J-S70026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    GREGORY ALLEN BARTO          :
                                 :
                  Appellant      :             No. 195 MDA 2017

                 Appeal from the PCRA Order January 17, 2017
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001173-2010


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                          FILED JANUARY 24, 2018

       Appellant, Gregory Allen Barto, appeals pro se from the order denying

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

Pa.C.S. §§ 9541-9546.1 We affirm.

       In its opinion, the PCRA court set forth the relevant facts and procedural

history of this matter as follows:

             [Appellant] was charged with numerous counts of sexually
       related crimes including but not limited to rape, sexual assault,
       indecent assault, unlawful contact with a minor, corruption of
       minors and endangering the welfare of children, as well as several
       counts of conspiracy to commit various additional sexual offenses.

             [Appellant] filed pretrial motions asserting that these
       offenses were barred by double jeopardy principles because they
       were part of the same criminal episode as offenses involving
       separate victims in six other cases.1 The court denied the
____________________________________________


1 Despite seeking and receiving an extension of time in which to file a brief,
the Commonwealth has failed to file a brief in this matter. Order, 8/31/17.
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       motions, and [Appellant] appealed. The Superior Court affirmed
       this court’s decision in a memorandum opinion dated January 31,
       2013, and the Pennsylvania Supreme Court denied [Appellant’s]
       petition for allowance of appeal on July 16, 2013.

              1Those cases were CR-1079-2008, CR-110-2009, CR-
              844-2009, CR-1606-2009 and CR-1632-2009.

             On July 17, 2015, [Appellant] entered a no contest plea to
       endangering the welfare of children, corruption of the morals of
       minors, conspiracy to commit indecent assault of a minor and
       indecent assault.[2]     [Appellant’s] sentencing hearing was
       continued several times.     On June 2[2], 201[5], the court
       sentenced [Appellant] to two to four years of state incarceration
       to run entirely concurrent to the sentences that [Appellant] was
       already serving.[3] The sentence was in accordance with the plea
       agreement of the parties. [Appellant] did not appeal.

             On June 23, 2016, [Appellant] filed a pro se PCRA petition.
       The sole issue asserted in this PCRA petition was a claim that
       [Appellant’s] second attorney was ineffective in the manner in
       which he pursued [Appellant’s] double jeopardy claims. The court
       appointed counsel to represent [Appellant] and gave counsel the
       opportunity to file an amended PCRA petition or a no merit letter
       in accordance with Commonwealth v. Turner, 544 A.2d 927
       (Pa. 1988) and Commonwealth v. Finley, 550-[sic] A.2d 213
       (Pa. Super. 1988).

              After obtaining the relevant transcripts, reviewing the issue
       thoroughly with [Appellant] and researching the relevant law,
       defense counsel filed on August 31, 2016 a motion to withdraw
       which included a Turner/Finley no merit letter. Apparently, in
       correspondence with counsel, [Appellant] discussed an additional
       issue regarding the discipline of a law enforcement officer involved
       in his prosecution. Since counsel believed [Appellant] waived that
       issue by entering his plea and his double jeopardy issue lacked
       merit, counsel did not file an amended PCRA petition.


____________________________________________


2   18 Pa.C.S. §§ 4304(a), 6301(a), 903(c), and 3126(a)(1), respectively.

3The trial court entered an amended sentencing order on June 29, 2015. The
amended order did not change the aggregate sentence.

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             In a letter dated September 15, 2016 to this court,
       [Appellant] disputed PCRA counsel’s analysis of his issue related
       to the law enforcement officer, Trooper Douglas Sversko.

             After an independent review of the record, in an Opinion and
       Order dated December 21, 2016, the court granted PCRA counsel
       leave to withdraw and gave [Appellant] notice of its intent to
       dismiss his PCRA petition without holding an evidentiary hearing.
       The notice gave [Appellant] twenty days to respond. The court
       did not receive anything from [Appellant] within the twenty day
       response time. Therefore, the court issued an order dismissing
       [Appellant’s] PCRA petition.2

                     2 Thereafter, [Appellant] sent a letter dated
              January 17, 2017, which was titled as “RESPONSE TO
              NOTICE OF INTENT TO DISMISS.”              [Appellant]
              asserted that the Commonwealth’s failure to disclose
              Trooper Sversko’s arrest and conviction constituted a
              Brady[4] violation.    He also noted that Trooper
              Sversko interviewed the alleged victim and gathered
              the   Commonwealth’s      evidence.        [Appellant]
              contended that “the fact that Trooper Sversko had
              evidence that was tampered with in his possession
              that he should not have had in his residence, provided
              powerful impeachment material for trial. Had I known
              about this information, which the Commonwealth still
              has not provided the specifics of the matter, I would
              not have plead (sic) no contest.”

              [Appellant] filed a notice of appeal.

PCRA Court Opinion, 6/5/17, at 1-3. Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

       On appeal, Appellant presents the following issue:

       I.     Whether Appellant’s due process rights were violated when
              the Commonwealth failed to disclose Trooper Sversko[’s]
              arrest and conviction for sex offenses which included
              tampered evidence related to Appellant’s case found in
____________________________________________


4   Brady v. Maryland, 373 U.S. 83 (1963).

                                           -3-
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              Trooper Sversko’s residence in violation of Brady v.
              Maryland?

Appellant’s Brief at 5 (full capitalization omitted).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. Id.

      The single claim raised in Appellant’s brief is related to disclosure of

information regarding Trooper Sversko’s arrest and conviction. Appellant’s

Brief at 5.    In his PCRA petition filed June 23, 2016, however, Appellant

presented the following single claim:

      Claim I.
      Trial counsel was ineffective for failure to request nunc pro tunc
      reinstatement to file an interlocutory appeal because he was just
      retained and prior counsel failed to file an appeal from the denial
      of Petitioner’s pretrial double jeopardy motion under Rule 110.

PCRA Petition, 6/23/16, at 3.       Thus, Appellant failed to raise the issue

regarding Trooper Sversko in his PCRA petition.

      As our Supreme Court has explained: “Any claim not raised in the PCRA

petition is waived and not cognizable on appeal.”         Commonwealth v.

Washington, 927 A.2d 586, 601 (Pa. 2007); see also Pa.R.A.P. Rule 302

(stating “issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”). Accordingly, because Appellant did not raise

this issue in his PCRA petition, we cannot consider it on appeal.           See

                                       -4-
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Commonwealth v. Lauro, 819 A.2d 100, 103 (Pa. Super. 2003) (“issues not

raised in a PCRA petition cannot be considered on appeal.”).

      Moreover, the fact that Appellant asserted this issue in his January 17,

2017 response to the PCRA court’s notice of intent to dismiss does not

preserve the issue. As this Court has explained:

      The purpose behind a Rule 907 pre-dismissal notice is to allow a
      petitioner an opportunity to seek leave to amend his petition and
      correct any material defects, the ultimate goal being to permit
      merits review by the PCRA court of potentially arguable claims.
      The response is an opportunity for a petitioner and/or his counsel
      to object to the dismissal and alert the PCRA court of a perceived
      error, permitting the court to “discern the potential for
      amendment.” The response is not itself a petition and the law still
      requires leave of court to submit an amended petition. Hence, we
      conclude that a response to a notice of intent to dismiss is not a
      second or subsequent petition.

Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012) (internal

citations omitted). Appellant did not seek leave of court to file an amended

petition, nor did he file an amended petition including this claim. Accordingly,

Appellant’s issue is waived as it was not raised in his PCRA petition or in an

amended petition.

      Additionally, Appellant’s pro se September 15, 2016 letter filed in

response to counsel’s petition to withdraw does not preserve the issue

Appellant raises on appeal.    In his letter, Appellant asserted that counsel

should not have entertained a plea for Appellant without bringing the matter

involving Trooper Sversko “to [the PCRA court] via a pretrial motion.” Letter,

9/15/16, at 1. Appellant further argued that counsel was ineffective for failing


                                     -5-
J-S70026-17


to investigate the matter to determine why the Commonwealth failed to

disclose this information. Id. Thus, Appellant’s claim raised in his September

15, 2016 letter constitutes a claim of ineffective assistance of counsel and

differs from the issue raised in his appellate brief before this Court.5 Moreover,

had this issue not been waived, we would conclude that it lacked merit for the

reasons outlined by the PCRA court. PCRA Court Opinion, 6/5/17, at 4-7.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2018




____________________________________________


5 The PCRA court addressed this issue in its opinion and order providing notice
of its intent to dismiss. PCRA Opinion and Order, 12/21/16, at 8-10.

                                           -6-
