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NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
TYREE A. LAWSON,                           :
                                           :
                    Appellant              : No. 3005 EDA 2013

                 Appeal from the Order entered October 17, 2013,
                   Court of Common Pleas, Montgomery County,
                 Criminal Division at No. CP-46-CR-0000542-2009


COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
TYREE A. LAWSON,                           :
                                           :
                    Appellant              : No. 3008 EDA 2013

                 Appeal from the Order entered October 7, 2013,
                   Court of Common Pleas, Montgomery County,
                 Criminal Division at No. CP-46-CR-0000542-2009

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED SEPTEMBER 19, 2014



first dismissing his petition for relief pursuant to the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-



herein, we affirm both orders.
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appeal, this Court provided the following brief factual and procedural history

of the case:

               Lawson was charged with various crimes from a
               vicious home invasion robbery that occurred on June
               12, 2006. Early that morning, Nancy Hevener went

               truck while he was showering. Upon opening the
               door to re-enter her home, she was assaulted from
               behind by an assailant with a stocking over his face.
               As the assailant rushed post her into her home,
               Nancy screamed to her husband. Upon responding

               kitchen charging him. A melee ensued, with the
               assailants striking both Heveners repeatedly, and


               After a lengthy investigation, Lawson was linked to
               the crime in various ways including DNA evidence,
               and was arrested on January 13, 2009. Lawson was
               represented by a series of counsel, but on May 4,
               2010, elected to waive his right to counsel and to
               proceed pro se. Thereafter, Lawson filed several pro
               se pre-
               pre-trial motions, and a jury ultimately found Lawson
               guilty of three counts of robbery-serious bodily injury
               [18 Pa.C.S.A. § 3701(a)(1)], burglary [18 Pa.C.S.A.
               § 3502], conspiracy to commit robbery [18 Pa.C.S.A.
               § 903], and conspiracy to commit burglary
               [18 Pa.C.S.A. § 903]. The trial court sentencing
               Lawson to an aggregate term of imprisonment of
               nineteen to sixty years, to run consecutively to any
                                                                     -
               sentence motions were denied by the trial court, and
               this timely appeal followed.

Commonwealth v. Lawson, 1705 EDA 2011 (Pa. Super., August 7, 2012)

(unpublished memorandum).



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four issues: (1) whether the trial court erred in dismissing his suppression

motion as untimely; (2) whether the trial court properly dismissed his

motion pursuant to Rule 600 of the Pennsylvania Rules of Criminal



misconduct were waived due to an ambiguous presentation of the issue in

his concise statement of the questions on appeal pursuant to Rule 1925 of

the Pennsylvania Rules of Appellate Procedure; and (4) whether Lawson

waived his discretionary sentencing issues. As at trial, Lawson represented

himself pro se during his direct appeal.

      On June 18, 2013, Lawson filed a pro se PCRA petition, and on July 2,

2013, he filed an amended PCRA petition. In these filings, Lawson raised six

issues:

      (1)   He was denied a fair trial because the
            Commonwealth introduced fabricated evidence at
            trial (the DNA evidence);

      (2)   He was denied a fair             trial because the
            Commonwealth        knowingly   introduced  perjured
            testimony at trial;

      (3)   He was denied his constitutional right to litigate the
            issues in his suppression motion;

      (4)   He was denied the effective assistance of counsel at
            his formal arraignment on April 20, 2009;

      (5)   The colloquy of record pursuant to which he waived
            his right to counsel was insufficient and defective,



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            and thus he was deprived of his constitutional right
            to counsel at trial; and

      (6)   His sentence was illegal because the trial court relied
            on impermissible sentencing factors and because
            various of his crimes merged for sentencing
            purposes.

Amended PCRA Petition, 7/2/2013, at ¶ 3.

      On June 24, 2013, the trial court appointed William McElroy, Esq.



petition.   On   September     3,   2013,   Attorney   McElroy,   pursuant   to

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), filed a petition

to withdraw as counsel for Lawson with respect to the six issues set forth in



Attorney McElroy identified a separate issue of arguable merit, namely that

              s sentence was illegal because Lawson was sentenced on two

counts of conspiracy even though the evidence showed that only one

conspiratorial relationship existed. On September 4, 2013, Attorney McElroy

filed a Motion to Modify Sentence. On September 16, 2013, the trial court



amended PCRA petition in 20 days pursuant to Rule 907 of the Pennsylvania

Rules of Criminal Procedure; (2) advising that it also intended to dismiss

Attorn




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respect to the six issues raised by Lawson, but not as to the separate

sentencing issue preserved in the Motion to Modify Sentence.1

       On October 7, 2013, exactly 20 days after its Rule 907 notice of intent




around October 7, 2013, La




issues set forth in his Amended PCRA petition and also asserted a new issue

    namely, that Attorney McElroy provided ineffective assistance of counsel

by making one or more false statements in his Finley letter relating to the

allegedly fabricated DNA evidence on the nylon stocking.      On October 10,

2013, Lawson filed

court denied without prejudice by order dated October 17, 2013.

       On October 29, 2013, Lawson filed notices of appeal from the trial

                                                                         ction




1
   During its review of the record, the trial court identified a separate
sentencing issue, and on this same date (September 16, 2013) it
resentenced Lawson on the conspiracy to commit robbery conviction to a
term of 5 to 10 years of incarceration (rather than the 6 to 10 year term set

                                                                      om this
order has been filed.


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with his appeal from the October 7, 2013 order, Lawson presents the

following issues for our consideration and determination:

     1.    The PCRA court committed judicial error and/or
           abuse of discretion pursuant to Pa.R.Crim.P. 907(A)
           by its failure to independently review and address



           DNA.

     2.    The PCRA court committed judicial error and/or
           abuse of discretion by its failure to independently
           review or address the meritorious PCRA claim of
           inadequate waiver of counsel colloquy.

     3.    The PCRA court committed judicial error and/or
           abuse of discretion by its failure to independently
           review or address the PCRA presented meritorious
           claim of being denied the Sixth Amendment right of
           counsel during a critical stage of the proceedings.

     4.    The PCRA court committed judicial error and/or
           abuse of discretion by its failure to independently

           presented claims of illegal sentence .. and based its

           ineffectiveness.

     5.    The trial court after issuing its pre-dismissal notice to
           dismiss denied [Lawson] of a full and fair opportunity
           to contest PCRA co

           proceedings without addressing the timely filed
           response.




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                     -5.2 In connection with his appeal from the October 17,

2013 order, Lawson presents a single issue for our review:

       1.    Whether the trial court committed an abuse of
             discretion and/or judicial error of law by its failure to
             follow the statutory construction of 42 Pa.C.S.A. §
             6503(b) regarding the filed petition for a writ of
                                                  the court without
             addressing the grounds for relief, dismissed that
             application as being a second and subsequent PCRA
             petition and thereby failing to address the illegality


                                                           turn.

       For his first issue on appeal, Lawson contends that the trial court erred




appellate   brief,   Lawson   specifically   refers   to   two     instances   of   the




against him without correcting his testimony that he did not receive a deal

from the Commonwealth (in the form of a sentence below the guideline

recommendations in exchange for his testimony).              Id. at 13.        Second,

Lawson insists that at trial the Commonwealth introduced into evidence a




2
    We have renumbered the issues for ease of disposition.


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nylon stocking found at the crime scene with his DNA on it, even though it

had forcibly seized this evidence with a fraudulent search warrant. Id.



upon his own failures while representing himself at trial and on direct

appeal. Trial Court Opinion, 12/5/2013, at 6-8. We must agree, for at least

two reasons. First, based upon our review of our memorandum decision on

direct appeal, the specific claims Lawson now raises were previously litigated



pre-trial motion to suppress evidence, both because it was filed more than a

year after his arraignment and was thus patently untimely, and because it

was meritless since the search and arrest warrants in this case were amply

supported by probable cause. Lawson, supra, at 3-4. We also refused to

grant Lawson relief on his claims of prosecutorial misconduct because he

failed to frame any specific instances of the same in his Pa.R.A.P. Rule

1925(b) statement. Id. at 9-10.

      As a result, both of the claims Lawson now raises in his first issue on

appeal, including the alleged subordination of perjured testimony and the

alleged use of fraudulently obtained evidence (the nylon stockings), were

previously litigated on direct appeal. Pursuant to section 9543(a)(3) of the

PCRA, issues previously litigated on direct appeal are not cognizable for relief




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under the PCRA.     See, e.g., Commonwealth v. Tedford, 960 A.2d 1,

18 (Pa. 2008).

      Moreover, to the extent that the two claims that Lawson now raises

under his first issue on appeal were not previously litigated on direct appeal,

                                                                             o.

Section 9544(b) of the PCRA provides that an issue is waived for purposes of




42 Pa.C.S.A. § 9544(b); Commonwealth v. Brown, 872 A.2d 1139,

1154 (Pa. 2005).



pursuant to which he was permitted to represent himself pro se was

inadequate, is not cognizable under the PCRA for the same reason.         This

issue could have been raised and litigated on direct appeal, but Lawson did

not do so.    As a result, it is waived and cannot be raised at this time.

42 Pa.C.S.A. § 9544(b).

      For his third issue on appeal, Lawson argues that the PCRA court failed

to review his claim that he was denied his Sixth Amendment right of counsel

during a critical stage of the proceedings. In its Ra.R.A.P. 1925(a) written

opinion, the PCRA court did not address the substance of this claim, noting

that Lawson did not identify




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question.   Trial Court Opinion, 12/5/2013, at 7.    In his appellate brief,

Lawson insists that the PCRA court knew or should have known that he was

                                                                 .

     Even if the PCRA court should have known that Lawson was referring

to his April 20, 2009 arraignment, no basis exists here for a potentially

meritorious ineffectiveness claim. By order dated March 31, 2009, the trial

                                      ignment for April 20, 2009.    At that



had entered his appearance on February 10, 2009 and filed an Omnibus Pre-



April 20, 2009, the trial court indicated that Lawson had waived the formal

arraignment and pled guilty to the charges against him.

                      pro se filings (including his appellate brief), are not



provided ineffective assistance of counsel when deciding to waive the formal

                                                              le 571 of the

Pennsylvania Rules of Criminal Procedure provides that a criminal defendant

represented by counsel may waive formal arraignment by filing a statement,

signed by both the defendant and counsel, indicating an intention to do so

and stating that the defendant understands, inter alia, the nature of the




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charges against him. Pa.R.Crim.P. 571(D). The docket in this case contains

no such filing.

      Counsel is presumed to be effective, and to rebut that presumption,

the PCRA petitioner must demonstrate that counsel's performance was

deficient and that such deficiency prejudiced him.        Commonwealth v.

Koehler, 36 A.3d 121, 132 (Pa. 2012) (citing Strickland v. Washington,

466 U.S. 668, 687 91 (1984)).         To prove counsel ineffective, a PCRA

petitioner must demonstrate that: (1) the underlying legal issue has

arguable merit; (2) counsel's actions lacked an objective reasonable basis;

and (3) petitioner was prejudiced by counsel's act or omission. Id.

is not required to analyze the elements of an ineffectiveness claim in any

particular order of priority; instead, if a claim fails under any necessary



Commonwealth v. Lesko, 15 A.3d 345, 374 (Pa. 2011).

      To satisfy the prejudice prong of the tripartite test, the PCRA petitioner



counsel's error or omission, the result of the proceeding would have been

             Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009).             In this

case, Lawson has offered no basis for us to conclude that he suffered any

such prejudice as a result of the waiver of his formal arraignment (with or




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from the denial




                                                                                 warrant

affidavits of probable cause and the January 20, 2009 preliminary hearing




while Lawson was representing himself pro se. Lawson offers no explanation

as to any possible connection between the waiver of his formal arraignment

and any of these subsequent events. As such, he has not established that

he suffered any prejudice whatsoever as a result of the waiver of his formal

arraignment, and thus his ineffective assistance of counsel claim is

meritless.

      For his fourth issue on appeal, Lawson contends that the PCRA court

erred in failing to consider his claims of illegality of sentence.                In his

amended PCRA petition and appellate brief, Lawson claims that his sentence

was illegal in two ways. First, he argues that his sentence was too severe

because      the   trial   court   relied   upon     impermissible   factors   (including

misrepresentations of fact in the pre-sentence report as well as prior

convictions) when calculating his offense gravity score and prior record score

under the applicable Sentencing Guidelines. Second, he states that his two




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convictions for conspiracy should merge for sentencing purposes because

both were based upon a single conspiratorial agreement.



Sentencing Guidelines raises a question of the discretionary aspects of a

                         Commonwealth v. Keiper, 887 A.2d 317, 319 (Pa.

Super. 2005); Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa.



sentence claims on direct review, concluding that Lawson, while acting as his

own counsel, waived all such claims by failing to include a Pa.R.A.P. 2119(f)

statement in in appellate brief.        Lawson, supra

discretionary sentencing claims were thus previously litigated on direct

appeal and cannot be reasserted on PCRA review.         To the extent that the

present discretionary claims were not raised on direct appeal, they are

waived for failure to do so. 42 Pa.C.S.A. § 9544(b).

      As for his second claim, Lawson argues that his two conspiracy

convictions (to commit robbery and burglary) were based upon the same

conspiratorial agreement and thus should have merged for sentencing

purposes.   This claim was preserved for appeal in the Motion to Modify

Sentence filed by Attorney McElroy on September 4, 2013.

      In our consideration of this issue, we must first determine whether the

issue presented is one involving the illegality of sentence, such that it is non-




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waivable, Commonwealth v. Berry, 877 A.2d 479, 486 (Pa. Super. 2005),

appeal denied, 917 A.2d 844 (Pa. 2007), and thus may be considered now

during PCRA review.        Our Supreme Court addressed this issue in

Commonwealth v. Andrews, 768 A.2d 309 (Pa. 2001).              Andrews and a

co-conspirator appeared in the office at an apartment complex and inquired

as to the availability of rentals, and soon thereafter brandished weapons and

robbed those in the office.   The next day, Andrews and his co-conspirator

used the same modus operandi again twice, robbing the leasing agents at

two other apartment complexes in about two hours. Id. at 309. The jury

convicted Andrews of five counts of robbery, two counts of criminal

conspiracy, and two counts of possessing instruments of crime. Id. at 311.

      On appeal, Andrews argued that the two conspiracy convictions should

have merged for sentencing purposes.           This Court treated Andrews'

argument as one implicating the legality of the sentence and affirmed,

concluding that separate sentencing was permissible because the robberies



charges involved separate robberies of different individuals at different

            Id. at 312.

      Our Supreme Court affirmed, but in so doing concluded that the

merger argument should not have been treated as one involving the

illegality of sentence but rather as a challenge to sufficiency of the evidence.




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Id. at 311-12.   The Supreme Court began by pointing out that this Court

had previously treated the issue of single or multiple conspiracies in both

ways. Id. at 312 (comparing Commonwealth v. Rippy, 732 A.2d 1216,

1224-25 (Pa. Super. 1999) (legality of sentence), with Commonwealth v.

Herrick, 660 A.2d 51, 55 (Pa. Super. 1995) (sufficiency of the evidence)).

In resolving this discrepancy, the Supreme Court focused on the two

arguments offered by Andrews.

     First, Andrews argued that multiple sentences violated constitutional

double jeopardy protections against multiple punishments for the same

offense.   The Supreme Court indicated that for Andrews, the issue was

                                                                     Id. at



                                                 Id.

     Second, Andrews contended that 18 Pa.C.S.A. § 903(c) prohibits

separate sentences for the two conspiracy convictions.

     § 903. Criminal conspiracy

                            *      *    *

            (c)     Conspiracy    with      multiple    criminal
            objectives.--If a person conspires to commit a
            number of crimes, he is guilty of only one conspiracy
            so long as such multiple objectives are the object of
            the same agreement or continuous conspiratorial
            relationship.




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                                      Andrews, 768 A.2d at 314.            Again,



implicates a factual assessment of either the conspiratorial agreement or the

                                       Id.    As a result, the Supreme Court

concluded that the issue constitutes a challenge to the sufficiency of the



                                   Id.3

                                                         Andrews, the present

issue relating to multiple sentences for his two conspiracy convictions does



the evidence argument.      As a result, Lawson should have raised it at trial

and requested an appropriate jury instruction. Because Lawson did not do

so, he did not preserve the issue for appeal and thus cannot raise it for the

first time now on PCRA review.        As discussed hereinabove, pursuant to

section 9544(b) of the PCRA, an issue is waived for purposes of th

the petitioner could have raised it but failed to do so before trial, at trial, on



3
  Although Andrews had not raised the issue during trial or requested an
appropriate jury instruction, the Supreme Court nevertheless went on to
address the sufficienc
                                                                   Id. at
315.


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§ 9544(b). Moreover, because Andrews represented himself pro se at trial,

he also cannot pose the failure to preserve the issue as one implicating the




Commonwealth v. Fletcher, 517, 986 A.2d 759, 773 (Pa. 2009).

      For his fifth issue on appeal, Lawson contends that the PCRA court

erred in dismissing his amended PCRA petition without considering his pro se

response to its Pa.R.A.P. 907 notice to dismiss.      Lawson argues that his

response   was timely, as     application

establishes that it was filed on October 7, 2013, the 20 th day after the filing



that the available evidence shows that the operative date for filing pursuant

to the prisoner mailbox rule was, at the earliest, October 8, 2013.        Trial

Court Opinion, 12/5/2013, at 5.

      We need not resolve this dispute regarding the date of the filing of




its entirety, and it contains no information, argument, or citation to authority




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petition pursuant to Rule 907 without an evidentiary hearing.



appointed PCRA counsel (Attorney McElroy) made certain misrepresentations

of fact in his Finley letter and thus rendered ineffective assistance of

counsel by failing to advocate on his beha



10/7-8/2013, at 8-17.     In neither his subsequently filed Rule 1925(b)

statement nor in his appellate brief, however, did Lawson assert a separate



petition for withdrawal from representation.     As such, Lawson failed to

pursue on appeal the only new issue raised in his reply to the Rule 907

notice. We must therefore conclude

its contents did not result in any prejudice to Lawson. No relief is due on

this issue.

      For his final issue on appeal, Lawson claims that the PCRA court erred

in its October 17, 2013 order dismissing without prej



constituted a second PCRA petition and was premature pending the final

disposition of his first PCRA petition (dismissed by order dated October 7,

2013). On October 17, 2013, the 30-day period for the filing of an appeal




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from the October 7, 2013 order had not expired.4



                                      -file his second PCRA petition upon the

expiration of the appeal period or exhaustion of his appellate rights in regard




PCRA court properly tre

a second PCRA petition. Our Supreme Court has emphasized that the PCRA

                          habeas corpus and that habeas corpus provides an

independent basis for relief only in those cases when there is no remedy

                     See, e.g., Commonwealth v. Morris, 822 A.2d 684,

692-



violations of his constitutional rights.   Pursuant to section 9543(a)(2)(i) of

the PCRA, petitioners may obtain remedies for violation of their state or

federal constitutional rights. 42 Pa.C.S.A. § 9543(a)(2)(i).

       Second, a second or subsequent PCRA petition cannot be filed until the

resolution of review of the pending PCRA petition by the highest state court

in which review is sought, or upon the expiration of the time for seeking

such review.    Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).


4
  Lawson filed his notice of appeal from the October 7 order on October 29,
2013.


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Because final resolution of review

pending at the time he filed his second PCRA petition, the PCRA court

properly dismissed the second PCRA petition without prejudice.

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2014




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