Com. v. Banks, D.

J-S29024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

DEREK ADAM BANKS

Appellant No. 2725 EDA 2016

Appeal from the PCRA Order dated August 2, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004269-2007
CP-15-CR-0004270-2007
CP-15-CR-0004271-2007
CP-15-CR-0004272-2007

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.

MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 25, 2017

Appellant Derek Adam Banks appeals pro se from the order dismissing

his petitions filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541–9546. We affirm.

In a previous appeal, we detailed the background of this case:

In July 2007, a confidential informant (“C.I.”) assisted
Embreeville State Police with an investigation into Appellant’s
drug related activities. During the course of the investigation,
the C.I. engaged in four controlled drug buys with Appellant.
The first controlled buy took place on August 1, 2007, in which
Appellant sold the C.I. 4.1 grams of cocaine in exchange for
three hundred dollars ($300.00). On August 8, 2007, a second
controlled buy occurred in which Appellant sold the C.I. 14.2
grams of cocaine in exchange for six hundred dollars ($600.00).
A third controlled buy took place on August 16, 2007, in which
Appellant sold the C.I. 13.7 grams of cocaine in exchange for six
hundred dollars ($600.00). The fourth controlled buy occurred
on September 11, 2007, in which Appellant sold the C.I. 97.7
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grams of cocaine in exchange for three thousand, six hundred
dollars ($3,600.00). Immediately following the September 11,
2007 controlled buy, police executed a search warrant on
Appellant’s home and recovered, inter alia, a digital scale with
white residue, a large amount of cash, 14.2 grams of cocaine,
and drug paraphernalia.

Police arrested Appellant, and the Commonwealth charged him
with various drug-related crimes at five separate dockets.
Specifically, the Commonwealth charged Appellant with the
following offenses: at docket no. CP–15–CR–0004267–2007
(“docket 4267–2007”), delivery of a controlled substance and
criminal use of a communication facility, in connection with the
August 8, 2007 controlled buy; at docket no. CP–15–CR–
0004269–2007 (“docket 4269–2007”), delivery of a controlled
substance and criminal use of a communication facility, in
connection with the August 1, 2007 controlled buy; at docket no.
CP–15–CR–0004270–2007 (“docket 4270–2007”), delivery of a
controlled substance and criminal use of a communication
facility, in connection with the September 11, 2007 controlled
buy; at docket no. CP–15–CR–0004271–2007 (“docket 4271–
2007”), three counts of possession of a controlled substance with
the intent to deliver (“PWID”), and one count of possession of
drug paraphernalia, in connection with the September 11, 2007
search of Appellant's residence; and at docket no. CP–15–CR–
0004272–2007 (“docket 4272–2007”), delivery of a controlled
substance and criminal use of a communication facility, in
connection with the August 16, 2007 controlled buy.

Appellant proceeded to a jury trial on December 1, 2008. On
December 3, 2008, the jury convicted Appellant of one count of
PWID, three counts of delivery of a controlled substance, three
counts of criminal use of a communication facility, and one count
of possession of drug paraphernalia. The court sentenced
Appellant to an aggregate term of twenty-one (21) to forty-six
(46) years’ imprisonment on March 4, 2009. On March 18,
2009, Appellant timely filed a notice of appeal, but this Court
dismissed the appeal on May 12, 2009, for failure to file a
docketing statement.

On April 20, 2010, Appellant timely filed a pro se PCRA petition,
and the court appointed counsel the next day. Counsel filed an
amended PCRA petition on May 19, 2011, requesting a hearing
to determine whether appellate counsel failed to perfect

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Appellant’s direct appeal rights. On May 26, 2011, with
agreement from the Commonwealth, the court reinstated
Appellant’s direct appeal rights nunc pro tunc. On June 20,
2011, Appellant timely filed a nunc pro tunc notice of appeal.
This Court affirmed Appellant’s judgment of sentence on
March 16, 2012, and our Supreme Court denied allowance of
appeal on September 4, 2012. See Commonwealth v. Banks,
47 A.3d 1246 (Pa.Super.2012), appeal denied, 616 Pa. 666, 51
A.3d 837 (2012).

Appellant timely filed a pro se PCRA petition on September 17,
2013. The court appointed counsel (“PCRA counsel”) on
October 3, 2013. On December 30, 2013, PCRA counsel filed a
petition to withdraw and a Turner/Finley “no merit” letter.
Appellant filed a pro se amended PCRA petition on January 9,
2014, which the court declined to consider because Appellant
was still represented by PCRA counsel. On January 22, 2014,
the PCRA court determined Appellant had one meritorious issue
concerning eligibility for the Recidivism Risk Reduction Incentive
(“RRRI”) program, so the court modified Appellant’s sentence to
include RRRI eligibility; with respect to Appellant’s remaining
claims, the court issued Pa.R.Crim.P. 907 notice of intent to
dismiss Appellant’s petition without a hearing. The court’s Rule
907 notice order and opinion expressly gave Appellant twenty
(20) days to file a response. On January 27, 2014, Appellant
filed a pro se response to the court’s Rule 907 notice order and
opinion. Notwithstanding the language in the Rule 907 notice
order and opinion, which allowed Appellant an opportunity to
respond, on February 7, 2014, the court dismissed Appellant's
pro se response (because Appellant was still represented by
PCRA counsel), and directed the Clerk of Courts to forward a
copy of the pro se filing to PCRA counsel. On February 25, 2014,
the PCRA court dismissed Appellant’s petition and granted PCRA
counsel’s request to withdraw. Appellant filed a second pro se
response to the court’s Rule 907 notice order and opinion; the
response was docketed on February 28, 2014, but dated
February 18, 2014. The PCRA court dismissed the response as
moot on March 4, 2014, based on the court’s earlier denial of
PCRA relief.

Appellant timely filed a pro se notice of appeal on March 18,
2014, and a voluntary concise statement of errors complained of
on appeal pursuant to Pa.R.A.P.1925(b). On April 15, 2014, the
PCRA court filed its opinion per Pa.R.A.P.1925(a) asking this

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Court to quash or dismiss the appeal because Appellant
erroneously listed the order appealed from as dated March 15,
2014; the PCRA court contended no court action took place on
March 15, 2014. Based on the PCRA court’s suggestion to quash
or dismiss the appeal, the court declined to review any of
Appellant’s issues in its opinion but indicated it would file a
supplemental opinion if this Court so directed.

On August 19, 2014, this Court determined it was obvious from
the face of the record that Appellant meant to appeal the
February 25, 2014 order denying PCRA relief, and Appellant's
reference to a March 15, 2014 order was merely an inadvertent
error. Because Appellant filed his notice of appeal within thirty
days of the order denying PCRA relief, this Court declined to
quash Appellant's appeal. Instead, this Court retained
jurisdiction and remanded the case to the PCRA court to issue a
supplemental opinion addressing all properly preserved issues
raised in Appellant’s Rule 1925(b) statement. The PCRA court
subsequently issued its supplemental opinion, simply directing
this Court to review its earlier opinion in support of [its] Rule
907 notice order.

Commonwealth v. Banks, 121 A.3d 1120 (Pa. Super. 2015) (unpublished

memorandum at 1-2) (footnotes omitted).

In our appellate opinion, we proceeded to state the four issues

Appellant raised: 1) whether “three others involved” should have been

charged “in the matter”; 2) whether the trial court should have merged

Appellant’s sentence; 3) whether the trial court erred in its calculation of

Appellant’s RRRI; and 4) whether PCRA counsel was incompetent. Banks,

at 2. Ultimately, we vacated the PCRA court’s order and remanded the case.

We explained our disposition as follows:

Based on the missing documents in the certified record, the
PCRA court’s failure to address most of Appellant’s issues and
improper dismissal of Appellant's January 9, 2014 and
January 27, 2014 pro se filings (docketed after PCRA counsel

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had moved to withdraw), the inadequate supplemental Rule
1925(a) opinion, and the existence of at least two meritorious
sentencing issues, the best resolution of this case is to vacate
and remand for further proceedings. . . . Upon remand, the
PCRA court must (1) correct Appellant’s RRRI calculation; (2)
re-characterize the restitution provisions of Appellant’s sentence
concerning the “buy money” as reasonable costs of prosecution;
(3) appoint new counsel to assist Appellant in filing an amended
PCRA petition raising all non-frivolous issues Appellant wants to
pursue; if appointed counsel concludes no non-frivolous issues
exist, counsel may file a Turner/Finley “no-merit” letter
identifying why Appellant's claims are frivolous and otherwise
complying with the dictates of Turner and Finley; and (4)
complete the certified record so it contains all relevant
documents necessary to dispose of Appellant’s claims, including
Appellant’s September 17, 2013 PCRA petition and PCRA
counsel’s December 30, 2013 Turner/Finley “no-merit” letter.
Accordingly, we vacate and remand for further proceedings.

Id. at 5-6 (footnotes omitted).

Following remand, the PCRA court held a hearing on July 23, 2015, at

which it corrected Appellant’s RRRI calculation, and recharacterized the

restitution provisions of the sentence concerning “buy money” as the

reasonable costs of prosecution. The PCRA court also appointed new

counsel, who filed an amended PCRA petition on September 18, 2015. The

Commonwealth filed a response on October 5, 2015. Appellant, acting pro

se, filed responses on November 6, 2015 and November 30, 2015. On

March 14, 2016, Appellant filed another pro se PCRA petition. On March 23,

2016, the PCRA court issued an order pursuant to Pa.R.Crim.P. 907 which

stated:

[U]pon consideration of [Appellant’s] pro se PCRA [petition] and
counseled [PCRA petition], and after independent review of the
record, [Appellant] is hereby notified of the Court’s intent to

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Grant in part the Petition and amendment and DISMISS the
remaining non-viable claims without a hearing twenty (20) days
from the date of the docketing of this Order. After
independently reviewing the entire record in this matter, the
Court agrees with [Appellant] and finds that [Appellant] is
entitled to PCRA [relief] on one (1) claim. Specifically, the Court
finds that the sentence imposed on Delivery of a Controlled
Substance docketed at 4270 of 2007, and PWID on docket 4271
of 2007 should have been run concurrently to one another and
consecutively to the sentences imposed in the remaining term
numbers. Court Admin[istration] is directed to schedule this
matter for resentencing during the Court’s next miscellaneous
term.

[Appellant] is hereby given NOTICE of [the] Court’s intent to
dismiss all remaining non-viable claims contained in his PCRA
petition and amendment without a hearing. . . .

Re-sentencing was scheduled for March 31, 2016.

Appellant filed a pro se response on April 11, 2016. On April 12, 2016,

the PCRA court ordered Appellant’s counsel to either file an amended PCRA

petition on Appellant’s behalf or a “reply detailing why [Appellant’s] response

lacks arguable merit.” Sentencing was re-scheduled to May 25, 2016.

On April 20, 2016, Appellant filed a pro se amended PCRA petition and

“For Counsel of Record [To] Abrogate Prior Filing with the Petition After

Review.” Appellant’s counsel filed a response to the PCRA court’s April 12,

2016 order on May 12, 2016, and filed an additional response on May 20,

2016. In his filings, Appellant’s counsel explained why Appellant’s pro se

filings lacked merit. Sentencing was continued again to July 7, 2016.

On June 28, 2016, Appellant filed a pro se “Motion to Vacate a Void

Judgment.” The PCRA court on July 7, 2016 denied Appellant’s July 28,

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2016 pro se motion “without prejudice to appointed counsel’s review of the

motion.”1 In addition, the PCRA court vacated Appellant’s sentence at 4271

of 2007 for possession with intent to deliver, with “the remaining sentences

imposed as originally imposed [].” N.T., 7/7/16, at 3-4. The PCRA court

and the parties confirmed that Appellant remained RRRI eligible. Id. at 4.

On August 2, 2016, the PCRA court denied Appellant’s pro se and

counseled petitions and permitted counsel to withdraw his appearance.

Appellant filed a pro se motion for recusal on August 15, 2016, followed by

his notice of appeal on August 19, 2016. Despite Appellant’s pending

appeal, on October 3, 2016, the PCRA court entered an order denying his

motion for recusal.2 The PCRA court issued its opinion on November 9, 2016

and the certified record was transmitted to this Court.3

Appellant presents eight issues for our review, as copied verbatim

from his brief:

1. Whether these acts within the transactions are part of one
criminal plan, scheme or encounter and the greater offense

____________________________________________
1
The PCRA court stated that the motion was denied “because [Appellant] is
represented by counsel” and Appellant did not “have a right to file it when
[he is] represented by counsel.” N.T., 7/7/16, at 5.
2
Pa.R.A.P. 1701(a) states the general rule that after an appeal is taken, the
trial court “may no longer proceed further in the matter.” The PCRA court
noted that Appellant “included this issue in his Concise Statement before his
motion for recusal was denied.” PCRA Court Opinion, 11/9/16, at 15 n.10.
3
Appellant has filed with this Court pro se applications for remand,
appointment of counsel and post-submission communication.

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cannot be committed as it pertains in this case unless the lesser
offense is initiated first?

2. Has there been some “prejudicial error” committed by trial
counsel and the [C]ommonwealth[,] the former by way of not
issuing subpoenas and gathering testimony the latter by failing
to charge the others present. Would not their testimony
complete a fair trial and encompass due process?

3. Whether the prior record score was accurate for the record?

4. Whether time served on [electronic home monitoring] (EHM)
should be accounted for and according the citation in GAGNON V
MORRISSEY [sic] was not a level 2 hearing to be presided by
neutral judge and was the 11 months and 15 days assessed
correctly as case which extended probation was dismissed?

5. Whether criminal complaints had either the approval or
disapproval of the district attorney?

6. Whether rehabilitative needs and help with mental health issues
were considered for mitigating circumstances?

7. Whether a sentence resulting from an unconstitutional statute
can remain in place after resentencing, is [Appellant] serving an
illegal sentence?

8. Whether a motion for recusal was appropriate in a multi-judge
county when presiding judge handled similar cases with
petitioner in the past?

Appellant’s Brief at 9.

Our standard of review is as follows:

We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. 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

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no such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted). We note that there is no absolute right to an evidentiary hearing

on a PCRA petition, and if the PCRA court can determine from the record

that no genuine issues of material fact exist, then a hearing is not

necessary. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008) (citation omitted), appeal denied, 956 A.2d 433 (Pa. 2008).

Conviction of Separate Offenses
(Appellant’s First Issue)

In his first issue, Appellant argues that “the 4 [drug selling]

transactions individually merge in regards to delivery of a controlled

substance and communication facility.” Appellant’s Brief at 13.

Convictions do not merge for sentencing purposes unless the crimes

arise from a single criminal act and all of the statutory elements of one

offense are included in the statutory elements of the other offense. 42

Pa.C.S. § 9765; Commonwealth v. Raven, 97 A.3d 1244, 1249 (Pa.

Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014). Here, Appellant

was sentenced at four different dockets relating to four different criminal

acts: delivery of a controlled substance and criminal use of a

communications facility on August 1, 2007; delivery of a controlled

substance and criminal use of a communications facility on September 11,

2007 (controlled buy); possession with intent to deliver a controlled

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substance on September 11, 2007 (search warrant); and delivery of a

controlled substance and criminal use of a communications facility on

August 16, 2007. Because the crimes were four separate criminal acts, the

crimes do not merge.

In addition, the statutory elements of possession with intent to deliver

a controlled substance and criminal use of a communications facility are

different. Delivery of a controlled substance and the intent to deliver a

controlled substance are “prohibited acts” proscribed by the Controlled

Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30).

When examining whether a controlled substance was possessed with intent

to deliver, the factfinder must consider all of the facts and circumstances

surrounding the possession of the substance. Commonwealth v.

Robinson, 582 A.2d 14, 17 (Pa. Super. 1990), allocatur denied, 598 A.2d

282 (Pa. 1991). A defendant may not be convicted of delivery of a

controlled substance unless he knowingly made an actual, constructive, or

attempted transfer of the substance to another person without the legal

authority to do so. Commonwealth v. Murphy, 844 A.2d 1228, 1233–34

(Pa. 2004). Use of a communication facility is a separate crime that is

committed if the defendant uses the communication facility “to commit,

cause or facilitate the commission or the attempt thereof of any crime which

constitutes a felony under this title or under the act . . . known as The

Controlled Substance, Drug, Device and Cosmetic Act.” 18 Pa.C.S. § 7512.

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The statute provides that “[e]very instance where the communication facility

is utilized constitutes a separate offense under this section.” Id. Because

the statutory elements of Appellant’s PWID and criminal use of a

communication facility convictions are not “included within the statutory

elements of the other,” the two crimes do not merge.

For these two reasons, Appellant’s first issue lacks merit.

Ineffectiveness of Trial Counsel
(Appellant’s Second and Fifth Issues)

In his second and fifth issues, Appellant claims his trial counsel was

ineffective for failing to present defense witnesses and failing to quash the

criminal complaints filed against him. Our Supreme Court has stated:

Counsel is presumed effective, and the petitioner bears the
burden of proving otherwise. Commonwealth v. Roney, 622
Pa. 1, 79 A.3d 595, 604 (2013). To prevail on an ineffectiveness
claim, the petitioner must plead and prove, by a preponderance
of the evidence, the Sixth Amendment performance and
prejudice standard set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court
has divided the performance component of Strickland into two
sub-parts dealing with arguable merit and reasonable strategy.
Commonwealth v. Baumhammers, . . . 92 A.3d 708, 719
(2014). Thus, to prevail on an ineffectiveness claim, the
petitioner must show: that the underlying legal claim has
arguable merit; that counsel had no reasonable basis for his or
her action or omission; and that the petitioner suffered prejudice
as a result. Id. (citing Commonwealth v. Pierce, 515 Pa. 153,
527 A.2d 973, 975–76 (1987)).

Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014)

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Failure to Present Witnesses

Appellant contends that his trial counsel should have communicated

with three people who were present when the police executed the search

warrant on September 11, 2007 and recovered contraband from his home,

and that counsel should have presented those individuals as witnesses.

Appellant’s Brief at 13-14. He also asserts that his right to a fair trial was

violated because the Commonwealth failed to charge these “3 other

individuals present at the time the search warrant commenced,” and argues

that he was wrongly convicted as a result of “guilt by association.” Id.

“[W]hen raising a claim for the failure to call [] witness[es], to obtain

relief, a petitioner must establish that: (1) the witness existed; (2) the

witness was available; (3) counsel was informed or should have known of

the existence of the witness; (4) the witness was prepared to cooperate and

would have testified on defendant’s behalf; and (5) the absence of such

testimony prejudiced him and denied him a fair trial. Commonwealth v.

Carson, 559 Pa. 460, 741 A.2d 686, 707 (1999).” Commonwealth v.

Reid, 99 A.3d 427, 438 (Pa. 2014).

Here, the PCRA court noted that Appellant failed to raise this “vague

claim” in his PCRA petition and amendments. PCRA Court Opinion, 11/9/16,

at 11. The PCRA court determined:

Even assuming arguendo that [Appellant’s] vague claim
was properly preserved, we would still be unable to adequately
address it. [Appellant] offers nothing more than boilerplate and
vague allegations of ineffectiveness. Without more, we cannot

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conclude that trial counsel was ineffective in failing to gather
evidence and subpoena certain unidentified witnesses.
Assertions of ineffectiveness in a vacuum cannot satisfy the
ineffectiveness standard. Commonwealth v. Pettus, 424 A.2d
1332, 1335 (Pa. 1981). A defendant who is alleging
ineffectiveness must set forth sufficient facts upon which a
reviewing court can conclude that trial counsel may have, in fact,
been ineffective. Additionally, trial counsel can never be
ineffective for failing to pursue a meritless claim.
Commonwealth v. Giknis, 420 A.2d 419 (Pa. 1980).
Accordingly, this Court will not grant relief on claims of
ineffective assistance of counsel in the abstract.

PCRA Court Opinion, 11/9/16, at 11. The PCRA court added, “given the

lengthy and detailed trial testimony and the physical evidence found at

[Appellant’s] residence, the uncontested evidence of guilt was so

overwhelming that the outcome of the trial would not have differed even if

trial counsel erred in his representation of [Appellant].” Id. at 11 n.8.

The PCRA court’s reasoning is supported by the record and free of

legal error; there is no merit to Appellant’s underlying claim that trial

counsel was ineffective for failing to present the three witnesses because,

even if the witnesses were available and willing to testify – and Appellant

has not demonstrated that they were – Appellant was not prejudiced nor

denied a fair trial. As noted by the PCRA court, the “lengthy and detailed”

evidence of guilt was “overwhelming.” PCRA Court Opinion, 11/9/16, at 11

n.8. In our prior decision, we recounted Appellant’s “drug related activities,”

including four controlled buys from a confidential informant of between 4.1

and 97.7 grams of cocaine. Commonwealth v. Banks, 121 A.3d 1120 (Pa.

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Super. 2015) (unpublished memorandum at 1). That evidence fully

supported Appellant’s convictions.

At trial, the Commonwealth presented testimony from Pennsylvania

State Trooper Jose Torres. Trooper Torres named the confidential

informant, and explained that the informant was cooperating with the hope

that her husband, who was facing drug charges, would receive favorable

treatment. N.T., 12/2/08, at 26. Trooper Torres was with the confidential

informant when she telephoned Appellant to arrange the four drug buys on

August 1, August 8, August 16, and September 11, 2007, and when she

bought the cocaine. Id. at 36, 41-42, 63-73, 83-90, 92-103. Trooper

Torres also testified to being at Appellant’s residence during the execution of

a search warrant and stated:

The kitchen is where we encountered most of what I deemed to
be evidentiary value. As soon as you walk into the kitchen, right
there on the kitchen counter was a digital scale with a bunch of
white residue on it. There was a kitchen spoon with white
residue on it. There was a large amount of money, which I
originally suspected would be the $3,600 that [the confidential
informant] just went in to purchase the quarter pound. There
was also an additional plastic bag of cocaine. . . . there were
some baggies. So there were a variety of items that ranged
from cocaine to drug paraphernalia to actual large amounts of
money.

Id. at 107.

After Trooper Torres, Pennsylvania State Police forensic scientist Irina

Aleshkevich testified to being a drug identification analyst and testing the

white substances recovered from the controlled buys and Appellant’s

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residence; Ms. Aleshkevich determined with scientific certainty that the

white substances were cocaine. In addition, the confidential informant

testified, as did Pennsylvania State Trooper Noel Valez, and Pennsylvania

State Police Corporal Nicole Palmer. See N.T., 12/3/08, at 1-126. All three

of the witnesses recounted their participation in the four controlled buys of

cocaine from Appellant, and corroborated the testimony of Trooper Torres.

Appellant did not testify at trial, and did not present any defense. See

N.T., 12/3/08, at 127 (Trial Court: “All right, [Counsel], you have indicated

to me . . . that your client does not wish to testify, nor do you have any

evidence to present in this case, is that correct?” Trial Court: “And I also

understand that there is going to be no evidence submitted by [Counsel] on

behalf of you, is that correct as well?” Appellant: “Yes, Your Honor, at this

point, that is correct”). Based on this record, we agree with the PCRA court

that the uncontested evidence of Appellant’s guilt was overwhelming and

that he is entitled to no relief on his claim that his counsel should have

called the three additional witnesses. Appellant’s second issue claiming that

counsel was ineffective for failing to present as witnesses the three

individuals in his residence is thus meritless.

Failing to Quash Criminal Complaints

In his fifth issue, Appellant claims that counsel was ineffective “for

failing to quash the criminal complaints which were defective on [their]

face.” Appellant’s Brief at 18. Although largely undeveloped, the essence of

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Appellant’s argument is that his criminal complaints should have been

quashed or vacated because they were “not approved or disapproved by a

person with authority to prosecute [A]ppellant’s case” under Pa.R.Crim.P.

507. Id. at 19. He criticizes his trial counsel for failing to seek quashal of

the complaints on this basis.

Rule 507 reads:

Approval of Police Complaints and Arrest Warrant
Affidavits by Attorney for the Commonwealth — Local
Option

(A) The district attorney of any county may require that criminal
complaints, arrest warrant affidavits, or both filed in the county
by police officers, as defined in these rules, have the approval of
an attorney for the Commonwealth prior to filing.

(B) If the district attorney elects to proceed under paragraph
(A), the district attorney shall file a certification with the court of
common pleas, which certification shall state whether prior
approval of police complaints, or arrest warrant affidavits, or
both shall be required, shall specify which offenses or grades of
offenses shall require such prior approval, and shall also specify
the date such procedure is to become effective. The court of
common pleas shall thereupon promulgate a local rule in the
following form, setting forth the offenses or grades of offenses
specified in the certification and stating whether prior approval of
police complaints, arrest warrant affidavits, or both shall be
required:
...

(C) If an attorney for the Commonwealth disapproves a police
complaint, arrest warrant affidavit, or both, the attorney shall
furnish to the police officer who prepared the complaint,
affidavit, or both a written notice of the disapproval, in
substantially the following form, and the attorney shall maintain
a record of the written notice.
...

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(D) No defendant shall have the right to relief based
solely upon a violation of this rule.

Pa.R.Crim.P. 507 (emphasis added). Pursuant to Rule 507(B), Chester

County Local Rule 507 provides:

The District Attorney of Chester County having filed a
certification pursuant to Pa.R.Crim.P. 507, criminal complaints
and arrest warrant affidavits by police officers, as defined in the
Rules of Criminal Procedure, charging the following offenses shall
not hereafter be accepted by any judicial officer unless the
complaint and affidavit have the approval of an attorney for the
Commonwealth prior to filing:

1. Corrupt organizations in violation of 18 Pa.C.S.A. §
911;
2. Criminal homicide in violation of 18 18 Pa.C.S.A. §
2501;
...

36. All cases against juvenile defendants that are being
direct filed into the adult system.

The only drug offense included in Chester County Local Rule 507 is 18

Pa.C.S.A. § 2506, “Drug delivery resulting in death.” The rule does not

require prior approval of complaints charging the offenses of which Appellant

was convicted.

In denying relief for this claim, the PCRA court explained:

Here, the plain language of Rule 507 makes clear that
[Appellant’s] charges set forth in the respective criminal
complaints do not require the approval/disapproval of the district
attorney. In other words, [Appellant] was not charged with any
of the enumerated offenses contained in Rule 507. Rule 507
give the district attorney the option of requiring that criminal
complaints or arrest warrant affidavits, filed in this county, by
police officers have the prior approval of an attorney for the
Commonwealth. Under the rule, the district attorney is given
the discretion to define which offenses or grades of offenses will

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require such prior approval. Thus, [Appellant’s] claim is devoid
of merit and counsel is never deemed ineffective for failing to
make a frivolous motion. Commonwealth v. Fowler, 703 A.2d
1027, 1033 (Pa. 1997).

PCRA Court Opinion, 11/9/16, at 13-14.

We agree with the trial court’s analysis. Chester County Local Rule

507 does not include PWID, delivery of a controlled substance, or criminal

use of a communication facility as crimes which require attorney approval

prior to filing. The criminal complaints filed against Appellant therefore did

not require the signature of the District Attorney under Chester County Rule

507. Moreover, Pa.R.Crim.P. Rule 507 explicitly states that a violation of the

rule does not afford a defendant a “right to relief.” For these reasons,

Appellant’s claim under Rule 507 lacks merit. And because Appellant does

not state a meritorious claim for quashal of the complaints, his counsel

cannot have been ineffective for failure to move to quash the complaints

under Rule 507. Accordingly, Appellant’s fifth issue lacks merit.

Discretionary Aspects of Sentencing
(Appellant’s Third and Sixth Issues)

In his third and sixth issues, Appellant challenges the discretionary

aspects of his sentence by assailing the computation of his prior record score

and asserting that the court failed to properly consider such mitigating

factors as his rehabilitative needs and mental health issues.

Challenges to the discretionary aspects of sentencing – with the

exception of claims regarding a sentence’s legality – are not cognizable

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under the PCRA. 42 Pa.C.S. § 9543(a)(2)(vii); see Commonwealth v.

Fowler, 930 A.2d 586, 593 (Pa. Super. 2007). See also Commonwealth

v. Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000), appeal denied, 775

A.2d 803 (Pa. 2002) (allegation that trial court erroneously computed prior

record score challenges the discretionary aspects of sentencing);

Commonwealth v. Hyland, 875 A.2d 1175 (Pa. Super. 2005), appeal

denied, 890 A.2d 1057 (Pa. 2005) (claim that court failed to consider

mitigating factors challenges discretionary aspects of sentencing).

Even if Appellant’s issues were cognizable under the PCRA, he may not

obtain relief with respect to them because they were not raised in his

petitions before the trial court. As the PCRA court did not have an

opportunity to address these issues, they were waived and do not merit

relief. See generally Pa.R.A.P. 302.

Credit for Time Served
(Appellant’s Fourth Issue)

In his fourth issue, Appellant claims the court erred by failing to credit

him for time served “pre-sentence and post-sentence,” including “time spent

imprisoned on (EHM) . . . electric home monitoring.” Appellant’s Brief at 16-

17.

In addressing this issue, we first note that Appellant improperly

characterizes his time on electronic home monitoring as “imprisonment.” As

we explained in Commonwealth v. Martz, 42 A.3d 1142 (Pa. Super.

2012):

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The right to credit for time served is statutory in nature and
arises from 42 Pa.C.S.A. § 9760, which provides, in relevant
part, the following:

§ 9760. Credit for time served

[T]he court shall give credit as follows:

(1) Credit against the maximum term and any minimum
term shall be given to the defendant for all time spent in
custody as a result of the criminal charge for which a
prison sentence is imposed or as a result of the conduct
on which such a charge is based. Credit shall include
credit for time spent in custody prior to trial, during trial,
pending sentence, and pending the resolution of an
appeal.

42 Pa.C.S.A. § 9760(1) (bold added). Thus, credit for time
served is generally reserved for situations where the defendant
is “in custody.” Commonwealth v. Stafford, 29 A.3d 800 (Pa.
Super. 2011). “Indeed, Pennsylvania appellate courts
consistently have interpreted section 9760’s reference to
‘custody’ as confinement in prison or another institution.”
Commonwealth v. Maxwell, 932 A.2d 941, 944 (Pa. Super.
2007) (citations omitted).

42 A.3d at 1145. Appellant was not “in custody” — confinement in prison or

another institution — while on electronic home monitoring. Therefore, that

time could not be credited to his sentence. See Commonwealth v. Kyle,

874 A.2d 12 (Pa. 2005) (defendant was not in custody during time he spent

on bail subject to electronic home monitoring and was not entitled to have

such time credited against sentence of incarceration).

Further, the PCRA court concluded that Appellant received the correct

credit for time served. Commonwealth Brief at 20-21. The court explained:

[Appellant’s] contention that he did not receive the full
amount of credit for time served is belied by the record. Our

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review of the record indicates that on March 4, 2009, [Appellant]
was sentenced to the balance of his maximum sentence of 11
months and 15 days. The Court imposed that sentence as a
result of a violation of parole on docket number CP-15-CR-
0001989-1999. The notes of testimony from the violation of
parole sentencing unequivocally evidence that [Appellant]
received credit for time served from September 11, 2007 to
September 27, 2008. The notes of testimony reflect that
[Appellant] received the correct amount of credit for time served
as a bench warrant was lodged as a detainer on September 13,
2007.

At the same hearing on March 4, 2009, [Appellant] was
given credit for time served from September 28, 2008 to March
4, 2009 on his new case docketed at CP-15-CR-0004269-2007.
See Chester County Docket, CP-15-CR-0001989-1999, at 21;
CP-15-CR-0004269-2007, at 4-5; N.T., 3/4/09, at 23-27.
Accordingly, the record reflects that [Appellant] received the
correct credit for time served.

PCRA Court Opinion, 11/9/16, at 12-13. We have reviewed the record cited

by the trial court and agree that Appellant properly was credited for the time

served in custody. This issue therefore is without merit.

Legality of Sentence under Alleyne
(Appellant’s Seventh Issue)

As Appellant’s seventh issue, he asserts that his sentence is illegal and

seeks relief under Alleyne v. United States, 133 S.Ct. 2151 (2013)

(requiring that any fact that increases the penalty for a crime beyond the

prescribed statutory minimum sentence be submitted to a jury), and

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)

(holding that 42 Pa.C.S. § 9712.1 was unconstitutional because it provided

for the trial court to make to make a factual determination by a

preponderance of the evidence in contravention of Alleyne). Appellant is

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not entitled to relief on this issue because our Supreme Court has held that

Alleyne does not apply retroactively to cases on collateral review.

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

Appellant was sentenced on March 4, 2009, and this Court affirmed his

judgment of sentence on March 16, 2012. Commonwealth v. Banks, 47

A.3d 1246 (Pa. Super. 2012) (unpublished memorandum). On

September 4, 2012, the Supreme Court denied his petition for allowance of

appeal. Commonwealth v. Banks, 51 A.3d 837 (Pa. 2012). Alleyne was

not decided until 2013. Appellant concedes he is seeking relief under the

PCRA. Appellant’s Brief at 23. To do so, he would have to apply Alleyne

(and Newman, which is based on Alleyne) retroactively to apply to his

conviction. It is clear that under Washington, Appellant is ineligible for

such relief because Alleyne does not apply retroactively to cases on

collateral review. We therefore find no merit to Appellant’s seventh issue.

Recusal
(Appellant’s Eighth Issue)

In his eighth and final issue, Appellant argues that the trial court erred

in denying his motion for recusal.

As we noted earlier, Appellant’s recusal motion was filed on August 18,

2016, one day before Appellant filed his notice of appeal. The PCRA court’s

order denying the recusal motion was not filed until October 3, 2016, more

than 30 days after the appeal was filed and after the court lost jurisdiction to

act on the motion under Appellate Rule 1701(a). Because the PCRA court

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was without jurisdiction to rule on the motion, its order denying the motion

was a legal nullity. See, e.g., Commonwealth v. Salley, 957 A.2d 320,

325 (Pa. Super. 2008) (judgment of sentence entered by the trial court

when it lacked jurisdiction constituted a legal nullity). Accordingly, there is

no order for us to consider.

Even if we could consider it, Appellant would not be entitled to relief.

A party seeking recusal of a judge bears the burden of establishing the

grounds for recusal, and Appellant’s assertion that the PCRA court should

have recused because “it made its intentions clear having presided over

similar criminal charges involving petitioner” does not meet that burden.

Appellant’s Brief at 25; Commonwealth v. Irwin, 639 A.2d 52, 54 (Pa.

Super. 1994) (trial judge’s awareness of defendant’s prior criminal record

was not grounds for recusal of trial judge in nonjury trial; trial judge is

presumed to be capable of disregarding improper evidence, including

evidence of prior criminal acts, and there was no evidence that judge was

biased or prejudiced).

For the reasons discussed above, we find no merit to Appellant’s

claims. We therefore affirm the PCRA court’s order of dismissal. Appellant’s

applications for remand, appointment of counsel and post-submission

communication are denied.

Order affirmed.

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Judge Lazarus joins the memorandum.

President Judge Emeritus Stevens concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/25/2017

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