Opinion
J-S66010-18 No. 3230 EDA 2017
12-19-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. HOSEA BOYD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order September 28, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000258-2012 BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Hosea Boyd, appeals from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition brought pursuant to the Post-Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. On February 8, 2013, Appellant entered a negotiated guilty plea to possession with intent to distribute a controlled substance and conspiracy. The court sentenced Appellant that same day to an aggregate term of 2 to 4 years' imprisonment, plus 5 years of probation, in accordance with the plea agreement. Appellant did not file a direct appeal.
On April 22, 2014, Appellant filed a pro se PCRA petition. Appellant stated he had just learned, sometime after February 23, 2014, that Officer Jeffrey Walker, who was part of the narcotics team that arrested Appellant, had "planted" narcotics in other cases. The PCRA court appointed counsel on September 30, 2015. Counsel filed an amended petition on October 5, 2015, which alleged Appellant did not knowingly and voluntarily enter his guilty plea because he was unaware of the investigation of Officer Walker at the time of Appellant's plea. The PCRA court did not issue notice pursuant to Pa.R.Crim.P. 907 or hold an evidentiary hearing. On September 28, 2017, the PCRA court denied relief. Appellant timely filed a notice of appeal on October 3, 2017, and a voluntary concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on December 8, 2017.
Appellant raises the following issue for our review:
DID THE [PCRA] COURT ERR IN FAILING TO GRANT PCRA RELIEF WITHOUT PERMITTING DISCOVERY AND WITHOUT HOLDING AN EVIDENTIARY HEARING?(Appellant's Brief at 7).
Preliminarily, the issuance of Rule 907 notice is mandatory if the PCRA court does not hold an evidentiary hearing. Commonwealth v. Guthrie , 749 A.2d 502 (Pa.Super. 2000). Nevertheless, the failure to challenge on appeal the absence of Rule 907 notice constitutes waiver. Commonwealth v. Taylor , 65 A.3d 462 (Pa.Super. 2013). Here, Appellant did not challenge on appeal the lack of Rule 907 notice, so any related concern is waived. See id.
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah , 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Sean F. Kennedy, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See PCRA Court Opinion, filed April 11, 2018, at 4-22) (finding: Appellant pled and proved he met after-discovered facts exception to PCRA time-bar, where Appellant, as pro se imprisoned petitioner, was entitled to benefit of Commonwealth v. Burton , 638 Pa. 687, 158 A.3d 618 (2017), and he filed his pro se PCRA petition within 60 days of Officer Walker's guilty plea; nevertheless, evidence Appellant sought in PCRA discovery request was not exculpatory; further, Commonwealth was not required to disclose potential impeachment evidence before negotiating plea agreement with Appellant; Appellant waived right to review Commonwealth's evidence against him by entering guilty plea; Appellant did not demonstrate Commonwealth suppressed evidence of Officer Walker's arrest; moreover, Appellant made no specific assertions of wrongdoing by Officer Walker in Appellant's own case; Officer Walker's arrest would have qualified only as impeachment evidence, which does not warrant "after-discovered evidence" relief under PCRA; Appellant failed to assert any genuine issue of material fact regarding his ineffective assistance of counsel and after-discovered evidence claims, therefore, PCRA court properly dismissed Appellant's PCRA petition without evidentiary hearing). The record supports the PCRA court's decision. Accordingly, we affirm on the basis of the PCRA court opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/19/18
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