J-S68022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT DIXON

                            Appellant                 No. 25 WDA 2016


             Appeal from the PCRA Order dated November 30, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000239-2013


BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                        FILED DECEMBER 27, 2016

        Pro se Appellant, Robert Dixon, appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

        On October 25, 2012, at approximately 10:00 P.M., Appellant and/or

an unidentified accomplice called from a cell phone for a food delivery from a

Chinese restaurant in Erie. N.T., 9/17/13, at 19, 22-25. When the delivery

driver arrived, Appellant held him at gunpoint and robbed him. Based on a

description given by the victim of his assailant, a police detective prepared a

photographic array that included photographs of Appellant and of other


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S68022-16


individuals similar in appearance.             Id. at 31-32, 36-37, 39-40.   Without

hesitation, the delivery driver identified Appellant.

        At Appellant’s hearing on his omnibus pretrial motion before the

Honorable Ernest J. DiSantis, Jr., the police detective testified that when he

investigated the cell phone number that was used to place the food delivery

order with the Chinese restaurant, he learned that the number belonged to

Jeffrey Steele,1 who then reported that someone named “Rob” had stolen his

cell phone. N.T., 6/26/13, at 21-23. The detective testified that Mr. Steele

gave a general description of “Rob,” which matched the description given by

the delivery driver of his attacker. Id. at 23. According to the detective,

Mr. Steele stated that he believed that “Rob” had just been arrested, which

led the detective to search recent police reports for an arrestee whose

appearance aligned with the delivery driver’s and Mr. Steele’s overlapping

descriptions. Id. The detective thereby discovered Appellant, Robert Dixon.

Id.2

        Appellant’s counsel objected to the detective’s testimony about how

Mr. Steele described “Rob” to police on the basis that Mr. Steele was not

present to testify as to what he told the detective.           N.T., 6/26/13, at 23.

Although the court noted that Mr. Steele did not have to be present, it still
____________________________________________


1
    Mr. Steele did not testify at any point in these criminal proceedings.
2
  None of this information from this hearing was introduced during
Appellant’s jury trial. See generally N.T., 9/17/13.



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sustained the objection. Id. Appellant’s counsel then clarified that he was

“not objecting to the way the investigation proceeded” but to the “specific

facts from that conversation.”            Id.    After that explanation, the court

reversed its ruling and deemed the detective’s recollection of Mr. Steele’s

description of “Rob” to be admissible for purposes of this hearing.            Id.

However, the court decided that no additional information on this subject

was needed, as there was “enough to give us a backdrop.” Id. The court

then directed the testimony towards the next step in the detective’s

investigation.

        Ultimately, the court denied the omnibus pretrial motion regarding the

identification testimony, and, on September 18, 2013, following trial by a

jury before the Honorable William R. Cunningham,3 Appellant was convicted

of robbery, theft by unlawful taking, receiving stolen property, and

possession of a weapon.4 On November 26, 2013, Appellant was sentenced

____________________________________________


3
  On December 21, 2012, Appellant applied for a public defender, and one
was assigned. On February 13, 2013, Appellant filed a pro se “Ineffective
Assistance of Counsel Motion.” On February 15, 2013, his public defender
petitioned to withdraw as counsel of record and to schedule a pro se
colloquy. On February 22, 2013, the trial court denied both the public
defender’s petition to withdraw and the pro se “Ineffective Assistance of
Counsel Motion,” which the trial court “treat[ed] as a motion for
appointment of new counsel.”       Order, 2/22/13.    On August 6, 2013,
Appellant filed a second pro se “Ineffective Assistance of Counsel Motion.”
There is no indication on the docket of any response to this second motion.
The same public defender represented Appellant during his trial.
4
    18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 3925(a), and 907(b), respectively.



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to incarceration for a period of 10 years and 9 months to 21 years and 6

months. Because Appellant had previously been convicted of robbery, which

is a first-degree felony and a statutorily-defined “crime of violence,” this

sentence included a mandatory minimum term of incarceration pursuant to

the Sentencing Code, 42 Pa.C.S. § 9714(a) (“Sentences for second and

subsequent offenses”).        See id. § 9714(g) (defining “crime of violence” to

include robbery); N.T., 11/26/13, at 7-9, 22.5

       Appellant filed a direct appeal, and this Court affirmed the judgment of

sentence on August 22, 2014.            Commonwealth v. Dixon, No. 88 WDA

2014 (Pa. Super., Aug. 22, 2014) (unpublished memorandum). Appellant’s

petition for allowance of an appeal by the Supreme Court of Pennsylvania

was denied on February 17, 2015.               Commonwealth v. Dixon, 109 A.3d

678 (Pa. 2015).

       Appellant filed this timely pro se6 PCRA petition on September 10,

2015, alleging that his trial counsel “failed to conduct thorough questioning

____________________________________________


5
  Appellant had two prior convictions for robbery.         However, because
Appellant received concurrent sentences on the same day for both earlier
robberies, the trial court in the underlying action decided to treat those two
previous first-degree robbery convictions as if they were only one prior
conviction. N.T., 11/26/13, at 7-9, 21. Thus, when sentenced in the current
case, Appellant had only one “strike” against him instead of two.
6
  On September 14, 2015, the PCRA court appointed private counsel to
represent Appellant; PCRA counsel was given seven weeks thereafter to file
a supplemental PCRA petition. However, before that time period expired,
PCRA counsel petitioned for leave to withdraw as counsel on October 27,
(Footnote Continued Next Page)


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at [the] preliminary [hearing] on how [the Detective] conducted his

investigation, or how used [sic] the identification from a witness that was

not present at any court proceeding.” PCRA Pet., 9/10/15, at 4. Appellant

also challenged the photographic array, claiming that his photograph was

the only one in the array in which the individual had braids, after the victim

had already described his assailant to the police as having braids or

dreadlocks.    Id.      Appellant continued that he intended to assert:          “1)

ineffective assistance of counsel 2) Confrontation Clause violation 3) hearsay

rule   violation   4)     withholding     exculpatory   evidence   5)   prosecutorial

misconduct (erroneous photo array) 6) abusive discretion (allowance of

erroneous photo array).”          Id.   Finally, Appellant requested “full discovery

packets,” including a copy of the photographic array, and “preliminary

hearing transcripts.” Id. at 7.

       On November 10, 2015, the PCRA court filed a “Notice of Intent to

Dismiss PCRA Pursuant to Pa. R. Crim. P. 907.” In this Rule 907 Notice, the

court first addressed Appellant’s claim of ineffective assistance of counsel —

specifically, Appellant’s contention that his trial counsel was ineffective for
                       _______________________
(Footnote Continued)

2015. No action was taken by the PCRA court on this petition at that time,
and it held no hearing pursuant to Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998) (holding that when a first-time petitioner indicates in his pro
se PCRA petition that he does not wish to be represented by an attorney, the
PCRA court must conduct a hearing to elicit information regarding waiver of
counsel under Pa.R.Crim.P. 121 before permitting the petitioner to proceed
pro se); as discussed below, the court later granted PCRA counsel
permission to withdraw after Appellant said he wished to proceed pro se.



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failing to challenge the photographic lineup that the victim used to identify

Appellant:

      [Appellant’s] argument is belied by the record. . . . [O]n May 10,
      2013, [trial counsel] filed a Motion to Suppress, challenging the
      photographic line up presented to the victim for identification
      purposes. . . . After a hearing during which [trial counsel]
      thoroughly cross-examined the Commonwealth’s witnesses, the
      Court denied the Motion to Suppress. . . . [Appellant’s] claims
      related to [trial counsel’s] effectiveness as counsel are without
      merit.

Rule 907 Notice, 11/10/15, at 3-4.

      The PCRA court stated that “[t]he remaining claims raised by

[Appellant] are previously litigated or waived,” including that “the Court

abused its discretion in failing to suppress the photo lineup used by the

victim to identify [Appellant] as the perpetrator of the crimes.”     Rule 907

Notice, 11/10/15, at 4.     The court characterized Appellant’s claims of a

Confrontation Clause violation, hearsay rule violation, and errors regarding

the withholding of exculpatory evidence and prosecutorial misconduct as

“bald claims” and rejected them.      Id.   The court added that the PCRA

petition “is also the first time [Appellant] raises these claims.” Id. at 5. The

PCRA court concluded that Appellant’s “claims are waived and/or meritless.”

Id.

      Under Rule 907, “[t]he defendant may respond to the proposed

dismissal within 20 days of the date of the notice.” Pa.R.Crim.P. 907.

Appellant therefore was required to respond to the Rule 907 Notice by

November 30, 2015. He gave his “Response to Notice of Intent to Dismiss

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PCRA Petition Without Hearing” to prison authorities for mailing on

November 23, 2015, but it was not received by the Erie County Clerk of

Courts until December 4, 2015. Appellant’s Brief, Exs. “E(2)”-“E(3).” In the

meantime, on November 30, 2015, twenty days after November 10, 2015,

the PCRA court denied Appellant’s petition.

       On December 30, 2015, Appellant filed the instant pro se appeal.7 On

January 25, 2016, PCRA counsel filed a notice of intent to file a brief under

Anders v. California, 386 U.S. 738 (1967), stating that he “does not deem

any of [Appellant’s] PCRA claims to be cognizable and colorable in that said

claims have been finally litigated on direct appeal.”8 On February 9, 2016,

Appellant motioned to proceed pro se with this Court.

       On February 22, 2016, this Court remanded for            purposes    of

establishing whether Appellant desired to proceed pro se on appeal pursuant
____________________________________________


7
  This Court is required to docket a pro se notice of appeal despite Appellant
being represented by counsel. Commonwealth v. Williams, -- A.3d --,
2078 MDA 2015, 2016 PA Super 262, 2016 WL 6900832, *3 (Pa. Super.
Nov. 23, 2016). On January 5, 2016, the PCRA court ordered a Statement
of Matters Complained of on Appeal to be filed; the order was served on
both Appellant and his PCRA counsel. On January 19, 2016, Appellant filed a
pro se Statement of Matters Complained of on Appeal. However, where an
appellant is represented by counsel on appeal, his pro se Rule 1925(b)
Statement is a “legal nullity.” Commonwealth v. Ali, 10 A.3d 282, 293
(Pa. 2010).
8
  We note that a Turner/Finley brief — and not an Anders brief — is the
appropriate filing in this situation. See Commonwealth v. Widgins, 29
A.3d 816, 817 n.2 (Pa. Super. 2011) (citing 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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to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).                On March 11,

2016, the PCRA court held a colloquy with Appellant on the record in which

Appellant expressed his desire to represent himself. On March 16, 2016, the

PCRA court entered an order declaring that Appellant had “knowingly,

intelligently, and voluntarily waived his right to counsel” and may “proceed

on a pro se basis.” Order, 3/16/16.

     On April 4, 2016, in lieu of a Rule 1925 opinion, the PCRA court

entered an order stating that “[t]he Notice of Intent which was filed

November 10, 2015, addresses the issues raised in Appellant’s PCRA

Petition. To the extent Appellant raises any new issues in his Statement of

Matters Complained of on Appeal, those matters being raised for the first

time on appeal are waived.” Order, 4/4/16.

     Appellant’s issues, as stated in his brief, are as follows:

     [1.] Whether the filing of the [A]ppellant’s [R]esponse to the
     lower Court’s 907 Notice of Intent to Dismiss PCRA Petition was
     filed in the timely manner consistent with the prison “mailbox
     rule.” This rule applies to all petitioners as not to violate one’s
     rights to due process upheld within U.S. Constitutional
     Amendment 5 and 14.

     [2.] Whether [A]ppellant was sentenced illegally by the terms
     set within Alleyne v. United States, [133 S. Ct. 2151 (2013)],
     as [Appellant] was sentenced to a mandatory minimum though
     the facts used by the court to impose such mandatory were
     elements of the crime that were “not” proven beyond a
     reasonable doubt by a jury as to violate [Appellant’s] 6th
     Amendment rights in conjunction with Due Process of law.
     Petitioner was sentence[d] “after” this said newly recognized
     right was declared. Also see U.S.C.A. 5, 8, and 14 and Pa.
     Const. Art. 1 § 10.


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        [3.] Whether the Trial Court erred in not allowing [Appellant] to
        cross-examine witness Jeffrey Steele causing a confrontation
        clause violation as Mr. Steele was an identifying witness [who]
        was “never” present in the court room in order for [Appellant] to
        cross-examine.

        [4.] Whether trial counsel was ineffective for [(a)] failure to
        raise the Alleyne claim as [Appellant] was sentenced to a
        mandatory minimum without the necessary elements of the
        crime being submitted to a jury and proven beyond a reasonable
        doubt after this said claim was declared and [(b)] counsel’s
        failure to object to or challenge a violation of the confrontation
        clause as identifying witness Jeffrey Steele was never present in
        the court for [Appellant] to cross-examine.

        [5.] Whether [Appellant] has a right to receive the discovery
        notes in order to properly perfect and/or formulate [Appellant’s]
        claims on appeal. This is a violation of the Due Process Clause
        (U.S.C.A. Const. Amend. 5).

Appellant’s Brief at 3-4 (emphasis in original).9

        Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super. 2003) (en banc).

                        Response to the Rule 907 Notice

        The first issue raised by Appellant is whether his Response to the Rule

907 Notice was timely. “[U]nder the ‘prisoner mailbox rule’ a document is

deemed filed when placed in the hands of prison authorities for mailing.”

Commonwealth v. Whitehawk, 146 A.3d 266, 268 n.3 (Pa. Super. 2016).

____________________________________________


9
    The Commonwealth did not file a brief.



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However, the prisoner/appellant bears the burden of proving that he, in fact,

delivered     the     document        within      the   appropriate   time   period.

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). The “cash slip”

provided by prison authorities to an incarcerated petitioner, noting both the

deduction from his account for mailing to the clerk of courts and the date of

the mailing, constitutes sufficient proof of the date of mailing. Id.

       Here, Appellant attached to his brief a copy of his prison “cash slip,”

which shows that a deduction was made from his prison account on

November 23, 2015, for the mailing of his pro se Response to the Erie

County Clerk of Courts.10 The PCRA court never addressed the timeliness of

the Response in any of its filings.            See Order, 4/4/16; Opinion, 1/25/16;

Order, 11/30/15.       However, because Appellant has provided proof that he

placed his Response in the hands of prison authorities for mailing within the

____________________________________________


10
  The “cash slips” provided by prison authorities to Appellant each noted a
deduction from his account for the cost of postage and the date of that
deduction. Appellant’s Brief at Ex. “E(2).” Two of the cash slips are labelled
“Legal” and are dated “11/23/15” in Appellant’s handwriting, but, under the
section “Business Office’s Space,” they have a stamped date of “Nov 30
2015.” Id. at Ex. “E(2).” As these two cash slips are marked as “Legal” and
their handwritten dates correspond with the date that Appellant alleges that
he mailed his Response, see Appellant’s Brief at 9, we accept the first two
cash slips as evidence of the date that Appellant gave his Response to prison
authorities for mailing. We note, however, that Appellant’s response would
be timely even if we used the stamped date of November 30, 2015.
Appellant also attached to his brief a letter dated November 22, 2015, and
addressed to the Erie County Office of Public Defender, which explains the
presence of the second cash slip for postage labelled “Legal” on November
23, 2015. Id. at Exs. “A,” “E(2).”



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20-day period in which he had to respond to the PCRA court’s 907 Notice,

we deem his Response timely.

       The trial court dismissed Appellant’s petition without awaiting receipt

of Appellant’s Response, and it therefore did not consider the content of that

Response. In doing so, the trial court erred. Normally, in this situation we

would remand to the trial court for consideration of the arguments made in

Appellant’s Response.       A thorough review of Appellant’s Response reveals,

however, that it is mostly nonresponsive to the Rule 907 Notice. Parts of

the Response raise claims that were not included in Appellant’s petition and

that therefore were waived. The remainder fails to present any meritorious

arguments in support of Appellant’s petition.          Therefore, rather than

remand, we shall consider and dispose of Appellant’s remaining issues.

               Legality of the Mandatory Minimum Sentence

       The second issue raised by Appellant is whether the mandatory

minimum aspect of his sentence is illegal in light of Alleyne v. U.S., 133 S.

Ct. 2151, 2168 (2013), which held that, other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory minimum must be submitted to a jury and proved

beyond a reasonable doubt.11

____________________________________________


11
  This claim was raised for the first time in Appellant’s Response to the Rule
907 Notice. Therefore, the PCRA court did not address this issue. A legality-
of–sentence claim, however, is always subject to review if the PCRA petition
(Footnote Continued Next Page)


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      Appellant received a mandatory minimum sentence because he

previously had been convicted of robbery. The courts of the Commonwealth

and the United States Supreme Court have taken the position that Alleyne

does not require that such a prior conviction be proven before a jury in order

to support a mandatory minimum sentence.                In Commonwealth v.

Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en banc), this Court held that

“[t]he Alleyne decision, therefore, renders those Pennsylvania mandatory

minimum sentencing statutes that do not pertain to prior convictions

constitutionally infirm insofar as they permit a judge to automatically

increase a defendant's sentence based on a preponderance of the evidence

standard” (emphasis added).           See also Apprendi v. N.J., 530 U.S. 466,

490 (2000) (“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt”

(emphasis added)); Commonwealth v. Aponte, 855 A.2d 800, 804 (Pa.

2004). Appellant therefore is not eligible for relief pursuant to Alleyne, and

his second issue is meritless. See Watley, 81 A.3d at 117.




                       _______________________
(Footnote Continued)

is timely filed. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).
This issue therefore may be addressed here.




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                           Right of Confrontation

      The third issue raised by Appellant is whether his inability to cross-

examine Jeffrey Steele violated his right of confrontation under the Sixth

Amendment to the United States Constitution.          The Confrontation Clause

applies to both federal and state prosecutions and provides that, “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him. . . .” U.S. Const. amend. IV

(emphasis added). The PCRA court found this issue to be waived because it

had not been raised and preserved in the trial court proceedings. Rule 907

Notice, 11/10/15, at 5. We agree. An issue raised in a PCRA petition will be

found waived “if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, [or] on appeal.” 42 Pa.C.S. § 9544(b).

Here, Appellant did not raise this claim of trial court error at any prior level

of review until this collateral appeal. Therefore, this issue is waived.

                      Ineffectiveness of Trial Counsel

      The fourth issue raised by Appellant is whether trial counsel was

ineffective for (1) failure to raise the Alleyne claim, and (2) failure to raise a

Confrontation Clause challenge in association with identifying witness Jeffrey

Steele.

      As noted above, Appellant raised the issue of ineffective assistance of

counsel for failure to raise the Alleyne claim for the first time in his

Response to the court’s notice of its intent to dismiss. A petitioner is limited


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in terms of the issues that may be raised in responding to a Rule 907 notice.

In Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa. Super. 2014), this

Court held that after the PCRA court has issued a Rule 907 notice of

dismissal, a petitioner may not raise new assertions of trial counsel

ineffectiveness in his response to the notice.               Rather, in order to raise

additional claims of trial counsel ineffectiveness, the PCRA court must grant

the petitioner leave to amend his petition. See id. Here, like the defendant

in Rykard, Appellant neither sought nor was granted leave to amend his

petition to include this claim. See id. Accordingly, Appellant is not entitled

to relief on this first part of his fourth issue.12 Id.

       The second part of Appellant’s fourth issue also is without merit. Mr.

Steele never testified at any proceedings in this case.             He was mentioned

during the hearing on his omnibus pretrial motion by the investigating police

detective who had questioned Mr. Steele as the owner of the stolen cell

phone from which the delivery call was made.                 See N.T., 6/26/13, at 23.

The PCRA court noted that during this hearing on the omnibus pretrial

motion,      Appellant’s       counsel         “thoroughly      cross-examined     the

Commonwealth’s witnesses.”            907 Notice, 11/10/15, at 3.          The record

____________________________________________


12
   Moreover, Appellant’s ineffectiveness claim based on Alleyne is meritless
in light of the fact that Appellant is not eligible for relief pursuant to
Alleyne. “[C]ounsel cannot be deemed ineffective for failing to raise a
meritless claim.” Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa.
2015).



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supports the PCRA court’s observation.          See N.T., 6/26/13, 15-21, 24-25,

37-38, 62-66. Mr. Steele was never called as a witness during Appellant’s

trial.    See generally N.T., 9/17/13.          Nor was he directly or indirectly

referenced at Appellant’s trial. Id.

         Appellant’s argument on this point misapprehends the purpose of the

Confrontation Clause. It is well-settled that —

         [t]he Confrontation Clause provides that in all criminal
         prosecutions, the accused shall enjoy the right . . . to be
         confronted with the witnesses against him. At its most basic
         level, the Sixth Amendment’s Confrontation Clause seeks to
         ensure that the trial is fair and reliable by preserving an
         accused's right to cross-examine and confront the witnesses
         against him.

Commonwealth v. Collins, 888 A.2d 564, 575 (Pa. 2005) (emphasis

added) (internal quotation marks and citations omitted). Because there was

no evidence by or regarding Mr. Steele at trial, there was no reason to test

its reliability through cross-examination.

                              Right to Discovery

         The last issue raised by Appellant is whether he has a due process

right to “discovery notes” that he seeks in order to further his appeal.       A

petitioner’s right to PCRA discovery is governed by Pa.R.Crim.P. 902(E)(1):

“no discovery shall be permitted at any stage of the proceedings, except

upon leave of court after a showing of exceptional circumstances.” Appellant

has not set forth any such exceptional circumstances in either his PCRA

petition or his brief to this Court. See PCRA Pet., 9/10/15, at 7; Appellant’s


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Brief at 12-13. Consequently, Appellant has established no right to receive

such discovery.13

                                      Conclusion

       For all of the foregoing reasons, we find that the PCRA court properly

dismissed Appellant’s petition. Accordingly, we affirm the PCRA court’s order

of dismissal.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2016




____________________________________________


13
   In his brief, Appellant adds that he has also not received “trial and
sentencing transcripts” and he requests that this Court “grant an Order for
Motion for Transcripts.” Appellant’s Brief at 22-23. Appellant’s brief does
not list any issue regarding trial and sentencing transcripts in the Statement
of Questions Involved, Appellant’s Brief at 3, and this issue therefore is
waived. 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”).



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