J-S11022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DAIKWEON K. FORTSON                      :
                                          :
                    Appellant             :   No. 805 WDA 2019

            Appeal from the PCRA Order Entered April 29, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0016615-2014


BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED APRIL 3, 2020

      Daikweon K. Fortson (Appellant) appeals pro se from the order denying

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      On October 29, 2014, Appellant was arrested and charged with

attempted homicide, robbery, conspiracy, possession of a firearm by a minor,

possessing instruments of a crime, aggravated assault, and discharge of a

firearm. At the time of the underlying offenses, Appellant was 15 years old.

Appellant was automatically certified to adult criminal court.     Thereafter,

Appellant, represented by Brian O’Connor, Esquire, filed an omnibus pre-trial

motion for decertification, which was denied by the trial court.

      On November 2, 2015, Appellant, now represented by Brandon Herring,

Esquire, proceeded to a non-jury trial. On November 3, 2015, the trial court

found Appellant guilty of attempted homicide, robbery, aggravated assault,
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possession of a firearm by a minor, and possession of a weapon.1 On January

28, 2016, the trial court sentenced Appellant to 13 to 26 years of

incarceration. Appellant filed a timely post-sentence motion, which the trial

court denied on May 31, 2016.             Appellant appealed to this Court, which

affirmed his judgment of sentence on May 26, 2017. See Commonwealth

v. Fortson, 165 A.3d 10 (Pa. Super. 2017). The Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on November 2, 2017. See

Commonwealth v. Fortson, 174 A.3d 558 (Pa. 2017) (Table).

        On June 11, 2018, Appellant filed a pro se PCRA petition. In his petition,

Appellant raised four claims of ineffective assistance of trial counsel: 1) trial

counsel was ineffective for failing to file a motion to suppress evidence

obtained by an unlawful search warrant; (2) trial counsel was ineffective for

failing to raise a self-defense claim and present evidence of the victim’s violent

character at trial or in a post-sentence motion; (3) trial counsel was ineffective

for failing to properly advise Appellant of his right to a jury trial; and (4)

appellate counsel was ineffective for failing to argue Appellant’s youthfulness

as a mitigating factor at sentencing. See Motion for Post Conviction Collateral

Relief, 6/11/18, at 3.       On July 6, 2018, the PCRA court appointed Adam

Bishop, Esquire, as PCRA counsel.              Upon reviewing the record, however,

Attorney Bishop filed a motion to withdraw as counsel and a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
____________________________________________


1   18 Pa.C.S.A. §§ 901(a), 3701(a)(1)(iii), 2702(a)(1), 6110.1(a), and 907(b).


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Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), on

March 20, 2019.

      On April 2, 2019, the PCRA court issued notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Rule 907 of the

Pennsylvania Rules of Criminal Procedure and granted Attorney Bishop’s

motion to withdraw.    The PCRA court issued an order denying Appellant’s

petition on April 29, 2019.

      On May 13, 2019, Appellant filed a pro se request to rescind the order

dismissing his petition. In his motion, Appellant averred that the PCRA court

sent its Rule 907 notice to SCI Pine Grove; however, Appellant is housed at

SCI Dallas.    See Request to Rescind Dismissal Notice/Order, 5/13/19.

Appellant requested that the PCRA court rescind its dismissal order and permit

an evidentiary hearing on Appellant’s claims.     Id.   Attached to Appellant’s

motion, he included his response to the PCRA court’s Rule 907 notice. See

id. at Appendix A. Appellant’s response raised four additional issues for the

court’s consideration, including a sufficiency and weight of the evidence claim,

a legality of sentence claim, and discretionary aspects of sentencing claim.

On May 15, 2019, the PCRA court denied Appellant’s motion and, after

“thoroughly review[ing] the Petitioner’s Response and Objections to the Notice




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of Intent to Dismiss,” reaffirmed its order denying Appellant’s PCRA petition.

PCRA Court Order, 5/15/19.2 Appellant timely appealed to this Court.

       On appeal, Appellant presents two issues for our review:

    1. Was PCRA Counsel Adam M. Bishop ineffective for not arguing the
       ineffectiveness of Decertification Hearing counsel Brian O’Connor, Esq.
       and trial Counsel Brandon Herring, Esq.[?]

       Decertification Hearing counsel never told the Court about Appellant’s
       mental state or explained [Appellant’s] upbringing to the court. It
       should be noted that this question was never actually asked of
       the trial court, but in the PCRA it was fairly suggested.

    2. Was PCRA Counsel Adam M. Bishop ineffective for not arguing the
       ineffectiveness of trial counsel for arguing that trial counsel should never
       have talked a 15 year old boy into taking a bench trial, when the co-
       defendant is testifying against defendant[?]

       This goes against (ABA) standards.

       This question was not asked in a 1925(b) but does go towards
       the Sixth Amendment violation.

Appellant’s Brief at v (PCRA court answers omitted, emphasis added).

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and

citations omitted).      “To be entitled to PCRA relief, [an] appellant must


____________________________________________


2 We observe that the PCRA court did not properly serve Appellant with its
Rule 907 notice prior to dismissing Appellant’s PCRA petition. However,
Appellant has not challenged the improper service on appeal, and thus the
issue is waived. See Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super.
2013) (appellant waived appellate review of lack of notice of intent to dismiss
by failing to challenge the failure on appeal).


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establish, by a preponderance of the evidence, [that]           his conviction or

sentence resulted from one or more of the enumerated errors in 42

Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

      Appellant presents layered claims of ineffective assistance of PCRA

counsel, based on PCRA counsel’s failure to raise claims of ineffective

assistance of trial counsel.       Underlying his claim of PCRA counsel’s

ineffectiveness, Appellant first claims that his pre-trial counsel, Brian

O’Connor, Esquire, who represented Appellant at his decertification hearing,

rendered ineffective assistance by failing to inform the trial court of Appellant’s

mental history. Appellant suggests that had Attorney O’Connor informed the

trial court of Appellant’s mental history, “there is a chance [Appellant] would

have been tried as a juvenile.” Appellant’s Brief at 6. Appellant also asserts

that his trial counsel, Brandon Herring, Esquire, was ineffective for coercing

Appellant into waiving his rights to a jury trial and proceeding to a bench trial.

Appellant contends that had he proceeded to a jury trial, Attorney Herring

could have informed the jury that his co-defendant, who testified against

Appellant, took a plea deal in exchange for his testimony and a jury “may not

have believed [his co-defendant] because he was saving himself.” Id.

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;


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(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”            Id. (citation omitted).      To

demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      In Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme

Court held:

      [Petitioner’s] failure, prior to his PCRA appeal, to argue PCRA
      counsel’s ineffectiveness . . . results in waiver of the issue of PCRA
      counsel’s ineffectiveness. [Petitioner’s] attempt to obtain review,
      on collateral appeal, of an issue not raised in the proceedings
      below amounts to a serial PCRA petition on PCRA appeal.
      Although [petitioner] asserts his PCRA appeal was the first
      opportunity he had to challenge PCRA counsel’s stewardship
      because he was no longer represented by PCRA counsel, he could
      have challenged PCRA counsel’s stewardship after receiving
      counsel’s withdrawal letter and notice of the PCRA court’s intent
      to dismiss his petition pursuant to Pa.R.Crim.P. 907, yet he failed
      to do so.

Id. at 880 n. 4; see also Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.

Super. 2014) (en banc) (holding that “claims of PCRA counsel’s ineffectiveness

may not be raised for the first time on appeal.”); Commonwealth v. Rykard,

55 A.3d 1177, 1189 (Pa. Super. 2012) (holding that a petitioner must raise


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allegations of ineffective assistance of PCRA counsel in the Rule 907

response).

       Here, Appellant failed to challenge PCRA counsel’s assistance after

Appellant received the no-merit letter or after the PCRA court filed its notice

of intent to dismiss.      More importantly, Appellant failed to raise his issues

concerning PCRA counsel in his Pa.R.A.P. 1925(b) statement of errors. 3 As a

result, the PCRA court did not have the opportunity to address Appellant’s

claim, and it is waived where, consistent with Pitts and Henkel, Appellant

has failed to preserve these issues for review.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2020




____________________________________________


3 In his Rule 1925(b) statement, Appellant raised six allegations of trial
counsel’s ineffectiveness and challenged the sufficiency of the evidence for his
aggravated assault and attempted murder convictions. See Issues to be
Raised on Appeal, 7/1/19.

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