J. S47045/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
ERIC R. WILLIAMS,                         :         No. 310 EDA 2017
                                          :
                         Appellant        :


                 Appeal from the PCRA Order, January 4, 2017,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0001773-2014


BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 18, 2017

        Eric R. Williams appeals, pro se, from the order of January 4, 2017,

dismissing his PCRA1 petition without a hearing. We affirm.

        The PCRA court has set forth the factual and procedural history of this

case as follows:

                     On November 24, 2014, a Stipulated Non-Jury
              Trial commenced. On November 25, 2014, the court
              found the Appellant Guilty of Possession of a Firearm
              Prohibited[Footnote 1], [and] Firearms Not to be
              Carried Without a License.[Footnote 2] In summary,
              the facts consist of the following: Appellant was
              arrested on December 24, 2013 at approximately
              8:00 p.m. by Trooper Sergio Colon of the
              Pennsylvania State Police.       The Appellant was
              arraigned in the Court of Common Pleas, Delaware
              County, Pennsylvania on April 16, 2014. On May 19,
              2014, Appellant, through counsel, filed an “Omnibus
              Pre-trial Motion,” seeking to suppress all evidence

1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S47045/17


          seized prior to the Appellant’s arrest. A Suppression
          Hearing was held on July 25, 2014 and September
          16, 2014. Trooper Sergio Colon, a four-and-a-half-
          year Patrol Trooper for Troop K Media Barracks of
          the Pennsylvania State Police, testified at the
          Suppression Hearing. Trooper Colon testified that he
          has received approximately 100 hours of formalized
          training in the interdiction of drugs. Trooper Colon
          testified to conducting numerous stops on interstates
          that have led to drug arrests. On December 24,
          2013, Trooper Colon was in full police uniform and
          driving a marked patrol unit, which was equipped
          with an audio and video motor vehicle recording
          system (MVR). At the Suppression Hearing, the
          Commonwealth played the video of the MVR for the
          Court.

               [Footnote 1] 18 Pa.C.S.[A.] § 6105(a)(1)[.]
               [Footnote 2] 18 Pa.C.S.[A.] § 6106(a)(1)[.]

                Trooper Colon testified that, at approximately
          8:00 p.m. on Christmas Eve, he was on duty alone
          travelling on I-95 southbound.        Trooper Colon
          observed a burgundy Chevrolet Suburban SUV also
          travelling southbound. After running a registration
          check on NCIC, Trooper Colon testified that the
          check showed the registration on the SUV was
          expired. Trooper Colon then initiated a traffic stop,
          pulling the Appellant over on the right side of the
          Exit 8 ramp of I-95 southbound. Trooper Colon
          approached the vehicle from the passenger side, and
          observed that the Appellant was the driver of the
          vehicle and the sole occupant. As the Appellant was
          handing over documents, Trooper Colon noticed that
          the Appellant was visibly nervous and his hands were
          shaking.    The Trooper noted: “His nervousness
          continued throughout our conversation and his
          demeanor was one as I mentioned earlier of which
          he wanted to get away and leave . . .”

                 Further, Trooper Colon noted that throughout
          their interaction, the Appellant continued to give the
          Trooper unsolicited information.       The Appellant
          provided him with unsolicited information about the


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          dog food in the back of the vehicle. The Appellant
          also gave Trooper Colon information about where he
          lived and why it was different from the address on
          his license. The Appellant also stated that he was
          unaware that his registration for the vehicle was
          expired. During their exchange, the Appellant asked
          Trooper Colon if he could light a cigarette;
          Trooper Colon permitted the Appellant to do so.
          [Trooper] Colon observed this behavior as another
          sign that the Appellant was nervous.

                Upon returning to his patrol car, Trooper Colon
          ran a check of the Appellant’s license. The query
          showed that the Appellant was driving with a
          suspended driver’s license. Further, the vehicle was
          not registered to the Appellant. Trooper Colon also
          discovered that the Appellant had an extensive
          criminal history. Trooper Colon testified that he
          observed on the criminal history, inter alia,
          numerous Possession with Intent to Deliver charges,
          a Robbery charge, and several gun charges, etc.

                 [Trooper] Colon was preparing a citation for
          driving with an expired inspection and a warning for
          the expired registration while conducting a criminal
          history check of the Appellant. While he was writing
          out the citation and the warning in his patrol vehicle,
          Trooper Colon noticed that the Appellant was
          continuously staring back at him in the driver’s-side
          rearview mirror and the interior rearview mirror.
          Trooper Colon believed that this was another event
          that raised his suspicion. Trooper Colon, as per
          standard practice, requested the Appellant to exit his
          vehicle and meet him at the front of the patrol car,
          so that Trooper Colon could issue the Appellant his
          citation for an expired inspection and a warning for
          an expired registration. Trooper Colon conducted an
          officer safety pat-down of the Appellant to make sure
          he was not armed. Trooper Colon then began a
          conversation with the Appellant.

                The Appellant asked Trooper Colon several
          questions regarding how to remedy the expired
          registration and where to take the citation, and how


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          to take care of paying for it. The Appellant also told
          Trooper Colon that he was on a payment plan, and
          that is why his license was suspended, which
          conflicted with what the Appellant had said earlier in
          the encounter about not knowing about the
          suspension.      Trooper Colon found all of the
          unsolicited information that the Appellant provided
          about how and why he was going to pay for the
          citation and the payment plan to get his license back
          as odd and suspicious.

                 Trooper Colon then issued the Appellant his
          citation and warning, and the two men shook hands.
          Trooper Colon told the Appellant he was free to go,
          and both men began to walk back to their respective
          vehicles. Before either man reached their vehicle,
          Trooper Colon re-engaged the Appellant, and asked
          the [Appellant] about his travel plans for the day.
          Trooper Colon also asked the Appellant, “to come
          back to where [Trooper Colon] was and [the
          Appellant] freely and voluntarily did.”

                Trooper Colon then asked the Appellant if he
          had ever been arrested before. The Appellant gave
          an answer that was inconsistent with what his
          criminal history had revealed to Trooper Colon. The
          Appellant told Trooper Colon that he had been
          arrested in 2008 arising from a domestic incident in
          which he had been shot five times. Trooper Colon
          indicated that this story was another sign of
          suspicion. The Trooper testified:

                He contradicted what was revealed to me
                on the earlier query of his RAP sheet by
                relating that he had only been -- his
                most recent arrest was in 2008, which as
                we saw earlier was not true. In fact[,] I
                believe his most recent arrest had been
                2012.         I’m  not    exactly  sure.
                Furthermore, he related that arrest
                specifically in 2008 was for a domestic
                charge, to -- which again contradicted
                what was revealed in that query.



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                Trooper Colon asked the Appellant if there
          were any guns or drugs in the vehicle, to which the
          Appellant answered in the negative. Trooper Colon
          asked the Appellant verbally if he would consent to a
          search of the vehicle.      The Appellant verbally
          consented. Trooper Colon then gave the Appellant a
          written Waiver of Rights Form that provided
          Trooper Colon written permission to search the
          vehicle. The Appellant signed the waiver.

                The Trooper’s search of the vehicle yielded a
          Glock .40 caliber magazine containing eleven rounds
          of .40 caliber ammunition underneath the driver’s
          seat. In the center console, Trooper Colon found a
          black Glock .40 caliber semi-automatic handgun, in
          addition to an extended magazine containing thirty
          rounds of .40 caliber ammunition.

          PROCEDURAL HISTORY:

                Appellant was arrested on December 24, 2013
          after a motor vehicle stop conducted by the
          Pennsylvania State Police.      The Appellant was
          arraigned in the Court of Common Pleas, Delaware
          County, Pennsylvania on April 16, 2014 and charged
          with the aforementioned crimes.

                On May 19, 2014, Michael J. Malloy, Esquire
          entered his appearance on behalf of the Appellant.
          Also on May 19, 2014, Appellant, through counsel,
          filed an “Omnibus Pre-Trial Motion[,”] seeking to
          suppress all physical evidence seized. A Suppression
          Hearing was held on July 25, 2014 and
          September 16, 2014.       On October 15, 2014, an
          Order denying Appellant’s Omnibus Pre-Trial Motion
          was filed with detailed Findings of Fact and
          Conclusions of Law.

                On November 24, 2014, a Stipulated Non-Jury
          Trial commenced and on November 25, 2014, the
          court found the Appellant Guilty of Possession of a
          Firearm Prohibited, [and] Firearms Not to be Carried
          Without a License.     On November 25, 2014, the
          Appellant was sentenced to: Count 1, Persons


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          Prohibited from Possessing a Firearm, 5 to 10 years
          SCI, no [R]RRI eligibility, provide a DNA sample,
          credit for the time period from 12/25/13 to
          11/25/14, SCI Chester is recommended, payment of
          court costs, forfeit the weapon for destruction;
          Count 2, Firearms Carried Without a License, 7
          years[’] state probation consecutive to Count 1 and
          payment of court costs. On December 4, 2014, the
          Appellant filed a timely Notice of Appeal.


               On December 22, 2015, the Pennsylvania
          Superior Court affirmed the trial court in a
          Non-Precedential Decision docketed at No. 3495 EDA
          2014. There was no further appeal.

                On January 19, 2016, the [Appellant] filed a
          pro se PCRA Petition. On January 21, 2016 it was
          dismissed, without prejudice, the court concluding
          that it was prematurely filed as Appellant’s direct
          appeal was still pending. Appellant filed his second,
          timely pro se PCRA petition on February 1, 2016.
          Mr. Scott Galloway, Esquire was appointed to
          represent the Appellant.    On October 6, 2016,
          Mr. Galloway, Esquire, filed a “No Merit” Letter
          pursuant to Finley and Turner, infra.[2] On or
          about October 7, 2016, the court entered an Order
          permitting Mr. Galloway, Esquire, to withdraw from
          the case.

                On October 19, 2016, the court issued a
          “Notice of Intent to Dismiss PCRA Petition without a
          Hearing.”    On October 21, 2016, the pro se
          [Appellant] filed a Response to Counsel’s Finley
          Letter, and on November 7, 2016 filed a pro se
          response to the court’s Notice of Intention to
          Dismiss. On January 4, 2017, the court issued an
          Order denying PCRA relief.

                On January 17, 2017, the Appellant filed a
          timely Notice of Appeal to the Pennsylvania Superior

2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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           Court. The undersigned did not desire clarification of
           the errors complained of on appeal and as such, no
           Pa.R.A.P. 1925(b) order was entered.              See
           Pa.R.A.P. 1925(b).

PCRA court opinion, 3/9/17 at 1-7 (citations to record omitted) (additional

footnotes omitted).

     Appellant has raised the following issues for this court’s review:

           A.    Whether Appellant’s constitutional right to due
                 process was violated when the PCRA court
                 dismissed his petition as untimely filed?

           B.    Whether trial counsel was ineffective in failing
                 to protect Appellant’s jury trial rights?

           C.    Whether trial counsel was ineffective in failing
                 to file [a] Post Sentence Motion to reconsider
                 the sentence?

           D.    Whether Appellant[’s] counsel was ineffective
                 for failing to challenge the sufficiency of
                 firearm possession?

           E.    Whether Appellant[’s] counsel was ineffective
                 by filing an inadequate brief?

           F.    Whether PCRA counsel was ineffective in filing
                 a no-merit letter when the pro se claims
                 possessed merit?

           G.    Whether PCRA counsel was ineffective in failing
                 to investigate fraud on the Court?

Appellant’s brief at 3 (emphasis added).

     “When reviewing an order [granting or] denying PCRA relief, we must

determine whether the PCRA court’s determination is supported by the




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record and is free from legal error.” Commonwealth v. Poplawski, 852

A.2d 323, 327 (Pa.Super. 2004) (citation omitted).

            [T]he right to an evidentiary hearing on a
            post-conviction     petition   is    not    absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014
            (Pa.Super. 2001). 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. Id.
            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. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007), quoting Commonwealth v.

Khalifah, 852 A.2d 1238, 1239-1240 (Pa.Super. 2004).

            To prevail on a claim that counsel was
            constitutionally ineffective, the appellant must
            overcome the presumption of competence by
            showing that: (1) his underlying claim is of arguable
            merit; (2) the particular course of conduct pursued
            by counsel did not have some reasonable basis
            designed to effectuate his interests; and (3) but for
            counsel’s ineffectiveness, there is a reasonable
            probability that the outcome of the challenged
            proceeding would have been different. A failure to
            satisfy any prong of the test for ineffectiveness will
            require rejection of the claim.

Commonwealth v. Malloy, 856 A.2d 767, 781 (Pa. 2004) (citations

omitted).   “We presume counsel is effective and place upon Appellant the



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burden of proving otherwise. Counsel cannot be found ineffective for failing

to pursue a baseless or meritless claim.”      Poplawski, 852 A.2d at 327

(citations omitted).

      In his first issue on appeal, appellant claims that the PCRA court erred

in dismissing his January 19, 2016 petition as untimely. (Appellant’s brief at

8-9.) Appellant’s January 19, 2016 petition was not dismissed as untimely;

rather, it was dismissed without prejudice as prematurely filed because the

30-day period in which to file a petition for allowance of appeal with the

Pennsylvania Supreme Court from this court’s December 22, 2015 decision

affirming the judgment of sentence had not yet expired.          Subsequently,

appellant filed a “petition to reinstate pro se PCRA petition” on February 1,

2016, which was granted and counsel was appointed. (PCRA court opinion,

3/9/17 at 6-7.)

      In his second issue on appeal, appellant claims that trial counsel,

Michael Malloy, Esq., was ineffective for failing to protect his right to a jury

trial. According to appellant, Attorney Malloy did not properly advise him in

connection with his waiver of his right to a jury trial. (Appellant’s brief at

9-10.) Appellant argues that his jury waiver was invalid. (Id.) The record

belies appellant’s claim.

      On November 24, 2014, the trial court conducted an extensive waiver

colloquy during which appellant repeatedly expressed his desire to waive his

right to a jury trial and proceed with a stipulated non-jury trial. (Notes of



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testimony, 11/24/14 at 4-28.) Appellant testified that Attorney Malloy had

answered all of his questions and that the decision was his own.       (Id. at

26-27.) Appellant testified that he had thoroughly discussed the issue with

Attorney Malloy and required no further consultation with counsel. (Id. at 5,

25.) Appellant also executed a written jury waiver form which he reviewed

with Attorney Malloy. (Id. at 19-20.) Appellant testified that no one had

coerced or threatened him in any way. (Id. at 27.)

     This issue is patently meritless. Appellant is bound by the statements

he made during his waiver colloquy and cannot now obtain relief by

contradicting those same statements.        Commonwealth v. Barnes, 687

A.2d 1163, 1167 (Pa.Super. 1996), appeal denied, 693 A.2d 585 (Pa.

1997); see also Commonwealth v. Bishop, 645 A.2d 274, 277 (Pa.Super.

1994) (holding an appellant cannot obtain relief by claiming he lied during

his waiver colloquy); Commonwealth v. Muhammad, 794 A.2d 378, 384

(Pa.Super. 2002) (holding an appellant was not entitled to relief based on

the claim that his attorney coerced him to plead guilty when he stated in his

plea colloquy that he was not being forced or threatened).

     Next, appellant argues that Attorney Malloy was ineffective for failing

to file a post-sentence motion for reconsideration of sentence.      Appellant

contends that the 5 to 10-year sentence imposed on Count 1, possession of

firearms   prohibited,   was   excessive    and   unduly     harsh   and   that

Attorney Malloy disregarded his request to file a motion for reconsideration.



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(Appellant’s brief at 11-12.)   As the PCRA court observed, the sentencing

transcript indicates that the issue of filing a timely appeal was raised and

Attorney Malloy stated that he would file an appeal on appellant’s behalf if

appellant did not have other counsel within the 30-day appeal deadline.

(PCRA court opinion, 3/9/17 at 12; notes of testimony, sentencing, 11/25/14

at 16-17.)     There is no record of any request by appellant to file a

post-sentence motion for reconsideration. (Id.)3

        Furthermore, appellant cannot show how he was prejudiced by trial

counsel’s alleged deficient performance.     In Commonwealth v. Reaves,

923 A.2d 1119, 1128-1129 (Pa. 2007), our supreme court held that

counsel’s failure to file post-sentence motions at most “narrowed the ambit”

of the subsequent appeal and did not constitute prejudice per se.

Cf. Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (failing to file a

requested direct appeal denies the accused the assistance of counsel and the

constitutional right to a direct appeal, and the accused is entitled to

reinstatement of his direct appeal rights).     Rather, the petitioner must

satisfy the three-prong actual prejudice standard.    Reaves, 923 A.2d at

1129.

             Whether VOP [(violation of probation)] counsel can
             be deemed ineffective, then, depends upon whether
             appellee has proven that a motion to reconsider

3
  We acknowledge that appellant did file an untimely pro se motion for
sentencing reconsideration which was denied on December 10, 2014, on the
basis of untimeliness and also because appellant had counsel. (Docket
#27.)


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             sentence, if filed . . . would have led to a different
             and more favorable outcome at VOP sentencing. In
             this context, the only way the proceeding would have
             been more favorable would be if counsel’s objection
             secured a reduction in the sentence.

Id. at 1131-1132. Ultimately, the Reaves court found that the petitioner

failed to prove actual prejudice where the PCRA judge, who was the same

judge who initially sentenced the petitioner and then revoked probation and

imposed the VOP sentence, made clear during PCRA proceedings that he

would have imposed the same sentence. Id. at 1132.

      Here, there is nothing to support a contention that filing a motion for

reconsideration would have resulted in a reduced sentence.            Appellant

received a probationary sentence on Count 2, firearms not to be carried

without a license, and his sentence on Count 1, possession of firearms

prohibited, appeared to be a guideline sentence.         (Notes of testimony,

11/25/14 at 11-13.) Therefore, appellant has failed to demonstrate actual

prejudice.

      In his fourth issue on appeal, appellant claims that direct appeal

counsel was ineffective for failing to challenge the sufficiency of the evidence

to support the firearms convictions. (Appellant’s brief at 13-19.) However,

appellant’s entire argument relates to the suppression issue.             (Id.)

Appellant argues that Trooper Colon did not have reasonable suspicion for an

investigative detention or articulable suspicion that appellant was armed and

dangerous justifying a search. (Id.) In fact, the suppression issue was fully



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litigated in the court below, and this court addressed it on appeal.                     This

claim fails.

      Next,    appellant   complains      that     direct    appeal   counsel    filed    an

inadequate brief, resulting in waiver of certain issues.                   (Id. at 19.)

However, appellant does not set forth what particular issues were waived or

why they had merit and would have compelled a different result on appeal.

(Id.) From our review of this court’s December 22, 2015 memorandum, the

only issue that was waived was issue three. Commonwealth v. Williams,

No. 3495 EDA 2014, unpublished memorandum at 5 n.6 (Pa.Super. filed

Dec. 22, 2015).4 This issue was not addressed in appellant’s brief and was

deemed to have been abandoned on appeal.                    Id.   However, appellant did

not contest the validity of the initial traffic stop where his registration was

expired and it was undisputed that appellant gave Trooper Colon both verbal

and written consent to search his vehicle. Although this court did note that

appellant failed to comply with Pa.R.A.P. 2119(a), we still addressed the

primary issues on appeal on the merits, i.e., whether Trooper Colon had

reasonable     suspicion   to   warrant     further    investigation     and    re-engage

appellant after the initial encounter had concluded, and whether he was

illegally detained after having been told he was free to leave. Id. at 5 n.7.

A unanimous panel of this court concluded that based upon the totality of


4
  “Did [sic] trial court err in denying [Appellant’s] Motion to Suppress when
after an illegal and unlawful seizure and detention of [A]ppellant, [A]ppellant
was searched?” Id. at 5 (brackets in original).


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the circumstances, Trooper Colon had reasonable suspicion to justify the

search of appellant’s vehicle. Id. at 12-13. Therefore, appellant has failed

to show how he was prejudiced by direct appeal counsel’s allegedly

inadequate brief. See Commonwealth v. Reed, 971 A.2d 1216, 1226 (Pa.

2009) (“the filing of an appellate brief, deficient in some aspect or another,

does not constitute a complete failure to function as a client’s advocate so as

to warrant a presumption of prejudice under [U.S. v. Cronic, 466 U.S. 648

(1984)].”).

      Next, appellant complains that PCRA counsel, Attorney Galloway, was

ineffective for filing a petition to withdraw and Turner/Finley no-merit letter

instead of an amended PCRA petition on appellant’s behalf.        (Appellant’s

brief at 20-23.) Appellant insists that the issues raised in his petition had

merit and warranted PCRA relief. (Id.)5 For the reasons already discussed

supra, we disagree. In petitioning to withdraw, Attorney Galloway complied

with Turner/Finley practice, and the issues raised in appellant’s pro se

PCRA petition were entirely frivolous and without merit. Counsel complied

with the requirements for withdrawal as set forth in Turner/Finley, and the

PCRA court determined that there were no potentially meritorious issues


5
  This allegation of PCRA counsel’s ineffectiveness was raised in appellant’s
pro se response to Rule 907 notice. As such, it is preserved for appeal.
(“Answer to court’s notice of intention to dismiss,” 11/7/16 at 9-10; Docket
#11.) Cf. Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (an appellant
cannot raise allegations of PCRA counsel ineffectiveness for the first time on
appeal and is required to raise them within 20 days following Rule 907
notice).


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which could be raised in a counseled amended PCRA petition.                (See

“application to withdraw appearance,” 10/6/16, Docket #8; Rule 907 notice,

10/19/16, Docket #10.)

       Finally, appellant argues that Attorney Malloy perpetrated a “fraud on

the court” when he conceded that the vehicle stop and subsequent search

were lawful.    (Appellant’s brief at 25.)    Appellant then argues that the

prosecuting attorney also “lied by omission to the Court” when he failed to

correct Attorney Malloy’s purported misrepresentations.         (Id. at 25-26.)

Appellant also claims that a video of the traffic stop would have revealed

that a second trooper, not Trooper Colon, discovered the firearm. (Id. at

26.)   In his brief, appellant couches this issue in terms of PCRA counsel’s

ineffectiveness for failing to investigate the claim. (Id. at 23.)

       It is difficult to discern the nature of appellant’s argument.   First, it

does not appear that this argument was raised in appellant’s pro se petition

and therefore it is waived. See Commonwealth v. Ousley, 21 A.3d 1238,

1242 (Pa.Super. 2011) (“It is well-settled that issues not raised in a PCRA

petition cannot be considered on appeal.” (quotation marks and citations

omitted)); 42 Pa.C.S.A. § 9544(b). While appellant did raise it in his pro se

response to Rule 907 notice, he did not request to amend his petition to

include the issue.   (Docket #11, “Answer to court’s notice of intention to

dismiss,” 11/7/16 at 6-7.) Appellant only requested an evidentiary hearing.

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



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(“Where the petitioner does not seek leave to amend his petition after

counsel has filed a Turner/Finley no-merit letter, the PCRA court is under

no obligation to address new issues.”), citing Commonwealth v. Rykard,

55 A.3d 1177, 1192 (Pa.Super. 2012), appeal denied, 64 A.3d 631 (Pa.

2013) (a petitioner must request leave to amend his petition in his Rule 907

response to raise new trial counsel ineffectiveness claims); Commonwealth

v. Williams, 732 A.2d 1167, 1191 (Pa. 1999) (a response to Rule 907

notice is not, itself, considered a serial petition and the raising of a new

(non-PCRA counsel ineffectiveness) claim after the PCRA court has issued

notice of dismissal still requires a PCRA court to grant the petitioner leave to

amend his petition). Since appellant did not seek permission to amend his

petition to raise this new claim, the PCRA court was not required to address

the issue and it did not. Therefore, appellant's final claim does not entitle

him to relief. Rykard, 55 A.3d at 1192.6

      Order affirmed.



6
  To the extent appellant attempted to layer the issue as a PCRA counsel
ineffectiveness claim for failure to raise it in an amended petition, it clearly
lacks merit. The suppression matter was fully litigated. As discussed above,
there was no dispute that the initial traffic stop was lawful and that appellant
gave both verbal and written consent to search his vehicle. The only issue
was whether Trooper Colon had reasonable suspicion of criminal activity,
after the initial investigation into the Vehicle Code violations was concluded
and appellant was told he was free to leave, to re-engage appellant and
detain him for further questioning. In addition, the MVR of Trooper Colon’s
interaction with appellant was played for the trial court, and appellant
presents no evidence that a different trooper recovered the firearm. (Notes
of testimony, 7/25/14 at 21-34; Commonwealth Exhibit CS-1.)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2017




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