Com. v. Jackson, D. ( 2021 )

J-A19045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTE JACKSON :
:
Appellant : No. 582 EDA 2020
Appeal from the PCRA Order Entered March 9, 2020,
In the Court of Common Pleas of Philadelphia County Criminal Division at
No: CP-51-CR-0010883-2012
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 23, 2021
Appellant, Dante Jackson, pro se, appeals from the order of the Court
of Common Pleas of Philadelphia County, entered March 9, 2020, that
dismissed his first petition filed under the Post Conviction Relief Act (PCRA)1
without a hearing. We affirm the PCRA court’s order in part, vacate in part,
and remand to the PCRA court for compliance with Pa.R.Crim.P. 905(B) (Rule
905(B)).
A brief recitation of the facts underlying this appeal are as follows. On
August 27, 2012, Appellant threatened to shoot the victim, a City of
Philadelphia Correctional Officer dressed in full uniform with her name tag
displayed. PCRA opinion, at 1. Appellant and the victim were not acquainted,
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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and the victim had stopped at a grocery store on her way to work when she
encountered Appellant. Id. Appellant followed the victim to her car and
pointed the muzzle of what appeared to be a gun wrapped in a grey towel at
the victim’s torso. Id. at 2. Appellant then stated, “I should shoot you right
now.” Id. The victim was able to escape and later positively identified
Appellant. Id. After Appellant was apprehended, he stated “I should have
killed that bitch. When I see her again I’m going to murder her.” Id.
On March 17, 2016, a jury convicted Appellant of Aggravated Assault,
Possession of an Instrument of Crime (PIC), Terroristic Threats, and Simple
Assault.2 On May 13, 2016, the trial court sentenced Appellant to an
aggregate sentence of 10 to 20 years’ incarceration. Appellant filed a direct
appeal and this Court affirmed his judgment of sentence on May 10, 2019.
Commonwealth v. Donte Jackson, 2019 WL 2070487 (Pa. Super. filed May
10, 2019) (unpublished memorandum). Appellant did not file an application
for appeal to the Supreme Court of Pennsylvania.
On June 28, 2019, Appellant filed his first, pro se, timely PCRA petition,
challenging the subject matter jurisdiction of the trial court, the legality of his
sentence, discretionary aspects of his sentence, and claiming ineffective
assistance of trial and appellate counsel. Appellant’s PCRA petition, 6/29/19.
In the PCRA petition Appellant requested to proceed pro se and requested a
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2 18 Pa.C.S. §§ 2702 (A)(6), 907, 2706(A)(1), and 2701(A), respectively.
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hearing pursuant to Commonwealth v. Grazier.3 Id. The PCRA court
appointed counsel to represent Appellant upon receipt of the PCRA petition.
Order, 7/10/19; See generally, N.T., 10/3/19. On October 3, 2019, the
PCRA court held a hearing pursuant to Grazier. See generally, N.T.,
10/3/19. Court-appointed counsel was present and the PCRA court permitted
Appellant to speak with counsel prior to the Grazier hearing. N.T., 10/3/19,
at 7-9. After conducting a colloquy, the PCRA court determined that Appellant
knowingly, voluntarily and intelligently gave up his right to counsel and
permitted Appellant to proceed pro se. Order, 10/3/19; N.T., 10/3/19 at 9-
24.
The PCRA court held an additional hearing on January 27, 2020, to
address several motions filed by Appellant. See generally, N.T., 1/27/20.
At the hearing, the PCRA court addressed a motion to amend the 1925(b)
statement, a motion for additional discovery, and a motion challenging the
subject matter jurisdiction of the trial court. Id. The PCRA court denied
Appellant’s motions. Id. The PCRA court determined that no Rule 1925(b)
statement existed because there was no appeal pending, that Appellant did
not meet the “exceptional circumstances” necessary for additional discovery
and the trial court had subject matter jurisdiction. Id. at 4-14.
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3 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (When a waiver
of the right to counsel is sought at the post-conviction and appellate stages,
an on-the-record determination should be made that the waiver is a knowing,
intelligent, and voluntary one.)
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On January 29, 2020, the PCRA court entered a notice of intent to
dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907 (Rule 907
Notice) concluding that the issues in Appellant’s PCRA petition were without
merit. Order, 1/29/20. Appellant did not file a response. On March 9, 2020,
the PCRA court dismissed Appellant’s petition. On March 9, 2020, Appellant
filed this timely appeal.4
Appellant presents the following issues for our review:
Did the PCRA court err in [sic] abuse it[‘s] discretion and deny
Appellant due process under the state and federal constitutions by
proceeding to summarily dismissing Appellant’s petition for Post-
Conviction Relief:
(1) By holding Appellant above the “stringent standards” of an
[sic] skilled lawyer,
(2) By not permitting Appellant to “amend” his PCRA petition,
(3) Without ensuring Appellant was provided discovery by trial
counsel as directed-ordered by the PCRA court,
(4) Without affording the Appellant court-appointed assistance
requested by him for the purpose of obtaining [a] witness
statement exculpatory to him,
(5) [By not] ordering the production of the audio record of
Appellant’s proceedings where he complained of altered
transcripts,
(6) Without affording Appellant’s an [sic] hearing to his challenges
to the trial court subject matter jurisdiction for the
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4Appellant prematurely filed a notice of appeal from the PCRA court’s Rule
907 Notice on February 10, 2020, however, Appellant’s premature notice of
appeal will be treated as timely filed on March 9, 2020. See Pa.R.A.P.
905(a)(5) (A notice of appeal filed after the announcement of a determination
but before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.)
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Commonwealth’s failure to provide him with formal and specific
notice of charges in advance of trial,
(7) [By not] hearing Appellant’s claim of ineffective assistance of
counsel during his pretrial proceedings, at trial, and on direct
appeal, and
(8,9) [By not] taking into account Appellant’s declared lack of
adequate access to the courts at his prison institution and his
obvious literacy issues and learning, educational, intellectual, and
mental disabilities and inability to effectively pursue Post-
Conviction relief unassisted, which is quite apparent from the
record, form and content of Appellant’s pro se pleadings and the
PCRA own observations in the court’s opinion, and either affording
Appellant his claims to the court orally, appointing standby
counsel to assist him with his pleadings, or conducting an
appropriate inquiry into whether Appellant's lack of access to the
courts, disabilities, and lack of assistance were effectively
depriving Appellant of his statutory right to Post-Conviction relief
and right to due process and equal protection of the law under the
fourteenth amendment and Art. I, 1, 9, 11, 20 and 26.
Appellant’s Brief, at IX.5
In reviewing an appeal from the denial of PCRA relief, “this Court is
limited to ascertaining whether the evidence supports the determination of
the PCRA court and whether the ruling is free of legal error.” Commonwealth
v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted). This
Court is limited to the findings of the PCRA court and the evidence of record,
and must view these in a light most favorable to the Commonwealth as the
prevailing party. Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa.
Super. 2014). The PCRA court’s credibility determinations are binding on this
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5 Appellant filed two applications for relief with this Court, on July 21, 2021
and August 25, 2021. Both applications for relief are denied in light of the
disposition of this memorandum.
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Court when supported by the record; however, with regard to the PCRA court’s
legal conclusions, our standard of review is de novo. Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. Super. 2011).
To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence, “[t]hat the petitioner has been
convicted of a crime under the laws of this Commonwealth and is at the time
relief is granted, currently serving a sentence of imprisonment, probation or
parole for the crime.” 42 Pa.C.S. § 9543. A petitioner alleging ineffective
assistance of counsel must also plead and prove by a preponderance of the
evidence “that the conviction or sentence resulted from . . . [i]neffective
assistance of counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Id.
Amendment of PCRA petition
In his brief, Appellant combined his first two issues on appeal, therefore,
we will discuss them together. Appellant argues that the PCRA court violated
the duty owed to Appellant as a pro se petitioner and erred by failing to permit
him to amend his PCRA petition in violation of Rule 905(B). Instantly,
although Appellant is pro se, we recognize:
[u]nder Pennsylvania law, pro se defendants are subject to the
same rules of procedure as are represented defendants. See
Commonwealth v. Williams, [ ] 896 A.2d 523, 534 (Pa. 2006)
(pro se defendants are held to same standards as licensed
attorneys). Although the courts may liberally construe materials
filed by a pro se litigant, pro se status confers no special benefit
upon a litigant, and a court cannot be expected to become a
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litigant's counsel or find more in a written pro se submission than
is fairly conveyed in the pleading.
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014). Additionally,
during the Grazier hearing, the PCRA court questioned Appellant regarding
the following.
The Court: Do you understand that you will be held to the standard
of someone, you know, that must be aware of all of the filing
requirements, legal requirements, arguments, things of that
nature; all of these things that you're going to have to be held
accountable to complying with the rules and regulations that are
set forth in the Post-Conviction Hearing Act itself? Do you
understand that?
Appellant: I do.
...
The Court: Do you understand that if I permit you to represent
yourself and I remove counsel at your request, you will be bound
by all of the normal rules and procedures and knowledge of those
rules and procedures relating to the Post-Conviction Hearing Act
proceedings?
Appellant: I understand.
N.T., 10/3/19, at 11-15. Appellant argues that because he is proceeding pro
se, the PCRA court must hold him to a lower standard than an attorney. This
argument is meritless. The PCRA court may “liberally construe” pro se filings,
however, pro se status “confers no special benefit upon a litigant.” See
Blakeney, 108 A.3d at 766.
Appellant next argues that the PCRA court erred because it failed to
permit him to amend his PCRA petition pursuant to Pa.R.Crim.P. 905(B).
Appellant argues that the PCRA court found his PCRA petition was facially
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defective when it stated in its Rule 1925(a) opinion that portions of Appellant’s
PCRA petition were “vague,” “mostly illegible,” and “extremely difficult to
decipher” and, therefore, it should have permitted Appellant to amend his
petition. See Appellant’s Brief, at 7-8; TCO at 8.
“When a petition for post-conviction collateral relief is defective as
originally filed, the judge shall order amendment of the petition, indicate the
nature of the defects, and specify the time within which an amended petition
shall be filed.” Pa.R.Crim.P. 905(B). The comment to Rule 905 states,
“Defective,” as used in paragraph (B), is intended to include
petitions that are inadequate, insufficient, or irregular for any
reason; for example, petitions that lack particularity; petitions
that do not comply substantially with Rule 902; petitions that
appear to be patently frivolous; petitions that do not allege facts
that would support relief; petitions that raise issues the defendant
did not preserve properly or were finally determined at prior
proceedings.
Pa.R.Crim.P. 905(B), comment.
Regarding the amendment of a PCRA petition, the Pennsylvania
Supreme Court has stated,
[r]ule 905(A) governs the amendment of a pending PCRA petition.
Pursuant to this Rule, “PCRA courts are invested with discretion to
permit the amendment of a pending, timely-filed post-conviction
petition,” which must be exercised consistently with the command
of Rule 905(A) that amendment should be freely allowed to
achieve substantial justice. [Commonwealth v.] Flanagan, 854
A.2d at 499-500. Adherence to this liberal standard for
amendment is essential because criminal defendants may have
just one opportunity to pursue collateral relief in state court. Id.
Commonwealth v. Crispell, 193 A.3d 919, 930 (Pa. 2018).
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In his PCRA petition, Appellant alleged that trial counsel was ineffective
for a lengthy list of failures: failure to object to improper comments made by
the prosecutor in closing arguments, failure to admit documents into evidence
that the jury requested, failure to request a mistrial based on improper
comments by the prosecutor, prosecutorial misconduct for introducing a
witness who knowingly committed perjury with the prosecutor’s knowledge
(“Officer Mason”), failure to investigate and call a witness and receive
additional information of discovery as to what happened to evidence (“video
surveillance”) prior to trial, failure to effectively cross-examine prosecutor’s
witness on falsification of testimony, and failure to bring to the attention of
the court the fraud that took place upon the courts in the initial arrest of
Appellant and in his charging information between Appellant prior counsel
(“Staci Greenpan”) Defender Association and District Attorney. PCRA petition,
6/28/19 at 2-3 (unpaginated).
Appellant also alleged ineffective assistance of direct appeal counsel for:
failure to bring claims of trial counsel ineffectiveness, failure to bring a claim
of improper comment by prosecutor when she called witness “liar” and stated
that Appellant “hid [a] gun at [his] aunt[‘s] house,” failure to bring a claim of
right to speedy trial based on fatally defective information causing a detainer
to be lodged for almost 48 months, failure to bring a claim of lack of subject
matter jurisdiction, failure to bring a claim of insufficient evidence for PIC,
failure to bring a claim of weight of the evidence for PIC, failure to bring a due
process violation claim in allowing hearsay statement of store owner, failure
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to bring a claim of prosecutorial overwhelming the jury with voracious trial
strategy by introducing officer testimony which heightened the veracity of
police officers, failure to bring improper misconduct against the trial judge for
failure to be impartial and directing the prosecutor to move under both
sections of Aggravated Assault, failure to bring forth a claim that Appellant
lodged objections to the above and harmless error applies, failure to bring a
claim that amending the information was proper when prosecutor failed to file
or “nolle prosequi” information. Appellant’s PCRA petition at 3-4
(unpaginated).
Regarding Appellant’s claims of ineffective assistance of trial counsel,
the PCRA court stated,
[p]etitioner did not attempt to show that the underlying claims
have arguable merit, that no reasonable basis existed for
counsel’s actions or failure to act, or that he suffered prejudice as
a result of counsel’s error. Petitioner does not point to any Notes
of Testimony and his claims lack specificity.
PCRA opinion, at 12. Regarding Appellant's claims of ineffective assistance of
direct appeal counsel, the PCRA stated, “[a]gain, Petitioner’s claims lack the
required specificity.” Id. Summarily, the PCRA court concluded,
Upon review of all submitted relevant data, this court reasonably
concluded that Petitioner had failed to meet his burden of
demonstrating that any of his counsel had been ineffective.
Petitioner has not proven that any of his counsel’s representation
had fallen [below] the objective standard of reasonableness, nor
did he demonstrate any resulting prejudice. Petitioner’s PCRA
claims have been properly dismissed for lack of any appreciable
merit.
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Id., at 13.6
This Court has previously stated that Rule 905(B) applies only to a first-
time submitted PCRA petition. Commonwealth v. Austin, 721 A.2d 375,
379 (Pa. Super. 1998) (concluding the plain import of Pa.R.Crim.P. 1505(B),
the identical predecessor of current Rule 905(B), is that it is designed to apply
to first post-conviction petitions). The purpose of this rule is “to provide PCRA
petitioners with a legitimate opportunity to present their claims to the PCRA
court in a manner sufficient to avoid dismissal due to a correctable defect in
claim pleading or presentation.” Commonwealth v. McGill, 832 A.2d 1014,
1024 (Pa. 2003) (citation omitted).
Thus, when a PCRA court is presented with a PCRA petition that is
defective in form or content, the judge should indicate to the
petitioner the nature of the defects and provide an opportunity for
the petitioner to amend.
Commonwealth v. Robinson, 947 A.2d 710, 711 (Pa. 2008) (citing
Pa.R.Crim.P. 905(B)) (where dismissal of PCRA petition based on failure to
include witness certification reversed in per curiam order).7
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6 We note that the Commonwealth addressed the issue of ineffective
assistance of trial counsel for failure to object to the prosecutor’s comments
at trial. See Appellee’s Brief, at 17-22.
7 We acknowledge that per curiam orders are not binding precedent, but find
the discussion in Robinson, persuasive. See also Commonwealth v.
Williams, 782 A.2d 517, 526–527 (Pa. 2001) (capital appellant’s PCRA
petition remanded based on failure of PCRA court to comply with Pa.R.Crim.P.
1505(B), the identical predecessor of current Rule 905(B)); Commonwealth
v. Pander, 100 A.3d 626, fn.10 (Pa. Super. 2014) (noting impropriety of
(Footnote Continued Next Page)
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First, we note, Appellant did not file a response to the PCRA court’s 907
Notice to request permission to amend his PCRA petition.
The purpose behind a Rule 907 pre-dismissal notice is to allow a
petitioner an opportunity to seek leave to amend his petition and
correct any material defects, the ultimate goal being to permit
merits review by the PCRA court of potentially arguable claims.
The response is an opportunity for a petitioner and/or his counsel
to object to the dismissal and alert the PCRA court of a perceived
error, permitting the court to discern the potential for
amendment. The response is not itself a petition and the law still
requires leave of court to submit an amended petition.
Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012) (some
internal citations and quotation marks omitted). Consequently, in his
response to the Rule 907 notice, Appellant should have requested leave to
amend his petition to add the instant issue in order to preserve this issue.
However, we find that the PCRA court’s 907 Notice was inadequate as it stated
that it was dismissing Appellant’s PCRA petition because his issues were
“without merit” and did not specify that the issues regarding ineffective
assistance of counsel were being dismissed because they lacked particularity.
We do not find that Appellant waived this claim for failure to raise it in a
response to the PCRA court’s defective Rule 907 Notice.
Upon review, we conclude that the PCRA court abused its discretion in
dismissing Appellant’s ineffective assistance claims related to trial counsel and
direct appeal counsel based on procedural deficiencies, without “order[ing]
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affirming PCRA court’s dismissal based on lack of witness certification where
PCRA did not provide notice of the defect per Pa.R.Crim.P. 905(b), but
affirming on other grounds).
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amendment of the petition” or providing Appellant with notice of “the nature
of the defects.” Pa.R.Crim.P. 905(B); see McGill, 832 A.2d at 1024. We find
the PCRA court’s dismissal of Appellant’s claims regarding ineffective
assistance of counsel based on a lack of the required specificity amounted to
a finding that Appellant’s PCRA petition was “defective” as originally filed, with
regard to those particular claims. See Rule 905(B), comment. Accordingly,
we remand to the PCRA court for compliance with Rule 905(B) with respect to
only the claims of ineffective assistance trial and appellate counsel that
Appellant specified in his PCRA petition. See Robinson, 947 A.2d at 711.
The PCRA court “shall order amendment of the petition, indicate the nature of
the defects, and specify the time within with an amended petition shall be
filed.” Rule 905(B).8
Discovery
Appellant next argues that the PCRA court erred because it did not
ensure that previous trial counsel provided Appellant with discovery.
Appellant’s Brief, at 14. Discovery in PCRA proceedings is governed by
Pennsylvania Rule of Criminal Procedure 902(E)(1), which states in pertinent
part, “[e]xcept as provided in paragraph (E)(2), no discovery shall be
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8Nothing in this memorandum should be read to undermine the PCRA pleading
requirements that are incumbent upon petitioners, pursuant to 42 Pa.C.S. §
9543.
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permitted at any stage of the proceedings, except upon leave of court after a
showing of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1).
Neither the PCRA nor the Pennsylvania Rules of Criminal
Procedure define the term “exceptional circumstances.” This
Court, however, has held that “the trial court, in its
discretion” determines whether a case is exceptional and warrants
discovery. Thus, “[w]e will not disturb a court's determination
regarding the existence of exceptional circumstances unless the
court abused its discretion.”
Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa. Super. 2016) (quoting
Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012)).
During the October 3, 2019, hearing, the PCRA court and Appellant had
the following exchange,
The Court: What discovery did you receive, Mr. Jackson, to date?
Appellant: Transcripts; preliminary hearing transcripts, the
November 7th transcript, my trial transcripts.
. . . [prior counsel] gave me the trial transcripts, the preliminary
hearing.
N.T., 10/3/19, at 17-18. Appellant attached a copy of the criminal Information
to his motion challenging subject matter jurisdiction. Motion, 11/22/19, at
44-46 (unpaginated). During the hearing on January 27, 2020, the PCRA
court addressed Appellant’s request for discovery.
As to discovery, Pennsylvania Rules of Criminal Procedure 902-E.1
control. . . . The Pennsylvania Supreme Court has made it clear
that in PCRA cases discovery is not a routine entitlement that
pertains to trial. It is not the same level. Upon collateral review,
it is the defendant’s burden to investigate and prove his claims.
The defendant has no right to additional discovery which was
available at the trial stage.
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Each party is provided a reasonable opportunity to
investigate and that does not simply translate into a right of
discovery. To the contrary 902-E, Pennsylvania Rules of Criminal
Procedure, explicitly provide, discovery in PCRA cases is not
merely unusual but impermissible unless special circumstances
are demonstrated.
I refer everyone to 902-E. For example, a noncapital case
no discovery shall be permitted in any stage of the proceedings
except upon leave of court after showing of exceptional
circumstances. In this case petitioner has not shown exceptional
circumstances warranting the discovery that I’m gleaning he is
requesting.
N.T. 1/27/20 at 4-5. Appellant testified that prison officials are withholding
his legal documents and that he never received discovery. N.T., 1/27/20, at
9-10. The PCRA court stated, “the Information and original discovery had
been forwarded to you not only by this court but also by your prior counsel on
multiple occasions.” Id. at 9-10.
We find the PCRA court did not abuse its discretion in its determination
that Appellant did not show exceptional circumstances to warrant production
of the discovery he requested. The record supports the PCRA court’s
determination that transcripts and the criminal Information were previously
provided to Appellant. Additionally, although Appellant stated at the hearing
that he no longer has the paperwork, the PCRA court’s credibility
determinations are binding on this Court when supported by the record. See
Medina, 92 A.3d at 1214; Spotz, 18 A.3d at 259.
Next, Appellant argues that the PCRA court erred in denying him funds
to hire an investigator to obtain “affidavits from witnesses and possible video.
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. . from the convenience store” where the incident occurred. Appellant’s Brief,
at 12.
The provision of public funds to hire experts to assist in the
defense against criminal charges is a decision vested in the sound
discretion of the court and a denial thereof will not be reversed
absent an abuse of that discretion. At the trial stage, “an accused
is entitled to the assistance of experts necessary to prepare a
defense.” This court has never decided that such an appointment
is required in a PCRA proceeding. We must review the PCRA
court's exercise of its discretion in the context of the request, that
an expert's testimony is necessary to establish his entitlement to
relief under 42 Pa.C.S. § 9543(a)(2)(vi), the provision of the PCRA
which deals with claims of innocence based on after-discovered
evidence.
It is well settled in this Commonwealth that a new trial is not
warranted on the basis of after-discovered evidence, unless it
could not have been discovered until after the trial despite
reasonable diligence, is not used for merely cumulative or
impeachment purposes, and is of such a nature that it would
compel a different outcome.
Commonwealth. v. Albrecht, 720 A.2d 693, 707 (Pa. 1998) (citations
omitted); See also, Commonwealth v. Reid, 99 A.3d 470, 505 (Pa. 2014).
Regarding Appellant’s request for funds to hire a private investigator,
the PCRA court stated,
Because Petitioner’s case is non-capital, he was required to meet
the high threshold of “exceptional circumstances” to warrant
further investigation at this stage in his case. In support of his
argument to obtain funds so that he may hire a private
investigator, Petitioner merely filed a poorly written document
wherein he explained that he is “penniless” and seeks funds to
hire a private investigator “to assistance [sic] him in his gathering
of evidence for the appeal.” Petitioner contends that he is
“litigating against the Commonwealth, who have unlimited
resources and connections that’s unreachable and Appellant has
no resources and no connections.” He then goes on to state that
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“there is fraud being committed by the courts and an [sic]
conspiracy to violate and deny him his constitutional rights to due
process, equal protection, prohibition from cruel and unusal [sic]
punishment, compulsory process, and freedom of speech.”
Petitioner’s arguments are overly broad, unsupported, hold no
merit, and unquestionably do not reach “exceptional
circumstances” threshold. As such, his request to receive funds
to hire a private investigator was rightfully denied.
PCRA opinion, at 10 (Citations to the record omitted).
We discern no abuse of discretion in the PCRA court’s determination to
deny Appellant’s generic request for funds to hire an investigator to gather
evidence and witnesses in his favor. See Albrecht, 720 A.2d at 707-708
(appellant’s petition for funds to explore application of new fire investigation
techniques to evidence admitted at his trial was found to be insufficient where
appellant did not demonstrate an expert was available or establish by factual
analysis or argument that the trial court’s denial of funds prejudiced him).
Appellant next argues the PCRA court erred by not permitting him to
have audio recordings of his trial and sentencing transcripts because he
alleged there were errors in the transcripts. Appellant’s Brief, at 10-12.
However, Appellant did not raise this issue in his PCRA petition, or before the
PCRA court, therefore, this issue is waived.9
Regardless of the reasons for [an a]ppellant’s belated raising of
[an] issue, it is indisputably waived. We have stressed that a
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9 Appellant, in his PCRA petition, did raise as an issue, “appellate counsel
failure to bring right to perfect this appeal was violated, by tampering,
alteration, and/or deletion of his trial transcripts.” PCRA Petition, 6/28/19.
However, a fair reading of this issue rings of ineffective assistance of counsel
and not the discovery issue Appellant presents to this Court.
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claim not raised in a PCRA petition cannot be raised for the first
time on appeal. We have reasoned that permitting a PCRA
petitioner to append new claims to the appeal already on review
would wrongly subvert the time limitation and serial petition
restrictions of the PCRA. The proper vehicle for raising this claim
is thus not the instant appeal, but rather is a subsequent PCRA
petition.
Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (internal
brackets, citations, and quotation marks omitted); accord Commonwealth
v. Reid, 99 A.3d 470, 494 (Pa. 2014). Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a).
Even if the issue were not waived, Appellant would not be entitled to
relief. Appellant alleges that there were alterations of the typewritten
transcripts and that the transcripts omitted statements that would have
supported his claims. Appellant’s Brief, at 10. However, Appellant does not
specify any of the alleged errors, nor has he attempted to show that he meets
the “exceptional circumstances” applicable to requests for discovery applicable
to the PCRA stage of proceedings. See Watley, 153 A.3d at 1048;
Pa.R.Crim.P. 902(E)(1).
Evidentiary hearing
Appellant’s next two issues involve the PCRA court’s dismissal of his
PCRA petition without an evidentiary hearing. First, Appellant argues that the
PCRA court erred by not holding a hearing regarding subject matter
jurisdiction. Appellant argues that the trial court did not have subject matter
jurisdiction to hear his trial or sentence him because the criminal Information
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stated that he was charged with Aggravated Assault, graded as a felony of the
first degree, but he was found guilty of Aggravated Assault, graded as a felony
of the second degree.
... a PCRA petitioner is not automatically entitled to an evidentiary
hearing. We review the PCRA court's decision dismissing a
petition without a hearing for an abuse of discretion.
[T]he right to an evidentiary hearing on a postconviction petition
is not absolute. It is within the PCRA court's discretion to decline
to hold a hearing if the petitioner's claim is patently frivolous and
has no support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted and brackets in original).
Appellant’s argument is without merit because the PCRA court did hold
a hearing and addressed Appellant’s issue regarding the subject matter
jurisdiction of the trial court. See N.T., 1/27/20, at 5-14. At the January 27,
2020 hearing, the PCRA court addressed Appellant’s motion challenging the
subject matter jurisdiction of the trial court and heard argument from
Appellant. N.T., 1/27/20, at 11-14. Moreover, the PCRA court determined,
Subject matter jurisdiction of this case was properly assigned to
the First Judicial District of Pennsylvania, Court of Common Pleas,
because all actions from which the felony and misdemeanor
offenses were charges, occurred within the City and County of
Philadelphia. The Bills of Information that were filed in the instant
matter and which were reviewed on the record by this court before
trial contained sufficient specificity and provided due notice to
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Appellant of the offenses charged as constitutionally required. No
improper amendment of the Bills of Information occurred.
Petitioner claims that “there was an unconstitutional amendment
charging a different grade of Aggravated Assault.” Petitioner’s
averment is simply not true. Petitioner was charged with and
convicted of second-degree Aggravated Assault. As Petitioner was
not convicted of any first-degree felony charge, no prejudice can
be asserted.
Moreover, this exact issue was previously litigated on direct
appeal and is therefore moot.
PCRA opinion, at 15.
Before Appellant was arraigned, the trial court permitted the
Commonwealth to amend the bills of information to reflect that Appellant was
charged with Aggravated Assault, 18 Pa.C.S. § 2702(a) generally, which
encompasses subsections graded as felonies of the first degree and second
degree. N.T., 3/15/19, at 30-32; 18 Pa.C.S. § 2702(c) (Aggravated assault
under subsection (a)(1), (2) and (9) is a felony of the first degree; Aggravated
assault under subsection (a)(3), (4), (5), (6), (7) and (8) is a felony of the
second degree.). Appellant was then arraigned on Aggravated Assault §
2702(a), generally, including subsections which include felonies of the first
and second degree. N.T., 3/15/19, 42. Therefore, we additionally find that
the PCRA court did not abuse its discretion in denying Appellant’s issue
regarding the subject matter jurisdiction of the trial court.10
____________________________________________
10The PCRA court also noted that this issue was waived as previously litigated.
Appellant could have challenged this issue as part of his direct appeal, and in
fact, this issue was included in his Rule 1925(b) statement on direct appeal,
however, was abandoned on appeal. See 42 Pa.C.S. § 9544(b) (“for purposes
(Footnote Continued Next Page)
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Appellant next challenges the PCRA court’s denial of an evidentiary
hearing regarding his ineffective assistance of counsel claims. However, as
discussed above, as Appellant’s claims regarding ineffective assistance of
counsel are being remanded to the PCRA court, therefore, we decline to
address this issue.
Sua sponte intervention by PCRA court
Appellant next argues that the PCRA court erred because it did not sua
sponte appoint standby counsel to help Appellant or sua sponte permit
Appellant to present his claims orally. This argument is without merit.
Appellant requested permission to proceed pro se. See PCRA petition,
6/21/19. The PCRA court held a hearing pursuant to Grazier and conducted
a colloquy in accordance with Grazier. N.T., 10/3/19, generally. Importantly,
Appellant did not request to have standby counsel appointed. The PCRA court
was under no obligation to sua sponte permit Appellant to present his claims
to the court orally or appoint standby counsel. Appellant’s issue is without
merit.
Order vacated in part and remanded with instructions. The PCRA court
shall permit Appellant to amend his PCRA petition with regard to the
ineffective assistance of counsel claims relating to trial and appellate counsel
that Appellant raised in his PCRA petition and listed above. Order affirmed in
____________________________________________
of [the PCRA], 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 postconviction proceeding.”).
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part. The July 21, 2021 and August 25, 2021 applications for relief, filed by
Appellant, are DENIED. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2021
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