Com. v. Adams, C.

J-S42034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER CHARLES ADAMS, SR.
Appellant No. 1692 WDA 2015
Appeal from the PCRA Order September 16, 2015
in the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0002035-2014
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED: August 24, 2016
Appellant, Christopher Charles Adams, Sr., appeals pro se from the
order entered in the Westmoreland County Court of Common Pleas denying
his first petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 Appellant claims (1) defense counsel was ineffective in failing to
investigate his case prior to pursuing a negotiated plea or failing to ensure
the judge explained all of the elements of the charges prior to sentencing;
(2) PCRA counsel was ineffective in failing to address the issue of the
consent to search the vehicle; and (3) the prosecutor misrepresented
evidence. We affirm.
On July 2, 2014, Appellant entered a negotiated guilty plea to Count 1,
possession with intent to deliver, and Count 2, firearms not to be carried
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
J-S42034-16
without a license. He was sentenced to 3 to 6 years’ imprisonment for
possession with intent to deliver (methamphetamine)2 and a consecutive
term of 1 to 4 years’ imprisonment for firearms not to be carried without a
license.3 N.T. Guilty Plea Hr’g, 7/2/14, at 12. Appellant did not file a post-
sentence motion4 or direct appeal. On January 2, 2015, Appellant filed a
timely pro se PCRA petition. Counsel was appointed and filed a motion to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), which the
PCRA court granted.
Appellant stated the facts of this case in his PCRA petition, reproduced
verbatim, as follows:
I was traveling on route 56 between Seward and Johnston
PA when I was pulled over for speeding in a 40 mph zone.
My drivers door window wouldnt go down so I asked
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 6106(a)(1). The Commonwealth waived the 5 year
mandatory minimum for the possession of a firearm. N.T. Guilty Plea Hr’g,
7/2/14, at 4-5, 12. No further penalty was imposed for possession of drug
paraphernalia, prohibited offensive weapons, possession of red phosphorous
with intent to manufacture controlled substance, operating a
methamphetamine lab, and possession of ephedrine.
4
Appellant did not file a post-sentence motion or a direct appeal to this
Court. We note that the oral guilty plea colloquy was supplemented by a
written guilty plea colloquy that Appellant signed. It apprised him of his
right to file a post-sentence motion or direct appeal, and the time limits for
doing so. Guilty Plea Pet., 7/2/14, at 4-5; see generally Commonwealth
v. Bedell, 954 A.2d 1209 (Pa. Super. 2008)
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permission to open door to hand officer Identification when
I inadvertently exposed a shotgun between door & seat. I
was removed from vehicle and placed into patrol car and
the officer began searching entire vehicle.
Mot. for Post Conviction Collateral Relief, 1/2/15, at 3. Appellant contended
there was no probable cause to stop his vehicle for speeding. Id. He
claimed counsel was ineffective for “making [him] feel threatened by the
law.” Id. Appellant averred “[t]he imposition of a sentence greater than
maximum as well as a unconstitutional mandatory minimum.” Id.On February 25, 2015, the PCRA court filed a notice of intent to
dismiss Appellant’s pro se PCRA petition. Appellant filed a pro se response
to the Rule 907 notice. We reproduce the response, in pertinent part, as
follows:
I am writing in response to my PCRA submitted pro se.
I am writing concerning a few key points. First I did not
give police consent to search vehicle, knowing what was
inside vehicle it would be unwise to allow such a search.
Second if I did give a so called consent why was it
necessary to contact the co-owner of vehicle to get
permission to search this information is inside the Affidavit
of Probable Cause them contacting co-owner. Third I am
claiming ineffectiveness of counsel in this matter because I
asked for a motion to suppress evidence due to the fact
the co-owner was undergoing serious surgery at the time
of the consent and was unable to give intelligent consent. .
. . Also a key point I forgot there was only 1.29 grams of
usable methamphetamine the “other” was an unknown
mixture of trash in a bag labeled waste (labeled by me)
that could not have contained a viable amount of
methamphetamine. Therefore 1.29 grams is consistent
with personal possession and not an intent to distribute
there were no broken down bags or separate packages
Just a scale with residue that I used to weigh out my doses
before injection. . . .
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Resp. to Rule 907 Notice of Intent to Dismiss, 3/18/15, at 1-2.5 A hearing
was held on September 8, 2015. On September 16, 2015, the court denied
the PCRA petition and granted counsel’s request to withdraw. This appeal
followed.6
Appellant raises the following issues for our review:
I. Was the conviction obtained and sentence imposed in
violation of the Right to Effective Assistance of Counsel,
with the defense counsel not investigating all matters of
the case before pursuing a negotiated plea, or failing to
ensure the judge explained all the elements of the charges
prior to sentencing?[7]
5
The PCRA court opined:
[Appellant] was given an opportunity to file a written
response to the Opinion and Order of [c]ourt, dated March
9, 2015, wherein [he] was notified of this [c]ourt’s
intention to dismiss the instant PCRA petition. [Appellant]
did file a timely response . . . .
PCRA Ct. Op., 9/16/15, at 10. We note that the PCRA court’s March 9, 2015
opinion in support of its notice of intent to dismiss the PCRA petition and the
September 16th opinion are virtually identical.
6
The PCRA court held that the instant appeal was untimely. See Order,
10/28/15. We disagree. Under the “prisoner mailbox rule,” a pro se
prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing. See Commonwealth v. Wilson, 911 A.2d 942, 944
n.2 (Pa. Super. 2006). Instantly, an envelope, postmarked October 15,
2015, is included in the certified record, together with the notice of appeal.
Applying the “prisoner mailbox rule,” the envelope’s postmark establishes
that the instant appeal was timely filed.
7
In the argument section of his brief, Appellant contends that “Counsel
failed to request body/dash camera footage of the arrest . . . .” Appellant’s
Brief at 11. This issue was not raised in Appellant’s PCRA petition or in his
response to the Rule 907 notice of intent to dismiss. Therefore, this issue is
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II. Did the [c]ourt err in denying the PCRA claim of an
illegal search and seizure based on an invalid consent to
search?
III. Did the prosecutor misrepresent the evidence of the
303.42 grams of waste by-product in Item 2.1[8] of the Lab
Report?
Appellant’s Brief at 4.
First, Appellant contends counsel was ineffective for failing to
investigate the case before pursuing a negotiated plea and in failing to
ensure that the judge explained all of the elements of the charges prior to
waived. See Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa. 2007)
(concluding that issues not raised in a PCRA petition are waived and cannot
be considered for the first time on appeal); see also 42 Pa.C.S. § 9544(b)
(“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.”); Pa.R.A.P. 302(a).
8
We note that Item 2.1 of the Lab Report states as follows: “One (1) clear
zip lock bag containing one (1) plastic ‘Sodastream’ bottle containing orange
solid with metallic pieces.” No Merit Letter in Supp. of Pet. to Withdraw as
Counsel, 1/29/15, Ex. A at 1. The Pennsylvania State Police Bureau of
Forensic Services concluded that “[t]he solid in item 2.1 weighed 303.42
g+/-0.09 g and contained a reactive metal, sodium hydroxide,
pseudoephedrine/ephedrine, and methamphetamine (Schedule II).” Id. at
2. The report stated:
One method of manufacture for methamphetamine is
referred to as the “One-Pot” method. In this method,
pseudoephedrine/ephedrine, an ammonium salt, a base
(such as sodium hydroxide), a reactive metal, and an
organic solvent are combined into one container (Item
2.1).
Id.
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sentencing. Id. at 9, 12. Appellant avers “[i]f not for this deficient
performance, [A]ppellant would have only been guilty of Count 4[9] only, all
other Counts would be invalid due to inadmissible evidence, gained from an
illegal search and seizure.” Id. at 13. Counsel was ineffective “for not
ensuring that his client knew exactly what it was he was signing into in open
court.” Id.
The PCRA court found no merit to Appellant’s claim and opined:
PCRA counsel has reviewed the record in this matter,
including the guilty plea petition and correspondence
between [Appellant] and his [trial] counsel. PCRA counsel
was unable to detect any evidence of [trial counsel’s]
ineffectiveness in the record. [PCRA counsel] notes in his
no-Merit Letter that [Appellant] accepted an offer at the
preliminary hearing. [Appellant] subsequently asked [trial
counsel] if he could get an offer of 3 to 6 years, rather
than 4 to 10 years, and [trial counsel] indicated that he
could not. [Appellant] then completed and signed a guilty
plea petition and underwent a plea colloquy prior to being
sentenced to the terms of the plea agreement that was
reached at the time of the preliminary hearing. In fact, at
the time the plea was entered, [Appellant] indicated that
he was pleading guilty because “I committed this crime,
Your Honor.”
PCRA Ct. Op. at 7-8 (footnote omitted). The PCRA court concluded that
Appellant’s claim that guilty plea counsel was ineffective was meritless. Id.
at 9. We agree no relief is due.
This Court has stated:
9
Count 4 was misdemeanor 1 prohibited offensive weapon. N.T. Guilty Plea
Hr’g, 7/2/14, at 4.
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Our standard and scope of review for the denial of a
PCRA petition is well-settled.
[A]n appellate court reviews the PCRA court’s
findings of fact to determine whether they are
supported by the record, and reviews its conclusions
of law to determine whether they are free from legal
error. The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed
in the light most favorable to the prevailing party at
the trial level.
* * *
. . . Counsel is presumed effective, and to rebut that
presumption, the PCRA petitioner must demonstrate
that counsel’s performance was deficient and that
such deficiency prejudiced him. In Pennsylvania, we
have refined the Strickland [v. Washington, 466
U.S. 668 (1984),] performance and prejudice test
into a three-part inquiry. Thus, to prove counsel
ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel
had no reasonable basis for his action or inaction;
and (3) the petitioner suffered actual prejudice as a
result. If a petitioner fails to prove any of these
prongs, his claim fails. . . . To demonstrate
prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings
would have been different. A reasonable probability
is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.
* * *
[A] defendant [raising a claim of ineffective
assistance of counsel] is required to show actual
prejudice; that is, that counsel’s ineffectiveness was
of such magnitude that it “could have reasonably had
an adverse effect on the outcome of the
proceedings.”
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Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super.)
(some citations omitted), appeal denied, 104 A.3d 523 (Pa. 2014).
With respect to a guilty plea, the prejudice prong is satisfied by
showing that “it is reasonably probable that, but for counsel’s errors, [a
petitioner] would not have pleaded guilty and would have gone to trial. The
reasonable probability test is not a stringent one.” Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (citations and quotation
marks omitted).
Our Supreme Court has repeatedly stressed that where
the totality of the circumstances establishes that a
defendant was aware of the nature of the charges, the plea
court’s failure to delineate the elements of the crimes at
the oral colloquy, standing alone, will not invalidate an
otherwise knowing and voluntary guilty plea. “Whether
notice [of the nature of the charges] has been adequately
imparted may be determined from the totality of the
circumstances attendant upon the plea [.]”
Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (en
banc) (citations omitted).
Instantly, at the guilty plea hearing, the trial court asked Appellant if
he understood his rights as counsel explained them to him. N.T. Guilty Plea
Hr’g, 7/2/14, at 9. Appellant responded that he did. Id. The court
explained the charges as follows:
You’re pleading guilty at Count 1 to possession with
intent to deliver. . . . If you went to trial the
Commonwealth would have to prove that on April 4, 2014,
that you possessed with intent to deliver
methamphetamine.
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You’re pleading guilty at Count 2 firearms not to be
carried without a license . . . . Here the Commonwealth
would have to prove that on that same date you carried
without a license a firearm, namely, a High─Point model
C9 9mm Luger and a Remington Arms 20 gauge shotgun
in a vehicle.
You’re pleading guilty at Count 3 to possession of
paraphernalia . . . . Here the Commonwealth would have
to prove that you possessed with intent to use drug
paraphernalia, in this case a glass smoking pipe, a digital
scale and empty heroin stamp bags.
You’re pleading guilty at Count 4 to prohibited offensive
weapons . . . . Here the Commonwealth would have to
prove that on the same date that you possessed an
offensive weapon, namely, a Remington 20 gauge shotgun
with a barrel length of less than 18 inches.
You’re pleading guilty at Count 5 to possession with
intent to manufacture a controlled substance . . . . Here
the Commonwealth would have to prove that on that same
date that you possessed sodium hydroxide,
psuedoephedrine and lithium with the intent to
manufacture methamphetamine.
You’re pleading guilty at Count 6 to operating a
methamphetamine lab . . . . Here the commonwealth
would have to prove that on that same date you caused a
chemical reaction involving ephedrine, pseudoephedrine or
phenylpropanolamine or any other precursor or reagent
substance listed for the purpose of manufacturing
methamphetamine.
And you’re pleading guilty at count 7 to knowingly
possessing pseudoephedrine . . . . Here the
Commonwealth would have to prove that on the same date
you possessed pseudoephedrine for the purpose of
manufacturing methamphetamine.
Id. at 9-11.
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Appellant has not satisfied the prejudice prong by showing that but for
counsel’s errors he would not have pleaded guilty. See Charleston, 94
A.3d at 1018-19; Hickman, 799 A.2d at 141. Therefore, his claim that
guilty plea counsel was ineffective is without merit. See 42 Pa.C.S. §
9543(a)(2)(ii); See Charleston, 94 A.3d 1012, 1018-19.
Next, Appellant contends the search of the vehicle was illegal based
upon an invalid consent to search. Appellant claims he
stated that “this is my girlfriends car” not “the vehicle is
registered to my girlfriend” as is stated in the Affidavit of
Probable Cause. If the officer would have ran the license
plate, as is procedure in a traffic stop, it would have
indicated that the vehicle was registered to two people;
[A]ppellant and Tammy Jo Lohr. The registration and
insurance information handed to the officer would have
also indicated this fact.
The question that needs asking is: Why if [A]ppellant
supposedly gave “verbal” consent (Affidavit of Probable
Cause) was it necessary to allegedly make phone contact
with Ms. Lohr to gain her consent? . . . How can police
begin a consent search, when there is nothing to prove
anyone actually granted consent to search?
* * *
In the case at bar, . . . Ms. Lohr was not present at the
scene, [A]ppellant was the sole occupant of the vehicle,
and therefore the one with the authority over the vehicle,
and the one that had all the authority to grant or deny
police access to the vehicle. Therefore abrogating any
consent allegedly granted by Ms. Lohr.
Appellant’s Brief at 16, 18.
The PCRA court found this issue waived in its Rule 907 notice. See
Op. & Order, 3/9/15, at 5. In his response to the Rule 907 notice,
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Appellant averred that he was “claiming ineffective assistance of counsel in
this matter because [he] asked for a motion to suppress evidence due to the
fact that the co-owner was undergoing serious surgery at the time of
consent and was unable to give intelligent consent.” Pro Se Resp. to Rule
907 Notice of Intent to Dismiss, 3/18/15 at 1. The PCRA court granted an
evidentiary hearing based upon this allegation.
At the PCRA hearing, Appellant’s counsel informed the court that
Appellant requested that he “subpoena five different individuals for this
hearing, including a Lester Lohr, L-o-h-r, Keith Lohr, Tammy Lohr, Kayla
Bash and Robert Deemer.” N.T. PCRA Hr’g, 9/8/15, at 4. Counsel sent a
subpoena to each witness. Id. at 5. The subpoena for Mr. Deemer was
returned indicating he had been released from Westmoreland County Prison,
his last known address. Id. Counsel stated that Tammy Lohr was not
present. His “understanding there may be some warrant against her which
would explain her failure to appear.” Id. The PCRA court stated that it
was not going to give Counsel more time to procure the witnesses and
indicated that he “made a good faith opportunity to subpoena the people
your client wanted.” Id. at 6. Following an off-the-record sidebar
discussion and a recess, the hearing proceeded. Id.
Lester Francis Lohr testified at the hearing that Tammy Lohr was in the
hospital in Pittsburgh at the time of the traffic stop. Id. at 8.
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[The Commonwealth]: Sir, were you by any chance
present at the hospital with Tammy Lohr when police
communicated with her about this investigation?
A: No, I was not.
Id. at 10.
Keith Lawrence Lohr, Jr. testified that Appellant was with his wife after
they were no longer together. Id. at 11.
[Defense Counsel]: You’re aware that charges were filed
against [Appellant]?
A: Yes.
Q: Around the time that [Appellant] received those
charges, do you know what was going on with Tammy
medically?
A: I know she has Crohn’s Disease. That’s about it.
* * *
Q: Were you familiar with Tammy having to go to the
hospital for any reason?
A: Um, she made multiple trips to the hospital all the time.
Q: Were there any times where she was there for an
extended period of time?
A: I think there was one time she was in for, like, two or
three days, something like that.
Q: Would that have been around the time you heard about
charges being filed against [Appellant]?
A: I’m not sure exactly. She was in multiple times, yeah.
Q: When she would go to the hospital, are you aware
whether she was prescribed any medication?
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A: I was not aware. I had no idea what was going on with
her.
Id. at 12-13.
The PCRA court stated that Lester Lohr
indicated that Ms. Lohr had been hospitalized at the time
of [Appellant’s] traffic stop and that she had been
prescribed pain medication when she was in the hospital.
However, upon cross examination, Mr. Lohr admitted that
he was not present at the hospital with Tammy Lohr when
police communicated with her about the investigation.
Keith Lohr, Tammy Lohr’s estranged husband, also
testified on September 8, 2015, but did not recall whether
she was hospitalized around the time of the traffic stop nor
[sic] if she was prescribed any medication. No evidence
was adduced at the PCRA hearing which showed Tammy
Lohr to be rendered incapable of granting the consent that
she had granted to search [Appellant’s] vehicle. Thus,
there is no merit to this allegation.
Op. & Order, 9/16/15, at 10-11 (citations omitted). We agree no relief is
due.
The underlying claim does not have arguable merit and thus, counsel
cannot be deemed ineffective. See Charleston, 94 A.3d at 1018-19.
Lastly, Appellant contends the prosecutor misrepresented the evidence
of the 303.42 grams of waste by-product in Item 2.1 of the Lab Report.
Appellant’s Brief at 20. Appellant avers
[i]n the case at bar the substance is NOT product, it is
303.42 grams of a leftover by-product that happens to
contain a minute, trace amount of methamphetamine. In
fact, the substance in possession of [A]ppellant is a toxic,
poisonous, and hazardous substance incapable of being
ingested or further processed into a “usable” controlled
substance.
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* * *
[A]ppellant in the case at bar possessed more waste by-
product than usable methamphetamine, yet the weight
(303.42 grams) of this poisonous, toxic substance is what
got him the 3-6 years . . . . He was only in possession of
1.29 grams of “usable” methamphetamine. (Item 2.6).[10]
Id. at 21. Appellant concludes “this evidence was misrepresented [by the
prosecutor] as 100% methamphetamine.” Id.
As a prefatory matter, we consider whether this claim is waived. In
Commonwealth v. Fletcher, 986 A.2d 759 (Pa. 2009), our Pennsylvania
Supreme Court opined that the
[a]ppellant’s claim that appellate counsel was ineffective
for not arguing on appeal that the prosecutor misled the
trial court by stating that Dr. Park was out of the country
10
We note that in his pro se PCRA petition, Appellant averred that his
sentence was illegal because he “only had 1.29g in possession.” Pro se
PCRA Pet., 1/2/15, at 7. In the No Merit Letter in Support of Petition to
Withdraw as Counsel, Counsel states “[c]ontrary to [Appelllant’s] assertion
in his pro se PCRA that he was only in possession of 1.29g, the lab report
clearly shows a total amount of 304.71g.” No Merit Letter, 1/26/15, at 6.
The lab report was attached to the no merit letter. See id. at Ex. A.
The PCRA court opined:
Further, PCRA counsel considered the sentencing
guidelines that apply to this case to determine whether
[guilty plea counsel] gave [Appellant] incorrect information
to induce him to enter a plea or provided [Appellant] with
incorrect information. As [PCRA counsel] points out,
although [Appellant] asserts that he was only in
possession of 1.29g of methamphetamine, the lab report,
which [PCRA counsel] attached to the No Merit Letter,
clearly shows a total amount of 304.71g.
Op. & Order, 9/16/15, at 8.
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and not available to testify entitles him to no relief because
the claim was not raised in his PCRA petition. Thus,
pursuant to Pa.R.A.P. 302(a), [the a]ppellant is not
entitled to review of this claim because it was raised for
the first time in this appeal.
Id. at 794 (emphasis added).
In Bedell, this Court addressed the issue of whether the appellant had
waived an issue raised on appeal.
In his second claim, Bedell contends that his counsel
was ineffective for failing to object to the defective plea
colloquy. Bedell argues that his plea was unknowing
because of the defective colloquy. Specifically, Bedell
asserts that the trial court’s recitation of the rights that he
would be foregoing by pleading guilty was confusing and
that counsel did not ascertain whether he understood the
rights that he was waiving.
We deem this claim waived for the purposes of this
appeal because Bedell did not specifically raise an issue
related to the colloquy in his PCRA Petition. Indeed, Bedell
only raised claims related to the factual basis of the
robbery conviction in the Petition. As this claim was
never raised before the PCRA court, it cannot be raised for
the first time on appeal. See Pa.R.A.P. 302(a) (stating
that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”);
Commonwealth v. Edmiston, [ ] 851 A.2d 883, 889
([Pa.] 2004) (reiterating that “[c]laims not raised in the
PCRA court are waived and cannot be raised for the first
time on appeal[.]”).
Bedell, 954 A.2d at 1216 (some citations omitted and emphasis added).
In his pro se response to the PCRA court’s Rule 907 notice of intent to
dismiss, Appellant stated in a letter to the PCRA court:
Also a key point I forgot there was only 1.29 grams of
usable methamphetamine the “other” was an unknown
mixture of trash in a bag labeled waste (labeled by me)
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that could not have contained a visible amount of
methamphetamine. Therefore 1.29 grams is consistent
with personal possession and not an intent to distribute
there were no broken down bags or separate packages
Just a scale with residue that I used to weigh out my doses
before injection.
Pro Se Resp. to Notice of Intent to Dismiss, 3/18/15, at 1.
Analogously, in the instant case, Appellant only raised claims related
to the factual basis of his PWID conviction. See Bedell, 954 A.2d at 1216.
He did not raise the issue that the prosecutor misrepresented the evidence
of the 303.42 grams of waste by-product in Item 2.1 of the Lab Report. See
Fletcher, 986 A.2d at 794. Therefore, this issue is waived. See Pa.R.A.P.
302(a); Fletcher, 986 A.2d at 794; Bedell, 954 A.2d at 1216. Accordingly,
we affirm the order of the PCRA court denying Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:8/24/2016
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