J-S22021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

 RICO D. LOFTON

                             Appellant                 No. 3593 EDA 2016


             Appeal from the PCRA Order entered October 28, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0012573-2007


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                               FILED JULY 09, 2018

       Appellant, Rico Lofton, appeals from the October 28, 2016 order entered

in the Court of Common Pleas of Philadelphia County, denying his petition for

collateral relief filed pursuant to Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546.            Appellant argues the PCRA court erred by

dismissing his petition without exploring alleged misconduct affecting juror

impartiality, an issue not raised in his PCRA petition. Upon review, we affirm.

       We glean the following underlying facts from our review of the record.

In March 2010, a jury convicted Appellant of three counts of aggravated

assault and one count of criminal conspiracy. The convictions stemmed from


____________________________________________


* Retired Senior Judge assigned to the Superior Court.
J-S22021-18


an August 9, 2006 drive-by shooting on Jackson Street in Philadelphia that

involved Appellant and an unidentified co-conspirator. One person was struck

in the knee by one of the bullets fired. A two-year old child suffered an injury

to a finger from another shot. A third shot narrowly missed the head of the

child’s grandmother.        Testimony at trial suggested the shooting was in

retaliation for a fight among a group of teenagers, including Appellant’s son

who was “slammed to the ground and ‘stomped’ by three or four young men

during the fight.” PCRA Court Opinion, 7/17/2017, at 2-4.

       The trial court sentenced Appellant to an aggregate term of 30 to 60

years in prison. Appellant filed a post-sentence motion that was denied by

operation of law. On March 12, 2012, we affirmed his judgment of sentence

(No. 2560 EDA 2010). Our Supreme Court denied his petition for allowance

of appeal on October 5, 2012 (No. 165 EAL 2012).

       On February 20, 2013, Appellant filed a timely pro se PCRA petition

raising twelve claims of ineffectiveness of counsel. PCRA Petition, 2/20/13, at

1-3 (Attachment). Counsel was appointed and, on August 31, 2016, filed a

Finley/Turner1        “no-merit”      letter   addressing   each   of   Appellant’s

ineffectiveness claims but reworking them into fourteen issues “for ease of

review.” No-Merit Letter, 8/31/16, at 2-3.




____________________________________________


1Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) and Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988).

                                           -2-
J-S22021-18


      On September 28, 2016, the PCRA court issued a notice of intent to

dismiss the petition pursuant to Pa.R.Crim.P. 907. Appellant did not file a

response.   By order entered October 28, 2016, the PCRA court dismissed

Appellant’s petition. Appellant filed a timely notice of appeal to this Court.

The PCRA court did not order Appellant to file a statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). The court issued an opinion in

support of its order on July 17, 2017 and addressed each of the 14

ineffectiveness claims raised in Appellant’s PCRA petition (as rephrased by

PCRA counsel), listing them under the heading “Statement of Matters

Complained of on Appeal.” PCRA Court Opinion, 7/17/17, at 9. Those claims

are as follows:

      1. Trial counsel was ineffective during the trial;

      2. Trial counsel made serious errors during his representation of
         petitioner;

      3. Trial counsel did not properly impeach the Commonwealth’s
         witnesses;

      4. Trial counsel was ineffective for failing to call certain witnesses;

      5. Trial counsel was ineffective for failing to insure            that    the
         Commonwealth provided all discovery to the defense;

      6. Trial counsel was ineffective for not introducing prior consistent
         statements of witnesses;

      7. Trial counsel was ineffective for not objecting to the admission of
         other crimes evidence;

      8. Trial counsel was ineffective for not alleging police misconduct;


                                      -3-
J-S22021-18


       9. Trial counsel was ineffective for not introducing important evidence
          at trial;

       10.    Trial counsel was ineffective for not pursuing certain defenses;

       11. Trial counsel was ineffective for not performing certain pretrial
          functions and for not conducting an investigation;

       12. Trial counsel was ineffective for not claiming that the sentence
          exceeded the statutory maximum;

       13. Trial counsel was ineffective for not raising ineffectiveness claims
          on direct appeal; and

       14. Trial counsel was ineffective for not objecting to prosecutorial
          misconduct.

PCRA Opinion, 7/17/17 at 9.2

       In this appeal, Appellant asks us to consider one question:

       1. Whether the trial court erred and abused its discretion by
          dismissing [Appellant’s] PCRA petition without conducting its
          own independent review of the record and/or an evidentiary
          hearing. The review by PCRA counsel and the PCRA court did
          not explore the issue of misconduct affecting the impartiality of
          a juror in that there was more than a reasonable likelihood of
          prejudice that a deliberating juror was affected by information
          provided to him by Yolanda Watson.[3] Trial and PCRA counsels
____________________________________________


2 Although Appellant’s claims were rephrased by PCRA counsel and were
examined by the PCRA court as rephrased by counsel, it is important to note
that the issues as presented by Appellant in his PCRA pro se petition were no
less devoid of detail.

3 In his brief, Appellant explains that Appellant’s fiancée, Yolanda Watson,
approached a juror outside the courthouse in the midst of deliberations. The
juror recognized Ms. Watson as someone he saw in the courtroom during the
trial. Ms. Watson attempted to engage the juror in conversation, a fact he
reported to the trial court, prompting the trial court to refer Ms. Watson’s



                                           -4-
J-S22021-18


           (sic) were therefore ineffective for either failing to preserve the
           issue for appellate review or present it in an amended PCRA
           petition.

Appellant’s Brief at 4 (unnecessary capitalization omitted).4

        As this Court has recognized:

        Our standard of review from the denial of post-conviction relief “is
        limited to examining whether the PCRA court’s determination is
        supported by the evidence of record and whether it is free of legal
        error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.
        Super. 2011). This Court “will not disturb findings that are
        supported by the record.” Id.

Commonwealth v. Watley, 153 A.3d 1034, 1039-40 (Pa. Super. 2016).

        As reflected above, Appellant raised several broad issues in his pro se

PCRA petition. In appointed counsel’s no-merit letter, counsel examined each

alleged claim of ineffectiveness after he “reviewed the quarter session files,

corresponded with [Appellant], and reviewed the applicable law.” No-Merit

Letter, 8/31/16, at 1. He concluded that none of Appellant’s claims had merit

and “also concluded that there exist no other issues that could be raised in a


____________________________________________


conduct to the District Attorney’s Office for criminal prosecution. “No
corrective actions were requested. . . . Appellant’s counsel did not object to
[the juror] continuing to deliberate, and he did not request either an alternate
to be seated or a mistrial.” Appellant’s Brief at 6-8.

The record reflects that the trial court questioned the juror about the incident
prior to resumption of deliberations. The juror stated that he could decide the
case based on the evidence and the law, just “as I said during jury selection
process,” and that he could decide the case in a fair and impartial manner,
“[o]ne hundred percent.” Notes of Testimony, Trial, 3/5/10, at 16-17.

4   We note that Appellant is represented by counsel in this appeal.

                                           -5-
J-S22021-18


counseled petition and therefore, in [counsel’s] professional opinion . . . it

would be fruitless to file an amended petition.” Id. Subsequently, the PCRA

court concluded Appellant’s claims were without merit “following a review of

defense counsel’s letter . . . and an independent review of this matter.” PCRA

Court Order, 10/28/16, at 1. However, neither counsel nor the PCRA court

considered a claim of “misconduct affecting the impartiality of a juror,” an

issue not even remotely suggested by either Appellant’s PCRA petition or the

record.

      Because Appellant did not raise the issue at any time prior to the filing

of his brief in this appeal, the issue is waived. Commonwealth v. Rigg, 84

A.3d 1080, 1084 (Pa. Super. 2014) (claims not included in a PCRA petition

are waived); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal”).               As the

Commonwealth asserts, “There is no juror disqualification claim in either

[Appellant’s] pro se petition or counsel’s no-merit letter, and [Appellant] failed

to respond to the court’s dismissal notice.” Commonwealth Brief at 6 (citing

Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa. Super. 2012) (to aver

a new non-PCRA counsel ineffectiveness claim after the PCRA court has issued

a Rule 907 notice, the petitioner must respond to the notice and seek leave

to amend his petition).

      Further, to the extent Appellant is attempting to raise PCRA counsel

ineffectiveness in this appeal, this Court has explained:


                                      -6-
J-S22021-18


      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,
      1191 (Pa. 1999)]. 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 (Pa. 2009)];
      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.

Rigg, 84 A.3d at 1085 (footnote omitted). Appellant did not seek leave to

amend his petition or otherwise preserve a trial counsel or PCRA counsel

ineffectiveness claim relating to impartiality of a juror. Therefore, he waived

this issue. As in Rigg, the PCRA court cannot have erred in declining to allow

Appellant to amend his petition because he never sought that relief before the

PCRA court.    Finding no error on the part of the PCRA court, we shall not

disturb its order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/9/18




                                     -7-
