J-S36039-23 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

UTIFE BLACKWELL 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

No. 1333 EDA 2022 

Appeal from the PCRA Order Entered April 29, 2022 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0009807-2016 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

UTIFE H. BLACKWELL 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

No. 1334 EDA 2022 

Appeal from the PCRA Order Entered April 29, 2022 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0009149-2016 

BEFORE: BOWES, J., NICHOLS, J., and KING, J. 

MEMORANDUM BY KING, J.: FILED JUNE 17, 2024 

 Appellant, Utife H. Blackwell, appeals pro se from the order entered in 

the Philadelphia County Court of Common Pleas, which denied his petition 

under the Post-Conviction Relief Act (“PCRA”).1 We affirm. 

____________________________________________ 

1

 42 Pa.C.S.A. §§ 9541-9546. 
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 A prior panel of this Court summarized some of the relevant facts and 

procedural history of this case as follows: 

In 2016, Appellant and several accomplices committed 

three separate home invasions; during one of those 

incidents, Appellant’s co-defendant beat and stabbed 

Joseph Daly to death. (N.T. Plea Hearing, 6/11/18, at 57-

61). On June 11, 2018, Appellant entered an open guilty 

plea to multiple charges on three dockets. (See id. at 62). 

Specifically, at CP-51-CR-0009807-2016 (“docket 9807-

2016”), Appellant pled guilty to one count each of thirddegree murder, conspiracy to commit murder, burglary, and 

robbery; at CP-51-CR-0009149-2016 (“docket 9149-

2016”), Appellant pled guilty to burglary, conspiracy to 

commit burglary, robbery, and terroristic threats; and at 

CP-51-CR-0001074-2017 (“docket 1074-2017”), Appellant 

pled guilty to burglary and theft. 

On September 7, 2018, the court imposed an aggregate 

sentence of 50 to 100 years of incarceration, across all 

dockets. ... On September 17, 2018, Appellant timely filed 

a post-sentence motion. On January 11, 2019, the court 

denied Appellant’s motion. On February 12, 2019, Appellant 

timely filed a notice of appeal, but this Court dismissed his 

appeal due to his failure to file a docketing statement. On 

July 26, 2019, Appellant timely filed a pro se [PCRA 

petition.] The court appointed counsel for Appellant and on 

February 9, 2020, Appellant filed an amended PCRA 

petition[, requesting the court to reinstate his direct appeal 

rights]. On September 18, 2020, the court granted 

Appellant PCRA relief and reinstated his direct appeal rights 

nunc pro tunc. 

Appellant timely filed notices of appeal nunc pro tunc related 

to only dockets 9149-2016 and 9807-2016. Appellant did 

not appeal the sentence at docket 1074-2017. 

Commonwealth v. Blackwell, Nos. 1821 & 1822 EDA 2020, unpublished 

memorandum at 2-3 (Pa.Super. filed May 5, 2021) (internal footnotes 

omitted), appeal denied, ___ Pa. ___, 263 A.3d 549 (2021). 
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 On May 5, 2021, this Court affirmed Appellant’s judgment of sentence, 

and our Supreme Court denied allowance of appeal on September 21, 2021. 

See id. On December 27, 2021, Appellant filed a timely pro se PCRA petition 

at dockets 9149-2016 and 9807-2016, alleging that plea counsel provided 

ineffective assistance by failing to object to prejudicial remarks by the 

prosecutor and failing to address the issue of Appellant’s competency prior to 

the plea hearing. The court appointed counsel, who subsequently filed a 

motion to withdraw as counsel and Turner/Finley2 “no merit” letter. On 

March 11, 2022, the court issued notice of intent to dismiss the petition 

without a hearing pursuant to Pa.R.Crim.P. 907. Appellant file a pro se

response to the Rule 907 notice on April 11, 2022, claiming that counsel failed 

to investigate a claim of “prosecutorial corruption.”3 Nevertheless, Appellant 

did not seek permission to amend his PCRA petition to add the vaguely 

described claim of prosecutorial corruption. 

On April 29, 2022, the court dismissed Appellant’s PCRA petition and 

permitted PCRA counsel to withdraw. On May 10, 2022, Appellant timely filed 

pro se notices of appeal at dockets 9149-2016 and 9807-2016. On May 12, 

2022, the court ordered Appellant to file a concise statement of errors 

____________________________________________ 

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); 

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

3

 Appellant did not specify whether this claim of ineffective assistance of 

counsel referred to plea counsel, direct appeal counsel, or PCRA counsel. 
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complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant 

complied on July 7, 2022. Appellant filed a motion to consolidate his appeals 

on June 29, 2022, which this Court granted on November 15, 2022. 

 Appellant raises the following issues for our review: 

Did PCRA counsel provide ineffective assistance of counsel 

in violation of the Fifth, Sixth, and/or Fourteenth 

Amendments to the United States Constitution; Article I, 

Section 9 of the Pennsylvania Constitution; and/or Rule 

904(A) of the Pennsylvania Rules of Criminal Procedure 

when he failed to raise the ineffectiveness of [plea] and 

direct appeal counsel...? 

Did direct appeal counsel provide ineffective assistance of 

counsel in violation of the Fifth, Sixth, and/or Fourteenth 

Amendments to the United States Constitution; Article I, 

Section 9 of the Pennsylvania Constitution; and/or Rule 

904(A) of the Pennsylvania Rules of Criminal Procedure...? 

Did [plea] counsel provide ineffective assistance of counsel 

in violation of the Fifth, Sixth, and/or Fourteenth 

Amendments to the United States Constitution; Article I, 

Section 9 of the Pennsylvania Constitution; and/or Rule 

904(A) of the Pennsylvania Rules of Criminal Procedure 

when he failed to: 

(1) challenge Appellant’s competency and intellectual 

understanding as it pertained to his ability to enter 

a knowing, voluntary, and intelligent plea; 

(2) challenge Appellant’s competency and intellectual 

understanding as it pertained to his ability to assist 

[plea] counsel during the course of his 

representation; 

(3) request a hearing and determination of criminal 

responsibility pursuant to 50 P.S. §7404(a)...; 

(4) request a bifurcation of trial pursuant to 50 P.S. 

§7404(c).... 
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Did the PCRA court err when it dismissed Appellant’s pro 

se motion for [PCRA] relief as frivolous, without the 

benefit of an evidentiary hearing ... and without 

referencing or referring to Appellant’s Rule 907 response? 

(Appellant’s Brief at 4-7) (reordered for purposes of disposition). 

“Our standard of review of [an] order granting or denying relief under 

the PCRA calls upon us to determine whether the determination of the PCRA 

court is supported by the evidence of record and is free of legal error.” 

Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting 

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The 

PCRA court’s factual findings are binding if the record supports them, and we 

review the court’s legal conclusions de novo.” Commonwealth v. Prater, 

256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d 

386 (2021). 

 In his first three issues combined, Appellant asserts a layered ineffective 

assistance of counsel claim. Appellant contends that plea counsel was 

ineffective for failing to challenge Appellant’s competency to enter a guilty 

plea. Appellant asserts that his responses during the plea colloquy 

demonstrated that he had and continues to have a minimal understanding of 

the English language. Appellant further claims that he has a history of 

psychosis, intellectual disability, and other mental health concerns. Appellant 

also complains plea counsel failed to argue that Appellant was not criminally 

responsible for the commission of the crimes at a competency hearing or 
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bifurcated trial as permitted by 50 P.S. § 7404.4 Appellant further argues that 

direct appeal counsel and PCRA counsel were ineffective for failing raise these 

claims of plea counsel’s ineffectiveness. Appellant concludes that the court 

erred in dismissing his ineffective assistance of counsel claims, and this Court 

should vacate and remand for further proceedings. We disagree. 

“Counsel is presumed to have rendered effective assistance.” 

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4

 Section 7404, which is part of the Mental Health Procedures Act, states in 

relevant part: 

7404. Hearing and determination of criminal 

responsibility; bifurcated trial 

(a) Criminal Responsibility Determination by Court.—

At a hearing under section 403 of this act[, regarding 

competency to proceed with court proceedings,] the court 

may, in its discretion, also hear evidence on whether the 

person was criminally responsible for the commission of the 

crime charged. It shall do so in accordance with the rules 

governing the consideration and determination of the same 

issue at criminal trial. If the person is found to have lacked 

criminal responsibility, an acquittal shall be entered. If the 

person is not so acquitted, he may raise the defense at such 

time as he may be tried. 

* * * 

(c) Bifurcation of Issues or Trial.─Upon trial, the court, 

in the interest of justice, may direct that the issue of criminal 

responsibility be heard and determined separately from the 

other issues in the case and, in a trial by jury, that the issue 

of criminal responsibility be submitted to a separate jury. 

Upon a request for bifurcation, the court shall consider the 

substantiality of the defense of lack of responsibility and its 

effect upon other defenses, and the probability of a fair trial. 

50 P.S. § 7404 (a), (c) (footnote omitted). 
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Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal 

denied, 663 Pa. 418, 242 A.3d 908 (2020). 

[T]o establish a claim of ineffective assistance of counsel, a 

defendant must show, by a preponderance of the evidence, 

ineffective assistance of counsel which, in the circumstances 

of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence 

could have taken place. The burden is on the defendant to 

prove all three of the following prongs: (1) the underlying 

claim is of arguable merit; (2) that counsel had no 

reasonable strategic basis for his or her action or inaction; 

and (3) but for the errors and omissions of counsel, there is 

a reasonable probability that the outcome of the 

proceedings would have been different. 

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019), 

appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and 

quotation marks omitted). The failure to satisfy any prong of the test for 

ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612 

Pa. 333, 30 A.3d 1111 (2011). 

 “The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has forgone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth 

v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175, 

179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524, 

645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing 

to pursue a baseless or meritless claim.” Commonwealth v. Poplawski, 

852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth v. Geathers, 

847 A.2d 730, 733 (Pa.Super. 2004)). 
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 “Once this threshold is met we apply the ‘reasonable basis’ test to 

determine whether counsel’s chosen course was designed to effectuate his 

client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012 

(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95). 

The test for deciding whether counsel had a reasonable 

basis for his action or inaction is whether no competent 

counsel would have chosen that action or inaction, or, the 

alternative, not chosen, offered a significantly greater 

potential chance of success. Counsel’s decisions will be 

considered reasonable if they effectuated his client’s 

interests. We do not employ a hindsight analysis in 

comparing trial counsel’s actions with other efforts he may 

have taken. 

Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting 

Sandusky, supra at 1043-44). 

 “To demonstrate prejudice, the petitioner must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceedings would have been different. [A] reasonable probability is a 

probability that is sufficient to undermine confidence in the outcome of the 

proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312 

(2014) (internal citations and quotation marks omitted). “[A] criminal 

defendant alleging prejudice must show that counsel’s errors were so serious 

as to deprive the defendant of a fair trial, a trial whose result is reliable.” 

Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3, 

33, 807 A.2d 872, 883 (2002)). 

“Allegations of ineffectiveness in connection with the entry of a guilty 
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plea will serve as a basis for relief only if the ineffectiveness caused the 

defendant to enter an involuntary or unknowing plea.” Commonwealth v. 

Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (internal citation omitted). 

Pennsylvania law does not require the defendant to “be pleased with the 

outcome of his decision to enter a plea of guilty[; a]ll that is required is that 

his decision to plead guilty be knowingly, voluntarily and intelligently made.” 

Id. at 528-29. A guilty plea will be deemed valid if the totality of the 

circumstances surrounding the plea shows that the defendant had a full 

understanding of the nature and consequences of his plea such that he 

knowingly and intelligently entered the plea of his own accord. 

Commonwealth v. Fluharty, 632 A.2d 312 (Pa.Super. 1993). “In order to 

make a knowing and intelligent waiver, the individual must be aware of both 

the nature of the right and the risks and consequences of forfeiting it.” 

Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa.Super. 2004) (quoting 

Commonwealth v. Payson, 723 A.2d 695, 700 (Pa.Super. 1999)). 

Pennsylvania law presumes the defendant is aware of what he is doing 

when he enters a guilty plea, and the defendant bears the burden to prove 

otherwise. Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 

2003). “A person who elects to plead guilty is bound by the statements he 

makes in open court while under oath and he may not later assert grounds for 

withdrawing the plea which contradict the statements he made at his plea 

colloquy.” Id. Further, to establish prejudice based on counsel’s 
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ineffectiveness in connection with a guilty plea, the petitioner must show there 

is a reasonable probability that, but for counsel’s errors, the petitioner would 

not have pled guilty and would have insisted on going to trial. 

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013). 

Additionally, regarding “layered” claims of ineffective assistance: 

[A petitioner] “must plead in his PCRA petition that his prior 

counsel, whose alleged ineffectiveness is at issue, was 

ineffective for failing to raise the claim that the counsel who 

preceded him was ineffective in taking or omitting some 

action.” The petitioner must further “present argument, in 

briefs or other court memoranda, on the three prongs of the 

[the ineffectiveness] test as to each relevant layer of 

representation.” 

Commonwealth v. Montalvo, 651 Pa. 359, 379-80, 205 A.3d 274, 286 

(2019) (quoting Commonwealth v. McGill, 574 Pa. 574, 589, 832 A.2d 

1014, 1023 (2003)). 

 Instantly, Appellant’s competency to participate in court proceedings 

was thoroughly evaluated prior to his plea hearing. The record discloses that 

on April 24, 2018, the court ordered a mental health evaluation. Appellant 

was deemed incompetent to participate in court proceedings on April 27, 

2018. Thereafter, Appellant was committed to the prison mental health 

services wing for a period of thirty days. On May 10, 2018, plea counsel filed 

a notice of diminished capacity or mental infirmity defense. The court then 

ordered another mental health evaluation. On May 30, 2018, Robert Stanton, 

M.D., evaluated Appellant and deemed him competent to take part in legal 

proceedings. 
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Ultimately, Appellant elected to plead guilty. Prior to accepting the plea, 

the court inquired into Appellant’s competency at the plea hearing held on 

June 11, 2018. Appellant stated that he understood the English language.5 

Appellant further stated that he was receiving treatment while incarcerated, 

particularly talk therapy and medication, to address his mental health 

diagnosis. Appellant affirmed that he was taking his medication regularly and 

the medication was helping him with his mental health struggles. Based on 

Appellant’s responses to the court’s questions, the court’s observations of 

Appellant’s demeanor, and the report by Dr. Stanton, the court determined 

that Appellant was competent to proceed with the plea hearing. The record 

simply belies Appellant’s claim that plea counsel failed to raise the issue of 

Appellant’s competency prior to Appellant’s guilty plea. Rather, plea counsel 

raised the issue of competency, Appellant was evaluated, and ultimately found 

to be competent. Thus, Appellant’s claim of plea counsel’s ineffectiveness on 

this ground fails. See Smith, supra. See also Commonwealth v. Tedford, 

598 Pa. 639, 707, 960 A.2d 1, 41 (2008) (holding that ineffective assistance 

of counsel claim lacks arguable merit where defendant faults counsel for failing 

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5

 Appellant claims on appeal that he has minimal understanding of the English 

language. At the plea hearing, Appellant initially told the court that he only 

somewhat understands English when it is spoken to him. Upon further 

questioning, Appellant confirmed that English is his first language, he 

understands spoken English, and can read and write English. Additionally, 

Appellant responded appropriately to the court’s questions throughout the 

hearing. As such, the record does not support Appellant’s assertion that he 

has a minimal understanding of English. 
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to do something that counsel did, in fact, do). Because Appellant failed to 

establish that plea counsel was ineffective on this basis, his layered ineffective 

assistance claims regarding direct appeal counsel and PCRA counsel also fail 

on this basis. See Montalvo, supra. 

Regarding Appellant’s claim that plea counsel was ineffective for failing 

to raise the issue of criminal responsibility at a competency hearing or a 

bifurcated trial as permitted by 50 P.S. § 7404, we emphasize that Appellant 

provides no evidence to support a claim that he was not criminally responsible 

for the crimes. The mere fact that Appellant was deemed incompetent to 

participate in court proceedings for a period during the pendency of his case 

does not necessarily mean that Appellant was not criminally responsible for 

his criminal actions. See Commonwealth v. Murphy, 493 Pa. 35, 40, 425 

A.2d 352, 354 (1981) (holding trial court did not err in denying appellant’s 

request for bifurcated trial to determine criminal responsibility pursuant to 

Section 7404 where only evidence on record to support appellant’s request 

related to his competency to stand trial; competency determination relates 

only to accused’s mental state at time proposed for trial and is not necessarily 

relevant as to accused’s mental state at time offenses were committed). 

Significantly, nothing in the record suggests that Appellant would have been 

deemed legally insane had counsel raised the issue of criminal responsibility 
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at the time the court evaluated Appellant’s competency to stand trial.6 As 

such, Appellant has failed to establish arguable merit to his claim. See, e.g., 

Commonwealth v. Avery, 277 A.3d 1132 (Pa.Super. filed Apr. 11, 2022) 

(unpublished memorandum)7 (holding that Section 7404 does not create 

additional mental health defenses than those otherwise available at law; 

appellant’s claim that counsel was ineffective for failing to raise issue of 

appellant’s criminal responsibility lacked arguable merit where appellant did 

not allege or provide support to establish that he met definition of legal 

insanity at time offenses were committed). Accordingly, Appellant’s layered 

ineffective assistance of counsel claim also fails. See Poplawski, supra. See 

also Montalvo, supra. 

We further observe that Appellant, who was deemed competent to 

participate in legal proceedings, specifically affirmed at the guilty plea hearing 

that he understood the elements of each charge to which he was pleading 

guilty, including the required mens rea for each charge. Appellant confirmed 

that he was choosing to plead guilty because he committed the offenses. 

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6

 In his brief, Appellant also cites to Dr. Anna Lawler’s testimony at his 

sentencing hearing. While Dr. Lawler’s testimony establishes that Appellant 

has a history of mental illness and low cognitive functioning, Dr. Lawler does 

not draw conclusions about Appellant’s specific state of mind at the time of 

the offenses nor does she opine that Appellant was legally insane such that 

he was not criminally responsible for his conduct. 

7 See Pa.R.A.P. 126(b) (stating non-precedential decisions from this Court 

filed after May 1, 2019 may be cited for their persuasive value). 
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Appellant indicated that the factual basis for each offense was accurate. 

Appellant stated that he understood the rights that he was giving up by 

pleading guilty, including the right to a trial and any defenses that he could 

raise at trial. Appellant confirmed that he had the opportunity to fully discuss 

his case with plea counsel and was satisfied with plea counsel’s representation. 

He further affirmed that he was entering the plea of his own volition and was 

not being coerced or pressured by anyone. Appellant is bound by his 

statements and cannot now claim that he lacked criminal responsibility for his 

conduct or that counsel was ineffective for failing to pursue a defense that 

Appellant willingly agreed to give up by pleading guilty. See Moser, supra; 

Pollard, supra. 

 In his fourth issue, Appellant asserts that the PCRA court erred by 

dismissing his PCRA petition without addressing the additional issue he raised 

in his response to Rule 907 notice regarding prosecutorial corruption. 

Appellant concedes that he failed to seek permission to amend his PCRA 

petition but argues that “such failure should be overlooked based on 

Appellant’s lack of understanding and, more importantly, based on his 

intellectual disability and mental health history.” (Appellant’s Brief at 23). 

Appellant further contends that PCRA counsel was ineffective for failing to 

address the claim of prosecutorial corruption that Appellant identified in the 

Rule 907 response. Specifically, Appellant contends that PCRA counsel should 

have raised issues regarding “repeated violations of Appellant’s right to 
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attorney-client privilege.” (Appellant’s Reply Brief at 5). Appellant concludes 

that the court erred in denying Appellant PCRA relief without conducting an 

evidentiary hearing or addressing his claim that PCRA counsel was ineffective 

on this ground, and this Court should vacate the order dismissing his PCRA 

petition. We disagree. 

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

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

material defects, the ultimate goal being to permit merits review by the PCRA 

court of potentially arguable claims.” Commonwealth v. Rykard, 55 A.3d 

1177, 1189 (Pa.Super. 2012), appeal denied, 619 Pa. 714, 64 A.3d 631 

(2013). Nevertheless, “[t]he response is not itself a petition and the law still 

requires leave of court to submit an amended petition.” Id. Any claim not 

raised in the PCRA petition, or a court authorized amended PCRA petition is 

waived. See Commonwealth v. Mason, 634 Pa. 359, 402, 130 A.3d 601, 

627 (2015); see also Pa.R.A.P. Rule 302(a) (stating “issues not raised in the 

[PCRA] court are waived and cannot be raised for the first time on appeal”). 

Thus, the PCRA court is under no obligation to address new issues raised in a 

Rule 907 response where the petitioner does not seek leave to amend his 

petition. See Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa.Super. 

2014).

Nevertheless, “where the new issue is one concerning PCRA counsel’s 

representation, a petitioner can preserve the issue by including that claim in 
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his Rule 907 response or raising the issue while the PCRA court retains 

jurisdiction.” Id. Additionally, “a PCRA petitioner may, after a PCRA court 

denies relief, and after obtaining new counsel or acting pro se, raise claims of 

PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on 

appeal.” Commonwealth v. Bradley, ___ Pa. ___, ___, 261 A.3d 381, 401 

(2021) (internal footnote omitted) (overruling prior precedent requiring PCRA 

petitioner to raise PCRA counsel’s ineffectiveness in response to Rule 907 

notice or face waiver on appeal). 

 Instantly, Appellant concedes that he did not seek leave of court to 

amend his PCRA petition to include his new claim of ineffectiveness in 

connection with alleged prosecutorial corruption. Appellant cites no authority 

for his assertion that this Court can overlook this defect due to Appellant’s 

“lack of understanding.” To the contrary, the law makes clear that any new 

issues raised in a Rule 907 response where the petitioner fails to request leave 

to amend his PCRA petition are waived. See Mason, supra. To the extent 

that Appellant is now claiming that he raised a claim of PCRA counsel’s 

ineffective assistance in his Rule 907 response, we note that Appellant did not 

specify in his filing whether he was referring to plea counsel, direct appeal 

counsel, or PCRA counsel in his assertion that “counsel failed to investigate 

my newly discovered claim.” (Response to Rule 907 Dismissal Notice, filed 

4/11/22, at 4) (unpaginated). Thus, we cannot say that the PCRA court erred 

by failing to address Appellant’s claim as it was presented in the response to 
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Rule 907 notice.8 See id.; Rigg, supra. 

 Nevertheless, as Appellant is permitted to raise claims of PCRA counsel’s 

ineffective assistance for the first time on appeal, we will address this claim. 

See Bradley, supra. On appeal, Appellant appears to be raising a layered 

ineffective assistance of counsel claim regarding prosecutorial corruption and 

misconduct. However, Appellant has failed to explain in any meaningful way 

what instances of alleged prosecutorial corruption he is claiming counsel failed 

to challenge. In his Rule 907 response, Appellant made vague statements 

about bribery without any basis of support for his allegations. On appeal, 

Appellant provides no additional support for these bribery allegations, and he 

merely asserts that the prosecutor violated Appellant’s right to attorney-client 

privilege. In support of the alleged violation of attorney-client privilege, 

Appellant cites to a portion of plea counsel’s argument at sentencing about 

the District Attorney’s office listening to Appellant’s phone calls. (See N.T. 

Sentencing, 9/7/18, at 57). This vague, singular statement by plea counsel 

does not demonstrate that the Commonwealth somehow violated attorney-

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8

 Appellant further asserts that the court erred in denying his PCRA petition 

without a hearing. However, Appellant failed to support this argument in his 

appellate brief in any meaningful way. Specifically, Appellant does not explain 

what evidence he would have put forth at an evidentiary hearing or what 

genuine issues of material fact existed such that an evidentiary hearing was 

necessary. As such, Appellant has waived this argument. See Pa.R.A.P. 

2119(a); Commonwealth v. Hakala, 900 A.2d 404 (Pa.Super. 2006), appeal 

denied, 589 Pa. 737, 909 A.2d 1288 (2006) (stating failure to develop 

argument on appeal results in waiver). 
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client privilege.9 Thus, Appellant has wholly failed to establish that there is 

any arguable merit to his underlying claim of prosecutorial corruption or 

misconduct. See Smith, supra. As counsel cannot be ineffective for failing 

to raise a non-meritorious issue, Appellant’s layered ineffective assistance of 

counsel claim fails. See Poplawski, supra; Montalvo, supra. Accordingly, 

we affirm. 

 Order affirmed. 

Date: 6/17/2024 

 

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9

 Although plea counsel did not specify which phone calls he was referring to, 

the context of plea counsel’s argument was about how Appellant had 

expressed remorse for his crimes and that the District Attorney’s office could 

verify that statement by listening to Appellant’s prison phone calls to hear 

Appellant’s expressions of remorse. However, nothing in the sentencing 

transcript or plea counsel’s argument indicates that the District Attorney’s 

office improperly listened to any phone call between Appellant and his 

attorney to implicate any violation of attorney-client privilege.