Com. v. Diaz, E.

J-S47020-19; J-S47021-19; J-S47022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC DIAZ :
:
Appellant : No. 1286 MDA 2018
Appeal from the PCRA Order Entered July 5, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001985-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC DIAZ :
:
Appellant : No. 1935 MDA 2018
Appeal from the Order Entered October 22, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001985-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC DIAZ :
:
Appellant : No. 784 MDA 2019
Appeal from the Order Entered April 17, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s):
CP-22-CR-0001985-2010
J-S47020-19; J-S47021-19; J-S47022-19
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 16, 2020
Appellant Eric Diaz appeals pro se from the order dismissing his timely
first Post Conviction Relief Act1 (PCRA) petition and the related orders denying
his requests for library access and release pending appeal. These appeals
involve Appellant’s challenges to the legality of the intermediate punishment
sentences2 imposed following revocations of his original 2011 probationary
sentence and the conditions of his most recent intermediate punishment
sentence. Appellant further claims that the PCRA court erred in dismissing his
claims of ineffective assistance of PCRA counsel and by refusing to appoint
new PCRA counsel. For the reasons that follow, we conclude that Appellant
has not established that he is eligible for relief under the PCRA and affirm in
1286 MDA 2018, dismiss the appeal in 1935 MDA 2018 related to library
access, and affirm the order denying relief in 784 MDA 2019 related to his
request for release pending appeal.
Appellant’s original conviction involved his March 2009 possession of
child pornography. On July 12, 2011, Appellant entered a negotiated guilty
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1 42 Pa.C.S. §§ 9451-9546.
2 The General Assembly substantially revised the statutes governing county
intermediate punishment sentencing during the pendency of this appeal,
effective December 19, 2018. See 2019, Dec. 18, P.L. 776 No. 115. Those
changes, in part, deleted references to county intermediate punishment and
substituted the phrase “restrictive conditions of probation” or “probation.”
See id. The changes, however, are not material to the decision herein.
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plea to two counts of possession of child pornography.3 On November 22,
2011, the trial court imposed the negotiated sentences of five years’ probation
to run concurrently. At the sentencing hearing, the Commonwealth stated
that Appellant was determined not to be a sexually violent predator. The trial
court advised Appellant of the ten-year sexual offender registration
requirements in effect at the time.
Appellant subsequently violated a condition of his original probationary
sentence.4 On March 14, 2012, the trial court imposed a violation of probation
sentence of five year’s county intermediate punishment, with six months to
be served in Dauphin County prison (the first revocation sentence). Order,
3/14/12.
On July 31, 2013, the trial court issued a bench warrant for Appellant’s
violation of the first revocation sentence. On November 19, 2013, the trial
court issued an order releasing Appellant from Dauphin County to the state of
Maryland. In May of 2014, Appellant was convicted of a new sexual offense
in Maryland. On July 31, 2014, the trial court issued a capias for Appellant’s
return to Pennsylvania.
Following several continuances, the trial court conducted a revocation
hearing on October 3, 2016. At the hearing, the Commonwealth argued for a
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3 18 Pa.C.S. § 6312(d).
4The record does not contain the details of Appellant’s violation of his original
sentence of probation.
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state term of incarceration. Appellant, through counsel, requested a county
term of imprisonment. At the conclusion of the hearing, the trial court
sentenced Appellant to five years’ county intermediate punishment, with one
year in county prison, and a consecutive term of five years’ probation (the
second revocation sentence). The trial court also ordered sex offender
conditions as part of Appellant’s supervision. Appellant did not take a direct
appeal from the second revocation sentence.
The Commonwealth subsequently charged Appellant with new offenses
at CP-22-CR-3178-2017 (3178-2017). According to the public docket in
3178-2017, the charges included six new counts of possession of child
pornography. The date of the offenses charged in 3178-2017 ranged from
February to April of 2017. The offenses apparently resulted from a search of
Appellant’s cell phone when he was at a work release center. On May 31,
2017, Dauphin County Adult Probation and Parole issued a detainer for
Appellant for a violation of the second revocation sentence.
On October 3, 2017, Dauphin County Adult Probation and Parole
released Appellant from “the total confinement phase of the restrictive portion
of” the second revocation sentence. However, it appears that Appellant
remained in custody in Dauphin County Prison, based on the May 31, 2017
detainer for the violation of the second revocation sentence.
On October 31, 2017, the PCRA court docketed Appellant’s pro se PCRA
petition seeking relief from the second revocation sentence. Appellant
asserted that the first and second revocation sentences were illegal because
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an intermediate punishment sentence cannot contain a provision for
confinement in prison that exceeds ninety days. Appellant’s PCRA Pet.,
10/31/17, at 4 (citing 42 Pa.C.S. §§ 9756(c.1), 9804(a)). Appellant also cited
Commonwealth v. Milhomme, 35 A.3d 1219 (Pa. Super. 2011), to claim
that the illegality of the first revocation sentence tainted the second revocation
sentence. Id. Further, Appellant claimed that the second revocation sentence
was improper because the VOP court imposed a consecutive sentence when
his original plea agreement called for concurrent sentences. Id. at 8.
Additionally, Appellant argued that the second revocation sentence
contained an illegal condition. In support, Appellant attached to his pro se
PCRA petition a Dauphin County Adult Probation and Parole form advising him
of the following probation condition:
12. I understand that all electronic devices including, but not
limited to, computers, cameras, video recorders, cell phones,
tablets, e-readers and other electronic devices in my residence or
under my control are subject to search by the Probation Office.
Id. at C1. Appellant asserted this condition was unconstitutional in light of
Commonwealth v. Wilson, 67 A.3d 736 (Pa. 2013). Id. at 8. Appellant
also claimed that the trial court impermissibly delegated the imposition of this
probation condition to Dauphin County Adult Probation and Parole. Id. (citing
Commonwealth v. MacGregor, 912 A.2d 315 (Pa. Super. 2006)).
Appellant also claimed that he was currently detained for violating the
terms of the second revocation sentence. Appellant requested that the
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detainer be lifted due to the illegality of the second revocation sentence. Id.
at 6.
The PCRA court appointed counsel for Appellant. On May 15, 2018,
PCRA counsel filed a motion to withdraw and a no-merit letter.5 PCRA counsel
asserted Appellant’s claim that a county intermediate punishment sentence
could not exceed ninety days of total or partial incarceration lacked merit.
Specifically, PCRA counsel suggested that Appellant misread the statutory
bases for intermediate punishment, partial confinement, and total
confinement. Mot. to Withdraw, 5/15/18, at 5-10 (unpaginated). PCRA
counsel also noted that the original plea agreement to impose concurrent
sentence did not bind the trial court in a subsequent revocation proceeding.
Id. at 10.
As to Appellant’s assertion that his new charges arose from a search of
his cell phone, PCRA counsel stated:
While counsel understands [Appellant’s] new charges are based
on a search of a cell phone he allegedly was using or possessed
while at the work release center, counsel believes that this issue
is best dealt with on direct appeal for his new charges as the
conditions are alleged to provide the basis for his new charges and
were never previously challenged, at this docket, either on direct
appeal or at the time of his resentencing hearings. Thus, this issue
possibly may be ruled waived by [Appellant].
Id. at 10.
____________________________________________
5 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On June 5, 2018, the PCRA court granted PCRA counsel’s motion to
withdraw and issued a Pa.R.Crim.P. 907 notice with an accompanying opinion
addressing Appellant’s issues. First, the PCRA court rejected Appellant’s
arguments that the second revocation sentence was illegal. As to Appellant’s
contention that he could not be ordered to serve more than ninety days in
county prison as part of a county intermediate sentence, the PCRA court
noted:
In this case, [Appellant] was sentenced in October 2016 to
restrictive intermediate punishment—that is, the offender was to
be housed full time for a portion of the intermediate punishment
program. An intermediate punishment sentence is not the same
as a sentence of partial or full confinement as contemplated by 42
Pa.C.S.[ §§] 9755 and 9756.
PCRA Ct. Op. 6/5/18, at 6. The PCRA court also found no merit to Appellant’s
claim that the original plea agreement bound the trial court to sentence
concurrently following a revocation of the original sentence. Id.
Second, the PCRA court found that Appellant waived his challenge to the
probation condition in the second revocation sentence and, in the alternative,
concluded that the claim was meritless. The PCRA court also noted that
Appellant’s claim targeted “his new docket based upon the search of his person
and the search of the cell phone he possessed in violation of the special
conditions.” Id. at 6-7.
On June 21, 2018, the PCRA court received Appellant’s pro se answer to
PCRA counsel’s motion to withdraw and the PCRA court’s Rule 907 notice.
Appellant’s answer included a motion for appointment of new PCRA counsel.
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Among other claims, Appellant asserted that PCRA counsel was ineffective for
failing to meet with him, discuss his claims, and develop his issues. On July
5, 2018, the PCRA court entered the order dismissing Appellant’s PCRA
petition.
In 1286 MDA 2018, Appellant, acting pro se, timely appealed the July
5, 2018 order dismissing his PCRA petition and timely submitted a Pa.R.A.P.
1925(b) statement. The PCRA court filed a responsive opinion.
After taking his appeal from the order dismissing his PCRA petition,
Appellant filed pro se motions in the PCRA court requesting more library
access, which the PCRA court denied on October 22, 2018. Further, he
requested release from confinement pending appeal, which the trial court
denied on April 17, 2019. This Court docketed Appellant’s timely pro se
appeals from the orders denying additional library access and release pending
appeal at 1935 MDA 2018 and 784 MDA 2019, respectively.6
1286 MDA 2018
In 1286 MDA 2018, Appellant presents fourteen questions, which we
have reordered as follows:
____________________________________________
6 Additionally, Appellant has filed several pro se applications for relief in all
three appeals. In 1286 MDA 2018, Appellant filed applications for relief
seeking to strike the PCRA court’s opinion and for summary relief. In 1935
MDA 2018, Appellant filed an application for extension of time to file a reply
brief and an application to strike the Commonwealth’s brief. In 784 MDA
2019, Appellant filed applications for an extension of time and to strike the
Commonwealth’s brief. In light of our disposition herein, we deny Appellant’s
applications for relief as moot.
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[1.] Where a trial court accepts a guilty plea made pursuant to a
negotiated plea bargain and imposes a concurrent sentence in
compliance with the terms of the plea bargain, following a
probation revocation, is the court then bound by the plea bargain
to impose concurrent sentences pursuant to Commonwealth v.
Adebaike, 846 A.2d 759 (Pa. Super. 2004)?
[2.] Whether a trial court can override the requirements set forth
in Title 42 Pa.C.S.[] § 9802 - “Eligible Offender” by sentencing a
[d]efendant convicted on a sexual offense charge to a sentence of
county intermediate punishment probation?
[3.] Whether a trial court may impose a sentence of more than
ninety (90) days of incarceration in either partial or total
confinement in combination with a sentence of county
intermediate punishment probation in violation of Title 42
Pa.C.S.[] § 9755(h) and § 9756(c.1)?
[4.] Whether a sentence imposed at a revocation hearing is illegal
if the underlying sentence was illegal pursuant to [Milhomme]
and if so should both sentences be vacated as legal nullities?
[5.] Is it illegal for the trial court upon sentencing to simply state
“Sexual Offender Conditions” and to not specifically delineate each
condition separately on a sentencing order and instead have a
county probation office(r) draft up a pre-printed document that
specifies conditions out individually in contradiction to the
precedent set forth in [MacGregor] and Commonwealth v.
Vilsaint, 893 A.2d 753 (Pa. Super. 2006)?
[6.] Is it illegal to impose a condition of probation to authorize a
county probation/parole officer to search electronic “data”
pursuant to Title 42 Pa.C.S.[] § 9912(d)(2) as “property” does not
encompass electronic “data” according to Riley v. California, 134
S.Ct. 2473 (2014) as described in United States v. Lara, 815
F.3d 605 (C.A.9 (Cal.) 2016)?
[7.] Is the Dauphin County Adult Probation/Parole Department’s
“Special Conditions for Sexual Offenders” item 12 illegal pursuant
to [Wilson] and Commonwealth v. Walter, 655 A.2d 554 ([Pa.
Super.] 1995) as the consent to search clause sets forth no criteria
for “when” a search can be conducted and does not provide any
form of “neutral” review of the request to search such as the
“reasonable suspicion” requirement set forth in Title 42 Pa.C.S.[]
§ 9912(d)(2)?
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[8.] Is it illegal to impose as a part of a sentence of Probation,
Parole and/or Intermediate Punishment a condition that prohibits
access and/or participation in a social networking website
pursuant to either the ruling in Packingham v. North Carolina,
137 S. Ct. 1730 ([] 2017), the First Amendment of the United
States Constitution and/or Article I, Section 7 of the Pennsylvania
Constitution?
[9.] Is court appointed counsel considered to be ineffective when
counsel never comes out to see her client who is incarcerated and
if counsel continually fails to respond to direct and indirect
requests for a visit and for basic information critical to the case?
[10.] Is the [PCRA] court negligent for not responding at all to a
Motion to Request New Counsel when a [d]efendant brings up
concerns regarding the protection of his Constitutional and Due
Process rights as well as concerns of a violation of Pa.R.Crim.P.
Rule 904(H)(2)(b) and if so, would said negligence of the court
constitute a violation of the Judicial Code of Conduct Rules 2.15(B)
and 2.15(D)?
[11.] Is the [PCRA] court negligent for dismissing a PCRA Petition
without giving the [d]efendant an ample opportunity to then
proceed pro se, by privately retained counsel, or not at all
pursuant to Commonwealth v. Dukeman, . . . 605 A.2d 418([Pa. Super.] 1992)?
[12.] Is the [PCRA] court negligent for not holding a Grazier
hearing [Commonwealth v. Grazier, . . . 713 A.2d 81 ([Pa.
1988)] and colloquy with the [p]etitioner to ensure that his
decision to proceed pro se is knowing, voluntary and intelligent?
[13.] If a judge imposes an initial lawful sentence of probation and
another judge fills in at a revocation hearing and imposes an illegal
sentence, should the illegal sentence be vacated and remanded
back to the original sentencing judge?
[14.] If illegally imposed sentences get vacated by the Superior
Court, would it be a violation of the Judicial Code of Conduct Rule
2.11(A)(5) to then have the case be remanded to the same judge
who imposed said illegal sentences, because the imposition of
sentences constitutes an act of making a judicial decision and to
rule in a particular way?
Appellant’s Brief at 8-13.
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Before addressing Appellant’s claims, we initially note that our standard
of review from the denial of a PCRA petition “is limited to examining whether
the PCRA court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Ousley, 21 A.3d 1238,
1242 (Pa. Super. 2011) (citation omitted). “We defer to the PCRA court’s
factual findings and credibility determinations supported by the record. In
contrast, we review the PCRA court’s legal conclusions de novo.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(en banc) (citations omitted).
Section 9542 of Title 42, defines the scope of the PCRA as follows:
This subchapter provides for an action by which persons convicted
of crimes they did not commit and persons serving illegal
sentences may obtain collateral relief. The action established in
this subchapter shall be the sole means of obtaining collateral
relief and encompasses all other common law and statutory
remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis. This
subchapter is not intended to limit the availability of remedies in
the trial court or on direct appeal from the judgment of sentence,
to provide a means for raising issues waived in prior proceedings
or to provide relief from collateral consequences of a criminal
conviction.
42 Pa.C.S. § 9542. Our Supreme Court has stated that “[t]he purpose of
[PCRA] is not to provide convicted criminals with the means to escape well-
deserved sanctions, but to provide a reasonable opportunity for those who
have been wrongly convicted to demonstrate the injustice of their conviction.”
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 787 (Pa. 2000) (citation
omitted); see also Commonwealth v. Grafton, 928 A.2d 1112, 1114 (Pa.
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Super. 2007) (stating “[t]he purpose behind the passage of the PCRA was to
bring finality to criminal judgments while allowing criminal defendants a fair
opportunity to address, and seek redress for, errors that occurred during trial
and/or sentencing.” (citation omitted)).
To be eligible for relief under the PCRA, a petitioner must establish that
he “has been convicted of a crime under the laws of this Commonwealth and
is at the time relief is granted . . . currently serving a sentence of
imprisonment, probation or parole for the crime” or “serving a sentence which
must expire before the person may commence serving the disputed sentence.”
42 Pa.C.S. § 9543(a)(1)(i), (iii).
Generally, a petitioner may only file a PCRA petition after a conviction
and sentence has become final. Commonwealth v. Leslie, 757 A.2d 984,
985 (Pa. Super. 2000) (per curiam). A petitioner must also demonstrate that
his claims were not previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).
An issue is waived under the PCRA when “the petitioner could have raised it
but failed to do so before trial, at trial, . . . , on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S. § 9544(b).
A critical threshold question in this appeal is whether Appellant is still
serving his second revocation sentence. Although a petitioner may seek PCRA
relief from VOP proceedings, instantly, Appellant did not file his petition while
he was serving his VOP sentence. Rather, Appellant filed his PCRA petition
after the Dauphin County Adult Probation and Parole issued a detainer for his
alleged violation of a condition of that sentence, but prior to the final
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disposition of the alleged VOP before the trial court. Accordingly, it appears
that Appellant is no longer subject to a sentence of incarceration or probation,
but is currently in custody in Dauphin County Prison based on the probation
violation detainer related to the alleged third violation in this case that has yet
to be finalized before the appropriate court.
A revocation of an intermediate punishment sentence, like a revocation
of probation, is a specialized proceeding upon an original conviction. Cf.
Pa.R.Crim.P. 708 (relating to hearings and dispositions for a violation of
probation, intermediate punishment, or parole); Martin v. Pa. Bd. of Prob.
& Parole, 840 A.2d 299, 303 (Pa. 2003) (noting that in a state parole case in
which the defendant committed a new offense, a detainer “is an outstanding
parole-violation charge and essentially constitutes an untried indictment,
information, or complaint that is to be resolved at a probation revocation
hearing”). Our courts recognize that a defendant may obtain judicial review
of a detainer issued upon a violation alleged by a county probation office by
filing a petition for writ of habeas corpus. See Commonwealth v. Kelly, 931
A.2d 694, 695-96 (Pa. Super. 2007) (addressing a challenge to a county
probation detainer as a “pre-trial habeas corpus case”), abrogated on other
grounds by Commonwealth v. Dantzler, 135 A.3d 1109, 1112 n.5 (Pa.
Super. 2016) (en banc)).
Moreover, it is well settled that
when a parolee or probationer is detained pending a revocation
hearing, due process requires a determination at a pre-revocation
hearing . . . that probable cause exists to believe that a violation
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has been committed. Where a finding of probable cause is made,
a second, more comprehensive hearing, a [second] hearing, is
required before a final revocation decision can be made.
Commonwealth v. Heilman, 876 A.2d 1021, 1026 (Pa. Super. 2005)
(citation omitted); see also Gagnon v. Scarpelli, 411 U.S. 778, 781-82
(1973). A defendant has a right to counsel in a revocation proceeding and
may also seek suppression of evidence giving rise to the revocation. See
generally Commonwealth v. Arter, 151 A.3d 149, 167 (Pa. 2016) (holding
that the Pennsylvania Constitution extends the application of the exclusionary
rule to parole and probation revocation proceedings); Commonwealth v.
Fowler, 419 A.2d 34, 35 (Pa. Super. 1980) (noting that a magistrate erred in
requiring a defendant to proceed uncounseled in a preliminary VOP hearing).
Lastly, if the trial court revokes a defendant’s intermediate punishment
sentence, the sentencing alternatives available to the court are “the same as
the alternatives at the time of the initial sentencing.” See 42 Pa.C.S. §
9773(b) (repealed eff. Dec. 18, 2019). The provisions for revoking an
intermediate punishment sentence under former Section 9773 and revoking a
probationary sentence under 9771 are analogous. See Commonwealth v.
Philipp, 709 A.2d 920, 921 (Pa. Super. 1998); see also Commonwealth v.
Mullins, 918 A.2d 82, 85 (Pa. 2007) (describing probation as “a suspended
sentence of incarceration served upon such lawful terms and conditions as
imposed by the sentencing court” and noting that “[p]robation revocation is
not a second punishment for the original conviction, but an integral element
of an original conditional sentence” (citations omitted)).
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In light of the foregoing, it appears that Appellant’s attempt to raise his
claims in a PCRA petition was premature. Appellant is currently in custody
based on detainer for a violation of his intermediate punishment sentence and
the filing of the detainer essentially commenced a discrete proceeding for
revocation and resentencing based on the original conviction. See Martin,
840 A.2d at 303. The PCRA is intended as a remedy for the illegality of a final
conviction and sentence, not as a means to preview or test possible legal
challenges to pending proceedings. Here, Appellant still has ample
opportunities to raise his claims in challenges to the detainer, during a
violation and revocation hearing in the instant case, as well as pre-trial
proceedings on his new charges.
Furthermore, the distinction between the PCRA and alternative methods
of addressing Appellant’s claims is not a mere formality. If this Court were to
construe Appellant’s claims under the PCRA, his right to counsel would derive
from our rules of criminal procedure. See Commonwealth v. Laboy, 230
A.3d 1134, 1138 (Pa. Super. 2020). However, in the course of a violation and
revocation proceeding, a constitutional right to counsel may arise, such that
counsel’s requests to withdraw from representation would be held to a more
stringent standard than in a PCRA proceeding or appeal. See Fowler, 419
A.2d at 35; see generally Pa.R.Crim.P. 122 (discussing right to counsel in
criminal proceedings); Commonwealth v. Wright, 961 A.2d 119, 134 (Pa.
2008) (noting a defendant may seek change of appointed counsel in a criminal
proceeding based on irreconcilable differences); Commonwealth v.
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Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (noting that the procedures
for withdrawal in Anders v. California, 386 U.S. 738 (1967), which apply in
a direct appeal, provide “greater protection” than a Turner/Finley filing,
which applies in PCRA proceedings or appeals from PCRA proceedings).
Similarly, any discussion of the merits of Appellant’s claims within the
framework of the PCRA would necessarily implicate varying burdens of proof
between issues raised in the first instance in a trial court, on direct appeal,
and in a PCRA proceeding and a PCRA appeal. See 42 Pa.C.S. § 9543(a)
(noting that a PCRA petitioner must plead and prove all requirements for
eligibility for relief); compare, e,g., Commonwealth v. Brown, 196 A.3d
130, 144 n.6 (Pa. 2018) (noting that “PCRA proceedings bear some similarities
to civil actions, including that it is the criminal defendant, rather than the
Commonwealth, who must initiate the claim and satisfy the required burden
of proof by a preponderance of the evidence” (citation omitted)), with
Commonwealth v. Enimpah, 106 A.3d 695, 701 (Pa. 2014) (discussing
Commonwealth’s burden in a suppression hearing to produce evidence and
prove an accused’s constitutional rights were not violated), and
Commonwealth v. Wright, 116 A.3d 133, 137 (Pa. Super. 2015) (noting
that the Commonwealth has the burden of proof in a VOP revocation
proceeding).
Accordingly, under the unique circumstances of this appeal, we conclude
that the PCRA court properly dismissed Appellant’s PCRA petition. However,
in light of our conclusion that Appellant has not established that he is currently
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or will be serving his second revocation sentence, we decline to opine on the
merits of the claims raised in this appeal.
1935 MDA 2018
With respect to Appellant’s appeal from the PCRA court’s denial of
additional library access, we conclude that Appellant’s request for additional
library access is moot and dismiss this appeal as it relates to Appellant’s claim
for PCRA relief in 1286 MDA 2018.
We add that Appellant only contends that this appeal involves a
collateral order without addressing any of the merits of his claim. Moreover,
the question of whether a prisoner has access to a law library has not been
held to be a substantial constitutional right. Rather, as the United States
Supreme Court has noted, “prison law libraries and legal assistance programs
are not ends in themselves, but only the means for ensuring a reasonably
adequate opportunity to present claimed violations of fundamental
constitutional rights to the courts.” Lewis v. Casey, 518 U.S. 343, 351
(1996) (citation and quotation marks omitted). The touchstone of any claim
related to prison library access is “meaningful access to the courts” and a
defendant must show an actual harm, such as the inability to pursue a legal
claim based on the lack of library access. See id.Here, Appellant fails to demonstrate “any actual injury” as it relates to
meaningful access to the courts. Accordingly, even assuming we were to
consider the merits of this appeal, the deficiencies in Appellant’s brief would
have required dismissal due to his failure to develop any meaningful appellate
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arguments. See Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super.
2010) (reiterating that “when defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or find
certain issues to be waived.” (citation omitted)).
784 MDA 2019
Lastly, in 784 MDA 2019, Appellant contends that he is entitled to
release under Pa.R.Crim.P 521, which governs bail after a finding of guilt.
However, as noted above, Appellant is currently in custody on a detainer for
an alleged violation of an intermediate probation sentence when Appellant
took this PCRA appeal. Our decision does not prevent Appellant from
requesting the trial court to lift the detainer, as in any case in which a detainer
is imposed. See Commonwealth v. Dunleavy, 805 A.2d 562, 565 (Pa.
Super. 2002). Therefore, we affirm the order entered in this appeal to docket
784 MDA 2019.
Conclusion
In sum, we affirm the PCRA court’s order in 1286 MDA 2018 because
Appellant failed to demonstrate that he was, or would have been subject, to
the terms of the second revocation sentence when he filed the underlying
PCRA. We dismiss the appeal in 1935 MDA 2018 regarding the order denying
Appellant additional access to the prison library as moot in light of our decision
in 1286 MDA 2018 relating to Appellant’s PCRA petition. In the appeal at 784
MDA 2019, we affirm the order denying Appellant’s request for release
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pending appeal under Pa.R.Crim.P. 521, because there is no right to release
on bail during the pendency of a PCRA appeal.
For the above reasons, we affirm the PCRA court’s order in 1286 MDA
2018. We dismiss the appeal in 1935 MDA 2018 as moot. Order in 784 MDA
2019 affirmed. Applications for relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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