Com. v. Dickerson, I. ( 2015 )


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  • J-S27018-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    ISAAC DICKERSON
    Appellant                       No. 2639 EDA 2014
    Appeal from the PCRA Order entered July 31, 2014
    In the Court of Common Pleas of Lehigh County
    Criminal Division at No: CP-39-CR-0002660-2010
    BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
    MEMORANDUM BY STABILE, J.:                                 FILED AUGUST 26, 2015
    Appellant, Isaac Dickerson, appeals pro se from the July 31, 2014
    order entered in the Court of Common Pleas of Lehigh County, dismissing his
    petition for collateral relief filed pursuant to the Post Conviction Relief Act
    (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.
    On direct appeal, this Court adopted portions of the trial court’s
    comprehensive summary of evidence presented at trial in this case.
    Commonwealth           v.    Dickerson,        I.,   905   EDA   2011,   unpublished
    memorandum at 1-6 (Pa. Super. filed March 23, 2012). For purposes of this
    appeal, it is sufficient to know that on January 21, 2011, a jury found
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-S27018-15
    Appellant guilty of second degree murder, robbery, burglary, theft by
    unlawful taking, and criminal conspiracy to commit robbery,[1] all stemming
    from events that occurred in the early morning hours of March 15, 2010. On
    February 23, 2011, the trial court sentenced Appellant to a term of life
    imprisonment without possibility of parole for the murder conviction and an
    aggregate consecutive sentence for the remaining convictions.          The trial
    court denied Appellant’s post-sentence motions on March 17, 2011.
    Appellant filed a direct appeal to this Court contending the verdict was
    against the weight of the evidence and alleging trial court error for denying a
    new trial based on newly discovered evidence, for failing to schedule the
    hearing of a witness, and for denying his pre-trial motion to sever his trial
    from that of his co-defendant and brother, Kyle Dickerson.           This Court
    affirmed Appellant’s judgment of sentence on March 23, 2012.          Appellant
    filed a petition for allowance of appeal, which our Supreme Court denied on
    August 23, 2012.
    Appellant filed a timely pro se Petition for “Post Conviction Collateral
    Relief” on August 21, 2013. The PCRA court appointed counsel who filed a
    Finley2 no-merit letter after reviewing the file and speaking with Appellant.
    The PCRA court scheduled an April 10, 2014 hearing, during which PCRA
    ____________________________________________
    1
    18 Pa.C.S.A. §§ 2502(b), 3701, 3502, 3921, and 903, respectively.
    2
    Commonwealth v. Finley, 
    550 A.2d 213
    (Pa. Super. 1988) (en banc).
    -2-
    J-S27018-15
    counsel stated his conclusion that each of Appellant’s six issues was without
    merit. In the course of the hearing, the following exchanges occurred:
    PCRA Counsel: [] I spoke with [Appellant] over at [Lehigh
    County Prison] on two different occasions after being appointed
    to review his petition, to make sure that I was addressing
    everything that he wanted to address.
    I believe there were six issues. After investigating those
    six issues I came to the conclusion that they are all without
    merit.
    I wrote him a Finley letter explaining the reasons that I
    believe those issues were without merit.
    If you want I can address each one or, do you have a copy
    of my letter?
    The Court: I should. I do. It is not necessary that you outline
    each item.
    [PCRA Counsel]: So based on the – my investigation and my
    belief that they either have been previously litigated or they lack
    merit, I filed a Motion to withdraw and I seek to be withdrawn
    from this case, Your Honor.
    The Court: All right. Mr. Dickerson. . . . Do you understand
    what’s happening here?
    [Appellant]: Yes, ma’am, I do.
    The Court: And what is your position?
    [Appellant]: I don’t have a problem with him withdrawing from
    my case but if you – if I had to go pro se, I will. But I’m just
    asking if I do go pro se, you just grant me all my, all my legal
    matters that I need to continue on with my petitions, transcripts,
    everything I need, if I have to go pro se.
    The Court:      Yes.    I’m going to allow [PCRA counsel] to
    withdraw, which leaves you with these options.
    You represent yourself. You hire private counsel or you
    withdraw it. So based on now two lawyers telling you that there
    is no merit, so what is your desire?
    [Appellant]: I’m gonna pro se myself [sic].
    -3-
    J-S27018-15
    ***
    The Court: [] Okay. So we need to continue the matter so that
    [Appellant] can represent himself. . . . How much time are you
    requesting to get yourself together and ready for the hearing?
    [Appellant]: 90 days.
    The Court: Any objection?
    [District Attorney]: No.
    The Court:      That takes us to July.    We’ll do Wednesday, July
    23rd, 9:30.
    ***
    [PCRA counsel]: Your Honor, I’ll just give him the entire file
    that I have.
    The Court: Sounds good.
    Notes of Testimony, PCRA Hearing, 4/10/14, at 3-6.
    A July 10, 2014 docket entry reflects that Appellant filed a pro se
    “Petition for Post Conviction Relief/Appointment of Counsel [and] Request for
    Evidentiary Hearing,” asserting allegations of both PCRA and trial counsel
    ineffectiveness, seeking appointment of new counsel, and requesting a new
    trial or evidentiary hearing.3 By order entered July 15, 2014, the PCRA court
    ____________________________________________
    3
    Although the July 10, 2014 filing is entitled “petition,” it is more accurately
    characterized as an 18-page brief. In the document, Appellant argued PCRA
    and trial counsel ineffectiveness for failing to request a crimen falsi
    instruction, for failing to request an “anti-corroboration” instruction, for
    failing to raise the cumulative effect of errors in the jury instructions, and for
    failing to raise an objection to the jury venire panel as not representative of
    (Footnote Continued Next Page)
    -4-
    J-S27018-15
    denied Appellant’s request for counsel and scheduled the evidentiary hearing
    on the “Petition for Post Conviction Collateral Relief” for July 23, 2014, the
    date previously fixed for the hearing at the conclusion of the April 10
    proceedings.
    Appellant appeared for the July 23, 2014 hearing. Because Appellant’s
    trial counsel was not available to testify, the PCRA court rescheduled the
    hearing for July 31, 2014 and granted Appellant’s request to remain in the
    Lehigh County Prison pending the hearing.
    The PCRA court reconvened Appellant’s evidentiary hearing on July 31,
    2014. Appellant and trial counsel appeared and Appellant was afforded the
    opportunity to examine trial counsel. However, Appellant did not have any
    paperwork with him, explaining he did not bring it with him from jail
    “because I thought we were gonna come down here and talk about the brief
    that I put in for the ineffective [appointed PCRA] counsel.”       N.T. PCRA
    Hearing, 7/31/14, at 5-6. When Appellant attempted to turn his questioning
    to the subject of PCRA counsel, the PCRA court stated, “We’re not here for
    that. . . . You have filed your PCRA against your trial counsel.” 
    Id. at 12.
    Appellant explained, “I want to pursue the issue that I raised in my brief
    summary that I sent to you and to the District Attorney, not the issues I had
    _______________________
    (Footnote Continued)
    the community. Appellant also alleged he was denied his rule-based right to
    effective assistance due to PCRA counsel’s ineffectiveness for failing to
    review the record and raise meritorious claims.
    -5-
    J-S27018-15
    in my PCRA, because I already disclosed that.” 
    Id. at 13.
    The PCRA court
    responded, “Well, it doesn’t work that way. That’s not the way the system is
    designed to work.” 
    Id. at 13-14.
    Appellant confirmed he did not want to
    pursue the six issues of trial counsel ineffectiveness addressed in PCRA
    counsel’s Finley letter, but wanted instead “to pursue the issues that I have
    in my brief that I sent you and the District Attorney.” 
    Id. at 14.
    The PCRA
    court responded, “Then your PCRA motion is going to be dismissed. And if
    there is something that you wish to re-file and you properly do that, then
    we’ll hear it.” 
    Id. at 14-15.
    The PCRA court continued, explaining:
    [Appellant] has indicated on the record that he no longer wishes
    to pursue the issues that were framed in his original PCRA or
    framed in [PCRA counsel’s] Finley letter. So there is nothing to
    pursue here.
    Go back to state prison and if you wish to pursue something
    else, then file it, and we’ll see where we are.
    
    Id. at 15.
    At the conclusion of the hearing, the PCRA court entered an order
    dismissing Appellant’s “Petition for Post Conviction Collateral Relief.”
    In his timely appeal from the July 31, 2014 order, Appellant raises six
    issues, five of which (Issues B through F) are the same issues Appellant
    raised in his pro se July 10, 2014 filing with the PCRA court.4            See
    ____________________________________________
    4
    See footnote 3. The sixth issue, Issue A in Appellant’s brief, alleges PCRA
    court error for not allowing Appellant to argue the claims raised in his July
    10, 2014 filing during the hearing held on July 31.
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    Appellant’s Brief at 4; pro se Petition for Post Conviction Relief, 7/10/14, at
    7-17.
    As this Court recently explained:
    In PCRA appeals, our scope of review “is limited to the findings
    of the PCRA court and the evidence on the record of the PCRA
    court’s hearing, viewed in the light most favorable to the
    prevailing party.” Commonwealth v. Sam, 
    597 Pa. 523
    , 
    952 A.2d 565
    , 573 (2008) (internal quotation omitted). Because
    most PCRA appeals involve questions of fact and law, we employ
    a mixed standard of review. Commonwealth v. Pitts, 
    603 Pa. 1
    , 
    981 A.2d 875
    , 878 (2009). We defer to the PCRA court’s
    factual findings and credibility determinations supported by the
    record. Commonwealth v. Henkel, 
    90 A.3d 16
    , 20 (Pa. Super.
    2014) (en banc). In contrast, we review the PCRA court’s legal
    conclusions de novo. 
    Id. Commonwealth v.
    Reyes-Rodriguez, 
    111 A.3d 775
    , 779 (Pa. Super.
    2015 (en banc).
    At the heart of this appeal is Appellant’s attempt to obtain relief based
    on ineffective assistance of counsel claims not raised in his original PCRA
    petition or in appointed counsel’s Finley no-merit letter but raised instead in
    the “petition” he filed on July 10, 2014.        It is clear from the exchange
    between Appellant and the PCRA court at the July 31 hearing that the PCRA
    court did not accept Appellant’s July 10 filing as an amendment to
    Appellant’s PCRA petition. We find no error in this regard.
    As our Supreme Court has explained:
    Our criminal procedural rules reflect that the PCRA judge “may
    grant leave to amend . . . a petition for post-conviction collateral
    relief at any time,” and that amendment “shall be freely allowed
    to achieve substantial justice.”       Pa.R.Crim.P. 905(A); see
    Commonwealth v. Williams, 
    573 Pa. 613
    , 633, 
    828 A.2d 981
    ,
    -7-
    J-S27018-15
    993 (2003) (noting that the criminal procedural rules
    contemplate a “liberal amendment” policy for PCRA petitions).
    Nevertheless, it is clear from the rule’s text that leave to
    amend must be sought and obtained, and hence,
    amendments are not “self-authorizing.” Commonwealth
    v. Porter, 
    613 Pa. 510
    , 523, 
    35 A.3d 4
    , 12 (2012). Thus, for
    example, a petitioner may not “simply ‘amend’ a pending
    petition with a supplemental pleading.” 
    Id. Rather, Rule
           905 “explicitly states that amendment is permitted only
    by direction or leave of the PCRA Court.” 
    Id. at 523–24,
    35
    A.3d at 12; see also Williams, (indicating that the PCRA court
    retains discretion whether or not to grant a motion to amend a
    post-conviction petition). It follows that petitioners may not
    automatically “amend” their PCRA petitions via responsive
    pleadings.
    Commonwealth v. Baumhammers, 
    92 A.3d 708
    , 730 (Pa. 2014)
    (emphasis added).5
    At no time did Appellant request the opportunity to amend the PCRA
    petition that was the subject of the scheduled July 31, 2014 hearing. At the
    initial evidentiary hearing on April 10, Appellant did not seek leave to
    amend.     Rather, in response to the PCRA court’s inquiry as to how much
    time Appellant needed to “get [himself] together and ready for the hearing,”
    Appellant simply responded, “90 days.” N.T. PCRA Hearing, 4/10/14, at 5.
    
    Id. When Appellant
    filed a petition on July 10 seeking appointment of
    counsel and, for the first time, raising issues of both layered ineffectiveness
    ____________________________________________
    5
    Compare Commonwealth v. Boyd, 
    835 A.2d 812
    , 817 (Pa. Super. 2003)
    (by permitting appellant to file supplement to PCRA petition and then
    considering it, PCRA court effectively allowed appellant to amend his PCRA
    petition to include issues presented in supplement).
    -8-
    J-S27018-15
    and PCRA counsel ineffectiveness, the PCRA court denied Appellant’s request
    for counsel and, as noted above, ordered that the evidentiary hearing on
    Appellant’s original petition seeking “Post Conviction Collateral Relief” take
    place on July 23, 2014, the date fixed for the hearing at the conclusion of
    the April 10 hearing. PCRA Court Order, 7/15/14, at 1. The PCRA court did
    not suggest it would entertain the July 10 filing as an amended PCRA
    petition.   In fact, the PCRA court did not even allude to the July 10 filing
    during the July 31 hearing, referring instead to Appellant’s claims of trial
    counsel ineffectiveness and disallowing any questioning or argument from
    Appellant beyond his original pro se petition or PCRA counsel’s Finley no-
    merit letter.6
    Our reading of the April 10 and July 31, 2014 PCRA hearing transcripts
    leads us to conclude the PCRA court never authorized Appellant to amend his
    PCRA petition, and the record does not reflect any request by Appellant for
    an opportunity to do so.        However, the PCRA court did not foreclose that
    possibility, commenting at the July 31 proceeding that, “[I]f there is
    something that you wish to re-file and you properly do that, then we’ll hear
    it[,]” and “Go back to state prison and if you wish to pursue something else,
    then file it, and we’ll see where we are.” N.T. PCRA Hearing, 7/31/14, at 15.
    ____________________________________________
    6
    We also note the PCRA court’s Rule 1925(a) opinion does not discuss
    Appellant’s July 10 filing.
    -9-
    J-S27018-15
    We recognize Appellant is proceeding pro se. However, as this Court
    has cautioned, while we are “willing to construe liberally materials filed by a
    pro se litigant, pro se status generally confers no special benefit upon an
    appellant.” Commonwealth v. Lyons, 
    833 A.2d 245
    , 251-52 (Pa. Super.
    2003) (citations omitted)). “Accordingly, a pro se litigant must comply with
    the procedural rules set forth in the Pennsylvania Rules of Court.”     
    Id. at 252.
    As explained by our Supreme Court in Baumhammers, to preserve
    additional PCRA claims, a petitioner must seek leave to amend his petition.
    Appellant did not do so.    Instead, he abandoned the issues raised in his
    PCRA petition, leaving the PCRA court without any ineffectiveness claims to
    consider.   Because the issues Appellant asks this Court to review were not
    raised in his PCRA petition or in PCRA counsel’s no-merit letter and because
    no request was made to amend his petition to include them, Appellant’s
    claims are waived. 
    Baumhammers, 92 A.3d at 731
    . Therefore, we may
    not consider them.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/26/2015
    - 10 -