Com. v. Seifert, R.

• Court: Superior Court of Pennsylvania
• Decided: December 30, 2022
• Docket: 760 EDA 2022
• Status: Unpublished

Opinion

J-S30029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDY EDWARD SEIFERT : : Appellant : No. 760 EDA 2022

Appeal from the PCRA Order Entered February 18, 2022 In the Court of Common Pleas of Wayne County Criminal Division at No(s): CP-64-CR-0000031-2020

BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 30, 2022

Randy Edward Seifert (Appellant) appeals, pro se, from the order

entered in the Wayne County Court of Common Pleas dismissing his first

petition filed pursuant to the Post Conviction Relief Act (PCRA).1 Appellant

seeks relief from his guilty plea to charges of driving under the influence of

alcohol (DUI), recklessly endangering another person (REAP), resisting

arrest,2 and related offenses as a result of his involvement in a December

2019 motor vehicle crash. On appeal, Appellant argues: (1) he did not receive

a prompt hearing following his apprehension on a bench warrant and plea

counsel was ineffective for failing to raise this claim; (2) he is entitled to credit ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 See 75 Pa.C.S. § 3802(a)(1); 18 Pa.C.S. §§ 2705, 5104. J-S30029-22

for time served as a result of his pretrial detention; and (3) PCRA counsel was

ineffective for failing to amend his pro se petition after Appellant discovered

new evidence to support his claims. For the reasons below, we affirm.

On December 8, 2019, Appellant was involved in a motor vehicle

accident; he was driving the car, and his wife and two minors were

passengers.3 See Affidavit of Probable Cause, 1/7/20, at 1; Criminal

Information, 2/14/20, at 1. When the Pennsylvania State Police arrived,

Appellant was visibly intoxicated and combative. See Affidavit of Probable

Cause at 1. He was subsequently charged with 24 offenses,4 including

aggravated assault,5 DUI and endangering the welfare of a child.6

On February 4, 2020, a bench warrant was issued for Appellant when

he failed to comply with a fingerprint order. He was arrested on February

26th. That same day, the trial court entered an order, setting bail at $50,000

unsecured, and placing Appellant on bail supervision by the Wayne County

Adult Probation Department. See Order, 2/26/20.

On July 23, 2020, the Commonwealth filed a petition to revoke bail,

asserting, inter alia, that Appellant was no longer checking in with his ____________________________________________

3 The minors’ relationship to Appellant and his wife is unclear in the record. We note that neither the transcript from the guilty plea hearing nor the sentencing hearing is included in the certified record.

4 Fifteen of the charges were for summary offenses.

5 18 Pa.C.S. § 2702(a)(3).

6 18 Pa.C.S. § 4304(a)(1).

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probation officer, and had been arrested for public drunkenness in a

neighboring county. See Commonwealth’s Petition to Revoke Bail, 7/23/22,

at 1-2 (unpaginated). The trial court conducted a hearing on July 30th and

entered an order revoking Appellant’s bail that same day.

On August 11, 2020, the Commonwealth filed a petition for a bench

warrant. It asserted that although “Wayne County Adult Probation [had] lost

contact with [Appellant],” Appellant was “apprehended in Luzerne County” on

unrelated charges on August 9th. See Commonwealth’s Petition for Bench

Warrant, 8/11/20, at 1-2 (unpaginated). The next day, the trial court issued

a bench warrant for Appellant’s apprehension. See Order, 8/12/20. Although

the certified record is not entirely clear, it appears Appellant was released in

Luzerne County, and another bench warrant was issued by Luzerne County

for his arrest when he failed to appear for a preliminary hearing. See Motion

to Withdraw as Counsel, 11/5/21, Exhibit A, Counsel’s “No Merit” Letter, at 3.

He was subsequently apprehended on September 27, 2020, and remained

incarcerated in Luzerne County throughout these proceedings. The Wayne

County bench warrant was rescinded on October 15, 2020.7

On November 5, 2020, Appellant entered a guilty plea to one count each

of DUI, REAP, resisting arrest, disorderly conduct,8 false reports to law

____________________________________________

7 The order was docketed the following day, October 16, 2020.

8 18 Pa.C.S. § 5503(a)(1).

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enforcement,9 and driving while operating privilege is suspended.10 In

exchange for the plea, the Commonwealth nolle prossed the remaining

charges. Appellant appeared for sentencing on January 28, 2021. The court

imposed an aggregate term of 24 to 48 months’ imprisonment, consisting of

the following consecutive terms: 12 to 24 months for REAP, 9 to 18 months

for resisting arrest, and 3 to 6 months for DUI. The court also imposed

concurrent terms of 6 to 12 months for disorderly conduct, and 60 days for

driving under suspension, and a $200 fine for false reports to law

enforcement. Appellant filed a timely post-sentence motion requesting

reconsideration of his sentence, which the court denied on February 9, 2021.

No direct appeal was filed. Appellant was represented by John J. Martin, II,

Esquire, throughout these proceedings.

On June 17, July 6, and July 21, 2021, Appellant filed several pro se

requests that the court award him credit for time served in pretrial detention

─ specifically, from February 23 to February 25, 2020, and from September

27, 2020, to January 28, 2021. See Appellant’s Letter, 6/17/21; Appellant’s

Letter, 7/6/21; Appellant’s Petition for Credit for Imprisonment While in

Custody Prior to Sentence, 7/21/21. Thereafter, on August 5, 2021, Appellant

filed the present, timely PCRA petition, asserting: (1) he was never “brought

before a judge for a Bond Hearing within 72 hours” of his September 27, 2020, ____________________________________________

9 18 Pa.C.S. § 4906(a).

10 75 Pa.C.S. § 1543(b)(1)(i).

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arrest on the bench warrant; (2) he was “incarcerated indefinitely” from

September 27, 2020, to January 28, 2021, and did not receive credit for time

served; and (3) he was never informed why his bail was revoked. See

Appellant’s Motion for Post Conviction Relief, 8/5/21, at 3-4. Appellant

averred Attorney Martin was ineffective for failing to raise these claims before

the trial court. See id. at 4. Less than a week later, on August 10th, the

PCRA court appointed Christine Rechner, Esquire, as PCRA counsel.

Meanwhile, Appellant continued to file redundant pro se requests seeking

credit for time served, as well as a pro se motion to reduce his sentence. See

Appellant’s Motion to Modify and Reduce Sentence, 10/20/21.

On November 5, 2021, Attorney Rechner filed a motion to withdraw as

counsel, and a Turner/Finley11 “no merit” letter, explaining why she believed

Appellant’s claims were meritless. See Motion to Withdraw as Counsel,

11/5/21, Exhibit A, Counsel’s “No Merit” Letter. Attorney Rechner detailed

her investigation of Appellant’s claims, which included reviewing Appellant’s

criminal docket in Luzerne County and interviewing Attorney Martin. See

Counsel’s “No Merit” Letter at 2. She concluded: (1) Appellant was not

entitled to time served credit in the present case for his pretrial detention in

Luzerne County because he was in custody for Luzerne County charges; (2) ____________________________________________

11 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), provide the framework for a withdrawal request by PCRA counsel. See Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (detailing Turner/Finley requirements).

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Appellant’s bail hearing was not unreasonably delayed because the records

from the probation department “contained no information as to the day Wayne

County officials were notified of” Appellant’s September 27th Luzerne County

arrest; and (3) Attorney Martin was not ineffective for failing to raise these

claims. See id. at 4-5. Appellant filed a pro se response on November 30th,

stating, inter alia, that he had proof Wayne County was promptly notified of

his arrest in Luzerne County, namely, a September 29, 2020, Facebook

posting of his “capture” by the Wayne County Sheriff’s Department. See

Appellant’s Letter, 11/30/21, at 2 (unpaginated). Thus, he insisted “[t]here

was a delay or failure by [Attorney Martin] to act in regards [sic] to the Wayne

County Bench Warrant, issued . . . August 12, 2020.” Id.

On December 6, 2021, the PCRA court entered an order advising

Appellant of its intent to dismiss his petition pursuant to Pa.R.Crim.P. 907 and

granting Attorney Rechner’s motion to withdraw. See Order, 12/6/21.

Appellant filed a pro se response, and on January 4, 2022, the PCRA court

dismissed Appellant’s petition. See Order, 1/4/22.

However, one week later, the PCRA court vacated both its December

6th and January 4th orders, and reinstated Attorney Rechner as PCRA counsel.

Order, 1/11/22. Shortly thereafter, on January 21st, the PCRA court issued

new notice of its intent to dismiss Appellant’s petition pursuant to Rule 907,

but included an opinion detailing its bases for doing so. See Opinion, Order,

& Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907, 1/21/22 (PCRA

Ct. Op.). The court agreed with Attorney Rechner’s assessment of Appellant’s

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claims, opining that Appellant was not entitled to credit for time served in

Luzerne County prior to his Wayne County guilty plea and sentencing hearing,

and that Attorney Martin was not ineffective for failing “to act with respect to

the Wayne County bench warrant and the hearing required on its dismissal.”

See PCRA Ct. Op. at 3-5. By separate order, the PCRA court, once again,

granted Attorney Rechner’s motion to withdraw. See Order 1/21/22.

Appellant filed an untimely response, asserting Attorney Rechner’s

ineffectiveness for failing to speak with him after her appointment as counsel.

See Appellant’s Answer to Pa.R.Crim.P. 907, 2/15/22, at 2.12

On February 18, 2022, the PCRA court entered an order dismissing

Appellant’s petition, and Appellant filed this timely appeal. Thereafter, the

trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Order, 3/31/22.13 Appellant complied with

the court’s directive, and filed a Rule 1925(b) statement raising the following

claims: (1) the ineffective assistance of Attorney Martin and Attorney Rechner

12Although Appellant’s answer was date-stamped as received on February 17, 2022, the attached envelope bears a postage stamp of February 15, 2022. “Under the prisoner mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing.” Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). Thus, we deem Appellant’s answer as filed on February 15th. Nevertheless, the court’s Rule 907 notice was mailed to Appellant on January 21, 2022; so, his reply was due within 20 days, or no later than February 10, 2022. See Pa.R.Crim.P. 907(1); Notice, 1/21/22 (informing Appellant he had 20 days to respond).

13 The order was not sent to Appellant until the next day, April 1, 2022.

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for “not challenging the bench warrant” so that the court could “have given

[him] an opportunity to make bail[;]” (2) newly discovered evidence, which

proved that Attorney Rechner was ineffective for rejecting his bench warrant

claim; and (3) Attorney Martin’s ineffectiveness for failing to request Appellant

receive credit for time served at sentencing. Appellant’s Pa.R.A.P. 1925(b)

Concise Statement of Matters Complained Of, 4/20/22, at 1-3 (unpaginated).

The PCRA court filed a Statement of Reasons on April 22, 2022, relying upon

its January 21, 2022, Opinion as dispositive of Appellant’s claims.

Preliminarily, we note that Appellant’s pro se brief fails to conform in

material respects with the Pennsylvania Rules of Appellate Procedure. See

Pa.R.A.P. 2111(a). Specifically, his brief lacks a statement of jurisdiction, a

statement of the scope and standard of review, a sufficient statement of the

case,14 a summary of the argument, and most notably, a statement of

questions involved. See Pa.R.A.P. 2111(a), 2114, 2116, 2117, 2118. Indeed,

this Court has emphasized that the lack of a statement of questions involved

“is particularly grievous since the statement of questions involved defines the

specific issues this Court is asked to review.” Commonwealth v. Maris, 629

A.2d 1014, 1016 (Pa. Super. 1993).

It is well-established that “pro se defendants are subject to the same

rules of procedure as are represented defendants.” Commonwealth v. ____________________________________________

14 Under the heading “Relevant Case History,” Appellant states only that the PCRA court dismissed his petition on February 18, 2022. See Appellant’s Brief at 1 (unpaginated).

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Blakeney, 108 A.3d 739, 766 (Pa. 2014). Therefore, an appellate brief filed

by a defendant proceeding pro se “must conform materially to the

requirements of the Pennsylvania Rules of Appellate Procedure, and this Court

may quash or dismiss an appeal if the defect in the brief is substantial.”

Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017)

(citations omitted). As the Supreme Court has explained:

Although the courts may liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon a litigant, and a court cannot be expected to become a litigant’s counsel or find more in a written pro se submission than is fairly conveyed in the pleading.

Blakeney, 108 A.3d at 766.

Nevertheless, we decline to quash the present appeal, despite the

substantial defects in Appellant’s brief, because we are able to discern the

following three issues for review: (1) whether Appellant’s right to a prompt

bench warrant hearing was violated, and whether Attorney Martin was

ineffective for failing to raise this claim before the trial court; (2) whether

Attorney Martin was ineffective for failing to request Appellant receive credit

for time served at his sentencing hearing; and (3) whether Attorney Rechner

was ineffective for failing to amend his PCRA petition based on newly

discovered evidence.15 See Appellant’s Brief at 2-8 (unpaginated). ____________________________________________

15 We note Appellant presents an additional claim which he did not preserve in his Pa.R.A.P. 1925(b) statement ─ that he was denied due process of law when Attorney Martin filed a post sentence motion for “Steven Fisher” rather than Appellant. See Appellant’s Brief at 4 (unpaginated). See also Pa.R.A.P. (Footnote Continued Next Page)

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Our standard of review of an order denying PCRA review is well-

established: “[W]e determine whether the ruling of the PCRA court is

supported by the record and is free of legal error.” Commonwealth v.

Webb, 236 A.3d 1170, 1176 (Pa. Super. 2020). Where, as here, a PCRA

petitioner challenges prior counsel’s ineffectiveness, we must bear in mind the

following:

Pennsylvania law presumes counsel has rendered effective assistance. When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate: (1) the underlying claim has arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and, (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail.

Commonwealth v. Mullen, 267 A.3d 507, 512 (Pa. Super. 2021) (citations

omitted), appeal denied, 275 A.3d 488 (Pa. Mar. 23, 2022).

Appellant’s first claim concerns the purported lack of a prompt bench

warrant hearing in Wayne County following his September 27, 2020, arrest in

Luzerne County. Appellant maintains he was arrested on September 27th on

1925(b)(4)(vii) (issues not preserved in court-ordered Rule 1925(b) statement are waived). He insists the trial court “denied the Motion as if [he] was Steven Fisher.” Appellant’s Brief at 4 (unpaginated). Even if preserved, however, Appellant’s claim would fail. Although the conclusory paragraph of the post-sentence motion refer to “Steven Fisher,” this appears to be a typographical error. See Appellant’s Motion for Post Sentence Relief Pursuant to Rule 720 Pa.R.Crim.P., 2/5/21 at 2. The caption and supporting paragraphs all refer to Appellant, and the details regarding the sentence imposed and requests for relief clearly apply to Appellant’s sentence. See id. at 1-2. Thus, even if he had preserved this claim, Appellant would be entitled to no relief.

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“two (2) separate bench warrants[;]” one for the present case in Wayne

County and the other for a separate case in Luzerne County. Appellant’s Brief

at 2 (unpaginated). He insists the Luzerne County bench warrant was lifted

the next day, but he was “unable to post bond due to [the Wayne County]

bench warrant[.]” Id. Appellant argues he never received a hearing on the

Wayne County bench warrant as is required, and Attorney Martin did not raise

this claim in the trial court. See id. at 2-3, 7. He requests either credit for

time served, or “release . . . from confinement.” Id. at 8.

Pursuant to Pennsylvania Rule of Criminal Procedure 150 when a

defendant is arrested pursuant to a bench warrant, he “shall be taken without

unnecessary delay for a hearing on the bench warrant” before the court that

issued the warrant. Pa.R.Crim.P. 150(A)(1).16 Moreover, where, as here, the

defendant is arrested outside the county that issued the bench warrant, Rule

150 requires “the authority in charge of the county jail promptly . . . notify

the proper authorities in the county of issuance that the individual is being

held pursuant to the bench warrant.” Pa.R.Crim.P. 150(A)(4). After the

defendant is “lodged in the jail of the county of issuance on that bench

warrant[,]” a bench warrant hearing “shall be conducted without unnecessary

delay[,]” but no longer than 72 hours. Pa.R.Crim.P. 150(A)(5)(b). Subsection

16In his filings in the trial court and his brief on appeal, Appellant refers to Pennsylvania Rule of Civil Procedure 1910.13-1, which governs bench warrants issued in child support matters, and is inapplicable here. See Pa.R.C.P. 1910.13-1.

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(A)(7) provides that if the hearing is not held within the time limits provided

in the Rule, “the bench warrant shall expire by operation of law.” Pa.R.Crim.P.

150(A)(7).

Here, the record is clear that while Appellant was apprehended in

Luzerne County on September 27, 2020, his bench warrant in Wayne County

was not dismissed until October 15, 2020. The PCRA court determined “the

probation records contained no information as to the date Wayne County

officials were notified of the arrest, but there is documentation of a Writ issued

to Luzerne County on October 7, 2020.” PCRA Ct. Op. at 5. Appellant was

subsequently transported to Wayne County on October 14th, and the bench

warrant was dismissed the next day. Id. He was then transferred back to

Luzerne County on October 19, 2020, where he remained through his

sentencing in the present case. Id. Thus, the court concluded “the time line

. . . does not present a delay or failure of [Attorney Martin] to act with respect

to the Wayne County bench warrant and the hearing required on its dismissal.”

Id.

Appellant provides us with no basis to disturb the ruling of the PCRA

court. Furthermore, even if we agreed with Appellant’s assertion that he was

denied a prompt bench warrant hearing in Wayne County, he would be entitled

to no relief. Pursuant to Rule 150, the only relief available for a violation of

the rule is the expiration of the bench warrant. See Pa.R.Crim.P. 150(A)(7).

That relief is now moot since Appellant has pled guilty to and been sentenced

for the charges at issue. Furthermore, Appellant downplays the fact that he

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was also facing charges in Luzerne County, where he was incarcerated until

his sentencing hearing in this case. Thus, even if Attorney Martin was

ineffective for failing to ensure Appellant had a prompt bench warrant hearing

in Wayne County ─ a fact not supported by the record17 ─ Appellant suffered

no prejudice since he was incarcerated at all relevant times in Luzerne County

for pending charges in that county. Accordingly, no relief is warranted.

Next, Appellant contends Attorney Martin rendered ineffective

assistance when he failed to request Appellant receive credit for time served

prior to his sentencing ─ specifically, from February 24 to 26, 2020, and from

September 27, 2020, until January 28, 2021. See Appellant’s Brief at 4

(unpaginated). We disagree.

Preliminarily, we note that “[a]n attack upon the court’s failure to

give credit for time served is an attack upon the legality of the sentence and

it cannot be waived[; thus, it] may be addressed under the PCRA.”

Commonwealth v. Davis, 852 A.2d 392, 399–400 (Pa. Super. 2004)

(citations omitted).

17 We note that the Rule requires a hearing within 72 hours after “the individual is lodged in the jail of the county of issuance on that bench warrant.” Pa.R.Crim.P. 150(A)(5) (emphasis added). Appellant does not dispute the PCRA court’s finding that he was transported to Wayne County prison on October 14, 2021, and the bench warrant was rescinded the next day. Rather, Appellant’s claim focuses on the notification requirement in Rule 150(A)(4). The 72-hour time limit does not apply to that Section. See Pa.R.Crim.P. 150(A)(5)(b), (A)(7).

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Sentencing credit for time served is governed by 42 Pa.C.S. § 9760,

which provides, in pertinent part, “the court shall give credit as follows:

(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

* * *

(4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.

42 Pa.C.S. § 9760(1), (4). Accordingly, a defendant is entitled to “credit as

of right” if two conditions are met: “(1) the time must be ‘spent in custody’

and (2) the time must be ‘as a result of the criminal charge for which a prison

sentence is imposed or as a result of the conduct on which such a charge is

based.’” Commonwealth v. Nobles, 198 A.3d 1101, 1106 (Pa. Super. 2018)

(citations omitted). However, when a defendant is “in custody” for charges

unrelated to those for which they seek time credit, they are not entitled to

credit under Section 9760. This Court’s decision in Commonwealth v.

Miller, 655 A.2d 1000 (Pa. Super. 1995), is dispositive.

In Miller, the defendant was arrested for drug offenses on March 26,

1993 and, after posting bail, was released on April 2nd. See Miller, 655 A.2d

at 1001. Subsequently, in July and August of 1993, he was arrested on

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unrelated assault and robbery charges ─ both of which arose from the same

incident. Id. He remained incarcerated on those charges until his trial and

acquittal in January of 1994. Id. In the meantime, the defendant pled guilty

to the drug charges in November of 1993, and was sentenced in February of

1994. Id. He later sought credit “for all time during which he had been

incarcerated before being sentenced.” Id. Although the trial court gave the

defendant credit for the period he was in custody on the drug offenses before

posting bail (March 26 to April 2), it refused to give him credit for time served

from July of 1993 through January of 1994, when “he was in custody following

arrest for the unrelated charges of aggravated assault and robbery.” Id. at

1001-02.

On appeal, the defendant argued that he was entitled to credit for time

served pursuant to Section 9760(4), which provides that “credit must be given

for all pre-sentence time spent in custody, even time served on unrelated

charges, where credit has not otherwise been given therefor.” Miller,

655 A.2d at 1003 (emphasis added). Thus, the defendant reasoned that

“[b]ecause he was acquitted of the unrelated aggravated assault and robbery

charges, . . . he did not receive credit against any other sentence for the time

he was in custody on these charges; and, therefore, . . . he must be given

credit under § 9760(4) against his sentence for delivery of a controlled

substance.” Id.

The Miller Court rejected the defendant’s claim, opining:

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Under the facts of the instant case, . . . 42 Pa.C.S. § 9760(4) is inapplicable. Here, [the defendant] was not in custody for any other charges at the time he was arrested for [drug offenses]. He had been arrested on the drug charge on March 26, 1993, and had posted bail on April 2, 1993. From the moment he posted bail on the drug charge and was released, [the defendant] was no longer in custody on that charge. Therefore, when he was later arrested on unrelated charges and spent time in prison awaiting trial thereon, he was not entitled to credit on account of the drug charge. As to such charge he was free on bail and did not serve time.

Miller, 655 A.2d at 1003–04 (footnote & citation omitted).

The facts of Appellant’s case are indistinguishable from Miller. The

record reveals a bench warrant was issued for Appellant on February 4, 2020,

when he failed to comply with a fingerprint order. See Order, 2/4/20. After

he was arrested on February 26th, bail was set at $50,000 unsecured, and

the bench warrant was rescinded. See Order, 2/26/20. The record does not

support Appellant’s assertion that he was incarcerated from February 24,

2020, until February 26, 2020 ─ thus, he is not entitled to any credit for time

served during that period.

Moreover, Appellant cannot establish that any of the time he spent in

custody from September 27, 2020, until his sentencing hearing on January

28, 2021, was for the criminal charges at issue herein. Rather, Appellant was

in custody in Luzerne County during that time for charges filed in Luzerne

County ─ not for the Wayne County charges in this case. Accordingly, like the

defendant in Miller, Appellant is entitled to no relief, and his challenge to

Attorney Mullen’s ineffectiveness fails as it lacks arguable merit. See Mullen,

267 A.3d at 512.

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Lastly, Appellant contends Attorney Rechner was ineffective for failing

to amend his PCRA petition based on “newly discovered evidence that would

exonerate” him. Appellant’s Brief at 7 (unpaginated) (capitalization omitted).

He described this “new evidence” as follows:

The new evidence was, on 9-29-20 the Wayne County Sheriff's Office knew of [Appellant’s] w[he]reabouts. The Wayne County Sheriff's Office posted [Appellant’s] capture on Facebook [─] “Update – Randy Seifert was picked up in Luzerne County, warrant to be dismissed when Seifert is returned to Wayne County.” Attorney Rechner said she did [extensive] research and that there was only a writ issued on 10-7-2020 of [Appellant’s] whereabouts to Luzerne County.[18] However, it is apparent that she was in error because Wayne County Sheriff’s Office knew of [his] whereabouts on September 29, 2020.

Id. at 6 (some capitalization, emphasis & punctuation omitted).

Preliminarily, we note that in Commonwealth v. Bradley, 261 A.3d

381 (Pa. 2021), our Supreme Court held that “a PCRA petitioner may, after a

PCRA court denies relief, and after obtaining new counsel or acting pro se,

raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so,

even if on appeal.” Id. at 401. If a petitioner provides “more than mere

boilerplate assertions of PCRA counsel’s ineffectiveness[, and] establish[s]

that there are issues of material facts concerning claims challenging counsel’s

stewardship and that relief may be available[,]” they may be entitled to a

18Appellant is referring to Attorney Rechner’s assertions in the Motion to Withdraw as Counsel and accompanying “No Merit” letter she filed in the PCRA court. See Motion to Withdraw as Counsel, at 1 (unpaginated); Counsel’s No Merit Letter at 2, 5.

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remand for an evidentiary hearing. Commonwealth v. Parrish, 273 A.3d

989, 1006 (Pa. 2022).

Here, Appellant is entitled to no relief. As explained supra, even if we

agreed that Appellant was denied a prompt bench warrant hearing in Wayne

County following his Luzerne County arrest, he would be entitled to no relief.

Appellant remained incarcerated in Luzerne County for the charges he faced

there. Thus, he would not have been released, and he is not entitled to credit

for time served on his Wayne County sentence. Because Appellant cannot

demonstrate prejudice, his challenge to PCRA counsel’s ineffectiveness fails.

See Mullen, 267 A.3d at 512.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/30/2022

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