawk, 146 A.3d 266, 268 n.3 (Pa. Super. 2016) (under the “prisoner
mailbox rule,” a document is deemed filed when placed in the hands of
prison authorities for mailing).



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appointed Alan R. Patterson III, Esquire, as Appellant’s new PCRA counsel.

In that same order, the PCRA court stated the following regarding

Appellant’s motion for leave to amend his PCRA petition: “[t]he motion is

returned to defendant for amendment as follows, such amendment to be

made on or before, May 4, 2015, or counsel to advise that no amendment is

necessary.”   The order thus directed Appellant’s new counsel, Attorney

Patterson, to review Appellant’s proposed amendment and to decide whether

it should be filed. Mr. Patterson never filed Appellant’s proposed amended

PCRA petition or any amended PCRA petition.

     On September 16, 2015, Attorney Patterson filed a Turner/Finley

petition to withdraw as counsel, averring that he analyzed Appellant’s

September 21, 2014, pro se petition to amend his PCRA petition and

concluded there were no meritorious issues.    Pet. to Withdraw as Counsel

under Turner & Finley, 9/16/15, at 1-2 (unpaginated).       The PCRA court,

“after reviewing that letter and the memorandum accompanying that letter,”

granted the petition to withdraw on October 26, 2015, and sent Appellant a

notice of its intention to dismiss on October 26, 2015.” See PCRA Ct. Op.,

8/8/16, at 3. The court’s order and notice stated:

     It is further ORDERED, ADJUDGED and DECREED that the
     Defendant must file a notice with this Court within thirty (30)
     days of this Order, which will explain how he wishes to proceed.
     If no such notification is filed within thirty (30) days, the Court
     will enter a final Order dismissing the post-conviction petition.




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Appellant never filed a response to this second Rule 907 Notice, and, on

December 1, 2015, the PCRA court dismissed Appellant’s PCRA petition. On

December 25, 2015, Appellant filed a timely notice of appeal to this Court.

      In his pro se appeal, Appellant raises the following issues, as stated in

his brief:

      I.    Whether in reviewing the [propriety] of the PCRA court’s
      dismissal of Appellant’s PCRA filing, it was an abuse of discretion
      for the PCRA court to accept the Turner/Finley “no-merit”
      letters filed by Appellant’s PCRA counsels when those letters did
      not meet the standards set forth in Commonwealth v.
      Mosteller, 633 A.2d 615 (Pa.Super. 1993) in reference to the
      following sub-claims:

             1.    Trial-Counsel was ineffective for failing to
             object to the addition of a firearms charge after the
             Preliminary Hearing;

             2.    Trial Counsel was ineffective for faili[n]g to
             object to the DNA identification discovered on the
             firearm;

             3.    Counsel was ineffective       for  failing to
             [undertake] a pre-Trial investigation as to whether
             or not the T-shirt produced at the time of Trial
             actually came from Ross-Store or was part of his
             inventory at the time of the crime;

             4.    Trial Counsel was ineffective for failing []to
             object to the absence of the signature of the District
             Attorney on the Police Criminal Complaint filed in this
             matter - Pa.R.Crim.P. 504;

             5.    Trial Counsel was ineffective for not seeking to
             wit[h]draw as Counsel once he found out that the
             Defendant had filed a civil suit against him;

             6.    Trial Counsel was ineffective for failing to
             preserve the issue that a thorough inventory of the
             truck was not conducted;


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          7.    Trial Counsel was ineffective for failing to
          challenge the introduction of the twenty-two (22)
          caliber handgun which he maintains was seen in the
          hands of his co-defendant;

          8.    Trial Counsel was ineffective for failing to
          object to the prosecutor’s argument that [Appellant]
          put the gun in the back of the co-defendant’s truck
          as a stash spot;

          9.    Trial Counsel was in[e]ffective for failing to
          conduct a pre-Trial investigation of the truck,
          fingerprints and back of the truck where the gun was
          placed since he believed that this investigation would
          have exonerated him;

          10. Appella[te] Counsel was [i]neffective for failing
          to raise the claims of the ineffectiveness of Trial
          Counsel on Direct-Appeal where the record was
          preserved;

          11. Trial Counsel was ineffective for failing to
          object to the Commonwealth’s pre[e]mptory strike
          [challenges];

          12. Trial Counsel was ineffective for failing to file a
          motion to Dismiss charge against him on a violation
          of his Rule 600 rights;

          13. Trial Counsel was ineffective in failing to object
          to the language employed by the Trial Court in
          defining reasonable doubt to the jury;

          14. Trial Counsel was ineffective in failing to object
          to the charge given to the jury on Second-degree
          Murder;

          15. Trial Counsel was ineffective in failing to
          investigate and to develop an [adequate] Trial
          strategy;

          16. All Counsels from Trial Counsel through
          Appellate Counsel were ineffective for failing to raise


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           the claims of ineffectiveness of Appellant’s trial
           Counsel;

           17. Trial Counsel was ineffective in failing to obtain
           his own DNA expert.

           18. Trial      Counsel    was    ineffective  for    not
           withdrawing from the case once he determined there
           was a conflict of interest since [Appellant] had filed a
           Civil suit against him;

           19. The Trial Court erred when it did not include
           [Appellant]’s first sentencing hearing where Trial
           Counsel was forced to withdraw from the case;

           20. Trial Counsel was ineffective in failing to object
           to the Trial Court’s vouching to the expertise of a
           witness on behalf of the Commonwealth;

           21. There was a violation of the Brady Rule in that
           while Appellant was in the jail he had surgery to
           remove the bullet lodged in his back and he wanted
           the bullet to be presented into evidence maintaining
           that this bullet would demonstrate that he did not
           shoot the decease[d] Mr. Ross, b[e]cause it was the
           same caliber-bullet that inflicted the fatal wound to
           Mr. Ross.

           22. Violation of due process rights of Appellant in
           that he did not have transcripts of the proceedings at
           the time of the hearing on his petition for Post-
           Conviction Relief;

           23. The verdicts [a]gainst Appellant were a result
           of the cumulative errors previously presented.

     II.   Whether the PCRA court erred and denied Appellant his
     federal and state constitutional rights to due process of law by
     dismissing Appellant’s initial PCRA petition without an evidentiary
     hearing. . . where Appellant raised substantial questions of
     disputed facts regarding his conviction?

     III. Whether initial PCRA counsel rendered ineffective
     assistance . . . of counsel based on the filing of a Turner/Finley


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     “no-merit” letter and this Honorable Court should disapprove the
     [PCRA] court’s adoption of appointed PCRA counsels’ Finley “no-
     merit” letter analysis and reasoning and remand this matter to
     the PCRA court for a proper Rule 1925(a) opinion in reference to
     the afore-mentioned claims of ineffective assistance of counsel?

Appellant’s Brief at 4-6 (internal brackets and parentheses omitted).

     Our standard of review of a PCRA court’s denial of a PCRA petition is

limited to examining whether the PCRA court’s determination is supported by

the record evidence and free of legal error.      Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super. 2003) (en banc), appeal denied, 839 A.2d

352 (Pa. 2003).

     Appellant’s first and third issues (including all 23 subparts of the first

issue) allege ineffective assistance of counsel claims against Attorney Pass

and Attorney Patterson. Those claims were waived.

     On September 21, 2014, Appellant filed a pro se motion for leave to

amend his PCRA petition, in which he stated that he wished to amend so

that he could add a claim that Attorney Pass “rendered ineffective assistance

of counsel.” Mot. for Leave to Amend/Supplement Pet. for Post Conviction

Relief, 9/21/14. In its order of March 16, 2015, the PCRA court appointed

Attorney Patterson as counsel and wrote:          “[t]he motion [for leave to

amend]   is   returned   to   defendant   for   amendment   as   follows,   such

amendment to be made on or before, May 4, 2015, or counsel to advise that

no amendment is necessary.” Order, 3/16/15. Attorney Patterson then filed

a petition to withdraw as counsel, in which he said that he reviewed



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Appellant’s September 2014 pro se motion and concluded that “no

meritorious issues exist to review.” He thus concluded that any ineffective

assistance of counsel claims against Attorney Pass lacked merit, and he did

not file Appellant’s amendment, as directed by the PCRA court’s order.

Instead, in the words of the court’s order, Attorney Patterson “advise[d] that

no amendment [was] necessary.” See Order, 3/16/15.

      Appellant had an opportunity to respond to Attorney Patterson’s

statements to the court, but he did not do so.       In Commonwealth v.

Rykard, 55 A.3d 1177 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa.

2013), this Court stated that “a petitioner waives issues of PCRA counsel’s

effectiveness regarding Turner/Finley requirements if he declines to

respond to the PCRA court’s notice of intent to dismiss.”        Id. at 1186

(citation omitted).   Since Appellant did not file a response to the PCRA

court’s notice of intent to dismiss, he may not now challenge the correctness

of Attorney Patterson’s conclusion that there was no merit to any allegation

that Attorney Pass was ineffective. Moreover, Appellant’s failure to respond

to the PCRA court’s order of October 26, 2015, which notified Appellant of

the court’s intention to dismiss, waived not only Appellant’s claims of

ineffectiveness against Attorney Pass, but also those against Attorney




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Patterson. See id. at 1186. Therefore, Appellant is not entitled to relief on

any of his first and third issues.5

       Appellant also waived his second issue, which challenges the PCRA

court’s dismissal of his PCRA petition without a hearing, because he did not

include that issue in his Rule 1925(b) Statement.         An issue that is not

included in a Rule 1925(b) statement cannot be raised for the first time on

an appeal to this Court. See Pa.R.A.P. 302(a), 1925(b); Commonwealth

v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any issues not raised in a

Pa.R.A.P.1925(b) statement will be deemed waived”). Hence, we may not

address this issue.

       For the reasons stated above, we affirm the order dismissing

Appellant’s petition filed under the Post Conviction Relief Act.

       Order affirmed.




____________________________________________
5
   We acknowledge that the PCRA court opted to address the merits of
Appellant’s issues.     However, we may affirm on any basis.         Mariner
Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 277 (Pa. Super. 2016).
Moreover, we have carefully reviewed the record, and we conclude that even
if Appellant had properly preserved his claims, we would hold that none of
his issues, including his twenty-three subclaims under Issue I, had merit.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/25/2017




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