J-S22018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANK BAILEY III                           :
                                               :
                       Appellant               :   No. 1202 MDA 2019

              Appeal from the PCRA Order Entered June 26, 2019
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0000296-2016


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 08, 2020

        Frank Bailey III (Appellant) appeals pro se from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        On September 27, 2016, a jury convicted Appellant of possession of

firearm prohibited.1       On November 23, 2016, the trial court sentenced

Appellant to 5 to 10 years of incarceration.         Appellant did not file post-

sentence motions, but appealed to this Court, which affirmed his judgment of

sentence on May 30, 2018. See Commonwealth v. Bailey, 117 MDA 2017

(Pa. Super. May 30, 2018) (unpublished memorandum). Appellant did not

seek review with the Pennsylvania Supreme Court.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6105(a)(1).
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       On February 19, 2019, Appellant filed a pro se PCRA petition raising two

claims of ineffective assistance of counsel. See Motion for Post Conviction

Collateral Relief, 2/19/19, at 4.         On February 27, 2019, the PCRA court

appointed PCRA Counsel for Appellant.            Upon reviewing the record, PCRA

Counsel, on March 20, 2019, filed a motion to withdraw and a 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).

       The PCRA court issued notice of its intent to dismiss Appellant’s petition

without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal

Procedure. The notice stated: “If you wish to file an amended petition or to

otherwise respond to this Notice, you must do so within twenty (20) days of

the date of this Notice.”        Notice Pursuant to Pa.R.Crim.P. 907, 3/21/19.

Thereafter, Appellant filed two motions for extensions of time, which the PCRA

court granted, giving Appellant until June 4, 2019 to file a response. On June

11, 2019, Appellant filed an “Amended Petition for Post-Conviction Relief,”

raising an additional claim of ineffective assistance of counsel. That same day,

the PCRA court issued an order granting PCRA Counsel’s motion to withdraw.

On June 26, 2019, the PCRA court dismissed Appellant’s petition.2 Appellant


____________________________________________


2 On June 11, 2019, simultaneously with Appellant’s filing of his “Amended
Petition for Post-Conviction Relief,” the PCRA court issued an order dismissing
the PCRA petition. However, upon receiving Appellant’s new filing, the PCRA
court “cancelled” its June 11, 2019 order dismissing Appellant’s PCRA petition
in order to review the additional claim raised by Appellant. See PCRA Court
Order, 6/26/19.

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timely appealed to this Court. Both Appellant and the PCRA court complied

with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Appellant presents five issues for our review:

      I.     DID [THE] PCRA COURT ERR IN DEPRIVING APPELLANT
             [OF] THE RIGHT TO BE HEARD IN VIOLATION OF
             FUNDAMENTAL FAIRNESS OF DUE PROCESS TO THE 14TH
             AMENDMENT TO THE U.S. CONSTITUTION[?]

      II.    DID [THE] PCRA COURT DEPRIVE APPELLANT [OF] THE
             RIGHT TO THE MANDATORY NOTICE OF INTENT TO
             DISMISS AND OBJECT IN ACCORDS WITH RULE 907 IN
             VIOLATION OF FUNDAMENTAL FAIRNESS OF DUE PROCESS
             TO THE 14TH AMENDMENT TO THE U.S. CONSTITUTION[?]

      III.   DID [THE] PCRA COURT ERR IN DEPRIVING APPELLANT
             [OF] THE RIGHT TO BE HEARD ON HIS ISSUE THAT DIRECT
             APPEAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE
             A PETITION FOR ALLOWANCE OF APPEAL TO THE SUPREME
             COURT[?]

      IV.    DID [THE] PCRA COURT ERR IN DEPRIVING APPELLANT
             [OF] THE RIGHT TO BE HEARD ON HIS ISSUE THAT TRIAL
             COUNSEL WAS INEFFECTIVE FOR FAILURE TO OFFER TO
             STIPULATE TO THE EXISTENCE OF A PRIOR CRIMINAL
             CONVICTION RATHER THAN ALLOWING THE CLERK OF
             COURTS TO PROFFER PREJUDICIAL TESTIMONY BEFORE
             THE JURY[?]

      V.     DID [THE] PCRA COURT ERR IN DEPRIVING APPELLANT
             [OF] THE RIGHT TO BE HEARD ON HIS ISSUE THAT TRIAL
             COUNSEL WAS INEFFECTIVE FOR THE IMPEACHMENT OF
             DEFENSE WITNESS KATHERINE VILLANUEVA[?]

Appellant’s Brief at 4.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and


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citations omitted).   “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, [that] his conviction or

sentence resulted from one or more of the enumerated errors in 42

Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

     Appellant’s first issue concerns the PCRA court’s failure to address the

merits of the claims in his “Amended Petition for Post-Conviction Relief.”

Appellant’s entire argument reads: “Appellant contends that the PCRA court

did grant leave to amend his PCRA petition, but did not address any of the

amended issues on the merits.” Appellant’s Brief at 7.

     The deficiencies in Appellant’s argument preclude relief. Rule 2119 of

the Pennsylvania Rules of Appellate Procedure mandates:

     (a) General rule. The argument shall be divided into as many
     parts as there are questions to be argued; and shall have at the
     head of each part—in distinctive type or in type distinctively
     displayed—the particular point treated therein, followed by such
     discussion and citation of authorities as are deemed pertinent.

     (b) Citations of authorities. Citations of authorities in briefs
     shall be in accordance with Pa.R.A.P. 126 governing citations of
     authorities.

     (c) Reference to record. If reference is made to the pleadings,
     evidence, charge, opinion or order, or any other matter appearing
     in the record, the argument must set forth, in immediate
     connection therewith, or in a footnote thereto, a reference to the
     place in the record where the matter referred to appears (see
     Pa.R.A.P. 2132).

     (d) Synopsis of evidence. When the finding of, or the refusal
     to find, a fact is argued, the argument must contain a synopsis of
     all the evidence on the point, with a reference to the place in the
     record where the evidence may be found.


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      (e) Statement of place of raising or preservation of issues.
      Where under the applicable law an issue is not reviewable on
      appeal unless raised or preserved below, the argument must set
      forth, in immediate connection therewith or in a footnote thereto,
      either a specific cross-reference to the page or pages of the
      statement of the case which set forth the information relating
      thereto as required by Pa.R.A.P. 2117(c), or substantially the
      same information.

Pa.R.A.P. 2119(a)-(e).

      Our Supreme Court has opined:

      The briefing requirements scrupulously delineated in our
      appellate rules are not mere trifling matters of stylistic
      preference; rather, they represent a studied determination by our
      Court and its rules committee of the most efficacious manner by
      which appellate review may be conducted so that a litigant’s right
      to judicial review . . . may be properly exercised. Thus, we
      reiterate that compliance with these rules by appellate advocates
      . . . is mandatory.

Commonwealth v. Perez, 93 A.3d 829, 837-38 (Pa. 2014).

      “[W]hile a person convicted of a crime is guaranteed the right to . . .

appeal under Article V, Section 9, of the Pennsylvania Constitution, where an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful fashion

capable of review, that claim is waived.” Commonwealth v. Johnson, 985

A.2d 915, 924 (Pa. 2009) (citations omitted). See also Pa.R.A.P. 2101

(“Briefs and reproduced records shall conform in all material respects with the

requirements of these rules as nearly as the circumstances of the particular

case will admit, otherwise they may be suppressed, and, if the defects are in

the brief or reproduced record of the appellant and are substantial, the appeal

or other matter may be quashed or dismissed.”); see also Commonwealth


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v. Franklin, 823 A.2d 906, 910 (Pa. Super. 2003) (“These rules ensure that

a brief serves its purpose-to permit the appellate court to address the

assignments on their merits.”) (footnote omitted). Our Supreme Court has

long held that it is not this Court’s obligation to formulate arguments on behalf

of an appellant. Johnson, 985 A.2d at 924.

      Upon review of Appellant’s first issue, we find errors and omissions

which contravene the Rules of Appellate Procedure, and more significantly,

deprive us of a basis upon which to review the issue. Commonwealth v.

Hakala, 900 A.2d 404, 406 (Pa. Super. 2006). Accordingly, Appellant’s first

issue is waived.

      In his second issue, Appellant asserts that after filing his “Amended

Petition for Post-Conviction Relief,” the PCRA court was required to issue a

second Rule 907 notice before dismissing his petition without a hearing. We

disagree.

      Rule 907 provides in relevant part:

      Except as provided in Rule 909 for death penalty cases,

      (1)   the judge shall promptly review the petition, any answer by
            the attorney for the Commonwealth, and other matters of
            record relating to the defendant’s claim(s). If the judge is
            satisfied from this review that there are no genuine issues
            concerning any material fact and that the defendant is not
            entitled to post-conviction collateral relief, and no purpose
            would be served by any further proceedings, the judge shall
            give notice to the parties of the intention to dismiss the
            petition and shall state in the notice the reasons for the
            dismissal. The defendant may respond to the proposed
            dismissal within 20 days of the date of the notice. The judge
            thereafter shall order the petition dismissed, grant leave to

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               file an amended petition, or direct that the proceedings
               continue.

Pa.R.Crim.P. 907(1).

        Here, after Appellant filed his pro se petition, the court appointed PCRA

Counsel, who filed a Turner/Finley no-merit letter.               Upon reviewing

Appellant’s petition and PCRA Counsel’s no-merit letter, the PCRA court issued

Rule 907 notice, explaining Appellant’s right to file a response within 20 days

of the notice.     See Notice Pursuant to Pa.R.Crim.P. 907, 3/21/19.         After

requesting several extensions of time, the court granted Appellant until June

4, 2019 to file a response; Appellant filed an “Amended Petition for Post-

Conviction Relief” on June 11, 2019.

        Responses to a notice of dismissal and amended petitions are separate

and distinct pleadings. See, e.g., Pa.R.Crim.P. 907(1); Commonwealth v.

Williams, 732 A.2d 1167 (Pa. 1999) (Batson claim proposed for first time in

a response to pre-dismissal notice did not require PCRA court to address the

issue    and    weighed   in   favor   of   disallowing   an   amended   petition);

Commonwealth v. Paddy, 15 A.3d 431, 440, 471 (Pa. 2011) (treating

response to a notice of dismissal as objections and not a new amended petition

or serial petition); Commonwealth v. D’Amato, 856 A.2d 806, 825 n.19

(Pa. 2004); Commonwealth v. Derrickson, 923 A.2d 466, 469 (Pa. Super.

2007).

        Rule 907(1), which provides for the disposition of a PCRA petition

without a hearing, and permits the optional filing of a response, states that a

PCRA court may dismiss a petition, grant leave to file an amended petition, or

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direct that proceedings continue. The Rule does not treat a response to a

notice of dismissal as either an amended petition or a serial petition.

        In examining whether additional claims of ineffective assistance of

counsel should be treated as responsive pleadings to Rule 907 notice or

subsequent or amended petitions, we stated:

        a claim of PCRA counsel ineffectiveness set forth for the first time
        in a Rule 907 response to a notice of intent to dismiss during a
        petitioner’s first PCRA proceeding is not a second or serial petition,
        nor is it an amended petition. Rather, the claim is more
        properly viewed as an objection to dismissal.

Commonwealth v. Rykard, 55 A.3d 1177, 1187 (Pa. Super. 2012) (citing

Paddy, 15 A.3d at 471) (emphasis added).

        Consistent with Rykard, we conclude that Appellant’s response to the

PCRA court’s notice of intent to dismiss is not a second or subsequent petition,

nor is it an amended petition.          Accordingly, Appellant’s response did not

require a separate Rule 907 notice prior to the PCRA court dismissing

Appellant’s petition. Appellant’s second issue lacks merit.

        Appellant addresses his third, fourth and fifth issues together. All three

issues claim ineffective assistance of counsel. Appellant asserts: 1) appellate

counsel3 was ineffective for failing to file a petition for allowance of appeal to

the Pennsylvania Supreme Court following this Court’s affirmance of his

judgment of sentence; 2) trial counsel4 was ineffective for failing to stipulate

____________________________________________


3   Diana C. Kelleher, Esquire represented Appellant on direct appeal.

4   Douglas Conrad, Esquire represented Appellant at trial.

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to Appellant’s prior criminal convictions; and 3) trial counsel was ineffective

for presenting the testimony of Catherine Villanueva at trial.

      In deciding ineffective assistance of counsel claims, we presume that

counsel rendered effective assistance. Commonwealth v. Bomar, 104 A.3d

1179, 1188 (Pa. 2014). To overcome that presumption, the petitioner must

establish: “(1) the underlying claim has arguable merit; (2) no reasonable

basis existed for counsel’s action or failure to act; and (3) the petitioner

suffered prejudice as a result of counsel’s error, with prejudice measured by

whether there is a reasonable probability that the result of the proceeding

would have been different.” Id. (citation omitted). To demonstrate prejudice

in an ineffective assistance of counsel claim, “the petitioner must show that

there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Commonwealth v.

King, 57 A.3d 607, 613 (Pa. 2012). If the petitioner fails to prove any of

these prongs, the claim is subject to dismissal. Bomar, 104 A.3d at 1188.

      With all three ineffectiveness claims, Appellant fails to develop the three

prongs to prove counsel’s ineffectiveness.          Appellant cites general legal

authority regarding post-conviction relief, but does not cite any pertinent legal

authority relevant to his particular claim, or provide any discussion as to how

counsel’s actions lacked a reasonable basis.         Because Appellant has not

developed    these   issues   for   our   review,    they   are   waived.    See

Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (stating that




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“appellant’s failure to develop any argument at all concerning the second and

third prongs of the ineffectiveness test ... results in waiver”).

      To the extent that Appellant challenges the PCRA court’s denial of his

petition without an evidentiary hearing, this Court has explained:

      [T]he right to an evidentiary hearing on a post-conviction petition
      is not absolute. It is within the PCRA court’s discretion to decline
      to hold a hearing if the petitioner’s claim is patently frivolous and
      has no support either in the record or other evidence. It is the
      responsibility of the reviewing court on appeal to examine each
      issue raised in the PCRA petition in light of the record certified
      before it in order to determine if the PCRA court erred in its
      determination that there were no genuine issues of material fact
      in controversy and in denying relief without conducting an
      evidentiary hearing.

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (citations

omitted). If the PCRA court “can determine without an evidentiary hearing

that one of the prongs cannot be met, then no purpose would be advanced by

holding an evidentiary hearing.” Commonwealth v. Jones, 942 A.2d 903,

906 (Pa. Super. 2008).

      Here, before dismissing Appellant’s petition, the PCRA court reviewed

the applicable law and PCRA counsel’s no-merit letter, concluding that

Appellant’s claims “do not have support in the record and do not entitle

[Appellant] to relief.” PCRA Court Opinion, 9/12/19, at 7. Although the PCRA

court’s analysis is terse, Appellant has not presented any argument to refute

the court’s conclusions. See Commonwealth v. Watkins, 108 A.3d 692,

735 (Pa. 2014) (concluding that if an appellant makes no attempt to identify

specifically the “legitimate material factual disputes” that he alleges warranted


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a hearing, as well as develop relevant argument, his “claim of PCRA court

procedural error cannot succeed”); see also Commonwealth v. Jones, 912

A.2d 268, 290 (Pa. 2006) (rejecting appellant’s assertion that his other claims

warranted a hearing when he failed both to identify and argue with specificity

what factual issues remained in contention).

      Based on the foregoing, we cannot conclude that the PCRA court's denial

of an evidentiary hearing was an abuse of discretion. See Watkins, supra.

Accordingly, Appellant is not entitled to relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/08/2020




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