J-S51037-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ANTOINE MAURICE BLACK,

                            Appellant                    No. 367 MDA 2014


               Appeal from the Order Entered January 22, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003493-2010


BEFORE: BOWES, OTT and MUSMANNO, JJ.

CONCURRING STATEMENT BY BOWES, J.:                 FILED NOVEMBER 18, 2014

       Since each of Appellant’s seven issues is premised on PCRA counsel

ineffectiveness, claims which he failed to raise in response to the court’s

Pa.R.Crim.P. 907 notice of intent to dismiss after PCRA counsel was

permitted to withdraw pursuant to Turner/Finley,1 he has waived all of his

issues. See Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).

       Further, since Appellant represented himself on direct appeal, any

preserved issues relative to his suppression hearing or trial had to be raised

by him on direct appeal.         Appellant cannot allege his own ineffectiveness.

Commonwealth v. Fletcher, 986 A.2d 759, 778-779 (Pa. 2009); cf.
____________________________________________


1
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Commonwealth v. Green, 709 A.2d 382 (Pa. 1998) (counsel cannot allege

his own ineffectiveness).     To the extent the learned majority opines that

Appellant’s fifth claim is not cognizable under the PCRA because it was

waived, I find such reasoning imprecise.

      Here, Appellant’s claim is one of ineffectiveness, which is cognizable.

However, as the majority astutely recognizes, Appellant represented himself

on direct appeal and the suppression issue relative to the inventory search

was preserved. Hence, Appellant’s underlying inventory suppression claim is

waived, and, as I have pointed out, he cannot allege his own ineffectiveness.

      Although some cases have stated that waived claims are not

cognizable under the PCRA, my view is that the more accurate legal

assessment is that the person is not eligible for relief. See Commonwealth

v. Descardes, 2014 PA Super 210 (en banc) (Bowes, J., concurring and

dissenting).   Where the claim challenges the defendant’s sentence or

conviction, it is cognizable. The distinction is important in light of decisions

by this Court and our Supreme Court that have determined that non-

cognizable claims can be raised via habeas corpus or coram nobis.          See

Commonwealth v. West, 938 A.2d 1034 (Pa. 2007); Descardes, supra. I

do not read the majority’s conclusion as suggesting that Appellant may raise

the issue outside the PCRA.

      For the aforementioned reasons, I concur in the result.




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