Com. v. Allison, K., Jr. ( 2018 )

J-S81017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
KEITH DARNEL ALLISON, JR.
Appellant No. 981 MDA 2017
Appeal from the PCRA Order Entered June 1, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0000353-2014
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 27, 2018
Appellant Keith Darnel Allison, Jr. pro se appeals from the June 1, 2017
order of the Court of Common Pleas of Berks County, which denied his request
for collateral relief under the Post Conviction Relief Act (the “Act”), 42
Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. Briefly, on
January 11, 2014, Appellant and three other individuals entered a laundromat
in Reading, Pennsylvania and physically assaulted a male victim. N.T. Guilty
Plea, 9/17/15, at 5-6. Specifically, the four individuals kicked and struck the
victim with their fists and various objects, causing serious bodily injury, i.e.,
acute subdural hematoma. Id. at 6. On September 17, 2015, Appellant
entered into a negotiated guilty plea to aggravated assault (18 Pa.C.S.A. §
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* Retired Senior Judge assigned to the Superior Court.
J-S81017-17
2702(a)(1)) and conspiracy to commit aggravated (18 Pa.C.S.A. § 903(a)(1)).
On the same day, the trial court sentenced Appellant to an aggregate term of
eight to twenty years’ imprisonment. Appellant neither filed any post-
sentence motions nor a direct appeal.
On August 17, 2016, Appellant pro se filed the instant, his first, PCRA
petition, asserting, inter alia, claims for ineffective assistance of counsel. The
PCRA court appointed counsel, who subsequently filed a Turner/Finley1 no-
merit letter on December 30, 2016. On May 3, 2017, the PCRA court granted
appointed counsel’s request for withdrawal. On the same day, the PCRA court
issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition.
On May 11, 2017, Appellant pro se filed an amended PCRA petition. On
June 1, 2017, upon reviewing Appellant’s PCRA petition, and various
amendments thereto, and the no-merit letter, the PCRA court denied Appellant
relief. Appellant pro se timely appealed to this Court. The PCRA court ordered
him to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant complied, raising eleven assertions of error. In response, the PCRA
court issued a Pa.R.A.P. 1925(a) opinion.
On appeal,2 Appellant presents five issues for our review:
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 214 (Pa. Super. 1988) (en banc).
2“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
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J-S81017-17
[I.] Whether the trial court imposed an illegal sentence when it
failed to obtain subject-matter jurisdiction over counts 19 and 20
due to indictments insufficiency to state offenses and was counsel
ineffective for his failure to inform [Appellant] that the court could
not impose the illegal sentence, thereby violating Pa. Const. Art.
1 § 9, Pa. Const. Art. 1 § 10, United States Const. Amend 5, and
United States Const. Amend 6?
[II.] Whether the trial court imposed an illegal sentence when it
held [Appellant] to answer for charges not presented in the
indictment or information due to ineffective assistance of counsel,
thereby violating U.S. Const. Amend 5 and U.S. Amend 6?
[III.] Whether the trial court allowed an information to be
amended where there was not a defect of form, where the
information charged additional or different offenses, thereby
violating Pa.R.Crim.P. 564?
[IV.] Whether the trial court failed to ensure that [Appellant]
understood the nature of the charges by not including a
demonstration that [Appellant] understood the nature of the
charges on the record in open court, thereby violating
Pa.R.Crim.P. Rule 319(a)?
[V.] Whether the trial court failed to follow the sentencing Code,
at the time of sentencing, when it failed to give adequate reasons
for appellant’s sentence and abusing it’s sentencing discretion
when it failed to consider relevant and required sentencing
criteria, including the character, personal history, and
rehabilitative needs of [Appellant], thereby violating 42 Pa.C.S.A.
§ 9721(b)?
Appellant’s Brief at 5 (sic). Appellant’s claims can be condensed and restated
as follows: First, he challenges the Commonwealth’s amendment of the
information on the day of his guilty plea to include counts for aggravated
assault and conspiracy to commit aggravated assault. Second, he raises an
issue of ineffective assistance of counsel because he claims, inter alia, that his
trial counsel failed to challenge the amendment of the information. Third, he
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and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
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claims that his negotiated guilty plea was involuntary.3 Fourth, Appellant
challenges the discretionary aspects of his sentence.4 After careful review of
the record and the relevant case law, we conclude that the PCRA court
accurately and thoroughly addressed Appellant’s claims on appeal. See PCRA
Court Opinion, 7/26/17, at 2-7. Accordingly, we affirm the PCRA court’s June
1, 2017 order. We further direct that a copy of the PCRA court’s July 26, 2017
opinion be attached to any future filings in this case.
____________________________________________
3 Appellant’s third claim is waived because “it could have been raised prior to
the filing of the PCRA petition, but was not.” Commonwealth v. Turetsky,
925 A.2d 876, 879 (Pa. Super. 2007), appeal denied, 940 A.2d 365 (Pa.
2007) (citation omitted); see also 42 Pa.C.S.A. § 9544(b) (stating, “an issue
is waived if the petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal or in a prior state post conviction
proceeding.”). Even if it were not waived, Appellant is not entitled relief, as
explained in the PCRA court’s July 26, 2017 opinion.
4 Appellant’s fourth issue is waived. It is settled that the PCRA does not
provide an appellant relief for discretionary aspects of sentence claims. See
Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007)
(“Challenges to the discretionary aspects of sentencing are not cognizable
under the PCRA.”) (citations omitted), appeal denied, 944 A.2d 756 (2008);
see also Commonwealth v. Jordan, 772 A.2d 1011, 1016 (Pa. Super.
2001) (observing that “[t]his Court’s case law has stated that a challenge to
the discretionary aspects of sentencing is a matter that must be review in the
context of a direct appeal and cannot be reviewed in the context of the
PCRA.”); see also 42 Pa.C.S.A. § 9543(a)(2). Even if Appellant could
challenge the discretionary aspects of his sentence on collateral review, he
still would not be afforded relief because he may not challenge the
discretionary aspects of his or her sentence, where the terms of the sentence
were made part of the negotiated plea. Commonwealth v. Baney, 860 A.2d
127, 131 (Pa. Super. 2004), appeal denied, 877 A.2d 459 (Pa. 2005); see
Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (holding that
a challenge to the discretionary aspects of a negotiated sentence is
unreviewable).
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J-S81017-17
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2018
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Circulated 03/09/2018 09:46 AM
) )
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
,,..... OF BERKS COUNTY, PENNSYLVANIA
v. CRIMINAL DIVISION
NO. CP-06-CR-0000353-2014
r-· KEITH DARNEL ALLISON JR.
t••
0 DEFENDANT PAULM. YATRON, PRESIDENT JUDGE
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1925(a) Opinion July 26, 2017
PROCEDURAL HISTORY
On September 17, 2015, Keith Allison ("Appellant") entered a negotiated plea to
aggravated assault and conspiracy to commit aggravated assault. That day, Appellant was
sentenced to not less than eight (8) nor more than twenty (20) years in a state correctional
facility.
Following sentencing, Appellant did not file a post sentence motion or file an appeal. On
August 17, 2016, Appellant filed a timely prose PCRA petition. We duly appointed PCRA
counsel, who filed a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) on December 30, 2016.
Appellant subsequently filed what we cognized as an amended petition on May 11, 2017. After
reviewing the petition, PCRA Counsel's "No Merit" letter, and further prose amendment/letters
we dismissed the petition on June 1, 2017.
On the 2151 day of June, 2017, Appellant appealed our dismissal. That same day, in
response, we ordered that Appellant file a concise statement. He timely filed a concise statement
on July 13, 2017. In his Concise Statement, he reiterates many of his prior claims, though with
inventive "legal" arguments. These claims fit into three categories.
First, Appellant raises a myriad of legal arguments involving an amendment to his
information. To this effect, he claims that the Court lacked subject matter jurisdiction, violated
his due process rights, and committed procedural violations, under the Pennsylvania and United
States Constitution and the Pennsylvania Rules of Criminal Procedure, when we permitted the
amendment of counts 19 and 20 to aggravated assault and conspiracy to commit this offense
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respectively. Second, Appellant alleges that-his Counsel was ineffective for failing to assert the
illegality of the aforemerfjioned �vibh(ti1mSl{:>f[t,li.¢'. Court and his plea was coerced and/or
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involuntary. Third, he argues that PCRA counsel was ineffective for failing "to meet the
,.. . minimum requisites of Turner I Finley."
.,..
DISCUSSION
I. Legality of Amendments to the Information.
Appellant argues that the Court lacked subject matter jurisdiction, violated his due
process rights, and committed procedural violations, under the Pennsylvania and United States
Constitution and the Pennsylvania Rules of Criminal Procedure, when we permitted the
amendment of counts 19 and 20 to aggravated assault and conspiracy to commit this offense
respectively. These claims are without merit as the amendment to the information was
permissible under all relevant law and the Court had subject matter jurisdiction.
When the Commonwealth files a petition to amend the information of a criminal action, it
must comply with Pa.R.Crim.P. 564, which states:
The court may allow an information to be amended when there is a defect in form, the
description of the offense(s), the description of any person or any property, or the date
charged, provided the information as amended does not charge an additional or different
offense. Upon amendment, the court may grant such postponement of trial or other relief
as is necessary in the interests of justice.
Pa.R.Crim.P. 564.
"[T]he purpose of Rule 564 is to ensure that a defendant is fully apprised of the charges,
and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which
the defendant is uninformed." Commonwealth v. Mentzer, 18 A.3d 1200, 1202 (Pa. Super. 2011).
A court must consider the following:
[w]hether the crimes specified in the original indictment or information involve
the same basic elements and evolved out of the same factual situation as the
crimes specified in the amended indictment or information. If so, then the
defendant is deemed to have been placed on notice regarding his alleged criminal
conduct. If, however, the amended provision alleges a different set of events, or
the elements or defenses to the amended crime are materially different from the
elements or defenses to the crime originally charged, such that the defendant
would be prejudiced by the change, then the amended is not permitted.
Additionally,
[i]n reyiewing a gfaµt,to,'i1mvnd an information, the Court will look to whether the
[ defendant] was fully apprised of the factual scenario which supports the charges
again�ypit"9, !™hereith1frf W,lrS specified in the original information involved the
same basis eleme�ts Jha a�d�e out of the same factual situation as the crime added
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by the amendment, the appellant is deemed to have been placed on notice
regarding his alleged criminal conduct and no prejudice to defendant results.
Further, the factors which the trial court must consider in determining whether an
amendment is prejudicial are:
i·
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(1) whether the amendment changes the factual scenario supporting the charges;
(2) whether the amendment adds new facts previously unknown to the defendant;
-, (3) whether the entire factual scenario was developed during a preliminary
f'•
hearing; (4) whether the description of the charges changed with the amendment;
(5) whether a change in defense strategy was necessitated by the amendment; and
(6) whether the timing of the Commonwealth's request for amendment allowed
for ample notice and preparation.
Most importantly, we emphasize that "the mere possibility amendment of information
may result in a more severe penalty ... is not, of itself, prejudice."
Id. at 1202-03 ( citations omitted).
Instantly, it is evident that Appellant was apprised of the factual scenario underlying his
charges, namely that he kicked and punched Robert Lawson Mohler causing injury. This fact is
clear in the statement of probable cause and the original information informs Appellant that he
was charged with simple assault. "[F]or the purposes of this case, [his original charges only]
differ[] from aggravated assault ... with respect to the intent of the criminal perpetrator and the
seriousness of the injuries sustained by the victim." Commonwealth v. Lawton, 414 A.2d 658,
661 (Pa. Super. 1979). As such, the amendment was permissible and an objection by counsel to
the amendment would have been unsuccessful. Id. Furthermore, the information was modified as
part of negotiated plea. Appellant was afforded a significant benefit to permit the amendment of
these charges, which was the dismissal of four first degree felonies.
II. Ineffective Assistance of Plea Counsel
Appellant avers that his Counsel was ineffective for failing to assert the illegality of the
aforementioned violations of the Court and his plea was coerced and/or involuntary. The Post
Conviction Relief Act permits the Court to examine "all constitutionally-cognizable claims of
ineffective assistance of counsel." Com. ex rel. Dadario v. Goldberg, 773 A.2d 126, 129 (Pa.
2001); 42 Pa.C.S. § 9543(a)(2)(ii). Through these claims, the defendant must prove by a
preponderance of evidence that counsel's acts or omissions "so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have taken place."
3
Commonwealth v. Howard, 749 A.2d 941, 949 (Pa. Super. 2000) (quoting Commonwealth v.
Stevens, 739 A.2d 507, 512 (Pa. 1999)); 42 Pa.C.S. § 9543(a), (a)(2)(ii).
When alleging the ineffectiveness of counsel, the defendant must satisfy a three pronged
test. Defendant must prove: (1) that the underlying legal claim has arguable merit, (2) counsel
had no reasonable basis for his or her action, and (3) that there is a "reasonable probability that
but for the act or omission in question, the outcome of the proceeding would have been
t':.,
different." Commonwealth v. Rega, 933 A.2d 997 (Pa. 2007); Commonwealth v. Chmiel, 889
A.2d 501, 540-41 (Pa. 2005); Commonwealth v. Pierce, 527 A.2d 973, 974 (Pa. 1987). The
defendant must satisfy each prong of this test, or his claim will fail. Commonwealth v. Pierce,
786 A.2d 203, 213 (Pa. 2001). Additionally, as counsel is presumed effective, it is the defendant
that bears the burden of establishing these prongs. Commonwealth v. Speight, 677 A.2d 317, 461
(Pa. 1996).
[Moreover,] [i]t is clear that a criminal defendant's right to effective counsel extends to
the plea process, as well as during trial. However, [ a]llegations of ineffectiveness in
connection with the entry of a guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where
the defendant enters his plea on the advice of counsel, the voluntariness of the plea
depends on whether counsel's advice was within the range of competence demanded of
attorneys in criminal cases.
"[T[he law does not require that [the defendant] be pleased with the outcome of his
decision to enter a plea of guilty: All that is required is that [his] decision to plead guilty
be knowingly, voluntarily, and intelligently made." Anderson, 995 A.2d at 1192
( citations, quotation, and quotation marks omitted).
Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (quoting Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa. Super. 2012)).
Additionally,
"A valid plea colloquy must delve into six areas: 1) the nature of the charges, 2) the
factual basis of the plea, 3) the right to a jury trial, 4) the presumption of innocence, 5)
the sentencing ranges, and 6) the plea court's power to deviate from any recommended
sentence." Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005);
Pa.R.Crim.P. 590, Comment. Additionally, a written plea colloquy that is read,
completed and signed by the defendant and made part of the record may serve as the
defendant's plea colloquy when supplemented by an oral, on-the-record examination.
Morrison, 878 A.2d at 108 (citing Comment to Pa .R.Crim.P. 590). "[A] plea of guilty
will not be deemed invalid if the circumstances surrounding the entry of the plea disclose
that the defendant had a full understanding of the nature and consequences of his plea and
that he knowingly and voluntarily decided to enter the plea." Commonwealth v. Fluharty,
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632 A.2d 312, 315 (Pa. Super. 1993). "Our law presumes that a defendant who enters a
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guilty plea was aware of what he was doing. He bears the burden of proving otherwise."
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (internal citation
omitted).
l'"
'•'"
Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015).
r- Appellant made the following statements that evince that his plea was both voluntary and
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knowing:
Ms. Hamer: Mr. Allison, do you understand that you stand here today charged with
aggravated assault, conspiracy to commit aggravated assault, two counts of delivery of a
controlled substance, and possession of a controlled substance?
The Appellant: Yes.
Ms. Hamer: Do you understand that you are presumed to be innocent until proven guilty
beyond a reasonable doubt?
The Appellant: Yes.
Ms. Hamer: Do you understand that you have an absolute right to have a trial by jury in
these cases?
The Appellant: Yes.
Ms. Hamer: Do you understand you have the right to file pretrial motions, including a
writ of habeas corpus and a motion to suppress evidence?
The Appellant: Yes.
Ms. Hamer: Do you understand that by pleading guilty you give up your right to a trial
and pretrial motions?
The Appellant: Yes.
Ms. Hamer: After pleading guilty, you have only certain limited rights. They include the
right to challenge whether your plea was valid, whether your attorney was effective in
representing you, the jurisdiction of the Court, and you can appeal any sentence imposed
to a higher court. Do you understand those four limited rights?
The Appellant: Yes.
Ms. Hamer: I am referring you to the written colloquies in the Judge's hand. Is that your
signature on the first three pages of each document?
The Appellant: Yes
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Ms. Harner: Are these your truthful answers to the questions on each of the documents?
The Appellant: Yes.
* * *
Ms. Harner: Are you satisfied with the services of Mr. J arrnon and Mr. Ernkey?
The Appellant: Yes.
Ms. Hamer: A plea agreement has been negotiated between your attorney and the
commonwealth in dockets 353' of 14, 1362 of' 14, 1171 of' 14, 4397 of' 13. Do you
understand that Judge Yatron is not bound by that plea agreement and doesn't have to
follow it?
The Appellant: Yes.
Ms. Harner: Do you understand if Judge Yatron doesn't sentence you in accordance with
the plea agreement, you may withdraw your plea and proceed to trial?
The Appellant: Yes.
Ms. Harner: Do you understand that the maximum permissible sentence on charges of
aggravated assault and conspiracy to commit aggravated assault are each 20 years and a
$25,000 fine?
The Appellant: Yes.
Ms. Hamer: In light of your answers to my questions on the record, and in light of your
answers in the guilty plea colloquy, is it your intention to plead guilty and be sentenced in
accordance with the plea agreement.
The Appellant: Yes.
NOTES OF TESTIMONY, September 14, 2015, at 2-5.
After a thorough review, Appellant's claims are without merit. Claims of counsel's
ineffectiveness in connection with a guilty plea will provide a basis for PCRA relief only if the
ineffectiveness caused an involuntary or an unknowing plea. Commonwealth v. Diaz, 913 A.2d
871, 873 (Pa. Super. 2006). Also, a defendant will be held responsible for statements that he
made during a guilty plea and cannot escape those consequences by contradicting them or stating
he lied under oath. Commonwealth v. Jones, 596 A.2d 886 (Pa. Super. 1991). Instantly, under the
totality of the circumstances, there is nothing of record to suggest that Appellant's guilty plea
was either unknowing or involuntary. Both his written and oral guilty plea colloquies indicate
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that he understood and voluntarily waived his rights; a defendant is not permitted to allege that
he lied under oath. Therefore, Appellant is unable to sustain any allegation that his plea was
unknowing or involuntary.
Also, Appellant avers that he was coerced into accepting a plea deal because he was
informed that if he went to trial he would lose and receive a virtual life sentence. This was not
coercion, but reflects reality. Appellant was charged with four first degree felonies, which would
not merge for purposes sentencing. As one first degree felony alone carries the maximum
sentence of twenty (20) years, it would have been feckless of Counsel not to advise Appellant of
this possibility. As such, this advice could not be considered coercive.
In addition, Appellant argues that Counsel failed to file a post-sentence motion, despite
his request. Even assuming that this averment is true, Appellant would not be entitled to the
reinstatement of his post-sentence rights unless he can demonstrate actual prejudice under the
Strickland/Pierce standard. Commonwealth v. Reaves, 923 A.2d 1119, 1129 (Pa. 2007). Under
this standard, prejudice can only be shown when there is a "reasonable probability that but for
the act or omission in question, the outcome of the proceeding would have been different."
Commonwealth v. Rega, 933 A.2d 997 (Pa. 2007). Instantly, there is no reasonable probability
that we would have modified Appellant's sentence, because he was sentenced pursuant to a
negotiated plea.
Finally, Appellant alleges that Counsel was ineffective for permitting an amendment to
the criminal information. The basis for ineffectiveness is that this amendment to the criminal
information was unlawful. However, this claim is without merit as the amendment was lawful
and this claim is without merit. See Supra.
III. Ineffective Assistance of PCRA Counsel
Appellant avers that PCRA Counsel was ineffective for "failing to meet minimum
requisites of Turner I Finely." After reviewing the record, we find this claim is so vague as to
prevent meaningful review. The purpose of requiring a Concise Statement of Errors is so that
trial judges can identify on which issues to focus. The Pennsylvania Supreme Court has held that
once "a Concise Statement of Matters Complained of on Appeal [is filed], any issues not raised
in such a statement will be waived." Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.
Super. 2001) (citing Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998)). Furthermore,
flowing from the progeny of this case, when a Concise Statement is so vague as to prevent
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meaningful review, and thus impede pertinent legal analysis, such issues raised are also waived.
Commonwealth v. Butler, 756 A.2d 55, 57 (Pa. Super. 2000). In other words, vague statements
are equivalent to no statement at all and result in forfeiture of that issue on appeal. See Dowling,
778 A.2d at 687.
Instantly, Appellant has failed to demonstrate even in the vaguest of terms as to how
Counsel failed its duties under "Turner I Finley." It is not the role of the Court to construe
I." Appellant's Concise Statement in a fashion that would allege a cognizable claim. As such, the
vagueness of Appellant's statement defeats the purpose of a Concise Statement and hinders
pertinent legal analysis. This statement should be considered waived.'
CONCLUSION
Accordingly, we conclude that Appellant is not entitled to post-conviction collateral
relief.
1
He first raised this claim of ineffectiveness in his amended petition. When the
ineffectiveness of PCRA counsel is first raised in a Concise Statement, this matter is considered
waived. Commonwealth v. Henkel, 90 A.3d 16, 29 (Pa. Super. 2014). Yet, if the claim is raised in
the amended petition the ineffectiveness of counsel of PCRA Counsel may be addressed by the
Court. See Id. Instantly, PCRA counsel's ineffectiveness was persevered, but has been waived
because his averment of ineffectiveness prevents our meaningful review.
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