J-S74036-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
RAVON WILLIAMS,                           :
                                          :
                 Appellant                :     No. 1411 EDA 2014

              Appeal from the PCRA Order Entered April 7, 2014
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-0012833-2007

BEFORE:     BENDER, P.J.E, DONOHUE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED JANUARY 23, 2015

      Ravon Williams (Appellant) appeals from the order which dismissed his

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

§§ 9541-9546. We affirm.

      A prior panel of this Court summarized the history of this case as

follows.

            In February 2008, [Appellant] pled guilty to retail theft and
      was sentenced to 6-23 months of imprisonment, followed by two
      years’ probation. He was also ordered to complete a re-entry
      program and remain employed when he was released from
      custody. Due to his lengthy criminal history, the trial court
      warned Williams at sentencing that “if you commit another crime
      and come back in front of me things aren’t going to go well for
      you.”

            On September 21, 2008, [Appellant] was arrested and
      charged with, among other things, tampering with or fabricating
      physical evidence. He was ultimately convicted of the tampering
      charge on March 9, 2009. On the same day, the court held a


*Retired Senior Judge assigned to the Superior Court.
J-S74036-14


        [parole] violation hearing after which it revoked [Appellant’s]
        February 2008 [parole] for retail theft, and sentenced him to the
        statutory maximum of 3½-7 years’ imprisonment, with credit for
        time served.      He filed a motion for reconsideration of his
        sentence that was denied.

Commonwealth         v.   Williams,   11    A.3d   1025   (Pa.   Super.     2010)

(unpublished memorandum at 2-3; footnotes and citations omitted).             On

direct appeal, this Court affirmed Appellant’s judgment of sentence. Id. at

3.

        Appellant timely filed a PCRA petition on June 3, 2011.     The docket

reflects that counsel was appointed and entered an appearance on

December 29, 2011. There is no additional activity on the docket until May

6, 2013, at which time counsel filed a motion to withdraw as counsel and a

no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

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

banc). Approximately eight months later, the PCRA court issued notice of its

intent to dismiss Appellant’s petition without a hearing pursuant to

Pa.R.Crim.P. 907. Appellant, pro se, moved for additional time to respond to

the Rule 907 notice. The docket does not reflect that the PCRA court ruled

on Appellant’s motion, but he nonetheless filed a response on March 7,

2014.

        On April 7, 2014, the PCRA court entered an order dismissing

Appellant’s petition and allowing counsel to withdraw. Appellant timely filed




                                      -2-
J-S74036-14


a notice of appeal.    The PCRA court did not order Appellant to file a

statement of errors complained of on appeal, and none was filed.

      Appellant presents one question for this Court’s review: “Whether the

PCRA [c]ourt erred as a matter of law and/or abused [its] discretion in

denying [A]ppellant PCRA relief?” Appellant’s Brief at VI.

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

      Appellant argues that the PCRA court erred in dismissing his petition

because his constitutional right to due process was violated by the lack of

notice at the Gagnon I hearing1 that he faced probation revocation for the

tampering-with-evidence conviction, and because each of his attorneys was

ineffective in failing to litigate this issue during his representation of

Appellant. Appellant’s Brief at 2-3, 4-10.

      The PCRA court opined that Appellant waived the claim that his

sentence was the result of a constitutional violation because he failed to


1
  “A Gagnon I hearing is a pre-revocation hearing to determine if probable
cause exists that a violation was committed. After this determination is
made, a Gagnon II hearing is conducted where the Commonwealth is
required to establish that the defendant did violate his parole/probation.”
Commonwealth v. Stafford, 29 A.3d 800, 802 n.1 (Pa. Super. 2011)
(citation omitted), see also Gagnon v. Scarpelli, 411 U.S. 778 (1973).


                                     -3-
J-S74036-14


raise it on direct appeal. PCRA Court Opinion, 5/13/2014, at 2. We agree.

See, e.g., Commonwealth v. Price, 876 A.2d 988, 993 (Pa. Super. 2005)

(“A claim is waived under the PCRA if, inter alia, it could have been raised on

direct appeal.”).

      However, this does not impact Appellant’s claims that revocation

counsel was ineffective in failing to object to the lack of notice and that

direct appeal counsel was ineffective in failing to raise the issue on direct

appeal.      PCRA Petition, 6/3/2011, at 2-3; Objections to 907 Notice,

3/7/2014,     at    3-4   (pages   unnumbered);   Appellant’s   Brief     at   4-8.

Accordingly, we consider whether the failure of revocation counsel to object

rendered his representation of Appellant constitutionally infirm.

      We consider this issue mindful of the following. Counsel is presumed

to be effective. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

To overcome this presumption, Appellant bears the burden of proving the

following:    “(1) the underlying substantive claim has arguable merit; (2)

counsel whose effectiveness is being challenged did not have a reasonable

basis for his or her actions or failure to act; and (3) the petitioner suffered

prejudice as a result of counsel's deficient performance.”      Id.     Appellant’s

claim will be denied if he fails to meet any one of these three prongs. Id.

      In support of his argument that his underlying claim has merit,

Appellant relies upon, inter alia, Commonwealth v. Ballard, 378 A.2d 445

(Pa. Super. 1977) (en banc). In that case, this Court summarized as follows



                                      -4-
J-S74036-14


the relevant due process requirements attendant with revocation of

probation.

           In Morrissey v. Brewer, 408 U.S. 471, 488-89, []
     (1972), the United States Supreme Court held that written
     notice of the alleged violations is one of the several minimum
     requirements of due process which must be complied with before
     parole can be revoked. Subsequently, these same due process
     safeguards, including written notice of the claimed violations,
     were extended to probation revocation proceedings. Gagnon [].
     On several occasions we have vacated lower court orders
     revoking probation because of the failure to supply the appellant
     with written notice of the alleged violations. See, e.g.,
     Commonwealth v. Honeyblue, [371 A.2d 919 (Pa. Super.
     1977)]; Commonwealth v. Gamble, [369 A.2d 892 (Pa. Super.
     1977)]; Commonwealth v. Martin, [360 A.2d 733 (Pa. Super.
     1976)]; Commonwealth v. Stratton, [344 A.2d 636 (Pa.
     Super. 1975)]; Commonwealth v. Henderson, [340 A.2d 483
     (Pa. Super. 1975)]; Commonwealth v. Alexander, [331 A.2d
     836 (Pa. Super. 1975)].

Ballard, 378 A.2d at 446.

     The PCRA court determined that the notice given to Appellant was

adequate to meet due process requirements. We agree.2

     On October 1, 2008, Appellant was given written notice of his alleged

parole violations.   That notice included, inter alia, reference to his

September 21, 2008 arrest for the criminal activity charged at MC-51-CR-

0047769-2008, which at that time was aggravated assault, simple assault,




2
  While our reasoning appears to be slightly different than that of the PCRA
court, “[t]his Court is not bound by the rationale of the trial court, and we
may affirm the trial court on any basis.” Commonwealth v. Williams, 73
A.3d 609, 617 n.4 (Pa. Super. 2013).


                                    -5-
J-S74036-14


reckless endangerment, and resisting arrest.     Gagnon Hearing Summary,

10/1/2008, at 2.

      Appellant’s preliminary hearing at MC-51-CR-0047769-2008 was held

on October 4, 2008, at which time the charge of tampering with evidence

was added at that docket number.       The original four counts and the new

tampering count all were held for court.    The case was transferred to the

trial court and assigned docket number CP-51-CR-0012566-2008; and the

criminal information as to all five charges was filed. While the charges at

that docket number remained open, Appellant’s revocation hearing in the

instant case was continued repeatedly to allow that matter to conclude.

       Ultimately Appellant was found guilty of the tampering count at CP-

51-CR-0012566-2008 on January 20, 2009.            Only after Appellant was

sentenced on that conviction, on March 9, 2009, was his revocation hearing

conducted.    At that hearing, there was no dispute that Appellant had

violated his parole.3   See, e.g., N.T., 3/9/2009, at 4 (Appellant’s counsel:

“obviously, there are violations here, and there’s not really much of an

excuse that we can offer, and I don’t think that [Appellant] is trying to offer

you any excuses. … Just so we’re all on the same page, Judge Cunningham

sentenced him today.”).



3
  Appellant does not argue that his conviction for tampering with evidence
was not a parole violation. His argument is limited to the notice he was
given.


                                     -6-
J-S74036-14


      Because Appellant was given written notice that the Commonwealth

sought to revoke his parole based upon the criminal activity charged at MC-

51-CR-0047769-2008, and his parole ultimately was revoked based upon his

conviction for criminal activity charged at MC-51-CR-0047769-2008, we

discern no constitutional violation.    None of the cases cited by Appellant

convinces us that the fact that there were only four counts charged at that

docket number at the time of the written notice, and the tampering charge

was later added at that same docket number at the preliminary hearing,

renders the written notice insufficient to satisfy the requirements of due

process. Compare Alexander, 331 A.2d at 837 (holding due process was

not served where the defendant was provided no written notice that his

arrest for burglary and theft while on probation for another crime was being

pursued as a violation; defendant was given only oral notice during a

conversation with his parole agent while defendant was in jail after the

arrest).

      Because Appellant’s underlying claim lacks merit, his counsel was not

ineffective for failing to raise it. Commonwealth v. Fears, 86 A.3d 795,

804 (Pa. 2014) (“[C]ounsel cannot be deemed ineffective for failing to raise

a meritless claim.”). Therefore, the PCRA court properly dismissed his PCRA

petition.

      Order affirmed.




                                       -7-
J-S74036-14




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/23/2015




                          -8-
