J-A28040-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PHILLIP TOOMER 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 985 WDA 2019

Appeal from the PCRA Order Entered June 10, 2019

In the Court of Common Pleas of Washington County Criminal Division at 

No(s): CP-63-CR-0002458-2002

BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 12, 2020

Philip Toomer (Appellant) appeals from the order entered in the 

Washington County Court of Common Pleas denying, as untimely, his second 

petition filed pursuant to the Post Conviction Relief Act (PCRA).1 Appellant 

seeks relief from the judgment of sentence imposed after his jury conviction 

of one count of third degree murder, and two counts each of attempted 

murder, aggravated assault, and recklessly endangering another person 

(REAP),2in connection with an April 2002 shooting. Appellant contends the 

PCRA court erred in dismissing his second petition as untimely filed, and

without first conducting an evidentiary hearing on his claims asserting the 

ineffective assistance of all prior counsel. For the reasons below, we affirm.

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. §§ 2502(c), 901(a), 2702, and 2705, respectively.
J-A28040-20

- 2 -

Appellant’s convictions relate to a shooting in Monongahela, 

Pennsylvania, on the evening of April 15, 2002. Victims Jeffrey Harris and 

Gary Simms testified at trial. The third victim, Carlson Cook, died as a result 

of his injuries. See Commonwealth v. Toomer, 825 WDA 2005 (unpub. 

memo. at 1, 3) (Pa. Super. Dec. 8, 2006), appeal denied, 674 WAL 2006 (Jun. 

5, 2007). This Court summarized the evidence presented at Appellant’s jury 

trial in the decision affirming the judgment of sentence on direct appeal: 

Jeffrey Harris . . . testified that he was at DelRosa’s pizza 

shop in Donora earlier [on the evening of April 15, 2002]. Prior 

to encountering [Appellant] there, Mr. Harris received word that 

his cousin was robbed by one of [Appellant’s] associates. Mr. 

Harris mentioned the incident to [Appellant] in passing, and that 

was the extent of their interaction at DelRosa’s. When DelRosa’s 

closed at 11 p.m., Mr. Harris and [Gary] Simms went to Hitch’s 

Hut in Monongahela, where they met Carlson Cook. 

After a period of time, [Appellant] entered Hitch’s Hut with 

several other individuals. [Appellant] summoned Jeffery Harris 

outside, and he went outside with his friends Gary Simms and 

Carlson Cook. Immediately outside of Hitch’s Hut, [Appellant] 

confronted Jeffrey Harris about [Appellant’s] inability to make 

money selling drugs in the area. Although the discussion was not 

necessarily pleasant, the credible testimony provided by Jeffrey 

Harris indicated that no one in this group made any threatening 

gestures or comments toward [Appellant]. Regardless, at this 

point the owner of the bar came outside and asked the group to 

move their discussion down the street. 

When the group moved away from Hitch’s Hut and toward 

the area between the bar and First Federal Bank, Jeffrey Harris 

testified that he heard shots being fired from a close range 

somewhere behind him. He immediately ran toward the middle 

of the area between Hitch’s Hut and First Federal Bank. When 

Jeffrey Harris heard Carlson Cook following him into that area, he 

turned around to see Carlson Cook on all fours on the ground. 

Jeffrey Harris also saw [Appellant] standing out by the street near 
J-A28040-20

- 3 -

the area between Hitch’s Hut and First Federal Bank, holding a 

gun. 

Gary Simms provided corroboration, testifying that, among 

other things, [Appellant] and Jeffrey Harris were talking outside 

of Hitch’s Hut about making money in Donora, but that it didn’t 

seem like a threatening situation. Neither Jeffrey Harris nor 

anyone else made any threatening comments or movements. 

When the owner requested [that] the group move along, Gary 

Simms suggested [that] they move down the sidewalk toward 

First Federal Bank. Mr. Simms testified that, while walking away 

from Hitch’s Hut, he saw [Appellant] reach under his t-shirt. 

Assuming he was reaching for a gun, Mr. Simms immediately ran 

for cover behind a concrete planter and he heard gunshots. When 

he turned around, he saw [Appellant] shooting toward him, Jeffery 

Harris and Carlson Cook, and saw Carlson Cook fall to the ground. 

Id. at 2-3 (citation omitted). 

The Commonwealth also presented evidence that eight “bullet casings 

and six . . . bullet fragments or strikes [were identified] in the area between 

Hitch’s Hut and First Federal Bank.” Toomer, 825 WDA 2005 (unpub. memo. 

at 1) (citation omitted). Moreover, three witnesses testified that they were in 

the vicinity at the time of the shooting and heard noises that sounded like 

firecrackers or popping. See id. at 2. None witnessed the actual shooting, 

but they all saw people disperse from the scene. See id. One witness, Jerry 

Maisano, testified that he “ran down to find Jeffrey Harris and Gary Simms —

unarmed — attending to Carlson Cook in the area between Hitch’s Hut and 

First Federal Bank.” Id. at 2 (citation omitted). As noted supra, Cook died 

from his injuries. See id. at 3.

At trial, Appellant testified in his own defense and claimed the shooting 

was in self-defense. He stated he was trying to explain the situation to Harris, 
J-A28040-20

- 4 -

“that [he] had nothing to do with what was going on.” N.T. Trial, 9/13-16/04

at 531. However, Harris “just looked angry.” Id. As they walked away from 

Hitch’s Hut, Appellant saw Harris “start[ ] to reach into his waist . . . like he 

was reaching for something[.]” Id. Appellant testified that he then “grabbed 

[his own] firearm,” but did not begin shooting until Harris “turned around and 

showed [him] that he had a gun in his hand and was about to aim at 

[Appellant].” Id. at 531-32. 

A jury trial was conducted before the Honorable Paul Pozonsky. On 

September 26, 2004, the jury found Appellant guilty of third degree murder

for the death of Cook, and two counts each of attempted murder, aggravated 

assault and REAP, with respect to Harris and Simms. Thereafter, on December 

13, 2004, the trial court sentenced him to an aggregate term of 35 to 70 

years’ imprisonment. Appellant was represented at trial and sentencing by 

private counsel, Joseph Hudak, Esquire. However, after sentencing, Joseph 

Zupancic, Esquire, entered his appearance and filed a post-sentence motion, 

challenging both the sentence imposed and trial counsel’s ineffectiveness. 

See N.T. Post-Sentence Motion, 3/4/05, at 2. The trial court denied the postsentence motion, and Appellant filed a timely appeal. This Court affirmed the 

judgment of sentence on direct appeal, and, on June 5, 2007, the 

Pennsylvania Supreme Court denied Appellant’s petition for allocatur review. 

See Toomer, 825 WDA 2005; 674 WAL 2006.

On July 18, 2008, Appellant filed a timely, pro se PCRA petition, raising 

a myriad of claims asserting the ineffective assistance of prior counsel. See 
J-A28040-20

- 5 -

Appellant’s Motion for Post Conviction Collateral Relief, 7/18/08, at 3a. Jeffrey 

Watson, Esquire was appointed to represent him. However, on November 21, 

2008, Attorney Watson filed a Turner/Finley3 “No Merit Letter.” See No Merit 

Letter, 11/21/08. Attorney Watson did not seek to withdraw from 

representation at that time. The PCRA court dismissed Appellant’s petition on 

January 28, 2010, without first conducting an evidentiary hearing.4 Attorney 

Watson filed a timely appeal to this Court, at which time he sought permission 

to withdraw from representation pursuant to Turner/Finley. On September 

1, 2010, we affirmed the order denying PCRA relief, and granted Attorney 

Watson’s petition to withdraw. Appellant’s subsequent petition for allocatur 

review was denied by the Pennsylvania Supreme Court. See 

Commonwealth v. Toomer, 207 WDA 2010 (unpub. memo) (Pa. Super. 

Sep. 1, 2010), appeal denied, 530 WAL 2010 (Pa. Apr. 4, 2011).

____________________________________________

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

4 The PCRA court complied with Pa.R.Crim.P. 907, and provided Appellant with 

proper notice of its intent dismiss the petition. The court originally provided 

Rule 907 notice on December 11, 2008, relying solely on counsel’s no-merit 

letter. However, no final order was ever entered. The court then provided a 

second Rule 907 notice on December 24, 2009, again providing no reasoning 

for its dismissal. Thereafter, on January 7, 2010, the PCRA court issued a 

third Rule 907 notice, which included a detailed explanation of its decision to 

forgo an evidentiary hearing. See Notice of Dismissal, 1/7/10, at 1-10. When 

Appellant failed to respond within the requisite 20-day period, the PCRA court 

entered the order dismissing the petition on January 28, 2010.
J-A28040-20

- 6 -

On May 2, 2011, Appellant filed the present PCRA petition, pro se.

5

 On 

March 6, 2012, Fred Rabner, Esquire, entered his appearance. On August 13, 

2012, the case was reassigned to the Honorable Katherine B. Emery after 

Judge Pozonsky retired. Attorney Rabner filed an amended petition on August 

24, 2012, asserting the ineffectiveness of all prior counsel. Attorney Rabner’s 

first issue focused on the proposed testimony of a private investigator that a 

witness who was present at the shooting, Alicia Tosi, told the investigator that 

the three victims were armed on the night of the incident, and that she 

removed their guns from the crime scene before police arrived. See

Appellant’s Amended Post Conviction Relief Act Petition, 8/24/12, at 4. 

Attorney Rabner explained that the trial court precluded the testimony of the 

private investigator as hearsay, that direct appeal counsel was ineffective for 

failing to raise this issue on direct appeal, and that PCRA counsel was 

ineffective for failing to raise the ineffectiveness of direct appeal counsel.6 See 

id. Second, Attorney Rabner asserted all prior counsel were ineffective for 

failing to present evidence that all three victims were armed on the night of 

the incident, and the police recovered bullets from their guns at the scene of 

the crime. See id. at 7.

____________________________________________

5 Appellant’s May 2011 pro se petition is not included in the certified record.

6 This claim is belied by the record. Although the trial court precluded 

Appellant from impeaching Tosi with the investigator’s statement, which she 

did not adopt or sign, the investigator testified during Appellant’s case-in-chief 

and stated Tosi told him “she knew they all had guns, but she did not see any 

guns.” N.T., Trial, 322-23, 511.
J-A28040-20

- 7 -

On July 22, 2013, Attorney Rabner filed a motion to amend the PCRA 

petition, which the PCRA court granted, nearly two years later, on May 20, 

2015. Thereafter, Attorney Rabner filed a second amended PCRA petition, 

raising an additional claim concerning the “cloud of suspicion” surrounding the 

judge who presided over Appellant’s jury trial, including allegations that Judge 

Pozonsky had tampered with evidence in unrelated cases.7 See Appellant’s 

Amended Second Post Conviction Relief Act Petition at 11-12. The PCRA court 

scheduled an evidentiary hearing for March 22, 2017.

The evidentiary hearing was rescheduled several times. On June 22, 

2018, present counsel, David Regoli, Esquire, entered his appearance. On 

October 9, 2018, Attorney Regoli filed a motion for leave to file another 

amended PCRA petition. The PCRA court granted the motion, and Attorney 

Regoli filed a third amended petition on November 28, 2018. He incorporated 

the issues raised in the prior petitions, and raised a new claim: trial counsel 

was ineffective for failing to interview eyewitness Vernon Majors and call him 

at trial, and both direct appeal and PCRA counsel were ineffective for failing 

to raise trial counsel’s ineffectiveness. Appellant’s Third Amended Post 

Conviction Relief Act Petition, 11/28/18, at 3 (unpaginated). Attorney Regoli 

averred that he first learned of Majors’ existence after he entered his 

____________________________________________

7 The petition averred Judge Pozonsky was the subject of a grand jury 

investigation based on allegations he had been “stealing cocaine and 

tampering with evidence which was kept in his judicial chambers on numerous 

cases.” Appellant’s Amended Second Post Conviction Relief Act Petition, 

7/19/16, at 13.

 
J-A28040-20

- 8 -

appearance, and sent an investigator to interview Majors on October 13, 2018. 

Id. at 2-3. Attached to the petition is a signed statement by Vernon Majors, 

dated October 13, 2018, in which he avers the following:

I don’t remember the date, but I was never interviewed by the 

police when this thing happened at the bar. I had been outside 

that night when this happened and the police that came there 

talked to me. I told them that I didn’t know nothing and that was 

it. After that night, no police or detectives or anyone else has 

talked to me about that night. I never talked to no defense 

attorney or investigators about it.

The night this happened, I was outside and I was right near 

[Appellant] and I saw one of the other guys lift up his shirt like he 

had a gun. When he did that, I just turned around and took off 

running. As I was running away I heard some gun shots but I 

never looked back. I didn’t see who was shooting or any of that.

Id., Exhibit B, Report of Investigative Interview (Vernon Majors).

At some point, the case was transferred to the Honorable Gary Gilman. 

On December 21, 2018, the PCRA court issued Pa.R.Crim.P. 907 notice of its 

intent to dismiss Appellant’s “multiple Amended Second PCRA Petitions” as 

untimely filed, without first conducting an evidentiary hearing. See Order, 

12/21/18, at 1; Pa.R.Crim.P. 907. Appellant filed a response on January 9, 

2019, asserting his claim was not time-barred and requesting an evidentiary 

hearing. Appellant’s Response to Order & Notice, 1/9/19, at 3-7 

(unpaginated). The Commonwealth filed a response to Appellant’s petition, 

stating it had no objection to an evidentiary hearing. See Commonwealth’s 

Response to Post Conviction Relief Act Petition, 3/1/19, at 2 (unpaginated). 

The PCRA court conducted argument on May 23, 2019, but, thereafter, on 

June 10, 2019, entered an order dismissing Appellant’s petition as untimely 
J-A28040-20

- 9 -

filed, without conducting a full evidentiary hearing. This timely appeal 

follows.8

Appellant raises two questions for our review:

I. Did the PCRA Court err in dismissing Appellant’s Second PCRA 

Petition on the basis that said filing was untimely?

II. Did the PCRA Court err in dismissing Appellant’s Second PCRA 

Petition without holding an evidentiary hearing to address genuine 

issues of material fact raised in said Petition?

Appellant’s Brief at vi. 

Our standard of review of an order denying PCRA relief is wellestablished. “[W]e examine whether the PCRA court’s determination ‘is 

supported by the record and free of legal error.’” Commonwealth v. 

Mitchell, 141 A.3d 1277, 1283–84 (Pa. 2016) (citation omitted). 

Furthermore, “a PCRA petitioner is not automatically entitled to an evidentiary 

hearing.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014). 

Rather, 

It is within the PCRA court’s discretion to decline to hold a hearing 

if the petitioner’s claim is patently frivolous and has no support 

either in the record or other evidence. It is the responsibility of 

the reviewing court on appeal to examine each issue raised in the 

PCRA petition in light of the record certified before it in order to 

determine if the PCRA court erred in its determination that there 

were no genuine issues of material fact in controversy and in 

denying relief without conducting an evidentiary hearing.

Id. (citation omitted).

____________________________________________

8 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement 

of errors complained of on appeal.
J-A28040-20

- 10 -

The statutory requirement that a PCRA petition be filed within one year 

of the date the judgment of sentence becomes final is a “jurisdictional 

deadline” and a PCRA court may not ignore the untimeliness of a petition to 

address the merits of the issues raised therein. Commonwealth v. 

Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019), appeal denied, 216 A.3d 

1028 (Pa. 2019). See also 42 Pa.C.S. § 9545(b)(1). 

Here, Appellant’s judgment of sentence was final on September 4, 2007

— 90 days after the Pennsylvania Supreme Court denied allocatur review of 

Appellant’s direct appeal, and Appellant declined to petition the United States 

Supreme Court for a writ of certiorari.

9

 See 42 Pa.C.S. § 9545(b)(3) (for 

purpose of PCRA timeliness provisions, “a judgment becomes final at the 

conclusion of direct review, including discretionary review in the Supreme 

Court of the United States . . . or at the expiration of time for seeking the 

review”); U.S. Sup. Ct. R. 13(1) (“[A] petition for a writ of certiorari to review 

a judgment in any case, . . . is timely when it is filed with the Clerk of this 

Court within 90 days after entry of the judgment.”). Accordingly, his current 

petition, originally filed nearly four years later (May 2, 2011), is facially 

untimely. See 42 Pa.C.S. § 9545(b)(1). 

____________________________________________

9 The 90th day was Monday, September 3, 2007, Labor Day, a legal holiday. 

Therefore, Appellant had until Tuesday, September 4th to file a petition for 

certiorari. See U.S. Sup. Ct. R. 30(1) (for computation of time, last day shall 

not be included if it is a federal legal holiday).
J-A28040-20

- 11 -

Nevertheless, an untimely petition may be considered if one of the three 

timeliness exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). One of 

these exceptions — the newly discovered facts exception — provides relief if 

a petitioner pleads and proves “the facts upon which the claim is predicated 

were unknown to the petitioner and could not have been ascertained by the 

exercise of due diligence[.]” 42 Pa.C.S. § 9545(b)(2)(ii). At the time 

Appellant filed his PCRA petitions, Appellant was required to file a petition 

invoking this exception “within 60 days of the date the claim could have been 

presented.”10 42 Pa.C.S. § 9545(b)(2).

In his first issue, Appellant suggests several pathways to overcome the 

untimeliness of his petition. First, Appellant insists that “[d]ue to the layered 

ineffectiveness of counsel . . . [his] second PCRA Petition was in fact timely 

filed.” Appellant’s Brief at 1. Relying on Commonwealth v. Rivera, 816 

A.2d 282 (Pa. Super. 2003), Appellant contends his first petition was “not 

properly reviewed because . . . PCRA counsel [failed] to conduct an 

investigation into the case or . . . claims of ineffective assistance of trial and 

appellate counsel prior to filing a No Merit Letter.” Appellant’s Brief at 5. 

Thus, he maintains his “second PCRA petition does not qualify as a ‘second or 

subsequent’ petition subject to the [PCRA’s] time restraints.” Id. at 6. 

Further, Appellant emphasizes that the second petition was his first 

____________________________________________

10 This subsection was amended in 2018 to provide petitioners with one year 

to invoke a timeliness exception. However, the amendment applies only to 

“claims arising on Dec. 24, 2017 or thereafter.” 42 Pa.C.S. § 9545(b)(2).
J-A28040-20

- 12 -

opportunity to raise these claims, because he could not challenge Attorney 

Watson’s ineffectiveness until his first PCRA appeal had concluded. See id.

at 7.

Similarly, Appellant also asserts the prohibition against hybrid 

representation precluded him from raising Attorney Watson’s ineffectiveness 

while Attorney Watson still represented him. Appellant’s Brief at 11. Thus, 

Appellant was not permitted to allege Attorney Watson’s ineffectiveness in 

response to the first PCRA court’s Rule 907 notice — although Attorney Watson 

filed a no merit letter, he did concomitantly file a petition to withdraw. See 

id. 

Alternatively, Appellant insists his claim meets the newly discovered fact 

exception to the PCRA’s timing requirements. Appellant’s Brief at 13. 

Appellant maintains that while “Majors’ identity was not a secret,” the “fact” 

Majors would have testified that he saw one of the victims “lift up his shirt like 

he had a gun[,]” was previously unknown since none of Appellant’s prior 

counsel interviewed Majors. See id. at 13-14; Appellant’s Third Amended 

Post Conviction Relief Act Petition at Exhibit B. Appellant acknowledges that

“PCRA counsel’s ineffectiveness cannot be advanced as a newly discovered 

‘fact’” under Section 9545(b)(1)(ii). Appellant’s Brief at 14. However, he 

argues that when prior counsel’s ineffectiveness results in the “functional 

equivalent of . . . having no counsel at all,” such that a petitioner is 

“completely deprived . . . of PCRA review[,]” the Pennsylvania Supreme Court 
J-A28040-20

- 13 -

has granted a “limited extension of the one-year time requirement.” Id. at 

14-15, citing Commonwealth v. Peterson, 192 A.3d 1123, 1133 (Pa. 2018).

We begin with the pronouncement of the Pennsylvania Supreme Court 

in Commonwealth v. Robinson, 139 A.3d 178 (Pa. 2016): “[T]here is no 

statutory exception to the PCRA time-bar applicable to claims alleging the 

ineffectiveness of post-conviction counsel.” Id. at 186. In that case, like 

here, the petitioner filed a timely, first PCRA petition. See id. at 180. The 

PCRA court denied relief, and because the petitioner had been sentenced to 

death, the order was appealed directly to the Supreme Court, which affirmed. 

Id. at 181, 182 n.5. More than a decade after his judgment of sentence was 

final, the petitioner filed a second PCRA petition, asserting the ineffective 

assistance of first PCRA counsel. Id. at 181. The PCRA court denied the 

petition as untimely filed, and the petitioner appealed once again directly to 

the Supreme Court. See id. at 182.

On review, our Supreme Court declined to create an “equitable 

exception to the PCRA’s timeliness requirements.” Robinson, 139 A.3d at 

180. The Court explained that PCRA’s “statutory time-bar implicates the 

court’s very power to adjudicate a controversy and prohibits a court from 

extending filing periods except as the statute permits.” Id. at 185. Thus, the 

only exceptions to the PCRA’s statutory time-bar are those outlined in Section 

9545(b)(1) — and “there is no statutory exception . . . applicable to claims 

alleging the ineffectiveness of post-conviction counsel.” See id. at 185-86. 

The Court stated: “The fact that [the petitioner] frames his issues as alleging 
J-A28040-20

- 14 -

the effective assistance of PCRA counsel simply does not overcome the court’s 

lack of jurisdiction to address them.” Id. at 186. 

Thus, Appellant’s first argument — that his layered ineffectiveness claim 

somehow overcomes the timing requirements — fails. In support of his claim, 

Appellant relies on Commonwealth v. Allen, 732 A.2d 582 (Pa. 1999), 

Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009) (plurality), and 

Rivera. First, we agree with the PCRA court that Allen is distinguishable 

because the second PCRA petition at issue in that case was filed before the

1995 enactment of the Section 9545 timing provisions. See Order, 12/21/18, 

at 7; Allen, 732 A.2d at 141 (second PCRA filed in November of 1994); 1995, 

Nov. 17, P.L. 1118, No. 32 (Spec. Sess. No. 1), § 1. Thus, the petitioner was 

not required to file his petition within one year of the date his judgment of 

sentence was final, nor was he required to plead and prove one of the 

enumerated statutory exceptions to overcome the untimeliness. 

We also conclude Ligons and Rivera provide no basis for relief. The 

Supreme Court’s plurality decision in Ligons involved a challenge to PCRA 

counsel’s ineffectiveness on appeal from a timely-filed first PCRA petition. 

See Ligons, 971 A.2d at 1135-36, 1140-41 (explaining “the only way to 

afford a capital PCRA petitioner an opportunity to enforce his right to effective 

PCRA trial counsel is to permit the filing of such claims on appeal from the 

denial of PCRA relief”). Here, Appellant’s ineffectiveness claims are raised in 

an untimely filed second petition.
J-A28040-20

- 15 -

Moreover, while Rivera also involved an untimely second PCRA petition, 

the PCRA court in that case “acknowledged [the petitioner] was never 

advised of his right to appeal the dismissal of his first PCRA petition.” See 

Rivera, 816 A.2d at 287 (emphasis added). Thus, the PCRA court granted 

new counsel an extension of time to file an amended petition. Id. On appeal, 

this Court determined that, in light of the PCRA court’s apparent grant of nunc 

pro tunc relief, we would treat his appeal “as an appeal from the denial of his 

first PCRA petition[.]” See id. at 287. In the present case, however, there is 

no allegation Appellant was not informed of his right to appeal the denial of 

his first PCRA petition; indeed, he did appeal from that order. Accordingly, 

Rivera is procedurally distinguishable.11

Appellant also contends that he was precluded from challenging 

Attorney Watson’s ineffectiveness because Attorney Watson continued to 

represent him on appeal from the denial of his first petition. See Appellant’s 

Brief at 6-8. It is well-established that a petitioner has no right to hybrid 

representation. Commonwealth v. Ellis, 626 A.2d 1137, 1139-41 (Pa. 

1993). However, in Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), the 

Supreme Court made clear that, in order to preserve a challenge to PCRA 

counsel’s ineffectiveness or the adequacy of a “no-merit” letter, a petitioner 

must file a pro se response to either the no-merit letter or the PCRA court’s 

____________________________________________

11 We note, too, Rivera was filed 13 years before the Supreme Court’s 

decision in Robinson.
J-A28040-20

- 16 -

Rule 907 notice of intent to dismiss. Id. at 879 n.3. See also id. at 880 n.4

(“[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[;] he could have challenged PCRA counsel’s stewardship after 

receiving counsel’s withdrawal letter and the notice of the PCRA court’s intent 

to dismiss his petition pursuant to Pa.R.Crim.P. 907, yet he failed to do so.”). 

Here, Appellant should have raised prior PCRA counsel’s ineffectiveness in 

response to the PCRA court’s Rule 907 notice. His failure to do so has waived 

these claims for appeal.12

We also reject Appellant’s assertion that he could not have responded 

to the PCRA court’s “no-merit” letter because Attorney Watson did not file a 

concomitant motion to withdraw. Citing a non-precedential decision of this 

Court, Appellant maintains that “[w]hen an attorney does not petition to 

withdraw at the same time the court issues a Rule 907 notice, the failure of 

the petitioner himself to respond does not act as a waiver of his claim for 

review.” Appellant’s Brief at 11, citing Commonwealth v. Potter, 2789 EDA 

2010 (unpub. memo. at 16-17 n.6) (Pa. Super. 2013). First, as noted above, 

Potter is not a published decision, and therefore has no precedential 

____________________________________________

12 In his brief, Appellant avers that he “did make some attempts to address 

the Rule 907 notices.” Appellant’s Brief at 12. He refers to documents that 

were purportedly attached to Attorney Rabner’s amended petition, although 

they are not included in the certified record on appeal. Nevertheless, despite 

these alleged “attempts,” it is evident Appellant never actually filed a response 

to the Rule 907 notice with the PCRA court. Thus, we are precluded from 

addressing such claims on appeal. See Pitts, 981 A.2d at 880 n.4.
J-A28040-20

- 17 -

authority. See Pa. Super. Ct. IOP § 65.37(B) (“An unpublished memorandum 

decision filed prior to May 2, 2019, shall not be relied upon or cited by a Court 

or a party in any other action or proceeding” except when relevant under law 

of the case, or decision involves same defendant in criminal action).

Second, the facts in Potter are distinguishable from those sub judice. 

In Potter, PCRA counsel did not file either a petition to withdraw or a no-merit 

letter; rather PCRA counsel filed both a motion for a new trial and an amended 

PCRA petition. See Potter, 2789 EDA 2010 (unpub. memo. at 5-6). In any 

event, this Court concluded Appellant preserved his challenge to PCRA 

counsel’s ineffectiveness by raising the claim in a motion seeking to dismiss 

counsel from representation. Id. at 16-17 n.6. Here, Appellant failed to 

challenge Attorney Watson’s ineffectiveness in any manner before the PCRA 

court.13 Thus, no relief is warranted.

Appellant alternatively argues that his ineffectiveness claim satisfies the 

newly discovered fact exception to the PCRA’s timing requirement set forth at 

____________________________________________

13 In Commonwealth v. Smith, 121 A.3d 1049 (Pa. Super. 2015), a panel 

of this Court held that the fact a petitioner was represented by the allegedly 

ineffective counsel at the time Rule 907 notice was provided did not excuse 

the petitioner’s obligation to “complain about PCRA counsel’s stewardship.” 

Id. at 1055. While the case law as it now stands makes it difficult, if not 

impossible, for a petitioner to challenge the ineffective assistance of first PCRA 

counsel, we note that the Pennsylvania Supreme Court recently granted 

allocatur review in another appeal to consider whether it should “devise a 

mechanism for the enforcement of the enforceable right to effective counsel 

in a first PCRA proceeding, when the current mechanism is not adequate to 

the enforcement of that important right[.]” See Commonwealth v. Bradley, 

230 EAL 2020 (Pa. Dec. 23, 2020).
J-A28040-20

- 18 -

Section 9545(b)(1)(ii). As noted supra, this exception permits the filing of a 

PCRA petition after the one-year limitation period when the petitioner pleads 

and proves “the facts upon which the claim is predicated were unknown to the 

petitioner and could not have been ascertained by the exercise of due 

diligence[.]” 42 Pa.C.S. § 9545(b)(2)(ii).

Here, the fact that Majors was a witness to the shooting was not 

unknown to Appellant or Attorney Hudak at the time of trial. Indeed, several 

witnesses testified that Majors was present with Appellant at the time of the 

shooting. See N.T., 9/13-16/04, at 230 (Harris), 270, 303 (Simms), 480 

(Monongahela City Police Officer Jason Baumgard). Indeed, Appellant

recognizes that “Majors’ identity was not a secret,” but insists there was no 

way for him “to have known what Majors would have said [at trial], because 

he was never interviewed by any of [Appellant’s] counsel.” Appellant’s Brief 

at 13-14. Moreover, he asserts: “As to due diligence, [Appellant] has been 

incarcerated since his arrest and his ability to communicate and investigate 

the facts in his case are at most barely minimal.” Id. at 14. Rather, he 

maintains he “has suffered from his prior counsel’s lack of effort.” Id. Thus, 

Appellant’s claim focuses on the dereliction of all prior counsel. 

It is well-settled a claim that prior counsel rendered ineffective 

assistance “is not the type of after-discovered evidence encompassed by” 

Section 9545(b)(1)(ii). Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 

785 (Pa. 2000). Nevertheless, the Supreme Court has carved out a limited 

exception when PCRA counsel’s action or inaction completely deprived the 
J-A28040-20

- 19 -

petitioner of review of their collateral claims raised in a first PCRA petition. 

See Peterson, 192 A.3d at 1132 (“[W]e we conclude that Counsel’s untimely 

filing of [a] first PCRA petition constituted ineffectiveness per se, as it 

completely foreclosed [the petitioner] from obtaining review of the collateral 

claims set forth in his first PCRA petition.”).

In Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), the 

Supreme Court considered whether the fact that first PCRA counsel failed to 

file a brief in this Court following an appeal from the denial of relief constituted 

an “unknown fact” under Subsection (b)(1)(ii), which would excuse the 

untimely filing of a second PCRA petition. Id. at 1272. In concluding that it 

did, the Supreme Court distinguished Gamboa-Taylor and its progeny as 

“situations when PCRA counsel had allegedly ineffectively narrowed the 

class of claims by not including all of the viable claims in the first petition.” 

Id. However, the Court held:

Those cases . . . have no relevance when the claim emanates from 

the complete denial of counsel. Rather, in such instances, the

United States Supreme Court mandates the presumption of 

prejudice because the process itself has been rendered 

“presumptively unreliable” under the Sixth Amendment.

Id. at 1273 (citation omitted and emphasis added). Thus, the Bennett Court 

opined: 

Consistent with this jurisprudence, this Court has recognized a 

distinction between situations in which counsel has narrowed the 

ambit of appellate review by the claims he has raised or foregone 

versus those instances, as here, in which counsel has failed to file 

an appeal at all. To this end, we have repeatedly indicated that 

the failure to file a requested direct appeal or a 1925(b) statement 

in support thereof is the functional equivalent of having no counsel 
J-A28040-20

- 20 -

at all. In such instances, the deprivation requires a finding of 

prejudice. Accordingly, following our prior case law, we hold that 

the analysis set forth in Gamboa–Taylor and subsequent case 

law does not apply to situations when counsel abandons his 

client for purposes of appeal. Additionally, allowing such 

claims to go forward would not eviscerate the time requirements 

crafted by the Legislature. Rather, subsection (b)(1)(ii) is a 

limited extension of the one-year time requirement under 

circumstances when a petitioner has not had the review to 

which he was entitled due to a circumstance that was 

beyond his control.

Id. at 1273 (some emphases added and citations omitted). Accordingly, the 

Court remanded the case to this Court for consideration of whether the fact 

that prior counsel had failed to file a brief was discoverable by the petitioner 

if he had acted with due diligence. See id. at 1275.

Recently, in Peterson, the Supreme Court concluded that “prior 

counsel’s negligence per se in filing an untimely [first] PCRA petition 

constitute[d] adequate grounds to permit the filing of a new PCRA petition” 

pursuant to the newly discovered facts exception. Peterson, 192 A.3d at 

1125 (emphasis supplied). Similar to counsel’s failure to file a brief in 

Bennett, the Peterson Court reasoned “[c]ounsel’s untimely filing of [the 

petitioner’s] first PCRA petition . . . completely deprived [the petitioner] of any 

consideration of his collateral claims under the PCRA.” Id. at 1130. Thus, the 

Court determined the petitioner properly invoked the newly discovered facts 

exception “to permit the filing of his second PCRA petition beyond the oneyear time bar.” Id. at 1132. See also Commonwealth v. Rosado, 150 

A.3d 425, 434 (Pa. 2016) (holding counsel’s filing of a brief that “raises only 

waived issues . . . is . . . akin to failing to file document perfecting an appeal”).
J-A28040-20

- 21 -

Here, Appellant insists “Attorney Watson’s decision to file [a] No Merit 

Letter constituted ineffectiveness per se, and acted as a functional equivalent 

of [Appellant] having no counsel at all, because it completely deprived 

[Appellant] of PCRA review.” Appellant’s Brief at 15. We disagree. Attorney 

Watson’s “no-merit” letter did not “completely deprive [Appellant] of any 

consideration of his collateral claims under the PCRA.” See Peterson, 192 

A.3d at 1130. Indeed, as the Bennett Court noted, “the federal constitutional 

standard guiding claims of appellate counsel’s ineffectiveness . . . allow[s] 

counsel to choose among nonfrivolous claims and select the best issues for 

purposes of appeal.” Bennett, 930 A.2d at 1272-73. Under Appellant’s 

reasoning, a petitioner could assert PCRA counsel’s ineffectiveness every time 

counsel files a Turner/Finley no-merit letter and petition to withdraw. 

In the present case, although Attorney Watson filed a “no-merit” letter, 

this Court still conducted a review of the “myriad of ineffectiveness claims

against trial and direct appeal counsel” raised in Appellant’s pro se petition, 

before concluding Appellant was entitled to no relief. See Toomer, 207 WDA 

2010 (unpub. memo. at 4, 6). Accordingly, we conclude Appellant’s 

allegations “assert claims of ineffectiveness for partial deprivations of 

appellate review, i.e., attorney errors in narrowing the issues for review, 

[rather than] claims of ineffectiveness resulting in complete deprivations of 

appellate review, i.e., attorney errors that resulted in petitioners being 

dispossessed of any opportunity for appellate review.” See Peterson, 192 

A.3d at 1129 (2018). Accordingly, no relief is warranted.
J-A28040-20

- 22 -

Because Appellant’s petition was untimely filed, the PCRA court had no 

jurisdiction to conduct an evidentiary hearing on Appellant’s claim. See 

Whiteman, 204 A.3d at 450. Therefore, we need not address Appellant’s 

second issue on appeal.

Thus, we agree with the ruling of the PCRA court that Appellant’s petition 

was untimely filed, and Appellant has failed to prove the applicability of one 

of the time for filing exceptions. Consequently, we affirm the order on appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/12/2021