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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RAHMIN HOLDEN

                            Appellant                  No. 1859 EDA 2015


               Appeal from the PCRA Order entered June 5, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0014951-2007


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                          FILED JANUARY 19, 2017

        Appellant, Rahmin Holden, appeals pro se from the June 5, 2015 order

entered in the Court of Common Pleas of Philadelphia County, dismissing his

petition for collateral relief pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.

        Following a jury trial, Appellant was convicted on July 14, 2009 of first-

degree murder and various other crimes arising out a shooting on the 6600

block of Upland Street in Philadelphia.1       Appellant was sentenced on the

same day to a mandatory term of life imprisonment. The trial court denied
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*
    Former Justice specially assigned to the Superior Court.
1
   The guilty verdict was rendered at the conclusion of Appellant’s second
trial. His first trial ended in a hung jury.
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Appellant’s post-sentence motions and Appellant pursued an appeal to this

Court.    On June 1, 2011, we affirmed his judgment of sentence and on

August 21, 2012, our Supreme Court denied his petition for allowance of

appeal.

       On September 18, 2012, Appellant filed a timely pro se PCRA petition.

Counsel was appointed and subsequently filed a Finley2 no-merit letter and

a motion to withdraw as counsel. On March 23, 2015, following a review of

the pleadings and an independent review of the record, the PCRA court

issued a notice of intent to dismiss the petition without a hearing pursuant to

Pa.R.Crim.P. 907.3       The notice included a directive to Appellant to submit

any information to supplement or establish his claim within 20 days of the

date of the notice.      Appellant requested an extension for filing a response

and the PCRA court granted that request. Appellant filed his response within

the time allotted.       By order entered on June 5, 2015, the PCRA court

dismissed Appellant’s petition and granted counsel’s motion to withdraw.

This timely appeal followed.        Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.



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2
    Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
3
  We note that the judge for the PCRA proceedings was also the presiding
judge for Appellant’s trial.




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       In his Rule 1925(b) statement of errors complained of on appeal,

Appellant raised three errors, i.e., that the PCRA court erred in adopting

PCRA counsel’s no-merit letter because counsel was ineffective for failing to

investigate potential alibi witnesses and for failing to call the alibi witnesses;

that PCRA counsel could not have made a conscientious examination of the

record or consulted with Appellant as reflected in the no-merit letter; and

that Appellant had three additional meritorious issues to raise in an amended

petition.4    Rule 1925(b) Statement of Errors Complained of on Appeal,

10/22/15, at 1-2.        In its Rule 1925(a) opinion, the PCRA court rejected

Appellant’s first two claimed errors based on the court’s independent review

of the record and found the third error waived because Appellant failed to

raise it in his response to the Rule 907 notice.      PCRA Court Rule 1925(a)

Opinion, 11/13/15, at 1-13.

       In his brief filed with this Court, Appellant presents five issues for our

consideration.     For ease of discussion, we have rearranged them in an

attempt to mirror the errors asserted in Appellant’s 1925(b) statement as

follows:

       1. Whether the [PCRA] court erred in dismissing [Appellant’s]
          claims that trial counsel was ineffective for failing to
          investigate and call potential alibi witnesses to testify?

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4
 Although Appellant suggested he had three additional meritorious issues to
be raised in an amended petition, he actually listed five issues in his Rule
1925(b) statement.



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      2. Whether the [PCRA] court erred by failure to conduct [its]
         own full independent review of the record [before] dismissing
         [Appellant’s] PCRA [petition] when meritorious issues existed
         within the record?

      3. Whether the [PCRA] court erred by dismissing [Appellant’s]
         PCRA [petition] pursuant to counsel[’]s “no merit letter” he
         filed, which failed to meet the standard procedures for a “no
         merit letter?”

      4. Whether PCRA counsel should [have] filed a “no merit letter”
         when he failed to raise and address a substantial amount of
         issues [Appellant] “raised” and asked to have amended to his
         PCRA petition?

      5. Whether PCRA counsel was ineffective for failing to properly
         amend [Appellant’s] PCRA petition by neglecting to mention
         any of [Appellant’s] constitutional claims, therefore deeming
         them insufficiently pleaded and the PCRA court erred/abused
         [its] discretion for denying petition?

Appellant’s Brief at 3.

      We begin by setting forth our scope and standard of review. As our

Supreme Court has explained, “In PCRA proceedings, an appellate court’s

scope of review is limited by the PCRA’s parameters; since most PCRA

appeals involve mixed questions of fact and law, the standard of review is

whether the PCRA court’s findings are supported by the record and free of

legal error. Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009) (citing

Commonwealth v. Strong, 761 A.2d 1167, 1170 n. 3 (Pa. 2000)).

      In his first issue, Appellant argues PCRA court error for dismissing his

claim of trial counsel ineffectiveness for failing to investigate and call




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potential alibi witnesses to testify. This issue was preserved in the first error

asserted in Appellant’s 1925(b) statement.5

       At issue here is the alibi testimony Appellant contends would have

been provided by two of his cousins, Lanea Staten and Brianna Burrell, who

were 16 and 12 years old, respectively, at the time of the murder for which

Appellant was convicted. The PCRA court provides a thorough discussion of

the testimony the girls would have offered and explains that trial counsel

had a reasonable basis for not calling either witness, especially in light of

more favorable but conflicting evidence offered at trial by the girls’ mother.

See PCRA Court Rule 1925(a) Opinion, 11/13/15, at 5-11.                  We find the

PCRA court’s findings in this regard are supported by the record and are free

of legal error. We conclude Appellant is not entitled to any relief on his first

issue and we hereby adopt the trial court’s discussion of this issue as our

own and incorporate it herein by reference.

       In his second issue, Appellant alleges PCRA court error for failure to

conduct its own meritorious review of the record before dismissing

Appellant’s PCRA petition.           In his Rule 1925(b) statement, Appellant

asserted    that   PCRA     counsel    could     not   have   made   a   conscientious

examination of the record and notes of testimony or consulted with

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5
 Issues not preserved in an appellant’s 1925(b) statement are waived. See
Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa.
2011).



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Appellant as suggested in the No-Merit Letter but does not contend that the

PCRA court failed to conduct its own review.     Although the issue is likely

properly considered waived, we also recognize that the first error raised in

Appellant’s 1925(b) statement implies that the PCRA court erred in adopting

the No-Merit Letter and in granting counsel’s petition to withdraw. To the

extent Appellant’s contention could be interpreted to reflect a failure on the

part of the PCRA court to conduct its own meritorious review, we shall

address the issue.

      Our willingness to consider the issue, however, does not aid Appellant.

Instead, our review leads to the inescapable conclusion that the PCRA court

did conduct an independent review of the record, as indicated in the 1925(a)

opinion.   PCRA Court Rule 1925(a) Opinion, 11/13/15, at 2.        The PCRA

court’s summaries of the procedural history and factual background are a

reflection of that. See id. at 1-4. Appellant’s suggestions that either PCRA

counsel or the PCRA court failed to conduct a thorough examination of the

record are belied by counsel’s No-Merit Letter and by the PCRA court’s

1925(a) opinion. To the extent Appellant’s second issue has been properly

preserved, it fails for lack of merit.

      In his third and fourth issues, Appellant attacks the No-Merit Letter

itself, contending it did not comply with the requirements for a no-merit

letter and failed to raise issues Appellant requested counsel to address in an

amended petition.      In essence, Appellant is presenting the third error


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asserted in his 1925(b) statement, i.e., that counsel failed to include

additional meritorious issues in an amended petition. However, as the PCRA

court properly concluded, those additional issues were waived for Appellant’s

failure to raise those claims in response to the court’s Rule 907 Notice.

PCRA Court Rule 1925(a) Opinion, 11/13/15, at 11-13.              As such, we

likewise shall not consider them. Commonwealth v. Ford, 44 A.3d 1190,

1198 (Pa. Super. 2012).6 Therefore, Appellant’s third and fourth issues do

not afford him any basis for relief.

       In his fifth issue, Appellant argues that PCRA counsel was ineffective

for failing to amend Appellant’s PCRA petition to assert any of his

constitutional claims. As this issue was not preserved in Appellant’s 1925(b)

statement, it is waived.        See Pa.R.A.P. 1925(b)(4)(vii); Hill, 16 A.3d at



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6
  Appellant’s response to the PCRA court’s Rule 907 Notice focuses on the
failure of trial counsel to call the two alibi witnesses identified above.
Appellant also refers to trial counsel’s failure “to investigate non-witness
whereabouts.” Response to Rule 907 Notice, 5/21/15, at 3. However, the
alleged “non-witness” is not identified in the response. To the extent
Appellant attempted to refer to eyewitness, Angelic Kirkman Smith, PCRA
counsel explained that the witness was unavailable at trial and that her
preliminary hearing testimony was properly admitted at trial in accordance
with Pa.R.E. 804(b)(1) and Commonwealth v. Bazemore, 614 A.2d 684,
685 (Pa. 1992) (unavailable witness’ prior recorded testimony from a
preliminary hearing is admissible at trial and will not offend the right of
confrontation, provided the defendant had counsel and a full opportunity to
cross-examine that witness at the prior proceedings). Therefore, even if
Appellant can be found to have preserved that issue in his Rule 907
response, it does not provide any basis for relief.



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494.7   Even if not waived, Appellant has not provided any clue as to the

nature of his “constitutional claims.”         While he did check the box on the

PCRA petition claiming eligibility for relief based upon a constitutional

violation, PCRA Petition, 9/18/12, at 2, the only other reference to

constitutional violations appears on page 7 of his petition where he simply

asked that the PCRA court consider violations of the 6 th and 14th

Amendments to the United States Constitution. Id. at 7. Nowhere in the

petition does Appellant provide any insight into the nature of any alleged

constitutional violations.        In his brief, Appellant mentions the Sixth

Amendment and Due Process in the context of PCRA counsel’s failure to

raise issues not preserved in Appellant’s response to the Rule 907 Notice and

trial counsel’s failure to call Appellant’s cousins as alibi witnesses, but does

not otherwise develop any constitutional arguments. See Appellant’s Brief

at 13-15; 21-24. To the extent Appellant might be referring to the inability

to confront unavailable eyewitness Angelic Kirkman Smith whose preliminary

hearing testimony was read to the jury, that issue was addressed and

dismissed by PCRA counsel, and the PCRA court found it waived because

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7
  In Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super. 2003), this
Court recognized that if, on a claim of PCRA counsel’s ineffectiveness first
raised on appeal, we determine there is a reasonable probability that, but for
PCRA counsel’s act or omission, the result of the PCRA proceeding would
have been different, we would be required to remand for a new PCRA
hearing.    No such reasonable probability exists here.            See also
Commonwealth v. Burkett, 5 A.3d 1260, 1273 (Pa. Super. 2010).



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Appellant did not raise the issue in response to the Rule 907 Notice. Finley

No-Merit Letter, 2/4/15, at 4; PCRA Court Rule 1925(a) Opinion, 11/13/15,

at 12-13.8 Further, we note that Appellant did not even mention the issue of

the unavailable witness in his PCRA petition. Rather, the only facts offered

in support of the petition related to trial counsel’s failure to “investigate,

interview or subpoena” alibi witnesses Lanea Staten and Brianna Burrell.

Id. at 3. Appellant is not entitled to any relief based on his fifth issue.

       We conclude that the PCRA court’s findings are supported by the

record and are free of legal error.            Therefore, we shall affirm the order

dismissing Appellant’s PCRA petition.          In the event of further proceedings,

the parties shall attach a copy of the PCRA Court’s Rule 1925(a) Opinion to

their filing.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2017


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8
  As reflected in n. 6, supra, to the extent Appellant may have asserted the
unavailable eyewitness issue in his Rule 907 response, the issue does not
provide any basis for relief.



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