Com. v. White, S.

J-A28013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT ALLEN WHITE :
:
Appellant : No. 1816 WDA 2019
Appeal from the PCRA Order Entered November 6, 2019
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000647-2016
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 30, 2020
Appellant, Scott Allen White, appeals pro se from the order entered on
November 6, 2019, which denied his petition filed under the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The Commonwealth accused Appellant of committing numerous sexual
crimes against a 14-year-old girl. Following trial, the jury found Appellant
guilty of: six counts of involuntary deviate sexual intercourse; five counts of
unlawful contact with a minor; five counts of statutory sexual assault; five
counts of aggravated indecent assault; one count of sexual assault; one count
of corruption of a minor; and, 14 counts of indecent assault.1 On November
30, 2017, the trial court sentenced Appellant to serve an aggregate term of
262 to 596 months in prison for his convictions. We affirmed Appellant’s
____________________________________________
1 18 Pa.C.S.A. §§ 3123(a)(7), 6318(a)(1), 3122.1, 3125(a)(8), 3124.1,
6301(a)(1), and 3126(a)(8), respectively.
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judgment of sentence on January 30, 2019. Commonwealth v. White, 209
A.3d 541 (Pa. Super. 2019) (unpublished memorandum) at 1-15.
On March 22, 2019, Appellant filed a timely, pro se PCRA petition and
the PCRA court appointed counsel to represent Appellant during the
proceedings. However, on August 19, 2019, appointed counsel filed a
no-merit letter and a request to withdraw as counsel, pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). After reviewing
counsel's no-merit letter, the PCRA court granted counsel permission to
withdraw and issued Appellant notice, pursuant to Pennsylvania Rule of
Criminal Procedure 907, that it intended to dismiss the petition in 20 days,
without holding a hearing. PCRA Court Order, 8/29/19, at 10.
Appellant responded to the PCRA court’s Rule 907 notice and, in his
response, Appellant declared that he “only intends to present the argument of
his sentence of 262 to 596 months imposed by [the trial court] and begs [the
PCRA court] to present him the statutory authorized legality of such a long
sentence of so many consecutive terms being imposed upon him.” Appellant’s
Response to Rule 907 Notice, 9/13/19, at 3. Appellant requested that the
PCRA court “re-visit [Appellant’s lengthy] imposed sentence nearly amounting
to death by incarceration prior to the complete dismissal of his [PCRA
petition].” Id. at 5-6 (emphasis and some capitalization omitted).
The PCRA court finally dismissed Appellant’s petition on November 6,
2019 and Appellant filed a timely notice of appeal. PCRA Court Order,
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11/6/19, at 4; Appellant’s Notice of Appeal, 12/6/19, at 1. Appellant lists four
claims on appeal:
1. Did the PCRA court err by permitting PCRA counsel to
withdraw under Turner/Finley where Appellant was not
contemporaneously served with a copy of counsel's pleadings
as required by Commonwealth v. Friend, 896 A.2d 607
(Pa. Super. 2006), which prevents him from fairly responding
to counsel's "no-merit" letter in his Rule 907 response?
2. Did PCRA court err by failing to timely consider and address
the merits of Appellant's motion to reconsider the court's
dismissal order before the appellate window expired?
3. Whether the PCRA court erred in dismissing Appellant's
PCRA petition without a hearing and denying him an
opportunity to amend under Rule 905 where issues of
arguable merit were present which required further factual
development at an evidentiary hearing?
4. Whether the PCRA court erred by failing to ensure
Appellant was provided with copies of his trial and sentencing
transcript for purposes of his PCRA prior to dismissing his
petition as meritless?
Appellant’s Brief at 4 (some capitalization omitted).2
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2 The PCRA court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied and listed the following claims in his
Rule 1925(b) statement:
[1.] The PCRA court committed an error of law by permitting
PCRA counsel to withdraw under Turner/Finley where
[Appellant] was not served with a copy of counsel’s pleadings
as required [by] Commonwealth v. Friend, 896 A.2d 607,
614-15 (Pa. Super. 2016) and Commonwealth v. Wrecks,
931 A.2d 717, 721 (Pa. Super. 2007), which prevented him
from filing a reasoned response and demonstrating how PCRA
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“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (internal citations omitted).
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counsel failed to fulfill his duty due to his failure to
contemporaneously serve [Appellant]. . . .
[2.] The PCRA court committed an error of law by failing to
consider and address the merits of [Appellant’s] timely
motion for reconsideration/modification of the court’s order
of November 4, 2019 which preceded the notice of appeal,
but inexplicably went unaddressed until December 12, 2019
due to a breakdown in the process and operations of the court
preventing the proper presentation of issues to be preserved
in a Rule 907 response, and [Appellant] from seeking leave
to amend his timely-filed, first PCRA petition to his prejudice.
...
[3.] The PCRA court committed an error of law by dismissing
[Appellant’s] PCRA [petition] without a hearing where other
issues of arguable merit impacting the legality of the
sentence imposed were present, but overlooked by PCRA
counsel and the court, which warranted a hearing and may
be addressed sua sponte by the Superior Court. Namely, the
constitutionality of the registration requirements imposed
upon him which amount to cumulative punishment in
violation of double-jeopardy.
[4.] The PCRA court erred by failing to ensure that
[Appellant] had copies of his trial and sentencing transcripts
to ensure him of a full and fair review. [Appellant’s] ability
to identify other potential claims that would entitle him to
relief is undeniably compromised by his lack of access to all
relevant transcripts, especially when filing claims pro se
without the benefit of full and complete transcripts, and
where PCRA counsel did not meet with him in person to
review the transcripts.
Appellant’s Rule 1925(b) Statement, 1/27/20, at 2-3.
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To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
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The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
internal quotations and citations omitted). “A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.” Id.
Finally, a PCRA petitioner is not automatically entitled to an evidentiary
hearing on his petition. A PCRA petition may be dismissed without a hearing
if the PCRA court “is satisfied from [its review of the petition] that there are
no genuine issues concerning any material fact and that the [petitioner] is not
entitled to post-conviction collateral relief, and no purpose would be served
by any further proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA
petition raises material issues of fact, the PCRA court “shall order a hearing.”
Pa.R.Crim.P. 908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision
to dismiss a petition without a hearing, an appellant must show that he raised
a genuine issue of fact which, if resolved in his favor, would have entitled him
to relief, or that the court otherwise abused its discretion in denying a
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hearing.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (internal
quotations and citations omitted).
First, Appellant claims that the PCRA court erred when it permitted his
attorney to withdraw because, Appellant claims, counsel failed to
“contemporaneously serve[ him] with a copy of” the Turner/Finley notices
and “no merit” letter. This claim is waived and meritless.
At the outset, Appellant has waived his claim of error, as Appellant did
not object to counsel’s alleged failing in his response to the PCRA court’s Rule
907 notice. Indeed, Appellant’s response to the Rule 907 notice merely
challenged the length of his sentence. See Appellant’s Response to Rule 907
Notice, 9/13/19, at 1-6 (Appellant declared that he “only intends to present
the argument of his sentence of 262 to 596 months imposed by [the trial
court] and begs [the PCRA court] to present him the statutory authorized
legality of such a long sentence of so many consecutive terms being imposed
upon him”). Thus, Appellant waived his claim that the PCRA court erred in
permitting counsel to withdraw under Turner/Finley. See Commonwealth
v. Pitts, 981 A.2d 875, 879 n.3 (Pa. 2009) (holding: a petitioner “waive[s]
any issue pertaining to the adequacy of PCRA counsel’s no-merit letter by
failing to raise it during Rule 907’s 20-day response period”);
Commonwealth v. Freeman, 827 A.2d 385, 397 (Pa. 2003) (“[i]t [is]
elementary that issues not preserved for appellate review or, even if raised at
the trial level, not raised by a party to an appeal, will not be considered by an
appellate court”) (quotations and citations omitted); Pa.R.A.P. 302(a)
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(“[i]ssues not raised in the trial court are waived and cannot be raised for the
first time on appeal”).
Further, even if Appellant had preserved his claim of error, the claim is
factually baseless. As the PCRA court explained:
In his verified motion for leave to withdraw his
representation, [Appellant’s counsel] asserted that he had
advised [Appellant] of his conclusions in a no-merit letter, a
copy of which was attached thereto as Exhibit “A.” The letter
states, in its final paragraph, that “I have served a copy of
this ‘no-merit’ letter and application to withdraw as counsel
contemporaneous with the instant filing upon [Appellant,]
with a statement advising him . . . [of] his right to proceed
pro se or with the assistance of privately retained counsel.”
A copy of [Appellant’s counsel’s] cover letter to [Appellant] is
also attached to the motion as Exhibit “B,” along with a
certificate of service of the motion indicating that [Appellant]
was served at SCI-Forest by first class mail, postage prepaid,
on August 19, 2019 – the same day that the motion was filed.
[Appellant’s] PCRA petition, statement, and other filings
indicate that he is an inmate at SCI-Forest.
PCRA Court Opinion, 1/31/20, at 2-3 (some capitalization omitted).
Thus, even if Appellant had not waived his claim of error, the claim
would fail, as it has no basis in fact.
In his second numbered claim on appeal, Appellant contends that the
PCRA court erred when it failed to “timely consider and address the merits of
Appellant’s motion to reconsider the court’s dismissal order before the
appellate window expired.” Appellant’s Brief at 4. This claim is not reviewable
on appeal. In re Merrick’s Estate, 247 A.2d 786, 787 (Pa. 1968) (“[t]he
refusal of a court to reconsider, rehear or permit reargument of a final decree
is not reviewable on appeal”).
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Next, Appellant claims that the PCRA court erred when it “denied him
an opportunity to amend” his petition and when the court dismissed his
petition without holding a hearing. Appellant’s Brief at 13.
Appellant’s claim that the PCRA court erred when it “denied him an
opportunity to amend” his PCRA petition immediately fails, as Appellant was
expressly granted permission to amend his PCRA petition – and Appellant, in
fact, amended his petition – when counsel filed the application to withdraw
and in Appellant’s response to the PCRA court’s Rule 907 notice. See
Appellant’s Response to Rule 907 Notice, 9/13/19, at 1-6. As such, this claim
is meritless.
Appellant also claims that the PCRA court erred when it dismissed his
petition without a hearing. Within Appellant’s brief, Appellant argues that he
is entitled to a hearing on his ineffective assistance of counsel claims regarding
counsel’s: “fail[ure] to properly file a Pa.R.A.P. 2119(f) statement challenging
the discretionary aspects of the sentence;” “fail[ure] to challenge the legality
of the sentence imposed based on [unspecified] sentences which should have
merged;” and, failure to file a petition for allowance of appeal to the
Pennsylvania Supreme Court. See Appellant’s Brief at 13-16.
Appellant did not raise any of these claims in his Rule 1925(b)
statement. Indeed, within Appellant’s Rule 1925(b) statement, the only claim
that Appellant specifically identifies as worthy of a hearing is his claim
regarding “the constitutionality of the registration requirements imposed upon
him which amount to cumulative punishment in violation of double-jeopardy.”
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Appellant’s Rule 1925(b) Statement, 1/27/20, at 3. Appellant’s brief contains
no argument regarding “the constitutionality of the registration requirements”
and, since Appellant’s Rule 1925(b) statement does not raise the claims he
argues in his brief to this Court, Appellant’s claims on appeal are waived. See
Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)]
Statement . . . are waived”).
Finally, Appellant claims that the PCRA court erred when it “fail[ed] to
ensure Appellant was provided with copies of his trial and sentencing
transcript for purposes of his PCRA prior to dismissing his petition as
meritless.” Appellant’s Brief at 16. This claim is waived because, while
Appellant was acting pro se, Appellant neither requested copies of his
transcripts nor informed the PCRA court that he was missing any necessary
transcripts. Pa.R.A.P. 302(a) (“[i]ssues not raised in the trial court are waived
and cannot be raised for the first time on appeal”).
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2020
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