J-S75006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
ARTHUR LAMONT HENDERSON                 :
                                        :
                  Appellant             :   No. 137 WDA 2017

                Appeal from the PCRA Order January 6, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0001873-2012,
                          CP-02-CR-0001874-2012


BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                      FILED FEBRUARY 05, 2018

     Arthur Lamont Henderson (“Appellant”) appeals pro se from the order

denying his petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541–9546. We affirm.

     We rely on the PCRA court’s statement for the underlying facts and

procedural history. PCRA Court Opinion, 5/23/17, at 1–7. In sum, following

a trial in February of 2013, a jury convicted Appellant on fifty-three counts

related to his sexual assault of three women on January 7 and January 9,

2012. The trial court sentenced Appellant to incarceration for an aggregate

term of sixty-one to 122 years.       Appellant filed timely post-sentence

motions, which the trial court denied on July 9, 2013. This Court affirmed

the judgment of sentence, and the Pennsylvania Supreme Court denied

further review. Commonwealth v. Henderson, 116 A.3d 699, 1155 WDA
J-S75006-17


2013 (Pa. Super. filed December 23, 2014), appeal denied, 125 A.3d 1199

(Pa. 2015).

     Appellant filed a timely pro se PCRA petition on February 16, 2016.

Following the permitted withdrawal of two appointed attorneys, the PCRA

court independently reviewed the record and, on August 31, 2016, gave

notice of its intent to dismiss Appellant’s petition. The PCRA court dismissed

the petition without a hearing on January 10, 2017. This appeal followed.

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

     On appeal, Appellant presents the following questions for our review:

     I.       Did PCRA court abuse its discretion when denying
              [Appellant’s] motion to recuse/disqualification allowing the
              court’s bias/prejudice to influence outcome of PCRA action.
              Judge Donna Jo McDaniel who is named in an action where
              the probability of actual bias on the part of the judge is
              subjective and will affect a neutral two-part irreconcilable
              role as an accused and the deciding authority?

     II.      Did PCRA court err when failing to address amended claim
              of government interference related to [Appellant’s] PCRA
              petition filed with court of records when [Appellant]
              complained of transcripts missing and replaced from
              Exhibit B2 related to issue IV of partiality towards the
              Commonwealth claim in PCRA petition and petition was
              never scanned or hard copy available in court of records?

     III.     Did PCRA court err when not addressing amended claim of
              obvious or structral [sic] error in [Appellant’s] response to
              intent to dismiss motion of ex-parte conversation at
              [Appellant’s] waiver of counsel colloquy proceedings?


     IV.      Did PCRA court err when failing to address amended claim
              of conflict of interest in [Appellant’s] response to intent to
              dismiss when conflict of public defender’s office denied
              [Appellant] of appellate review on direct appeal due to


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            defective brief filed by [appellate] counsel from public
            defender’s office?

     V.     Did PCRA court abuse its discretion and err when not
            addressing issue IV in [Appellant’s] PCRA petition where
            [Appellant] was denied new trial counsel due to partiality
            towards the Commonwealth when issue was properly
            preserved and presented to PCRA court and where merits
            of issue has never been adjudicated?

     VI.    Did the PCRA court abuse its discretion and err when
            failing to transmit Appellant’s original certified PCRA
            petition?

     VII.   Did PCRA court abuse its discretion and err when failing to
            follow Turner/Finley procedure allowing counsel to
            withdraw and dismissing PCRA petition when counsel failed
            to address issue      IV of partiality towards the
            Commonwealth in PCRA petition?

     VIII. Did PCRA court err and abuse its discretion by failing to
           find pre-trial counsel ineffective for failing to conduct a
           meaningful pre-trial investigation, to fully pursue
           discovery, and by failing to object to Brady violation?

     IX.    Did PCRA court err and abuse its discretion by failing to
            find stand-by counsel ineffective for preventing [Appellant]
            from conducting his own defense, participating in ex-parte
            conversations without informing pro se defendant and
            making critical decisions without [Appellant’s] knowledge?

     X.     Did PCRA court err and abuse its discretion by failing to
            find appellate counsel ineffective for filing defective brief
            on direct appeal which denied [Appellant] appellate review
            on a [sic] issue properly preserved for appellate review
            and for failure to raise obvious or structural errors on
            appeal under separate headings?

     XI.    Did PCRA court err and abuse its discretion by failing to
            find PCRA counsel ineffective for failing to thoroughly
            investigate [Appellant’s] issues on their merits, failure to
            address issue IV in PCRA petition violating Turner/Finley
            procedure, and failure to recognize constitutional violations
            of [Appellant’s] rights and revoking [Appellant’s] right to

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            appointed PCRA representation on first collateral review
            violating Rule 904(c) of the Pennsylvania Rules of Criminal
            Procedure?

Appellant’s Brief at 6–7 (full capitalization omitted; issues reordered for ease

of disposition).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”       Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      In the first seven issues, Appellant raises claims of error by the

Honorable Donna Jo McDaniel, who served as both the trial judge and the

PCRA judge. Specifically, Appellant complains that Judge McDaniel erred by:

denying his motion for recusal; failing to address his claims of government

interference, stand-by counsel’s ex parte conversation, the public defender’s

conflict of interest, and partiality toward the Commonwealth; failing to




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transmit his PCRA petition; and failing to follow the Turner/Finley1

procedure for withdrawal of counsel.

         In Question I, Appellant complains that the PCRA court erred in

refusing to recuse itself, thereby “allowing the court’s bias/prejudice to

influence [the] outcome of [the] PCRA action.”                Appellant’s Brief at 6, 22.

According      to   Appellant,    Judge        McDaniel    participated        in   “ex-parte

communications and collaborative efforts with the prosecution and standby

counsel along with other governmental officers.”                    Id. at 23.      Appellant

concludes that Judge McDaniel “held two incompatible roles: that of arbiter

and that of adversary.        Therefore, [her] recusal was required in order to

protect [Appellant’s] due process right to a fair post-conviction review.” Id.

at 24.

         The Commonwealth retorts, “Appellant has not shown that a single

one of the judge’s trial rulings was motivated by bias against him.

Moreover, he has not shown that any of her rulings were incorrect, much

less that they prejudiced him.” Commonwealth’s Brief at 48.

         “A party that seeks recusal of a judge bears the burden to produce

evidence      establishing   bias,   prejudice,     or    unfairness     which      raises   a

substantial     doubt   as   to   the    jurist’s   ability    to    preside    impartially.”

Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011) (internal
____________________________________________


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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citations and quotation marks omitted). In reviewing a recusal issue, “[o]ur

function ... is to determine whether the proceedings before the PCRA court

were fair and impartial.” Reilly by Reilly v. Septa, 489 A.2d 1291, 1300

(Pa. 1985). If the proceedings before the PCRA court meet these criteria,

then the alleged disqualifying factors of the trial judge become moot.      Id.

We further note that a judge’s participation in a PCRA petitioner’s underlying

criminal action is generally not grounds for recusal in any ensuing PCRA

proceedings:

           Pennsylvania law makes clear that it is generally preferable
     for the same judge who presided at trial to preside over the
     post-conviction proceedings. Familiarity with the case will likely
     assist the proper administration of justice. Only where it is
     adequately demonstrated that the interests of justice warrant
     recusal, should a matter be assigned to a different judge.

Commonwealth v. Lambert, 765 A.2d 306, 362 (Pa. Super. 2000)

(citations and quotation marks omitted); Hutchinson, 25 A.3d at 319.

     In disposing of the recusal issue, the PCRA court opined as follows:

     [Appellant] avers that this [c]ourt erred in denying his Motion for
     Recusal on the PCRA proceedings on the basis that this [c]ourt
     was “named in an action where the probability of actual bias on
     the part of the judge is subjective and will affect a neutral two-
     part irreconcilable role as an accused and the deciding
     authority.” ([Appellant’s] Rule 1925(b) Concise Statement of
     Errors Complained of on Appeal, p. 4).

           The Appellate Court’s “standard of review of a trial court’s
     determination not to recuse from hearing a case is exceptionally
     deferential. The appellate court recognizes that our trial judges
     are ‘honorable, fair and competent’ and although the appellate
     court employs an abuse of discretion, it does so recognizing that
     the judge himself is best qualified to judge his ability to preside
     impartially... It is the burden of the party requesting recusal ‘to

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     produce evidence establishing bias, prejudice or unfairness
     which raises a substantial doubt as to the jurist’s ability to
     preside impartially.’” Commonwealth v. Harris, 979 A.2d 387,
     391-[39]2 (Pa. Super. 2009).

           On April 14, 2016, after this [c]ourt had both denied
     [Appellant’s] Motion for Recusal and appointed Suzanne Swan,
     Esquire to represent [Appellant] in his PCRA proceedings,
     [Appellant] attempted to file a private criminal complaint naming
     this [c]ourt, Attorney Narvin and former Assistant District
     Attorney Laura Ditka, Esquire. The private criminal complaint
     sought to raise a claim of “Obstruction Administration of Law or
     other government functions” pursuant to 18 Pa.C.S.A. §51056 on
     the basis of the previously-referenced events at the conclusion of
     the waiver of counsel hearing, and also named Allegheny County
     Executive Rich Fitzgerald, the U.S. Attorney’s Office, the
     Pennsylvania Attorney General’s Office, the Honorable Jeffrey
     Maning [sic], Public Defender Elliott Howsie, Esquire, the
     Allegheny County Office of Conflict Counsel and the United
     States Civil Rights Exploitation and Corruption Section as “in-
     concert parties” who all broke state and Federal laws during the
     waiver of counsel hearing. Not surprisingly, [Appellant’s] private
     criminal complaint was not accepted by the Assistant District
     Attorney on duty at the Municipal Court. Thereafter, [Appellant]
     again sought prosecution by mailing his private criminal
     complaint directly to Allegheny County District Attorney Steven
     Zappala, Jr. Again, the complaint was not accepted.
           6
              18 Pa.C.S.A. §5105 actually concerns Hindering
           Apprehension or Prosecution.

            [Appellant] is not able to force recusal of a judge by
     attempting to file falsified and improper claims against the judge
     and then using that attempt (which he incorrectly characterized
     as a pending case) as the basis for recusal. The logic is both
     circular and faulty. As has been repeatedly stated, this [c]ourt
     went to great lengths to ensure that [Appellant] received a fair
     trial and the fact that he was convicted is not reflective [of] any
     bias or prejudice on behalf of this [c]ourt. [Appellant] was
     convicted because he was guilty.         [Appellant’s] attempt to
     manufacture a claim of bias with his concocted private criminal
     complaint is both offensive and meritless. This claim must also
     fail.


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PCRA Court Opinion, 5/23/17, at 16–17 (original brackets omitted).

       Having reviewed the certified record, we conclude that Appellant has

not produced evidence establishing bias, prejudice, or unfairness, which

raises a substantial doubt as to Judge McDaniel’s ability to preside

impartially as the PCRA jurist. Hutchinson, 25 A.3d at 319. Indeed, the

PCRA proceedings before Judge McDaniel were fair and impartial, and,

having served as the trial judge, Judge McDaniel’s familiarity with the case

assisted the proper administration of justice.       Lambert, 765 A.2d at 362.

Thus, we discern no abuse of Judge McDaniel’s discretion in refusing

Appellant’s recusal request. Moreover, given Appellant’s attempt to compel

Judge McDaniel’s recusal by filing an unsubstantiated private criminal

complaint, his claim of error is disingenuous.

       In Questions II, III, and IV, Appellant complains that the PCRA court

failed to address several “amended” claims raised in his response to the

PCRA court’s notice of intent to dismiss.        Appellant’s Brief at 17, 27, 34.2

____________________________________________


2
  The PCRA court succinctly disposed of the issues regarding its failure to
address certain PCRA claims:

             [Appellant] also avers that this [c]ourt erred in failing to
       “address” his PCRA claims. As discussed above and below, this
       [c]ourt has extensively “addressed” [Appellant’s] PCRA claims
       and found them to be utterly without merit. There is simply no
       basis for his claim that they were not addressed; this 19 page
       Opinion is direct evidence to the contrary.        This claim is
       meritless.

(Footnote Continued Next Page)


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Relying on Rykard, 55 A.3d 1177, the Commonwealth contends that

Appellant waived these issues:

      [Appellant], in his response to the trial court’s notice of intention
      to dismiss his PCRA petition, purports to raise three (3) issues
      which were not contained in his pro se petition. They were (1)
      “Government interference”; (2) “Obvious or Structural Error”;
      and (3) “Conflict of Interest.”

             Under the law of this Commonwealth, such issues have
      been waived. As this Court has held, in order to preserve a new,
      non-PCRA counsel ineffectiveness claim for appeal, a petitioner
      must seek leave to amend his post- conviction [sic] collateral
      petition. It is not sufficient merely to include the claims in one’s
      response to the court’s notice of intention to dismiss.

Commonwealth’s Brief at 50 (internal citation omitted).

      Appellant responds that he “specifically ask[ed] to amend [his] PCRA

petition as pro se litigant to protect claims and issues for appellate review.”

Appellant’s Brief at 1.         Therefore, Appellant asserts, “[t]he PCRA court

should have addressed [his] amended claims on their merits.” Id. at 1–2.

      We have explained that a Pa.R.Crim.P. 907 pre-dismissal notice

affords a petitioner the opportunity to seek leave to amend his petition and

correct   any   material       defects.      Rykard,   55   A.3d   at   1189   (citing

Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999)).                    However, we

clarified that a petitioner’s prerogative to respond to a PCRA court’s Rule 907

notice is not analogous to an amended PCRA petition, which is subject to

                       _______________________
(Footnote Continued)

PCRA Court Opinion, 5/23/17, at 18.




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either the PCRA time bar or the PCRA court’s express grant of relief under

Pa.R.Crim.P. 905(A). Rykard, 55 A.3d at 1189.

      Specifically, we stated the following:

      [Pa.R.Crim.P.] 907, which provides the requirement of a notice
      of intent to dismiss and allows for the optional filing of a
      response, states that a PCRA court may dismiss a petition, grant
      leave to file an amended petition, or direct that proceedings
      continue twenty days after the date of the notice of dismissal,
      including if a defendant responds to the dismissal. The rule
      does not treat a response to its notice of dismissal as
      either an amended petition or a serial petition.

Rykard, 55 A.3d at 1187 (emphasis added).

      Here, Appellant raised “amended claim[s]” in his response to the PCRA

court’s notice of intent to dismiss. Petitioner’s Response to Intent to Dismiss

PCRA, 9/21/16, at 15–19.        Although Appellant requested permission to

amend his PCRA petition to include these new claims, the PCRA court did not

grant him permission. Consequently, we agree with the Commonwealth that

Appellant’s three “failed to address” issues are waived. Accord Rykard, 55

A.3d at 1192 (explaining that response to notice of dismissal is neither

amended petition nor serial petition); see also Williams, 732 A.2d at 1191

(“The assertion of a new claim after the court has heard argument and

indicated its intent to dismiss the petition militates in favor of the decision to

deny leave to amend.”).

      In Question V, Appellant essentially complains that the PCRA court

erred in failing to address Issue IV of his pro se PCRA petition. Appellant’s

Brief at 24. Issue IV reads as follows:

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      (IV) The entire trial process was fundamentally flawed where
      the trial court, by invoking its personal bias and prejudice,
      denied Petitioner new counsel, shown partiality towards the
      Commonwealth, and repeatedly made rulings in Petitioner’s
      absence depriving him of his fundamental right to be present
      during every stage in violation of the Fourth, Sixth and
      Fourteenth Amendments to be tried before an impartial judge[.]

Petition for Post-Conviction Relief, 2/6/16, at ¶ 8(IV).

      Although the PCRA court did not specifically address Issue IV of

Appellant’s petition, it did refer to Appellant’s claims of bias and partiality.

The PCRA court opined:

      Rather than admitting that he received a fair trial and was
      convicted, [Appellant] asserts that this [c]ourt was biased
      against him. Rather than admitting that his claim of bias lacked
      merit, he asserts that his lawyer wrote a bad brief.

             The Superior Court has already reviewed the record of the
      trial and determined that [Appellant] received a fair and just trial
      with all the protections of due process. This [c]ourt was not
      biased or prejudiced against [Appellant] and his repeated
      assertions to the contrary are, frankly, offensive to this [c]ourt
      and to the entire justice system. [Appellant] was convicted
      because he was guilty. Appellate counsel was unable to provide
      a legal analysis demonstrating this [c]ourt’s bias because there
      was none - the fantasies and delusions of [Appellant]
      notwithstanding.

PCRA Court Opinion, 5/23/17, at 15.

      As for Appellant’s specific complaint about the denial of his request for

new counsel, the direct-review panel disposed of this issue:

      Upon review, we conclude that the trial court’s decision to deny
      Appellant’s requests for new counsel was fully within its
      discretion, and we decline to grant Appellant relief on this basis.
      Appellant’s request at issue was made after jury selection and
      sought new appointed counsel, not substitution of counsel of his
      choosing at his own expense. Moreover, contrary to Appellant’s

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      assertion, defense counsel was indeed prepared for trial. The
      trial court determined that Appellant failed to set forth a
      legitimate reason for appointing new counsel.               Therefore,
      Appellant’s request was properly denied.                   See e.g.
      Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super.
      2007) (citation omitted) (holding that “‘substantial reasons’ or
      ‘irreconcilable differences’ warranting appointment of new
      counsel are not established where the defendant merely alleges
      a strained relationship with counsel, where there is a difference
      of opinion in trial strategy, where the defendant lacks confidence
      in counsel’s ability, or where there is brevity of pretrial
      communications”); see also Pa.R.Crim.P. 122(C). In addition,
      the trial court properly colloquied Appellant on his request for
      self-representation, then permitted Appellant to proceed pro se.
      Accordingly, Appellant’s claim of trial court error fails[.]

Henderson, 116 A.3d 699, 1155 WDA 2013 (unpublished memorandum at

*14–15).

      Regarding Appellant’s reference to the exchange among Judge

McDaniel, the prosecutor, and standby counsel in Appellant’s absence after

the waiver-of-counsel colloquy, we discern no basis for relief.          In fact,

Judge McDaniel, the prosecutor, and standby counsel served Appellant’s

interests by clarifying his access to certain witnesses subpoenaed by the

Commonwealth.        N.T., 2/4/13, at 17–19.          Although their personal

assessments of Appellant’s ability to represent himself appear on the record,

nothing therein supports Appellant’s allegation that he was deprived “of his

fundamental right to be present during every stage in violation of the

Fourth, Sixth and Fourteenth Amendments to be tried before an impartial

judge.” Petition for Post-Conviction Relief, 2/6/16, at ¶ 8(IV).




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      We reiterate that Appellant has not produced evidence establishing

Judge McDaniel’s bias, prejudice, or unfairness.      Hutchinson, 25 A.3d at

319. Additionally, the certified record confirms that the PCRA proceedings

before Judge McDaniel were fair and impartial.       Appellant’s contrary claim

lacks merit.

      Appellant alleges in Question VI that the PCRA court erred in “failing to

transmit [A]ppellant’s original certified PCRA petition.” Appellant’s Brief at

19.   We note that the PCRA court did not specifically address this claim.

However, the Commonwealth claims, and our review of the certified record

confirms, that Appellant’s PCRA petition is available for our review at Docket

Entry 46. Therefore, this allegation of error does not warrant relief.

      Appellant’s seventh question contains his final allegation of judicial

error, i.e., the PCRA court failed to comply with the Turner/Finley

procedure for allowing counsel to withdraw.       Appellant’s Brief at 33.     The

PCRA court disposed of this claim as follows:

             Finally, [Appellant] argues that this [c]ourt erred in “failing
      to follow Turner/Finley procedure” in the dismissal of his pro se
      PCRA Petition by not conducting its own independent review of
      the Petition.

             Again, [Appellant’s] claim fails without question, as this
      [c]ourt did conduct its own independent review of the record
      prior to dismissing the Petition. [Appellant] necessarily assumes
      that it did not because relief was not granted, which is again
      demonstrative of the faulty reasoning employed throughout the
      Petition and the Concise Statement. That this [c]ourt did not
      grant relief did not mean that it did not review the Petition;
      rather, it meant that the claims were meritless and did not


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      warrant collateral relief. [Appellant’s] wishing does not make it
      so. This claim is also meritless.

PCRA Court Opinion, 5/23/17, at 18 (emphasis in original).

      As stated above, we grant great deference to the PCRA court’s findings

that are supported in the record, and we will not disturb them unless they

have no support in the certified record. Rigg, 84 A.3d at 1084. Here, the

PCRA court assures us that it dismissed Appellant’s petition based on its

independent review of the record, including Appellant’s response to the PCRA

court’s notice of intent to dismiss. Order, 1/10/17. Appellant presents no

argument, let alone evidence of record, that undermines our deference to

the PCRA court’s supported findings and conclusion that Appellant is not

entitled to relief on his claims.

      In his four remaining issues, Appellant challenges the effective

assistance of his pretrial, standby, appellate, and post-conviction counsel.

Pennsylvania jurists presume that a PCRA petitioner’s counsel was effective,

unless the petitioner proves otherwise. Commonwealth v. Williams, 732

A.2d 1167, 1177 (Pa. 1999).         In such cases, we are bound by the PCRA

court’s credibility determinations where there is support for them in the

record. Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005)

(citation omitted). Furthermore, claims of ineffective assistance of counsel

(“IAC”) are not self-proving. Commonwealth v. Wharton, 811 A.2d 978,

986 (Pa. 2002).     Consequently, our Supreme Court has explained that, in

order to succeed on an IAC claim, an appellant must demonstrate (1) that

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the underlying claim is of arguable merit; (2) that counsel’s performance

lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused

the appellant prejudice.    Commonwealth v. Michael Pierce, 786 A.2d

203, 213 (Pa. 2001).

      We reiterate that trial counsel cannot be deemed ineffective for failing

to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).      Moreover, trial counsel’s approach must be

“so unreasonable that no competent lawyer would have chosen it.”

Commonwealth v. Ervin, 766 A.2d 859, 862–863 (Pa. Super. 2000)

(quoting Commonwealth v. Miller, 431 A.2d 233, 234 (Pa. 1981)). Our

Supreme Court has defined “reasonableness” as follows:

      Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.        Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.

Commonwealth v. Charles Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth v. Maroney, 235 A.2d 349, 352 (Pa. 1967)) (emphasis in

original; footnote omitted). Finally, prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different.      Michael Pierce, 786 A.2d at 213.

“A failure to satisfy any prong of the ineffectiveness test requires rejection of


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the claim of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409,

419 (Pa. 2009) (citation omitted).

     Appellant’s first IAC claim is against pretrial counsel. Appellant’s Brief

at 35. According to Appellant, pretrial counsel failed to investigate the case

and was not prepared for trial. Id. at 36.

     Regarding this IAC claim, the PCRA court opined as follows:

           Next, [Appellant] argues that “pretrial counsel” was
     ineffective in failing to investigate expert witnesses and in being
     unaware of exculpatory evidence that could have been the
     subject of a suppression motion. Insofar as [Appellant] has failed
     to specify which of his four (4) attorneys - all of whom
     represented him before trial commenced - he considers to be
     “pretrial counsel”, which expert witness(es)5 should have been
     “investigated” or called to testify and what “exculpatory
     evidence” counsel should have been aware of, [Appellant] has
     utterly failed to present a reviewable claim. “When the trial court
     has to guess what issues an appellant is appealing, that is not
     enough for meaningful review”... “When an appellant fails to
     adequately identify in a concise manner the issues sought to be
     pursued on appeal, the trial court is impeded in its preparation of
     a legal analysis which is pertinent to the issues”... “In other
     words, a Concise Statement which is too vague to allow the
     Court to identify the issues raised on appeal is the functional
     equivalent of no Concise Statement at all.” Commonwealth v.
     Lemon, 804 A.2d 34, 37 (Pa.Super. 2002), internal citations
     omitted. As this Court is unable to determine the basis for
     [Appellant’s] claims of ineffectiveness against “pretrial counsel” -
     or even the attorney(s) against whom they are being made - this
     claim has been waived.
           5
                 As it specifically relates to a claim for
           ineffectiveness for the failure to call a witness, the
           petitioner must establish that “(1) the witness
           existed; (2) the witness was available to testify for
           the defense; (3) counsel knew of, or should have
           known of, the existence of the witness; (4) the
           witness was willing to testify for the defense; and (5)
           the absence of the testimony of the witness was so

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            prejudicial as to have denied the defendant a fair
            trial.” Commonwealth v Matias, 63 A.3d 807, 810-
            811 (Pa.Super. 2013).

PCRA Court Opinion, 5/23/17, at 13–14 (some internal quotation marks

omitted).

      Upon review, we discern no abuse of the PCRA court’s discretion in

rejecting Appellant’s undeveloped claim against pretrial counsel as waived.

Contrary to Appellant’s assertion, he—not the PCRA court—is responsible for

providing   the    details   of   his   claim,    such   as   a   particular   counsel’s

ineffectiveness.    Appellant’s Brief at 35–36.          Additionally, we recall this

Court’s disposition of the underlying issue on direct appeal:

      Appellant argues that the trial court abused its discretion by
      failing to appoint new trial counsel where court-appointed
      counsel refused to subpoena critical witnesses and was allegedly
      unprepared for trial.

                                         * * *

      [C]ontrary to Appellant’s assertion, defense counsel was indeed
      prepared for trial.

Henderson, 116 A.3d 699, 1155 WDA 2013 (unpublished memorandum at

*10, 15). In sum, Appellant’s IAC claim against pretrial counsel fails.

      Next, Appellant complains that standby counsel was ineffective.

Appellant’s Brief at 37. According to Appellant, standby counsel “prevent[ed

Appellant] from conducting his own defense, participat[ed] in ex-parte

conversations without information pro se [Appellant] and [made] critical

decisions without [Appellant’s] knowledge.” Id. The Commonwealth retorts


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that, “having waived his right to counsel, [Appellant] has waived his right to

effective assistance of counsel.” Commonwealth’s Brief at 33.3 We agree.

       In this case, Appellant waived his Sixth Amendment right to counsel

and, instead, chose to represent himself at trial.4 Our Supreme Court has

explained that:

       [s]uch a choice is also guaranteed under the Sixth
       Amendment…. The self-representation choice, however, is not
       without consequences, including that a defendant who knowingly
       and intelligently waives his right to counsel and represents
       himself at trial cannot later seek to revive defaulted trial claims
       by alleging his own ineffectiveness or the ineffectiveness of his
       standby counsel.

Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014) (citations

omitted). Moreover, “any potential layered claim of counsel ineffectiveness

covering trial and appeal is unavailable because [A]ppellant exercised his

constitutional right to represent himself at trial.”   Id. Applying Blakeney,

we conclude that “Appellant’s post-conviction attempt to challenge standby

counsel’s effectiveness at trial . . . is not cognizable.” Id. at 756–757.



____________________________________________


3
   In rejecting this IAC claim, the PCRA court stated, “[Appellant’s] current
claims against [standby counsel] as they relate to both [standby counsel’s]
speaking outside [Appellant’s] presence and in failing to inform him of what
[Appellant] later perceived as this [c]ourt’s bias are both entirely without
merit. This claim must fail.” PCRA Court Opinion, 5/23/17, at 13.
4
  We upheld the validity of Appellant’s decision to represent himself at trial.
Henderson, 116 A.3d 699, 1155 WDA 2013 (unpublished memorandum at
*10–15).



                                          - 18 -
J-S75006-17


      Appellant levels his third IAC claim against appellate counsel, who,

Appellant asserts, filed “a defective brief on direct appeal.” Appellant’s Brief

at 26. Due to Appellant’s lack of clarity in presenting this issue, we rely on

the PCRA court’s well-reasoned analysis, which we adopt as our own:

            Next, [Appellant] argues that appellate counsel was
      ineffective in filing a defective appellate brief[,] which led the
      Superior Court to determine one of his appellate claims had been
      waived. Again, this claim is meritless.

             On his direct appeal, [Appellant] sought to raise a claim of
      bias by this Court. However, other than citing “a list of
      circumstances which allegedly support his allegation that the
      trial court was partial towards the Commonwealth” (Superior
      Court Opinion, December 23, 2014, 1155 WDA 2013, p. 17),
      [Appellant] failed to cite any relevant case law or provide an
      analysis applying that law to the facts of the case. As such, the
      Superior Court deemed the issue waived.

             It is clear to this Court that appellate counsel raised the
      claim of bias upon [Appellant’s] insistence, and to save himself
      from [Appellant’s] later claim that he failed to do [Appellant’s]
      bidding (as [Appellant]has now claimed against his various other
      attorneys). It is further clear to this [c]ourt - having provided
      [Appellant] with a fair trial - that counsel included the allegations
      in the brief as directed but was unable to provide a meaningful
      legal analysis of the claim of bias since it did not exist. However,
      rather than accepting the Superior Court’s determination that
      [Appellant’s] allegations as presented do not support a legal
      analysis and are not indicative of a claim of judicial bias,
      [Appellant] presumes that the fault must lie with his attorney for
      filing a “defective” brief.

            [Appellant’s] failure to accept the Superior Court’s
      determination and instead blame his attorney is completely
      demonstrative of his conduct throughout the trial and his utter
      refusal to take responsibility for his actions. Rather than
      admitting his guilt in raping three (3) women, he asserts that
      they consented and enjoyed it.

                                     * * *

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J-S75006-17


       Appellate counsel was unable to provide a legal analysis
       demonstrating this [c]ourt’s bias because there was none. . . .
       Appellate counsel was not ineffective for writing a “defective”
       brief when the claim of error did not exist. This claim must also
       fail.

PCRA Court Opinion, 5/23/17, at 14–15. Upon review, we discern no abuse

of the PCRA court’s discretion in rejecting Appellant’s IAC claim against

appellate counsel.

       Finally, Appellant challenges the representation of PCRA counsel.

Appellant’s Brief at 38.5 The crux of Appellant’s claims appears to be that

PCRA counsel “failed to address [A]ppellant’s claims of partiality towards the

Commonwealth in his no-merit letter, and [A]ppellant’s claim of obvious

and/or structural error.” Id. at 42. Again, given Appellant’s lack of clarity in

presenting this issue, we rely on the PCRA court’s analysis:

              Next, [Appellant] raises five (5) claims of ineffective
       assistance of PCRA counsel, for his failure to file an Amended
       Petition including each of the five (5) issues identified in his pro
       se Petition: the discussion following the waiver of counsel
       hearing; the expert investigation and exculpatory evidence
       issue; the “defective” appellate brief; the alleged prejudice of
       this [c]ourt (all referenced above) and this [c]ourt’s failure to
       recuse itself in the PCRA proceedings ... .


____________________________________________


5
   Appellant preserved his IAC claims against PCRA counsel by raising them
in his response to the PCRA court’s notice of intent to dismiss Appellant’s
petition. Petitioner’s Response to Intent to Dismiss PCRA, 9/21/16, at 3–16.
Accord Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (“[I]n order for
a petitioner to preserve an ineffective assistance claim against his PCRA
counsel, he must either allege the claim in a serial PCRA petition or raise it
in response to the PCRA court’s notice of dismissal.”).



                                          - 20 -
J-S75006-17


            As discussed extensively elsewhere in this Opinion, the
     underlying claims of error are meritless. Accordingly, insofar as
     counsel can never be found ineffective for failing to raise a
     meritless claim . . . [PCRA counsel] will not be found ineffective
     for failing to raise them in an Amended Petition. This claim is
     also meritless.

PCRA Court Opinion, 5/23/17, at 15–16 (internal citation omitted).

     Our review of the certified record confirms that it supports the PCRA

court’s findings and reveals no basis for disturbing the PCRA court’s

determination that Appellant’s IAC claims against PCRA counsel lack merit.

Accordingly, we discern no abuse of the PCRA court’s discretion in rejecting

these claims.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/05/2018




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