J-S19039-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KAHLIL MURRAY, :
:
Appellant : No. 1225 EDA 2018
Appeal from the PCRA Order March 23, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005584-2008
BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 09, 2019
Kahlil Murray (Appellant) appeals from the March 23, 2018 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the factual and procedural
background of this case as follows.
On May 10, 2007, Appellant and two co-conspirators broke
into a home, restrained two victims, and terrorized them with an
electric saw for approximately two hours in an attempt to obtain
drugs and money from them. Police apprehended Appellant and
his co-conspirators a short time later after a police chase. …
On September 15, 2008, a jury convicted
[Appellant] on the charges of robbery (victim,
Donovan Henry), robbery (victim, Angela Watson),
burglary, conspiracy to commit robbery, firearms
carried without a license and possessing an
instrument of crime. … Pursuant to a pre-trial
agreement with counsel, [the trial court], after the
jury’s verdict on firearms carried without a license,
* Retired Senior Judge assigned to the Superior Court.
J-S19039-19
entered a verdict of guilty for persons prohibited
from possessing a firearm. On December 15, 2008,
[the trial court] sentenced [Appellant] to an
aggregate sentence of [20] to [40] years [of]
incarceration followed by ten years [of] probation.
On December 18, 2008, [Appellant] filed a notice of
appeal to [this Court]. On February 23, 2010 [this
Court] remanded the matter for resentencing at [the
trial court’s] request. On June 30, 2010, [the trial
court] imposed new sentences for [Appellant’s]
burglary and conspiracy convictions as well as one of
his robbery convictions. [Appellant’s] sentence for
the second robbery conviction remained in place.
[Appellant received an aggregate sentence of 18 to
36 years of incarceration followed by ten years of
probation.] On July 2, 2010 [Appellant] filed a
motion for reconsideration of his sentence. On July
19, 2010 [the trial court] denied the motion without
a hearing.
Commonwealth v. Murray, 34 A.3d 219 (Pa. Super. 2011) (unpublished
memorandum at 2) (unnecessary capitalization, parenthetical numbers, and
citations omitted). On appeal, this Court affirmed, and our Supreme Court
denied Appellant’s petition for allowance of appeal. Id. (unpublished
memorandum at 1), appeal denied, 40 A.3d 1235 (Pa. 2012).
On November 13, 2012, Appellant pro se filed the instant PCRA
petition. Counsel was appointed and filed an amended petition on August
14, 2014. Subsequently, new counsel was appointed, and counsel filed a
supplemental petition on December 17, 2015, adopting the claims raised in
the amended petition and raising new claims. Altogether, Appellant raised
four claims of ineffective assistance of trial counsel and one claim of after-
discovered evidence related to a letter about co-defendant Shariyq Orr.
-2-
J-S19039-19
On April 28, 2017, the PCRA court held a hearing on two of the
ineffective assistance of counsel claims: (1) trial counsel’s failure to
investigate the getaway vehicle, and (2) trial counsel’s failure to call alibi
witnesses. On June 3, 2017, the PCRA court issued notice, pursuant to
Pa.R.Crim.P. 907,1 of its intent to dismiss Appellant’s PCRA petition.
Appellant responded on July 20, 2017,2 asserting a new after-discovered
claim based on co-defendant Orr’s affidavit claiming that Appellant was not
involved in the robbery. On January 25, 2018, the Commonwealth filed a
supplemental motion to dismiss Appellant’s PCRA claim relating to Orr’s
affidavit. The PCRA court denied Appellant’s petition on March 23, 2018.
1 Rule 907 only applies to dismissal of claims without a hearing; so such
notice was unnecessary for the claims upon which the PCRA court granted a
hearing. Nonetheless, we note with displeasure that the PCRA court failed to
state in the notice the reasons for dismissal of those claims it intended to
dismiss without a hearing. Pa.R.Crim.P. 907(1) (requiring the PCRA court to
“state in the notice the reasons for the dismissal”). However, Appellant
replied to the notice and does not complain on appeal that he was prejudiced
by the deficient notice. Therefore we do not address this deficiency further.
See Commonwealth v. Weimer, 167 A.3d 78, 86 (Pa. Super. 2017)
(finding no merit to claim that defective Rule 907 notice denied Weimer the
right to file an amended petition where PCRA court accepted numerous
filings, responses, and objections to the Rule 907 notice); Commonwealth
v. Zeigler, 148 A.3d 849, 851 n.2 (Pa. Super. 2016) (finding that because
Zeigler failed to raise issue of PCRA court’s noncompliance with Rule 907 on
appeal, he waived any defect in the notice).
2 This response was untimely filed. See Pa.R.Crim.P. 907(1) (“The
defendant may respond to the proposed dismissal within 20 days of the date
of the notice.”); Rule 907 Notice, 6/23/2017 (“If[] you choose to respond,
your response is due within twenty calendar days of the above date.”).
-3-
J-S19039-19
This timely-filed appeal followed.3 On appeal, Appellant sets forth four
issues for our review.
I. Did the PCRA court err in denying [Appellant’s] request for
a second evidentiary hearing, and subsequently dismissing
[Appellant’s] petition for post-conviction relief, despite new
evidence that came to light that would have changed the
outcome of the trial, namely an exculpatory affidavit
provided by a co-defendant? More specifically, should the
PCRA court have granted an evidentiary hearing regarding
the sworn affidavit of co-defendant [] Orr, where [] Orr
states [Appellant] did not participate in the crime, as
attached to [Appellant’s] reply to the 907 notice?
II. Did trial counsel render ineffective assistance of counsel
due to his failure to investigate [Appellant’s] alleged
possession of the “getaway” vehicle van despite
[Appellant’s] request? Further, was prior counsel
constitutionally ineffective for failing to obtain a traffic
citation showing another man was driving [that] vehicle in
the days leading up to the robbery?
III. Did trial counsel render ineffective assistance of counsel
due to his failure to file a motion to suppress the photo
array on the basis that all of the photographs in the array
were dated identically with the exception of [Appellant’s]
photograph?
IV. Did trial counsel render ineffective assistance of counsel
due to his failure to call Yasmin Murray and Edward Depiso
as alibi witnesses?
Appellant’s Brief at 4 (reorganized for ease of disposition).
We begin with Appellant’s claim that the PCRA court erred in failing to
grant a second evidentiary hearing from his response to the Rule 907 notice
raising an after-discovered evidence claim based on co-defendant Orr’s
affidavit. Appellant’s Brief at 23-25.
3 Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
-4-
J-S19039-19
Preliminarily, Appellant did not mention an affidavit by Orr in his
petition, but he did raise a similar claim regarding Orr based upon a letter
Appellant received from Omar McClarin, who was in prison with Orr. In the
letter, McClarin stated that Orr told him Appellant was not involved in the
robbery. Appellant did not assert that the PCRA court erred in dismissing
the claim regarding the McClarin letter in his Pa.R.A.P. 1925(b) statement,
or argue the same in his brief on appeal. Rather, Appellant has only raised
the issue of whether the PCRA court erred in dismissing the specific claim
regarding Orr’s affidavit raised in his Rule 907 response. Although the
issues are related, one relates to the after-discovered evidence of McClarin’s
letter, and one relates to the after-discovered evidence of Orr’s affidavit.
Accordingly, Appellant’s initial claim presenting after-discovered evidence of
McClarin’s letter is waived. See Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998) (“Any issues not raised in a 1925(b) statement will be
deemed waived.”).
Insofar as Appellant attempted to raise a new claim of after-discovered
evidence relating to Orr’s affidavit in his response to the Rule 907 notice,
this was improper.
The purpose of a Rule 907 pre-dismissal notice is to allow a
petitioner an opportunity to seek leave to amend his petition and
correct any material defects, the ultimate goal being to permit
merits review by the PCRA court of potentially arguable claims.
The response to the Rule 907 notice is an opportunity for a
petitioner and/or his counsel to object to the dismissal and alert
the PCRA court of a perceived error, permitting the court to
discern the potential for amendment. The response is also the
-5-
J-S19039-19
opportunity for the petitioner to object to counsel’s effectiveness
at the PCRA level.
Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa. Super. 2015)
(citations and quotation marks omitted). “This does not mean that a
defendant may raise entirely new claims that he could have presented prior
to his response to the notice of intent to dismiss.” Commonwealth v.
Rykard, 55 A.3d 1177, 1189 n.8 (Pa. Super. 2012). Rather, “the response
is not itself a petition and the law still requires leave of court to submit an
amended petition. See Pa.R.Crim.P. 905(A).” Id. at 1189.
The Rules of Criminal Procedure contemplate that amendments
to pending PCRA petitions are to be “freely allowed to achieve
substantial justice,” Pa.R.Crim.P. 905(A), but Rule 905
amendments are not “self-authorizing” such that a petitioner
may simply “amend” a pending petition with a supplemental
pleading. Rather, the Rule explicitly states that amendment is
permitted only by direction or leave of the PCRA court.
Commonwealth v. Mason, 130 A.3d 601, 621 n.19 (Pa. 2015) (some
citations and quotation marks omitted).
Here, the PCRA court issued notice of its intent to dismiss Appellant’s
PCRA petition on June 3, 2017. This notice did not direct or permit Appellant
to amend his PCRA petition to include new claims. Appellant responded to
the Rule 907 notice on July 20, 2017, past the 20-day deadline. See
Pa.R.Crim.P. 907(1). According to Appellant’s response, Appellant received
the after-discovered evidence of Orr’s affidavit on May 31, 2017, which was
prior to the PCRA court’s Rule 907 notice. Reply to 907, 7/20/2017, at 1
(unnumbered). Nonetheless, at no point from May 31, 2017, when
-6-
J-S19039-19
Appellant learned of Orr’s affidavit, until March 23, 2018, when the PCRA
court dismissed Appellant’s petition, did Appellant seek permission to amend
his petition to include a claim of after-discovered evidence relating to Orr’s
affidavit. As such, the PCRA court was under no obligation to review the
merits of this new claim, which was improperly raised, without leave of court
to amend his petition, in an untimely Rule 907 response. See Mason, 130
A.3d at 621 n.19; Rykard, 55 A.3d at 1189 & n.8. Accordingly, Appellant is
not entitled to relief on this claim.
We now address Appellant’s ineffective assistance of counsel claims.
This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
“To establish ineffectiveness of counsel, a PCRA petitioner must show
the underlying claim has arguable merit, counsel’s actions lacked any
reasonable basis, and counsel’s actions prejudiced the petitioner.”
Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations
omitted). “A failure to satisfy any prong of the ineffectiveness test requires
-7-
J-S19039-19
rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963
A.2d 409, 419 (Pa. 2009).
When raising a claim that counsel was ineffective for failing to call a
potential witness, a petitioner must establish that
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to
testify for the defense; and (5) the absence of the testimony of
the witness was so prejudicial as to have denied the defendant a
fair trial.
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (citation
omitted).
Because some of Appellant’s PCRA claims were dismissed without a
hearing, we also keep the following in mind.
The PCRA court has discretion to dismiss a petition without a
hearing when the court is satisfied that there are no genuine
issues concerning any material fact, the petitioner is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings. To obtain a reversal of
a PCRA court’s decision to dismiss a petition without a hearing,
an appellant must show that he or she raised a genuine issue of
fact which, if resolved in his favor, would have entitled him to
relief, or that the court otherwise abused its discretion in
denying a hearing.
Commonwealth v. Holt, 175 A.3d 1014, 1017-18 (Pa. Super. 2017)
(citations omitted).
Following a review of the record and the briefs for the parties, we
conclude that the opinion of the Honorable Denis P. Cohen thoroughly
addresses Appellant’s issues regarding the ineffective assistance of trial
-8-
J-S19039-19
counsel and applies the correct law to facts that are supported by the
record. We discern no error or abuse of discretion on those issues.
Therefore, we adopt the PCRA court’s opinion of August 9, 2018, as our own
with respect to Appellant’s ineffective assistance of counsel issues.4 PCRA
Court Opinion, 8/9/2018, at 11-19.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/19
4 The parties shall attach a copy of the PCRA court’s August 9, 2018 opinion
to this memorandum in the event of further proceedings.
-9-
0060_Opinion
Circulated 06/20/2019 12:54 PM
IN THE COURT OF COMMON PLEAS
· FIL--ED
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA lOJB AUG -9 PM 2: 0 I
(tl='ffCE
. GI;;- .• ·-
. , ,tuU/i"/M R
CRIMINAL TRIAL DIVISION FIC)�R !f--:INAL D! vri:; IO�COROs
"'�' T Jlmi,,I. L �"" ...
o::· ,)�·.:;;:-;.;� UISUCom. v. Murray, K.
Combined Opinion