J.   S66037/18

NON-PRECEDENTIAL DECISION              - SEE SUPERIOR COURT I.O.P.       65.37
COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                     v.

PHILLIP ALLEN,                                       No. 1991 EDA 2017

                           Appellant


                  Appeal from the PCRA Order, June 16, 2017,
                the Court of Common Pleas of Philadelphia County
               in
               Criminal Division at Nos. CP-51-CR-0000070-2012,
               CP-51-CR-0005939-2010, CP-51-CR-0007583-2010


BEFORE:      GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JANUARY 07, 2019

         Phillip Allen appeals from the June 16, 2017 order denying his petition

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

§§ 9541-9546, after he repeatedly failed to appear for his evidentiary hearing.

After careful review, we affirm.

         The PCRA court summarized the relevant facts and procedural history

of this case as follows:

              Appellant was charged with Persons Not to Possess
              Firearms, Firearms Not to Be Carried without a
              License, Carrying Firearms on Public Streets or Public
              Property and Knowing and Intentional Possession of a
              Controlled Substance.       On August 13, 2013,
              [appellant] entered an open guilty plea to Persons Not
              to Possess Firearms,[1] with the remaining charges
              nolle prossed.

1    18 Pa.C.S.A. § 6105(a).
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            At the plea hearing, the Court conducted a thorough
            colloquy to ensure that [a]ppellant's decision to plead
            guilty was knowingly, intelligently and voluntarily
            made. Among other things, the following facts were
            set forth on the record as though they would have
            been presented at trial:

                  On December 15th of 2011, Police Officer
                  Tomon and Police Officer Thompson were
                  in the area of the 900 block of North 18th
                  Street in the city and county of
                  Philadelphia     when     they    observed
                  [appellant], who is seated at the bar of
                  the court, exit a Chinese store, shake the
                  hands of a few individuals, look in the
                  direction of the police officers, make eye
                  contact, and immediately grab at the right
                  side of his waistband.

                  [Appellant] continued to walk northbound
                  on 18th Street. The officers followed in
                  their vehicle. As Officer Tomon went to
                  exit his vehicle and to ask [appellant] to
                  stop, [appellant]     took off running
                  northbound on 18th Street, eastbound on
                  Girard, and then southbound on North
                  17th Street.

                  During that entire time, the officer was
                  between 15 and 20 feet behind
                  [appellant].     [Appellant] continued to
                  grab onto the right side of his waistband.
                  The officer did lose [appellant] for a small
                  period of time when [appellant] ran
                  behind a house and hid behind a
                  dumpster.

                  [Appellant] then came out from behind
                  the dumpster. At that point the officer
                  observed an object in [appellant's] right
                  hand that was approximately seven to
                  eight inches long. It took the officer a few
                  seconds, and then the officer recognized


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                         itto be a firearm.       At that point
                        [appellant] ran behind a Ford Expedition.
                        The officer lost sight of [appellant].
                        [Appellant] then reappeared from that
                        Ford Expedition with nothing in his right
                         hand.

                         [Appellant]  then jumped over a few
                        fences and was stopped in the area of the
                        1700 block of Ridge [Avenue] in a rear
                        yard. Recovered from [appellant] [were]
                        three packets of crack cocaine.         The
                        officer retraced his footsteps back to that
                        black Ford Expedition.

                        Recovered from the Ford Expedition's tire
                        well, on top of a tire, was a black -in -color
                        revolver with wooden grips and a 7.5 inch
                        barrel, .22 caliber model, loaded with five
                        rounds and one spent round.

                         In addition, [appellant] has two prior
                         [possession with intent to deliver a
                         controlled     substance       ("PWID")2]
                         convictions, making him ineligible to carry
                         a firearm.   One of the CP numbers is
                         CP-51-CR-0007583-2010.

                              THE    COURT:   Are those facts,
                              correct, [appellant]?

                              [APPELLANT]: Yes.

                              THE COURT: I do accept your
                              guilty plea as being made
                              knowingly,  intentionally and
                              voluntarily.

                   [Notes of testimony, 8/13/13 at 9-11.]

                   On   the same date, the parties proceeded to
                   sentencing on the above case, as well as two (2)

2    35 P.S.   §   780-113(a)(30).

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            violation of parole (V.O.P.) cases stemming from his
            prior PWID convictions. Upon considering all the
            relevant facts and circumstances, including but not
            limited to [a]ppellant's accepting responsibility for his
            actions, his young age (22), expression of remorse,
            familial background and support, as well as the
            testimony of his sister, the Court imposed a
            mitigated sentence of 21/2 to 7 years' incarceration
            for Persons Not to Possess Firearms,[Footnote] a
            concurrent term of 21/2 to 7 years' incarceration for
            V.O.P. at No. 0005939, and a consecutive term of
            3 years' probation for V.O.P. at No. 0007583. ([See
            notes of testimony, 8/13/13 at 3-26.])

                  [Footnote] The Commonwealth requested
                  a standard guidelines sentence of four to
                  eight years' incarceration. ([See notes of
                  testimony, 8/13/13 at 12-13.])

            Appellant did not file a post -sentence motion or direct
            appeal. However, on June 17, 2014, he filed a pro se
            PCRA petition, claiming that he did not receive
            sufficient credit for time served.       PCRA counsel
            thereafter was appointed, and on July 27, 2016, in lieu
            of filing an amended PCRA petition, he filed Motion for
            Credit for Time Served. On January 4, 2017, the
            Court denied the motion, but permitted counsel to file
            an amended PCRA petition.

            On February 6, 2017, counsel for     [a]ppellant filed an
            amended PCRA petition, claiming     that: (1) his guilty
            plea was involuntarily entered because he was under
            the false impression that he would receive two years'
            credit for time served, but did not receive two years'
            credit (it was applied to his pre -violation sentence in
            his PWID cases, not to his current Firearms or V.O.P.
            cases); and (2) counsel was ineffective for allowing
            him to plead guilty under a false impression/failing to
            inform him that he would not receive a full two years'
            credit for time served.

            The Commonwealth did not oppose, and the Court
            granted,    an    evidentiary hearing to resolve
            [a]ppellant's issues on the record. Appellant, who was


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              no longer incarcerated, failed to attend the scheduled
             hearing on multiple occasions, however, leading to
             multiple continuances. A final hearing date was
             scheduled for June 16, 2017, with counsel accepting
             service for [a]ppellant on the record. On June 16,
             2017, despite notice of the evidentiary hearing,
             [a]ppellant failed to appear. At said hearing, counsel
             for [a]ppellant indicated that [a]ppellant had also
             failed to meet with his state parole officer two days
             earlier. Additionally, the Commonwealth confirmed
             that [a]ppellant was not in custody, and counsel for
             [a]ppellant confirmed to the Court that he advised
             [a]ppellant of his need to attend the hearing.
             Accordingly, with [a]ppellant knowingly failing to
             appear, the Court dismissed the PCRA petition for
             failure to prosecute [on June 16, 2017]. ([See notes
             of testimony, 6/16/17 at 3-7.])

PCRA     court opinion, 1/12/18 at 1-4 (citations to notes of testimony

reformatted).

        On June 20, 2017, appellant filed a       timely notice of appeal.       On

August 16, 2017, the PCRA court ordered appellant to file      a   concise statement

of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).

Appellant filed his timely Rule 1925(b) statement on August 25, 2017, and the

PCRA    court filed its Rule 1925(a) opinion on January 12, 2018.

       Appellant raises the following issues for our review:

              1.    Did the [PCRA] court err in denying [appellant's]
                    motion for time credit in his concurrent
                    sentences in this matter[?]

              2.    Did the [PCRA] court err in denying relief based
                    on ineffective assistance of counsel for failure to
                    alert the court and [appellant] that the
                    contemplated credit discussed at [appellant's]
                    sentencing would not be applied under the time
                    credit regulations consistent with what


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                      [appellant] reasonably believed he would be
                      credited based on the court's assertions, as
                      cited supra, and where this failure to alert the
                      court and [appellant] led [appellant] to agree to
                      consolidation of his cases for the purpose of the
                      proposed sentence, which depended on credit
                      for time served to be applied to both his front
                      and back cases, which were to run concurrent
                      to one another?

Appellant's brief at    3   (full capitalization, citations to case law, and footnote

omitted).

        Proper appellate review of     a PCRA   court's dismissal of     a PCRA   petition

is   limited to the examination of "whether the PCRA court's determination is

supported by the record and free of legal error." Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's

findings will not be disturbed unless there     is no   support for the findings in the

certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). "This Court grants great deference to the findings of the

PCRA    court, and we will not disturb those findings merely because the record

could support    a   contrary holding." Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted).

        Upon review, we agree with the PCRA court that appellant's PCRA

petition was properly dismissed for failure to prosecute. Pennsylvania Rule of

Criminal Procedure 908 provides        a PCRA   petitioner with   a   rule -based right to

appear, in person, at the PCRA hearing.          Specifically, Rule 908(C) provides

that, "[t]he judge shall permit the [petitioner] to appear in person at the



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[PCRA] hearing and shall provide the [petitioner] an opportunity to have

counsel." Pa.R.Crim.P. 908(C)

        In the instant matter, the PCRA court scheduled an evidentiary hearing

on May 19, 2017, to receive and consider testimony as to whether the

ineffectiveness of appellant's plea counsel3 induced him to enter an unknowing

and involuntary guilty plea.       The Commonwealth did not object to this

evidentiary hearing. (Notes of testimony, 4/7/17 at 2.) The record reflects

that appellant was initially present at the May 19, 2017 evidentiary hearing,

but left to attend work and did not testify.           The PCRA court subsequently

continued the hearing to June 2, 2017, and PCRA counsel4 accepted service

on appellant's behalf. Appellant failed to appear for the evidentiary hearing

scheduled for June 2, 2017.            Following   a   second continuance,    a   third

evidentiary hearing was scheduled for June 16, 2017, with PCRA counsel

accepting service for appellant on the record.            (See notes of testimony,

6/16/17 at 5-6.) Appellant again failed to appear at the hearing. At said

hearing, PCRA counsel indicated that he did not know appellant's whereabouts

and that appellant had also failed to show up for         a   meeting with his parole

officer two days earlier. (Id. at 3-4.) The Commonwealth, in turn, confirmed

that appellant was not   in custody.    (Id. at 4.) Notably,    PCRA counsel did not



3    Appellant was   represented       during   his    guilty plea   proceedings    by
Olwyn Conway, Esq.

4 Appellant was represented during his PCRA proceedings by his current
counsel, Henry McGregor Sias, Esq.

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aver that appellant's failure to attend the June 16, 2017 hearing was the result

of lack of proper notice. Additionally, PCRA counsel previously noted on the

record that he was in frequent contact with appellant and that they "text all

the time[.]" (See notes of testimony, 4/7/17 at 3.) Appellant, in turn, does

not argue on appeal that he was unaware of said hearing or "was otherwise

excusably engaged." (PCRA court opinion 1/12/18 at        5   (emphasis omitted);

see also appellant's brief at 6-7.) On the contrary, the record reflects that

PCRA counsel advised      appellant of his need to testify at the hearing, and

conceded that the mandates of Rule 908 were satisfied and the PCRA court

had the discretion to dismiss appellant's petition.        (Notes of testimony,

6/16/17 at 6.)

              [PCRA counsel]: Procedurally, Your Honor, I think this
              is the Rule 908 hearing and given that [appellant] has
              failed to appear, there is no need for a 907 notice, as
              far as I know, given you ordered a hearing. So if Your
              Honor wants, you can dismiss the case right now.

Id. at   5.

         Our supreme court has recognized that the PCRA court "has an essential

role in ensuring the timely resolution of PCRA matters" and      "[t]he court, not
counsel, controls the scope, timing and pace of the proceedings below."

Commonwealth v. Renchenski,             52 A.3d 251, 260 (Pa. 2012), citing

Commonwealth v. Porter,         35 A.3d 4, 24-25 (Pa. 2012).     Given the record

before us, we agree with the PCRA court that, "[a]ppellant forfeited his right

to prosecute his PCRA petition[]" in this case. (PCRA court opinion, 1/12/18



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at 5.)    It logically follows that where   a   petitioner knowingly and repeatedly

fails to appear for an evidentiary hearing and present evidence on allegations

set forth in his PCRA petition,          he waives any right        to litigate these

underdeveloped claims on appeal. Moreover, absent testimony from appellant

to support the allegations of ineffectiveness raised in his PCRA petition, the

PCRA     court was free to conclude that appellant has failed to meet his burden

of proving first prong of the ineffectiveness test; namely, that the claim has

arguable merit. See Commonwealth v. Charleston, 94 A.3d 1012, 1020

(Pa.Super. 2014) (stating, to prevail on        a   claim of ineffective assistance of

counsel,   a   petitioner must establish "first[,] the underlying claim has arguable

merit; second, that counsel had no reasonable basis for his action or inaction;

and third, that Appellant was prejudiced[]" (citation omitted)),              appeal
denied, 104 A.3d 523       (Pa. 2014).

         Accordingly, we discern no error on the part of the PCRA court in

dismissing appellant's PCRA petition.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 1/7/19




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