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[U] Commonwealth v. Revell

Superior Court of Pennsylvania

February 21, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RAHEEM REVELL, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of July 24, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1110192-2002 and CP-51-CR-1110202-2002.

BEFORE: GANTMAN, P.J., OLSON AND PLATT, [*] JJ.

MEMORANDUM

OLSON, J.

Appellant, Raheem Revell, appeals from the order entered on July 24, 2012 dismissing his petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court summarized the factual and procedural background of this case as follows:

[Appellant] was convicted of two counts of first-degree murder, [1] one count of attempted murder, [2] criminal conspiracy, [3] and weapons offenses following a jury trial before the Honorable John J. Poserina . . . that took place in June 2005. Following a penalty hearing at which the jury indicated that it was unable to reach a unanimous decision, the penalty was fixed at life imprisonment. On September 13, 2005, [the trial court] imposed consecutive life sentences on the first[-]degree murder convictions. The [trial court] also imposed sentences of seven to [14] years' incarceration on the conspiracy and attempted murder charges, which sentences [it] ordered to run concurrently with one another but consecutive to the life sentences. [The trial court] entered verdicts without further penalties on the remaining charges.
The charges filed against [Appellant] arose out of an incident that occurred on May 7, 2002, during which [Appellant] fired a handgun into a group of individuals standing near Broad Street and Fairmount Avenue in Philadelphia. Two individuals died as a result of the incident and another suffered serious injury. Apparently, the shooting stemmed from an altercation that occurred a week earlier.
Following the imposition of sentence, [Appellant] appealed to [this] Court, which on September 22, 2008, affirmed the judgment of sentence. Commonwealth v. Revel, 963 A.2d 571 (Pa. Super. 2008) (unpublished memorandum). [Appellant] did not file a petition for allowance of appeal.
On September 9, 2009, [Appellant] filed a counseled PCRA petition wherein he alleged prosecutorial misconduct. Subsequent thereto, on September 15, 2009, [Appellant] filed an amendment to his original petition wherein he accused trial counsel of being ineffective for failing to properly investigate a recording of numerous telephone conversations engaged in by [Appellant] while he was incarcerated [and] awaiting trial. On July 24, 2012, having previously sent [Appellant] a Pa.R.Crim.P. 907 notice, [the PCRA c]ourt issued an order denying [Appellant] PCRA relief without a hearing. However, [Appellant]'s counsel never received a copy of the order and did not file an appeal. On May 10, 2013, after th[e PCRA c]ourt was advised that counsel failed to receive notification of the order denying [Appellant] PCRA relief, th[e PCRA c]ourt issued an order granting [Appellant] the right to file a notice of appeal nunc pro tunc from the order denying him PCRA relief.

PCRA Court Opinion, 6/25/13, at 1-2 (footnotes omitted). This timely appeal followed.[4]

Appellant presents two issues for our review:

1. Did the [PCRA c]ourt violate Appellant's rights under the Sixth and Fourteenth Amendments [to the United States Constitution] by finding that his trial/direct appellate counsel w[ere] not constitutionally ineffective for waiving a claim that the prosecutor committed misconduct during her closing argument; or alternatively, [PCRA c]ounsel was ineffective for failing to properly assert and preserve a claim that trial/direct appeals counsel were ineffective under the Sixth Amendment for waiving the claim that the prosecutor committed misconduct during her closing argument thereby denying Appellant his right to due process and a fair trial?
2. Did the [PCRA c]ourt deny Appellant his 14th Amendment due process rights and abuse[] its discretion in dismissing Appellant's counseled claims as meritless without having first conducted a hearing?

Appellant's Brief at 4.

Prior to considering the merits of Appellant's issues on appeal, we must determine if he has properly preserved those issues. Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011). An appellant is required to raise an issue in the PCRA court in order for the issue to be preserved for appellate review. Pa.R.A.P. 302(a); Commonwealth v. Roney, 79 A.3d 595, 616 (Pa. 2013). In this case, Appellant's PCRA petition did not allege that his trial and appellate counsel were ineffective in failing to assert a claim of prosecutorial misconduct relating to the prosecutor's closing argument. Instead, the petition only alleged that the prosecutor's comments were improper. See PCRA Petition, 9/9/09.[5] Such a claim could be raised on direct appeal. See, e.g., Commonwealth v. Collins, 70 A.3d 1245, 1252–1255 (Pa. Super. 2013). Any issue which could be raised on direct appeal may not be pursued on collateral review. 42 Pa.C.S.A. § 9544(b); Commonwealth v. Michaud, 70 A.3d 862, 869 n.7 (Pa. Super. 2013). Thus, Appellant has not preserved his claim that his trial and appellate counsel were ineffective for failing to challenge the prosecutor's closing argument as he failed to raise any issue that can be considered on collateral review in the PCRA court.

Anticipating this result, Appellant's new counsel avers that former PCRA counsel was ineffective for failing to properly preserve this issue for appellate review. However, this issue has been waived. Again, an appellant is required to raise an issue in the PCRA court in order for the issue to be preserved for appellate review. Pa.R.A.P. 302(a); Roney, 79 A.3d at 616. Appellant recognizes that he did not raise this issue in the PCRA court, but argues that this is the first time he could have raised this issue as he was still represented by his former counsel, whom he is alleging was ineffective, at the time his notice of appeal was filed. This, as Appellant correctly notes, differentiates this case from Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009). However, this puts the case at bar within our holding in Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012).

In Ford, the PCRA court denied PCRA counsel's request to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and instead held an evidentiary hearing on a claim raised in the petition. Ford, 44 A.3d at 1193. Thereafter, the PCRA court denied relief. PCRA counsel filed a notice of appeal one day late and we quashed the appeal. Id. Our Supreme Court vacated and remanded to the PCRA court which appointed new PCRA counsel and permitted Ford to appeal nunc pro tunc. Id. at 1194. On remand, Ford filed a notice of appeal and a concise statement. Id. In his concise statement, for the first time, Ford alleged that his PCRA counsel was ineffective. Id.

We found Ford's ineffective assistance of counsel claim challenging PCRA counsel's competence to be waived and summarized our holding as follows:

We acknowledge that Appellant did raise the ineffectiveness of PCRA counsel issue in his Pa.R.A.P. 1925(b) statement after [our] Supreme Court remanded the matter and new counsel was appointed for purposes of advancing his appeal nunc pro tunc, i.e., at the first opportunity. Additionally, the PCRA court addressed the issue in its Pa.R.A.P. 1925(a) opinion. Appellant's question also pertains to matters of record and does not require this Court to engage in any factual findings. Thus, several of the concerns expressed [in Pitts] for not addressing such a claim are not present. Nonetheless, a majority of [our] Supreme Court agrees that issues of PCRA counsel effectiveness must be raised in a serial PCRA petition or in response to a notice of dismissal before the PCRA court. . . . Therefore, we hold that, absent recognition of a constitutional right to effective collateral review counsel, 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.

Ford, 44 A.3d at 1200–1201.

The language we used in Ford is broad and precludes all claims asserting PCRA counsel's ineffectiveness raised for the first time after a notice of appeal has been filed. Appellant raised his prior PCRA counsel's ineffectiveness for the first time in his concise statement, after his notice of appeal was filed. Thus, this case is controlled by our holding in Ford. Accordingly, Appellant has waived his argument that his prior PCRA counsel was ineffective.

As to Appellant's second issue on appeal, our Supreme Court has held that an "appellant has no underlying constitutional right to an evidentiary hearing in state post-conviction proceedings." Commonwealth v. Thomas, 44 A.3d 12, 22 (Pa. 2012). Accordingly, Appellant's due process rights were not violated when the PCRA court dismissed his PCRA petition without an evidentiary hearing.

Order affirmed.

Judgment Entered.


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