J-S84023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DONTEL HAWES

Appellant No. 216 EDA 2016

Appeal from the PCRA Order Dated January 21, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010090-2011

BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 29, 2016

Appellant Dontel Hawes appeals pro se from the order dismissing his 

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

9541-9546. We affirm.

On January 15, 2013, Appellant entered into a negotiated guilty plea 

to third degree murder.1 In accordance with the plea negotiations, Appellant 

was sentenced to 121⁄2 to 30 years’ incarceration, and his remaining charges 

were nolle prossed. N.T., 1/15/13, at 18.

Appellant did not file post-sentence motions or a direct appeal. On 

February 7, 2014, he filed a timely pro se PCRA petition that made no 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2502(c).
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mention of ineffective assistance of Appellant’s trial counsel. On 

February 13, 2014, Appellant mailed a pro se Amended PCRA Petition, 

alleging for the first time that Appellant’s trial counsel had been ineffective. 

See Amended Petition at 2-3. Appellant’s Amended Petition was docketed 

on February 21, 2014. Appellant never requested permission from the PCRA 

court to supplement or amend his original request for post-conviction relief 

to include this ineffectiveness claim. 

The PCRA court appointed counsel for Appellant’s PCRA proceeding. 

PCRA counsel did not petition to supplement or amend Appellant’s original 

PCRA petition. Ultimately, PCRA counsel filed a Turner/Finley2letter and 

motion to withdraw as counsel, averring that Appellant’s PCRA petition had 

no merit and that there were no additional issues that could be raised in an 

amended PCRA petition.

On December 15, 2014, the PCRA court issued a notice of its intent to 

dismiss Appellant’s PCRA petition pursuant to Rule 907 of the Pennsylvania 

Rules of Criminal Procedure. Appellant did not file a response to that notice. 

On January 14, 2015, the PCRA court granted counsel’s motion to withdraw, 

and, on January 21, 2015, the PCRA court dismissed Appellant’s PCRA 

petition. Appellant filed a timely appeal to this Court on or about 

January 25, 2015, but the Court of Common Pleas’ Clerk of Courts did not 

____________________________________________

2 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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record the notice of appeal on the docket. Order, 1/15/16; PCRA Court 

Opinion, 5/13/16, at 2. Appellant subsequently filed a PCRA petition asking 

the court to reinstate his appellate rights nunc pro tunc, and the court 

granted that petition on January 15, 2016. This timely pro se appeal 

followed. Id.

On appeal, Appellant raises the following issues for our review:

I. [(A)] WHETHER PCRA COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE FOR FAILING TO INVESTIGATE AND EXPLORE 

THAT THE COMMONWEALTH VIOLATED BRADY V. MARYLAND, 

373 U.S. 83 (1963) BY FAILING TO DISCLOSE INDEPENDENT OR 

CONSTRUCTIVE KNOWLEDGE OF THE INVESTIGATIONS 

SURROUNDING DETECTIVES DOVE AND PITTS, AND [(B)] WAS 

TRIAL COUNSEL INEFFECTIVE FOR FAILING TO INVESTIGATE 

AND FORMALLY REQUEST ADDITIONAL D[I]SCOVERY WHERE 

SUCH WOULD HAVE CHANGED THE OUTCOME OF THIS CASE?

II. WHETHER PCRA COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE BY FAILING TO RAISE [A CLAIM THAT] 

APPELLANT’S GUILTY PLEA WAS UNLAWFULLY INDUCED WHERE 

THE CIRCUMSTANCES OF THIS CASE RENDERED THE PLEA NOT 

INTELLIGENTLY OR VOLUNTARILY ENTERED?

Appellant’s Brief at 4. We note that the issues raised in what we have 

identified above as I(A) and II both raise for the first time a claim that 

Appellant’s PCRA counsel was ineffective.

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 

2014) (en banc)). This Court is limited to determining whether the evidence 
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of record supports the conclusions of the PCRA court and whether the ruling 

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. 

Super. 2012). We defer to the PCRA court’s findings that are supported in 

the record and will not disturb them unless they have no support in the 

certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 

2014).

Before reviewing the merits of Appellant’s issues, we must determine 

whether they are properly before us. We begin with Issues I(A) and II, each 

of which claims ineffectiveness of Appellant’s PCRA counsel. Although 

Appellant did not raise an issue regarding his PCRA counsel in his PCRA 

petition, he had an opportunity to bring that issue before the PCRA court in 

response to the PCRA court’s notice of an intent to dismiss his petition under 

Rule 907. The purpose of a Rule 907 pre-dismissal notice is “to allow a 

petitioner an opportunity to seek leave to amend his petition and correct any 

material defects, see Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 

517, 526 (2001), the ultimate goal being to permit merits review by the 

PCRA court of potentially arguable claims.” Rykard, 55 A.3d at 1189. The 

response to the Rule 907 notice “is an opportunity for a petitioner and/or his 

counsel to object to the dismissal and alert the PCRA court of a perceived 

error, permitting the court to ‘discern the potential for amendment.’” Id.

(quoting Williams, 782 A.2d at 527). The response is also the opportunity 

for the petitioner to object to counsel’s effectiveness at the PCRA level. 
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Rykard, 55 A.3d at 1189. Accordingly, the Supreme Court has held in 

circumstances similar to those in this case that a failure to raise 

ineffectiveness of PCRA counsel in response to a Rule 907 notice waives that 

claim. Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009). 

Our review of the record confirms that Appellant failed to respond to 

the PCRA court’s Rule 907 notice at any time before the court dismissed his 

petition. Therefore, all of his issues concerning PCRA counsel’s asserted 

ineffectiveness are waived. Appellant may not raise those issues for the first 

time on appeal. See Commonwealth v. Smith, 121 A.3d 1049, 1055-56 

(Pa. Super. 2015), appeal denied, 136 A.3d 981 (Pa. 2016). Accordingly, 

Issues I(A) and II in the “Statement of Questions Involved” in Appellant’s 

Brief are waived.

As for Appellant’s remaining claim of ineffective assistance of trial 

counsel – I(B) in Appellant’s “Statement of Questions Involved” — we find 

that the issue also has not been preserved for our review. That issue of trial 

counsel’s ineffectiveness was not raised in Appellant’s original PCRA petition, 

and neither he nor his PCRA counsel sought leave to add it by an 

amendment to that petition. Appellant did file an unauthorized “Amended 

Petition” that asserted the ineffectiveness claim, but the Supreme Court of 

Pennsylvania has “condemned the unauthorized filing of supplements and 

amendments to PCRA petitions, and held that claims raised in such 

supplements are subject to waiver.” Commonwealth v. Reid, 99 A.3d 
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470, 484 (Pa. 2014) (finding claims raised in unauthorized supplemental 

petitions waived despite trial court entertaining and ruling on claims); see 

also Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013) (holding that 

claim alleging trial counsel’s ineffectiveness is waived because it wasn't 

included in PCRA Petition and PCRA court did not give permission to amend 

PCRA petition). Because Appellant did not include in his initial PCRA petition 

a claim of ineffective assistance of trial counsel, and because Appellant failed 

properly to seek the PCRA court’s permission to amend his PCRA petition to 

add that claim, Appellant waived appellate review of this remaining 

ineffectiveness issue. Id.

As Appellant has failed to preserve any issues for our review, we affirm 

the order dismissing Appellant’s PCRA petition.

Order affirmed.

Judge Olson joins the memorandum. 

Justice Fitzgerald concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016