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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT SPURGEON :
:
Appellant : No. 1618 EDA 2018
Appeal from the PCRA Order April 20, 2018
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003053-2013
BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 31, 2019
Robert Spurgeon (Appellant) appeals pro se from the order denying his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
On February 14, 2013, the Bensalem Police Department charged
Appellant with rape and related offenses. On October 3, 2013, a jury found
Appellant guilty of aggravated indecent assault, indecent assault, and
involuntary deviate sexual intercourse.1 The trial court deferred sentencing
until a pre-sentence investigation report and an assessment by the Sexual
Offenders Assessment Board were completed.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3125(a)(1), 3136(a)(1), and 3123(a)(1).
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On December 12, 2013, Appellant filed a post-trial motion alleging that
the verdict was against the weight of the evidence; the trial court denied the
motion. On March 12, 2014, the trial court sentenced Appellant to 7 to 14
years of imprisonment in a State Correctional Institution. Appellant filed a
timely appeal and this Court affirmed his judgment of sentence. See
Commonwealth v. Spurgeon, 1407 EDA 2014 (Pa. Super. July 31, 2015)
(unpublished memorandum). Appellant did not file a petition for allowance of
appeal with the Pennsylvania Supreme Court.
On October 22, 2015, Appellant filed the instant PCRA petition pro se.
On June 6, 2016, the PCRA court appointed counsel, who filed a motion to
withdraw on April 10, 2017. The PCRA court appointed new counsel, who filed
an amended PCRA petition on October 6, 2017. The Commonwealth filed an
answer to Appellant’s amended PCRA petition on October 16, 2017. Prior to
the scheduled hearing date on Appellant’s petition, however, Appellant’s
counsel filed a motion to withdraw. The PCRA court granted the motion and
appointed Patrick McMenamin, Esquire to represent Appellant.
On March 14, 2018, upon reviewing the record, Attorney McMenamin
filed with the PCRA court a petition to withdraw and a no-merit letter pursuant
to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The
PCRA court granted Attorney McMenamin’s motion on March 20, 2018, and on
March 26, 2018, issued its Rule 907 notice of intent to dismiss Appellant’s
petition. Appellant did not file a response to the notice, and on April 20, 2018,
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the PCRA court issued an order denying Appellant’s petition. Appellant filed
this pro se appeal on April 30, 2018. Both the PCRA court and Appellant have
complied with Rule of Appellate Procedure 1925.2
On appeal, Appellant presents two issues for our review:
1. Whether PCRA counsel rendered Appellant his enforceable right
to effective assistance of counsel guaranteed by Pa.R.Crim.P.
904?
2. Whether Appellant’s case has substantive claims of arguable
merit sufficient enough to demonstrate that all prior counsel
rendered ineffective assistance?
Appellant’s Brief at 3.3
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2 On June 19, 2018, the PCRA court issued an order directing Appellant to file
a concise statement of matters complained of on appeal within 21 days.
Appellant filed his statement on July 3, 2018. In his concise statement,
Appellant raised seven issues not previously alleged in his pro se or amended
PCRA petition. On August 16, 2018, the PCRA court issued its 1925(a) opinion
finding all of Appellant’s issues waived.
On August 23, 2018, Appellant filed in this Court a pro se “Motion For Remand
For Appointment of Counsel Or For Order To Provide Indigent Appellant Copies
Of Notes Of Testimony And Discovery Materials Pursuant To Pa.R.A.P. 105(a)
and 2591(a).” On September 14, 2018, we denied Appellant’s request for
court-appointed counsel, but directed the PCRA court to provide Appellant with
copies of “any requested notes of testimony and other documents that the
PCRA deems necessary and relevant to allow for a complete and judicious
assessment of the issues raised on appeal.” Order, 9/14/18.
After supplying Appellant with the necessary pleadings, on December 20,
2018, the PCRA court ordered Appellant to file an amended statement of
matters complained of on appeal. Appellant complied with the PCRA court’s
directive.
3 Appellant’s Rule 1925(b) statement of errors contains issues that Appellant
failed to raise in his statement of questions involved or in the body of his brief.
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“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and
citations omitted). “To be entitled to PCRA relief, [an] appellant must
establish, by a preponderance of the evidence, his conviction or sentence
resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] §
9543(a)(2)[.]” Id.
In deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,
the petitioner must establish: “(1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s action or failure to act; and (3)
the petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Id. (citation omitted). To
demonstrate prejudice in an ineffective assistance of counsel claim, “the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
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See Amended Rule 1925(b) Concise Statement, 1/10/19. Because Appellant
has abandoned these issues on appeal, we may not address them. See
Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”); see also
Pa.R.A.P. 2119; Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002)
(“[I]t is a well-settled principle of appellate jurisprudence that undeveloped
claims are waived and unreviewable on appeal.”).
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different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
In his first claim, Appellant alleges that PCRA counsel was ineffective.
In particular, Appellant challenges the propriety of Attorney McMenamin’s
Turner/Finley no-merit letter. Appellant asserts that “instead of executing
his duty to advocate on Appellant’s behalf,” Attorney McMenamin was “more
focused on proving that Appellant’s claims were meritless so he could
withdraw.” Appellant’s Brief at 33. Before discussing the merits of this claim,
we must first determine if we may reach them.
In Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme
Court held:
[Petitioner’s] failure, prior to his PCRA appeal, to argue PCRA
counsel’s ineffectiveness . . . results in waiver of the issue of PCRA
counsel’s ineffectiveness. [Petitioner’s] attempt to obtain review,
on collateral appeal, of an issue not raised in the proceedings
below amounts to a serial PCRA petition on PCRA appeal.
Although [petitioner] asserts his PCRA appeal was the first
opportunity he had to challenge PCRA counsel’s stewardship
because he was no longer represented by PCRA counsel, he could
have challenged PCRA counsel’s stewardship after receiving
counsel’s withdrawal letter and notice of the PCRA court’s intent
to dismiss his petition pursuant to Pa.R.Crim.P. 907, yet he failed
to do so.
Id. at 880 n. 4; see also Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.
Super. 2014) (en banc) (holding that “claims of PCRA counsel’s ineffectiveness
may not be raised for the first time on appeal.”); Commonwealth v. Rykard,
55 A.3d 1177, 1189 (Pa. Super. 2012) (holding that a petitioner must raise
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allegations of ineffective assistance of PCRA counsel in the Rule 907
response).
Here, Appellant failed to challenge PCRA counsel’s assistance after
Appellant received the no-merit letter or after the PCRA court filed its notice
of intent to dismiss. More importantly, Appellant failed to raise his issue
concerning PCRA counsel in his Pa.R.A.P. 1925(b) statement of errors. As a
result, the PCRA court did not have the opportunity to address Appellant’s
claim, and it is waived where, consistent with Pitts and Henkel, Appellant
has failed to preserve this issue for review.
In his second claim, Appellant raises four allegations of ineffective
assistance of trial counsel. Specifically, Appellant contends that trial counsel
was ineffective for failing to advance his claim of “actual innocence,” a claim
of prosecutorial misconduct, a claim of police misconduct, and failed to raise
a Brady4 violation. As the PCRA court and the Commonwealth note, and
which the record supports, Appellant did not raise these issues in his PCRA
petition or in his response to the PCRA court’s Rule 907 notice, and thus, he
raises them for the first time on appeal. See Motion for Post Conviction Relief,
10/22/15, at 3; Amended Petition for Post Conviction Relief, 10/6/17, at 3;
see also Commonwealth’s Brief at 24-27; Supplemental PCRA Court Opinion,
3/29/19, at 6-8; PCRA Court Opinion, 8/16/18, at 4-5. “It is well-settled that
issues not raised in a PCRA petition cannot be considered on appeal.”
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4 Brady v. Maryland, 373 U.S. 83 (1963).
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Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. 2011) (quotation and
citations omitted); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Accordingly, as Appellant did not raise these issues before the PCRA court, he
has waived them on appeal.
For these reasons, the PCRA court properly denied Appellant’s PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/19
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