Message
×
loading..

Com. v. Lewis, D. ( 2017 )


Menu:
  • J-S61020-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    v.
    DANIEL LEWIS
    Appellant                     No. 757 EDA 2017
    Appeal from the PCRA Order January 19, 2017
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-1201581-2005
    BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
    MEMORANDUM BY RANSOM, J.:                              FILED OCTOBER 17, 2017
    Appellant, Daniel Lewis, appeals from the order entered January 19,
    2017, denying his petition for collateral relief filed under the Post Conviction
    Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
    We adopt the following procedural history from the PCRA court opinion,
    which in turn is supported by the record. See PCRA Court Opinion (PCO),
    1/20/17, at 1-3. In September 2005, Appellant was arrested and charged
    with murder and related offenses.              Following a February 2007 mistrial,
    Appellant was convicted by a jury on September 19, 2007, of first-degree
    murder, firearms not to be carried without a license, and possession of an
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-S61020-17
    instrument of crime.1 That same day, Appellant was sentenced to mandatory
    life imprisonment and an additional three and one-half to seven years of
    incarceration.
    Appellant’s judgment of sentence was affirmed on appeal.             See
    Commonwealth v. Lewis, 
    981 A.2d 925
     (Pa. Super. 2009) (unpublished
    memorandum).         In July 2010, Appellant pro se filed a PCRA petition.    In
    January 2012, he requested that his right to petition for allowance of appeal
    to the Pennsylvania Supreme Court be reinstated. This request was granted,
    and the Supreme Court denied allowance of appeal. See Commonwealth v.
    Lewis, 
    54 A.3d 437
     (Pa. 2012) (unpublished memorandum).
    In September 2013, Appellant pro se timely filed a PCRA petition, a
    request for leave to file an amended petition, a motion for production of
    transcripts and original discovery, and a request for discovery and
    Brady/Giglio2 material. The PCRA petition itself did not outline any claims
    Appellant wished to raise beyond checking boxes indicating he would raise
    claims of a violation of the Constitution of the Commonwealth or the United
    States, and ineffective assistance of counsel.
    Counsel was appointed, but did not file an amended petition on
    Appellant’s behalf. In July 2016, the court appointed Gary Server, Esq., to
    ____________________________________________
    1   See 18 Pa.C.S. §§ 2502(a), 6106, and 907, respectively.
    2See United States v. Giglio, 
    92 S. Ct. 763
     (1972); Brady v. Maryland,
    
    83 S. Ct. 1194
     (1963).
    -2-
    J-S61020-17
    represent Appellant. Attorney Server filed a Turner/Finley3 letter and sought
    to withdraw representation.         The letter averred that Attorney Server had
    reviewed Appellant’s motions and the records and had contacted him for
    clarification. The court indicates that Appellant mailed a letter indicating he
    would respond to the Finley letter. However, this letter was not filed and
    does not appear on the docket or in the certified record. On September 29,
    2016, the court sent Appellant notice pursuant to Pa.R.Crim.P. 907 that his
    petition would be dismissed without a hearing.
    The court indicates that on October 21, 2016, Appellant mailed a
    response to the Finley letter raising additional claims. However, this letter
    was not filed and does not appear on the docket or in the certified record.
    Attorney Server filed an amended Finley letter on December 15, 2016. By
    letter dated December 15, 2016, and post-marked December 27, 2016,
    Appellant filed a motion requesting additional time to file a response to the
    notice of intent to dismiss and Finley letter. He claimed that he mistakenly
    sent his responses directly to the court and not the filing office and that
    Attorney Server’s Finley letter was in legal error.      Appellant did not raise
    additional or specific claims.
    On January 20, 2017, the court formally dismissed Appellant’s petition
    by order and opinion.         It did not order him to file a Pa.R.A.P. 1925(b)
    statement of errors complained of on appeal or issue a further opinion.
    ____________________________________________
    3 See Commonwealth v. Turner, 
    544 A.2d 927
                            (Pa.   1998);
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa. Super. 1998).
    -3-
    J-S61020-17
    On appeal, Appellant raises the following questions for our review:
    A. Is PCRA counsel’s Finley letter holding that Appellant’s PCRA
    is frivolous and the record of his case contains no meritorious
    claims and the [court’s] agreement with the Finley letter in legal
    error, when the record contains meritorious claims that are
    apparent and appellant presented meritorious claims?
    B. Did PCRA counsel and [the court] commit legal error in his
    Finley by holding as meritless appellant’s claim that Judge
    Hughes abused discretion in denying defense motion to recuse
    based on prejudice/biasness [sic] judicial misconduct that created
    the appearance of impropriety, and appellant counsel wasn’t
    ineffective for failing to raise issue on appeal?
    C. Did PCRA counsel and [the court] commit legal error by using
    Finley to hold as meritless appellant’s claim that Judge Hughes
    committed bad faith judicial misconduct that denied appellant a
    fair trial and due process and that appellate counsel wasn’t
    ineffective for failing to raise issue [sic] on appeal?
    D. Did PCRA counsel and [the court] commit legal error by using
    Finley to hold as meritless appellant’s claim that Judge Hughes
    abused her discretion in denying defense motion to disqualify a
    biased juror who had engaged in jury misconduct/ex parte contact
    with a commonwealth witness and appellate counsel wasn’t
    ineffective for not raising issue on appeal?
    Appellant’s Brief at vii.4
    Initially, we note several deficiencies in Appellant’s brief. He does not
    include a proper statement of the scope and standard of review.               See
    Pa.R.A.P. 2111(a)(3).        Additionally, it contains a number of exhibits in the
    reproduced record which were not included in the certified record below. See
    Commonwealth v. Preston, 
    904 A.2d 1
    , 6 (Pa. Super. 2006) (noting that
    ____________________________________________
    4 Appellant’s brief was untimely filed. However, on September 1, 2017,
    Appellant filed an application for relief, requesting that we consider his brief
    timely filed. We grant his application and will consider the merits of his brief.
    -4-
    J-S61020-17
    matters not of record cannot be considered on appeal, and an appellate court
    is limited to considering only the materials in the certified record). However,
    based upon our resolution of Appellant’s issues, we need not find waiver on
    that basis.
    We review an order denying a petition under the PCRA to determine
    whether the findings of the PCRA court are supported by the evidence of
    record and free of legal error. Commonwealth v. Ragan, 
    923 A.2d 1169
    ,
    1170 (Pa. 2007). We afford the court’s findings deference unless there is no
    support for them in the certified record. Commonwealth v. Brown, 
    48 A.3d 1275
    , 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 
    995 A.2d 1184
    , 1189 (Pa. Super. 2010)).
    Appellant raises a number of issues of ineffective assistance of counsel.
    However, claims that are not raised in a PCRA petition may not be raised for
    the first time on appeal. See Commonwealth v. Rigg, 
    84 A.2d 1080
    , 1084
    (Pa. 2014); see also Pa.R.A.P. 302(a). Appellant filed a number of motions
    in the court below, but did not plead and preserve these issues in his PCRA
    petition. The PCRA petition itself states only that he seeks to raise issues of
    constitutional violations and ineffective assistance of counsel, but Appellant
    never articulated his claim.   Nor did Appellant seek leave to amend his
    petition.   See, e.g., Commonwealth v. Mason, 
    130 A.3d 601
    , 627 (Pa.
    2015); see also Pa.R.C.P. 905(A). Accordingly, all claims related to trial and
    appellate issues are waived. See Riggs, 84 A.2d at 1084; Pa.R.A.P. 302.
    -5-
    J-S61020-17
    Additionally, Appellant’s claims related to PCRA counsel’s ineffectiveness
    are waived.      Such a claim may be raised in a response to the court’s
    Pa.R.Crim.P. 907 notice. See, e.g., Commonwealth v. Henkel, 
    90 A.3d 16
    ,
    20 (Pa. Super. 2014), appeal denied, 
    101 A.3d 785
     (Pa. 2014). However, the
    notice, issued September 26, 2016, provided that Appellant must file a
    response within twenty days. Appellant did not file a response until December
    27, 2016, far beyond the provided time period. Accordingly, he has waived
    his issue for purposes of appeal.
    Counsel was properly permitted to withdraw after fulfilling the
    requirements of Turner/Finley. Where counsel determines that there are no
    meritorious issues raised in a PCRA petition, and the court agrees, counsel
    may withdraw after filing a “no merit” letter. See Turner, 544 A.2d at 928-
    29; Finley, 550 A.2d at 215. Specifically, 1) counsel must detail the nature
    and extent of his review; 2) counsel must list each issue the petitioner wishes
    to have reviewed; 3) counsel must explain why petitioner’s issues are
    meritless; 4) the PCRA court conducts its own independent review of the
    record; and 5) the PCRA court agrees with counsel that the petition is
    meritless.    Id.    Attorney Server complied with the requirements of
    Turner/Finley, and the PCRA court conducted its own review of the record
    and found Appellant’s issues to be meritless. Accordingly, there was no error
    in the court’s order granting counsel’s petition to withdraw and dismissing the
    PCRA petition.    Brown, 
    48 A.3d at 1277
    .
    Application for relief granted. Order affirmed. Jurisdiction relinquished.
    -6-
    J-S61020-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/17/2017
    -7-