J-S55004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TERRY JERMAINE GARDNER

                            Appellant                  No. 759 EDA 2015


                 Appeal from the PCRA Order February 9, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003279-2006


BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                            FILED October 5, 2016

        Terry Jermaine Gardner appeals from the order, entered in the Court

of Common Pleas of Chester County, which dismissed his petition filed

pursuant to the Post Conviction Relief Act (PCRA).1       After our review, we

affirm.

        Following a jury trial, Gardner was convicted of first-degree murder

and related offenses based upon his participation in a conspiracy to kill the

victim in retaliation for another killing. Gardner fired the fatal gunshot. On

October 27, 2010, the trial court imposed an aggregate sentence of life

imprisonment without the possibility of parole.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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       Gardner filed a direct appeal of his judgment of sentence, which was

affirmed by this Court on October 26, 2011.              See Commonwealth v.

Gardner, 37 A.3d 1245 (Pa. Super. 2011) (unpublished memorandum).

Gardner filed a petition for allowance of appeal in the Pennsylvania Supreme

Court, which was denied on October 24, 2012.              See Commonwealth v.

Gardner, 55 A.3d 522 (Pa. 2012). On July 8, 2013, Gardner filed a pro se

PCRA petition, and counsel was appointed to represent him. Counsel filed a

petition to withdraw from the case pursuant to Turner/Finley.2 The PCRA

court issued a notice of intent to dismiss the PCRA petition pursuant to

Pa.R.Crim.P. 907 and permitted counsel to withdraw on December 29, 2014.

Gardner filed a “Motion to Amend the PCRA” on January 23, 2015, in which

he took issue with PCRA counsel’s decision to withdraw. The court dismissed

the PCRA petition by an order dated February 9, 2015, which was mailed to

Gardner on February 10, 2015.

       Gardner filed a timely pro se notice of appeal on March 12, 2015.3 The

court ordered Gardner to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).            Gardner filed a motion requesting

____________________________________________


2
  Commonwealth v. Turner, 544 A.2d 917 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
3
  The 30-day period to file a notice of appeal runs from the entry of the
order from which the appeal is taken pursuant to Pa.R.A.P. 903(a), and the
date the order is entered is the day the clerk of court mails the order to the
parties. See Pa.R.A.P. 108(a)(1).



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additional time to file the statement.           The court granted the motion and

extended the deadline by 45 days, until May 30, 2015.             Gardner did not

comply but filed an untimely statement entitled “Appellant’s Supplemental

Concise Statement of Matters Complained of on Appeal,” despite not filing an

original statement.4

       Gardner raises the following issues, verbatim:

       1.   Whether the PCRA court abused its discretion and
            committed reversible error when determining that
            [Gardner’s] claim that: Trial counsel was ineffective for
            failing to admit prior inconsistent statements of Rahlik Gore,
            Robert Hamrick, Steven Pittman, and Richard Legree[,] Jr.
            as substantive evidence to prove the truth of the matters
            asserted therein? Claiming that these materials are not part
            of the record and [Gardner] should have provided and filed
            it of record.

       2.   Whether the PCRA court abused its discretion and
            committed reversible error when determining that
            [Gardner’s] claim that: Trial counsel was ineffective when
            failing to object or otherwise protect [Gardner’s] rights by
            permitting the Commonwealth to introduce 2 firearms at
            [Gardner’s] trial which [Gardner] was not charged with
            illegally possessing or was alleged to have utilized the
            aforementioned guns to allegedly commit the homicide that
            was the subject of the instant prosecution? Claiming that
            the issue lacks the specificity required for relief under the
            Post-Conviction Relief Act.

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4
  The untimely statement was filed on June 15, 2015. However, Gardner
had dated the statement June 10, 2015. Accordingly, June 10, 2015, is
considered to be the date of filing pursuant to the prisoner mailbox rule.
See Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super. 1998).
Nevertheless, the statement was filed 11 days beyond the extended deadline
provided by the court.



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     3.   Whether the PCRA court abused its discretion and
          committed reversible error when determining that
          [Gardner’s] claim that: Trial counsel was ineffective when
          failing to properly advise [Gardner] of his right to testify
          because of his criminal record which did not include crimen
          falsi. Counsel advised [Gardner] not to testify because of
          his criminal record when [Gardner] wanted to testify on his
          own behalf. [Gardner] declined to testify only because his
          attorney told him not to? Claiming that trial counsel was
          not ineffective because [Gardner] made a voluntary decision
          not to testify on his own behalf.

     4.   Whether the PCRA court abused its discretion and
          committed reversible error when determining that
          [Gardner’s] claim that: Trial counsel was ineffective when
          failing to object or otherwise protect [Gardner’s] rights
          where [Gardner] requested accomplice and corrupt source
          instruction be given to jury and said instruction was not
          given?    Claiming trial testimony does not evidence the
          Commonwealth [witnesses] accomplices.

     5.   Whether the PCRA court abused its discretion and
          committed reversible error when determining that
          [Gardner’s] claim that: Trial counsel was ineffective when
          failing to object or otherwise protect [Gardner’s] rights by
          not challenging a sufficiency of the evidence of [Gardner’s]
          first degree murder and conspiracy charges? Claiming that
          this claim is waived under PCRA and should have been
          raised on direct appeal.

     6.   Whether the PCRA court abused its discretion and
          committed reversible error when determining that
          [Gardner’s] claim that: Trial counsel was ineffective when
          failing to conduct an adequate legal and independent factual
          investigation that led to the Commonwealth introducing
          evidence from a series of events separate from [Gardner’s]
          in which defendant in that case was [acquitted] and
          prejudiced [Gardner]? Claiming that failure to cite to the
          record left [Gardner’s] claim undeveloped.

     7.   Whether the PCRA court abused its discretion and
          committed reversible error when determining that
          [Gardner’s] claim that: Trial counsel was ineffective for
          failing to investigate facts relating to the time and alleged
          location of the alleged homicide of Brian Brown and


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             interview [Gardner’s] available witnesses and a possible alibi
             defense? Claiming that this issue is devoid of merit.

      8.     Whether the PCRA court abused its discretion and
             committed reversible error when dismissing [Gardner’s] pro
             se PCRA petition without a hearing rather than directing
             [Gardner] to file an amended PCRA to correct the defective
             PCRA and give [Gardner] a legitimate [opportunity] to
             present his [meritorious] claims?

      9.     Whether [Gardner’s] newly after[-]discover[ed] evidence of
             trial counsel’s ineffectiveness due to conflict of interest and
             violation of professional conduct [warrants] remand?

      10. Whether the PCRA court abused its discretion and
          committed reversible error when determining that
          [Gardner’s] claim that: Trial counsel was ineffective for
          failing to object or otherwise protect [Gardner’s] rights by
          not challenging prosecutor[’]s misconduct soliciting false
          testimony and allowing it to go uncorrected? Claiming that
          issue should have been raised on direct appeal so issue is
          waived.

Brief for Appellant, at 5-6.

      Our standard and scope of review regarding the denial of a PCRA

petition is well-settled.      We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and review its

conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

      Instantly, the PCRA court found all of Gardner’s issues on appeal to be

waived for failure to file a timely statement pursuant to Rule 1925(b).

Where a concise statement is untimely filed, it is “within the trial court’s

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discretion to find waiver[.]” Commonwealth v. Smith, 854 A.2d 597, 600

(Pa. Super. 2004). Additionally, the fact that Gardner is proceeding pro se

on appeal does not excuse him from following procedural rules.                  See

Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003) (“[A] pro

se litigant must comply with the procedural rules set forth in the

Pennsylvania Rules of the Court. This Court may quash or dismiss an appeal

if an appellant fails to conform with the requirements set forth in the

Pennsylvania      Rules     of    Appellate    Procedure.”   (citations   omitted)).

Accordingly, because the PCRA court acted within its discretion in finding

waiver of all claims, we discern no error on the part of the court.5

       Order affirmed.
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5
  All of Gardner’s claims on appeal involve ineffective assistance of counsel,
with the exception of the claim that the trial court erred by not allowing him
to amend his PCRA petition, which is clearly within the discretion of the
court. See Commonwealth v. Williams, 828 A.2d 981, 988 (Pa. 2003)
(PCRA court has “discretion whether or not to grant a motion to withdraw or
amend a post-conviction petition.”).        As to ineffectiveness claims, an
appellant must satisfy a three-part test by showing that: “(1) his underlying
claim is of arguable merit; (2) counsel had no reasonable basis for his action
or inaction; and (3) the petitioner suffered actual prejudice as a result.”
Spotz, supra at 311. Here, even if Gardner could establish that one or
more of his claims is of arguable merit and was not a strategic decision on
the part of counsel, he would be unable to meet the prejudice prong. Actual
prejudice is established “if there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.”
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super 2013). Here,
evidence of Gardner’s guilt was overwhelming and included multiple
individuals testifying to the events of the day and an eyewitness account of
Gardner committing the shooting. Accordingly, the result would not have
differed even if counsel erred in his representation of Gardner.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2016




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