J-S10014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWARD FRIEDLAND                           :
                                               :
                       Appellant               :   No. 2284 EDA 2018

               Appeal from the PCRA Order Entered June 8, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0015361-2010


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                 FILED MAY 21, 2019

       Appellant, Edward Friedland, pro se, appeals from the order entered

June 8, 2018, that dismissed his first petition filed under the Post Conviction

Relief Act (PCRA)1 without a hearing.2 We affirm.

       Disposition of Appellant’s claims does not require a discussion of the

facts underlying Appellant’s conviction. For the convenience of the reader, we

briefly note that, on September 3, 2015, a jury convicted Appellant of


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1   42 Pa.C.S. §§ 9541–9546.
2 The PCRA court entered two orders: the first on June 1, 2018, dismissing
Appellant’s PCRA and permitting counsel to withdraw; the second on June 8,
2018, finding the issues raised in the PCRA petition without merit and
dismissing the PCRA petition. In his notice of appeal, Appellant indicated he
is appealing the June 8, 2018 order. The appeal is timely.




*    Retired Senior Judge assigned to the Superior Court.
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manufacture, deliver, or possession with intent to manufacture or deliver a

controlled substance, (PWID)3 cocaine base.         Appellant was sentenced on

November 20, 2015 to four to eight years’ incarceration followed consecutively

by two years’ probation.         Appellant filed a direct appeal, and this Court

affirmed his judgment of sentence on January 12, 2017. Appellant filed a

petition for allowance of appeal with the Pennsylvania Supreme Court, which

was denied on June 7, 2017. On January 16, 2018, Appellant filed his first,

pro se, timely PCRA petition, challenging the legality of his sentence and

alleging malicious prosecution and abuse of discretion of the PCRA judge.

        On February 2, 2018, the PCRA court appointed counsel to represent

Appellant. On April 3, 2018, PCRA counsel filed a petition to withdraw and a

“no merit” letter in compliance with Commonwealth v. Turner, 544 A.2d

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

1988) (en banc), that stated the issues raised in Appellant’s pro se PCRA

petition are without arguable merit and there are no other issues of arguable

merit which could be raised in a counseled petition. Counsel notified Appellant

of his right to proceed pro se or with the assistance of privately retained

counsel in the event the PCRA court granted his application to withdraw. On

April 18, 2018 and May 4, 2018 the PCRA court sent notice of intent to dismiss

all claims without a hearing pursuant to Pa.R.Crim.P. 907 (Rule 907 Notice).


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3   35 P.S. § 780-113(a)(30).


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On May 16, 2018, Appellant filed a pro se response to the Rule 907 Notice.

The PCRA court granted counsel’s motion to withdraw and dismissed

Appellant’s PCRA petition, finding the issues raised were without merit. On

July 3, 2018, Appellant filed this timely appeal.4

       Appellant presents the following issues for our review:

    1. Is the Defendant Edward Friedland, entitled to an evidentiary hearing
       due to a merited claim of an illegal sentence. The District Attorney
       during Trial stipulated to the facts that the chemistry Labatory [sic]
       Report and those who completed the testing would testify that the
       amount of total grams involved within this matter is 4.864 grams
       including Ms. Dean, George, and Muller?

    2. Is sentence illegal due to the Legislatures intent as to Felony 3 total
       amount of years applicable?

    3. Did the Honorable Judge Timika Lane Abuse her discretion denying Post
       Conviction Relief Action?

    4. Did the District Attorney Violate the Stipulation?

Appellant’s Brief at 3.5

       In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

the PCRA court and whether the ruling is free of legal error.” Commonwealth

v. Medina, 2019 PA Super 119, *3 (filed April 17, 2019) (citation omitted).

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4 Appellant filed his statement of errors complained of on appeal on August
24, 2018 although the PCRA court did not order one. The trial court entered
its opinion on October 10, 2018.
5 We note Appellant filed two Appellate briefs, he did not request permission
to file an amended brief, but there appears to be no objection from the
Commonwealth, therefore, we will accept the Appellant’s amended brief, filed
November 19, 2018.

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To be eligible for relief under the PCRA, the petitioner must plead and prove

by a preponderance of the evidence that the conviction or sentence in question

arose from one or more of the following errors:

      violation of Constitution of this Commonwealth or the Constitution
      or laws of the United States which, in the circumstances of the
      particular case, so undermined the truth-determining process that
      no reliable adjudication of guilt or innocence could have taken
      place, ineffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place . . . the unavailability at the
      time of trial of exculpatory evidence that has subsequently
      become available and would have changed the outcome of the
      trial if it had been introduced, [or] imposition of a sentence greater
      than the lawful maximum . . .

and that the issues raised have not been previously litigated or waived. 42

Pa.C.S. § 9543(a)(2), (3).

      Appellant first claims that he is eligible for relief under the PCRA because

the sentence imposed was greater than the lawful maximum. 42 Pa.C.S. §

9543(a)(2)(vii).    As long as this Court has jurisdiction over the matter, a

legality   of   sentencing   issue   is   reviewable   and   cannot   be   waived.

Commonwealth v. Whitehawk, 146 A.3d 266, 270 (Pa. Super. 2016)

(citation omitted). This Court has jurisdiction over Appellant’s timely appeal.

      Appellant argues that his sentence of four to eight years’ incarceration

plus two years’ consecutive probation is illegal because PWID should have

been graded as a felony of the third degree and, therefore, he should have

been sentenced to no less then seven years. Appellant relies on the following

sections in the crimes code to support his proposition: “a crime declared to be

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a felony, without specification of degree, is of the third degree,” 18 Pa.C.S. §

106(b)(5), and “a person who has been convicted of a felony may be

sentenced to imprisonment as follows . . . in the case of a felony of the third

degree, for a term which shall be fixed by the court at not more than seven

years.” Id. § 1103(3).

      PWID is defined within The Controlled Substance, Drug, Device and

Cosmetic Act (The Controlled Substance Act):

      Except as authorized by this act, the manufacture, delivery, or
      possession with intent to manufacture or deliver, a controlled
      substance by a person not registered under this act, or a
      practitioner not registered or licensed by the appropriate State
      board, or knowingly creating, delivering or possessing with intent
      to deliver, a counterfeit controlled substance.

35 P.S. § 780-113 (a)(30). The Controlled Substance Act defines the penalties

applicable to the prohibited acts.    Id. § 780-113 (b)-(o). Specifically, the

penalty for PWID, cocaine base, is defined as:

      Any person who violates clause (12), (14) or (30) of subsection
      (a) with respect to . . . coca leaves and any salt, compound,
      derivative or preparation of coca leaves; any salt, compound,
      derivative or preparation of the preceding which is chemically
      equivalent or identical with any of these substances, except
      decocanized coca leaves or extracts of coca leaves, which extracts
      do not contain cocaine or ecgonine . . . is guilty of a felony and
      upon conviction thereof shall be sentenced to imprisonment not
      exceeding ten years, or to pay a fine not exceeding one hundred
      thousand dollars ($100,000), or both.

Id. § 780-113(f)(1.1) (footnote omitted).

      It is clear that The Controlled Substance Act contains specific provisions

defining PWID and the penalty.       The Controlled Substance Act clearly and



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specifically enumerates “its own comprehensive scheme of offenses and

penalties,” and thus “it would seem that the legislature intended to accord

special treatment to this area of criminal conduct to the exclusion of the more

general provisions of the Crimes Code.” Commonwealth v. Davis, 618 A.2d

426, 429 (Pa. Super. 1992) (citations omitted). “At a minimum, we find it

unreasonable to presume the legislature would intend or desire to have the

specifics of its comprehensive Controlled Substance Act nullified by general

provisions of a general Crimes Code not particularly intended for narcotics

offenses.” Id.

      The legislature has the “exclusive power to pronounce which acts are

crimes, to define crimes, [ ] to fix the punishment for all crimes[,]” and “to

classify crimes.” Id. at 428.

      Whenever a general provision in a statute shall be in conflict with
      a special provision in the same or another statute, the two shall
      be construed, if possible, so that effect may be given to both. If
      the conflict between the two provisions is irreconcilable, the
      special provisions shall prevail and shall be construed as an
      exception to the general provision, unless the general provision
      shall be enacted later and it shall be the manifest intention of the
      General Assembly that such general provision shall prevail.

1 Pa.C.S. § 1933.     Statutes designed to establish proper procedures for

sentencing all defendants who commit crimes are general provisions, for

purposes of the principle that a specific provision will prevail over a general

provision when a conflict between the two provisions is irreconcilable.

Commonwealth v. Poncala, 915 A.2d 97, 101 (Pa. Super. 2006) (citation

omitted).

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Additionally,

       we find the syntax of section 106(e)[6] compels the eminently
       reasonable conclusion that the grading scheme in 106 applies only
       to offenses hereafter defined by any statute other than this title,
       and not to offenses previously defined by other statutes, such as
       the offenses defined in The Controlled Substance Act prior to the
       effective date of section 106.

Davis, 618 A.2d at 429. The offense of PWID and the designated penalty

were enacted before section 106 and section 1103 of the crimes code. See

18 Pa.C.S. § 1103 (effective date June 6, 1973); 18 Pa.C.S. § 106 (effective

date June 6, 1973); 35 P.S. § 780-113 (effective date April 14, 1972).

       Appellant’s argument that PWID, as an ungraded felony, must be

construed as a felony of the third degree fails. The law is clear that the more

specific provisions of The Controlled Substance Act will prevail over the

general provisions in the crimes code. See also Poncala, 915 A.2d at 105

(holding specific DUI sentencing provisions control over general Sentencing

Code provision); see Davis, 618 A.2d at 429-30 (finding the express

classification of possession of marijuana as a misdemeanor in the Controlled

Substance Act is clear evidence of the General Assembly's intent to grade the

offense as a misdemeanor rather than a summary offense, notwithstanding

that the sentence for the offense is consistent with a summary offense). As

the legislature specifically defined PWID in The Controlled Substance Act,



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6 An offense hereafter defined by any statute other than this title shall be
classified as provided in this section.

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designated it an ungraded felony, and fixed the penalty as no more than ten

years, Appellant’s sentence is legal.

      Additionally, in furtherance of his illegal sentence claim, Appellant

appears to argue that the total weight of the controlled substance effects the

grading of PWID as a felony of the second degree or a felony of the third

degree. However, there is no support for this proposition in Pennsylvania case

law or statutory law. This argument is meritless.

      Next, Appellant challenges the offense gravity score (OGS). Appellant

argues an erroneous OGS was used in calculating his sentencing guidelines,

due to prosecutorial misconduct. To the extent that Appellant is challenging

the OGS, we agree with the PCRA court:

      A claim that the sentencing court used an incorrect OGS is a
      challenge to the discretionary aspects of the sentence.
      Commonwealth v. Lamonda, 52 A.3d 365, 370-371 (Pa.
      Super. 2012). It is well settled that “[r]requests for relief with
      respect to the discretionary aspects of sentence are not
      cognizable in PCRA proceedings.” Commonwealth v. Wrecks,
      934 A.2d 1287, 1289 (Pa. Super. 2007); see also
      Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super.
      2014) (noting that discretionary aspects of a sentence should be
      raised in a direct appeal).

Trial Court Opinion at 6. An issue is considered 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 post-conviction proceeding.         42 Pa.C.S. §

9544(b); Commonwealth v. Williams, 900 A.2d 906, 908–09 (Pa. Super.

2006) (en banc); Commonwealth v. Fowler, 930 A.2d 586, 594 (Pa. Super.




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2007). Appellant failed to preserve the issue he now asks us to consider in

this appeal. Therefore, it is waived.7

       Appellant alleges the PCRA court abused its discretion in denying him

an evidentiary hearing based on a merited illegal sentence claim. Based on

the discussion above, we find that the PCRA court did not abuse its discretion

by denying an evidentiary hearing based on Appellant’s illegal sentence

claims, as the claims are meritless. As Appellant is not entitled to PCRA relief

on his illegal sentence claims, he is likewise not entitled to an evidentiary

hearing on those claims. Commonwealth v. Postie, 200 A.3d 1015, 1022

(Pa. Super. 2018) (en banc) (“A petitioner is not entitled to a PCRA hearing

as a matter of right; the PCRA court can decline to hold a hearing if there is

no genuine issue concerning any material fact, the petitioner is not entitled to

PCRA relief, and no purpose would be served by any further proceedings.”).

       In his brief to this Court, Appellant contends the sentencing provision in

35 P.S. § 780-113(f)(1.1) is vague, and contains mandatory sentencing

language contrary to the Supreme Court’s decisions in Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99

(2013). However, Appellant did not argue this in his pleading before the PCRA




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7 Appellant represented himself at sentencing. He did not object to the
stipulation to the OGS of 7, quite the opposite, he agreed. Additionally,
because Appellant agreed to the stipulation, we find the issue meritless. N.T.
Sentencing, at 4 (lines 13-19).

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court. “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). This issue is waived.

       Appellant appears to argue ineffective assistance of standby counsel at

sentencing and of PCRA counsel for filing a Turner-Finley “no merit” letter.

A PCRA petitioner must exhibit a concerted effort to develop his ineffective

assistance claim and may not rely on boilerplate allegations of ineffectiveness.

Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007).              Appellant

appears to argue that he received erroneous advice from standby counsel and

based upon that advice, stipulated to the OGS of 7.       As Appellant did not

develop this argument, we find it waived. Appellant likewise did not develop

any argument supporting ineffective assistance of PCRA counsel, and we find

the issue waived.8

       The trial court sentenced Appellant within the statutory maximum for

PWID. As we find that the evidence supports the PCRA court’s determination

and that the PCRA court’s ruling is free of legal error, we affirm the order of

the PCRA court.

       Order of the PCRA court affirmed.




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8Additionally, Appellant raised an issue in his PCRA, that counsel discussed in
his Turner-Finley “no merit letter,” regarding defense witnesses, but
Appellant has abandoned this issue on appeal.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/19




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