J-S61020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
DANIEL LEWIS
Appellant No. 757 EDA 2017
Appeal from the PCRA Order January 19, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1201581-2005
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 17, 2017
Appellant, Daniel Lewis, appeals from the order entered January 19,
2017, denying his petition for collateral relief filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We adopt the following procedural history from the PCRA court opinion,
which in turn is supported by the record. See PCRA Court Opinion (PCO),
1/20/17, at 1-3. In September 2005, Appellant was arrested and charged
with murder and related offenses. Following a February 2007 mistrial,
Appellant was convicted by a jury on September 19, 2007, of first-degree
murder, firearms not to be carried without a license, and possession of an
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S61020-17
instrument of crime.1 That same day, Appellant was sentenced to mandatory
life imprisonment and an additional three and one-half to seven years of
incarceration.
Appellant’s judgment of sentence was affirmed on appeal. See
Commonwealth v. Lewis, 981 A.2d 925 (Pa. Super. 2009) (unpublished
memorandum). In July 2010, Appellant pro se filed a PCRA petition. In
January 2012, he requested that his right to petition for allowance of appeal
to the Pennsylvania Supreme Court be reinstated. This request was granted,
and the Supreme Court denied allowance of appeal. See Commonwealth v.
Lewis, 54 A.3d 437 (Pa. 2012) (unpublished memorandum).
In September 2013, Appellant pro se timely filed a PCRA petition, a
request for leave to file an amended petition, a motion for production of
transcripts and original discovery, and a request for discovery and
Brady/Giglio2 material. The PCRA petition itself did not outline any claims
Appellant wished to raise beyond checking boxes indicating he would raise
claims of a violation of the Constitution of the Commonwealth or the United
States, and ineffective assistance of counsel.
Counsel was appointed, but did not file an amended petition on
Appellant’s behalf. In July 2016, the court appointed Gary Server, Esq., to
1 See 18 Pa.C.S. §§ 2502(a), 6106, and 907, respectively.
2See United States v. Giglio, 92 S. Ct. 763 (1972); Brady v. Maryland, 83 S. Ct. 1194 (1963).
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represent Appellant. Attorney Server filed a Turner/Finley3 letter and sought
to withdraw representation. The letter averred that Attorney Server had
reviewed Appellant’s motions and the records and had contacted him for
clarification. The court indicates that Appellant mailed a letter indicating he
would respond to the Finley letter. However, this letter was not filed and
does not appear on the docket or in the certified record. On September 29,
2016, the court sent Appellant notice pursuant to Pa.R.Crim.P. 907 that his
petition would be dismissed without a hearing.
The court indicates that on October 21, 2016, Appellant mailed a
response to the Finley letter raising additional claims. However, this letter
was not filed and does not appear on the docket or in the certified record.
Attorney Server filed an amended Finley letter on December 15, 2016. By
letter dated December 15, 2016, and post-marked December 27, 2016,
Appellant filed a motion requesting additional time to file a response to the
notice of intent to dismiss and Finley letter. He claimed that he mistakenly
sent his responses directly to the court and not the filing office and that
Attorney Server’s Finley letter was in legal error. Appellant did not raise
additional or specific claims.
On January 20, 2017, the court formally dismissed Appellant’s petition
by order and opinion. It did not order him to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal or issue a further opinion. ____________________________________________
3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).
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On appeal, Appellant raises the following questions for our review:
A. Is PCRA counsel’s Finley letter holding that Appellant’s PCRA is frivolous and the record of his case contains no meritorious claims and the [court’s] agreement with the Finley letter in legal error, when the record contains meritorious claims that are apparent and appellant presented meritorious claims?
B. Did PCRA counsel and [the court] commit legal error in his Finley by holding as meritless appellant’s claim that Judge Hughes abused discretion in denying defense motion to recuse based on prejudice/biasness [sic] judicial misconduct that created the appearance of impropriety, and appellant counsel wasn’t ineffective for failing to raise issue on appeal?
C. Did PCRA counsel and [the court] commit legal error by using Finley to hold as meritless appellant’s claim that Judge Hughes committed bad faith judicial misconduct that denied appellant a fair trial and due process and that appellate counsel wasn’t ineffective for failing to raise issue [sic] on appeal?
D. Did PCRA counsel and [the court] commit legal error by using Finley to hold as meritless appellant’s claim that Judge Hughes abused her discretion in denying defense motion to disqualify a biased juror who had engaged in jury misconduct/ex parte contact with a commonwealth witness and appellate counsel wasn’t ineffective for not raising issue on appeal?
Appellant’s Brief at vii.4
Initially, we note several deficiencies in Appellant’s brief. He does not
include a proper statement of the scope and standard of review. See
Pa.R.A.P. 2111(a)(3). Additionally, it contains a number of exhibits in the
reproduced record which were not included in the certified record below. See
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (noting that ____________________________________________
4 Appellant’s brief was untimely filed. However, on September 1, 2017, Appellant filed an application for relief, requesting that we consider his brief timely filed. We grant his application and will consider the merits of his brief.
-4- J-S61020-17
matters not of record cannot be considered on appeal, and an appellate court
is limited to considering only the materials in the certified record). However,
based upon our resolution of Appellant’s issues, we need not find waiver on
that basis.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
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J-S61020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
DANIEL LEWIS
Appellant No. 757 EDA 2017
Appeal from the PCRA Order January 19, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1201581-2005
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 17, 2017
Appellant, Daniel Lewis, appeals from the order entered January 19,
2017, denying his petition for collateral relief filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We adopt the following procedural history from the PCRA court opinion,
which in turn is supported by the record. See PCRA Court Opinion (PCO),
1/20/17, at 1-3. In September 2005, Appellant was arrested and charged
with murder and related offenses. Following a February 2007 mistrial,
Appellant was convicted by a jury on September 19, 2007, of first-degree
murder, firearms not to be carried without a license, and possession of an
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S61020-17
instrument of crime.1 That same day, Appellant was sentenced to mandatory
life imprisonment and an additional three and one-half to seven years of
incarceration.
Appellant’s judgment of sentence was affirmed on appeal. See
Commonwealth v. Lewis, 981 A.2d 925 (Pa. Super. 2009) (unpublished
memorandum). In July 2010, Appellant pro se filed a PCRA petition. In
January 2012, he requested that his right to petition for allowance of appeal
to the Pennsylvania Supreme Court be reinstated. This request was granted,
and the Supreme Court denied allowance of appeal. See Commonwealth v.
Lewis, 54 A.3d 437 (Pa. 2012) (unpublished memorandum).
In September 2013, Appellant pro se timely filed a PCRA petition, a
request for leave to file an amended petition, a motion for production of
transcripts and original discovery, and a request for discovery and
Brady/Giglio2 material. The PCRA petition itself did not outline any claims
Appellant wished to raise beyond checking boxes indicating he would raise
claims of a violation of the Constitution of the Commonwealth or the United
States, and ineffective assistance of counsel.
Counsel was appointed, but did not file an amended petition on
Appellant’s behalf. In July 2016, the court appointed Gary Server, Esq., to
1 See 18 Pa.C.S. §§ 2502(a), 6106, and 907, respectively.
2See United States v. Giglio, 92 S. Ct. 763 (1972); Brady v. Maryland, 83 S. Ct. 1194 (1963).
-2- J-S61020-17
represent Appellant. Attorney Server filed a Turner/Finley3 letter and sought
to withdraw representation. The letter averred that Attorney Server had
reviewed Appellant’s motions and the records and had contacted him for
clarification. The court indicates that Appellant mailed a letter indicating he
would respond to the Finley letter. However, this letter was not filed and
does not appear on the docket or in the certified record. On September 29,
2016, the court sent Appellant notice pursuant to Pa.R.Crim.P. 907 that his
petition would be dismissed without a hearing.
The court indicates that on October 21, 2016, Appellant mailed a
response to the Finley letter raising additional claims. However, this letter
was not filed and does not appear on the docket or in the certified record.
Attorney Server filed an amended Finley letter on December 15, 2016. By
letter dated December 15, 2016, and post-marked December 27, 2016,
Appellant filed a motion requesting additional time to file a response to the
notice of intent to dismiss and Finley letter. He claimed that he mistakenly
sent his responses directly to the court and not the filing office and that
Attorney Server’s Finley letter was in legal error. Appellant did not raise
additional or specific claims.
On January 20, 2017, the court formally dismissed Appellant’s petition
by order and opinion. It did not order him to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal or issue a further opinion. ____________________________________________
3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).
-3- J-S61020-17
On appeal, Appellant raises the following questions for our review:
A. Is PCRA counsel’s Finley letter holding that Appellant’s PCRA is frivolous and the record of his case contains no meritorious claims and the [court’s] agreement with the Finley letter in legal error, when the record contains meritorious claims that are apparent and appellant presented meritorious claims?
B. Did PCRA counsel and [the court] commit legal error in his Finley by holding as meritless appellant’s claim that Judge Hughes abused discretion in denying defense motion to recuse based on prejudice/biasness [sic] judicial misconduct that created the appearance of impropriety, and appellant counsel wasn’t ineffective for failing to raise issue on appeal?
C. Did PCRA counsel and [the court] commit legal error by using Finley to hold as meritless appellant’s claim that Judge Hughes committed bad faith judicial misconduct that denied appellant a fair trial and due process and that appellate counsel wasn’t ineffective for failing to raise issue [sic] on appeal?
D. Did PCRA counsel and [the court] commit legal error by using Finley to hold as meritless appellant’s claim that Judge Hughes abused her discretion in denying defense motion to disqualify a biased juror who had engaged in jury misconduct/ex parte contact with a commonwealth witness and appellate counsel wasn’t ineffective for not raising issue on appeal?
Appellant’s Brief at vii.4
Initially, we note several deficiencies in Appellant’s brief. He does not
include a proper statement of the scope and standard of review. See
Pa.R.A.P. 2111(a)(3). Additionally, it contains a number of exhibits in the
reproduced record which were not included in the certified record below. See
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (noting that ____________________________________________
4 Appellant’s brief was untimely filed. However, on September 1, 2017, Appellant filed an application for relief, requesting that we consider his brief timely filed. We grant his application and will consider the merits of his brief.
-4- J-S61020-17
matters not of record cannot be considered on appeal, and an appellate court
is limited to considering only the materials in the certified record). However,
based upon our resolution of Appellant’s issues, we need not find waiver on
that basis.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48 A.3d
1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995
A.2d 1184, 1189 (Pa. Super. 2010)).
Appellant raises a number of issues of ineffective assistance of counsel.
However, claims that are not raised in a PCRA petition may not be raised for
the first time on appeal. See Commonwealth v. Rigg, 84 A.2d 1080, 1084
(Pa. 2014); see also Pa.R.A.P. 302(a). Appellant filed a number of motions
in the court below, but did not plead and preserve these issues in his PCRA
petition. The PCRA petition itself states only that he seeks to raise issues of
constitutional violations and ineffective assistance of counsel, but Appellant
never articulated his claim. Nor did Appellant seek leave to amend his
petition. See, e.g., Commonwealth v. Mason, 130 A.3d 601, 627 (Pa.
2015); see also Pa.R.C.P. 905(A). Accordingly, all claims related to trial and
appellate issues are waived. See Riggs, 84 A.2d at 1084; Pa.R.A.P. 302.
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Additionally, Appellant’s claims related to PCRA counsel’s ineffectiveness
are waived. Such a claim may be raised in a response to the court’s
Pa.R.Crim.P. 907 notice. See, e.g., Commonwealth v. Henkel, 90 A.3d 16,
20 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014). However, the
notice, issued September 26, 2016, provided that Appellant must file a
response within twenty days. Appellant did not file a response until December
27, 2016, far beyond the provided time period. Accordingly, he has waived
his issue for purposes of appeal.
Counsel was properly permitted to withdraw after fulfilling the
requirements of Turner/Finley. Where counsel determines that there are no
meritorious issues raised in a PCRA petition, and the court agrees, counsel
may withdraw after filing a “no merit” letter. See Turner, 544 A.2d at 928-
29; Finley, 550 A.2d at 215. Specifically, 1) counsel must detail the nature
and extent of his review; 2) counsel must list each issue the petitioner wishes
to have reviewed; 3) counsel must explain why petitioner’s issues are
meritless; 4) the PCRA court conducts its own independent review of the
record; and 5) the PCRA court agrees with counsel that the petition is
meritless. Id. Attorney Server complied with the requirements of
Turner/Finley, and the PCRA court conducted its own review of the record
and found Appellant’s issues to be meritless. Accordingly, there was no error
in the court’s order granting counsel’s petition to withdraw and dismissing the
PCRA petition. Brown, 48 A.3d at 1277.
Application for relief granted. Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/17/2017
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