J-S68032-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  Appellee                 :
                                           :
          v.                               :
                                           :
HAROLD V. HOSKINS,                         :
                                           :
                  Appellant                :   No. 1643 MDA 2016

                     Appeal from the PCRA Order June 6, 2014
                in the Court of Common Pleas of Lycoming County,
               Criminal Division, at No(s): CP-41-CR-0001185-2005

BEFORE:        LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED NOVEMBER 21, 2017

      Harold V. Hoskins (Appellant) appeals from the June 6, 2014 order

that dismissed his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.         Also before us are two motions to

remand filed by Appellant.       We deny Appellant’s motions and affirm the

order dismissing his petition.

      On Appellant’s direct appeal, this Court summarized the underlying

facts of the case as follows.

      On July 8, 2005, Appellant was drinking and playing poker at the
      home of James Drummond and his paramour, Linda Bower,
      along with Donnie Evans.        Appellant left the game after he
      became annoyed when he lost all of his money and no one would
      give him any more. He returned to the residence, waving a gun
      and stating it was not an f---ing joke. Appellant pointed the gun
      at Evans’ head and pulled the trigger twice; no shots were fired,
      but the sound of the gun mechanism clicks [were] heard. Bower
      later testified that Appellant took a bullet from the .38 revolver


*Retired Senior Judge assigned to the Superior Court.
J-S68032-17


     and laid it on the table, then immediately put the bullet back into
     the gun, and pulled the trigger while Evans and Drummond were
     trying to take it from him.       Drummond later testified that
     Appellant pulled the trigger a third time while the gun was
     pointed at his, Drummond’s, stomach. Appellant pulled the
     trigger a fourth time in an unknown direction, Evans and
     Drummond wrestled the gun away, and police arrived.

           Appellant was charged with various offenses, including two
     counts of attempted homicide, each against Evans and
     Drummond. A jury trial was conducted on February 2 and 5,
     2007, at which Appellant testified in his defense. He was found
     guilty of all charges.3 On April 7, 2011, the court imposed an
     aggregate     sentence     of   twenty-seven   to   sixty  years’
     imprisonment.
           ______
           3 Following trial, Appellant absconded and a bench warrant

           was issued. He was apprehended four years later on
           March 23, 2011. Because the trial judge had retired
           during the interim, sentencing was assigned to another
           judge.

Commonwealth v. Hoskins, 48 A.3d 485 (Pa. Super. 2012) (unpublished

memorandum at 1-3) (citations, quotation marks, and some footnotes

omitted). This Court affirmed Appellant’s judgment of sentence on April 25,

2012, id., and our Supreme Court denied Appellant’s petition for allowance

of appeal on September 19, 2012. Commonwealth v. Hoskins, 53 A.3d

756 (Pa. 2012).

     Appellant pro se timely filed a PCRA petition on November 21, 2012.

Therein, Appellant “alleged after discovered evidence; specifically that

Donnie Evans and James Drummond had now changed their testimony that

[Appellant] pointed a gun at them and pulled the trigger.”       PCRA Court

Opinion, 3/21/2014, at 2. The PCRA court appointed Jerry Lynch, Esquire,


                                    -2-
J-S68032-17


as Appellant’s counsel; counsel filed an amended petition on July 9, 2013;

and the PCRA court scheduled a hearing. Before the hearing, on November

19, 2013, Attorney Lynch filed a petition to withdraw and no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

Therein, Attorney Lynch represented as follows.

            [Appellant’s] PCRA [petition] asserted that [Appellant] is
     entitled to relief in light of after-discovered evidence. The
     evidence [Appellant] relies upon is two [] notarized affidavits.
     [Appellant] has presented that the affiants, James Drummond
     and Donnie Evans, have recanted their prior testimony.

            Donnie Evans, in his affidavit, states that he would be
     willing to testify that “at no time did I see [Appellant] point the
     gun in anyone’s direction.” This is actually not a recantation, Mr.
     Evans did testify to that at trial.

           QUESTION: Okay. And I believe your testimony
           was, you don’t recall him pointing that gun at
           anyone in that room?

           ANSWER: That’s correct.

     N.T., [2/2/2007, at 99]. As such, counsel does not believe that
     Mr. Evan[s’s] testimony would be any more helpful to
     [Appellant’s] case now than it was at trial.

           Counsel contacted James Drummond after several
     attempts. Mr. Drummond has explained that since the trial he
     began to suffer from diabetes and it [a]ffects his memory. When
     asked why he would have recanted his prior testimony, he said,
     “He couldn’t remember, maybe that’s why” and that “He didn’t
     remember anything about the event or signing the affidavit.” In
     light of Mr. Drummond’s failing memory concerning the matter
     and the inherent unreliability of recantation testimony[,] counsel
     does not believe that Mr. Drummond’s testimony would have
     changed the outcome of the trial had it been introduced.


                                    -3-
J-S68032-17



 Turner/Finley “No Merit” Letter, 11/19/2013, at 2-3 (pages unnumbered).

      Counsel’s Turner/Finley letter also noted that Appellant wished to

raise a new issue “concerning whether a .38 handgun was capable of firing a

.32 caliber bullet.”   Id. at 3.   The PCRA court ordered counsel to file an

amended petition raising the new issue or to file another Turner/Finley

letter. Shortly thereafter, Appellant pro se sent a letter to the PCRA court

noting four complaints about the way that his trial counsel dealt with issues

related to the handgun.     By order of December 30, 2013, the PCRA court

filed Appellant’s letter and directed a copy to be forwarded to Attorney Lynch

pursuant to Pa.R.Crim.P. 576(A)(4).

      On January 13, 2014, counsel filed a new petition to withdraw, opining

therein that trial counsel was not ineffective in failing to pursue the

questions of the Commonwealth’s firearms witness that Appellant claims he

should have asked. Petition to Withdraw, 1/13/2014, at ¶ 6. By opinion and

order of March 21, 2014, the PCRA court thoroughly examined the new

firearms issue and agreed with Attorney Lynch that it lacked merit and no

hearing was necessary.       Accordingly, the PCRA court granted counsel’s

petition to withdraw and issued notice pursuant to Pa.R.Crim.P. 907 of its

intent to dismiss Appellant’s petition without a hearing. Appellant responded

to the notice, reiterating both his original claims regarding the witnesses’

recantations of their trial testimony and his claims regarding trial counsel’s



                                      -4-
J-S68032-17


questioning about the handgun. Reply to Notice to Dismiss, 4/7/2014, at 1-

2.1 The PCRA court, noting the lack of new issues in Appellant’s response,

dismissed the petition by order filed on June 6, 2014.

      Appellant timely filed a notice of appeal on June 26, 2014. The PCRA

court ordered Appellant to file a concise statement of errors raised on

appeal, and Appellant timely complied on July 17, 2014, listing the same

issues raised in his response to the 907 notice.

      No further activity appears on the docket until June 8, 2015, when the

clerk of courts filed an order of our Supreme Court denying a petition for

writ of mandamus that Appellant filed in that court seeking to compel the

PCRA court to forward his notice of appeal to this Court.   Another lengthy

gap is followed by an order of September 30, 2016, directing the clerk of

courts to docket the notice of appeal as having been filed on June 26, 2014.

By order of November 7, 2016, the PCRA court adopted its March 21, 2014

order as its opinion.



1 Appellant’s response to the 907 notice is contained in the certified record
but is not listed on the docket or time-stamped with a filing date. As it is
dated April 7, 2014, which is within 20 days of the issuance of the 907
notice, we see no reason not to deem it timely-filed pursuant to the prisoner
mailbox rule. Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997)
(explaining documents filed by incarcerated individuals acting pro se are
deemed to have been filed on the day that they were deposited with the
prison authorities or placed in the prison mailbox); Commonwealth v.
Cooper, 710 A.2d 76, 79 (Pa. Super. 1998) (holding plausible timeliness
under the rule may be accepted if not challenged by the opposing party).



                                     -5-
J-S68032-17


      Proceeding pro se in this Court, Appellant sought and was granted an

extension of time to file his brief.    On March 2, 2017, private counsel

entered his appearance on Appellant’s behalf and requested, and was

granted, another extension of time to file a brief.     Instead, on April 24,

2017, counsel filed a motion for remand, seeking to return to the PCRA court

to raise a new issue: that PCRA counsel was ineffective in failing to argue

that trial counsel was ineffective for not challenging the discretionary

aspects of Appellant’s sentence. Motion for Remand, 4/24/2017, at 7 (pages

unnumbered).     On May 11, 2017, counsel filed a supplemental motion,

alleging additional hearsay about what witnesses would say in support of the

new claim.    Supplemental Motion for Remand, 5/11/2017, at 1-2 (pages

unnumbered). By order of May 12, 2017, this Court deferred the motions to

the panel assigned for disposition of the appeal and ordered a new briefing

schedule. After receiving two extensions, counsel filed a brief in which he

abandoned all of the claims preserved in Appellant’s 1925(b) statement and

instead argued his remand motions.        Appellant’s Brief at 15-36.    The

Commonwealth filed its brief, and the appeal is ready for disposition.

      The claim of ineffective assistance of PCRA counsel Appellant wishes to

litigate on remand was never raised in the PCRA court. He did not raise it in

response to either of Attorney Lynch’s Turner/Finley letters, nor in

response to the PCRA court’s 907 notice. Based upon this Court’s precedent,

we agree with the Commonwealth that the claim cannot be litigated in any


                                    -6-
J-S68032-17


court as part of the pending PCRA petition; it must be raised in a serial

petition.

        In Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012), Ford

first raised a claim of his PCRA counsel’s ineffectiveness in his 1925(b)

statement. The claim was based upon the record, did not require additional

fact-finding, and was addressed by the PCRA court in its opinion.

Nonetheless, this Court, after a review of precedential decisions of our

Supreme Court, declined to address the issue on the basis that “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.” Id. at 1200. This Court expressly held that “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.” Id. at

1201.    Appellant’s brief fails to acknowledge Ford at all, let alone explain

why we are not bound by its holding that is directly contrary to his request

to remand to litigate a claim of PCRA counsel’s ineffectiveness that was

raised for the first time after he appealed the dismissal of the underlying

PCRA petition.

        Appellant’s position was also rejected in Commonwealth v. Henkel,

90 A.3d 16 (Pa. Super. 2014) (en banc), in which this Court sitting en banc

reaffirmed Ford’s holding and denied Henkel’s petition to remand to develop

in the PCRA court his claims of PCRA counsel’s ineffectiveness that were


                                     -7-
J-S68032-17


raised for the first time after the appeal was taken.          This Court was

compelled to do so based upon controlling precedent, although “cognizant

that failing to address PCRA counsel ineffectiveness claims raised for the first

time on appeal renders any effective enforcement of the rule-based right to

effective PCRA counsel difficult at the state level.” Id. at 29. In a footnote,

this Court offered some possible solutions to the problem, such as instituting

a post-PCRA motion practice similar to post-sentence motions.        Id. at 29

n.4. Appellant in his brief suggests another solution: remand for the filing of

a supplemental petition. Appellant’s Brief at 18. However, as noted above,

the Henkel Court denied the petition for remand that was filed in that case

rather than accepting remand as a viable solution.2

      In Commonwealth v. Smith, 121 A.3d 1049 (Pa. Super. 2015), a

case cited by neither Appellant nor the Commonwealth, this Court explicitly

2 The Commonwealth aptly noted that “to permit remand would raise a
series of other issues.” Commonwealth’s Brief at 7.

      For example, how would the [C]ourt determine whether remand
      to raise new issues is appropriate? Would the [C]ourt remand
      every case where new counsel or a pro se defendant alleged
      ineffectiveness of PCRA counsel? Would the [C]ourt require the
      parties to brief the new issue to determine whether the claim
      was substantial or not? If the parties briefed the issues would
      the [C]ourt consider facts not of record to make the
      determination of whether there is a substantial claim presented?

Id. If a new procedure is instituted to address this situation, it must be
done thoughtfully and deliberately rather than on an ad hoc basis. As noted
in Henkel, this Court “is without authority to promulgate procedural rules.”
90 A.3d at 29 n.4. That power lies with our Supreme Court.



                                     -8-
J-S68032-17


rejected Smith’s argument “that this Court must remand his case to the

PCRA court with instructions to review and adjudicate [Smith’s] claims of

PCRA counsel’s ineffectiveness which [Smith] raised for the first time in his

Rule 1925(b) statement.”    Id. at 1053.   The Court explained that, as the

nature of PCRA proceedings are more civil than criminal, the petitioner has

the burden to move the case forward, to plead and prove claims, and to

preserve those claims.   Id. at 1054-55.    Because Smith did not raise his

claim of PCRA counsel’s ineffectiveness in response to the PCRA court’s Rule

907 notice, he waived his right “to complain about PCRA counsel’s

stewardship” once he filed his notice of appeal. Id. at 1055.

     In the instant case, Appellant did respond to both PCRA counsel’s

Turner/Finley letter and to the PCRA court’s Rule 907 notice. However, in

neither response, and at no time prior to filing his notice of appeal, did he

make the claim that he now seeks to pursue: that PCRA counsel should have

claimed that trial counsel was ineffective in failing to challenge the

discretionary aspects of Appellant’s sentence.    Under Smith, Appellant’s

request for remand must be denied.

     Appellant attempts to circumvent these principles by invoking an

exception recognized in Henkel. In that case, this Court expressly indicated

that its decision did not impact cases in which the PCRA court failed to

appoint counsel as required by the rules, or in which “the appointment of

counsel is a mere formality and counsel fails to meaningfully represent his


                                     -9-
J-S68032-17


client during critical stages of the PCRA proceedings, including failing to file

either an amended petition or a Turner/Finley no-merit letter.”        Henkel,

90 A.3d at 30 n.6. Appellant argues that he is entitled to proceed with his

claim about PCRA counsel because “the way [Attorney Lynch] functioned

constructively denied [Appellant] the meaningful participation in the PCRA

proceedings he was due….” Appellant’s Brief at 18-19.

      This argument is not supported by the record. Attorney Lynch filed an

amended PCRA petition; filed a Turner/Finley letter explaining why those

issues lacked merit and raising a new issue Appellant wished to raise; and

filed another Turner/Finley letter explaining why the additional issue lacked

merit.   Attorney Lynch’s performance was not in the same realm as the

nonfeasance of counsel in cases holding that the PCRA petitioner was

effectively denied counsel. See, e.g., Commonwealth v. Willis, 29 A.3d

393, 397 (Pa. Super. 2011) (“Attorney Elgart petitioned to withdraw prior to

each of [Willis’s] PCRA hearings, yet the court chose not to rule on Attorney

Elgart’s petitions before conducting those proceedings.          Consequently,

Attorney Elgart was duty-bound to act as [Willis’s] counsel; however, the

transcripts of the PCRA hearings are replete with evidence that he was not

advocating on [Willis’s] behalf. Instead, it appears that he was attempting

to prove that [Willis’s] claims were meritless, presumably to persuade the

court to grant his request to withdraw.”); Commonwealth v. Wiley, 966

A.2d 1153, 1158–59 (Pa. Super. 2009) (“The condition of the record and


                                     - 10 -
J-S68032-17


accompanying procedural history of this case are deplorable.           It appears,

upon a review of the certified record provided to this Court, that [Wiley] was

chronically unrepresented by appointed counsel, there was never an

amended counseled PCRA petition filed, and [Wiley], apparently forced to act

on his own, took appeals from orders that were unappealable and submitted

defective briefs and other filings that were all handwritten and all essentially

incomprehensible. …         Nevertheless, at no point was a counseled PCRA

petition ever filed.”).

      Our Supreme Court has recognized that, “[w]hile difficult, the filing of

a subsequent timely PCRA petition is possible, and in situations where an

exception pursuant to § 9545(b)(1)(i-iii) can be established a second

petition   filed   beyond    the   one-year    time   bar   may   be    pursued.”

Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011).                      If

Appellant wishes to pursue his claim concerning Attorney Lynch’s alleged

ineffectiveness, that is the mechanism he must use unless and until our

Supreme Court provides otherwise.




                                      - 11 -
J-S68032-17


     Motions for remand denied. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 11/21/2017




                                 - 12 -
