Com. v. Scott, O.

J-S52041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

OBATAIYE KAREE SCOTT, JR.

Appellant No. 372 WDA 2015

Appeal from the PCRA Order of February 13, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0000454-2013

BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED OCTOBER 23, 2015

Obataiye Scott appeals, pro se, the February 13, 2015 order

dismissing his petition for relief pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-46, without an evidentiary hearing. We

affirm.

In 2013, Scott was convicted by a jury of burglary, theft by unlawful

taking, and criminal mischief. On September 27, 2013, the trial court

sentenced Scott to three to six years’ incarceration. On direct appeal, we

adopted the trial court’s summary of the facts underlying Scott’s convictions

and sentence. Once more, we adopt those facts for the purpose of this

collateral appeal:

On October 16, 2012, the victim, Tiffany Woods, was residing
with her [seven]-year-old daughter in a two story home at 63
Steel Street, Republic, Fayette County, Pennsylvania. On
October 16, 2012, after completing her shift at Teletech, her
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place of employment in Uniontown, Pa., Tiffany picked up her
daughter at her sister’s residence and returned to the home at
63 Steel Street, Republic. Following the evening meal[,] she
watched TV, got her daughter ready for bed and retired for the
night to her second floor bedroom at approximately 11:15 p.m.

The following morning, October 17, 2012, Tiffany awoke before
6:30 a.m. to get ready for work. When she descended the stairs
from the second floor, she saw that her dining room, living room
and kitchen lights were turned on when she had turned them off
the night before. She also observed that drawers were open and
that papers were strewn across the floor. She entered the
kitchen and observed that two sets of car keys and house
keys[,] which she kept on a table[,] were missing. Tiffany
Woods then ran outside to see if her car had been stolen. Before
reentering her home[,] she noticed that her garbage can was
propped against the dining room window and the screen on the
window had been cut. One set of keys to her house and car
were on a smiley face keychain, and the other set were on a
yellow Polo keychain[,] which also contained her daughter’s
picture.

On October 17, 2012, around 3:00 a.m., Sergeant Norman
Howard of the Redstone Township Police Department had
occasion to enter a residence at 7 Johnson Street, Republic, Pa.
The residence at 7 Johnson Street is located one street down
from Steel Street and a distance of approximately 200 yards
from Tiffany Woods’ residence at 62 Steel Street, Republic.
Upon entering the residence at 7 Johnson Street, Republic,
Officer Howard observed [Scott] and noticed that [Scott] had
two sets of keys in his hand. Officer Howard observed [Scott]
throw the keys onto the floor in front of him. Howard retrieved
the two sets of keys and entered them into evidence at the
Redstone Township Police Station.

Following consultation with the Pennsylvania State Police
[trooper] who had investigated the burglary at 63 Steel Street,
Officer Troy Rice of the Redstone Township Police Department
met with Tiffany Woods at the Redstone Township Police Station.
Woods identified the two sets of keys as being the keys stolen
from her house during the night of October 16-17, 2012. Officer
Rice then observed as Tiffany Woods utilized the keys to start
her white Sunfire vehicle.

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On October 30, 2012, [Scott] met with Trooper Matthew
Gavrish, a criminal investigator with the Belle Vernon Barracks of
the Pennsylvania State Police. Gavrish informed [Scott] of his
Miranda[1] rights following which [Scott] waived his right to
remain silent and provided Trooper Gavrish with a statement.
[Scott] admitted to his involvement in the burglary of Tiffany
Woods’ residence at 63 Steel Street, Republic. [Scott] indicated
that he stood on the road as a lookout while [his co-defendant]
stood on a trash can. He heard him cutting something and then
[the co-defendant] went through the window. According to
[Scott,] “all we got was two sets of car keys.” [Scott] stated
that the police came to Robert Savage’s house [on Johnson
Street] and took possession of the sets of keys.

Trial Court Opinion, 1/8/2014, at 2-4.

On October 14, 2014, a panel of this Court affirmed Scott’s judgment

of sentence in an unpublished memorandum. See Commonwealth v.

Scott, No. 1595 WDA 2013, slip op. at 1, 10 (Pa. Super. Oct. 14, 2014).

Scott did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court.

On October 6, 2014, before this Court affirmed his judgment of

sentence, Scott filed a PCRA petition. The PCRA court took no action on the

petition until after our affirmance. Thus, on October 15, 2014, the PCRA

court considered the petition filed on that date and appointed counsel to

represent Scott. Scott submitted multiple letters thereafter identifying other

PCRA claims for the court’s consideration. On January 15, 2015, counsel

filed a no-merit letter and motion to withdraw as counsel pursuant to the

____________________________________________

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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well-established criteria set forth in Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc). Scott responded to the motion, and indicated to the PCRA

court that he wanted to proceed pro se. On February 13, 2015, the PCRA

court concluded that counsel had satisfied the requirements of Turner and

Finley, and granted counsel’s motion to withdraw as counsel. Additionally,

the court dismissed Scott’s PCRA petition without an evidentiary hearing,

and without having issued notice of the court’s intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907.

On March 4, 2015, Scott filed a notice of appeal. On March 9, 2015,

the PCRA court directed Scott to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 12, 2015,

Scott filed a concise statement, wherein he identified the following four

issues as those he intended to raise in this appeal:

1. The court erred by denying [Scott’s] PCRA petition without
sending an intent to dismiss notice required by Rule 907.

2. Violation of 4th Amendment Right [to] the United States
Cons[titution].

3. Violation of the knock and announce procedure.

4. Violation of the [sic] Pa. Article I, Section 8.

Concise Statement, 3/12/2015. On March 26, 2015, the PCRA court issued

an opinion pursuant to Pa.R.A.P. 1925(a).

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Presently, Scott raises twelve issues in his pro se brief. Those issues

are as follows:2

1. Whether the court erred by denying [Scott’s] PCRA petition
concerning [Scott’s] assertion of the arrest being
unconstitutional?

2. Whether [Scott’s] 4th Amend. Rights were violated due to the
illegal search and seizure?

3. Whether the “NO MERIT” Turner/Finley letter submitted by
Attorney Zerega made it proviso requiring [Scott] to file an
amended petition?

4. Did the Redstone Police Dept. Officers herein; Officers
Norman Howard, Troy Rice, and Jonathan Brant act in bad
faith as a result of their lack of probable cause to enter the
proprietors home herein; Mr. Robert Savage III, without a
search warrant nor the proprietors permission in violation of
the pa const. Article I, section 8?

5. Whether the Redstone Police Dept. Officers herein; Officers
Norman Howard, Troy Rice, and Jonathan Brant violated the
knock and announce rule due to the fact of their entering Mr.
Robert Savage’s home without knocking and/or announcing
who they were nor the reason or their entering the premises
without permission to arrest [Scott] without a warrant.

6. Should this Honorable Court overturn [Scott’s] conviction and
vacate the sentence?

7. Whether this Honorable Court should issue a new trial and a
suppression hearing due to evidence from statement including
but not limited to car keys being a product of an illegal
arrest?

8. Whether the Honorable Ralph C. Warmen [sic] erred when he
failed to properly take action when [Scott] took the stand to
offer testimony regarding what happened the morning of
October 17, 2012? [Scott] raised an issue at trial concerning
____________________________________________

2
As much as possible, we reproduce Scott’s issues verbatim.

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the Redstone Officers herein officers: Norman Howard, Troy
Rice, and Jonathan Brant, not having a search warrant and/or
affidavit of probable cause. Did the trial court err in waiving
this issue raised by [Scott]?

9. Whether the Redstone Police Dept. erred in arresting [Scott]
without a search warrant and arrest warrant, and ignoring
[Scott] when he requested the aforementioned documents –
(search warrant and arrest warrant)?

10. Whether the illegal search and seizure conducted by the
Redstone Police Dept. on October 17, 2012 result in the false
conviction and sentence of [Scott] when the search warrant
and arrest warrant were never obtained although they were
prerequisitely required by law in violation of [Scott’s] 4th
amendment and 14th amendment’s due process clause.

11. Whether the fact that [Scott] had two warrants for his
arrest should the arrest and search warrant of [Scott] been
present and presented to the preprieter of the home and
[Scott]? Whether the warrants should have been presented
before or after [Scott] had been detained? before or after
entry? Because [Scott] was not fleeing from the police in hot
pursuit moreover, the police did not see [Scott] enter the
residence, nor did [Scott] pose an immediate threat to
anyone in the residence additionally, [Scott] was not
considered armed and dangerous.

12. Is the District Attorney’s Office of Fayette County
Pennsylvania or Redstone Police Department holding evidence
from [Scott], because [Scott] was never entitled to such
evidence explaining how they received the information about
where [Scott] was located, and who gave the whereabouts of
[Scott]? [Scott] is entitled to such evidence.

Brief for Scott at 4-6.

We may dispose of all but one of Scott’s claims quickly. Issues 3 and

12 do not appear in the issues that Scott identified in his Rule 1925(b), nor

are they fairly encompassed within those issues as framed by Scott. Thus,

these two claims are waived. See Pa.R.A.P.(b)(4)(vii); Commonwealth v.

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Hill, 16 A.3d 484, 488 (Pa. 2011) (stating “that any appellate issues not

raised in a compliant Rule 1925(b) statement will be deemed waived.”).

Issues 2 and 4 through 11 are all claims in which Scott alleges

violation of his rights pursuant to the Fourth and Fourteenth Amendments to

the United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution. Although claims implicating violations of constitutional rights

are cognizable under the PCRA, see 42 Pa.C.S. § 9543(a)(2)(i), such claims

nonetheless are subject to the waiver provision of the PCRA. Pursuant to

subsection 9544(b) of the PCRA, an “issue is waived if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. §

9544(b). Each of Scott’s constitutional claims could have, and should have,

been raised in the first instance on direct appeal. Because they were not,

under the clear terms of the PCRA, they are waived.

We turn to the lone remaining claim raised by Scott in his brief:

whether the PCRA court erred by dismissing his PCRA petition without first

issuing a Rule 907 notice of the court’s intent to dismiss the petition without

a hearing. Pennsylvania Rule of Criminal Procedure 907 provides, in

pertinent part, as follows:

the judge shall promptly review the petition, any answer by the
attorney for the Commonwealth, and other matters of record
relating to the defendant’s claim(s). If the judge is satisfied
from this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by
any further proceedings, the judge shall give notice to the

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parties of the intention to dismiss the petition and shall state in
the notice the reasons for the dismissal. The defendant may
respond to the proposed dismissal within 20 days of the date of
the notice. The judge thereafter shall order the petition
dismissed, grant leave to file an amended petition, or direct that
the proceedings continue.

Pa.R.Crim.P. 907(1). It is now well-settled that a PCRA court’s compliance

with this rule is mandatory. See Commonwealth v. Feighery, 661 A.2d

437, 439 (Pa. 1995) (“It is, of course, clear that the notice requirement of

the intention to dismiss, is mandatory (‘the judge shall (give notice and)

shall state (the reasons)).’” However, that compliance with the rule is

mandatory does not mean, ipso facto, that each violation of the rule

warrants reversal. Indeed, in the case sub judice, even though the PCRA

court dismissed Scott’s petition without first issuing a Rule 907 notice to

Scott, he is not entitled to a reversal.

Our discussion begins with Commonwealth v. Bond, 630 A.2d 1281

(Pa. Super. 1993), which the PCRA court relied upon in concluding that Scott

was not entitled to relief due to the court’s failure to issue notice. In Bond,

after PCRA counsel filed a “no-merit” letter, the PCRA court dismissed Bond’s

PCRA petition without a hearing, and without issuing notice of its intent to

dismiss as was required under former Rule 1507.3 On appeal, Bond sought

a remand to be given an opportunity to respond to the trial court’s belief
____________________________________________

3
Pa.R.Crim.P. 1507 is now Rule 907. The content of these two rules do
not differ in any material way. For consistency, we will refer to the rule as
Rule 907, save for the first instance above.

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that his petition lacked merit, an opportunity that he would have been

afforded had the court complied with Rule 907. We held that Bond was not

entitled to the relief that he sought.

We held that, because of the extensive and “elaborate set of

requirements” with which counsel must comply when seeking to withdraw as

counsel pursuant to Turner and Finley, Bond was “well aware of the

deficiencies of his claims” and suffered no prejudice by the court’s failure to

comply strictly with Rule 907. Bond, 965 A.2d at 1283. Furthermore, we

noted that, because Bond received the “no-merit” letter as well as numerous

other pieces of correspondence from counsel, Bond received the full

entitlement of judicial review. We iterated that Bond was aware of the

problems with his claims and that he could have responded to the “no-merit”

letter, but opted not to. Finally, as noted, we conducted an analysis of

whether Bond could show prejudice by the court’s failure, and determined

that he could not because counsel advised him of his appellate rights and

that he could proceed pro se. We ultimately held that “Bond received every

bit of judicial review to which he is entitled. We will not prolong this

litigation.” Id.

We distinguished Bond, and declined to apply it, in two subsequent

cases. In Feighery, we again were faced with a situation in which a PCRA

court dismissed a PCRA petition without a hearing and without Rule 907

notice after counsel sought to withdraw via the Turner/Finley rubric.

Feighery, 661 A.2d at 438-39. We held that Bond was inapposite because,

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in Feighery, there was “no evidence of correspondence with counsel and

only a statement of counsel’s intention to forward a copy of the ‘amended

Finley’ letter.” Id. at 439. Feighery insisted that counsel never consulted

with him. Id. Finding these circumstances substantially different from

those in Bond, and insufficient to warrant overlooking the mandatory nature

of Rule 907, we remanded the case to the PCRA court.

Similarly, in Commonwealth v. Hopfer, 965 A.2d 270 (Pa. Super.

2009), once more the PCRA court dismissed a PCRA petition without a

hearing and without Rule 907 notice after counsel was permitted to withdraw

pursuant to Turner and Finley. Like in Feighery, we found the

circumstances in Hopfer markedly different from those in Bond. Unlike

counsel’s extensive communication with Bond, in Hopfer, counsel informed

Hopfer that he found the petition to be meritless, but specifically noted that

his decision was based upon his investigation “at this point,” indicating that

further review was forthcoming. Hopfer, 965 A.2d at 276-75. Counsel then

told Hopfer that he was going to order the relevant transcripts and

investigate the claims further. Without any further communication, counsel

proceeded to file a Turner/Finley letter, in which counsel asserted that

Hopfer's claims lacked merit, even though the letter was filed before counsel

had even ordered the transcripts that were necessary to evaluate the claims.

Id. at 275. Finally, we noted that Hopfer did not have a chance to respond

to counsel’s letter because the PCRA court granted counsel’s motion to

withdraw as counsel and dismissed the PCRA petition without a hearing and

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without notice immediately upon receiving counsel’s letter and motion.

Unlike in Bond, we held that Hopfer was deprived of the opportunity to

respond to both counsel’s actions and the PCRA court’s intent to dismiss the

petition. We held that “service of any notice of dismissal, whether in the

form of a Rule 907 notice by the court or a Turner/Finley no-merit letter,

must occur at least twenty days prior to an official dismissal order.” Id.

The instant matter falls within the dictates of Bond and the final

holding of Hopfer. Here, like in Bond, Scott’s counsel filed a no-merit

letter. Also as in Bond, there is no question that Scott received the letter

because the certified record contains two letters written by Scott, one sent

to the clerk of courts and one to the PCRA court, in which Scott

acknowledges that he had received counsel’s filings. Scott was fully

apprised of the reasons why counsel believed his claims to be meritless. He

also clearly understood that he could proceed pro se, a fact that he admits in

both of his aforementioned letters. We do not condone the PCRA court’s

dismissal of Scott’s petition without full compliance with Rule 907.

Nonetheless, the court dismissed the petition outside of the twenty-day

deadline set forth in Hopfer’s specific holding. In Bond, we assigned

significant evidence to the fact that Bond had ample opportunity to respond

to counsel’s application to withdraw as counsel and no-merit letter, but

elected not to. Here, Scott had the same opportunity, and he took

advantage of that opportunity by sending a letter to the PCRA court raising

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issues ranging from PCRA counsel’s purported conflict of interest to claims of

ineffective assistance of counsel.

In sum, although Bond has been distinguished at times, it remains

valid precedent that we are bound to apply. The instant case is more

analogous to Bond than it is to Feighery or Hopfer. Thus, although Rule

907 notice is mandatory, the circumstances of this case do not warrant an

automatic reversal. To the contrary, per Bond and Hopfer’s explicit

holding, Scott is not entitled to any form of relief.

As a final matter, we must address Scott’s applications regarding the

federal indictment of Norman Howard, a police officer that was involved in

Scott’s apprehension in this case. Scott seeks a stay of the instant

proceedings and a remand to the PCRA court for an evidentiary hearing to

address the impact of Howard’s arrest upon Scott’s convictions. According

to Scott, Howard was indicted for falsifying police reports, omitting evidence,

and other related charges. Scott also asserts that the Fayette County

District Attorney has terminated the prosecution in two other cases due to

Howard’s involvement in those cases, and his subsequent indictment.

We deny Scott’s applications without prejudice to raise his claims

related to Howard in a second PCRA petition. In Commonwealth v. Lark,

746 A.2d 585, 588 (Pa. 2000), the Pennsylvania Supreme Court held as

follows:

We now hold that when an appellant’s PCRA appeal is pending
before a court, a subsequent PCRA petition cannot be filed until
the resolution of review of the pending PCRA petition by the

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highest state court in which review is sought, or upon the
expiration of the time for seeking such review. If the
subsequent petition is not filed within one year of the date when
the judgment became final, then the petitioner must plead and
prove that one of the three exceptions to the time bar under 42
Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also
be filed within sixty days of the date of the order which finally
resolves the previous PCRA petition, because this is the first
“date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).

Id. In other words, there is no need for us to halt these proceedings and to

remand the case for further action. Scott is not without options, which, in

such a circumstance, might compel us to review Scott’s applications more

closely. Rather, Scott may raise any claims related to Howard in a second

PCRA petition.

That petition undoubtedly will be filed outside of the PCRA’s one-year

time limit. However, pursuant to Lark, the sixty-day time limit to file a

claim based upon newly-discovered facts under the PCRA does not

commence until we finalize this PCRA appeal. Id. (holding that Lark’s

second or subsequent PCRA was timely because it was filed within sixty days

of the Court’s resolution of his first PCRA petition, not within sixty days of

when he learned of the information.). So long as Scott files a second PCRA

petition within sixty days of the date of this decision, per Lark, he can

pursue relief from the PCRA court in the first instance, which is the more

prudent and judicially economical course of action. Consequently, we deny

Scott’s applications without prejudice to pursue relief in the first instance

with the PCRA court.

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Order affirmed. Motions denied.

Judge Shogan joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/23/2015

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