J-S40029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 MAURICE ANDREWS                          :
                                          :
                    Appellant             :      No. 2325 EDA 2017


                 Appeal from the PCRA Order June 23, 2017
            in the Court of Common Pleas of Montgomery County
             Criminal Division at No.: CP-46-CR-0004380-2013


BEFORE:    LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                       FILED SEPTEMBER 06, 2018

      Appellant, Maurice Andrews, appeals from the order denying his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. Specifically, he claims that the PCRA court failed to comply

with Pennsylvania Rules of Criminal Procedure 905(B) and 907(1), and that

the court erred in dismissing his petition without an evidentiary hearing. We

are constrained to affirm the PCRA court’s order in part, vacate in part, and

remand to the PCRA court for compliance with Rule 905(B).

      We take the factual and procedural history in this matter from our

review of the certified record, and this Court’s decision in Appellant’s direct

appeal.

            [A]t approximately 1:30 a.m. on March 22, 2013,
      [Appellant] and his cousin and co-conspirator—Michael Romain
      Hinton—arrived in the vicinity of Brian’s Café, a bar located in
      Pottstown, Montgomery County, Pennsylvania, with the purpose
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40029-18


     of confronting Victor “Short Man” Baez. [Appellant] was armed
     with a 9[]mm Glock handgun, and Hinton was armed with a .357
     Smith & Wesson revolver. The pair lay in wait for [Baez],
     ambushing him when he exited the bar shortly after 2:00 a.m.
     While [Baez] struggled with Hinton for control of Hinton’s revolver,
     [Appellant] shot [Baez] five times, killing him. Hinton was also
     hit by [Appellant’s] gunfire and was wounded in the leg and hand.

           Hinton’s .357 Smith & Wesson revolver was discovered lying
     next to the body of [Baez]. [Appellant’s] 9[]mm Glock was never
     recovered. [Appellant] and Hinton fled the scene separately. The
     wounded Hinton was apprehended several hours later on the
     streets of Pottstown and was transported to Reading Hospital,
     following which he gave several statements to police in which he
     implicated [Appellant] as the shooter. [Appellant] left the area
     following the shooting, and was ultimately arrested in Philadelphia
     at the home of his Aunt–Danielle “Dee” White–on April 18, 2013.
     It was the Commonwealth’s theory of the case that [Baez] was
     murdered because [Appellant] had previously engaged in a
     botched robbery and kidnapping of [Baez’s] nephew, and
     [Appellant] was afraid that [Baez] planned to retaliate against
     him.

(Commonwealth        v.   Andrews,     No.    589    EDA    2015,    unpublished

memorandum at *2 (Pa. Super. filed Apr. 15, 2016) (quoting Trial Court

Opinion, 7/29/15, at 1-2)).

           After a five-day trial, a jury found [Appellant] guilty of third-
     degree murder, conspiracy to commit third-degree murder,
     firearms not to be carried without a license, and criminal trespass.
     On October 7, 2014, [Appellant] was sentenced to an aggregate
     term of thirty-five to seventy years’ incarceration, including
     consecutive sentences of twenty to forty years’ incarceration for
     third-degree murder and fifteen to thirty years for conspiracy to
     commit third-degree murder, as well as a concurrent sentence of
     one to two years for firearms not to be carried without a license.[a]
     The trial court imposed no further penalty on [Appellant’s]
     criminal trespass conviction. The trial court denied [Appellant’s]
     post-sentence motions on February 6, 2015, . . . .
           [a][Appellant] was also sentenced to one to two years’
           incarceration for possession with intent to distribute
           and one to two years’ incarceration for possession of

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J-S40029-18


              a firearm with an obliterated serial number. These
              sentences stemmed from guilty pleas entered by
              [Appellant] and were ordered to run consecutively to
              his sentences for third-degree murder and conspiracy
              to commit third-degree murder, bringing his total
              aggregate sentence to thirty-seven to seventy-four
              years’ incarceration.

(Id. at *4) (record citation omitted).

       This Court affirmed Appellant’s judgment of sentence on April 15, 2016,

concluding, in part, that Appellant was not entitled to review of the

discretionary aspects of sentencing because he failed to include a Rule 2119(f)

statement in his brief, and the Commonwealth objected. (See id. at *1, 16).

Appellant did not petition our Supreme Court for allowance of appeal.

       On February 15, 2017, Appellant, counseled, filed the instant, timely,

first PCRA petition. On April 19, 2017, the PCRA court issued notice of its

intent to dismiss the PCRA petition, without a hearing, pursuant to Rule of

Criminal Procedure 907. Appellant filed a response to the Rule 907 notice on

May 8, 2017. On June 23, 2017, the PCRA court dismissed Appellant’s petition

without a hearing. This timely appeal followed.1

       Appellant raises two multi-part questions on appeal:

        I.    Did the PCRA [c]ourt commit [an] error of law in failing to
              state any reasons for dismissal in its [n]otice of [i]ntent to
              [d]ismiss [the] PCRA [petition] without a hearing, contrary
              to the [e]xpress language of Pa.R.Crim.P[.] 905 and 907?

       II.    Did the PCRA [c]ourt commit [an] error of law/abuse its
              discretion by dismissing [the] PCRA [p]etition without a
____________________________________________


1 Pursuant to the PCRA court’s order, Appellant filed a concise statement of
errors complained of on appeal on August 22, 2017. The PCRA court issued
its opinion on December 11, 2017. See Pa.R.A.P. 1925.

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            hearing regarding the claims of ineffectiveness of prior
            counsel, both at trial and on appeal, those being[:]

                a) Failing to properly preserve the issue on appeal
                   of whether sentence was excessive, by not filing
                   a 2119(f) statement or raising a substantial
                   question?

                b) By not requesting a jury instruction on voluntary
                   manslaughter (unreasonable belief)[?]

                c) By not even attempting to interview potential
                   witness Mark White, who had previously
                   provide[d] statements and testified at a grand
                   jury which tended to disprove/contradict
                   testimony of some Commonwealth witnesses
                   and the Commonwealth[’]s theory of motive?

(Appellant’s Brief, at 4).

      “The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

of legal error. The PCRA court’s findings will not be disturbed unless there is

no support for the findings in the certified record.”      Commonwealth v.

Weimer, 167 A.3d 78, 81 (Pa. Super. 2017), appeal denied, 176 A.3d 838

(Pa. 2017) (citation omitted).

      In his first issue, Appellant claims that 1) the PCRA court erred when it

failed to order amendment of Appellant’s first petition in order to correct

procedural deficiencies in accordance with Rule 905(B), and 2) the PCRA court

did not comply with Rule 907(1) when it failed to set forth its reason for

dismissal of the petition in its notice of intent to dismiss. (See Appellant’s

Brief, at 8-11).   Appellant claims that because of these omissions he was

prejudiced by not being able to amend his petition, or seek leave to correct



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any perceived deficiencies by filing an amended petition. We are constrained

to agree in part.

       “When a petition for post-conviction collateral relief is defective as

originally filed, the judge shall order amendment of the petition, indicate the

nature of the defects, and specify the time within which an amended petition

shall be filed.” Pa.R.Crim.P. 905(B) (emphasis added). The purpose of this

rule is “to provide PCRA petitioners with a legitimate opportunity to present

their claims to the PCRA court in a manner sufficient to avoid dismissal due to

a correctable defect in claim pleading or presentation.” Commonwealth v.

McGill, 832 A.2d 1014, 1024 (Pa. 2003) (citation omitted).

       Here, the PCRA court did not “order amendment of the petition, indicate

the nature of the defects, and specify the time within which an amended

petition shall be filed[,]” prior to issuing notice of its intent to dismiss

Appellant’s petition on April 19, 2017. Pa.R.Crim.P. 905(B); (see Notice of

Intent to Dismiss, 4/19/17). Appellant filed his timely response to the notice

on May 8, 2017, arguing, among other things, that under Rule 905(B), he

should have been permitted to amend his PCRA petition in order to update his

claim with regard to trial counsel calling Mark White as a witness. 2     (See

Response to Notice, 5/08/17, at unnumbered page 6).

       In its 1925(a) opinion, the PCRA court explained that it dismissed

Appellant’s claim of ineffective assistance of counsel for failing to interview
____________________________________________


2Appellant did not file a motion for leave to file an amended PCRA petition.
See Pa.R.Crim.P. 905(A).

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witness Mark White, as defective because it “failed to include the requisite,

signed certification for the proposed witness’s testimony . . . .” (PCRA Ct. Op.,

12/11/17, at 8) (record citations and unnecessary capitalization omitted).3

       Upon review, we are constrained to conclude that the PCRA court abused

its discretion in dismissing Appellant’s ineffective assistance claim related to

the witness Mark White based on procedural deficiencies, without “order[ing]

amendment of the petition” or providing Appellant with notice of “the nature

of the defects[.]”        Pa.R.Crim.P. 905(B); see McGill, supra at 1024.

Accordingly, we remand to the PCRA court for compliance with Rule 905(B)

with respect to Appellant’s ineffective assistance of counsel claim concerning

witness Mark White. See Commonwealth v. Robinson, 947 A.2d 710, 711

(Pa. 2008) (concluding that PCRA court did not comply with Rule 905(B) and

____________________________________________


3 In its opinion, the PCRA court explained that on May 25, 2017, “the law clerk
for the [PCRA court] emailed PCRA counsel, with Commonwealth counsel cc’d,
to confirm his intent to file an amended PCRA petition and informed the same
that he needed to file a motion for leave to file an amended PCRA [petition]
pursuant to Pa.R.Crim.P. 905(A)[.]” (PCRA Ct. Op., at 4) (unnecessary
capitalization omitted). On June 2, 2017, PCRA counsel replied, stating that
he would file the appropriate motion by the following week. Counsel later
emailed the law clerk, expanding the timeline and stating that he would file
the motion the week of June 19, 2017. The PCRA court dismissed Appellant’s
petition on Friday, June 23, 2017, having not received an official motion from
Appellant for leave to file an amended PCRA petition. (See id. at 4-5).

       It is unclear whether the court intended its law clerk’s email
correspondence to satisfy its responsibility under Rule 905(B) to “order
amendment of the petition[.]” Pa.R.Crim.P. 905(B). However, because
nothing in the certified record reflects that the court gave leave to amend the
petition to cure the defects, we decline to consider emailed correspondence
from the law clerk (which emails did not detail the nature of the defects), to
satisfy the PCRA court’s responsibility.

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remanding, after court dismissed petition because it lacked witness

certification, without providing notice of the defect).

      However, with respect to Appellant’s second and third claims of

ineffective assistance of counsel, we conclude that, because the PCRA court

dismissed those claims on the merits rather than because of procedural

deficiencies, (see PCRA Ct. Op., at 9), its dismissal did not violate Rule 905(B).

Therefore, Appellant’s Rule 905(B) challenge does not merit relief with respect

to his second and third claims of ineffective assistance of counsel.

      In the second part of his first issue, Appellant claims that the PCRA court

erred when it failed to comply with the requirements of Rule 907(1) that it

state in its notice of intent to dismiss the reasons for the dismissal. (See

Appellant’s Brief, at 8-11).

      Pennsylvania Rule of Criminal Procedure 907(1) provides, inter alia,

      . . . If the judge is satisfied from this review that there are no
      genuine issues concerning any material fact and that the
      defendant is not entitled to post-conviction collateral relief, and
      no purpose would be served by any further proceedings, the judge
      shall give notice to the parties of the intention to dismiss the
      petition and shall state in the notice the reasons for the
      dismissal. The defendant may respond to the proposed dismissal
      within 20 days of the date of the notice. The judge thereafter
      shall order the petition dismissed, grant leave to file an amended
      petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis added). “[A] Rule 907 pre-dismissal notice

affords a petitioner the opportunity to seek leave to amend his petition and

correct any material defects. The ultimate goal of this process is to permit




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merit review by the PCRA court of potentially arguable claims.”       Weimer,

supra at 86 (citations omitted).

      In Commonwealth v. Feighery, 661 A.2d 437 (Pa. Super. 1995), this

Court emphasized that Rule 907’s notice of intent to dismiss requirement is

mandatory, as is the Rule’s requirement that the notice provide the rationale

for the dismissal. See Feighery, supra at 439.

      In the instant case, the PCRA court’s notice of intent to dismiss reads,

in its entirety, as follows:

             AND NOW, this 19th day of April, 2017, upon consideration
      of Defendant’s Petition for Post-Conviction Collateral Relief (“PCRA
      Petition”), and the Commonwealth’s Answer and Motion to Dismiss
      Defendant’s PCRA Petition, this Court INTENDS TO DISMISS
      Defendant’s Petition WITHOUT A HEARING pursuant to
      Pa.R.Crim.P., Rule 907.

           Defendant may respond to this proposed dismissal within
      twenty (20) days of the date of this Notice. Clerk of Courts shall
      promptly file, serve, and docket this Notice pursuant to
      Pennsylvania Rules of Criminal Procedure, Rule 114.

(Notice of Intent to Dismiss, 4/19/17) (emphases in original).

      The notice does not state the reasons for the dismissal, and therefore

does not comply with the requirements set forth in Rule 907(1). (See id.);

Pa.R.Crim.P. 907(1).     However, despite the defects contained in the PCRA

court’s notice, Appellant filed a timely response to the notice of intent to

dismiss, arguing how the issues raised were, in fact, meritorious.           (See

Response to Notice, at unnumbered pages 1-8).           Thus, it appears that

Appellant was able to ascertain the reasons for the PCRA court’s intent to

dismiss and adequately formulate a response regardless of the defective Rule

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907(1) notice. Accordingly, although the PCRA court’s notice was deficient,

we do not conclude that Appellant was prejudiced by the court’s omission.

Appellant’s claim that the PCRA court did not comply with Rule 907 does not

merit relief.

      In his second issue, Appellant claims that he is entitled to relief because

“[e]ach of the three [ineffective assistance of counsel] claims have merit[,

and] [a]n evidentiary hearing is required to afford Appellant an opportunity to

prove [the] same.” (Appellant’s Brief, at 11; see id. at 11-17). We disagree.

            The governing legal standard of review of ineffective
      assistance of counsel claims is well-settled:

                       [C]ounsel is presumed effective, and to rebut
                that presumption, the PCRA petitioner must
                demonstrate that counsel’s performance was deficient
                and that such deficiency prejudiced him.         [See]
                Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
                2052, 80 L.Ed.2d 674 (1984). This Court has
                described the Strickland standard as tripartite by
                dividing the performance element into two distinct
                components. [See] Commonwealth v. Pierce, 515
                Pa. 153, 527 A.2d 973, 975 (1987). Accordingly, to
                prove counsel ineffective, the petitioner must
                demonstrate that (1) the underlying legal issue has
                arguable merit; (2) counsel’s actions lacked an
                objective reasonable basis; and (3) the petitioner was
                prejudiced by counsel’s act or omission. Id. A claim
                of ineffectiveness will be denied if the petitioner’s
                evidence fails to satisfy any one of these prongs.

            Furthermore, [i]n accord with these well-established criteria
      for review, [an appellant] must set forth and individually discuss
      substantively each prong of the Pierce test.

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016) (quotation

marks and some case citations omitted).


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       In his second claim of ineffectiveness,4 Appellant contends that “it is

virtually per se ineffectiveness [for trial counsel] to fail to file a 2119(f)

statement[;]” argues that his challenge to the discretionary aspect of his

sentence had merit; and claims that he was prejudiced because counsel’s

omission precluded consideration of his challenge to the discretionary aspects

of his sentence. (Appellant’s Brief, at 13; see id. at 12-13). We disagree.

       Since it is uncontested that appellate counsel did not preserve

Appellant’s challenge to the discretionary aspects of his sentence by filing a

2119(f) statement, and there is no reasonable basis for counsel’s failure to do

so while attempting to argue a discretionary claim, the first two prongs of the

Pierce test are met.5 See Roane, supra at 88. However, the final prong of

the Pierce test, that Appellant was prejudiced by counsel’s omission, and

would have been entitled to relief on his discretionary aspect of sentencing

claim, had it been perfected, is not met.

            Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
____________________________________________


4 Appellant’s second question concerns all three of his claims of ineffective
assistance of counsel; however, because we are remanding Appellant’s first
claim to the PCRA court, we only discuss his second and third claims of
ineffective assistance.

5  Although Appellant claims that counsel’s actions constituted per se
ineffectiveness, because counsel’s omission did not constitute actual or
constructive denial of counsel, we decline to apply the doctrine of presumed
prejudice. See Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa.
2007). Therefore, we apply the Strickland/Pierce test for Appellant’s claims
of ineffectiveness. See Roane, supra at 88.



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      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa. Super. 2007) (citation

omitted).

      Appellant has failed to demonstrate that he was prejudiced by counsel’s

omission because he has not proven that a new sentencing hearing would

have been granted, had counsel preserved his claim.        Even if we were to

assume that Appellant would have presented a substantial question that the

sentence imposed was against the Sentencing Code, our review of the

sentencing transcript reveals that the court did not abuse its discretion in

imposing sentence. See id.

      Here, the court had the benefit of a presentence investigative report

(PSI). (See N.T. Sentencing, 10/07/14, at 4). Additionally, the court heard

testimony from Appellant’s mother concerning his childhood.             It also

considered the information contained in the PSI, together with the facts and

evidence presented at the trials of Appellant and his co-conspirator, as well as

the letter from the victim’s mother, and the arguments of counsel. (See id.

at 25). The court then stated that the murder of the victim was a “very, very

violent crime[.]” (Id. at 27). The court explained that it reviewed Appellant’s

prior history and unfortunate circumstances, but concluded that his history

did not serve as an excuse or justification for his action. (See id. at 27-29).



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The court then sentenced Appellant to an aggregate sentence of not less than

thirty-seven nor more than seventy-four years of incarceration.6

       Upon review, the trial court did not abuse its discretion in imposing its

sentence.     See Hoch, supra at 517-18.           Therefore, we conclude that

Appellant did not prove that he was prejudiced by counsel’s failure to preserve

his challenge to the discretionary aspects of his sentence, and his ineffective

assistance of counsel claim asserting the same is meritless.       See Roane,

supra at 88.

       In his final claim of ineffectiveness, Appellant argues that trial counsel

was ineffective for failing to request a jury instruction on voluntary

manslaughter. (See Appellant’s Brief, at 13-15). He claims that he is entitled

to relief because the instruction would have been read to the jury if requested,

counsel did not have a reasonable basis for advising Appellant against

requesting an instruction, and he was prejudiced by the lack of such

instruction. (See id.). We disagree.

       As discussed above, “[t]his Court analyzes PCRA appeals in the light

most favorable to the prevailing party at the PCRA level.” Commonwealth

v. Charleston, 94 A.3d 1012, 1025 (Pa. Super. 2014), appeal denied, 104

A.3d 523 (Pa. 2014) (citations, internal quotation marks, and emphasis

omitted). “[V]iewing the prejudice question under the appropriate standard,

to establish prejudice from trial counsel’s failure to object to the challenged
____________________________________________


6The total aggregate sentence included the court’s sentence in the two other
cases where Appellant pleaded guilty. See supra, at *2-3.

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portion of the justification charge, Appel[ant] must show there is a reasonable

probability that, but for counsel’s error or omission, the result of the

proceeding would have been different.” Id. at 1026 (citations omitted).

      Here, the PCRA court found Appellant did not demonstrate that he was

prejudiced by counsel’s failure to request a voluntary manslaughter

instruction. It explained that

      the record is devoid of any indication that at the time [Appellant]
      killed [Victim] he acted under a sudden and intense passion
      resulting from serious provocation by [Victim]. . . . [T]he facts of
      the case . . . show a deliberate murder of Victim by Appellant,
      such that he went to the bar and laid in wait for Victim with his
      motive being to kill him before Victim could retaliate for
      Appellant’s prior, failed robbery and kidnapping of Victim’s
      nephew. The jury found beyond a reasonable doubt that these
      facts amounted to malice and a specific intent to kill, upon which
      the trial court instructed them. Notably, Appellant also was given
      an on-the-record colloquy, wherein Appellant stated it was his
      decision not to pursue a voluntary manslaughter instruction.
      Appellant cannot, then, instantly claim trial counsel was
      ineffective for failing to request such a charge and instruction, for
      which the record did not support anyway. . . .

(PCRA Ct. Op., at 13) (record citations and quotation marks omitted).

      On independent review, we conclude that Appellant has not proven

there is a reasonable probability that, if counsel had requested a voluntary

manslaughter instruction, the result of the trial would have been different.

See Charleston, supra at 1026. His unsupported speculation that, had it

been instructed with respect to voluntary manslaughter, the jury would have

convicted him as such, does not establish a reasonable probability. See id.

Accordingly, he has failed to prove that he was prejudiced by trial counsel’s



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decision, and his claim of ineffective assistance of counsel does not merit

relief. See Roane, supra at 88.

      Finally, because Appellant’s claims of ineffective assistance of counsel,

for failing to preserve the discretionary aspects of sentencing challenge and

failing to request a voluntary manslaughter jury instruction, are meritless, we

conclude that the PCRA court did not err in dismissing such claims without

conducting an evidentiary hearing. See Charleston, supra at 1028.

      Accordingly, we affirm the PCRA court’s order to the extent it dismissed

Appellant’s claims of ineffective assistance of counsel for failing to preserve

his challenge to the discretionary aspects of his sentence and failing to request

a voluntary manslaughter instruction as meritless.        We vacate the order

concerning Appellant’s claim of ineffective assistance of counsel with respect

to witness Mark White, and remand to the PCRA court to comply with Rule

905(B) and this decision.

      Order affirmed in part and vacated in part. Case remanded to the PCRA

court. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/18




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