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[U] Commonwealth v. Bivens

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRAHEEM KAMEIL BIVENS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 29, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No. CP-23-CR-0006525-2011

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Braheem Kameil Bivens, appeals from the denial of his first petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.

The PCRA court aptly set forth the background of this case in its September 18, 2013 opinion:

Appellant was arrested on March 28, 2011, and charged with two counts of possession with intent to deliver, possession of a controlled substance, possession of drug paraphernalia, [1] and two traffic offenses.
On or about December 11, 2011, [plea counsel] entered his appearance on behalf of Appellant. On January 5, 2012, Appellant filed a motion to suppress, challenging the admissibility of evidence due to an unlawful stop and search. [The court] held a suppression hearing on January 31, 2012, and on February 27, 2012, granted the motion in reference to the contraband found on Appellant's person and denied the motion in reference to the contraband discovered within Appellant's vehicle. Pursuant to [the court's] granting of suppression, the Commonwealth filed a timely motion for reconsideration. After hearing argument from both parties on March 5, 2012, [the court] reversed itself and ruled that the contraband found on Appellant's person was admissible pursuant to the applicability of the inevitable discovery doctrine.
On March 6, 2012, Appellant entered into a [negotiated] guilty plea to one count of possession with intent to deliver, an ungraded felony. . . . Appellant was sentenced to seven to fourteen years of incarceration. Appellant did not file a direct appeal.
On February 28, 2013, Appellant, through his new [PCRA counsel] filed a [PCRA petition]. . . . Appellant's [c]ounsel filed an [a]mended [PCRA petition] on May 22, 2013. . . .
On June 26, 2013, both parties appeared before [the court]. The Commonwealth argued two motions: (1) challenging the procedural defects in Appellant's petition and (2) challenging any testimony for failure to conform with 42 Pa.C.S.A. [§] 9545(d)(1). After hearing argument, [the court] granted both of the Commonwealth's motions and also stated on the record that Appellant's claims were without merit.
On June 27, 2013, [the PCRA court] filed a notice of intent to dismiss without a hearing giving Appellant twenty days to respond.[2] [Appellant failed to respond and the PCRA court] dismissed Appellant's petition on July 29, 2013.
On August 22, 2013, Appellant filed a timely notice of appeal to the Superior Court. Pursuant to that notice, [the PCRA court] ...

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