J-S19006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 SIM AMIN MORTON                        :
                                        :
                   Appellant            :   No. 3510 EDA 2016
                                        :

              Appeal from the PCRA Order September 20, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0002070-2012


BEFORE:    SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.:                            FILED JUNE 18, 2018

      Sim Amin Morton (“Appellant”) appeals pro se from the order denying

his petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541–9546. We affirm.

      The PCRA court summarized the procedural history of this case as

follows:

            [Appellant] was arrested on October 4, 2011 and charged
      with attempted murder and aggravated assault against Evan
      Davis, aggravated assault of Shynetta Benyard, and various
      weapon charges.1 On July 25, 2012, following a jury trial,
      [Appellant], was found guilty of attempted murder and
      aggravated assault against complainant Evan Davis, in addition to
      various weapon charges. On October 2, 2012, this [c]ourt
      imposed an aggregate sentence of ten to twenty years of
      confinement on the attempted murder2, a concurrent five to ten
      years on prohibited possession of a firearm, a consecutive three
      to six years on carrying a firearm without a license, followed by
      two years of reporting probation on the carrying of firearms in
      Philadelphia and the possession of an instrument of crime. On
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       October 12, 2012, [Appellant] filed a Post–Sentence Motion which
       the court denied on January 16, 2013. On February 15, 2013[,]
       [Appellant] appealed this [c]ourt’s decision to the Superior Court.
       On August 28, 2014, the Superior Court affirmed this [c]ourt’s
       decision.

              1 [Appellant] was found guilty of the following weapon
              charges: Possession of Firearm Prohibited (18 Pa. C.
              S. §6105(a)(1); Firearms not to be carried without a
              Licenses [sic] (18 Pa. C. S. § 6106 (a)(1); any
              Carrying of Firearm on the Public Street of
              Philadelphia (18 Pa. C.S. § 6108); and Possession of
              an Instrument of Crime (18 Pa. C. S. §907(a)[)].

              2The aggravated assault sentence merged with this
              sentence as a lesser included offense.

              On April 9, 2015, [Appellant] filed a timely pro se petition
       pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S.
       §9541. On January 29, 2016, David Rudenstein, Esq. was
       appointed to represent [Appellant]. On March 3, 2016, Mr.
       Rudenstein filed a Finley[1] no-merit letter indicating that in his
       professional opinion, the claims raised by [Appellant] in his PCRA
       petition were without merit. On July 26, 2016, this [c]ourt issued
       a 907 Notice to [Appellant] advising him that his PCRA petition
       would be denied/dismissed within twenty days because the
       [c]ourt found his pro se PCRA petition was without merit. On July
       25, 2016, [Appellant] submitted a pro se Request for an
       Evidentiary Hearing and Amendment to his initial PCRA Petition.
       On August 15, 2016, this [c]ourt received [Appellant’s] response
       to this [c]ourt’s 907 Notice, and “Newly Discovered Issues.” On
       September 9, 2016, [Appellant] filed a pro se Motion to Compel
       PCRA Counsel to Amend Petitioner’s PCRA and Add New Matter.
       On September 20, 2016, this [c]ourt held an evidentiary hearing
       and dismissed [Appellant’s] PCRA Petition because the issues
       raised were either without merit or had been waived.            On
       November 2, 2016, [Appellant] filed an untimely appeal of this
____________________________________________


1 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
When counsel seeks to withdraw from representation on collateral appeal, the
dictates of Finley and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
are applicable. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007).

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      [c]ourt’s September 20, 2016 Order. On January 3, 2017, this
      [c]ourt entered an Order requiring [Appellant] to file a Statement
      of Matters Complained of on Appeal. On January 11, 2017,
      [Appellant] complied.

PCRA Court Opinion, 10/17/17, at 1-2.

      Appellant presents the following issues for our review, which we restate

verbatim:

      1. Whether PCRA Court erred in dismissing Appellant’s PCRA
         Petition before granting Appellant permission for leave to file a
         pro se supplement petition pursuant to Pa.R.Crim.Proc. Rule
         905 to develope argument of Trial Counsel error and
         ineffectiveness.

      2. Whether PCRA Court erred in allowing PCRA Counsel to
         withdraw his representation of Appellant where Appellant filed
         subsequent motion for order to compel PCRA Counsel to file
         amended PCRA Petition to assert Trial Counsel and Trial Court
         error pursuant to Pa. R.Crim. Proc. 601(C).

      3. Whether Appellant suffered prejudice through “trial-by-
         ambush” strategy by the introduction and untimely disclosure
         of Appellant’s prison telephone recordings; and prosecutorial
         misconduct where prosecutor made inflared, [sic] personal,
         and misleading statements to the jury.

Appellant’s Brief at 2.

      Before we consider the merits of Appellant’s claims, we must determine

whether this appeal was timely filed, because the timeliness of an appeal

implicates this Court’s jurisdiction. Commonwealth v. Crawford, 17 A.3d

1279, 1281 (Pa. Super. 2011). To preserve the right to appeal a final order

of the PCRA court, a notice of appeal must be filed within thirty days after the

date of entry of the order granting or denying relief.       Pa.R.Crim.P. 910;

Pa.R.A.P. 903(a).


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      Here, the PCRA court denied Appellant’s PCRA petition on September

20, 2016, and Appellant’s notice of appeal, filed on November 2, 2016, is

facially untimely. In his pro se response to this Court’s order to show cause

why we should not dismiss his appeal as untimely, Appellant asserts that there

was a breakdown in the PCRA court’s process.            Specifically, Appellant

maintains that although the PCRA court denied his petition on September 20,

2016, Appellant did not receive the court’s order until October 24, 2016,

because the clerk did not forward of a copy of it to Appellant. Appellant’s

Response to Court Order to Show Cause, 12/27/16, at 1.

      The record reflects that Appellant sent a pro se correspondence to the

clerk of courts, dated October 16, 2016, and stamped by the clerk of courts

as received on October 17, 2016. In this correspondence Appellant states the

following:
             On August 9, 2016, I responded to the [c]ourt’s 907 Notice
      in reference [to] my Post Conviction Collateral Relief Petition, and
      on August 11, 2016, your office time-stamped and attested to
      receiving my response. However, it has been well over sixty (60)
      days from receipt of the [c]ourt’s 907 Notice and I have not
      received an order. At this time I would ask that you kindly check
      your data for the status of my case and send [me] a copy of the
      docketing sheet.

            In addition, if my petition was dismissed, I would ask for an
      exten[s]ion of time to file [a] Notice of Appeal in the Superior
      Court due to the clerical error of your office in not serving me a
      copy of the [c]ourt’s order.

Appellant’s Pro Se Correspondence, 10/17/16, at 1. In his notice of appeal

filed November 2, 2016, Appellant again asserted that he did not timely

receive a copy of the PCRA court’s order denying his petition. Notice of Appeal,

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11/2/16, at 1. He attached to the Notice of Appeal the order denying his PCRA

petition and a copy of the envelope from the Philadelphia County Court of

Common Pleas that was post-dated October 21, 2016, in which Appellant

alleged to have received the PCRA court’s order denying his petition. Id. at 7

(unnumbered pages). Furthermore, the docket does not clearly establish that

the PCRA court served the order denying the PCRA petition on Appellant prior

to October 21, 2016.     Accordingly, the evidence of record supports the

conclusion that the PCRA court did not timely serve Appellant with the order

denying his PCRA petition.

      We view the PCRA court’s failure to timely serve on Appellant a copy of

the order denying the PCRA petition as a breakdown of the court’s operation.

See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super. 2015) (“[An

appellant] should not be precluded from appellate review based on what was,

in effect, an administrative breakdown on the part of the trial court.”). Thus,

we decline to quash this appeal as untimely.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.


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Super. 2012). We grant great deference to the PCRA court’s factual findings

and will not disturb them unless they have no support in the certified record.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

      In reviewing Appellant’s brief, we note that Appellant has failed to

comply with Pa.R.A.P. 2119(a). Pa.R.A.P. 2119(a) provides:

             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.

Appellant’s lengthy argument section of his brief is not divided into parts that

correspond with the issues he presents. His argument consists of multiple

unrelated arguments strung together. Appellant’s failure to comply with this

rule hampers our ability to conduct meaningful appellate review of his claims.

Pa.R.A.P. 2101 states:

      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.

Because the defects are substantial, we could dismiss Appellant’s appeal on

that basis. We, however, will attempt to address Appellant’s claims to the

extent possible.

      Appellant’s first issue states: “Whether PCRA [c]ourt erred in dismissing

Appellant’s PCRA Petition before granting Appellant permission for leave to file

a pro se supplement petition pursuant to Pa.R.Crim.Proc. Rule [sic] 905 to

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develope [sic] argument of Trial Counsel error and ineffectiveness.”

Appellant’s Brief at 2.   After reviewing Appellant’s brief, we are unable to

discern when he sought permission for leave to file a pro se supplemental

petition and when that request was denied by the PCRA court. Moreover, the

record reflects that Appellant did file an amended PCRA petition on July 25,

2016, which was prior to the PCRA hearing conducted on September 20, 2016,

and prior to the PCRA court’s order denying Appellant’s petition filed on

September 20, 2016. Thus, Appellant is entitled to no relief on his first claim.

        In his second claim, Appellant argues that the “PCRA [c]ourt erred in

allowing PCRA Counsel to withdraw his representation of Appellant where

Appellant filed subsequent motion for order to compel PCRA Counsel to file

amended PCRA Petition to assert Trial Counsel and Trial Court error pursuant

to Pa. R.Crim. Proc. 601(C).”        Appellant’s Brief at 2.      In filing his

Turner/Finley letter, counsel asserted that he conducted a thorough review

of Appellant’s case and concluded that there were no meritorious issues to

raise   before   the PCRA court, thereby requesting to         withdraw    from

representation. Counsel’s Finley Letter, 3/3/16, at 1-9; Motion to Withdraw,

3/3/16, at 1-2. “While the appointment of counsel in PCRA proceedings has

been made mandatory by our rules of criminal procedure, Pa.R.Crim.P. 1503-

04, appointed counsel possesses the prerogative of declining to litigate a

meritless petition. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927

(Pa.1988).” Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998).


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Moreover, when Appellant filed his pro se motion to compel on September 9,

2016, he was still represented by counsel.2 Thus, Appellant’s pro se filing was

a legal nullity,3 and the PCRA court was not obligated to respond to it.

Appellant is entitled to no relief on his second claim.

        In his third issue, Appellant argues that he suffered prejudice “through

‘trial-by-ambush’ strategy by the introduction and untimely disclosure of

Appellant’s prison telephone recordings; and prosecutorial misconduct where

prosecutor made inflared,[sic] personal, and misleading statements to the

jury.” Appellant’s Brief at 2. Appellant first asserts that “the prosecutor had

in its [possession] the Appellant’s prison telephone recordings, recorded while

the Appellant was awaiting trial, but did not release the recording to defense

counsel until several days into the proceeding.” Id. at 18. Next, Appellant

contends that the prosecutor “expressed its personal opinion about the

Appellant’s credibility and trial strategy in reference to the Appellant’s alibi

defense where the Commonwealth stated in its closing argument that

‘evidently the defendant ‘Appellant’ is a thirty nine year old who demands

respect.’” Id. at 22. Appellant also maintains that:



____________________________________________


2   Counsel was permitted to withdraw by order filed September 20, 2016.

3“In this Commonwealth, hybrid representation is not permitted. Accordingly,
this Court will not accept a pro se motion while an appellant is represented by
counsel; indeed, pro se motions have no legal effect and, therefore, are legal
nullities.” Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super.
2016) (internal citations omitted).

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      [t]he Commonwealth further asserted that the Appellant acted
      with malice in retaliation to a prior incident that allegedly had
      occurred between a family member of the victim and a family
      member of the Appellant. . . . The Commonwealth also went
      beyond its duty in pursuit of justice by implicating the Appellant
      in a rival group that allegedly had been ‘beefing’ at the time.

Id. at 22.

      An issue will be deemed waived under the PCRA “if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal, or in a prior state post-conviction proceeding.” See 42 Pa.C.S. §

9544(b) (An issue will be deemed waived under the PCRA “if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal, or in a prior state post-conviction proceeding.”);

Commonwealth v. Olson, 179 A.3d 1134, 1137 (Pa. Super. 2018).

Appellant did not raise these issues of prosecutorial misconduct on direct

appeal. Thus, we are constrained to conclude that these claims have been

waived.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/18




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