Com. v. Allen, P.

J. S66037/18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PHILLIP ALLEN, No. 1991 EDA 2017
Appellant
Appeal from the PCRA Order, June 16, 2017,
the Court of Common Pleas of Philadelphia County
in
Criminal Division at Nos. CP-51-CR-0000070-2012,
CP-51-CR-0005939-2010, CP-51-CR-0007583-2010
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 07, 2019
Phillip Allen appeals from the June 16, 2017 order denying his petition
filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.
§§ 9541-9546, after he repeatedly failed to appear for his evidentiary hearing.
After careful review, we affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
Appellant was charged with Persons Not to Possess
Firearms, Firearms Not to Be Carried without a
License, Carrying Firearms on Public Streets or Public
Property and Knowing and Intentional Possession of a
Controlled Substance. On August 13, 2013,
[appellant] entered an open guilty plea to Persons Not
to Possess Firearms,[1] with the remaining charges
nolle prossed.
1 18 Pa.C.S.A. § 6105(a).
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At the plea hearing, the Court conducted a thorough
colloquy to ensure that [a]ppellant's decision to plead
guilty was knowingly, intelligently and voluntarily
made. Among other things, the following facts were
set forth on the record as though they would have
been presented at trial:
On December 15th of 2011, Police Officer
Tomon and Police Officer Thompson were
in the area of the 900 block of North 18th
Street in the city and county of
Philadelphia when they observed
[appellant], who is seated at the bar of
the court, exit a Chinese store, shake the
hands of a few individuals, look in the
direction of the police officers, make eye
contact, and immediately grab at the right
side of his waistband.
[Appellant] continued to walk northbound
on 18th Street. The officers followed in
their vehicle. As Officer Tomon went to
exit his vehicle and to ask [appellant] to
stop, [appellant] took off running
northbound on 18th Street, eastbound on
Girard, and then southbound on North
17th Street.
During that entire time, the officer was
between 15 and 20 feet behind
[appellant]. [Appellant] continued to
grab onto the right side of his waistband.
The officer did lose [appellant] for a small
period of time when [appellant] ran
behind a house and hid behind a
dumpster.
[Appellant] then came out from behind
the dumpster. At that point the officer
observed an object in [appellant's] right
hand that was approximately seven to
eight inches long. It took the officer a few
seconds, and then the officer recognized
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itto be a firearm. At that point
[appellant] ran behind a Ford Expedition.
The officer lost sight of [appellant].
[Appellant] then reappeared from that
Ford Expedition with nothing in his right
hand.
[Appellant] then jumped over a few
fences and was stopped in the area of the
1700 block of Ridge [Avenue] in a rear
yard. Recovered from [appellant] [were]
three packets of crack cocaine. The
officer retraced his footsteps back to that
black Ford Expedition.
Recovered from the Ford Expedition's tire
well, on top of a tire, was a black -in -color
revolver with wooden grips and a 7.5 inch
barrel, .22 caliber model, loaded with five
rounds and one spent round.
In addition, [appellant] has two prior
[possession with intent to deliver a
controlled substance ("PWID")2]
convictions, making him ineligible to carry
a firearm. One of the CP numbers is
CP-51-CR-0007583-2010.
THE COURT: Are those facts,
correct, [appellant]?
[APPELLANT]: Yes.
THE COURT: I do accept your
guilty plea as being made
knowingly, intentionally and
voluntarily.
[Notes of testimony, 8/13/13 at 9-11.]
On the same date, the parties proceeded to
sentencing on the above case, as well as two (2)
2 35 P.S. § 780-113(a)(30).
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violation of parole (V.O.P.) cases stemming from his
prior PWID convictions. Upon considering all the
relevant facts and circumstances, including but not
limited to [a]ppellant's accepting responsibility for his
actions, his young age (22), expression of remorse,
familial background and support, as well as the
testimony of his sister, the Court imposed a
mitigated sentence of 21/2 to 7 years' incarceration
for Persons Not to Possess Firearms,[Footnote] a
concurrent term of 21/2 to 7 years' incarceration for
V.O.P. at No. 0005939, and a consecutive term of
3 years' probation for V.O.P. at No. 0007583. ([See
notes of testimony, 8/13/13 at 3-26.])
[Footnote] The Commonwealth requested
a standard guidelines sentence of four to
eight years' incarceration. ([See notes of
testimony, 8/13/13 at 12-13.])
Appellant did not file a post -sentence motion or direct
appeal. However, on June 17, 2014, he filed a pro se
PCRA petition, claiming that he did not receive
sufficient credit for time served. PCRA counsel
thereafter was appointed, and on July 27, 2016, in lieu
of filing an amended PCRA petition, he filed Motion for
Credit for Time Served. On January 4, 2017, the
Court denied the motion, but permitted counsel to file
an amended PCRA petition.
On February 6, 2017, counsel for [a]ppellant filed an
amended PCRA petition, claiming that: (1) his guilty
plea was involuntarily entered because he was under
the false impression that he would receive two years'
credit for time served, but did not receive two years'
credit (it was applied to his pre -violation sentence in
his PWID cases, not to his current Firearms or V.O.P.
cases); and (2) counsel was ineffective for allowing
him to plead guilty under a false impression/failing to
inform him that he would not receive a full two years'
credit for time served.
The Commonwealth did not oppose, and the Court
granted, an evidentiary hearing to resolve
[a]ppellant's issues on the record. Appellant, who was
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no longer incarcerated, failed to attend the scheduled
hearing on multiple occasions, however, leading to
multiple continuances. A final hearing date was
scheduled for June 16, 2017, with counsel accepting
service for [a]ppellant on the record. On June 16,
2017, despite notice of the evidentiary hearing,
[a]ppellant failed to appear. At said hearing, counsel
for [a]ppellant indicated that [a]ppellant had also
failed to meet with his state parole officer two days
earlier. Additionally, the Commonwealth confirmed
that [a]ppellant was not in custody, and counsel for
[a]ppellant confirmed to the Court that he advised
[a]ppellant of his need to attend the hearing.
Accordingly, with [a]ppellant knowingly failing to
appear, the Court dismissed the PCRA petition for
failure to prosecute [on June 16, 2017]. ([See notes
of testimony, 6/16/17 at 3-7.])
PCRA court opinion, 1/12/18 at 1-4 (citations to notes of testimony
reformatted).
On June 20, 2017, appellant filed a timely notice of appeal. On
August 16, 2017, the PCRA court ordered appellant to file a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Appellant filed his timely Rule 1925(b) statement on August 25, 2017, and the
PCRA court filed its Rule 1925(a) opinion on January 12, 2018.
Appellant raises the following issues for our review:
1. Did the [PCRA] court err in denying [appellant's]
motion for time credit in his concurrent
sentences in this matter[?]
2. Did the [PCRA] court err in denying relief based
on ineffective assistance of counsel for failure to
alert the court and [appellant] that the
contemplated credit discussed at [appellant's]
sentencing would not be applied under the time
credit regulations consistent with what
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[appellant] reasonably believed he would be
credited based on the court's assertions, as
cited supra, and where this failure to alert the
court and [appellant] led [appellant] to agree to
consolidation of his cases for the purpose of the
proposed sentence, which depended on credit
for time served to be applied to both his front
and back cases, which were to run concurrent
to one another?
Appellant's brief at 3 (full capitalization, citations to case law, and footnote
omitted).
Proper appellate review of a PCRA court's dismissal of a PCRA petition
is limited to the examination of "whether the PCRA court's determination is
supported by the record and free of legal error." Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's
findings will not be disturbed unless there is no support for the findings in the
certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). "This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding." Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
Upon review, we agree with the PCRA court that appellant's PCRA
petition was properly dismissed for failure to prosecute. Pennsylvania Rule of
Criminal Procedure 908 provides a PCRA petitioner with a rule -based right to
appear, in person, at the PCRA hearing. Specifically, Rule 908(C) provides
that, "[t]he judge shall permit the [petitioner] to appear in person at the
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[PCRA] hearing and shall provide the [petitioner] an opportunity to have
counsel." Pa.R.Crim.P. 908(C)
In the instant matter, the PCRA court scheduled an evidentiary hearing
on May 19, 2017, to receive and consider testimony as to whether the
ineffectiveness of appellant's plea counsel3 induced him to enter an unknowing
and involuntary guilty plea. The Commonwealth did not object to this
evidentiary hearing. (Notes of testimony, 4/7/17 at 2.) The record reflects
that appellant was initially present at the May 19, 2017 evidentiary hearing,
but left to attend work and did not testify. The PCRA court subsequently
continued the hearing to June 2, 2017, and PCRA counsel4 accepted service
on appellant's behalf. Appellant failed to appear for the evidentiary hearing
scheduled for June 2, 2017. Following a second continuance, a third
evidentiary hearing was scheduled for June 16, 2017, with PCRA counsel
accepting service for appellant on the record. (See notes of testimony,
6/16/17 at 5-6.) Appellant again failed to appear at the hearing. At said
hearing, PCRA counsel indicated that he did not know appellant's whereabouts
and that appellant had also failed to show up for a meeting with his parole
officer two days earlier. (Id. at 3-4.) The Commonwealth, in turn, confirmed
that appellant was not in custody. (Id. at 4.) Notably, PCRA counsel did not
3 Appellant was represented during his guilty plea proceedings by
Olwyn Conway, Esq.
4 Appellant was represented during his PCRA proceedings by his current
counsel, Henry McGregor Sias, Esq.
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aver that appellant's failure to attend the June 16, 2017 hearing was the result
of lack of proper notice. Additionally, PCRA counsel previously noted on the
record that he was in frequent contact with appellant and that they "text all
the time[.]" (See notes of testimony, 4/7/17 at 3.) Appellant, in turn, does
not argue on appeal that he was unaware of said hearing or "was otherwise
excusably engaged." (PCRA court opinion 1/12/18 at 5 (emphasis omitted);
see also appellant's brief at 6-7.) On the contrary, the record reflects that
PCRA counsel advised appellant of his need to testify at the hearing, and
conceded that the mandates of Rule 908 were satisfied and the PCRA court
had the discretion to dismiss appellant's petition. (Notes of testimony,
6/16/17 at 6.)
[PCRA counsel]: Procedurally, Your Honor, I think this
is the Rule 908 hearing and given that [appellant] has
failed to appear, there is no need for a 907 notice, as
far as I know, given you ordered a hearing. So if Your
Honor wants, you can dismiss the case right now.
Id. at 5.
Our supreme court has recognized that the PCRA court "has an essential
role in ensuring the timely resolution of PCRA matters" and "[t]he court, not
counsel, controls the scope, timing and pace of the proceedings below."
Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 2012), citing
Commonwealth v. Porter, 35 A.3d 4, 24-25 (Pa. 2012). Given the record
before us, we agree with the PCRA court that, "[a]ppellant forfeited his right
to prosecute his PCRA petition[]" in this case. (PCRA court opinion, 1/12/18
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at 5.) It logically follows that where a petitioner knowingly and repeatedly
fails to appear for an evidentiary hearing and present evidence on allegations
set forth in his PCRA petition, he waives any right to litigate these
underdeveloped claims on appeal. Moreover, absent testimony from appellant
to support the allegations of ineffectiveness raised in his PCRA petition, the
PCRA court was free to conclude that appellant has failed to meet his burden
of proving first prong of the ineffectiveness test; namely, that the claim has
arguable merit. See Commonwealth v. Charleston, 94 A.3d 1012, 1020
(Pa.Super. 2014) (stating, to prevail on a claim of ineffective assistance of
counsel, a petitioner must establish "first[,] the underlying claim has arguable
merit; second, that counsel had no reasonable basis for his action or inaction;
and third, that Appellant was prejudiced[]" (citation omitted)), appeal
denied, 104 A.3d 523 (Pa. 2014).
Accordingly, we discern no error on the part of the PCRA court in
dismissing appellant's PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 1/7/19
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