J-S89037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JOHN JERMAINE BOYD

                             Appellant                No. 3479 EDA 2015


                 Appeal from the PCRA Order October 27, 2015
        in the Court of Common Pleas of Lehigh County Criminal Division
                        at No(s): CP-39-CR-0000773-2012

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 18, 2017

        Appellant, John Jermaine Boyd, appeals from the order dismissing his

petition for relief under the Post Conviction Relief Act 1 (“PCRA”) without a

hearing.      Appellant challenges (1) the effectiveness of his previously

appointed PCRA counsel; (2) prior counsel’s failure to file a direct appeal;

and (3) the validity of his guilty plea to two counts of third degree murder.2

We affirm.

        The procedural history of this appeal is as follows.   On January 15,

2014, Appellant pleaded guilty to two counts of third degree murder. Guilty




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2502(c).
J-S89037-16


Plea Hr’g, 1/15/14, at 3. At the guilty plea hearing, the trial court conducted

a thorough colloquy.3

      On March 4, 2014, the trial court sentenced Appellant to the

negotiated two consecutive terms of twenty to forty years’ imprisonment.

Appellant did not file post-sentence motions or a direct appeal from the

judgment of sentence.

      On December 16, 2014, Appellant timely filed a pro se PCRA petition

challenging, inter alia, the discretionary aspects and legality of his sentence

and the effectiveness of plea counsel.      The court appointed counsel to

represent Appellant.4   On July 15, 2015, PCRA counsel filed a petition to



3
  Appellant stated that he reviewed the guilty plea colloquy form with plea
counsel, initialed each page of the form, signed the form at the end
voluntarily, and understood all of the rights he was giving up by pleading
guilty. Guilty Plea Hr’g at 3-4. The court reviewed the elements of third
degree murder, and Appellant indicated that he understood them. Id. at 9-
12. Appellant stated that he understood the Commonwealth’s summary of
the evidence and admitted doing what the Commonwealth said with regard
to each victim. Id. at 14-23. Finally, Appellant admitted that he was
pleading guilty of his own free will, fully understood what he was doing by
pleading guilty, was not pleading guilty due to any threat or force, and was
satisfied with the services of his attorney. Id. at 24-25.
4
   The PCRA court initially appointed first PCRA counsel but appointed
substitute PCRA counsel after granting first PCRA counsel leave to withdraw
due to a conflict of interest. Substitute counsel (“PCRA counsel”) requested
an extension of time to file a petition due to the unavailability of the
transcripts of the guilty plea and sentencing hearings. On June 25, 2016,
the PCRA court denied the request, indicating that it previously granted
PCRA counsel leave to file an amended petition within sixty days of his
receipt of the transcripts.




                                     -2-
J-S89037-16


withdraw with an attached “no-merit” Finley5 letter stating that the issues

raised by Appellant were without merit.

       On July 27, 2015, the court issued a Pa.R.Crim.P. 907 notice of intent

to dismiss the PCRA petition without a hearing and granted substitute

counsel’s motion to withdraw. On August 24, 2015, Appellant filed a pro se

response in which he claimed, for the first time, that plea counsel

disregarded his request to file a direct appeal. Appellant did not, however,

allege PCRA counsel’s ineffectiveness.       On October 28, 2015, the court

dismissed Appellant’s PCRA petition.

       Appellant timely appealed to this Court. On December 11, 2015, the

court issued an order directing Appellant to file a Pa.R.A.P. 1925(b)

statement (“Rule 1925 statement”).         On December 27, 2015, Appellant

mailed a Rule 1925 statement to the Clerk of Courts and the PCRA judge. 6

Pa.R.A.P. 1925(b) statement, Certificate of Service. Appellant’s Rule 1925

statement did not raise guilty plea counsel’s alleged failure to honor

Appellant’s request to file a direct appeal. On January 20, 2016, the PCRA

court filed a Pa.R.A.P. 1925(a) opinion.

5
    Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
6
  The trial court docket does not contain an entry for the Pa.R.A.P. 1925(b)
statement. Nevertheless, based on the certificate of service appended to
Appellant’s Rule 1925 statement, we deem Appellant to have timely filed this
statement on December 27, 2015 pursuant to the “prisoner mailbox rule.”
See Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006)
(“a document is deemed filed when placed in the hands of prison authorities
for mailing”).



                                       -3-
J-S89037-16


      Appellant raises five issues in this appeal, which we re-order for

purposes of disposition:

         1. Whether the Court did abuse its discretion or commit
         an error of law by denying PCRA relief when [Appellant]’s
         guilty plea was rendered involuntary, unknowing and
         unintelligent by the ineffective assistance of counsel’s
         investigation, failure to follow up with requested discovery,
         case preparation and plea negotiations?

         2. Whether the Court did abuse its discretion or commit an
         error of law by denying PCRA relief when [Appellant]’s
         PCRA process was rendered fundamentally unfair and in
         violation of [Appellant]’s Constitutional Rights by PCRA
         counsel’s ineffectiveness and by the prosecutorial
         misconduct of the Philadelphia District Attorney’s Office?

         3. Whether the Court did abuse its discretion or commit an
         error of law by denying PCRA relief when [Appellant]’s
         guilty plea was involuntary, unknowing and unintelligent
         by the prosecutorial misconduct of the Philadelphia District
         Attorney’s Office’s evidence tampering, withholding of
         evidence, threats and improper tactics used during plea
         negotiations?

         4. Whether the Court did abuse its discretion or commit an
         error of law by denying PCRA relief when [Appellant]’s
         guilty plea was rendered involuntary, unknowing and
         unintelligent by a defective guilty plea colloquy and
         insufficiency of evidence?

         5. Whether the Court did abuse its discretion or commit an
         abuse of discretion by denying PCRA relief when
         [Appellant]’s guilty plea was rendered involuntary,
         unknowing and unintelligent by the availability of
         affirmative defenses unknown to the [Appellant] at the
         time of the plea?

Appellant’s Brief at 4-5.

      In his first issue on appeal, Appellant contends that plea counsel was

ineffective for failing to seek a post-sentence withdrawal of his guilty plea


                                     -4-
J-S89037-16


and disregarding his request for a direct appeal.         Id. at 23.     Second,

Appellant argues that plea counsel failed to review discovery with him and

induced his plea with a video of his children “begging and crying for him not

to go to trial.” Id. No relief is due.

      Preliminarily, we must consider whether these claims have been

preserved for appeal.       With regard to Appellant’s claim that guilty plea

counsel “failed to review requested discovery and failed to review with

[Appellant] the paucity of discovery he did receive,” Appellant’s brief

completely fails to identify the discovery that guilty plea counsel allegedly

failed to review or demonstrate how counsel’s omission prejudiced him.7

Therefore,   he   has      waived   this   issue.   See    Pa.R.A.P.    2119(a);

Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015)

(murder defendant failed to adequately brief his argument of unlawful jury

7
   Other than reciting the PCRA statute and several basic tests for
determining ineffective assistance, Appellant limits his entire substantive
argument to the following:

           Direct Appeal counsel failed to file a requested direct
         appeal.

            Plea counsel failed to file a motion to withdraw the plea
         prior to sentencing, or within [ten] days thereafter.

             Trial counsel failed to review requested discovery and
         failed to review with [Appellant] the paucity of discovery
         he did receive, prior to counsel inducing [Appellant] to plea
         with a video of [Appellant’s] minor children begging and
         crying for him not to go to trial.

Appellant’s Brief at 23.



                                         -5-
J-S89037-16


tampering by prosecution, and thus waived argument on appeal, where he

made no effort to discuss applicable law, apply the law to the facts or

develop coherent legal argument in support of his claim). Further, Appellant

failed to state in his Rule 1925 statement that (1) direct appeal counsel

failed to file a requested appeal, or (2) guilty plea counsel failed to move to

withdraw his guilty plea prior to sentencing or within ten days thereafter.

Thus, Appellant has waived these arguments.         See Commonwealth v.

Kingston, 143 A.3d 917, 922 n.4 (Pa. 2016) (PCRA petitioner waived claim

that his convictions for three counts of soliciting perjury should have merged

with convictions for three counts of soliciting to hinder apprehension or

prosecution where, among other waivers, he failed to raise this issue in his

Rule 1925 statement); Commonwealth v. Bond, 985 A.2d 810, 823 (Pa.

2009) (capital defendant waived claim that he was entitled to a new penalty

phase hearing because trial court required him to be shackled during original

hearing, where defendant failed to include that claim in his Rule 1925

statement).

      In his second issue, Appellant accuses PCRA counsel of ineffective

assistance during PCRA proceedings.      Appellant waived this argument by

failing to assert it in his Rule 1925 statement.    See Commonwealth v.

Henkel, 90 A.3d 16, 29 (Pa. Super. 2014) (en banc) (claims of ineffective

assistance of PCRA counsel may not be raised for the first time on appeal;

such claims must be raised in response to Pa.R.Crim.P. 907 notice of



                                     -6-
J-S89037-16


dismissal or in serial PCRA petition).   In any event, having reviewed the

record, we conclude that PCRA counsel’s Finley letter was comprehensive

and correct, and therefore Appellant’s claim of ineffectiveness is devoid of

merit.

     In his remaining claims on appeal, Appellant appears to assert

misconduct by the district attorney, defects in the guilty plea colloquy,

inadequate factual bases for his plea and the existence of affirmative

defenses to the charges. He fails, however, to support these assertions with

meaningful discussion of the law or facts of this case.    Therefore, these

claims are waived. See Pa.R.A.P. 2119(a); Freeman, 128 A.3d at 1249.

     For these reasons, we affirm the dismissal of Appellant’s PCRA petition

without a hearing.

     Order affirmed.

     Judge Moulton joins the Memorandum.

     Judge Shogan Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2017




                                   -7-
