Opinion
J-S72023-17 No. 1070 EDA 2017
01-26-2018
COMMONWEALTH OF PENNSYLVANIA v. FATIH D. ANDERSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order January 5, 2017 in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0000555-2009, CP-51-CR-0000583-2009, CP-51-CR-0006945-2009 BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY MUSMANNO, J.:
Former Justice specially assigned to the Superior Court.
Fatih D. Anderson ("Anderson") appeals, pro se, from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act. We affirm.
In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 5/2/17, at 1-7.
On appeal, Anderson raises the following issues for our review:
I. Denial of effective assistance of counsel. [Anderson] raised specific issues within his PCRA [P]etition[,] where [Anderson] alleges denial of due process under [A]rticle I, Section 9[,] of the Pennsylvania Constitution[,] as well as
the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
[Anderson] pleads and asserts (5) layered claims of ineffectiveness for this Court's review[:]
(a) Whether [PCRA c]ounsel was ineffective for failing to find trial counsel ineffective for erroneously advising [Anderson] to waive his rights to a jury trial[?]
(b) Whether [PCRA c]ounsel was ineffective for failing to raise trial counsel[']s ineffectiveness for erroneously advising [Anderson] not to testify at [Anderson's] trial[?]
(c) Whether [PCRA c]ounsel was ineffective for failing to raise trial counsel[']s ineffectiveness for failing to object to the perjured testimony of Montrel Green [("Montrel")?]
(d) Whether [PCRA c]ounsel was ineffective for failing to object and raise for appellant [sic] review, the prosecution[']s subornation of perjury[?]
(e) Whether [PCRA c]ounsel was ineffective for failing to raise trial counsel's ineffectiveness, for failing to object[] and preserve a Brady claim referencing to [Pa.R.Crim.P.] Rule 573[?]
II. Whether [Anderson's] right to have an open [c]ourtroom was violated?
III. Newly-Discovered Evidence[,] 42 Pa.[]C.S.A. § 9545[]([b])(1)(ii)[.] Whether [trial] counsel was ineffective for failing to properly investigate and develop the claims and/or omissions made in two separate affidavits, from two separate key Commonwealth witness[e]s[?]
IV. Whether the [PCRA] court erred by allowing [PCRA c]ounsel to withdraw[,] and forcing [Anderson] to proceed pro se[,] although the issues are of arguable merit[,] and the court[']s decision to allow counsel to withdraw constru7ctively [sic] denied [Anderson] access to the court during [his] PCRA litigation[?]Brief for Appellant at viii-ix (emboldening omitted, footnote added).
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
Brady v. Maryland , 373 U.S. 83 (1963)
As a prefatory matter, we consider whether Anderson has waived the issue of PCRA counsel's ineffectiveness for failing to raise it prior to the instant appeal. In Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) (en banc), this Court opined that claims of PCRA counsel's ineffectiveness may not be raised for the first time on appeal. See also Commonwealth v. Ford , 44 A.3d 1190, 1200-01 (Pa. Super. 2012) (holding that claims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter).
Here, Anderson did not raise PCRA counsel's ineffectiveness before the PCRA court. Rather, Anderson raised the issue of PCRA counsel's ineffectiveness for the first time in his Pa.R.A.P. 1925(a) Concise Statement, after he had filed his Notice of Appeal. Consequently, we cannot address Anderson's claims of PCRA counsel's ineffectiveness at I(a)-(e) and II. See Henkel , 90 A.3d at 20; see also Ford , 44 A.3d at 1200-01.
In his issue II, Anderson contends that PCRA counsel rendered ineffective assistance by not raising a claim that direct appeal counsel was ineffective for failing to raise an issue regarding the denial of Anderson's right to an open courtroom. See Brief for Appellant at 21. --------
In his issue III, Anderson contends that after trial, he received affidavits from two Commonwealth witnesses: Montrel and Derick Williams ("Williams"). Brief for Appellant at 24. Anderson asserts that the affidavits constitute newly-discovered evidence under 42 Pa.C.S.A. § 9545(b)(1)(ii), and that he included the affidavits in an amended Petition filed within sixty-day period provided by section 9545(b)(2). Id. at 26. Anderson claims that the affidavits constitute recantation evidence, which would have been favorable to Anderson's case. Id. at 26-27, 30. Anderson argues that he had no way of obtaining the affidavits prior to trial, as he was an indigent prisoner awaiting the appointment of counsel. Id. at 27.
In its Opinion, the PCRA court addressed Anderson's issue III, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 5/2/17, at 15-18. We agree with the reasoning of the PCRA court, which is supported by the evidence of record and is free of legal error, and affirm on this basis as to Anderson's issue III. See id.
In his issue IV, Anderson contends that the PCRA court erred by "allowing [PCRA c]ounsel to withdraw[,] and forcing [Anderson] to proceed pro se in spite of the fact that there was [sic] issues of arguable merit in this case[,] and that the [c]ourt's decision to allow [c]ounsel to withdraw constructively denied [Anderson] counsel during this plea litigation." Brief for Appellant at 33.
In its Opinion, the PCRA court addressed Anderson's issue IV, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 5/2/17, at 20-21. As we agree with the PCRA court's determination that Anderson's non-waived issues lack merit, we conclude that the PCRA court did not err by permitting PCRA counsel to withdraw from representation. Accordingly, we affirm on this basis as to Anderson's issue IV. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/26/18
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