Com. v. Slowe, T. (memorandum)

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J-S26004-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. TYRONE SLOWE, Appellant No. 1529 EDA 2011 Appeal from the PCRA Order Entered May 16, 2011 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002955-2008 BEFORE: BENDER, P.J.E., SHOGAN, J., and FITZGERALD, J.* MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 24, 2014 Appellant, Tyrone Slowe, appeals pro se order denying his petition for post conviction relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. For the following reasons, we affirm. Appellant was charged on May 8, 2008, with two counts of murder and persons not to possess a firearm, based on evidence that he and two accomplices shot and killed victims Tyrone Nelson and Jimmy Armstrong on April 16, 2008. On February 18, 2009, Appellant entered a negotiated nolo contendere plea to those charges. Pursuant to the plea agreement, the ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S26004-14 incarceration. He filed a direct appeal to this Court, solely arguing that his plea was not knowing, intelligent, and voluntary. On March 3, 2010, we subsequently denied his petition for permission to appeal. Commonwealth v. Slowe, 996 A.2d 556 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 8 A.3d 344 (Pa. 2010). On December 22, 2010, Appellant filed a pro se PCRA petition. The court appointed Henry DiBenedetto Forrest, Esq., to represent Appellant. On April 18, 2011, Attorney Forrest filed with the PCRA court a petition to Commonwealth v. Turner, 544 A.2d 213 (Pa. Super. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On April 19, 2011, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to 8. The PCRA court notice and incorporated it into the record pursuant to Pa.R.A.P. 1926, -2- J-S26004-14 despite its facial untimeliness,1 the Office of Judicial Support of Delaware County (OJSDC). See id. On May 16, 2011, the PCRA court issued an order dismissing Appellant filed a timely pro se notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 13, 2011, this Court received a detailed Rule 1925(a) opinion from the PCRA court. Appellant filed a pro se brief with this Court on November 21, 2011, presenting the following three issues for our review: a) Did the PCRA court error [sic] in dismissing the Appellants [sic] motion for post-conviction collateral relief without an evidentiary hearing and argument, without allowing Appellant [the] opportunity to fix, cure and amend his petition pursuant to [Pa.R.Crim.P.] 905[,] specifically rejecting petitioners [sic] witnesses/Commonwealth witnesses [sic] recantation affidavits/evidence without a hearing, thus leaving meritorious issues unresolved[?] b) Did the PCRA court error [sic] when it accepted appointed PCRA counsels [sic] Finley letter and allowed counsel to withdraw when counsel failed to comply completely with the requirements of Turner/Finley, in that counsel failed to contact Appellant concerning any of his issues and those issues [Appellant] wished to have amended, [] counsel failed to support his assertions with law and fact, [] counsel failed to investigate the credibility of witnesses [sic] recantation evidence [and] ____________________________________________ 1 20 days, or by May 9, 2011. -3- J-S26004-14 totally disregarded Appellants [sic] letters detailing Appellants [sic] desire and wishes for counsel to amend his petition[?] c) Did the [PCRA] court error [sic] in failing to conduct a personal or independent review of each issue Appellant raised in his petition, and those issues Appellant wished raised [sic] in his amended petition[?] On February 21, 2012, Appellant filed with this Court a pro se ompel the OJSDC to provide him with, inter alia 2/21/12, at 2. On March 20, 2012, this Court issued a per curiam order provide [] Appellant, either directly or via prior counsel, with copies of any Superior Court Order, 3/20/12. On June 6, 2012, this Court received a letter from the PCRA court indicating that the OJSDC had transmitted all record filings to Appellant, and Appellant all documents in their possession.2 Nevertheless, Appellant has continued to file pro se petitions with this Court insisting that he has not ____________________________________________ 2 a letter from Douglas Smith, Esq., stating that he had transmitted all documents in See PCRA attached a letter from Attorney Forrest listing the documents he had transmitted to Appellant. See id. -4- J-S26004-14 received all of the documents that he requested, apparently believing that such documents are still in the possession of the PCRA court, OJSDC, or prior counsel. Specifically, we have received the following pro se filings from Appellant: documents have been transmitted to Appellant, we deny each of the abovelisted petitions for relief and/or stays of the appellate proceedings. However, we have one additional pro se motion to address. On May originally [in his possession] at the time he submitted his pro se petition[,] statements supported his claims of t Accordingly, he asked that this Court permit him to file a supplemental brief his case and direct the PCRA court to permit him to amend his PCRA petition asserting novel claims stemming from this new evidence. -5- J-S26004-14 On June 5, 2013, this Court issued a per curiam order granting 19, 2013, Appellant raises the following three issues for our review: A. Whether PCRA counsel [was] ineffective for failing to conduct a thorough examination of the record and [for] failing to raise all eyewitnesses to the crime, thus leaving meritorious issues unresolved? B. Whether PCRA counsel was ineffective for failing to raise [the] suppression of [a] highly suggestive identification of Appellant, and constitutionally infirm incriminating evidence thereby leaving Appellant subject to irreparable misidentification? C. Whether PCRA counsel was ineffective for failing to raise issues concerning the voluntariness of the plea, most notably, the plea? uest that we remand his case and allow him to amend his PCRA petition. For the reasons that follow, we now deny not raised in his PCRA petition; thus, this Court may not consider them on appeal.3 See Commonwealth v. Knighten, 742 A.2d 679, 683 (Pa. Super. ____________________________________________ 3 (Footnote Continued Next Page) -6- J-S26004-14 Commonwealth v. Wallace, 724 A.2d 916, 921 n.5)). Moreover, in Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), our Supreme Court held that this precise type of new claim, alleged in a remand motion before [the] Court during the pendency of a PCRA appeal, must be filed as a second PCRA petition, which may not be filed until [the appellate court] completes its review of the pending PCRA matter. [Id.] at 587-88. Permitting a PCRA petitioner to append new claims to the appeal already on review would wrongly subvert the time limitation and serial petition restrictions of the PCRA. Id. Commonwealth v. Bond, 819 A.2d 33, 52 (Pa. 2002). Pursuant to Lark, ring the pendency of this appeal. Appellant must file a second pro se PCRA petition within 60 days of the date on which this memorandum decision is filed and raise those claims before the PCRA court.4 Accordingly, we deny his petition to remand. (Footnote Continued) _______________________ appeal, and See raised in accordance with the provisions of this paragraph (b)(4) are 4 Appellant will also be required to plead and prove the applicability of an -year timeliness requirement. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). -7- J-S26004-14 We now move on to address the merits of the issues presented in Statement of the Questions Involved (reproduced supra), we ascertain at least 12 different claims and sub-claims in the Argument portion of his brief, including the following: petition without a hearing to assess the credibility of the recantation testimony of Bridgett Slowe and Quiana Colbert? (2) Whether the PCRA court erroneously deprived Appellant of the opportunity to amend his PCRA petition pursuant to Pa.R.Crim.P. 905? Id. at 11, 12-13. reasonably evaluate the Id. at 12. potential e [PCRA] counsel to for amendment of the (4) Was PCRA counsel ineffective for failing to file an amended Id. at 15. (5) Did the PCRA court err in dismissing Appella inadequate? Id. at 14-15. (6) Was PCRA counsel ineffective for failing to communicate with Appellant? Id. at 15. (7) Was trial counsel ineffective for allowing Appellant to enter a plea of nolo contendere where counsel knew: (a) about the recantations of Ms. Slowe and Ms. Colbert; (b) that Commonwealth witness Manbir Singh could not identify Appellant as the shooter; (c) that DNA evidence on the murder weapon indicated that Appellant was not the shooter; -8- J-S26004-14 (d) that Commonwealth witness Eulicious Johnson had a motive to lie and inculpate Appellant? Id. at 15-16. contendere plea where Appellant continued to innocence during the plea proceeding? Id. at 16. nolo assert his (9) Did the PCRA court err by failing to conduct its own independent review of the record and the issues raised in Id. at 17. than that in which they are presented. , were not asserted in his Rule 1925(b) statement and, thus, they are waived. See Pa.R.A.P. has failed to provide a coherent analysis. Specifically, in support of his claim that his PCRA counsel was ineffective for failing to communicate with him, Appellant provides the following argument: Appellant would argue that Postconviction [sic] court erred in dismissing postconviction [sic] petition on the basis of no-merit[] letter, which cryptically stated which failed to explain that which was reviewed and investigated, where letter indicated that counsel reviewed specific notes of testimony but review revealed that the issues were previously litigated. However, the letter lacked Appellant [sic] Amended issues. Thus, contrary to counsel [sic] claiming in his Finley/Turner no merit letter, than [sic] he communicated communicated this concern with Appellant. [sic -9- Thus, if this was J-S26004-14 amend Appellants [sic] petition to include the meritorious issues Appellant wanted raised. confusing to allow us to meaningful review this claim; thus, it is waived. See Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (finding issue waived for lack of development where the appellant failed to cite to any legal authority and did not develop any cogent argument) (citations omitted). encompasses the following three sentences: Appellant further argues that the PCRA court failed to sic] own independent review of the issues and record, as it must, before it can similarely [sic] dismiss a PCRA petition. Com[monwealth] v. Mosteller Super. 1993). Nowhere, in the courts [sic] opinion can it be said that the court provided proof that it conducted an independent review. The failure to do so constitute[s] error and the case must be remanded and an attorney appointed to represent [] Appellant. unconvincing. While Mosteller reiterates the requirement that a PCRA court must conduct its own independent review of the record prior to permitting counsel to withdraw, the detailed opinion of the PCRA court in this case is See Mosteller, 633 A.2d at 617. i.e. numbers (1), (2), (4), (5), (7)(a), (7)(c), and (8), above), we conclude that the thorough opinion - 10 - J-S26004-14 sentencing proceedings, as well as his current PCRA petition, 5 accurately disposes of these claims. Accordingly, we adopt her well-reasoned assessment of those issues as our own, and affirm the order denying 6 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2014 ____________________________________________ 5 Judge Jenkins formerly sat on the bench of the Court of Common Pleas of Delaware County, but is currently serving as a judge on this Court. 6 To reiterate, we deny deny we remand his case for further proceedings. - 11 - May 13, 2013

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