J-S53024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

SHERMAINE ANTHONY CAVE,

                         Appellant                   No. 271 EDA 2017


              Appeal from the PCRA Order December 19, 2016
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0002337-2014


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 18, 2017

      Appellant, Shermaine Anthony Cave, appeals pro se from the order

entered on December 19, 2016, denying Appellant relief on his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      The PCRA court explained the underlying facts and procedural posture

of this case. We quote, in part, the trial court’s summary.

        On November 11, 2014, Pennsylvania State Police troopers
        stopped the car in which [Appellant] was riding as a
        passenger for speeding. The car was owned and driven by
        [Appellant’s] girlfriend or ex-girlfriend.        Based on
        observations made and information learned by the troopers
        during the stop, as well as their interactions with
        [Appellant] and the driver, the troopers called in a K-9 unit
        to perform an exterior sniff of the vehicle. The dog alerted
        to the presence of narcotics and actually jumped into the
        vehicle through an open window.
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       The vehicle, [Appellant], and the driver were transported
       back to the police barracks. A search warrant was obtained
       and a search of the vehicle uncovered approximately [12]
       pounds of suspected marijuana and [91] clear plastic
       baggies. During a subsequent interview, [Appellant] . . .
       admitted that the marijuana was his. . . .

       [Appellant] was arrested and charged with possession with
       intent to deliver (PWID) a controlled substance and related
       offenses. He retained [] private counsel of his choosing
       (“Plea Counsel”).

       [Appellant] and Plea Counsel discussed the possibility of
       filing a motion to suppress the results of the search, a plea
       to PWID being offered by the Commonwealth, and the
       relative merits of accepting the plea versus going to trial.
       Discussions took into consideration Plea Counsel’s
       considered opinion that a suppression motion would likely
       not be fruitful because counsel believed, among other
       things, that [Appellant] lacked the requisite expectation of
       privacy to challenge the search since he was neither the
       owner nor operator of the vehicle that was searched.
       Discussions also took into consideration [Appellant’s]
       admission and his strong and consistent desire to protect
       his ex-girlfriend.   Plea Counsel gave [Appellant] a full
       assessment of his case and trial prospects. In the end,
       [Appellant] made a conscious decision to accept the
       Commonwealth’s plea offer and to insulate, or at least
       minimize the criminal consequences for, his friend.

       On July 16, 2015, after several defense delays, [Appellant
       pleaded] guilty to PWID. The plea was effectuated through
       a written guilty plea form that was signed by [Appellant]
       and Plea Counsel and was accompanied by a thorough oral
       colloquy conducted by the [trial] court. Plea Counsel went
       over and explained the form to [Appellant] and was present
       with [Appellant] for the colloquy and acceptance of the plea.

       [On December 18, 2015, Appellant] was [] sentenced to
       [18] to [60] months in [prison]. [Appellant] did not file a
       direct appeal. . . .

       On August 19, 2016, [Appellant] filed a pro se PCRA petition
       alleging ineffective assistance of counsel.      [Appellant]

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        claim[ed] that Plea Counsel was ineffective for failing to file
        a suppression motion challenging the search of his friend’s
        car. According to [Appellant], Plea Counsel’s failure to file
        such a motion resulted in a “coerced” guilty plea. In
        addition, [Appellant] alleg[ed] that, at the time he entered
        his plea, he believed he was pleading to simple possession
        rather than PWID.

        After the PCRA petition was filed, [the PCRA court]
        scheduled a hearing and appointed the Monroe County
        Public Defender’s Office to represent [Appellant].      On
        October 6, 2016, the assigned public defender filed [a no-
        merit letter and a request to withdraw as counsel, pursuant
        to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
        and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
        1988) (en banc)].

PCRA Court Opinion, 2/21/17, at 1-3.

      On December 19, 2016, the parties appeared before the PCRA court

for the scheduled hearing.   However, at the beginning of the hearing, the

PCRA court declared that it would first rule upon appointed counsel’s petition

to withdraw. N.T. PCRA Hearing, 12/19/16, at 4-5. After hearing argument

from counsel and Appellant, the PCRA court declared:

        Well, you know[, Appellant,] I had a chance to read the file.
        I had a chance to read the Turner/Finley [no-merit] letter.
        I had a chance to read the motion to withdraw and now to
        hear what we argued about today and you know I have to
        agree with counsel, you know, on several matters.

        First let’s work backwards. The plea – I don’t believe that
        there’s any real issue with respect to that because there
        was a plea form that was signed that you signed.

        You and I had a colloquy which is a fancy way of saying a
        discussion about that form and your plea.       There was
        absolutely no question about what the plea was for.




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       Then you were sentenced on that plea and there was no
       question about the fact that it was a possession with intent
       to deliver as opposed to possession or some other type of a
       crime. So I don’t think that goes anywhere and I believe
       there is no merit to that and I think that’s a point well taken
       from the attorney’s Turner/Finley letter.

                                    ...

       With respect to the fact that you were coerced into the plea;
       again we had that same colloquy, you signed the written
       form, we had the sentencing. I was there. You know there
       was no coercion. Whether someone suggested that you’d
       be silly if you didn’t do it or that you could be facing other
       consequences doesn’t necessarily mean coercion.

       And then finally with respect to the stop, you know the
       record just doesn’t support a violation. I know you want to
       read it differently I know you want to interpret the law
       differently; but I think that counsel has done a pretty good
       job of that.

       So I’m going to grant counsel’s motion to withdraw. . . .
       [Plea Counsel] who represented you is here and I know that
       you have some legal argument that you would like to have
       made and so if you want to I’ll give you a chance to make
       that argument and then a chance to file a brief if you would
       like to on your own; or if you want to see if you can get
       another attorney to come and represent you I’ll give you
       some time to do that.

       So I’m going to grant the petition of the Public Defender’s
       Office . . . to withdraw in this case believing that they have
       met the standards.

N.T. PCRA Hearing, 12/19/16, at 8-10.

     In granting counsel’s petition to withdraw, the PCRA court explicitly

held that there was no merit to any of Appellant’s claims and that “no

purpose would be served by any further proceedings.” N.T. PCRA Hearing,

12/19/16, at 8-10; Pa.R.Crim.P. 907(1).      Therefore, under the Rules of


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Criminal Procedure, the PCRA court should have concluded the proceeding

and given Appellant notice that it intended to dismiss the petition in 20 days,

without holding a hearing. Pa.R.Crim.P. 907(1). However, instead of ending

the proceeding and issuing Appellant the requisite notice pursuant to

Pennsylvania Rule of Criminal Procedure 907, the PCRA court continued with

the hearing – where Appellant acted pro se – and heard testimony from Plea

Counsel. See N.T. PCRA Hearing, 12/19/16, at 13-19. The PCRA court then

denied Appellant relief on his claims.

      Appellant filed a timely notice of appeal and Appellant now raises the

following claims to this Court:

        [1.] Was the PCRA court’s dismissal of [] Appellant’s PCRA
        petition unsupported by the record; and based on legal
        error, because his detention was in violation of his
        constitutional rights pursuant to the 4th Amendment of the
        U.S. Const. and Article 1, Section 8 of the Pa. Const.

        [2.] Was the PCRA court’s dismissal of [] Appellant’s PCRA
        petition unsupported by the record and based on legal error,
        because Appellant’s conviction violated the due process
        clause of the [14th] Amendment to the U.S. Const. and due
        process clause of the Pa. Const.; and prior counsel was
        ineffective for failing to argue the above issue(s) (inter alia).

        [3.] Was the PCRA court in error by not finding Appellant’s
        plea   was     unlawfully  coerced,     based    on    the
        supported/attached documents plus, all herein.

Appellant’s Brief at 5 (some internal capitalization omitted).

      Appellant has failed to support the above claims with any relevant

argument. To be sure, Appellant’s argument to this Court consists entirely

of   conclusory   and   undeveloped      legal   quotations   and   citations   and


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incomprehensible statements.           See id. at 6-12.   Further, Appellant has

failed to explain how any of the cited law applies to his particular case. Id.

This substantially impedes our ability to conduct effective appellate review of

Appellant’s claims.      Therefore, Appellant’s claims on appeal are waived.1

Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999) (“[the

Pennsylvania Supreme Court] has held that an issue will be deemed to be

waived when an appellant fails to properly explain or develop it in his brief”);


____________________________________________


1
  As noted above, at the beginning of the scheduled evidentiary hearing, the
PCRA court granted counsel’s petition to withdraw and concluded that “there
[were] no genuine issues concerning any material fact and that [Appellant]
is not entitled to post-conviction collateral relief, and no purpose would be
served by any further proceedings.” See N.T. PCRA Hearing, 12/19/16, at
8-10; Pa.R.Crim.P. 907(1). At that point, the PCRA court should have ended
the proceeding and issued Appellant notice that it intended to dismiss
Appellant’s PCRA petition in 20 days, without holding a hearing.
Pa.R.Crim.P. 907(1). The PCRA court failed to give Appellant the requisite
notice and mistakenly continued with an unnecessary evidentiary hearing
that Appellant was not entitled to receive under the Rules of Criminal
Procedure – and, if Appellant were entitled to the hearing (which Appellant
was not), Appellant would have had a rule-based right to have counsel
represent him at the hearing.         See Pa.R.Crim.P. 904(C) and 908(C).
Nevertheless, since Appellant’s PCRA petition had no merit, since Appellant
was not entitled to an evidentiary hearing, and since the PCRA court
properly granted counsel’s petition to withdraw, the PCRA court did not
violate Appellant’s rule-based right to counsel. Further, since Appellant does
not claim that the PCRA court erred in failing to issue the required Rule 907
notice, any such claim is waived. Commonwealth v. Taylor, 65 A.3d 462,
467 (Pa. Super. 2013) (“[t]he failure to challenge the absence of a Rule 907
notice constitutes waiver”); Commonwealth v. Boyd, 923 A.2d 513, 514
n.1 (Pa. Super. 2007) (“[a]lthough the notice requirement set forth in Rule
907 has been held to be mandatory, Appellant has not objected to its
omission and thereby has waived the issue”) (internal citations omitted).




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Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (“to the extent

appellant’s claims fail to contain developed argument or citation to

supporting authorities and the record, they are waived”); Commonwealth

v. Rivera, 685 A.2d 1011, 1013 (Pa. Super. 1996) (“[w]hile this Court is

willing to liberally construe materials filed by a pro se litigant, [an a]ppellant

is not entitled to any particular advantage because she lacks legal training. .

. . [W]e decline to become the appellant’s counsel. When issues are not

properly raised and developed in briefs, when the briefs are wholly

inadequate to present specific issues for review[,] a [c]ourt will not consider

the merits thereof”) (internal quotations and citations omitted).

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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