J-S27018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

ISAAC DICKERSON

                            Appellant                       No. 2639 EDA 2014


               Appeal from the PCRA Order entered July 31, 2014
                In the Court of Common Pleas of Lehigh County
               Criminal Division at No: CP-39-CR-0002660-2010


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED AUGUST 26, 2015

        Appellant, Isaac Dickerson, appeals pro se from the July 31, 2014

order entered in the Court of Common Pleas of Lehigh County, dismissing his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

        On direct appeal, this Court adopted portions of the trial court’s

comprehensive summary of evidence presented at trial in this case.

Commonwealth           v.    Dickerson,        I.,   905   EDA   2011,   unpublished

memorandum at 1-6 (Pa. Super. filed March 23, 2012). For purposes of this

appeal, it is sufficient to know that on January 21, 2011, a jury found

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S27018-15


Appellant guilty of second degree murder, robbery, burglary, theft by

unlawful taking, and criminal conspiracy to commit robbery,[1] all stemming

from events that occurred in the early morning hours of March 15, 2010. On

February 23, 2011, the trial court sentenced Appellant to a term of life

imprisonment without possibility of parole for the murder conviction and an

aggregate consecutive sentence for the remaining convictions.          The trial

court denied Appellant’s post-sentence motions on March 17, 2011.

        Appellant filed a direct appeal to this Court contending the verdict was

against the weight of the evidence and alleging trial court error for denying a

new trial based on newly discovered evidence, for failing to schedule the

hearing of a witness, and for denying his pre-trial motion to sever his trial

from that of his co-defendant and brother, Kyle Dickerson.           This Court

affirmed Appellant’s judgment of sentence on March 23, 2012.          Appellant

filed a petition for allowance of appeal, which our Supreme Court denied on

August 23, 2012.

        Appellant filed a timely pro se Petition for “Post Conviction Collateral

Relief” on August 21, 2013. The PCRA court appointed counsel who filed a

Finley2 no-merit letter after reviewing the file and speaking with Appellant.

The PCRA court scheduled an April 10, 2014 hearing, during which PCRA

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(b), 3701, 3502, 3921, and 903, respectively.
2
    Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



                                           -2-
J-S27018-15


counsel stated his conclusion that each of Appellant’s six issues was without

merit. In the course of the hearing, the following exchanges occurred:

     PCRA Counsel: [] I spoke with [Appellant] over at [Lehigh
     County Prison] on two different occasions after being appointed
     to review his petition, to make sure that I was addressing
     everything that he wanted to address.
           I believe there were six issues. After investigating those
     six issues I came to the conclusion that they are all without
     merit.
           I wrote him a Finley letter explaining the reasons that I
     believe those issues were without merit.
           If you want I can address each one or, do you have a copy
     of my letter?

     The Court: I should. I do. It is not necessary that you outline
     each item.

     [PCRA Counsel]: So based on the – my investigation and my
     belief that they either have been previously litigated or they lack
     merit, I filed a Motion to withdraw and I seek to be withdrawn
     from this case, Your Honor.

     The Court: All right. Mr. Dickerson. . . . Do you understand
     what’s happening here?

     [Appellant]: Yes, ma’am, I do.

     The Court: And what is your position?

     [Appellant]: I don’t have a problem with him withdrawing from
     my case but if you – if I had to go pro se, I will. But I’m just
     asking if I do go pro se, you just grant me all my, all my legal
     matters that I need to continue on with my petitions, transcripts,
     everything I need, if I have to go pro se.

     The Court:      Yes.    I’m going to allow [PCRA counsel] to
     withdraw, which leaves you with these options.
           You represent yourself. You hire private counsel or you
     withdraw it. So based on now two lawyers telling you that there
     is no merit, so what is your desire?

     [Appellant]: I’m gonna pro se myself [sic].

                                    -3-
J-S27018-15



                                       ***

       The Court: [] Okay. So we need to continue the matter so that
       [Appellant] can represent himself. . . . How much time are you
       requesting to get yourself together and ready for the hearing?

       [Appellant]: 90 days.

       The Court: Any objection?

       [District Attorney]: No.

       The Court:      That takes us to July.    We’ll do Wednesday, July
       23rd, 9:30.

                                       ***

       [PCRA counsel]: Your Honor, I’ll just give him the entire file
       that I have.

       The Court: Sounds good.

Notes of Testimony, PCRA Hearing, 4/10/14, at 3-6.

       A July 10, 2014 docket entry reflects that Appellant filed a pro se

“Petition for Post Conviction Relief/Appointment of Counsel [and] Request for

Evidentiary Hearing,” asserting allegations of both PCRA and trial counsel

ineffectiveness, seeking appointment of new counsel, and requesting a new

trial or evidentiary hearing.3 By order entered July 15, 2014, the PCRA court

____________________________________________


3
  Although the July 10, 2014 filing is entitled “petition,” it is more accurately
characterized as an 18-page brief. In the document, Appellant argued PCRA
and trial counsel ineffectiveness for failing to request a crimen falsi
instruction, for failing to request an “anti-corroboration” instruction, for
failing to raise the cumulative effect of errors in the jury instructions, and for
failing to raise an objection to the jury venire panel as not representative of
(Footnote Continued Next Page)


                                           -4-
J-S27018-15


denied Appellant’s request for counsel and scheduled the evidentiary hearing

on the “Petition for Post Conviction Collateral Relief” for July 23, 2014, the

date previously fixed for the hearing at the conclusion of the April 10

proceedings.

      Appellant appeared for the July 23, 2014 hearing. Because Appellant’s

trial counsel was not available to testify, the PCRA court rescheduled the

hearing for July 31, 2014 and granted Appellant’s request to remain in the

Lehigh County Prison pending the hearing.

      The PCRA court reconvened Appellant’s evidentiary hearing on July 31,

2014. Appellant and trial counsel appeared and Appellant was afforded the

opportunity to examine trial counsel. However, Appellant did not have any

paperwork with him, explaining he did not bring it with him from jail

“because I thought we were gonna come down here and talk about the brief

that I put in for the ineffective [appointed PCRA] counsel.”       N.T. PCRA

Hearing, 7/31/14, at 5-6. When Appellant attempted to turn his questioning

to the subject of PCRA counsel, the PCRA court stated, “We’re not here for

that. . . . You have filed your PCRA against your trial counsel.” Id. at 12.

Appellant explained, “I want to pursue the issue that I raised in my brief

summary that I sent to you and to the District Attorney, not the issues I had

                       _______________________
(Footnote Continued)

the community. Appellant also alleged he was denied his rule-based right to
effective assistance due to PCRA counsel’s ineffectiveness for failing to
review the record and raise meritorious claims.



                                            -5-
J-S27018-15


in my PCRA, because I already disclosed that.” Id. at 13. The PCRA court

responded, “Well, it doesn’t work that way. That’s not the way the system is

designed to work.” Id. at 13-14. Appellant confirmed he did not want to

pursue the six issues of trial counsel ineffectiveness addressed in PCRA

counsel’s Finley letter, but wanted instead “to pursue the issues that I have

in my brief that I sent you and the District Attorney.” Id. at 14. The PCRA

court responded, “Then your PCRA motion is going to be dismissed. And if

there is something that you wish to re-file and you properly do that, then

we’ll hear it.” Id. at 14-15. The PCRA court continued, explaining:

       [Appellant] has indicated on the record that he no longer wishes
       to pursue the issues that were framed in his original PCRA or
       framed in [PCRA counsel’s] Finley letter. So there is nothing to
       pursue here.

       Go back to state prison and if you wish to pursue something
       else, then file it, and we’ll see where we are.

Id. at 15. At the conclusion of the hearing, the PCRA court entered an order

dismissing Appellant’s “Petition for Post Conviction Collateral Relief.”

       In his timely appeal from the July 31, 2014 order, Appellant raises six

issues, five of which (Issues B through F) are the same issues Appellant

raised in his pro se July 10, 2014 filing with the PCRA court.4            See



____________________________________________


4
  See footnote 3. The sixth issue, Issue A in Appellant’s brief, alleges PCRA
court error for not allowing Appellant to argue the claims raised in his July
10, 2014 filing during the hearing held on July 31.



                                           -6-
J-S27018-15


Appellant’s Brief at 4; pro se Petition for Post Conviction Relief, 7/10/14, at

7-17.

        As this Court recently explained:

        In PCRA appeals, our scope of review “is limited to the findings
        of the PCRA court and the evidence on the record of the PCRA
        court’s hearing, viewed in the light most favorable to the
        prevailing party.” Commonwealth v. Sam, 597 Pa. 523, 952
        A.2d 565, 573 (2008) (internal quotation omitted). Because
        most PCRA appeals involve questions of fact and law, we employ
        a mixed standard of review. Commonwealth v. Pitts, 603 Pa.
        1, 981 A.2d 875, 878 (2009). We defer to the PCRA court’s
        factual findings and credibility determinations supported by the
        record. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
        2014) (en banc). In contrast, we review the PCRA court’s legal
        conclusions de novo. Id.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015 (en banc).

        At the heart of this appeal is Appellant’s attempt to obtain relief based

on ineffective assistance of counsel claims not raised in his original PCRA

petition or in appointed counsel’s Finley no-merit letter but raised instead in

the “petition” he filed on July 10, 2014.        It is clear from the exchange

between Appellant and the PCRA court at the July 31 hearing that the PCRA

court did not accept Appellant’s July 10 filing as an amendment to

Appellant’s PCRA petition. We find no error in this regard.

        As our Supreme Court has explained:

        Our criminal procedural rules reflect that the PCRA judge “may
        grant leave to amend . . . a petition for post-conviction collateral
        relief at any time,” and that amendment “shall be freely allowed
        to achieve substantial justice.”       Pa.R.Crim.P. 905(A); see
        Commonwealth v. Williams, 573 Pa. 613, 633, 828 A.2d 981,

                                       -7-
J-S27018-15


       993 (2003) (noting that the criminal procedural rules
       contemplate a “liberal amendment” policy for PCRA petitions).
       Nevertheless, it is clear from the rule’s text that leave to
       amend must be sought and obtained, and hence,
       amendments are not “self-authorizing.” Commonwealth
       v. Porter, 613 Pa. 510, 523, 35 A.3d 4, 12 (2012). Thus, for
       example, a petitioner may not “simply ‘amend’ a pending
       petition with a supplemental pleading.” Id. Rather, Rule
       905 “explicitly states that amendment is permitted only
       by direction or leave of the PCRA Court.” Id. at 523–24, 35
       A.3d at 12; see also Williams, (indicating that the PCRA court
       retains discretion whether or not to grant a motion to amend a
       post-conviction petition). It follows that petitioners may not
       automatically “amend” their PCRA petitions via responsive
       pleadings.

Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014)

(emphasis added).5

       At no time did Appellant request the opportunity to amend the PCRA

petition that was the subject of the scheduled July 31, 2014 hearing. At the

initial evidentiary hearing on April 10, Appellant did not seek leave to

amend.     Rather, in response to the PCRA court’s inquiry as to how much

time Appellant needed to “get [himself] together and ready for the hearing,”

Appellant simply responded, “90 days.” N.T. PCRA Hearing, 4/10/14, at 5.

Id.   When Appellant filed a petition on July 10 seeking appointment of

counsel and, for the first time, raising issues of both layered ineffectiveness

____________________________________________


5
  Compare Commonwealth v. Boyd, 835 A.2d 812, 817 (Pa. Super. 2003)
(by permitting appellant to file supplement to PCRA petition and then
considering it, PCRA court effectively allowed appellant to amend his PCRA
petition to include issues presented in supplement).



                                           -8-
J-S27018-15


and PCRA counsel ineffectiveness, the PCRA court denied Appellant’s request

for counsel and, as noted above, ordered that the evidentiary hearing on

Appellant’s original petition seeking “Post Conviction Collateral Relief” take

place on July 23, 2014, the date fixed for the hearing at the conclusion of

the April 10 hearing. PCRA Court Order, 7/15/14, at 1. The PCRA court did

not suggest it would entertain the July 10 filing as an amended PCRA

petition.   In fact, the PCRA court did not even allude to the July 10 filing

during the July 31 hearing, referring instead to Appellant’s claims of trial

counsel ineffectiveness and disallowing any questioning or argument from

Appellant beyond his original pro se petition or PCRA counsel’s Finley no-

merit letter.6

       Our reading of the April 10 and July 31, 2014 PCRA hearing transcripts

leads us to conclude the PCRA court never authorized Appellant to amend his

PCRA petition, and the record does not reflect any request by Appellant for

an opportunity to do so.        However, the PCRA court did not foreclose that

possibility, commenting at the July 31 proceeding that, “[I]f there is

something that you wish to re-file and you properly do that, then we’ll hear

it[,]” and “Go back to state prison and if you wish to pursue something else,

then file it, and we’ll see where we are.” N.T. PCRA Hearing, 7/31/14, at 15.


____________________________________________


6
  We also note the PCRA court’s Rule 1925(a) opinion does not discuss
Appellant’s July 10 filing.



                                           -9-
J-S27018-15


      We recognize Appellant is proceeding pro se. However, as this Court

has cautioned, while we are “willing to construe liberally materials filed by a

pro se litigant, pro se status generally confers no special benefit upon an

appellant.” Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super.

2003) (citations omitted)). “Accordingly, a pro se litigant must comply with

the procedural rules set forth in the Pennsylvania Rules of Court.”     Id. at

252. As explained by our Supreme Court in Baumhammers, to preserve

additional PCRA claims, a petitioner must seek leave to amend his petition.

Appellant did not do so.    Instead, he abandoned the issues raised in his

PCRA petition, leaving the PCRA court without any ineffectiveness claims to

consider.   Because the issues Appellant asks this Court to review were not

raised in his PCRA petition or in PCRA counsel’s no-merit letter and because

no request was made to amend his petition to include them, Appellant’s

claims are waived. Baumhammers, 92 A.3d at 731. Therefore, we may

not consider them.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2015




                                    - 10 -
