Com. v. Seifert, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY EDWARD SEIFERT :
:
Appellant : No. 760 EDA 2022
Appeal from the PCRA Order Entered February 18, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000031-2020
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 30, 2022
Randy Edward Seifert (Appellant) appeals, pro se, from the order
entered in the Wayne County Court of Common Pleas dismissing his first
petition filed pursuant to the Post Conviction Relief Act (PCRA).1 Appellant
seeks relief from his guilty plea to charges of driving under the influence of
alcohol (DUI), recklessly endangering another person (REAP), resisting
arrest,2 and related offenses as a result of his involvement in a December
2019 motor vehicle crash. On appeal, Appellant argues: (1) he did not receive
a prompt hearing following his apprehension on a bench warrant and plea
counsel was ineffective for failing to raise this claim; (2) he is entitled to credit
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 See 75 Pa.C.S. § 3802(a)(1); 18 Pa.C.S. §§ 2705, 5104.
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for time served as a result of his pretrial detention; and (3) PCRA counsel was
ineffective for failing to amend his pro se petition after Appellant discovered
new evidence to support his claims. For the reasons below, we affirm.
On December 8, 2019, Appellant was involved in a motor vehicle
accident; he was driving the car, and his wife and two minors were
passengers.3 See Affidavit of Probable Cause, 1/7/20, at 1; Criminal
Information, 2/14/20, at 1. When the Pennsylvania State Police arrived,
Appellant was visibly intoxicated and combative. See Affidavit of Probable
Cause at 1. He was subsequently charged with 24 offenses,4 including
aggravated assault,5 DUI and endangering the welfare of a child.6
On February 4, 2020, a bench warrant was issued for Appellant when
he failed to comply with a fingerprint order. He was arrested on February
26th. That same day, the trial court entered an order, setting bail at $50,000
unsecured, and placing Appellant on bail supervision by the Wayne County
Adult Probation Department. See Order, 2/26/20.
On July 23, 2020, the Commonwealth filed a petition to revoke bail,
asserting, inter alia, that Appellant was no longer checking in with his
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3 The minors’ relationship to Appellant and his wife is unclear in the record.
We note that neither the transcript from the guilty plea hearing nor the
sentencing hearing is included in the certified record.
4 Fifteen of the charges were for summary offenses.
5 18 Pa.C.S. § 2702(a)(3).
6 18 Pa.C.S. § 4304(a)(1).
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probation officer, and had been arrested for public drunkenness in a
neighboring county. See Commonwealth’s Petition to Revoke Bail, 7/23/22,
at 1-2 (unpaginated). The trial court conducted a hearing on July 30th and
entered an order revoking Appellant’s bail that same day.
On August 11, 2020, the Commonwealth filed a petition for a bench
warrant. It asserted that although “Wayne County Adult Probation [had] lost
contact with [Appellant],” Appellant was “apprehended in Luzerne County” on
unrelated charges on August 9th. See Commonwealth’s Petition for Bench
Warrant, 8/11/20, at 1-2 (unpaginated). The next day, the trial court issued
a bench warrant for Appellant’s apprehension. See Order, 8/12/20. Although
the certified record is not entirely clear, it appears Appellant was released in
Luzerne County, and another bench warrant was issued by Luzerne County
for his arrest when he failed to appear for a preliminary hearing. See Motion
to Withdraw as Counsel, 11/5/21, Exhibit A, Counsel’s “No Merit” Letter, at 3.
He was subsequently apprehended on September 27, 2020, and remained
incarcerated in Luzerne County throughout these proceedings. The Wayne
County bench warrant was rescinded on October 15, 2020.7
On November 5, 2020, Appellant entered a guilty plea to one count each
of DUI, REAP, resisting arrest, disorderly conduct,8 false reports to law
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7 The order was docketed the following day, October 16, 2020.
8 18 Pa.C.S. § 5503(a)(1).
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enforcement,9 and driving while operating privilege is suspended.10 In
exchange for the plea, the Commonwealth nolle prossed the remaining
charges. Appellant appeared for sentencing on January 28, 2021. The court
imposed an aggregate term of 24 to 48 months’ imprisonment, consisting of
the following consecutive terms: 12 to 24 months for REAP, 9 to 18 months
for resisting arrest, and 3 to 6 months for DUI. The court also imposed
concurrent terms of 6 to 12 months for disorderly conduct, and 60 days for
driving under suspension, and a $200 fine for false reports to law
enforcement. Appellant filed a timely post-sentence motion requesting
reconsideration of his sentence, which the court denied on February 9, 2021.
No direct appeal was filed. Appellant was represented by John J. Martin, II,
Esquire, throughout these proceedings.
On June 17, July 6, and July 21, 2021, Appellant filed several pro se
requests that the court award him credit for time served in pretrial detention
─ specifically, from February 23 to February 25, 2020, and from September
27, 2020, to January 28, 2021. See Appellant’s Letter, 6/17/21; Appellant’s
Letter, 7/6/21; Appellant’s Petition for Credit for Imprisonment While in
Custody Prior to Sentence, 7/21/21. Thereafter, on August 5, 2021, Appellant
filed the present, timely PCRA petition, asserting: (1) he was never “brought
before a judge for a Bond Hearing within 72 hours” of his September 27, 2020,
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9 18 Pa.C.S. § 4906(a).
10 75 Pa.C.S. § 1543(b)(1)(i).
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arrest on the bench warrant; (2) he was “incarcerated indefinitely” from
September 27, 2020, to January 28, 2021, and did not receive credit for time
served; and (3) he was never informed why his bail was revoked. See
Appellant’s Motion for Post Conviction Relief, 8/5/21, at 3-4. Appellant
averred Attorney Martin was ineffective for failing to raise these claims before
the trial court. See id. at 4. Less than a week later, on August 10th, the
PCRA court appointed Christine Rechner, Esquire, as PCRA counsel.
Meanwhile, Appellant continued to file redundant pro se requests seeking
credit for time served, as well as a pro se motion to reduce his sentence. See
Appellant’s Motion to Modify and Reduce Sentence, 10/20/21.
On November 5, 2021, Attorney Rechner filed a motion to withdraw as
counsel, and a Turner/Finley11 “no merit” letter, explaining why she believed
Appellant’s claims were meritless. See Motion to Withdraw as Counsel,
11/5/21, Exhibit A, Counsel’s “No Merit” Letter. Attorney Rechner detailed
her investigation of Appellant’s claims, which included reviewing Appellant’s
criminal docket in Luzerne County and interviewing Attorney Martin. See
Counsel’s “No Merit” Letter at 2. She concluded: (1) Appellant was not
entitled to time served credit in the present case for his pretrial detention in
Luzerne County because he was in custody for Luzerne County charges; (2)
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11 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),
provide the framework for a withdrawal request by PCRA counsel. See
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (detailing
Turner/Finley requirements).
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Appellant’s bail hearing was not unreasonably delayed because the records
from the probation department “contained no information as to the day Wayne
County officials were notified of” Appellant’s September 27th Luzerne County
arrest; and (3) Attorney Martin was not ineffective for failing to raise these
claims. See id. at 4-5. Appellant filed a pro se response on November 30th,
stating, inter alia, that he had proof Wayne County was promptly notified of
his arrest in Luzerne County, namely, a September 29, 2020, Facebook
posting of his “capture” by the Wayne County Sheriff’s Department. See
Appellant’s Letter, 11/30/21, at 2 (unpaginated). Thus, he insisted “[t]here
was a delay or failure by [Attorney Martin] to act in regards [sic] to the Wayne
County Bench Warrant, issued . . . August 12, 2020.” Id.
On December 6, 2021, the PCRA court entered an order advising
Appellant of its intent to dismiss his petition pursuant to Pa.R.Crim.P. 907 and
granting Attorney Rechner’s motion to withdraw. See Order, 12/6/21.
Appellant filed a pro se response, and on January 4, 2022, the PCRA court
dismissed Appellant’s petition. See Order, 1/4/22.
However, one week later, the PCRA court vacated both its December
6th and January 4th orders, and reinstated Attorney Rechner as PCRA counsel.
Order, 1/11/22. Shortly thereafter, on January 21st, the PCRA court issued
new notice of its intent to dismiss Appellant’s petition pursuant to Rule 907,
but included an opinion detailing its bases for doing so. See Opinion, Order,
& Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907, 1/21/22 (PCRA
Ct. Op.). The court agreed with Attorney Rechner’s assessment of Appellant’s
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claims, opining that Appellant was not entitled to credit for time served in
Luzerne County prior to his Wayne County guilty plea and sentencing hearing,
and that Attorney Martin was not ineffective for failing “to act with respect to
the Wayne County bench warrant and the hearing required on its dismissal.”
See PCRA Ct. Op. at 3-5. By separate order, the PCRA court, once again,
granted Attorney Rechner’s motion to withdraw. See Order 1/21/22.
Appellant filed an untimely response, asserting Attorney Rechner’s
ineffectiveness for failing to speak with him after her appointment as counsel.
See Appellant’s Answer to Pa.R.Crim.P. 907, 2/15/22, at 2.12
On February 18, 2022, the PCRA court entered an order dismissing
Appellant’s petition, and Appellant filed this timely appeal. Thereafter, the
trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Order, 3/31/22.13 Appellant complied with
the court’s directive, and filed a Rule 1925(b) statement raising the following
claims: (1) the ineffective assistance of Attorney Martin and Attorney Rechner
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12Although Appellant’s answer was date-stamped as received on February 17,
2022, the attached envelope bears a postage stamp of February 15, 2022.
“Under the prisoner mailbox rule, we deem a pro se document filed on the
date it is placed in the hands of prison authorities for mailing.”
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). Thus,
we deem Appellant’s answer as filed on February 15th. Nevertheless, the
court’s Rule 907 notice was mailed to Appellant on January 21, 2022; so, his
reply was due within 20 days, or no later than February 10, 2022. See
Pa.R.Crim.P. 907(1); Notice, 1/21/22 (informing Appellant he had 20 days to
respond).
13 The order was not sent to Appellant until the next day, April 1, 2022.
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for “not challenging the bench warrant” so that the court could “have given
[him] an opportunity to make bail[;]” (2) newly discovered evidence, which
proved that Attorney Rechner was ineffective for rejecting his bench warrant
claim; and (3) Attorney Martin’s ineffectiveness for failing to request Appellant
receive credit for time served at sentencing. Appellant’s Pa.R.A.P. 1925(b)
Concise Statement of Matters Complained Of, 4/20/22, at 1-3 (unpaginated).
The PCRA court filed a Statement of Reasons on April 22, 2022, relying upon
its January 21, 2022, Opinion as dispositive of Appellant’s claims.
Preliminarily, we note that Appellant’s pro se brief fails to conform in
material respects with the Pennsylvania Rules of Appellate Procedure. See
Pa.R.A.P. 2111(a). Specifically, his brief lacks a statement of jurisdiction, a
statement of the scope and standard of review, a sufficient statement of the
case,14 a summary of the argument, and most notably, a statement of
questions involved. See Pa.R.A.P. 2111(a), 2114, 2116, 2117, 2118. Indeed,
this Court has emphasized that the lack of a statement of questions involved
“is particularly grievous since the statement of questions involved defines the
specific issues this Court is asked to review.” Commonwealth v. Maris, 629
A.2d 1014, 1016 (Pa. Super. 1993).
It is well-established that “pro se defendants are subject to the same
rules of procedure as are represented defendants.” Commonwealth v.
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14 Under the heading “Relevant Case History,” Appellant states only that the
PCRA court dismissed his petition on February 18, 2022. See Appellant’s Brief
at 1 (unpaginated).
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Blakeney, 108 A.3d 739, 766 (Pa. 2014). Therefore, an appellate brief filed
by a defendant proceeding pro se “must conform materially to the
requirements of the Pennsylvania Rules of Appellate Procedure, and this Court
may quash or dismiss an appeal if the defect in the brief is substantial.”
Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017)
(citations omitted). As the Supreme Court has explained:
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 litigant’s counsel or
find more in a written pro se submission than is fairly conveyed in
the pleading.
Blakeney, 108 A.3d at 766.
Nevertheless, we decline to quash the present appeal, despite the
substantial defects in Appellant’s brief, because we are able to discern the
following three issues for review: (1) whether Appellant’s right to a prompt
bench warrant hearing was violated, and whether Attorney Martin was
ineffective for failing to raise this claim before the trial court; (2) whether
Attorney Martin was ineffective for failing to request Appellant receive credit
for time served at his sentencing hearing; and (3) whether Attorney Rechner
was ineffective for failing to amend his PCRA petition based on newly
discovered evidence.15 See Appellant’s Brief at 2-8 (unpaginated).
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15 We note Appellant presents an additional claim which he did not preserve
in his Pa.R.A.P. 1925(b) statement ─ that he was denied due process of law
when Attorney Martin filed a post sentence motion for “Steven Fisher” rather
than Appellant. See Appellant’s Brief at 4 (unpaginated). See also Pa.R.A.P.
(Footnote Continued Next Page)
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Our standard of review of an order denying PCRA review is well-
established: “[W]e determine whether the ruling of the PCRA court is
supported by the record and is free of legal error.” Commonwealth v.
Webb, 236 A.3d 1170, 1176 (Pa. Super. 2020). Where, as here, a PCRA
petitioner challenges prior counsel’s ineffectiveness, we must bear in mind the
following:
Pennsylvania law presumes counsel has rendered effective
assistance. When asserting a claim of ineffective assistance of
counsel, the petitioner is required to demonstrate: (1) the
underlying claim has arguable merit; (2) counsel had no
reasonable strategic basis for his action or inaction; and, (3) but
for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been
different. The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail.
Commonwealth v. Mullen, 267 A.3d 507, 512 (Pa. Super. 2021) (citations
omitted), appeal denied, 275 A.3d 488 (Pa. Mar. 23, 2022).
Appellant’s first claim concerns the purported lack of a prompt bench
warrant hearing in Wayne County following his September 27, 2020, arrest in
Luzerne County. Appellant maintains he was arrested on September 27th on
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1925(b)(4)(vii) (issues not preserved in court-ordered Rule 1925(b)
statement are waived). He insists the trial court “denied the Motion as if [he]
was Steven Fisher.” Appellant’s Brief at 4 (unpaginated). Even if preserved,
however, Appellant’s claim would fail. Although the conclusory paragraph of
the post-sentence motion refer to “Steven Fisher,” this appears to be a
typographical error. See Appellant’s Motion for Post Sentence Relief Pursuant
to Rule 720 Pa.R.Crim.P., 2/5/21 at 2. The caption and supporting paragraphs
all refer to Appellant, and the details regarding the sentence imposed and
requests for relief clearly apply to Appellant’s sentence. See id. at 1-2. Thus,
even if he had preserved this claim, Appellant would be entitled to no relief.
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“two (2) separate bench warrants[;]” one for the present case in Wayne
County and the other for a separate case in Luzerne County. Appellant’s Brief
at 2 (unpaginated). He insists the Luzerne County bench warrant was lifted
the next day, but he was “unable to post bond due to [the Wayne County]
bench warrant[.]” Id. Appellant argues he never received a hearing on the
Wayne County bench warrant as is required, and Attorney Martin did not raise
this claim in the trial court. See id. at 2-3, 7. He requests either credit for
time served, or “release . . . from confinement.” Id. at 8.
Pursuant to Pennsylvania Rule of Criminal Procedure 150 when a
defendant is arrested pursuant to a bench warrant, he “shall be taken without
unnecessary delay for a hearing on the bench warrant” before the court that
issued the warrant. Pa.R.Crim.P. 150(A)(1).16 Moreover, where, as here, the
defendant is arrested outside the county that issued the bench warrant, Rule
150 requires “the authority in charge of the county jail promptly . . . notify
the proper authorities in the county of issuance that the individual is being
held pursuant to the bench warrant.” Pa.R.Crim.P. 150(A)(4). After the
defendant is “lodged in the jail of the county of issuance on that bench
warrant[,]” a bench warrant hearing “shall be conducted without unnecessary
delay[,]” but no longer than 72 hours. Pa.R.Crim.P. 150(A)(5)(b). Subsection
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16In his filings in the trial court and his brief on appeal, Appellant refers to
Pennsylvania Rule of Civil Procedure 1910.13-1, which governs bench
warrants issued in child support matters, and is inapplicable here. See
Pa.R.C.P. 1910.13-1.
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(A)(7) provides that if the hearing is not held within the time limits provided
in the Rule, “the bench warrant shall expire by operation of law.” Pa.R.Crim.P.
150(A)(7).
Here, the record is clear that while Appellant was apprehended in
Luzerne County on September 27, 2020, his bench warrant in Wayne County
was not dismissed until October 15, 2020. The PCRA court determined “the
probation records contained no information as to the date Wayne County
officials were notified of the arrest, but there is documentation of a Writ issued
to Luzerne County on October 7, 2020.” PCRA Ct. Op. at 5. Appellant was
subsequently transported to Wayne County on October 14th, and the bench
warrant was dismissed the next day. Id. He was then transferred back to
Luzerne County on October 19, 2020, where he remained through his
sentencing in the present case. Id. Thus, the court concluded “the time line
. . . does not present a delay or failure of [Attorney Martin] to act with respect
to the Wayne County bench warrant and the hearing required on its dismissal.”
Id.
Appellant provides us with no basis to disturb the ruling of the PCRA
court. Furthermore, even if we agreed with Appellant’s assertion that he was
denied a prompt bench warrant hearing in Wayne County, he would be entitled
to no relief. Pursuant to Rule 150, the only relief available for a violation of
the rule is the expiration of the bench warrant. See Pa.R.Crim.P. 150(A)(7).
That relief is now moot since Appellant has pled guilty to and been sentenced
for the charges at issue. Furthermore, Appellant downplays the fact that he
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was also facing charges in Luzerne County, where he was incarcerated until
his sentencing hearing in this case. Thus, even if Attorney Martin was
ineffective for failing to ensure Appellant had a prompt bench warrant hearing
in Wayne County ─ a fact not supported by the record17 ─ Appellant suffered
no prejudice since he was incarcerated at all relevant times in Luzerne County
for pending charges in that county. Accordingly, no relief is warranted.
Next, Appellant contends Attorney Martin rendered ineffective
assistance when he failed to request Appellant receive credit for time served
prior to his sentencing ─ specifically, from February 24 to 26, 2020, and from
September 27, 2020, until January 28, 2021. See Appellant’s Brief at 4
(unpaginated). We disagree.
Preliminarily, we note that “[a]n attack upon the court’s failure to
give credit for time served is an attack upon the legality of the sentence and
it cannot be waived[; thus, it] may be addressed under the PCRA.”
Commonwealth v. Davis, 852 A.2d 392, 399–400 (Pa. Super. 2004)
(citations omitted).
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17 We note that the Rule requires a hearing within 72 hours after “the
individual is lodged in the jail of the county of issuance on that bench
warrant.” Pa.R.Crim.P. 150(A)(5) (emphasis added). Appellant does not
dispute the PCRA court’s finding that he was transported to Wayne County
prison on October 14, 2021, and the bench warrant was rescinded the next
day. Rather, Appellant’s claim focuses on the notification requirement in Rule
150(A)(4). The 72-hour time limit does not apply to that Section. See
Pa.R.Crim.P. 150(A)(5)(b), (A)(7).
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Sentencing credit for time served is governed by 42 Pa.C.S. § 9760,
which provides, in pertinent part, “the court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall
be given to the defendant for all time spent in custody as a result
of the criminal charge for which a prison sentence is imposed or
as a result of the conduct on which such a charge is based. Credit
shall include credit for time spent in custody prior to trial, during
trial, pending sentence, and pending the resolution of an appeal.
* * *
(4) If the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act or acts that
occurred prior to his arrest, credit against the maximum term and
any minimum term of any sentence resulting from such
prosecution shall be given for all time spent in custody under the
former charge that has not been credited against another
sentence.
42 Pa.C.S. § 9760(1), (4). Accordingly, a defendant is entitled to “credit as
of right” if two conditions are met: “(1) the time must be ‘spent in custody’
and (2) the time must be ‘as a result of the criminal charge for which a prison
sentence is imposed or as a result of the conduct on which such a charge is
based.’” Commonwealth v. Nobles, 198 A.3d 1101, 1106 (Pa. Super. 2018)
(citations omitted). However, when a defendant is “in custody” for charges
unrelated to those for which they seek time credit, they are not entitled to
credit under Section 9760. This Court’s decision in Commonwealth v.
Miller, 655 A.2d 1000 (Pa. Super. 1995), is dispositive.
In Miller, the defendant was arrested for drug offenses on March 26,
1993 and, after posting bail, was released on April 2nd. See Miller, 655 A.2d
at 1001. Subsequently, in July and August of 1993, he was arrested on
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unrelated assault and robbery charges ─ both of which arose from the same
incident. Id. He remained incarcerated on those charges until his trial and
acquittal in January of 1994. Id. In the meantime, the defendant pled guilty
to the drug charges in November of 1993, and was sentenced in February of
1994. Id. He later sought credit “for all time during which he had been
incarcerated before being sentenced.” Id. Although the trial court gave the
defendant credit for the period he was in custody on the drug offenses before
posting bail (March 26 to April 2), it refused to give him credit for time served
from July of 1993 through January of 1994, when “he was in custody following
arrest for the unrelated charges of aggravated assault and robbery.” Id. at
1001-02.
On appeal, the defendant argued that he was entitled to credit for time
served pursuant to Section 9760(4), which provides that “credit must be given
for all pre-sentence time spent in custody, even time served on unrelated
charges, where credit has not otherwise been given therefor.” Miller,
655 A.2d at 1003 (emphasis added). Thus, the defendant reasoned that
“[b]ecause he was acquitted of the unrelated aggravated assault and robbery
charges, . . . he did not receive credit against any other sentence for the time
he was in custody on these charges; and, therefore, . . . he must be given
credit under § 9760(4) against his sentence for delivery of a controlled
substance.” Id.
The Miller Court rejected the defendant’s claim, opining:
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Under the facts of the instant case, . . . 42 Pa.C.S. § 9760(4) is
inapplicable. Here, [the defendant] was not in custody for any
other charges at the time he was arrested for [drug offenses]. He
had been arrested on the drug charge on March 26, 1993, and
had posted bail on April 2, 1993. From the moment he posted bail
on the drug charge and was released, [the defendant] was no
longer in custody on that charge. Therefore, when he was later
arrested on unrelated charges and spent time in prison awaiting
trial thereon, he was not entitled to credit on account of the drug
charge. As to such charge he was free on bail and did not serve
time.
Miller, 655 A.2d at 1003–04 (footnote & citation omitted).
The facts of Appellant’s case are indistinguishable from Miller. The
record reveals a bench warrant was issued for Appellant on February 4, 2020,
when he failed to comply with a fingerprint order. See Order, 2/4/20. After
he was arrested on February 26th, bail was set at $50,000 unsecured, and
the bench warrant was rescinded. See Order, 2/26/20. The record does not
support Appellant’s assertion that he was incarcerated from February 24,
2020, until February 26, 2020 ─ thus, he is not entitled to any credit for time
served during that period.
Moreover, Appellant cannot establish that any of the time he spent in
custody from September 27, 2020, until his sentencing hearing on January
28, 2021, was for the criminal charges at issue herein. Rather, Appellant was
in custody in Luzerne County during that time for charges filed in Luzerne
County ─ not for the Wayne County charges in this case. Accordingly, like the
defendant in Miller, Appellant is entitled to no relief, and his challenge to
Attorney Mullen’s ineffectiveness fails as it lacks arguable merit. See Mullen,
267 A.3d at 512.
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Lastly, Appellant contends Attorney Rechner was ineffective for failing
to amend his PCRA petition based on “newly discovered evidence that would
exonerate” him. Appellant’s Brief at 7 (unpaginated) (capitalization omitted).
He described this “new evidence” as follows:
The new evidence was, on 9-29-20 the Wayne County Sheriff's
Office knew of [Appellant’s] w[he]reabouts. The Wayne County
Sheriff's Office posted [Appellant’s] capture on Facebook [─]
“Update – Randy Seifert was picked up in Luzerne County, warrant
to be dismissed when Seifert is returned to Wayne County.”
Attorney Rechner said she did [extensive] research and that there
was only a writ issued on 10-7-2020 of [Appellant’s] whereabouts
to Luzerne County.[18] However, it is apparent that she was in
error because Wayne County Sheriff’s Office knew of [his]
whereabouts on September 29, 2020.
Id. at 6 (some capitalization, emphasis & punctuation omitted).
Preliminarily, we note that in Commonwealth v. Bradley, 261 A.3d
381 (Pa. 2021), our Supreme Court held that “a PCRA petitioner may, after a
PCRA court denies relief, and after obtaining new counsel or acting pro se,
raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so,
even if on appeal.” Id. at 401. If a petitioner provides “more than mere
boilerplate assertions of PCRA counsel’s ineffectiveness[, and] establish[s]
that there are issues of material facts concerning claims challenging counsel’s
stewardship and that relief may be available[,]” they may be entitled to a
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18Appellant is referring to Attorney Rechner’s assertions in the Motion to
Withdraw as Counsel and accompanying “No Merit” letter she filed in the PCRA
court. See Motion to Withdraw as Counsel, at 1 (unpaginated); Counsel’s No
Merit Letter at 2, 5.
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remand for an evidentiary hearing. Commonwealth v. Parrish, 273 A.3d
989, 1006 (Pa. 2022).
Here, Appellant is entitled to no relief. As explained supra, even if we
agreed that Appellant was denied a prompt bench warrant hearing in Wayne
County following his Luzerne County arrest, he would be entitled to no relief.
Appellant remained incarcerated in Luzerne County for the charges he faced
there. Thus, he would not have been released, and he is not entitled to credit
for time served on his Wayne County sentence. Because Appellant cannot
demonstrate prejudice, his challenge to PCRA counsel’s ineffectiveness fails.
See Mullen, 267 A.3d at 512.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2022
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