J-S60028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEWELL POINDEXTER                          :
                                               :
                       Appellant               :   No. 366 MDA 2018

                 Appeal from the PCRA Order January 18, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0004424-2015,
                            CP-22-CR-0004426-2015


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

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 14, 2018

        Appellant Dewell Poindexter appeals pro se from the order dismissing

his first timely petition under the Post Conviction Relief Act1 (PCRA) without a

hearing.     Appellant asserts that his sentences for delivery of cocaine,2

possession with intent to deliver (PWID),3 and violations of the Uniform

Firearms Act (VUFA) for persons not to possess4 are illegal pursuant to

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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   35 P.S. § 780-113(a)(30).

3   35 P.S. § 780-113(a)(30).

4   18 Pa.C.S. § 6105(a).
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Alleyne v. United States, 133 S. Ct. 2151 (2013).5 Appellant argues that

his counsel provided ineffective assistance of counsel (IAC) for advising him

to plead guilty in light of the alleged Alleyne violation. Appellant also argues

IAC because his counsel failed to challenge the validity of the search warrant

for Appellant’s apartment. We affirm.

       The relevant factual background follows. Appellant delivered cocaine to

a confidential informant near Third and Calder Streets in Harrisburg,

Pennsylvania, on two separate occasions, June 4 and June 29, 2015. Each

delivery involved approximately five grams of cocaine. Following the second

delivery, police arrested Appellant near 222 Harris Street, Harrisburg, where

Appellant had been observed entering and exiting the building.            Police

recovered fifty baggies of heroin from Appellant’s person.

       Based on the deliveries of cocaine and the drugs recovered from

Appellant, police obtained a search warrant for an apartment at 222 Harris

Street. Inside the apartment, police found mail addressed to Appellant. Police

also recovered over ten grams of heroin, over 100 grams of cocaine, and two




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5 In Alleyne, the United States Supreme Court held that “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.” Alleyne, 133 S. Ct. at
2155 (citations omitted).




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handguns from the apartment, including one .380 caliber pistol and one .45

caliber pistol. Police additionally seized over $3,0006 in cash.

        Appellant was arrested and charged with two counts of delivery of

cocaine, criminal use of a communication facility7 and possession of drug

paraphernalia8 at docket CP-22-CR-0004424-2015.             At docket CP-22-CR-

0004426-2015, Appellant was charged with three counts of PWID, three

counts of possession of a controlled substance,9 possession of a small amount

of marijuana,10 possession of drug paraphernalia, and two VUFA charges.

        On December 10, 2015, Appellant’s counsel (plea counsel) initially filed

a suppression motion alleging that the Commonwealth failed to furnish a copy

of video surveillance in its possession, which allegedly captured the drug

transaction on June 29, 2015.            Omnibus Pretrial Motion, 12/10/15, at 2

(unpaginated). Trial counsel also challenged whether the search warrant for

the apartment was supported by probable cause. Id. at 4. The trial court

scheduled a hearing for February 22, 2016.


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6 Appellant asserts that $50,000 was taken from the apartment, but the police
reports and the guilty plea hearing do not reference such an amount. Indeed,
the alleged seizure of $50,000 is contained only in Appellant’s bald assertions.

7   18 Pa.C.S. § 7512(a).

8   35 P.S. § 780-113(a)(32).

9   35 P.S. § 780-113(a)(16).

10   35 P.S. § 780-113(a)(31).


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       At the hearing on February 22, 2016, instead of litigating the

suppression motion, Appellant entered a negotiated guilty plea and was

immediately sentenced. Under the terms of the plea agreement, Appellant

pled guilty to two delivery offenses at CP-22-CR-0004424-2015 and received

a sentence of three to six years of incarceration for each offense, to run

concurrently. At CP-22-CR-0004426-2015, Appellant pled guilty to PWID for

heroin and cocaine and to two VUFA charges for the drugs and two handguns

recovered from his apartment. For each offense at CP-22-CR-0004426-2015,

Appellant received a sentence of 5½ to 11 years of incarceration, each to run

concurrently. The sentences at both dockets were to run concurrently, for an

aggregate sentence of 5½ to 11 years of incarceration.11

       At the time Appellant entered his guilty plea, he filled out a guilty plea

colloquy form for each docket number indicating that he understood the

nature of the plea. The record reveals no discussions by plea counsel or the

court regarding former mandatory minimum sentences based upon either the




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11We note that the sentence of 5½ to 11 years of incarceration was proposed
by the Commonwealth. Once Appellant agreed to the plea, the record does
not reveal that the sentencing court considered Appellant’s prior record score
or offense gravity score before accepting the negotiated plea. We also note,
however, that defense counsel did not object, and Appellant waived a
presentence investigation in this matter.




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weight of the drugs recovered12 or the commission of drug offenses with

firearms.13

       Appellant did not file a post-sentence motion or direct appeal from his

judgments of sentence.

       The timely pro se PCRA petition giving rise to the instant appeal was

docketed on March 3, 2017.             The PCRA court appointed counsel (PCRA

counsel), who filed a Turner/Finley14 motion to withdraw on August 21,

2017. Appellant filed a response titled “Objections to Counsel’s Finley Letter”

that was docketed on October 2, 2017. In his objections to PCRA counsel’s

motion to withdraw, Appellant argued that plea counsel was ineffective for

advising him to plead guilty when the sentences violated Alleyne. Objections

to Counsel’s Finley Letter, 10/2/17, at 3. Appellant also argued that plea

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12 See 18 Pa.C.S. § 7508. If Section 7508 applied to Appellant’s deliveries of
approximately five grams of cocaine, he would have been subject to a
minimum sentence of three years of incarceration and a $10,000 fine for each
offense. See 18 Pa.C.S. § 7508(a)(3)(i). If Section 7508 applied to
Appellant’s possession of the cocaine and heroin found in his apartment, he
would have been subject to a sentence of four years of incarceration and a
fine of $25,000, and a sentence of three years of incarceration and a fine of
$15,000, respectively. See 18 Pa.C.S. §§ 7508(a)(3)(iii), (a)(7)(ii); but see
Commonwealth v. Cardwell, 105 A.3d 748, 754-55 (Pa. Super. 2014)
(holding that 18 Pa.C.S. § 7508 is unconstitutional in its entirety).

13See 42 Pa.C.S. § 9712.1(a). If Section 9712.1 applied, Appellant would
have been subject to a minimum sentence of five years of incarceration for
the PWID offenses. Id.; but see Commonwealth v. Newman, 99 A.3d 86,
88 (Pa. Super. 2014) (en banc) (finding that Alleyne “indicate[d] that the
sentencing practice under [42 Pa.C.S.] 9712.1 [was] unconstitutional”).

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

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counsel failed to investigate the Commonwealth’s evidence and whether the

contraband from the residence searched actually belonged to Appellant. Id.

at 4.

        The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss

Appellant’s PCRA petition on October 31, 2017, and granted PCRA counsel’s

motion to withdraw. The PCRA court noted that

        [Appellant] claims he is eligible for post-conviction relief because
        he was sentenced in violation of Alleyne v. United States, 133
        S. Ct. 2151 (2013). However, Alleyne does not apply to
        [Appellant’s] case. Alleyne holds that any fact that triggers the
        application of a mandatory minimum sentence for a crime must
        be submitted to the fact finder and the fact finder must find that
        fact beyond a reasonable doubt. However, [Appellant] was not
        sentenced to a mandatory minimum. Rather, he pled guilty
        following a negotiated plea. At no time did the Commonwealth
        request a mandatory minimum sentence.[fn2]

               While a claim of ineffective assistance of counsel can
           [fn2]

           invalidate a guilty plea, counsel’s ineffectiveness “will serve
           as a basis for relief only if the ineffectiveness caused the
           defendant to enter an involuntary or [un]knowing plea.”
           Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.
           Super. 2002). [Appellant’s plea counsel] did not advise
           [Appellant] that he was facing a mandatory minimum
           sentence, because [Appellant] was not facing such a
           sentence. Thus, there can be no merit to a claim that
           counsel should have advised [Appellant] that he was facing
           a mandatory minimum.

Notice of Intention to Dismiss Petition for Post-Conviction Collateral Relief,

10/31/17, at 2 (emphasis in original).        In response, Appellant re-filed his

previous response titled “Objections to Counsel’s Finley Letter.”

        The PCRA court entered an order dismissing Appellant’s PCRA petition

on January 18, 2018. Appellant filed an amended PCRA petition without leave


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of court, which was docketed on January 26, 2018. Along with reiterating the

same claims that he had previously raised, Appellant asserted that appointed

PCRA counsel had a conflict of interest since Appellant and his brother had

brought misconduct charges against the firm where PCRA counsel worked.

See Amended PCRA Petition, 1/26/28, at 5. Appellant attached a letter to the

petition regarding the allegation, which he had apparently mailed to the trial

court. The letter was stamped as being received by the court on September

25, 2017, but otherwise does not appear in the certified record.

        Appellant filed a pro se notice of appeal dated February 14, 2018, but

docketed on February 22, 2018.15 The PCRA court ordered Appellant to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal within

twenty-one days of the entry of the order on March 8, 2018. Appellant filed

a concise statement that was dated March 27, 2018, but was docketed on

April 4, 2018.16 The PCRA court complied with Pa.R.A.P. 1925(a) by referring

to the reasons for its dismissal of Appellant’s PCRA petition as contained in its

Rule 907 notice.




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15 See Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006)
(stating that “[p]ursuant to the ‘prisoner mailbox rule,’ a document is deemed
filed when placed in the hands of prison authorities for mailing”).

16   See Wilson, 911 A.2d at 944 n.2.




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         Appellant’s arguments that can be reasonably discerned from his brief17

include the following. Appellant argues that plea counsel’s advice to take the

negotiated plea constituted IAC because Appellant was sentenced to

mandatory minimum sentences in violation of Alleyne as part of the deal.

Appellant’s Brief at 9. Appellant asserts that he wanted a trial but entered the

plea involuntarily after plea counsel advised him that he would not win a

suppression motion due to video surveillance of Appellant selling cocaine. Id.

at 15.

         Appellant further asserts that plea counsel failed to challenge the

search warrant for his apartment, arguing that the Commonwealth did not

offer a lease establishing he was a renter in the building.       Id. at 10-11.

Appellant argues that plea counsel failed to investigate the seizure of $50,000


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17Appellant included the following in his statement of issues presented on
appeal:

         1. The imposed sentence.

         2. Ineffective assistance of counsel.

         3. Miscarriage of justice.

Appellant’s Brief at 4. However, we are able to discern from other portions of
Appellant’s brief that he asserts specific IAC claims regarding plea counsel and
a conflict of interest with appointed PCRA counsel. Id. at 9-16. Accordingly,
we address these claims. See Commonwealth v. Lyons, 833 A.2d 245, 252
(Pa. Super. 2003) (noting that even though “[t]he statement of the
[appellant’s] twelve ‘[q]uestions [i]nvolved’ [bore] no relation to the eight
sections of the argument or the divisions within the argument[,]” this Court
would address the arguments that could “reasonably be discerned” from the
brief).


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from the apartment. Id. at 11. Additionally, Appellant asserts that there was

no prima facie case of VUFA, arguing that finding the firearms in the apartment

did not prove he possessed them. Id. at 9-10. Appellant argues that even if

the fact that the firearms were in the apartment proved he possessed them,

he was nevertheless illegally sentenced to a mandatory minimum sentence.

Id. at 10.

      In addition to his IAC claims, during the course of the PCRA proceedings,

Appellant raised an issue arguing that appointed PCRA counsel should not

have represented him because of a conflict of interest. In particular, Appellant

asserts that he and his brother brought misconduct charges against PCRA

counsel’s firm regarding a separate matter. Id.

      We note that “[o]ur standard of review for issues arising from the denial

of PCRA relief is well-settled. We must determine whether the PCRA court’s

ruling is supported by the record and free of legal error.” Commonwealth

v. Johnson, 179 A.3d 1153, 1156 (Pa. Super. 2018) (citation omitted).

      When we consider an IAC claim, we apply the following principles:

      The law presumes counsel has rendered effective assistance. The
      burden of demonstrating ineffectiveness rests on [the
      a]ppellant. To satisfy this burden, [the a]ppellant must plead and
      prove by a preponderance of the evidence 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. Failure
      to satisfy any prong of the test will result in rejection of the
      appellant’s ineffective assistance of counsel claim.



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Id. at 1158 (internal quotation marks and citations omitted). As to IAC claims

in the context of a challenge to counsel’s advice to enter a guilty plea,

      all constitutionally-cognizable claims of ineffective assistance of
      counsel may be reviewed in a PCRA petition. The Sixth
      Amendment guarantees the effective assistance of counsel at all
      stages of a criminal proceeding, including during the plea
      process. If the ineffective assistance of counsel caused the
      defendant to enter an involuntary or unknowing plea, the PCRA
      will afford the defendant relief.

Commonwealth v. Lynch, 820 A.2d 728, 731-32 (Pa. Super. 2003)

(citations omitted).

      We initially consider Appellant’s assertion that he was sentenced to

mandatory minimum sentences. While the sentences of three to six years of

incarceration for each delivery of cocaine at docket CP-22-CR-0004424-2015

coincide with the three-year minimum sentence in Section 7508(a)(3)(i),

Appellant was not fined as required by that statutory section, and the

Commonwealth did not seek mandatory minimum sentences.               Appellant’s

sentences of 5½ to 11 years of incarceration for possession of cocaine and

heroin recovered from the apartment at docket CP-22-CR-0004426-2015

exceed the statutory minimums in Section 7508(a)(3)(iii) and (a)(7)(ii).

However, neither sentence included the fine provided in each relevant

subsection of Section 7508, and the Commonwealth did not seek mandatory

minimum sentences for these offenses.

      The former mandatory sentence for the commission of drug offenses

with firearms in Section 9712.1(a) was a five-year minimum sentence.

Appellant was sentenced to 5½ to 11 years of incarceration for each of his

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PWID offenses. Thus, Appellant was sentenced to a period of incarceration

beyond the mandatory minimum in Section 9712.1. See Commonwealth v.

Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (noting that where the

sentencing court exceeded the mandatory minimum sentence, “the court did

not sentence the defendant based on [a] mandatory [minimum] statute, and

his sentence [was] not illegal on that ground”). Moreover, because the record

contains no discussion of mandatory minimum sentences from either the court

or counsel, and because the Commonwealth did not seek a mandatory

minimum sentence, we find that one was not imposed here.

        For the foregoing reasons, we agree with the PCRA court that Appellant

was not sentenced to any mandatory minimum sentences.                Accordingly,

Appellant has failed to establish any arguable merit to his claim that plea

counsel’s advice to plead guilty was unconstitutionally inadequate on this

basis. See Johnson, 179 A.3d at 1160.

        Appellant next argues that the advice to take the plea deal constituted

IAC because he wanted to go to trial but was coerced into entering an

involuntary guilty plea. According to Appellant, plea counsel advised Appellant

to take the negotiated plea on the basis that a suppression motion would likely

fail.

        Regarding the grounds for a suppression motion challenging probable

cause for a search warrant, we note the following:

        The linch-pin that has been developed to determine whether it is
        appropriate to issue a search warrant is the test of probable cause.
        Probable cause exists where the facts and circumstances within

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      the affiant’s knowledge and of which he has reasonably
      trustworthy information are sufficient in themselves to warrant a
      man of reasonable caution in the belief that a search should be
      conducted.

Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011) (internal quotation

marks and citations omitted).     The totality of the circumstances must be

considered in determining whether probable cause to conduct a search

existed. Id.

      In Clark, a suspected drug dealer was seen leaving a residence and

selling cocaine to a confidential informant (CI). Id. at 1285. On this basis,

police sought and were issued a search warrant for the residence the drug

dealer was seen exiting. Id. at 1286. The trial court granted a suppression

motion regarding the cocaine, drug paraphernalia, and a loaded handgun that

were recovered from the residence. Id. The trial court cited concerns about

assessing the CI’s reliability and the fact that the CI had never been inside the

residence. Id. This Court affirmed the trial court’s grant of the suppression

motion. Id.

      The Pennsylvania Supreme Court granted allowance of appeal and

reversed the order granting suppression on the following basis:

      The trial court and the Superior Court in the present matter
      reasoned that even under the totality-of-the-circumstances, the
      affidavit of probable cause failed to show the “reliability” and “the
      basis of knowledge” of the CI. The lower courts reasoned that the
      CI’s “reliability” had not been shown because the affidavit did not
      contain a specific incantation that the CI had in the past provided
      information that had led to arrests. Additionally, the lower courts
      here determined that the circumstances failed to support a
      reasonable probability that drugs would be found inside the
      residence because the affidavit did not contain a statement


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      regarding the CI’s basis of knowledge on that point. The lower
      courts’ reasoning in both respects was flawed.

                                     ***

      The totality of the circumstances here included the fact that the
      police corroborated significant details of the informant’s tip by
      conducting and observing, the day before they applied for the
      search warrant, a controlled buy of narcotics that dovetailed
      precisely with the information the CI had provided. Indeed,
      the only portion of the CI’s information that the police had not
      verified was where the cocaine was stashed. Although the
      observed facts pointed to 4242 Salmon Street as the stash house,
      the lower courts here erroneously determined that probable cause
      to search that residence was lacking, in part, because the CI had
      not stated that he had previously been inside that residence.

Id. at 1288-89 (emphases in original).

      In Johnson, the defendant asserted an IAC claim in the PCRA context

based upon his counsel’s advice to continue with a guilty plea rather than

withdraw it.     Johnson, 179 A.3d at 1159.      Johnson’s counsel made the

recommendation to continue with the guilty plea since Johnson had waived

his right to litigate a suppression motion by taking the plea deal. Id.

      In disposing of the claim of IAC in that context, the Johnson Court

indicated that

      [w]here a defendant alleges that counsel ineffectively failed to
      pursue a suppression motion, the inquiry is whether the failure to
      file the motion is itself objectively unreasonable, which requires a
      showing that the motion would be meritorious. That stands in
      stark contrast to [the a]ppellant’s contention that prejudice is
      limited to asking whether the motion simply would have
      been filed. The prejudice inquiry still requires the defendant to
      establish that he would have filed the motion and proceeded to
      trial instead of accepting the plea, not simply that he would have
      filed the motion.

      On the other hand, where the claim is that counsel ineffectively
      advised the defendant to accept a plea, the question is simply

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      whether that advice itself is constitutionally sound. Where the
      defendant enters his plea on the advice of counsel, the
      voluntariness of the plea depends on whether counsel’s advice
      was within the range of competence demanded of attorneys in
      criminal cases. In other words, a defendant need not be apprised
      of every possible suppression motion as a predicate to a finding
      that the plea was voluntary, because the decision to seek
      suppression is left to counsel as a matter of strategy in the event
      a plea bargain is not reached.

Johnson, 179 A.3d at 1160 (internal quotation marks, footnote, and citations

omitted).

      Applying the foregoing analysis, the Johnson Court concluded that the

petitioner in that case “made no showing whatsoever that the advice to accept

the plea was not within the range of constitutionally competent advice.” Id.

Moreover, “counsel was obviously aware of potential suppression motions by

virtue of the fact that she litigated them, and subsequently advised [the

defendant] to accept the plea instead of continuing to proceed with the

motions.”   Id.   This Court also determined that Johnson’s counsel had a

“reasonable strategic basis designed to effectuate [his] interests” since he

received an “excellent plea [and] the consequences [would] likely [have been]

much, much worse after a losing trial than following a plea to lesser charges.”

Id. at 1161.

      Here, plea counsel filed a suppression motion but did not litigate it on

the day of argument because Appellant pled guilty instead. Assuming we were

to consider the fact that plea counsel stopped litigating the suppression motion

as a failure to challenge the validity of the search warrant, counsel did not

provide IAC because the suppression motion was unlikely to succeed. Police


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obtained a search warrant for Appellant’s apartment based on the fact that

police knew that Appellant lived in the apartment from seeing him coming and

going from the residence and based upon Appellant’s sales of cocaine to a

confidential informant. The fact that no lease was provided incident to the

search is irrelevant since the information known about Appellant and his drug

sales provided sufficient probable cause to search the apartment. See Clark,

28 A.3d at 1288-89.     Therefore, Appellant’s suppression motion was not

meritorious. Accordingly, Appellant’s argument lacks arguable merit. See

Johnson, 179 A.3d at 1160.

     Tied into his argument regarding the validity of the search warrant for

the apartment, Appellant asserts that the recovery of firearms from the

apartment did not constitute his constructive possession of the weapons. This

argument    is   contrary   to   well-established   case   law.    See,   e.g.,

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (noting

that “[i]llegal possession of a firearm may be established by constructive

possession” such as when it was recovered from within a defendant’s

residence, even if it was accessible to other family members (citation

omitted)). As to Appellant’s argument that plea counsel failed to investigate

the seizure of $50,000, we note that the record does not reveal that such an

amount of cash was taken from Appellant’s apartment.          Accordingly, plea

counsel was not ineffective regarding these issues.

     Finally, we address Appellant’s assertion that appointed PCRA counsel

should not have represented Appellant on PCRA because of a conflict of

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interest. Initially, we note that Appellant did not raise this issue at his first

opportunity to do so. It was only after PCRA counsel attempted to withdraw

that Appellant apparently sent a letter regarding the representation to the

PCRA court.18      Additionally, at no time did Appellant request new counsel

under Pa.R.Crim.P. 122(C) (requiring “substantial reasons” in a motion for

change of counsel where a defendant has been appointed counsel).

       For the foregoing reasons, Appellant is not entitled to relief under the

PCRA.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2018




____________________________________________


18 Notably, this letter does not appear in the record except as an attachment
to Appellant’s amended PCRA petition that was filed without leave of court.

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