J-S05004-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellee              :
                                         :
           v.                            :
                                         :
SEAN D. GREENE,                          :
                                         :
                   Appellant             : No. 1505 WDA 2013

                 Appeal from the PCRA Order August 28, 2013,
                   Court of Common Pleas, Allegheny County,
                Criminal Division at No. CP-02-CR-0015507-2006

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED MARCH 18, 2015

     Sean D. Greene (“Greene”) appeals from the order of court denying

his petition filed pursuant to pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546 (“PCRA”). We affirm.

     In 2009, Greene was convicted of third-degree murder and carrying a

firearm without a license and sentenced to twenty-three and a half to forty-

seven years of imprisonment. This Court affirmed his judgment of sentence

in March 2012 and the Pennsylvania Supreme Court denied Greene’s petition

for allowance of appeal in October of the same year.

     On June 14, 2013, Greene filed a timely pro se PCRA petition.1 The

PCRA court appointed Robert S. Carey, Jr., Esquire (“Counsel”) to represent



1
    In this petition, Greene raised eight issues. These issues included, of
relevance here, the claim that counsel on direct appeal was ineffective for
raising the issue of whether the Commonwealth presented sufficient
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Greene. On July 30, 2013, Counsel filed a “no merit” letter and a motion to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998),

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

August 14, 2013, the PCRA court issued its notice of intent to dismiss

Greene’s PCRA petition pursuant to Pa.R.Crim.P. 907 (“Rule 907”) and

permitted Counsel to withdraw. On the same day, the trial court received

Greene’s pro se response to Counsel’s Tuner/Finley letter and brief.2

Greene did not file a response to the Rule 907 notice.        The PCRA court

denied the PCRA petition on August 28, 2013.3          Greene filed a timely



evidence to overcome his assertion of self-defense in the Pa.R.A.P. 1925(b)
statement but not presenting argument on this issue in his brief on appeal.
PCRA Petition, 6/14/13, at 6.
2
  This is the date the lower court received Greene’s response to the
Turner/Finley letter. There is no certificate of service or other indicia of
when Greene gave his response to prison officials for mailing so as to allow
us to determine an earlier date for its filing. See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (holding that the prisoner
mailbox rule provides that a pro se prisoner's document is deemed filed on
the date he delivers it to prison authorities for mailing).

In his response, Greene alleged only that Counsel misunderstood the
testimony of a particular witness in Counsel’s Turner/Finley analysis of an
issue Greene raised in his pro se PCRA petition and set forth his
interpretation of that testimony; restated two of the issues he raised in his
pro se PCRA petition; and seemingly conceded an issue he raised in his PCRA
petition regarding the violation of a constitutional right due to a faulty jury
instruction. Response to Counsel’s No-Merit Letter, 8/14/13, at 1-2.
3
  Although not raised by Greene, we will address the trial court’s apparent
violation of Rule 907. Pennsylvania Rule of Criminal Procedure 907(1)
provides that “[t]he defendant may respond to the proposed dismissal within
20 days of the date of the notice.” Pa.R.Crim.P. 907(1). Here, the trial


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appeal.4 The PCRA court did not order the filing of a statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and in lieu of an

opinion, the PCRA court filed an order indicating that its reasons for denying



court dismissed Greene’s petition only fourteen days after the date of the
notice. This Court has previously held that the notice requirement contained
in Rule 907(1) is mandatory. See Commonwealth v. Guthrie, 749 A.2d
502, 503 (Pa. Super. 2000) (noting that the 20-day notice of intent to
dismiss contained in Pa.R.Crim.P. 1507 (the precursor to Rule 907) is
mandatory). Nonetheless, our courts have held that in instances where a
PCRA petitioner does not receive this notice but is afforded the opportunity
to respond to the PCRA court’s proposed grounds for dismissal, the notice
requirement of Rule 907 is met and a PCRA court will not be found to have
erred in dismissing the PCRA petition. Commonwealth v. Albrecht, 554
Pa. 31, 63-64; 720 A.2d 693, 710 (1998); Commonwealth v. Barbosa,
819 A.2d 81, 86 n.4 (Pa. Super. 2003).

This case is similar in that although the trial court did not wait the full
twenty days before dismissing Greene’s petition, Greene was afforded, and
exercised, the opportunity to respond to Counsel’s conclusion that the
petition was frivolous.     In his motion seeking to withdraw, Counsel
addressed the issues raised by Greene in his pro se PCRA petition and
discussed why they lack merit. He also attached a copy of his letter to
Greene enclosing his motion, which also advised Greene of his right to
proceed pro se or with private counsel. In its notice of intent to dismiss
Greene’s petition, the PCRA court agreed with Counsel’s reasoning as to why
the issues Greene sought to raise lacked merit. Notice of Intent to Dismiss,
8/14/13, at 1. On the same date, Greene filed his response to Counsel’s
motion seeking to withdraw, addressing Counsel’s analysis of the issues he
sought to raise in his PCRA petition. Accordingly, in responding to Counsel’s
motion, Woods responded to the grounds upon which the PCRA court
proposed to dismiss his PCRA petition. Thus, pursuant to Albrecht and
Barbosa, Greene was afforded the protection provided by the notice
requirement of Rule 907, despite the fact that the trial court did not wait the
full twenty days before dismissing the petition. We further note again that
Greene did not raise – in the trial court or on appeal - the claim that he that
he intended to file a response to the Rule 907 notice.
4
 New counsel, Patrick K. Nightingale, Esquire, was appointed to represent
Greene on appeal. See PCRA Court Order, 12/16/13.


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Greene’s PCRA petition were set forth in its Rule 907 notice.     PCRA Court

Opinion, 2/27/14.

      On appeal, Greene argues that PCRA counsel was ineffective for failing

to raise appellate counsel’s failure to raise challenges to the sufficiency of

the evidence regarding Greene’s assertions of self-defense and imperfect

self-defense at trial. Greene’s Brief at 15, 18. A claim of PCRA counsel’s

ineffectiveness cannot be raised for the first time on appeal; rather, a

petitioner must raise such allegations in an amended PCRA petition or in a

response to the PCRA court’s Rule 907 notice.     Commonwealth v. Pitts,

981 A.2d 875, 880 n.4 (Pa. 2009); Commonwealth v. Henkel, 90 A.3d 16,

20 (Pa. Super. 2014). A review of the response Greene filed to Counsel’s

Turner/Finley letter reveals that he did not raise any claim of PCRA

counsel’s ineffectiveness, and, as stated above, Greene did not file an

additional response or amended PCRA petition after receiving the PCRA

court’s Rule 907 notice.    Accordingly, we are compelled to conclude that

Greene has waived the issues he seeks to have us review regarding PCRA

counsel’s alleged ineffectiveness.

      Order affirmed.

      Stabile, J. joins the Memorandum.

      Shogan, J. files a Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/18/2015




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