J-S51037-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTOINE MAURICE BLACK,
Appellant No. 367 MDA 2014
Appeal from the Order Entered January 22, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003493-2010
BEFORE: BOWES, OTT and MUSMANNO, JJ.
CONCURRING STATEMENT BY BOWES, J.: FILED NOVEMBER 18, 2014
Since each of Appellant’s seven issues is premised on PCRA counsel
ineffectiveness, claims which he failed to raise in response to the court’s
Pa.R.Crim.P. 907 notice of intent to dismiss after PCRA counsel was
permitted to withdraw pursuant to Turner/Finley,1 he has waived all of his
issues. See Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).
Further, since Appellant represented himself on direct appeal, any
preserved issues relative to his suppression hearing or trial had to be raised
by him on direct appeal. Appellant cannot allege his own ineffectiveness.
Commonwealth v. Fletcher, 986 A.2d 759, 778-779 (Pa. 2009); cf.
____________________________________________
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Commonwealth v. Green, 709 A.2d 382 (Pa. 1998) (counsel cannot allege
his own ineffectiveness). To the extent the learned majority opines that
Appellant’s fifth claim is not cognizable under the PCRA because it was
waived, I find such reasoning imprecise.
Here, Appellant’s claim is one of ineffectiveness, which is cognizable.
However, as the majority astutely recognizes, Appellant represented himself
on direct appeal and the suppression issue relative to the inventory search
was preserved. Hence, Appellant’s underlying inventory suppression claim is
waived, and, as I have pointed out, he cannot allege his own ineffectiveness.
Although some cases have stated that waived claims are not
cognizable under the PCRA, my view is that the more accurate legal
assessment is that the person is not eligible for relief. See Commonwealth
v. Descardes, 2014 PA Super 210 (en banc) (Bowes, J., concurring and
dissenting). Where the claim challenges the defendant’s sentence or
conviction, it is cognizable. The distinction is important in light of decisions
by this Court and our Supreme Court that have determined that non-
cognizable claims can be raised via habeas corpus or coram nobis. See
Commonwealth v. West, 938 A.2d 1034 (Pa. 2007); Descardes, supra. I
do not read the majority’s conclusion as suggesting that Appellant may raise
the issue outside the PCRA.
For the aforementioned reasons, I concur in the result.
-2-
Com. v. Black, A.
Combined Opinion