Com. v. Toomer, P. ( 2021 )


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  • J-A28040-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    PHILLIP TOOMER                             :
    :
    Appellant               :   No. 985 WDA 2019
    Appeal from the PCRA Order Entered June 10, 2019
    In the Court of Common Pleas of Washington County Criminal Division at
    No(s): CP-63-CR-0002458-2002
    BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
    MEMORANDUM BY McCAFFERY, J.:                           FILED: MARCH 12, 2020
    Philip Toomer (Appellant) appeals from the order entered in the
    Washington County Court of Common Pleas denying, as untimely, his second
    petition filed pursuant to the Post Conviction Relief Act (PCRA).1    Appellant
    seeks relief from the judgment of sentence imposed after his jury conviction
    of one count of third degree murder, and two counts each of attempted
    murder, aggravated assault, and recklessly endangering another person
    (REAP),2 in connection with an April 2002 shooting. Appellant contends the
    PCRA court erred in dismissing his second petition as untimely filed, and
    without first conducting an evidentiary hearing on his claims asserting the
    ineffective assistance of all prior counsel. For the reasons below, we affirm.
    ____________________________________________
    1   42 Pa.C.S. §§ 9541-9546.
    2   18 Pa.C.S. §§ 2502(c), 901(a), 2702, and 2705, respectively.
    J-A28040-20
    Appellant’s   convictions   relate   to   a   shooting   in   Monongahela,
    Pennsylvania, on the evening of April 15, 2002. Victims Jeffrey Harris and
    Gary Simms testified at trial. The third victim, Carlson Cook, died as a result
    of his injuries. See Commonwealth v. Toomer, 825 WDA 2005 (unpub.
    memo. at 1, 3) (Pa. Super. Dec. 8, 2006), appeal denied, 674 WAL 2006 (Jun.
    5, 2007). This Court summarized the evidence presented at Appellant’s jury
    trial in the decision affirming the judgment of sentence on direct appeal:
    Jeffrey Harris . . . testified that he was at DelRosa’s pizza
    shop in Donora earlier [on the evening of April 15, 2002]. Prior
    to encountering [Appellant] there, Mr. Harris received word that
    his cousin was robbed by one of [Appellant’s] associates. Mr.
    Harris mentioned the incident to [Appellant] in passing, and that
    was the extent of their interaction at DelRosa’s. When DelRosa’s
    closed at 11 p.m., Mr. Harris and [Gary] Simms went to Hitch’s
    Hut in Monongahela, where they met Carlson Cook.
    After a period of time, [Appellant] entered Hitch’s Hut with
    several other individuals. [Appellant] summoned Jeffery Harris
    outside, and he went outside with his friends Gary Simms and
    Carlson Cook. Immediately outside of Hitch’s Hut, [Appellant]
    confronted Jeffrey Harris about [Appellant’s] inability to make
    money selling drugs in the area. Although the discussion was not
    necessarily pleasant, the credible testimony provided by Jeffrey
    Harris indicated that no one in this group made any threatening
    gestures or comments toward [Appellant]. Regardless, at this
    point the owner of the bar came outside and asked the group to
    move their discussion down the street.
    When the group moved away from Hitch’s Hut and toward
    the area between the bar and First Federal Bank, Jeffrey Harris
    testified that he heard shots being fired from a close range
    somewhere behind him. He immediately ran toward the middle
    of the area between Hitch’s Hut and First Federal Bank. When
    Jeffrey Harris heard Carlson Cook following him into that area, he
    turned around to see Carlson Cook on all fours on the ground.
    Jeffrey Harris also saw [Appellant] standing out by the street near
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    the area between Hitch’s Hut and First Federal Bank, holding a
    gun.
    Gary Simms provided corroboration, testifying that, among
    other things, [Appellant] and Jeffrey Harris were talking outside
    of Hitch’s Hut about making money in Donora, but that it didn’t
    seem like a threatening situation. Neither Jeffrey Harris nor
    anyone else made any threatening comments or movements.
    When the owner requested [that] the group move along, Gary
    Simms suggested [that] they move down the sidewalk toward
    First Federal Bank. Mr. Simms testified that, while walking away
    from Hitch’s Hut, he saw [Appellant] reach under his t-shirt.
    Assuming he was reaching for a gun, Mr. Simms immediately ran
    for cover behind a concrete planter and he heard gunshots. When
    he turned around, he saw [Appellant] shooting toward him, Jeffery
    Harris and Carlson Cook, and saw Carlson Cook fall to the ground.
    Id. at 2
    -3 
    (citation omitted).
    The Commonwealth also presented evidence that eight “bullet casings
    and six . . . bullet fragments or strikes [were identified] in the area between
    Hitch’s Hut and First Federal Bank.” Toomer, 825 WDA 2005 (unpub. memo.
    at 1) (citation omitted). Moreover, three witnesses testified that they were in
    the vicinity at the time of the shooting and heard noises that sounded like
    firecrackers or popping. See
    id. at 2.
    None witnessed the actual shooting,
    but they all saw people disperse from the scene. See
    id. One witness, Jerry
    Maisano, testified that he “ran down to find Jeffrey Harris and Gary Simms —
    unarmed — attending to Carlson Cook in the area between Hitch’s Hut and
    First Federal Bank.”
    Id. at 2
    (citation omitted). As 
    noted supra
    , Cook died
    from his injuries. See
    id. at 3.
    At trial, Appellant testified in his own defense and claimed the shooting
    was in self-defense. He stated he was trying to explain the situation to Harris,
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    “that [he] had nothing to do with what was going on.” N.T. Trial, 9/13-16/04
    at 531. However, Harris “just looked angry.”
    Id. As they walked
    away from
    Hitch’s Hut, Appellant saw Harris “start[ ] to reach into his waist . . . like he
    was reaching for something[.]”
    Id. Appellant testified that
    he then “grabbed
    [his own] firearm,” but did not begin shooting until Harris “turned around and
    showed [him] that he had a gun in his hand and was about to aim at
    [Appellant].”
    Id. at 531-32.
    A jury trial was conducted before the Honorable Paul Pozonsky.         On
    September 26, 2004, the jury found Appellant guilty of third degree murder
    for the death of Cook, and two counts each of attempted murder, aggravated
    assault and REAP, with respect to Harris and Simms. Thereafter, on December
    13, 2004, the trial court sentenced him to an aggregate term of 35 to 70
    years’ imprisonment. Appellant was represented at trial and sentencing by
    private counsel, Joseph Hudak, Esquire. However, after sentencing, Joseph
    Zupancic, Esquire, entered his appearance and filed a post-sentence motion,
    challenging both the sentence imposed and trial counsel’s ineffectiveness.
    See N.T. Post-Sentence Motion, 3/4/05, at 2. The trial court denied the post-
    sentence motion, and Appellant filed a timely appeal. This Court affirmed the
    judgment of sentence on direct appeal, and, on June 5, 2007, the
    Pennsylvania Supreme Court denied Appellant’s petition for allocatur review.
    See Toomer, 825 WDA 2005; 674 WAL 2006.
    On July 18, 2008, Appellant filed a timely, pro se PCRA petition, raising
    a myriad of claims asserting the ineffective assistance of prior counsel. See
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    J-A28040-20
    Appellant’s Motion for Post Conviction Collateral Relief, 7/18/08, at 3a. Jeffrey
    Watson, Esquire was appointed to represent him. However, on November 21,
    2008, Attorney Watson filed a Turner/Finley3 “No Merit Letter.” See No Merit
    Letter, 11/21/08.          Attorney Watson did not seek to withdraw from
    representation at that time. The PCRA court dismissed Appellant’s petition on
    January 28, 2010, without first conducting an evidentiary hearing. 4 Attorney
    Watson filed a timely appeal to this Court, at which time he sought permission
    to withdraw from representation pursuant to Turner/Finley. On September
    1, 2010, we affirmed the order denying PCRA relief, and granted Attorney
    Watson’s petition to withdraw. Appellant’s subsequent petition for allocatur
    review    was     denied     by   the    Pennsylvania   Supreme   Court.    See
    Commonwealth v. Toomer, 207 WDA 2010 (unpub. memo) (Pa. Super.
    Sep. 1, 2010), appeal denied, 530 WAL 2010 (Pa. Apr. 4, 2011).
    ____________________________________________
    3Commonwealth v. Turner, 
    544 A.2d 927
    (Pa. 1988); Commonwealth
    v. Finley, 
    550 A.2d 213
    (Pa. Super. 1988) (en banc).
    4 The PCRA court complied with Pa.R.Crim.P. 907, and provided Appellant with
    proper notice of its intent dismiss the petition. The court originally provided
    Rule 907 notice on December 11, 2008, relying solely on counsel’s no-merit
    letter. However, no final order was ever entered. The court then provided a
    second Rule 907 notice on December 24, 2009, again providing no reasoning
    for its dismissal. Thereafter, on January 7, 2010, the PCRA court issued a
    third Rule 907 notice, which included a detailed explanation of its decision to
    forgo an evidentiary hearing. See Notice of Dismissal, 1/7/10, at 1-10. When
    Appellant failed to respond within the requisite 20-day period, the PCRA court
    entered the order dismissing the petition on January 28, 2010.
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    On May 2, 2011, Appellant filed the present PCRA petition, pro se.5 On
    March 6, 2012, Fred Rabner, Esquire, entered his appearance. On August 13,
    2012, the case was reassigned to the Honorable Katherine B. Emery after
    Judge Pozonsky retired. Attorney Rabner filed an amended petition on August
    24, 2012, asserting the ineffectiveness of all prior counsel. Attorney Rabner’s
    first issue focused on the proposed testimony of a private investigator that a
    witness who was present at the shooting, Alicia Tosi, told the investigator that
    the three victims were armed on the night of the incident, and that she
    removed their guns from the crime scene before police arrived.                 See
    Appellant’s Amended Post Conviction Relief Act Petition, 8/24/12, at 4.
    Attorney Rabner explained that the trial court precluded the testimony of the
    private investigator as hearsay, that direct appeal counsel was ineffective for
    failing to raise this issue on direct appeal, and that PCRA counsel was
    ineffective for failing to raise the ineffectiveness of direct appeal counsel. 6 See
    id. Second, Attorney Rabner
    asserted all prior counsel were ineffective for
    failing to present evidence that all three victims were armed on the night of
    the incident, and the police recovered bullets from their guns at the scene of
    the crime. See
    id. at 7.
    ____________________________________________
    5   Appellant’s May 2011 pro se petition is not included in the certified record.
    6 This claim is belied by the record. Although the trial court precluded
    Appellant from impeaching Tosi with the investigator’s statement, which she
    did not adopt or sign, the investigator testified during Appellant’s case-in-chief
    and stated Tosi told him “she knew they all had guns, but she did not see any
    guns.” N.T., Trial, 322-23, 511.
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    On July 22, 2013, Attorney Rabner filed a motion to amend the PCRA
    petition, which the PCRA court granted, nearly two years later, on May 20,
    2015. Thereafter, Attorney Rabner filed a second amended PCRA petition,
    raising an additional claim concerning the “cloud of suspicion” surrounding the
    judge who presided over Appellant’s jury trial, including allegations that Judge
    Pozonsky had tampered with evidence in unrelated cases.7 See Appellant’s
    Amended Second Post Conviction Relief Act Petition at 11-12. The PCRA court
    scheduled an evidentiary hearing for March 22, 2017.
    The evidentiary hearing was rescheduled several times. On June 22,
    2018, present counsel, David Regoli, Esquire, entered his appearance. On
    October 9, 2018, Attorney Regoli filed a motion for leave to file another
    amended PCRA petition. The PCRA court granted the motion, and Attorney
    Regoli filed a third amended petition on November 28, 2018. He incorporated
    the issues raised in the prior petitions, and raised a new claim: trial counsel
    was ineffective for failing to interview eyewitness Vernon Majors and call him
    at trial, and both direct appeal and PCRA counsel were ineffective for failing
    to raise trial counsel’s ineffectiveness.        Appellant’s Third Amended Post
    Conviction Relief Act Petition, 11/28/18, at 3 (unpaginated). Attorney Regoli
    averred that he first learned of Majors’ existence after he entered his
    ____________________________________________
    7 The petition averred Judge Pozonsky was the subject of a grand jury
    investigation based on allegations he had been “stealing cocaine and
    tampering with evidence which was kept in his judicial chambers on numerous
    cases.” Appellant’s Amended Second Post Conviction Relief Act Petition,
    7/19/16, at 13.
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    appearance, and sent an investigator to interview Majors on October 13, 2018.
    Id. at 2
    -3
    . Attached to the petition is a signed statement by Vernon Majors,
    dated October 13, 2018, in which he avers the following:
    I don’t remember the date, but I was never interviewed by the
    police when this thing happened at the bar. I had been outside
    that night when this happened and the police that came there
    talked to me. I told them that I didn’t know nothing and that was
    it. After that night, no police or detectives or anyone else has
    talked to me about that night. I never talked to no defense
    attorney or investigators about it.
    The night this happened, I was outside and I was right near
    [Appellant] and I saw one of the other guys lift up his shirt like he
    had a gun. When he did that, I just turned around and took off
    running. As I was running away I heard some gun shots but I
    never looked back. I didn’t see who was shooting or any of that.
    Id., Exhibit B, Report
    of Investigative Interview (Vernon Majors).
    At some point, the case was transferred to the Honorable Gary Gilman.
    On December 21, 2018, the PCRA court issued Pa.R.Crim.P. 907 notice of its
    intent to dismiss Appellant’s “multiple Amended Second PCRA Petitions” as
    untimely filed, without first conducting an evidentiary hearing. See Order,
    12/21/18, at 1; Pa.R.Crim.P. 907. Appellant filed a response on January 9,
    2019, asserting his claim was not time-barred and requesting an evidentiary
    hearing.    Appellant’s Response to      Order & Notice, 1/9/19, at 3-7
    (unpaginated). The Commonwealth filed a response to Appellant’s petition,
    stating it had no objection to an evidentiary hearing. See Commonwealth’s
    Response to Post Conviction Relief Act Petition, 3/1/19, at 2 (unpaginated).
    The PCRA court conducted argument on May 23, 2019, but, thereafter, on
    June 10, 2019, entered an order dismissing Appellant’s petition as untimely
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    filed, without conducting a full evidentiary hearing.           This timely appeal
    follows.8
    Appellant raises two questions for our review:
    I. Did the PCRA Court err in dismissing Appellant’s Second PCRA
    Petition on the basis that said filing was untimely?
    II. Did the PCRA Court err in dismissing Appellant’s Second PCRA
    Petition without holding an evidentiary hearing to address genuine
    issues of material fact raised in said Petition?
    Appellant’s Brief at vi.
    Our standard of review of an order denying PCRA relief is well-
    established.     “[W]e examine whether the PCRA court’s determination ‘is
    supported by the record and free of legal error.’”              Commonwealth v.
    Mitchell,    
    141 A.3d 1277
    ,     1283–84    (Pa.   2016)   (citation   omitted).
    Furthermore, “a PCRA petitioner is not automatically entitled to an evidentiary
    hearing.” Commonwealth v. Miller, 
    102 A.3d 988
    , 992 (Pa. Super. 2014).
    Rather,
    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.
    Id. (citation omitted). ____________________________________________
    8The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement
    of errors complained of on appeal.
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    The statutory requirement that a PCRA petition be filed within one year
    of the date the judgment of sentence becomes final is a “jurisdictional
    deadline” and a PCRA court may not ignore the untimeliness of a petition to
    address the merits of the issues raised therein.           Commonwealth v.
    Whiteman, 
    204 A.3d 448
    , 450 (Pa. Super. 2019), appeal denied, 
    216 A.3d 1028
    (Pa. 2019). See also 42 Pa.C.S. § 9545(b)(1).
    Here, Appellant’s judgment of sentence was final on September 4, 2007
    — 90 days after the Pennsylvania Supreme Court denied allocatur review of
    Appellant’s direct appeal, and Appellant declined to petition the United States
    Supreme Court for a writ of certiorari.9 See 42 Pa.C.S. § 9545(b)(3) (for
    purpose of PCRA timeliness provisions, “a judgment becomes final at the
    conclusion of direct review, including discretionary review in the Supreme
    Court of the United States . . . or at the expiration of time for seeking the
    review”); U.S. Sup. Ct. R. 13(1) (“[A] petition for a writ of certiorari to review
    a judgment in any case, . . . is timely when it is filed with the Clerk of this
    Court within 90 days after entry of the judgment.”). Accordingly, his current
    petition, originally filed nearly four years later (May 2, 2011), is facially
    untimely. See 42 Pa.C.S. § 9545(b)(1).
    ____________________________________________
    9The 90th day was Monday, September 3, 2007, Labor Day, a legal holiday.
    Therefore, Appellant had until Tuesday, September 4th to file a petition for
    certiorari. See U.S. Sup. Ct. R. 30(1) (for computation of time, last day shall
    not be included if it is a federal legal holiday).
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    Nevertheless, an untimely petition may be considered if one of the three
    timeliness exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). One of
    these exceptions — the newly discovered facts exception — provides relief if
    a petitioner pleads and proves “the facts upon which the claim is predicated
    were unknown to the petitioner and could not have been ascertained by the
    exercise of due diligence[.]”         42 Pa.C.S. § 9545(b)(2)(ii).      At the time
    Appellant filed his PCRA petitions, Appellant was required to file a petition
    invoking this exception “within 60 days of the date the claim could have been
    presented.”10 42 Pa.C.S. § 9545(b)(2).
    In his first issue, Appellant suggests several pathways to overcome the
    untimeliness of his petition. First, Appellant insists that “[d]ue to the layered
    ineffectiveness of counsel . . . [his] second PCRA Petition was in fact timely
    filed.” Appellant’s Brief at 1. Relying on Commonwealth v. Rivera, 
    816 A.2d 282
    (Pa. Super. 2003), Appellant contends his first petition was “not
    properly reviewed because . . .                PCRA counsel [failed] to conduct an
    investigation into the case or . . . claims of ineffective assistance of trial and
    appellate counsel prior to filing a No Merit Letter.”         Appellant’s Brief at 5.
    Thus, he maintains his “second PCRA petition does not qualify as a ‘second or
    subsequent’ petition subject to the [PCRA’s] time restraints.”
    Id. at 6.
    Further, Appellant emphasizes that the second petition was his first
    ____________________________________________
    10 This subsection was amended in 2018 to provide petitioners with one year
    to invoke a timeliness exception. However, the amendment applies only to
    “claims arising on Dec. 24, 2017 or thereafter.” 42 Pa.C.S. § 9545(b)(2).
    - 11 -
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    opportunity to raise these claims, because he could not challenge Attorney
    Watson’s ineffectiveness until his first PCRA appeal had concluded. See
    id. at 7.
    Similarly,   Appellant   also   asserts   the   prohibition   against   hybrid
    representation precluded him from raising Attorney Watson’s ineffectiveness
    while Attorney Watson still represented him. Appellant’s Brief at 11. Thus,
    Appellant was not permitted to allege Attorney Watson’s ineffectiveness in
    response to the first PCRA court’s Rule 907 notice — although Attorney Watson
    filed a no merit letter, he did concomitantly file a petition to withdraw. See
    id. Alternatively, Appellant insists
    his claim meets the newly discovered fact
    exception to the PCRA’s timing requirements.               Appellant’s Brief at 13.
    Appellant maintains that while “Majors’ identity was not a secret,” the “fact”
    Majors would have testified that he saw one of the victims “lift up his shirt like
    he had a gun[,]” was previously unknown since none of Appellant’s prior
    counsel interviewed Majors. See
    id. at 13-14;
    Appellant’s Third Amended
    Post Conviction Relief Act Petition at Exhibit B. Appellant acknowledges that
    “PCRA counsel’s ineffectiveness cannot be advanced as a newly discovered
    ‘fact’” under Section 9545(b)(1)(ii).      Appellant’s Brief at 14.     However, he
    argues that when prior counsel’s ineffectiveness results in the “functional
    equivalent of . . . having no counsel at all,” such that a petitioner is
    “completely deprived . . . of PCRA review[,]” the Pennsylvania Supreme Court
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    has granted a “limited extension of the one-year time requirement.”
    Id. at 14-15,
    citing Commonwealth v. Peterson, 
    192 A.3d 1123
    , 1133 (Pa. 2018).
    We begin with the pronouncement of the Pennsylvania Supreme Court
    in Commonwealth v. Robinson, 
    139 A.3d 178
    (Pa. 2016): “[T]here is no
    statutory exception to the PCRA time-bar applicable to claims alleging the
    ineffectiveness of post-conviction counsel.”
    Id. at 186.
      In that case, like
    here, the petitioner filed a timely, first PCRA petition. See
    id. at 180.
    The
    PCRA court denied relief, and because the petitioner had been sentenced to
    death, the order was appealed directly to the Supreme Court, which affirmed.
    Id. at 181, 182
    n.5. More than a decade after his judgment of sentence was
    final, the petitioner filed a second PCRA petition, asserting the ineffective
    assistance of first PCRA counsel.
    Id. at 181.
    The PCRA court denied the
    petition as untimely filed, and the petitioner appealed once again directly to
    the Supreme Court. See
    id. at 182.
    On review, our Supreme Court declined to create an “equitable
    exception to the PCRA’s timeliness requirements.” 
    Robinson, 139 A.3d at 180
    .   The Court explained that PCRA’s “statutory time-bar implicates the
    court’s very power to adjudicate a controversy and prohibits a court from
    extending filing periods except as the statute permits.”
    Id. at 185.
    Thus, the
    only exceptions to the PCRA’s statutory time-bar are those outlined in Section
    9545(b)(1) — and “there is no statutory exception . . . applicable to claims
    alleging the ineffectiveness of post-conviction counsel.” See
    id. at 185-86.
    The Court stated: “The fact that [the petitioner] frames his issues as alleging
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    the effective assistance of PCRA counsel simply does not overcome the court’s
    lack of jurisdiction to address them.”
    Id. at 186.
    Thus, Appellant’s first argument — that his layered ineffectiveness claim
    somehow overcomes the timing requirements — fails. In support of his claim,
    Appellant relies on Commonwealth v. Allen, 
    732 A.2d 582
    (Pa. 1999),
    Commonwealth v. Ligons, 
    971 A.2d 1125
    (Pa. 2009) (plurality), and
    Rivera.   First, we agree with the PCRA court that Allen is distinguishable
    because the second PCRA petition at issue in that case was filed before the
    1995 enactment of the Section 9545 timing provisions. See Order, 12/21/18,
    at 7; 
    Allen, 732 A.2d at 141
    (second PCRA filed in November of 1994); 1995,
    Nov. 17, P.L. 1118, No. 32 (Spec. Sess. No. 1), § 1. Thus, the petitioner was
    not required to file his petition within one year of the date his judgment of
    sentence was final, nor was he required to plead and prove one of the
    enumerated statutory exceptions to overcome the untimeliness.
    We also conclude Ligons and Rivera provide no basis for relief. The
    Supreme Court’s plurality decision in Ligons involved a challenge to PCRA
    counsel’s ineffectiveness on appeal from a timely-filed first PCRA petition.
    See 
    Ligons, 971 A.2d at 1135-36
    , 1140-41 (explaining “the only way to
    afford a capital PCRA petitioner an opportunity to enforce his right to effective
    PCRA trial counsel is to permit the filing of such claims on appeal from the
    denial of PCRA relief”). Here, Appellant’s ineffectiveness claims are raised in
    an untimely filed second petition.
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    Moreover, while Rivera also involved an untimely second PCRA petition,
    the PCRA court in that case “acknowledged [the petitioner] was never
    advised of his right to appeal the dismissal of his first PCRA petition.” See
    
    Rivera, 816 A.2d at 287
    (emphasis added). Thus, the PCRA court granted
    new counsel an extension of time to file an amended petition.
    Id. On appeal, this
    Court determined that, in light of the PCRA court’s apparent grant of nunc
    pro tunc relief, we would treat his appeal “as an appeal from the denial of his
    first PCRA petition[.]” See
    id. at 287.
    In the present case, however, there is
    no allegation Appellant was not informed of his right to appeal the denial of
    his first PCRA petition; indeed, he did appeal from that order. Accordingly,
    Rivera is procedurally distinguishable.11
    Appellant also contends that he was precluded from challenging
    Attorney Watson’s ineffectiveness because Attorney Watson continued to
    represent him on appeal from the denial of his first petition. See Appellant’s
    Brief at 6-8. It is well-established that a petitioner has no right to hybrid
    representation.     Commonwealth v. Ellis, 
    626 A.2d 1137
    , 1139-41 (Pa.
    1993). However, in Commonwealth v. Pitts, 
    981 A.2d 875
    (Pa. 2009), the
    Supreme Court made clear that, in order to preserve a challenge to PCRA
    counsel’s ineffectiveness or the adequacy of a “no-merit” letter, a petitioner
    must file a pro se response to either the no-merit letter or the PCRA court’s
    ____________________________________________
    11 We note, too, Rivera was filed 13 years before the Supreme Court’s
    decision in Robinson.
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    Rule 907 notice of intent to dismiss.
    Id. at 879
    n.3. See also
    id. at 880
    n.4
    (“[Petitioner’s] failure, prior to his PCRA appeal, to argue PCRA counsel’s
    ineffectiveness . . . results in waiver of the issue of PCRA counsel’s
    ineffectiveness[;] he could have challenged PCRA counsel’s stewardship after
    receiving counsel’s withdrawal letter and the notice of the PCRA court’s intent
    to dismiss his petition pursuant to Pa.R.Crim.P. 907, yet he failed to do so.”).
    Here, Appellant should have raised prior PCRA counsel’s ineffectiveness in
    response to the PCRA court’s Rule 907 notice. His failure to do so has waived
    these claims for appeal.12
    We also reject Appellant’s assertion that he could not have responded
    to the PCRA court’s “no-merit” letter because Attorney Watson did not file a
    concomitant motion to withdraw. Citing a non-precedential decision of this
    Court, Appellant maintains that “[w]hen an attorney does not petition to
    withdraw at the same time the court issues a Rule 907 notice, the failure of
    the petitioner himself to respond does not act as a waiver of his claim for
    review.” Appellant’s Brief at 11, citing Commonwealth v. Potter, 2789 EDA
    2010 (unpub. memo. at 16-17 n.6) (Pa. Super. 2013). First, as noted above,
    Potter is not a published decision, and therefore has no precedential
    ____________________________________________
    12 In his brief, Appellant avers that he “did make some attempts to address
    the Rule 907 notices.” Appellant’s Brief at 12. He refers to documents that
    were purportedly attached to Attorney Rabner’s amended petition, although
    they are not included in the certified record on appeal. Nevertheless, despite
    these alleged “attempts,” it is evident Appellant never actually filed a response
    to the Rule 907 notice with the PCRA court. Thus, we are precluded from
    addressing such claims on appeal. See 
    Pitts, 981 A.2d at 880
    n.4.
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    authority. See Pa. Super. Ct. IOP § 65.37(B) (“An unpublished memorandum
    decision filed prior to May 2, 2019, shall not be relied upon or cited by a Court
    or a party in any other action or proceeding” except when relevant under law
    of the case, or decision involves same defendant in criminal action).
    Second, the facts in Potter are distinguishable from those sub judice.
    In Potter, PCRA counsel did not file either a petition to withdraw or a no-merit
    letter; rather PCRA counsel filed both a motion for a new trial and an amended
    PCRA petition. See Potter, 2789 EDA 2010 (unpub. memo. at 5-6). In any
    event, this Court concluded Appellant preserved his challenge to PCRA
    counsel’s ineffectiveness by raising the claim in a motion seeking to dismiss
    counsel from representation.
    Id. at 16-17
    n.6.   Here, Appellant failed to
    challenge Attorney Watson’s ineffectiveness in any manner before the PCRA
    court.13 Thus, no relief is warranted.
    Appellant alternatively argues that his ineffectiveness claim satisfies the
    newly discovered fact exception to the PCRA’s timing requirement set forth at
    ____________________________________________
    13 In Commonwealth v. Smith, 
    121 A.3d 1049
    (Pa. Super. 2015), a panel
    of this Court held that the fact a petitioner was represented by the allegedly
    ineffective counsel at the time Rule 907 notice was provided did not excuse
    the petitioner’s obligation to “complain about PCRA counsel’s stewardship.”
    Id. at 1055.
    While the case law as it now stands makes it difficult, if not
    impossible, for a petitioner to challenge the ineffective assistance of first PCRA
    counsel, we note that the Pennsylvania Supreme Court recently granted
    allocatur review in another appeal to consider whether it should “devise a
    mechanism for the enforcement of the enforceable right to effective counsel
    in a first PCRA proceeding, when the current mechanism is not adequate to
    the enforcement of that important right[.]” See Commonwealth v. Bradley,
    230 EAL 2020 (Pa. Dec. 23, 2020).
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    Section 9545(b)(1)(ii). As 
    noted supra
    , this exception permits the filing of a
    PCRA petition after the one-year limitation period when the petitioner pleads
    and proves “the facts upon which the claim is predicated were unknown to the
    petitioner and could not have been ascertained by the exercise of due
    diligence[.]” 42 Pa.C.S. § 9545(b)(2)(ii).
    Here, the fact that Majors was a witness to the shooting was not
    unknown to Appellant or Attorney Hudak at the time of trial. Indeed, several
    witnesses testified that Majors was present with Appellant at the time of the
    shooting.   See N.T., 9/13-16/04, at 230 (Harris), 270, 303 (Simms), 480
    (Monongahela City Police Officer Jason Baumgard).            Indeed, Appellant
    recognizes that “Majors’ identity was not a secret,” but insists there was no
    way for him “to have known what Majors would have said [at trial], because
    he was never interviewed by any of [Appellant’s] counsel.” Appellant’s Brief
    at 13-14. Moreover, he asserts: “As to due diligence, [Appellant] has been
    incarcerated since his arrest and his ability to communicate and investigate
    the facts in his case are at most barely minimal.”
    Id. at 14.
      Rather, he
    maintains he “has suffered from his prior counsel’s lack of effort.”
    Id. Thus, Appellant’s claim
    focuses on the dereliction of all prior counsel.
    It is well-settled a claim that prior counsel rendered ineffective
    assistance “is not the type of after-discovered evidence encompassed by”
    Section 9545(b)(1)(ii). Commonwealth v. Gamboa-Taylor, 
    753 A.2d 780
    ,
    785 (Pa. 2000). Nevertheless, the Supreme Court has carved out a limited
    exception when PCRA counsel’s action or inaction completely deprived the
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    J-A28040-20
    petitioner of review of their collateral claims raised in a first PCRA petition.
    See 
    Peterson, 192 A.3d at 1132
    (“[W]e we conclude that Counsel’s untimely
    filing of [a] first PCRA petition constituted ineffectiveness per se, as it
    completely foreclosed [the petitioner] from obtaining review of the collateral
    claims set forth in his first PCRA petition.”).
    In Commonwealth v. Bennett, 
    930 A.2d 1264
    (Pa. 2007), the
    Supreme Court considered whether the fact that first PCRA counsel failed to
    file a brief in this Court following an appeal from the denial of relief constituted
    an “unknown fact” under Subsection (b)(1)(ii), which would excuse the
    untimely filing of a second PCRA petition.
    Id. at 1272.
    In concluding that it
    did, the Supreme Court distinguished Gamboa-Taylor and its progeny as
    “situations when PCRA counsel had allegedly ineffectively narrowed the
    class of claims by not including all of the viable claims in the first petition.”
    Id. However, the Court
    held:
    Those cases . . . have no relevance when the claim emanates from
    the complete denial of counsel. Rather, in such instances, the
    United States Supreme Court mandates the presumption of
    prejudice because the process itself has been rendered
    “presumptively unreliable” under the Sixth Amendment.
    Id. at 1273
    (citation omitted and emphasis added). Thus, the Bennett Court
    opined:
    Consistent with this jurisprudence, this Court has recognized a
    distinction between situations in which counsel has narrowed the
    ambit of appellate review by the claims he has raised or foregone
    versus those instances, as here, in which counsel has failed to file
    an appeal at all. To this end, we have repeatedly indicated that
    the failure to file a requested direct appeal or a 1925(b) statement
    in support thereof is the functional equivalent of having no counsel
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    J-A28040-20
    at all. In such instances, the deprivation requires a finding of
    prejudice. Accordingly, following our prior case law, we hold that
    the analysis set forth in Gamboa–Taylor and subsequent case
    law does not apply to situations when counsel abandons his
    client for purposes of appeal. Additionally, allowing such
    claims to go forward would not eviscerate the time requirements
    crafted by the Legislature. Rather, subsection (b)(1)(ii) is a
    limited extension of the one-year time requirement under
    circumstances when a petitioner has not had the review to
    which he was entitled due to a circumstance that was
    beyond his control.
    Id. at 1273
    (some emphases added and citations omitted). Accordingly, the
    Court remanded the case to this Court for consideration of whether the fact
    that prior counsel had failed to file a brief was discoverable by the petitioner
    if he had acted with due diligence. See
    id. at 1275.
    Recently, in Peterson, the Supreme Court concluded that “prior
    counsel’s negligence per se in filing an untimely [first] PCRA petition
    constitute[d] adequate grounds to permit the filing of a new PCRA petition”
    pursuant to the newly discovered facts exception. 
    Peterson, 192 A.3d at 1125
    (emphasis supplied).        Similar to counsel’s failure to file a brief in
    Bennett, the Peterson Court reasoned “[c]ounsel’s untimely filing of [the
    petitioner’s] first PCRA petition . . . completely deprived [the petitioner] of any
    consideration of his collateral claims under the PCRA.”
    Id. at 1130.
    Thus, the
    Court determined the petitioner properly invoked the newly discovered facts
    exception “to permit the filing of his second PCRA petition beyond the one-
    year time bar.”
    Id. at 1132.
    See also Commonwealth v. Rosado, 
    150 A.3d 425
    , 434 (Pa. 2016) (holding counsel’s filing of a brief that “raises only
    waived issues . . . is . . . akin to failing to file document perfecting an appeal”).
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    J-A28040-20
    Here, Appellant insists “Attorney Watson’s decision to file [a] No Merit
    Letter constituted ineffectiveness per se, and acted as a functional equivalent
    of [Appellant] having no counsel at all, because it completely deprived
    [Appellant] of PCRA review.” Appellant’s Brief at 15. We disagree. Attorney
    Watson’s “no-merit” letter did not “completely deprive [Appellant] of any
    consideration of his collateral claims under the PCRA.” See 
    Peterson, 192 A.3d at 1130
    . Indeed, as the Bennett Court noted, “the federal constitutional
    standard guiding claims of appellate counsel’s ineffectiveness . . . allow[s]
    counsel to choose among nonfrivolous claims and select the best issues for
    purposes of appeal.”    
    Bennett, 930 A.2d at 1272-73
    .       Under Appellant’s
    reasoning, a petitioner could assert PCRA counsel’s ineffectiveness every time
    counsel files a Turner/Finley no-merit letter and petition to withdraw.
    In the present case, although Attorney Watson filed a “no-merit” letter,
    this Court still conducted a review of the “myriad of ineffectiveness claims
    against trial and direct appeal counsel” raised in Appellant’s pro se petition,
    before concluding Appellant was entitled to no relief. See Toomer, 207 WDA
    2010 (unpub. memo. at 4, 6).          Accordingly, we conclude Appellant’s
    allegations “assert claims of ineffectiveness for partial deprivations of
    appellate review, i.e., attorney errors in narrowing the issues for review,
    [rather than] claims of ineffectiveness resulting in complete deprivations of
    appellate review, i.e., attorney errors that resulted in petitioners being
    dispossessed of any opportunity for appellate review.” See 
    Peterson, 192 A.3d at 1129
    (2018). Accordingly, no relief is warranted.
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    J-A28040-20
    Because Appellant’s petition was untimely filed, the PCRA court had no
    jurisdiction to conduct an evidentiary hearing on Appellant’s claim.       See
    
    Whiteman, 204 A.3d at 450
    . Therefore, we need not address Appellant’s
    second issue on appeal.
    Thus, we agree with the ruling of the PCRA court that Appellant’s petition
    was untimely filed, and Appellant has failed to prove the applicability of one
    of the time for filing exceptions. Consequently, we affirm the order on appeal.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/12/2021
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