J-S52011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

AARON MCCLELLAND,

                         Appellant                    No. 1778 WDA 2014


               Appeal from the PCRA Order October 10, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012748-2010


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 22, 2015

      Appellant, Aaron McClelland, appeals from the October 10, 2014 order

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

42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.

      Quoting the trial court, we previously summarized the facts of the

crime in our disposition of Appellant’s direct appeal, as follows:

            The charges against [Appellant] stem from an incident that
      occurred on July 11, 2010, at approximately 12:40 p.m. A
      woman called Pizza Bellagio and placed an order to be delivered
      to an address in the Hill District of Pittsburgh. The delivery
      driver, Zamir Khudoykulov, left to deliver the order. He returned
      approximately 45 to 50 minutes later, bleeding profusely and
      saying that he had been shot. The pizza shop did not receive a
      call from anyone inquiring why their food had not been
      delivered.

            During the course of his investigation, Detective Matthew
      Gray determined that the telephone number used to call the
      pizza shop belonged to Chaquishia Pack.        Eventually, Pack
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     admitted to Detective Alisha Duncan that she called the pizza
     shop and placed the order.

            Pack, who is mother to [Appellant’s] child, testified that
     she initially told police that she let “Boo,” a man she knew from
     the neighborhood, and another man into her apartment to use
     her phone to call a jitney. Later she said that she lent her phone
     to “Boo” who took it to the apartment across the hall for ten to
     fifteen minutes. Pack testified that both times the deliveryman
     called, she spoke with him. She said she told him she hadn’t
     ordered any food and took the phone outside her apartment to
     find “Boo.” Again she claimed that “Boo” had the phone for ten
     to fifteen minutes before returning it.         Telephone records
     indicated that the two calls from the driver to Pack were slightly
     over a minute in duration, and approximately four minutes
     apart.1
          1
               At a subsequent hearing on Post-Sentence
          Motions, Pack indicated that she was fully aware of
          [Appellant’s] plan to steal from the delivery man but
          that she testified falsely because she was afraid of
          [Appellant].

            On two different occasions, the victim was shown a photo
     array, each containing a suspect identified by the investigating
     officers. On the first array, which did not contain [Appellant’s]
     photo, the victim failed to identify his assailant. On the second
     array, the victim without hesitation or doubt identified
     [Appellant] as his assailant.

           The victim, Khudoykulov, testified that upon arrival to the
     address he was given, no one was outside to receive the
     delivery. He rang the bell and a woman answered and told him
     that she did not order any food. Khudoykulov called the number
     from which the order had been placed.2 A woman answered but
     quickly handed the phone to a man. The man said that he was
     at the apartment building on the other side of the street.
          2
            Pack provided a different number when she placed
          the order. That number was no longer in service,
          but the pizza shop automated order system printed
          the number that appeared on the caller ID on the
          order ticket.


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            Khudoykulov went across the street to the apartment
       complex located there and called out, “I'm here. Where are you
       at? So get the food.” When nobody responded, he again called
       the number from which the order had been placed. A woman
       answered and again immediately gave the phone to the man
       who had just told him he was in the apartment building. This
       time, the man said “I'm flagging you.        You see me?” to
       Khudoykulov.

              Khudoykulov looked up and saw at an upstairs window a
       man waving what appeared to be a bandana. Khudoykulov
       waited for the customer to come out, but he did not.
       Khudoykulov then entered the building and went to the second
       floor, where he encountered a man with a bandana covering his
       mouth and half of his nose.          At gunpoint, the man took
       Khudoykulov’s wallet and approximately fifteen dollars in cash.
       Khudoykulov mistakenly thought the gun was a fake, and
       attempted to wrestle it from the man. The assailant fired one
       shot. Wounded, Khudoykulov sat down and said “Okay, don’t
       shoot, take anything,” but the man fired several more shots at
       Khudoykulov before running upstairs. In court, Khudoykulov
       identified [Appellant] as his assailant.

Commonwealth v. McClelland, 1402 WDA 2011, 60 A.3d 587 (Pa. Super.

filed August 31, 2012) (unpublished memorandum at 1–3). We summarized

the ensuing procedural history as follows:

             The trial court conducted a bench trial on March 18, 2011,
       trying [Appellant] together with his co-defendant, Pack.       It
                                                                [1]
       adjudged him guilty of all charges on March 29, 2011.        The
       trial court sentenced [Appellant] to 20 to 40 years of
       incarceration for attempted criminal homicide, a concurrent term
       of imprisonment of seven and a half to 15 years for aggravated
       assault, a consecutive term of imprisonment of five to 20 years
       for robbery, and a concurrent term of imprisonment of seven

____________________________________________


1
  The trial court found Appellant guilty of attempted homicide, aggravated
assault, robbery, and conspiracy to commit robbery.




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        and a half to 15 years for conspiracy.[2] [Appellant] filed post-
        sentence motions challenging, inter alia, the weight of the
        evidence to support his convictions. They were denied by the
        trial court on August 16, 2011.

Id. at 3–4. Appellant filed a timely notice of appeal on August 29, 2011.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.             We

affirmed the judgment of sentence on August 31, 2012, and our Supreme

Court denied further review on April 3, 2013.      McClelland, 60 A.3d 587,

appeal denied, 432 WAL 2012, 63 A.3d 1245 (Pa. 2013).

        Appellant filed a pro se PCRA petition on January 8, 2014. The PCRA

court appointed counsel, who filed an amended PCRA petition on May 9,

2014.     The Commonwealth filed an answer on August 15, 2014, and a

supplemental answer on August 18, 2014. On August 27, 2014, the PCRA

court filed a notice of intent to dismiss the PCRA petition pursuant to

Pa.R.Crim.P. 907. Counsel filed a motion for leave to amend the amended

PCRA petition on September 9, 2014, and a response to the court’s notice of

intent to dismiss. In an order dated October 8, 2014, and filed on October

10, 2014, the PCRA court dismissed the PCRA petition without a hearing; the

docket does not reflect an order disposing of Appellant’s motion for leave to

amend.      Appellant filed a notice of appeal on October 29, 2014.         Both

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

____________________________________________


2
   The resulting aggregate sentence was twenty-five to sixty years of
imprisonment.



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      Appellant raises the following issues for our review:

   1. Did the PCRA Court err in failing to find that the sentence of 20
      to 40 years’ imprisonment imposed upon [Appellant] for
      attempted homicide was illegal in that the written information
      failed to allege that serious bodily injury had resulted and where
      the record does not reflect that Assistant District Attorney’s oral
      motion to amend the information was granted prior to the close
      of evidence?

   2. Did the PCRA Court err in failing to find trial counsel ineffective
      in failing to seek suppression of the photo identification based
      upon a claim of an unduly suggestive photo array?

   3. Did the PCRA Court err in failing to find one or more violations of
      Apprendi v. New Jersey, 530 U.S. 466 (2000), or ineffective
      assistance of counsel claims based upon Apprendi violations,
      namely that:

                   Appellant’s waiver of jury trial was invalid as
                   Appellant was not apprised of his Apprendi
                   rights and counsel was ineffective in failing to
                   raise the issue post-trial or on appeal[.]

                   Appellant’s sentence of 20 to 40 years
                   imprisonment was illegal as Appellant never
                   waived his Apprendi rights and the fact
                   supporting the aggravated sentence was found
                   by the court and not a jury[.]

                   Appellant’s sentence was illegal as there was
                   no explicit finding on the record for the fact
                   necessary to aggravate the maximum sentence
                   from 20 to 40 years.

   4. Did the PCRA court err in denying Appellant's Motion for Leave to
      Amend his PCRA petition?

Appellant’s Brief at 3.

      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


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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).        A PCRA court’s credibility findings, where

supported by the record, are binding on a reviewing court. Commonwealth

v. Dennis, 17 A.3d 297, 301 (Pa. 2011). “There is no absolute right to an

evidentiary hearing on a PCRA petition, and if the PCRA court can determine

from the record that no genuine issues of material fact exist, then a hearing

is not necessary.”   Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa.

Super. 2003)).

     Appellant’s first issue asserts that the criminal information was not

formally amended at count one, criminal attempt to commit homicide, to

include causing serious bodily injury, thereby increasing the statutory

maximum from twenty to forty years of imprisonment. Appellant contends

that this failure to amend compels that the trial court could have imposed




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only a maximum twenty-year sentence.          Thus, he argues the sentence

imposed is illegal. Appellant’s Brief at 12–13.

      The statutory section setting forth the allowable punishment for

criminal attempt homicide provides as follows:

      c) Attempt, solicitation and conspiracy.--Notwithstanding
      section 1103(1) (relating to sentence of imprisonment for
      felony), a person who has been convicted of attempt, solicitation
      or conspiracy to commit murder, murder of an unborn child or
      murder of a law enforcement officer where serious bodily injury
      results may be sentenced to a term of imprisonment which shall
      be fixed by the court at not more than 40 years. Where serious
      bodily injury does not result, the person may be sentenced to a
      term of imprisonment which shall be fixed by the court at not
      more than 20 years.

18 Pa.C.S. § 1102 (c).

      Without meaningful discussion, the trial court found that the issue was

waived. We disagree. In the context of the PCRA, illegal sentencing claims

cannot be waived, although they must be presented in a timely PCRA

petition. Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013).

The instant PCRA petition was timely. Nevertheless, it is well settled that we

may affirm the decision of the trial court on any valid basis appearing of

record. Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007).

      During the jury trial waiver colloquy, Appellant was informed, inter

alia, of the Commonwealth’s motion to amend count one, the sentence he

faced as a result, and the remaining charges against him, as follows:

      By the court: Mr. McClelland, . . . you are charged with criminal
      attempt homicide—


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                                      * * *

      By the Commonwealth:          Your Honor, at this time the
      Commonwealth would make an oral motion to amend that count
      at Count 1, that the defendant caused serious bodily injury.
      That would increase the statutory maximum to 40 years.

      By the court: On the criminal attempt?

      By the Commonwealth: Yes. And we would make motion to
      amend that to causing serious bodily injury. The testimony of
      the victim will—that is for argument.

                                      * * *

      By the court: Are you talking about the aggravated assault?

      By the Commonwealth: No. The criminal attempt. If the
      criminal attempt homicide is with serious bodily injury, it
      increases the statutory maximum to a 40-year period.

N.T., 3/18/11, at 133–134.

      Appellant’s issue is focused upon his contention that the trial transcript

lacks “an actual ruling on the Commonwealth’s oral motion or any

affirmative verbal indication on the record that the Commonwealth’s motion

had been granted and that the information had in fact been amended.”

Appellant’s Brief at 14; see also Appellant’s Reply Brief at 1 (“no verbal

response either granting or denying the motion appears on the transcript”).

Appellant acquiesces that while the trial court and the parties proceeded as if

the motion had been granted and the information amended, “it does not

appear the motion was actually granted.”         Appellant’s Brief at 14.    In

contrast, the Commonwealth maintains “the record makes clear that the trial

court did grant the Commonwealth’s motion to amend the Information.”

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Commonwealth Brief at 9.          While the notes of testimony lack the specific

“magic words” Appellant seeks, we agree with the Commonwealth the trial

court granted the motion.3

       The face sheet of the criminal information contains the following order

by the trial court:

           And now, March 18, 2011, on motion of ADA moves to
       amend ct 1 to Criminal Attempt, causing serious bodily injury.

       Eodie: Motion granted.

       By the Court
       Jill E. Rangos.

Information, Docket Entry 4; see also Commonwealth’s Answer to Post

Conviction Relief Act Petition, 8/15/14, at Commonwealth’s Exhibit 1. This

is the order granting the motion. It cannot be honestly asserted that the

trial court took any action other than granting the motion to amend on

March 18, 2011, the day the oral motion was made.             Moreover, the trial

court imposed a twenty-to-forty-year term of incarceration for this count, an

action the trial court presumably could not have taken if it had denied the

Commonwealth’s motion. This issue lacks merit.

       Next, Appellant asserts trial counsel’s ineffective assistance in failing to

challenge the photographic array as unduly suggestive. In order to obtain

collateral relief, a PCRA petitioner must establish by a preponderance of the
____________________________________________


3
   We also agree with Appellant that there is a dearth of case law on this
issue.



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evidence that his conviction or sentence resulted from one or more of the

circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). Instantly, Appellant

asserted in his PCRA petition the existence of ineffective assistance of

counsel pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).         To plead and prove

ineffective assistance of counsel a petitioner must establish:      (1) that the

underlying issue has arguable merit; (2) counsel’s actions lacked an

objective reasonable basis; and (3) actual prejudice resulted from counsel’s

act or failure to act. Commonwealth v. Pierce, 527 A.2d 973, 975–976

(Pa. 1987); Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super.

2013) (en banc). “[B]ecause a PCRA petitioner must establish all the Pierce

prongs to be entitled to relief, we are not required to analyze the elements

of an ineffectiveness claim in any specific order; thus, if a claim fails under

any   required   element,   we   may   dismiss   the   claim   on   that   basis.”

Commonwealth v. Treiber, 2015 WL 4886374, at *4, ___ A.3d ___, ___

(Pa. filed August 17, 2015); Commonwealth v. Martin, 5 A.3d 177, 183

(Pa. 2010). Counsel is presumed to have rendered effective assistance of

counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We

have explained that trial counsel cannot be deemed ineffective for failing to

pursue a meritless claim.   Commonwealth v. Jones, 912 A.2d 268, 278

(Pa. 2006); Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc).

      The PCRA court addressed this issue as follows:


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      Appellant’s claim is flawed in numerous ways.          First, trial
      counsel, in fact, challenged the photo array in a pretrial motion.
      Counsel alleged that the police engaged in unduly suggestive
      behavior which caused the victim to select Appellant. (Omnibus
      Pretrial Motion at 14).      While trial counsel may not have
      approached the issue of the propriety of the photo array with the
      exact language Appellant subsequently uses in his PCRA petition,
      the issue regarding the admissibility of the photo array was
      addressed by the Court through the pretrial motion filed by trial
      counsel.

              In addition, the underlying claim lacks merit. The photo
      array was valid and not unduly suggestive. The victim was
      shown two photo arrays. The first did not contain Appellant. The
      victim made no identification. The second array contained a
      photo of Appellant. The victim immediately identified Appellant
      as the man who had shot him, and stated that he was sure
      about his identification of Appellant as his assailant. (TT 81-84).
      Furthermore, Appellant is unable to establish prejudice. Even
      without the photo array, the victim identified Appellant at trial.
      (TT 161). Telephone records and the testimony of Appellant’s
      girlfriend established that Appellant had intended to rob the
      pizza delivery man. (TT 63, 74). As Appellant fails all three
      prongs of the IAC test, this claim is without merit.

PCRA Court Opinion, 3/9/15, at 5.

      Appellant asserts that the photographic array was unduly suggestive

based upon his contention that Appellant “has a perceptively narrower face

than the other seven men . . . and that his hair rose higher on his head than

the other men depicted in the array.”        Appellant’s Brief at 18.   This bald

claim is not supported in the record.    We have reviewed the photographic

array and concur with the trial court that the array was valid and not unduly

suggestive.   Contrary to Appellant’s assertion, the appearance of the six

individuals is similar, and no phototograph stands out from the others.

There are other men in the array with thin faces and high hairlines.

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         Our Supreme Court has instructed that a photographic identification is

unduly     suggestive   if,   under   the   totality   of   the   circumstances,   the

identification procedure creates a substantial likelihood of misidentification.

Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa. 2004). Moreover:

         “Photographs used in line-ups are not unduly suggestive if the
         suspect’s picture does not stand out more than those of the
         others, and the people depicted all exhibit similar facial
         characteristics.” Commonwealth v. Fisher, 564 Pa. 505, 769
         A.2d 1116, 1126 (2001). “Each person in the array does not
         have to be identical in appearance.”      [Commonwealth v.]
         Burton, 770 A.2d [771,] 782 [(Pa. Super. 2001)].           The
         photographs in the array should all be the same size and should
         be shot against similar backgrounds.        Commonwealth v.
         Thomas, 394 Pa. Super. 316, 575 A.2d 921 (1990).

Commonwealth v. Kendricks, 30 A.3d 499, 504 (Pa. Super. 2011).

         In Burton, witnesses described the perpetrator as wearing a white T-

shirt.    In the Burton photo array, the appellant was the only individual

wearing a white T-shirt. This Court concluded that the array was not unduly

suggestive because the individuals all were of the same race, close in age

and had short haircuts and facial hair. That is true in the instant case as

well. Further, the record reveals that the victim had the opportunity to view

Appellant, in close proximity, in good lighting, at the time of the crime.

N.T., 3/18/11, at 150–157, 203, 213–214. The victim testified that when he

observed Appellant’s photograph, he “was totally sure that it was the same

eyes that I had seen before.” Id. at 180–181. Because trial counsel raised

the challenge pretrial and any further objection to the photographic array




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would not have afforded Appellant relief, counsel cannot be found ineffective

for failing to pursue a meritless claim.

      Third, Appellant contends that the amendment of the criminal

information to charge him with attempted homicide—causing serious bodily

injury, triggered his rights under Apprendi v. New Jersey, 530 U.S. 466

(2000), because a jury did not make a specific finding that serious bodily

injury resulted from the commission of attempted homicide.

      Appellant also argues that the trial court did not make a specific

finding of serious bodily injury, thus rendering his sentence illegal.

Appellant’s Brief at 10.    Our Supreme Court summarized the holding in

Apprendi as follows:

      In Apprendi, the United States Supreme Court held a New
      Jersey hate-crime statute unconstitutional because it permitted
      the imposition of a twenty year sentence in place of the
      otherwise applicable ten year maximum if the judge determined,
      by a preponderance of the evidence, that the crime was
      perpetrated in violation of the statute.    The United States
      Supreme Court determined that any facts, “other than the fact of
      a prior conviction,” that subject a defendant to any additional
      penalty beyond a statutory maximum must be submitted to a
      jury and be found proved beyond a reasonable doubt.

Commonwealth v. Gordon, 942 A.2d 174, 175 n.1 (Pa. 2007).                This

holding is equally applicable to guilty pleas. See United States v. Booker,

543 U.S. 220, 244 (2005) (“Any fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the

facts established by a plea of guilty or a jury verdict must be admitted by

the defendant or proved to a jury beyond a reasonable doubt.”). There is no

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Sixth Amendment violation where the defendant admitted the fact in

question.    Commonwealth v. Johnson, 961 A.2d 877, 881–882 (Pa.

Super. 2008).

      Appellant argues that because his jury trial waiver colloquy never

addressed his Apprendi rights, the PCRA court erred in concluding that the

colloquy was valid and that trial and appellate counsel were not ineffective

for failing to object and argue this point post-trial or on direct appeal.

Specifically, Appellant asserts that he had a right to have the aggravating

fact in support of an “enhanced sentence” found by a jury, and because he

did not expressly waive that right, the general jury trial waiver did not waive

his Apprendi rights. Appellant’s Brief at 21–25.

      Appellant cites Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super.

2006), in support.   That case, however is inapposite.      Unlike the instant

case, the defendant therein was not charged with attempted murder

resulting in serious bodily injury     and was not on notice that the

Commonwealth sought either to prove that a serious bodily injury resulted

from the attempted murder or to invoke the greater maximum sentence.

Id. at 67.    Instead, the trial court inferred that “serious bodily injury”

resulted from the fact that the defendant was also convicted of aggravated

assault.

      The Commonwealth responds that in rendering its verdict, the trial

court did not violate Appellant’s Apprendi rights. It asserts that Appellant


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was charged with criminal attempt (homicide), causing serious bodily injury,

and he was placed on notice that the Commonwealth sought to prove that

serious bodily injury resulted from the attempted murder and intended to

invoke the greater maximum sentence.         N.T., 3/18/11, at 133–135.   The

Commonwealth further maintains that the trial court, sitting as the fact

finder, found beyond a reasonable doubt that serious bodily injury resulted

from the attempted murder, even though the court did not include the

specific phrase “serious bodily injury,” where the trial court stated, “The

criminal attempt against [Appellant] being clear based on the victim’s

testimony that after he was shot, he did ask [Appellant] to stop, but instead

[Appellant] continued to fire, emptying his gun.” N.T. (verdict), 3/29/11, at

2.

      Serious bodily injury is not an element of attempted homicide; rather

it is a separate factual finding that affects the sentencing of the defendant

only if he is found guilty of that offense. See Commonwealth v. Reid, 867

A.2d 1280, 1284 (Pa. Super. 2002) (explaining that, under 18 Pa.C.S. §

1102(c), “whether the victim has suffered ‘serious bodily injury’ is a factor

that goes to the length of sentence that may be imposed for attempted

homicide, not to the elements of the crime itself.”). Moreover, a review of

the trial testimony reveals ample testimony that the victim, who was shot in

the head, thigh, and the chest, suffered serious bodily injury. N.T., 3/18/11,

at 156–157.


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     We already determined that the trial court granted the amendment of

the attempted murder count. Immediately after informing Appellant that the

amendment increased the statutory maximum of attempted murder, serious

bodily injury, to forty years, Appellant indicated his understanding of the

maximum    penalty   he   faced   for   that   count   and   the   elements   the

Commonwealth would have to prove.         N.T., 3/18/11, at 134–135.     We do

not find Appellant’s jury-trial waiver invalid or that Appellant did not

knowingly and validly waive any Apprendi rights.         Moreover, Appellant’s

reliance on Blakely v. Washington, 542 U.S. 296 (2004), is misplaced,

where Blakely is inapplicable to indeterminate sentencing schemes as in

Pennsylvania.   See, e.g., Commonwealth v. Rosetti, 863 A.2d 1185,

1193 (Pa. Super. 2004) (holding that sentencing court’s decision to impose

maximum term sentence is not violative of Blakely); Commonwealth v.

Bromley, 862 A.2d 598 (Pa. Super. 2004) (holding that Apprendi, does not

invalidate sentence in aggravated range because it did not increase

maximum available sentence). As counsel cannot be deemed ineffective for

failing to pursue    a meritless claim, any concomitant ineffectiveness

allegation fails. Loner, 836 A.2d at 132.

     Appellant’s final issue is that the PCRA court erred in denying

Appellant’s motion for leave to amend his PCRA petition. Appellant asserts

that he considered raising an issue “relating to the fact that Appellant had

had a juvenile case that had been overseen and adjudicated by the


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Honorable Jill E. Rangos, who also presided over Appellant’s trial in the

instant case.” Appellant’s Brief at 29. On August 27, 2014, the PCRA court

filed notice to dismiss Appellant’s amended PCRA petition pursuant to

Pa.R.Crim.P. 907. Two weeks later, on September 9, 2014, PCRA counsel

filed a motion for leave to amend the amended PCRA petition; counsel

describes the timing of the motion as “not ideal.” Appellant’s Brief at 29. As

noted previously, the PCRA court dismissed the PCRA petition without a

hearing in an order filed on October 10, 2014; the docket does not reflect an

order disposing of Appellant’s motion for          leave   to amend.      Citing

Pa.R.Crim.P. 905(A),4 Appellant asserts that “the equities militate toward”

allowance of the amendment.

       Our Supreme Court stated in Commonwealth v. Williams, 828 A.2d

981 (Pa. 2003), as follows:

       The court retains discretion whether or not to grant a motion
       to . . . amend a post-conviction petition. The rule does not say
       that a motion to . . . amend will take effect whether or not the
       court chooses to participate in the decision. . . . If the court
       does not choose to “grant leave to amend” . . . then the motion
       is without effect.

Id. at 988.



____________________________________________


4
   Pa.R.Crim.P. 905(A) provides, “The judge may grant leave to amend or
withdraw a petition for post-conviction collateral relief at any time.
Amendment shall be freely allowed to achieve substantial justice.”
(emphasis added).



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      The PCRA Court noted that “the additional meritless issue” was waived

because “it was not raised at its earliest opportunity.” PCRA Court Opinion,

3/9/15, at 6. The court stated that the “issue of judicial bias or conflict of

interest” was not raised “at trial, post-trial, appeal, pro se PCRA petition, or

Amended PCRA Petition.” Id. In the absence of any compelling argument

by Appellant, we defer to the PCRA court’s discretion on this issue and

conclude that the PCRA court did not err.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2015




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