J-S80030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSHUA J. STOKES                           :
                                               :
                       Appellant               :   No. 1018 EDA 2018

                  Appeal from the Order Entered April 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000720-2011

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                            FILED FEBRUARY 22, 2019

       Joshua J. Stokes appeals pro se from the April 19, 2018 order that

dismissed his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

       In 2015, Appellant was convicted of first-degree murder and sentenced

to life imprisonment for killing Stephanie Clory by stabbing her nineteen times.

This Court affirmed his judgment of sentence and our Supreme Court denied


____________________________________________


1 Appellant purported to appeal from the March 15, 2018 notice of intent to
dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907. However,
pursuant to Pa.R.A.P. 905, we treat his appeal as having been filed from the
subsequent order dismissing the petition, and have amended the caption
accordingly. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof.”);
Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.3 (Pa.Super. 2012)
(applying Pa.R.A.P. 905(a)(5) to appeal from 907 notice when petition was
dismissed subsequent to the notice of appeal).
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his petition for allowance of appeal. Commonwealth v. Stokes, 169 A.3d

1205 (Pa.Super. 2017), appeal denied, 172 A.3d 584 (Pa. 2017).

      Appellant filed a timely pro se PCRA petition raising one claim of

ineffective assistance of trial counsel, to wit, that counsel scared him into

testifying by advising him that otherwise he would be found guilty.        PCRA

Petition, 10/17/17, at 4. Counsel was appointed who, on March 12, 2018,

filed a petition to withdraw as counsel 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

promptly issued to Appellant himself notice of its intent to dismiss Appellant’s

petition as lacking merit pursuant to Pa.R.Crim.P. 907.            Rather than

responding to the notice, Appellant filed a premature appeal, which was

subsequently rendered timely upon the PCRA court’s grant of counsel’s

petition to withdraw and dismissal of the petition by opinion and order of April

19, 2018.

      On appeal, Appellant raises the following issues: (1) his sentence is

invalid because the trial judge did not sign the sentencing order, Appellant’s

brief at 1-2; (2) PCRA counsel’s withdrawal was invalid because the PCRA

court did not sign the order allowing withdrawal, id. at 3; (3) trial counsel was

ineffective in not obtaining all of Appellant’s mental health records, and PCRA

counsel was ineffective in failing to raise the issue, id. at 4-5; and (4) trial




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counsel was ineffective in not contending that the killing was in the heat of

passion rather than first-degree murder, id. at 10.

      We begin with the legal principles relevant to our review. “Our standard

of review for issues arising from the denial of PCRA relief is well-settled. We

must determine whether the PCRA court’s ruling is supported by the record

and free of legal error.” Commonwealth v. Johnson, 179 A.3d 1153, 1156

(Pa.Super. 2018) (internal quotation marks omitted).       Further, “[i]t is an

appellant’s burden to persuade us that the PCRA court erred and that relief is

due.” Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).

      Appellant’s assertions that trial counsel was ineffective in ignoring his

mental health history and failing to pursue a heat-of-passion defense were not

raised in Appellant’s PCRA petition, and he did not seek leave to amend the

petition to raise the new claims. Accordingly, those issues are not preserved

for appeal. See Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa.Super.

2012) (holding no relief was due on claim not included in petition because the

PCRA court was required to address only claims raised in the petition and the

petitioner did not request leave to amend).

      Further, as Appellant did not contend that PCRA counsel was ineffective

in failing to argue trial counsel’s ineffectiveness in a response to the PCRA

court’s Rule 907 notice, the challenge to PCRA counsel’s effectiveness is

waived. See Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa.Super. 2014)

(concluding petitioner waived claim that PCRA counsel was ineffective in failing


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to raise trial counsel’s ineffectiveness by not asserting it in response to the

notice of intent to dismiss).

      Appellant’s remaining arguments are belied by the record. Not only did

the trial court announce Appellant’s sentence in open court following the

verdict, see N.T. Trial, 12/11/15, at 87, but the certified record contains a

written sentencing order signed by the trial judge. See Order of Sentence,

12/11/15. Hence, there is no merit to Appellant’s contention that he is being

illegally detained based upon the absence of a valid sentencing order. See

Joseph v. Glunt, 96 A.3d 365, 372 (Pa.Super. 2014) (“[A] record of the valid

imposition of a sentence [is] sufficient authority to maintain a prisoner's

detention notwithstanding the absence of a written sentencing order[.]”).

Moreover, while the PCRA court did not sign the proposed order attached to

counsel’s petition to withdraw, the certified record establishes that it entered

a signed order granting counsel’s withdrawal. See Order, 4/19/18.

      As Appellant has presented this Court with no preserved, meritorious

argument that the PCRA court erred or abused its discretion in dismissing his

PCRA petition, no relief is due.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




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