J-S31029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                        Appellee       :
                                       :
            v.                         :
                                       :
MELANIE ANN RAY,                       :
                                       :
                        Appellant      :     No. 2715 EDA 2013


         Appeal from the PCRA Order Entered September 12, 2013,
             In the Court of Common Pleas of Chester County,
            Criminal Division, at No. CP-15-CR-0003370-2011.


BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED OCTOBER 20, 2014

      Appellant, Melanie Ann Ray, appeals from the denial of her second

petition under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–

9546. We affirm.

      The PCRA court, quoting from the notes of testimony, summarized the

facts of the crime as follows:

            On August 6, 2011 [Appellant] and her co-defendant,
      Chandler Clark, conspired to murder Andre Dupuis in West
      Nottingham Township, Chester County, Pennsylvania during the
      course of a robbery of Mr. Dupuis’ motor vehicle.

             The events which led to this crime began approximately
      three to four weeks prior in western Pennsylvania. [Appellant]
      and her co-defendant, Chandler Clark, are from Titusville,
      Pennsylvania. Both defendants were on parole and were facing
      violation hearings which could result in a sentence to state
      prison.
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           Approximately three weeks before the murder, [Appellant]
     traveled to Lancaster County to stay with a friend of hers. While
     she was living with her friend, she met Mr. Dupuis in a bar in
     Rising Sun, Maryland.     [Appellant] got to know Andre and
     learned he was single, lived alone, and did not have any
     children.

           Shortly before the murder, [Appellant] returned to her
     hometown where she met with Chandler Clark. The defendants
     then returned to the Delaware Valley with the intent to flee
     Pennsylvania together to avoid further prosecution for their
     parole violations.

           On the night of the murder, Chandler Clark suggested to
     [Appellant] that they murder Andre to steal his truck. Andre was
     considered a perfect target by the defendants because he lived
     alone and worked out of the area. The defendants believed this
     would give them additional time to escape the area before
     anyone notice[d] Andre was missing.

           [Appellant] contacted Andre and asked him for a ride to
     [Appellant’s] friend’s house in Lancaster County. Clark then told
     [Appellant] that she should fake being sick to get Andre to pull
     over so Clark could murder Andre. The defendants knew that
     the road they were taking on the way to her friend’s house was
     desolate, with no houses nearby.

           When Andre arrived to pick up [Appellant], she introduced
     Clark as her cousin. Andre willingly allowed the defendants into
     his truck, believing that he was driving them to Lancaster
     County, to her friend’s house. At approximately 10:30 p.m., as
     Andre drove along Lees Bridge Road in West Nottingham,
     [Appellant] pretended to be sick. Andre pulled over on a section
     of Lees Bridge Road where there were no houses for at least a
     quarter of a mile in either direction.

           When Andre stopped, [Appellant] got out of the truck and
     walked behind the truck where she pretended to throw up.
     Andre exited the truck and walked towards [Appellant] to check
     on her. Clark then exited the truck and met Andre at the rear of
     the truck. When Andre reached the rear of the truck, Clark
     pulled out a .40 caliber pistol and pointed it at Andre. He told


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     Andre, “Nothing personal. We need your keys and your truck.”
     Andre turned around and attempted to get back into his truck.
     As he ran back, Clark shot Andre once in the back. Andre
     collapsed into the driver’s seat of his truck. Clark then came
     around to the driver’s side door and shot Andre a second time.
     The second shot went through Andre’s neck, severing his spine.
     Andre died almost immediately after the second shot.

          After Clark murdered Andre, [Appellant] checked Andre’s
     pockets, looking for his wallet. Clark then pushed Andre’s body
     down an embankment, where it was discovered by a passing
     motorist the next morning.

     THE COURT: Did they take his wallet?

     [THE PROSECUTOR]: They could not find his wallet. In fact,
     your Honor, that was the way the state police were able to
     identify Mr. Dupuis so quickly was [the defendants] were unable
     to find his wallet.

           Immediately following the murder, the defendants took
     Andre’s truck and fled the area. They first drove south towards
     Baltimore.     They then turned northwest and reentered
     Pennsylvania to get onto the turnpike. When they reached the
     Breezewood entrance to the turnpike, they stopped at a local
     convenience store to get money. The defendants entered the
     convenience store and gave the clerk a bad check, so that
     [Appellant] and Clark could continue west.

           On August 8, 2011 investigators located the defendants in
     Indianapolis, Indiana, where they were staying with a friend of
     [Appellant’s]. When the defendants were arrested, they were in
     possession of Andre’s truck as well as the pistol used to murder
     Andre.

           Both defendants gave statements to the Pennsylvania
     State Police. [Appellant] admitted to the investigators that she
     needed to leave Pennsylvania because she had criminal charges
     pending which would have resulted in a state parole violation.
     She stated that she and Clark drove from their hometown to the
     Harrisburg Airport in a car stolen from Clark’s father. They
     abandoned the car at the airport to make it look like they left


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      Pennsylvania on a plane. They then continued on to Rising Sun,
      Maryland by getting a ride from [Appellant’s] friend.

            [Appellant] admitted that a couple days prior to the
      murder, Clark suggested that they murder someone to steal
      their truck. [Appellant] told Clark at that time about Andre,
      noting that he lived alone, did not have any kids, worked in
      Philadelphia and sometimes did not see his family for a week.
      On the night of the murder, Andre contacted [Appellant] to hang
      out with her. At that time the defendants put their plan into
      action. When [Appellant] arranged for Andre to meet them in
      Rising Sun, she knew that they planned to steal Andre’s truck.
      She knew that Clark planned to murder Andre. And she knew
      that she was going to fake illness to get Andre to stop the truck
      in a desolate area where Clark could murder Andre.

PCRA Court Opinion, 10/31/13, at 1–4.

      Appellant was charged with murder, conspiracy to commit murder,

robbery of a motor vehicle, theft by unlawful taking, and possession of

instruments of crime on September 19, 2011.      On May 16, 2012, Appellant

entered a negotiated guilty plea to second degree murder and was

sentenced to life imprisonment.        All other charges were withdrawn.

Appellant did not file an appeal from the judgment of sentence.

      On August 16, 2012, Appellant sent a letter to the trial court stating

that she desired counsel “to file a PCRA . . . . and due to the circumstances,

will need other representation to do so,” which the common pleas court

treated as a pro se PCRA petition. Letter, 8/16/12, docket entry 25; PCRA

Court Opinion, 10/31/13, at 4.    On August 17, 2012, the court appointed

counsel to represent Appellant.    Appointed counsel wrote to Appellant on




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September 7, 2012, requesting that she identify the issues she sought to

pursue in her petition.   Getting no response,1 counsel filed a petition for

leave to withdraw as PCRA counsel, pursuant to the standards set forth in

Commonwealth v. Turner, 544 A.2d 927 (1988), and Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988), on October 5, 2012.        The PCRA

court determined counsel complied “with the mandates of” Turner and

Finley, conducted “an independent review of the record” and concluded that

Appellant’s “first pro se PCRA petition had no merit.” PCRA Court Opinion,

10/31/13, at 4.

     On October 8, 2012, the PCRA court issued a notice of intent to

dismiss the PCRA petition. Appellant did not file a response. Accordingly, on

November 14, 2012, the PCRA court dismissed the petition and granted the

petition for leave to withdraw as PCRA counsel. Appellant did not appeal the

November 14, 2012 order.

     Appellant filed a second pro se PCRA petition on February 28, 2013,

again in the form of a letter to the court, alleging that first PCRA counsel

rendered ineffective assistance and requesting the appointment of new PCRA

counsel.   Letter, 2/28/13, docket entry 30.   On March 8, 2013, the PCRA

court treated the second letter as a second pro se PCRA petition, denied the



1
   While Appellant states that she did indeed respond, the PCRA court
credited PCRA counsel’s statement that he never received a response. PCRA
Court Opinion, 10/31/13, at 4.

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request for court-appointed counsel, and ordered the Commonwealth to file

an answer. PCRA Court Opinion, 10/31/13, at 5. The Commonwealth filed

an answer on April 15, 2013.    The PCRA court determined that the PCRA

petition was timely2 and on May 17, 2013, directed Appellant to file an

amended petition. Appellant filed the amended PCRA petition on June 21,

2013. On August 22, 2013, the PCRA court filed a notice of intent to dismiss

the petition, and Appellant filed a response on September 5, 2013.

     The PCRA court dismissed the petition on September 12, 2013.

Appellant filed the instant timely appeal; both the PCRA court and Appellant

complied with Pa.R.A.P. 1925.

     Appellant raises the following issues on appeal:

     I. Whether Plea Counsel and the Court erred in failing to order a
     Mental Health Evaluation.

     II. Whether First PCRA Counsel was ineffective.

     III. Whether informal documents should be treated as petitions
     and grounds for Court action.

     IV. Whether Second PCRA Petition should be dismissed without
     being properly submitted before the Court for formal review.


2
    A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). The record
reflects that Appellant did not seek review to this Court following the
imposition of sentence on May 16, 2012. Accordingly, Appellant’s judgment
of sentence became final on June 15, 2012, when the time for filing a notice
of appeal expired. 42 Pa.C.S. § 9545(b)(3). Here, a PCRA petition had to
have been filed within one year of the date that the judgment of sentence
became final, which was June 15, 2013. As the instant PCRA petition was
filed on February 28, 2013, it was timely.

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Appellant’s Brief at 3.

      Our standard of review from the denial of a PCRA petition is limited to

examining whether the court’s determination is supported by the evidence of

record and free of legal error.              Commonwealth v. Baumhammers, 92

A.3d 708 (Pa. 2014). “This Court grants great deference to the findings of

the PCRA court if the record contains any support for those findings.

Further, the PCRA court’s credibility determinations are binding on this

Court,     where       there    is   record    support    for     those   determinations.”

Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (quoting

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

“To   be    eligible    for    relief,   a   PCRA    petitioner   must    establish   by   a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the circumstances enumerated in Section 9543(a)(2) of the

PCRA, and that the allegation of error has not been previously litigated or

waived.” Baumhammers, 92 A.3d at 714.

      The PCRA court concluded that all of the claims Appellant raised in her

second PCRA petition and Pa.R.A.P. 1925(b) statement were:

      waived by virtue of her failure to respond to our twenty (20) day
      Notice of Intent to Dismiss issued in connection with her first
      PCRA Petition. The time to object to PCRA counsel’s stewardship
      was during the twenty (20) day period after we issue our Rule
      907(1) Notice. Because she could have raised all of her present
      issues in her prior state post conviction proceeding but chose not
      to, an omission we note she has not explained in any of her


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      subsequent pleadings, she has waived all of her present issues
      for purposes of her second PCRA and instant appeal. 42 Pa.
      C.S.A. §§ 9543(a)(3), 9544.

PCRA Court Opinion, 10/31/13, at 10.

      The   Commonwealth      concurs    and     reiterates   the   PCRA   court’s

determination that all of the claims are waived for failure to raise them in a

response to the notice of intent to dismiss Appellant’s first PCRA petition and

failure to file an appeal from the order dismissing her first PCRA petition.

Commonwealth’s Brief at 10.

      To be eligible for post-conviction relief, Appellant must show
      “[t]hat the allegation of error has not been previously litigated or
      waived.” 42 Pa.C.S. § 9543(a)(3). Section 9544 of the PCRA
      defines “waived” as follows:

                                    * * *

      (b) Issues waived.—For purposes of this subchapter, an issue is
      waived if the petitioner could have raised it but failed to do so
      before trial, at trial, . . . on appeal or in a prior state
      postconviction proceeding.

42 Pa.C.S. § 9544.

      We    agree     that    Appellant’s      underlying     guilty-plea-counsel-

ineffectiveness claim is waived for failing to raise it before the PCRA court in

a pro se petition and that her derivative PCRA-counsel-ineffectiveness claim

is waived for failing to assert it in her response to the PCRA court’s

Pa.R.Crim.P. 907 notice. As we stated in Commonwealth v. Rigg, 84 A.3d

1080, (Pa. Super. 2014):




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     In [Commonwealth v.] Rykard, [55 A.3d 1177, 1183 (Pa.
     Super. 2012)] supra, we outlined both the proper procedure for
     raising trial counsel ineffectiveness claims not originally included
     in a pro se petition where counsel files a Turner/Finley no-
     merit letter, as well as the mode for preserving a claim of PCRA
     counsel ineffectiveness.

                                   * * *

             Where the petitioner does not seek leave to amend his
     petition after counsel has filed a Turner/Finley no-merit letter,
     the PCRA court is under no obligation to address new issues.
     Rykard, supra; see also [Commonwealth v.] Williams, [732
     A.2d 1167 (Pa. 1999)] supra at 1191. In contrast, where the
     new issue is one concerning PCRA counsel’s representation, a
     petitioner can preserve the issue by including that claim in his
     Rule 907 response or raising the issue while the PCRA court
     retains jurisdiction. See also [Commonwealth v.] Pitts, [981
     A.2d 875, 879 n.3, 880 n.4 (Pa. 2009)]                     supra;
     Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012).
     Since Appellant did not seek leave to amend his petition or
     otherwise preserve his trial counsel and PCRA counsel
     ineffectiveness claims, he waived the issues he raised for the
     first time in his Pa.R.A.P. 1925(b) statements. Further, the court
     cannot have erred in declining to allow Appellant to amend his
     petition where he never sought that relief before the PCRA court.

Id. at 1084, 1085 (footnote omitted).       The issues of plea counsel’s and

PCRA counsel’s ineffectiveness, as presented herein in issues I and II, were

never presented to the PCRA court and, therefore, are waived. Id.3

     Appellant suggests in issue III that her letters to the PCRA court

requesting counsel to file a PCRA petition should not have been treated as



3
    Assuming, arguendo, the issues regarding ineffectiveness were not
waived, the PCRA court addressed them in its complete and thorough
Pa.R.A.P. 1925(a) opinion, and we would adopt its reasoning as our own if
we were addressing their merits.

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PCRA petitions. Our review of Appellant’s claim indicates that her brief lacks

any argument; instead, it merely consists of two paragraphs setting forth

the procedure surrounding the filing of the letters to the court.     As such,

Appellant waived appellate review where she cited no legal authorities in her

appellate    brief   and   did   not   develop   any   meaningful     analysis.

Commonwealth v. McLaurin, 45 A.3d 1131 (Pa. Super. 2012), appeal

denied, 65 A.3d 413 (Pa. 2013).

      In her final issue, Appellant suggests that the PCRA court erred in

dismissing her petition because she “did not know a response [to the PCRA

court’s twenty-day Pa.R.Crim.P. 907 notice] was required . . . .” Appellant’s

Brief at 11.4   As we have consistently made clear, “Pennsylvania appellate

courts . . . long have recognized that we must demand that pro se litigants

comply substantially with our rules of procedure.”       Commonwealth v.



      4
          Rule 907. Disposition Without Hearing

                                       * * *

      (1) the judge shall promptly review the petition, any answer by
      the attorney for the Commonwealth, and other matters of record
      relating to the defendant's claim(s). If the judge is satisfied
      from this review that there are no genuine issues concerning any
      material fact and that the defendant is not entitled to post-
      conviction collateral relief, and no purpose would be served by
      any further proceedings, the judge shall give notice to the
      parties of the intention to dismiss the petition and shall state in
      the notice the reasons for the dismissal. The defendant may
      respond to the proposed dismissal within 20 days of the
      date of the notice. . . .

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Spuck, 86 A.3d 870, 874 (Pa. Super. 2014). On October 8, 2012, when the

PCRA court issued its notice of intent to dismiss the PCRA petition, Appellant

did not file a response.        At that point, appointed counsel had filed his

Turner/Finley    brief    and    had   notified   Appellant   of   her   rights   and

responsibilities according to the dictates of those cases, but she had not

responded. Thus, she effectively was proceeding pro se at that point, and

she was required to comply with our rules of procedure, despite her pro se

status. Spuck. We reject this issue as lacking in merit.

      For the foregoing reasons, we conclude the issues raised in this appeal

lack merit. Thus, we affirm the PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2014




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