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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BILAL IBN SABUR                            :
                                               :
                       Appellant               :   No. 1138 MDA 2017

                   Appeal from the PCRA Order June 30, 2017
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0000196-2011

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BILAL IBN SABUR                            :
                                               :
                       Appellant               :   No. 1139 MDA 2017

                   Appeal from the PCRA Order June 30, 2017
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0000630-2011

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                                FILED APRIL 05, 2019

       Appellant, Bilal Ibn Sabur, appeals pro se from the order1 dismissing his

first petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

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1 The PCRA court’s order disposed of Appellant’s PCRA petition filed at both
common pleas court docket numbers, even though the cases were not
consolidated in the court of common pleas. For reasons that follow, this Court,
sua sponte, consolidates the two resulting appeals. Pa.R.A.P. 513.
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       The PCRA court summarized the factual and procedural history of this

case as follows:

              On January 28, 2011, [Appellant] and Ryan Smith got into
       a disagreement concerning Smith’s girlfriend when they were at a
       local bar. [Appellant], Smith, Dawine Jeffreys, and Bernard
       Daniels left the bar and went into a nearby alley. While these
       individuals were in the alley, [Appellant] pulled out a gun and fired
       several shots. As a result, Dawine Jeffreys sustained gunshot
       wounds to his leg.

              On January 31, 2011, police charged [Appellant] with two
       counts of criminal attempt – homicide, one count of possession of
       an instrument of crime (weapon), four counts of aggravated
       assault, two counts of recklessly endangering another person,
       three counts of simple assault, one count of possession of a
       firearm without a license, and one count of persons not to possess
       a firearm. The Magisterial District Judge dismissed the one count
       of attempted homicide, two counts of aggravated assault, one
       count of recklessly endangering another person and one count of
       simple assault that named Ryan Smith as the alleged victim. The
       remaining counts, which either listed Dawine Jeffreys as the victim
       or involved [Appellant’s] possession of a firearm, were held for
       court. The charges were filed to Information CR-196-2011.

             After [Appellant] was arrested and placed in the county
       prison, he made a phone call from the prison to his girlfriend
       asking her to call another individual to get rid of the gun. As a
       result of this phone call, [Appellant] was charged with conspiracy
       to tamper with physical evidence in CR-630-2011.

             The cases were consolidated for trial,[2] but the persons not
       to possess a firearm charge was severed because it required proof
       of [Appellant’s] prior record, which generally would not be
       admissible in a trial on the other charges.

             On January 23, 2012, a jury acquitted [Appellant] of
       attempted homicide, but convicted him of possession of an
       instrument of crime, aggravated assault – attempt to cause
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2 On June 3, 2011, the Commonwealth filed a notice of joinder pursuant to
Pa.R.Crim.P. 582(B)(1), that the two matters would be tried together.

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       serious bodily injury, aggravated assault – cause bodily injury with
       a deadly weapon, recklessly endangering another person, simple
       assault – cause bodily injury, simple assault- by physical menace,
       possession of a firearm without a license and conspiracy to tamper
       with physical evidence.[3] On that same date, [Appellant] waived
       his right to a jury trial on the severed charge of person not to
       possess a firearm. The court considered the evidence presented
       at trial, as well as additional evidence the Commonwealth
       introduced regarding [Appellant’s] prior criminal record. On
       January 26, 2012, the court found [Appellant] guilty of person not
       to possess a firearm.[4]

             The court sentenced [Appellant] [on May 7, 2012] to an
       aggregate term of 18 to 38 years’ incarceration in a state
       correctional institution. [Appellant] filed post sentence motions,
       which the court granted in part and denied in part. The court
       granted [Appellant’s] post sentence motion and vacated his
       sentence for recklessly endangering another person, because that
       offense merged with aggravated assault for purposes of
       sentencing. This reduced [Appellant’s] aggregate sentence to
       1[8] to 36 years’ incarceration in a state correctional institution.[5]
       The court denied the remainder of [Appellant’s] post sentence
       motion.

            [Appellant] appealed to the Pennsylvania Superior Court,
       which affirmed his judgment of sentence on June 3, 2014.
       [Appellant] sought allowance of appeal, which the Pennsylvania
       Supreme Court denied on December 26, 2014.

            [Appellant] filed a pro se [PCRA] petition[6] which, following
       the appointment of counsel, was amended several times.
       [Appellant] asserted numerous issues of ineffective assistance of
____________________________________________


3   18 Pa.C.S. §§ 907(b), 2702(a)(1), 2702(a)(4),              2705,   2701(a)(1),
    2701(a)(3), 6106(a)(2), and 903(a)(1), respectively.

4   18 Pa.C.S. § 6105(a)(1).

5   Appellant was resentenced on October 12, 2012.

6 Appellant filed his PCRA petition on March 31, 2015, at both common pleas
court docket numbers.



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       trial counsel. The court gave [Appellant] notice of its intent to
       dismiss many of his issues without holding an evidentiary hearing,
       but granted an evidentiary hearing on three issues. The court
       denied [Appellant’s] PCRA petition in its Opinion and Order
       entered on June 30, 2017.

             On July 17, 2017, [Appellant] filed a petition for
       appointment of new counsel or, in the alternative, to proceed pro
       se. On July 20, 2017, [Appellant] filed a timely pro se appeal.[7]
       The court forwarded a copy of [Appellant’s] notice of appeal to
       PCRA counsel. As it was unclear who would be representing
       [Appellant] or whether he would be proceeding pro se, the court
       deferred issuing its order directing [Appellant] to file a concise
       statement of matters complained of on appeal until after the
       hearing on [Appellant’s] motion.

              At a hearing held on August 15, 2017, [Appellant] waived
       his right to appellate counsel and elected to proceed pro se with
       newly appointed standby counsel.

              On September 5, 2017, [Appellant] filed his concise
       statement in which he asserted 17 claims of ineffective assistance
       of PCRA counsel, none of which were previously presented to the
       trial court.

PCRA Court Opinion, 12/14/17, at 1-4.            The trial court filed its Pa.R.A.P.

1925(a) opinion on December 14, 2017.8

____________________________________________


7   Appellant filed a notice of appeal at both docket numbers.

8  Appellant’s PCRA petition includes claims related to the two underlying
common pleas court cases. As noted, the cases were tried together in the
court of common pleas. Appellant was sentenced simultaneously for the
convictions in both cases, his direct appeal included both common pleas court
docket numbers, Commonwealth v. Sabur, 105 A.3d 23, 1955 MDA 2012
(Pa. Super. filed June 3, 2014), and Appellant’s PCRA petition was filed at both
docket numbers. Appellant also filed a notice of appeal from the order denying
his PCRA petition at each docket number, resulting in two related appeals
before this Court: 1138 MDA 2017 and 1139 MDA 2017. We further note this
Court’s December 20, 2017 order, directing the parties to file a single brief for



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       Appellant presents the following issues for our review:

       I.     Was PCRA counsel ineffective for failing to subpoena,
              question or call Appellant’s trial counsel and/or Appellant’s
              alibi witness to testify at Appellant’s [PCRA] hearing?

       II.    Was PCRA counsel ineffective for failing to subpoena,
              question or call Appellant’s trial counsel to testify at
              Appellant’s [PCRA] hearing regarding the failure to request
              a jury instruction, specifically on misidentification?

       III.   Was PCRA counsel ineffective for failing to subpoena,
              question or call Appellant’s trial counsel to present evidence
              that proves that counsel lacked a reasonable basis for failing
              to object to the line of questioning by the Commonwealth;
              42 Pa.C.S. § 5918?

       IV.    Was PCRA Counsel ineffective for failing to investigate
              and/or raise trial counsel’s ineffectiveness with meritorious
              claims?

Appellant’s Brief at 5.

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. Id.




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both appeals at 1138 MDA 2017 and 1139 MDA 2017. Accordingly, this Court
hereby consolidates these two appeals sua sponte. See Pa.R.A.P. 513
(“Where there is more than one appeal from the same order, or where the
same question is involved in two or more appeals in different cases, the
appellate court may, in its discretion, order them to be argued together in all
particulars as if but a single appeal[.]”).

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     Appellant’s claims on appeal allege ineffectiveness by PCRA counsel.

These issues, however, were not raised before the PCRA court.            In fact,

Appellant raised these issues for the first time in his Pa.R.A.P. 1925(b)

statement after filing an appeal from the order denying his PCRA petition.

     In Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012), this Court

explained:

     [I]ssues of PCRA counsel effectiveness must be raised in a serial
     PCRA petition or in response to a notice of dismissal before the
     PCRA court. . . . Therefore, we hold that, absent recognition of a
     constitutional right to effective collateral review counsel, claims of
     PCRA counsel ineffectiveness cannot be raised for the first time
     after a notice of appeal has been taken from the underlying PCRA
     matter.

Id. at 1200-1201. In Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super.

2014) (en banc), this Court reaffirmed Ford. We again addressed this issue

in Commonwealth v. Smith, 121 A.3d 1049 (Pa. Super. 2015), and further

explained:

     The purpose of a [Pa.R.Crim.P.] 907 pre-dismissal notice is to
     allow a petitioner an opportunity to seek leave to amend his
     petition and correct any material defects, the ultimate goal being
     to permit merits review by the PCRA court of potentially arguable
     claims. The response to the Rule 907 notice is an opportunity for
     a petitioner and/or his counsel to object to the dismissal and alert
     the PCRA court of a perceived error, permitting the court to
     discern the potential for amendment. The response is also the
     opportunity for the petitioner to object to counsel’s effectiveness
     at the PCRA level. When a PCRA court properly issues Rule 907
     notice in compliance with the rules of criminal procedure, an
     appellant is deemed to have sufficient notice of dismissal.

            Absent recognition of a constitutional right to effective
     collateral review counsel, claims of PCRA counsel ineffectiveness
     cannot be raised for the first time after a notice of appeal has been

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       taken from the underlying PCRA matter. A petitioner’s failure to
       raise an ineffectiveness of counsel claim after receiving Rule 907
       notice results in waiver of the claim.

Id.   at   1054    (internal   citations       and   quotations   omitted);   see   also

Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014) (“[W]here

the new issue is one concerning PCRA counsel’s representation, a petitioner

can preserve the issue by including that claim in his Rule 907 response or

raising the issue while the PCRA court retains jurisdiction.”).

       In this case, the PCRA court entered an opinion and order on

December 6, 2016, stating that it would hold an evidentiary hearing on

December 28, 2016,9 on three of Appellant’s claims alleging trial counsel

ineffectiveness, but notifying Appellant of its intent to dismiss the petition

without a hearing with respect to all other claims. PCRA Court Opinion and

Order, 12/6/16, at 16. Appellant filed a pro se response on December 29,

2016. In it, Appellant sought an extension of time and leave to amend his

PCRA petition “due to government interference with the institutional staff at

S.C.I Dallas.” Motion, 12/29/16, at 1. The issues Appellant sought to address

in an amended PCRA petition related to alleged ineffectiveness by trial

counsel.    Id. at 1-6 (unnumbered pages).              Appellant did not assert PCRA

counsel’s ineffectiveness. Id. In response, the PCRA court issued an order

directing that the motion be forwarded to Appellant’s attorney. Order, 1/5/17,


____________________________________________


9 Despite this proposed schedule, the hearing took place on February 13,
2017.

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at 1. The order further stated, in the alternative, that the court would deny

the motion. Id.

      [Appellant] and his counsel have had multiple opportunities to
      amend [Appellant’s] PCRA petition. The court found that some of
      the issues lacked merit as a matter of law, but granted an
      evidentiary hearing on other issues. The hearing was rescheduled
      from December 28, 2016 to February 13, 2017. The request for
      an extension of 60 days would be beyond the new date set for the
      evidentiary hearing in this matter.

Id. at 1-2. The hearing took place on February 13, 2017, and the trial court

dismissed Appellant’s PCRA petition on June 30, 2017.

      Thus, Appellant received proper notice of the court’s intent to dismiss

his petition under Pa.R.Crim.P. 907. Appellant filed a pro se response, but in

it did not raise claims of PCRA counsel’s ineffectiveness.        Furthermore,

Appellant took no other action to raise claims of PCRA counsel’s ineffectiveness

before the PCRA court prior to its denial of Appellant’s petition on June 30,

2017. Instead, Appellant raised his claims for the first time in his Pa.R.A.P.

1925(b) statement after filing an appeal from the denial of the underlying

petition.   “Appellant had an affirmative duty to preserve his claims.        If

Appellant wanted to assert claims of ineffective assistance of PCRA counsel,

he should have consulted counsel and/or the court to learn the correct

procedure.” Smith, 121 A.3d at 1055. Thus, because claims of PCRA counsel

ineffectiveness cannot be raised for the first time after a notice of appeal has

been taken from the underlying PCRA matter, Appellant’s claims are waived.

Ford, 44 A.3d 1200-1201; Smith, 121 A.3d at 1054.


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       Thus,    we   conclude     that    Appellant’s   claims   of   PCRA   counsel’s

ineffectiveness that were raised for the first time in his Rule 1925(b)

statement are not reviewable. Accordingly, we affirm.10

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/05/2019




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10  The PCRA court denied Appellant’s PCRA petition on the basis that Appellant
failed to prove his claims of trial counsel’s ineffectiveness. PCRA Court
Opinion, 1/30/17, at 1-4. This Court may affirm a decision of the trial court
if there is any basis on the record to support the trial court’s actions, even if
we rely on a different basis. Commonwealth v. Moser, 999 A.2d 602, 606
n.5 (Pa. Super. 2010).

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