J

- A05045

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MANUEL M. ROSE

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1982 EDA 2022

Appeal from the PCRA Order Entered July 21, 2022

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

No(s): CP

- 51

- CR

- 0008926

- 2013

BEFORE: DUBOW, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED MAY 20, 2024

Manuel M. Rose (“Rose”) appeals pro se from the order d ismiss ing his

first petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We

affirm

.

This Court previously summarized the relevant factual and procedural

history as follows:

At approximately 4:00 a.m. on May 21, 2013, Ralph

Sheridan [(“Sheridan”)] was asleep on the couch of the first floor

of Georgette Walton ’ s [(“Walton”)] home at 3132 Tasker Street,

Philadelphia, where he was renting a room. While Sheridan was

sleeping, Rose forced his way into the home through the window

by the couch. Once inside the house, Rose approached Sheridan

and sat on top of him. As Sheridan awoke, he became aware that

Rose was pushing the covers over his face and had placed a silver

firearm against his head behind his left ear. Rose demanded that

Sheridan give him all his “ F

- in money. ” N.T. Trial, 4/8/14, at 20.

Sheridan pulled the covers awa y from his face and immediately

recognized Rose, whom he knew as “ Moe ” since Sheridan was

_________________ __________ ______ ____ _______

1 See 42 Pa. C.S.A. §§ 9541

- 9546.J

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- 2

-

friends with Rose ’ s brother, Mack. An altercation between

Sheridan and Rose followed, in which Sheridan grabbed for the

gun and threw Rose off of him. Rose attempted to hit Sheridan

with the gun, but Sheridan pushed Rose and ran out of the house.

During the fight, Rose told Sheridan he would kill him if he called

the police.

Sheridan ran to his next door neighbor ’ s house and was

allowed inside. His neighbor, Lawrence Smith [(“Smith”)]

, listened while Sheridan told him what had happened. While they

were talking, Sheridan looked out Smith ’ s window and saw Rose

running up the street towards an alley. Smith also looked out his

window and saw Walton ’ s Cadillac being driven away by a man

with a bald head. Smith told the police later that evening that he

was 70% sure that the man he saw in the car was Rose.

Smith called Walton on the phone; she had remained asleep

upstairs and did not know her house had been burglarized. She

walked to her stairs and saw that her windows and front door were

open. Immediately thereafter, at approximately 4:25 a.m.,

Walton sat on the steps and called 911 because she was too afraid

to go downstairs. While she was on the 911 call, Walton looked

outside through the open front door and confirmed that her 2006

Cadillac was missing. It was later learned that Sheridan ’ s keys

for the Cadillac were also missing from the house. When he fled

from the house, Sheridan had left his set of the keys on the table

near the couch where Rose had threatened him.

After she called the police, Walton spoke with Sheridan

about what had happened. According to Walton, Sheridan told

her that Rose broke in through the window, opened the door to

let another individual, named Frizz, into the house, attacked Rose

and then fled the scene. Walton then got dressed, walked

downstairs to make sure nobody was in the house, and shut the

door and the window where Rose had entered the house. When

Walton closed the window, she noticed that the screen to the

window was up and that the blinds to the windows had become

disheveled.

After arriving on scene shortly thereafter, a police officer

transported Walton and Sheridan to the police station where they

were interviewed. Walton was interviewed by Detective Darnell

Hobbs and Sheridan was interviewed by Detective John Frei.

. . . Detective Frei interviewed Sheridan for approximately an hour

. .J

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. [and] noticed that he was visibly shaken and nervous throughout

the interview. Detective Frei showed [a] photo array prepared by

Detective Hobbs to Sheridan; [and] he unequivocally identified

Rose as the burglar.

. . .

The next day, Walton received a phone call

. . . notifying her

that her car was

. . . abandoned and parked on the street, with

the keys inside.

. . . Detective Hobbs lifted three fingerprints from

the outside of the car. Fingerprint examiner Andrea Williams later

concluded to a reasonable degree of scientific certainty that the

fingerprint lifted from the passenger side front door of the car

matched Rose ’ s fingerprints. Sometime thereafter, Rose turned

himself into the police and was arrested.

Prior to trial, Rose ’ s preliminary hearing was scheduled on

three separate occasions. Sheridan failed to appear at the first

scheduled preliminary hearing because he had moved and failed

to receive notice of the hearing. For the second preliminary

hearing, however, Sheridan was notified but failed to appear

because he was scared he would be harmed. Sheridan later

testified at the third preliminary hearing. After the third

preliminary hearing, Rose made a number of prison calls

revealing, among other thin gs, that he had worked with others to

prevent Sheridan from testifying at the preliminary hearing and

trial. Rose also admitted to his knowledge of and involvement in

the burglary

. At trial, the jury was provided with an agreed

- upon

transcript of the prison phone calls

. . ..

Also at trial, the prosecutor broke the sequestration order

that was in place for the witnesses of the incident. Specifically,

Assistant District Attorney ( [“] ADA [”] ) Kevin Harden informed

Sheridan that Walton had testified that two people had been

present during the burglary , when Sheridan had always indicated

to police that Rose was acting alone. Walton ’ s testimony occurred

on a Friday; ADA Harden immediately initiated an investigation of

the second person, whom Walton knew as “ Frizz, ” over the

weekend. Through this investigation, Frizz was identified as

[“] Dawu, [”] a person mentioned in some of the prison phone calls

Rose had made.

ADA Harden disclosed his violation of the sequestration

order the following Monday. Rose moved for a mistrial, which the

court denied. Instead, the court permitted Rose ’ s counsel to have

an overnight period of investigation regarding the revelation thatJ

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Frizz was present during the burglary

. Defense counsel

interviewed Sheridan during the investigation period, and

Sheridan indicated that he had not wanted to reveal Frizz ’ s

identity because he was afraid for his life and did not want to

testify against him. When trial resumed, Sheridan changed his

testimony from his previous accounts of the burglary to indicate

that two people, Rose and Frizz, had actually been present. In

Sheridan ’ s version of events, Frizz had not entered Walton ’ s

residence, but had be en outside and had recovered the gun from

Rose when he fled the scene.

On April 16, 2014, the jury convicted Rose of burglary and

simple assault

. The court sentenced Rose on August 14, 2014, to

25 to 50 years ’ imprisonment because his burglary conviction had

a 25

- year mandatory minimum as a “ third strike ” conviction for a

crime of violence. See 42 Pa.C.S. [A.] § 9714. [This Court

affirmed the judgment of sentence and our Supreme Court denied

allowance of appeal.]

Commonwealth v. Rose

, 172 A.3d 1121 , 1124

- 26 (Pa. Super. 2017), appeal

denied

, 186 A.3d 369 (Pa. 2018). Rose petitioned our Supreme Court for

reconsideration, which was denied on August 1, 2018. See Order, 8/1/18, at

1

.

On September 16, 2019, Rose filed a timely pro se PCRA petition

. 2 The

PCRA court appointed counsel who filed an amended petition raising ten

_________________ __________ ______ ____ _______

2 Aft er our Supreme Court denied reconsideration, Rose had ninety days in

which to file a petition for certiorari in the Uni ted State s Supreme Court. See

U.S. Sup. Ct. R . 1 3

. As Rose opted not to do so, his judgment of sentence

became final on October 30, 2018

. See 42 Pa.C.S.A. § 9545(b)(3) (providing

that a judgment of sentence becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of Pennsylvania and the

United State Supreme Court, or upon the expiration of time for seeking such

review). Rose had one year from that date , or until October 30, 201 9 , to file

a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b) (1) (providing that any

petition shall be filed within one year of the date the judgment becomes final ).

Thus, Rose’s petition, filed on September 16, 2019, was timely filed.J

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claims , including claim s that Rose’s sentence for burglary was illegal and that

trial and appellate counsel had been ineffective

. Rose thereafter filed a f irst

s upplemental m emorandum of l aw to the amended petition . Rose then filed

a s econd s upplemental m emorandum of l aw to the a mended petition wherein

he raise d an additional claim that the evidence was insufficient to support his

convictions

.

The Commonwealth filed a motion to dismiss the amended petition.

Rose filed a response in opposition to the Commonwealth’s motion to dismiss.

The PCRA court issued notice of its intent to dismiss the petition without a

hearing pursuant to Pa.R.Crim.P. 907. In response, Rose filed a f ourth

s upplemental r esponse in which he discussed four claims of infectiveness by

trial counsel , as well as a due process violation. Rose then filed a f ifth

s upplemental r esponse wherein he discussed several more due proce ss

violations , a Brady 3 violation, prosecutorial misconduct, and trial counsel’s

ineffectiveness. Rose filed a s ixth s upplemental r esponse in which he

discussed a hearsay violation and several instances of ineffectiveness by trial

counsel. Rose filed a s eventh s upplemental r esponse in which he noted that

the PCRA court’s Rule 907 notice did not address Rose’s various due process

issues. Rose filed a second s ixth s upplemental r esponse in which he expanded

_________________ __________ ______ ____ _______

3 See Brady v. Maryland , 373 U.S. 83 (1963).J

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on a prior discussion of trial counsel’s ineffectiveness. On July 12, 2022, the

PCRA court entered an order dismissing the petition.

Rose filed a counseled timely notice of appeal . The PCRA court directed

Rose to file a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b). In response, counsel f i led a concise statement. Rose

thereafter filed a pro se concise statement. 4

In this Court, Rose filed two petitions to proceed pro se . This Court

remand ed the matter to the PCRA court for a hearing pursuant to

Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998), to determine whether

Rose’s waiver of counsel for purposes of this appeal was knowing, intelligent,

and voluntary. A fter conducting a Grazier hearing, the PCRA court granted

Rose’s request to proceed pro se in this appeal. 5 At the Grazier hearing, Rose

requested leave to file an amended pro se concise statement , which request

was granted

. Rose thereafter filed a pro se amended concise statement in

which he raised eleven issues. The PCRA court authored a Rule 1925(a)

opinion in which it determined that several of the issues raised in Rose’s pro

se amended concise statement were waived either because they were not

_________________ __________ ______ ____ _______

4 As Rose was represented by counsel, this filing was a legal nullity

. See

Commonwealth v. Williams , 151 A.3d 621, 623 (Pa. Super. 2016) (holding

that, because hybrid representation is not permitted in th is Commonwealth,

our courts will not accept a pro se filing while an appellant is represented by

counsel; indeed, a pro se filing ha s no legal effect and, therefore, is a legal

nullit y ).

5 The PCRA court also granted counsel leave to withdraw from representation.J

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raised in the counseled amended petition, or they were raised for the first time

in the pro se amended concise statement

.

Rose raises the following issues for our review:

1. DID THE P.C.R.A. COURT ERR AND ABUSE ITS DISCRETION BY

FAILING TO REVIEW

. . . ROSE ’ S CLAIM THAT HIS 14TH

AMENDMENT RIGHT TO DUE PROCESS WAS VIOLATED WHERE

THE EVIDENCE WAS INSUFFICINT OF A MATTER OF LAW TO

SUSTAIN

. . . ROSE ’ S CONVICTION BEYOND A REASONABLE

DOUBT?

2. WAS TRIAL COUNSEL RENDERED INEFFECTIVE FOR NOT

OBJECTING TO THE HEARSAY TESTIMONY OF

. . . WALTON

WHERE [SHE] HAD NO PERSONAL KNOWLEDGE OF THE

ALLEGED INCIDENT THAT SHE TESTIFIEDT ABOUT?

3. DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION BY

ALLOWING THE COMMONWEALTH TO PLACE A SPECIAL

VERDICT QUESTION ON THE VERDICT FORM ASKING THE JURY

TO DETERMINE BEYOND A REASONABLE DOUBT THAT [ROSE]

POSSESSED A FIREARM THAT PLACED VICTIM IN FEAR OF

SERIOUS BODILY INJURY OR DEATH, WHICH DEFINED THE

OFFENSE OF BURGLARY TO AN AGGRAVATED CRIME WHERE

NO STATUTORY AUTHORIZATION EXISTED VIOLATING

ALLEYNE V. UNITED STATES

, [ 570 U.S. 99 ( 2013 )] ?

4. WAS

. . . P.C.R.A. COUNSEL

. . . INEFFECTIVE BY FILING

SUPPLEMENTAL RESPONSES OF NEW ARGU M ENTS RESPONSE

[ sic ] TO THE COURT’S RULE 907 NO TIC E OF DISMISSAL

WITHOUT FULFILLING THE REQUIREMENT OF PA.R.CRIM.P.

905(A) SEEKING TO LEAVE OF THE COURT TO AMEND

. . . ROSE ’ S P.C.R.A. PETITION WHERE

. . . ISSUES WERE DEEMED

WAIVED BY THE P.C.R.A. COURT?

Rose’s Brief at 4

- 6 (capitalization in original).

Our standard of review of an order dismissing a PCRA petition is well

settled:

We review an order dismissing a petition under the PCRA in

the light most favorable to the prevailing party at the PCRA level.J

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This review is limited to the findings of the PCRA court and the

evidence of record. We will not disturb a PCRA court ’ s ruling if it

is supported by evidence of record and is free of legal error. This

Court may affirm a PCRA court ’ s decision on any grounds if the

record supports it. Further, we grant great deference to the

factual findings of the PCRA court and will not disturb those

findings unless they have no support in the record. However, we

afford no such deference to its legal conclusions. Where the

petitioner raises questions of law, our standard of review is de

novo and our scope of review plenary.

Commonwealth v. Ford

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

omitted).

In his first issue, Rose challenges the PCRA court’s dismissal of his

petition without reviewing his challenge to the sufficiency of the evidence

supporting his conviction for simple assault. Initially, we note that Rose’s first

issue was not raised before the PCRA court in his counseled amended petition.

See Commonwealth v. Reid

, 99 A.3d 470, 494 (Pa. 2014) (holding that

claim s not raised in a PCRA petition cannot be raised for the first time on

appeal and are indisputably waived ); see also Pa.R.A.P. 302(a) (providing

that issues not raised in the lower court are waived and cannot be raised for

this first time on appeal). More importantly, however, Rose’s sufficiency

challenge presents a claim which is not cognizable under the PCRA. See

Commonwealth v. Price , 876 A.2d 988, 995 (Pa. Super. 2005) (rejecting a

sufficiency claim raised on PCRA appeal because such a claim is not cognizable

under the PCRA). Accordingly, Rose’s first issue merits no relief.

In his second issue, Rose challenges the PCRA court’s dismissal of his

claim that trial counsel was ineffective for failing to object to the hearsayJ

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testimony recounted by Walton at trial

. Our standard of review of an

ineffectiveness claim is well

- settled:

To prevail on a claim of ineffective assistance of counsel, a

PCRA petitioner must satisfy the performance and prejudice test

set forth by the United States Supreme Court in Strickland v.

Washington

, 466 U.S. 668, 687

. . . (1984).

. . . Accordingly,

to prove that counsel was ineffective, the petitioner must

demonstrate: (1) that the underlying claim has arguable merit;

(2) that no reasonable basis existed for counsel’s actions or failure

to act; and (3) that the petitioner suffered prejudice as a result of

counsel’s error. To prove that counsel’s chosen strategy lacked a

reasonable basis, a petitioner must prove that an alternative not

chosen offered a potential for success substantially greater than

the course actually pursued. Regarding the prejudice prong, a

petitioner must demonstrate that there is a reasonable probability

that the outcome of the proceedings would have been different

but for counsel’s action or inaction

. Counsel is presumed to be

effective; accordingly, to succeed on a claim of inef fectiveness the

petitioner must advance sufficient evidence to overcome this

presumption.

We need not analyze the prongs of an ineffectiveness claim

in any particular order. Rather, we may discuss first any prong

that an appellant cannot satisfy under the prevailing law and the

applicable facts and circumstances of the case. Finally, counsel

cannot be deemed ineffective for failing to raise a meritless claim

.

Commonwealth v. Johnson , 139 A.3d 1257, 1272 (Pa. 2016) ( some

citations and quotation marks omitted ).

Hearsay is an out of court statement introduced for the truth of the

matter asserted. See Commonwealth v. Fitzpatrick

, 255 A.3d 452, 458

(Pa. 2021). While hearsay statements are generally inadmissible

, a party may

present otherwise inadmissible hearsay under the excited utterance exception

provided by Pennsy lvania Rule of Evidence 803 , which defines an e xcited

u tterance as “[a] statement relating to a startling event or condition, madeJ

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while the declarant was under the stress of excitement that it caused. ” Pa.R.E.

803(2). This Court has explained :

The declaration need not be strictly contemporaneous with

the existing cause, nor is there a definite and fixed time limit.

Rather, each case must be judged on its own facts, and a lapse of

time of several hours has not negated the characterization of a

statement as an “ excited utterance. ” The crucial question,

regardless of the time lapse, is whether, at the time the statement

is made, the nervous excitement continues to dominate while the

reflective processes remain in abeyance.

Commonwealth v. Gore

, 396 A.2d 1302, 1305 (Pa. Super. 1978) (citations

omitted).

Rose contends that his trial counsel was ineffective for failing to object

to Walton’s testimony regarding what Sheridan told her about the burglary

,

including that it was Rose who com mitted the burglary . Rose maintains that

Walton’s testimony regarding Sheridan’s statements to her constituted

inadmissible hearsay which was not subject to any hearsay exception.

Although Rose concedes that Walton’s testimony was admitted by the trial

court under the excited utterance exception to the hearsay rule, he claims

that “ the Commonwealth c annot say when this utterance occurred.” Rose’s

Brief at 21. Rose argues that , because the hearsay testimony was offered for

the truth of the matter asserted

, it identified him as the perpetrator of the

burglary. Rose asserts that his trial counsel had no reasonable basis for fai ling

to object to the hearsay testimony , and he suffered prejudice as a result of

counsel’s failure.J

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The PCRA court considered Rose’s second issue and determined that it

lacked merit. The court reasoned:

Here, [Rose’s] claim that trial counsel was ineffective for

failing to raise a hearsay objection is meritless because the

statements at issue are admissible as excited utterances, a

hearsay exception.

The testimony offered by

. . . Walton as to the statements

of

. . . Sheridan would be admissible under the excited utterance

exception, as

. . . Sheridan was under the stress of having just

experienced the burglary. The applicability of the excited

utterance exception to hearsay is not based on a set time interval.

* * * *

In the testimony at issue,

. . . Walton is recalling what

. . . Sheridan said to her during a phone call. Though it is not exactly

clear when the phone call occurred, it was the same night as the

burglary. Even after the phone call, the record reflects that

. . . Sheridan was still under the stress and excitement from the event.

Indeed, when

. . . Walton first saw

. . . Sheridan after the phone

call, she described

. . . Sheridan as “ disheveled, scared to death.

Like he almost died, because like he was in total shock. ” Based

on this testimony from

. . . Walton, undoubtedly,

. . . Sheridan

was experiencing great stress after the burglary. Therefore,

. . . Walton ’ s testimony regarding

. . . Sheridan ’ s phone call is

admissible as an exited utterance and c ounsel cannot be

ineffective for failing to object to a meritless claim.

PCRA Court Opinion, 3/27/23, at 11

- 1 2 ( citations and unnecessary

capitalization omitted)

.

Based on our review, we conclude that the PCRA court’s determinations

are supported by the record and free from legal error. Sheridan’s statements

to Walton during their phone conversation relat ed to a startling event ; namely,

a burglary and assault wherein Sheridan , who had been asleep in his

residence, was attacked by a man with a firearm. Even if the statement wasJ

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made to Sheridan sometime after the burglary, the record reflects that it was

nonetheless made while Sheridan was still under the stress caused by the

burglary and assault

. Indeed, Walton observed that , when she encountered

Sheridan after the phone call, he appeared “ scared to death, ” as if he was “ in

total shock.” N.T., 4/4/14, at 53 ; see also Rose , 172 A.3d at 112 5 ( indicating

that , after Sheridan called Walton, Detective Frei interviewed Sheridan for

approximately an hour and noticed that he was visibly shaken and nervous

throughout the interview )

. Thus, the record supports the PCRA court’s

determination that Sheridan’s statements to Walton were made while he was

under the stress of the burglary and assault and were therefore admissible

under the excited utterance exception to the hearsay rule

. 6 Thus, as trial

counsel cannot be deemed ineffective for failing to raise a meritless claim,

Rose’s second issue merits no relief.

In his third issue, Rose challenges the legality of his sentence based on

the trial court’s use of a special verdict form. Rose’s amended petition

included a challenge to the trial court’s use of a special verdict form in the

_________________ __________ ______ ____ _______

6 The PCRA court additionally determined that, even if Walton ’ s testimony did

not fall under the excited utterance exception, trial counsel ’ s failure to object

to the testimony constitute d a harmless error because Sheridan ’ s independent

trial testimony contained the same information , albeit in much greater detail.

See PCRA Court Opinion, 3/27/23, at 13

- 1 4 . Our review of the record

confirms that Sheridan independently identified Rose as the burglar and his

attacker. See N.T.

, 4/8/14 , at 19

- 52

.J

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wake of Alleyne ; 7 however, the amended petition challenged only the first

question on the verdict form

— pertaining to whether a person was present at

the time of the burglary. See Amended Petition, 3/25/21, at 3

- 12. Rose did

not raise any challenge pertaining to the second question on the special verdict

form

— pertaining to whether he visibly possessed a firearm at the time of the

burglary. See id

. Although ille gal sentencing issues cannot be waived , they

still must be presented in a timely

- filed PCRA petition. See Commonwealth

v. Taylor , 65 A.3d 462, 465 (Pa. Super. 2013). While Rose failed to raise

any legality of sentencing challenge to the second question on the special

verdict form in his amended petition, it is not subject to waiver because this

Court has jurisdiction to consider it based on the timeliness of the petition

.

See Commonwealth v. Berry

, 877 A.2d 479, 482 (Pa. Super. 2005) ( en

banc ) ( holding that “a court may entertain a challenge to the legality of the

sentence so long as the court has jurisdiction to hear the claim. In the PCRA

context, jurisdiction is tied to the filing of a timely PCRA petition ” ) ; see also

Commonwealth v. Moore , 247 A.3d 990, 99 7 (Pa. 2021) (holding that a

claim that a petitioner is serving an illegal sentence exceeding the lawful

maximum, including an Alleyne challe nge, is cognizable under the PCRA).

_________________ __________ ______ ____ _______

7 Pursuant to Alleyne

, any fact that increases the penalty for a crime is an

element that must be submitted to the jury and found beyond a reasonable

doubt. See Alleyne , 570 U.S. at 103

.J

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-

Accordingly, as Rose’s PCRA petition was timely filed, we may address the

issue.

A sentencing court is required to impose a minimum prison sentence of

at least twenty

- five years where a defendant has been convicted of two or

more “crimes of violence.” 42 Pa.C.S.A. § 9714(a)(2). The term “crime of

violence” is defined in the statute a s including, inter alia , rape, sexual assault,

and certain types of burglaries . 42 Pa.C.S.A. § 9714(g). A burglary

committed pursuant to 18 Pa.C.S.A. § 3502( a)(1) is considered a crime of

violence. See i

d

.

Notably, under the C rimes C ode, there are different types of burglary.

See 18 Pa.C.S.A. § 3502(a)(1)

- (4). In all types of burglary, a person commits

the offense if, with the intent to commit a crime therein, the person enters a

building or occupied structure

, or separately secured or occupied portion

thereof

. See id

. The variations of the crime of burglary depend on whether :

a person is present; the structure has been adapted for overnight

accommodations ; or the person committing the burglary also commits,

attempts

, or threatens to commit a bodily injury crime

. See id

.

Pursuant to section 3502(a)(1), a person commits the offense of

burglary if, with the intent to commit a crime therein the person :

(i) enters a building or occupied structure, or separately secured

or occupied portion thereof, that is adapted for overnight

accommodations in which at the time of the offense any

person is present and the person commits, attempts or

threatens to commit a bodily injury crime therein ; [or]J

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(ii) enters a building or occupied structure, or separately secured

or occupied portion thereof that is adapted for overnight

accommodations in which at the time of the offense any person is

present [.]

18 Pa.C.S. A. § 3502 (a)(1) (emphas i s added)

. None of the remaining types of

burglary involve the commission, attempt, or threat to commit a bodily injury

crime, and certain of the other types of burglary do not involve the presence

of any person during the crime. See id

. § 3502 ( a) (2)

- (4).

Rose contends that the trial court’s use of the special verdict form to

satisfy the criteria of Alleyne for imposing a mandatory minimum sentence

was impermissible . Rose claims that the Commonwealth used the affirmative

answers to the questions as if the jury rendered a guilty verdict. Rose points

out that, when charging the jury, the trial court did not instruct the jur y that

it needed to find that a person was present beyond a reasonable doubt.

According to Rose, a mandatory penalty under section 9714 was inappropriate

because the jury was not instructed on an element necessary to aggravate

the offense

. Rose points to the trial court’s instruction to the jur ors that, if

they found Rose guilty of burglary , they needed to answer the additional

question of whether they found beyond a reasonable doubt that Rose visibly

possessed a firearm which placed Sheridan in reasonable fear of death or

serious bodily injury by having the jury foreperson circle “ yes ” or “ no ” on the

verdict form . Rose posits that “[a]n open [

- ] ended multiple choice question

does not m e et the standard of guilt beyond a reasonable doubt. ” Rose’s BriefJ

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at 28. Rose maintains that t h i s question created a new aggravated offense

where there is no statutory authority.

The PCRA court addressed Rose’s third issue and determined that it

lacked merit. The court reasoned:

. . . Here, this c ourt issued a bifurcated instruction for the

charge of burglary to the jury. This c ourt stated:

Then the next charge listed is burglary on the left

hand side. On the right

- hand side, the foreperson

would record the verdict [for burglary as] guilty or not

guilty. If the verdict is guilty, then there are two

questions to answer .

. . The first question listed is: If

guilty do you find beyond a reasonable doubt that a

person was present at the time of burglary?

. . . The

next question the jury is to answer, again if find the

jury finds the defendant guilty of burglary .

. . Do you

find beyond a reasonable doubt that defendant visibly

possessed a firearm or a replica of a firearm that

placed the victim in reasonable fear of death or

serious bodily injury during the commission of the

robbery?

N.T. [4/11/ ] 14, at 219

- [] 20.

. . .

PCRA Court Opinion, 3/27/23, at 15

- 16 (quotation marks and unnecessary

capitalization omitted )

.

Based on our review, we conclude that the trial court’s use of a special

verdict form did not implicate Alleyne or render Rose’s sentence illegal. Given

that the two questions posed on the special verdict sheet involved statutory

elements of the crime of burglary and were intended to determine the precise

type of burglary that Rose committed under section 3502(a), the y di d notJ

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-

implicate Alleyne or operate to create a new or enhanced crime. 8 T he

presence of a person in a burglarized structure and the attempt or threat to

commit a bodily injury crime are simply element s of the crime of burglary

itself

, and are not facts which would increase the penalty for b urglary once

convicted . Thus

, the trial court’s use of the special verdict form to determine

the type of burglary committed by Rose did not implicate Alleyne

.

Moreover, Alleyne wa s not implicated by section 9714 because the

increased penalties provided by that statute are based on prior convictions

.

See Commonwealth v. Reid

, 117 A.3d 777, 784

- 85 (Pa. Super. 2015)

( holding Alleyne i s not implicated by section 9714 because its rul ing did not

overturn established precedent that prior convictions are sentencing factors

and not elements of offenses

, and s ection 9714 increases mandatory

minimum sentences based on prior convictions )

. Accordingly, Rose’s third

issue merits no relief.

In his fourth issue, Rose presents a new claim raised for the first time

on appeal that PCRA counsel was ineffective. P ursuant to Commonwealth

v. Bradley

, 261 A.3d 381 (Pa. 20 2 1 ) , a defendant may raise claims of

ineffective assistance of PCRA counsel for the first time during an appeal from

_________________ __________ ______ ____ _______

8 The criminal complaint charged Rose with burglary as a first

- degree felony

under section 3502 , which implicated subsections 3502(a)(1 )(i), (ii), and (3)

. See Criminal Complaint, 5/21/13, at 1

. Moreover, Rose was on notice that

the Commonwealth would seek to prove the presence of another person

because the criminal complaint specifically alleged that Walton was present at

the time of the burglary

. See id

.J

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-

the d ismiss al of a timely filed first PCRA petition where the PCRA counsel in

question represented the defendant until the appeal. See i d . at 401

- 05. T he

Bradley Court recognized that

, in such cases, remand may sometimes be

necessary:

In some instances, the record before the appellate court will

be sufficient to allow for disposition of any newly

- raised

ineffectiveness claims. However, in other cases, the appellate

court may need to remand to the PCRA court for further

development of the record and for the PCRA court to consider such

claims as an initial matter. Consistent with our prior case law, to

advance a request for remand, a petition would be required to

provide more than mere boilerplate assertions of PCRA counsel ’ s

ineffectiveness; ho wever, where there are material facts at issue

concerning claims challenging counsel ’ s stewardship and relief is

not plainly unavailable as a matter of law, the remand should be

afforded.

Id

. at 402 ( citations and quotation marks omitted ). Thus

, appellate courts

have the ability to grant or deny relief on straightforward claims, as well as

the power to remand to the PCRA court for the development of the record.

See i d

. at 403.

Here, Rose adequately raised and preserved his claims regarding the

ineffective assistance of PCRA counsel by raising those claims at the first

opportunity to do so ; specifically

, in his brief filed with this Court in this appeal.

For this reason, we conclude that Rose raised these claims at the first

opportunity to do so, and that, pursuant to Bradley , they ha ve not been

waived.

Rose claims that PCRA counsel was ineffective for filing multiple

responses to the Rule 907 notice in which he identified new issues withoutJ

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-

seeking leave to amend the petition to include th os e issues

. For purposes of

review, i ssues not included in an original PCRA petition or a court

- approved

amended PCRA petition are deemed waived. See Commonwealth v.

Ousley

, 21 A.3d 1238, 1242 (Pa. Super. 2011) ( holding that issues not raised

in a PCRA petition cannot be considered on appeal)

. T he purpose behind a

Rule 907 notice is to allow a petitioner an opportunity to seek leave to amend

his petition and correct any material defects

. S ee Commonwealth v.

Williams

, 782 A.2d 517, 526 (Pa. 2001)

. A response to a Rule 907 notice is

not itself a petition

, and the law still requires leave of court to submit an

amended petition. See Pa.R.Crim.P. 905(A) ; see also Commonwealth v.

Rykard

, 55 A.3d 1177, 1189 (Pa. Super. 2012) (holding that, when a

petitioner has not sought permission to amend a petition to raise new claims,

the PCRA court is not required to address the issues raised in response to a

Rule 907 notice ).

Rose claims that PCRA counsel’s ineffectiveness in failing to seek leave

to amend the petition resulted in the waiver of the following issues :

A. WAS TRIAL COUNSEL INEFFECTIVE FOR NOT INVESTIGATING

THE CRIME, INTERVIEWING THE WITNESSES, AND ADVISING

[ROSE] NO [ sic ] TO TESTIFY BECAUSE THE COMMONWEALTH

DID NOT PROVE THEIR CASE?

B. WAS TRIAL COUNSEL INEFFECTIVE FOR NOT MOTIONING THE

COURT TO DETERMINE IF [ROSE’S] PRIOR CONVICTIONS

WERE CRIMES OF VIOLENCE ACCORDING TO § 97 1 4 “ VIOLENT

CRIME STATUTE ” WHERE COMMONWEALTH NEVER

PROSECUTED [ROSE] UNDER THIS STATUE [ sic ] ?J

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- 20

-

C. WAS APPELLANT [ sic ] COUNSEL INEFFECTIVE FOR FAILING TO

RAISE ON APPEAL PROSECUTORIAL MISCONDUCT WHERE THE

PROSECUOTR [ sic ] TESTIFIED THAT [ROSE] HAD A CRIMINAL

NUMBER WHEN REFERENCING A POLICE PHOTO WHICH HAD

BEEN PUBLISHED TO THE JURY AND PLACING IN THE MIND OF

THE JUROR ’ S [ sic ] THAT

. . . ROSE HAD PRIOR CRIMINAL

ACTIVITY VIOLATING FEDERAL AND STATE CONSTITUTIONAL

RIGHTS ?

D. WAS IT PROSECUTORIAL MISCONDUCT WHEN THE

PROSECUTOR WITHHELD EXCULPATORY EVIDENCE WHICH

WOULD HAVE SHOWN THAT SOMEONE ELSE OTHER THAT [ sic ]

. . . ROSE COMMITTED THE CRIME AND MISREPRESENTED THE

FACTS TO THE COURT TO COVER THIS FACT UP VIOLATING

FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

E. DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION BY

NOT ORDERING AN EVIDENTIATY [ sic ] HEARING FOR

INEFFECTIVENESS OF TRIAL COUNSEL FOR NOT

CHALLENGING THE SUFFICIENCY OF THE EVIDENCE WHERE

APPELLANT [ sic ] ATTORNEY WAS FROM THE SAME PUBLIC

DEFENDER ’ S OFFICE AND COULD NOT RAISE THE ISSUE ON

APPEAL, [ROSE] HAS A RIGHT TO CONFLICT FREE COUNSEL

AND THIS WOULD BE THE FIRST OPPORTUNITY FOR THIS

CLAIM TO BE RAISED [.]

F. WAS APPELLANT [ sic ] COUNSEL INEFFECTIVE FOR NOT

RAISING THE TRIAL COURT’S ERROR AND ABUSE OF

DISCRETION BY GIVING A CONSCIOUSNESS OF GUILT

INSTRUCTION TO THE JURY AND ADMITTING DEATH THREAT

TESTIMONY THAT WAS INADMISSIBLE AND PREJUDICIAL AND

NO EVIDENCE WAS PRODUCED THAT CONN ECTED THESE

THREATS TO

. . . ROSE ?

G. WAS TRIAL COUNSEL INEFFECTIVE FOR NOT OBJECTING TO

THE IMPROPER AND PREJUDICIAL STATEMENTS MADE BY THE

PROSECUTOR IN HIS OPENING ARGUMENT THAT

. . . ROSE

WAS A “ ROBBING PEOPLE IN THE NEIGHBORHOOD [” ] AND

THAT [HE] WAS A “ BULLY ” WHERE THERE WAS NO EVIDENCE

PRESENTED TO SUBSTANTIATE THESE CLAIMS WHICH WERE

PREJUDICIAL AND PLACED IN THE MINDS OF THE JURY THAT

. . . ROSE WAS A KNOWN CRIMINAL ?J

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- 21

-

Rose’s Brief at 5

- 6 (capitalization in original , issues reordered for ease of

disposition ).

Initially, we observe that issues A and B were not raised in any

counseled response to the Rule 907 notice

. Thus, these two issues were not

waived due to PCRA counsel’s failure to seek leave to amend the petition.

Rather, they were deemed waived by the PCRA court because they were raised

for the first time in Rose’s pro se amended concise statement

. See PCRA

Court Opinion, 3/27/23, at 14

- 15, 17 ; see also Pa.R.A.P. 302(a).

Accordingly, Rose’s claims of PCRA counsel’s ineffectiveness in issues A and B

merit no relief

.

With respect to issue C

, Rose claims that PCRA counsel was ineffective

for failing to seek leave to amend the petition to include a claim that trial

counsel was ineffective for failing to object to the prosecutor’s introduction of

photographs of Rose which informed the jury of his prior arrests. Our review

of the amended petition reveals that PCRA counsel raised this issue in the

amended petition

. See Amended P etition, 3/25/21, at 23

- 24. Moreover, the

PCRA court expressly stated in its Rule 907 notice that counsel had raised

“broad claims that both trial and appellate counsel were ineffective for failing

to object to the admission of [Rose’s] photograph at trial.” Rule 907 Notice,

2/16/22, at unnumbered 2, 5. Thus, as PCRA counsel included th e issue in

the amended petition, he cannot be deemed ineffective for failing to seek leaveJ

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- 22

-

to amend the petition to add a claim already included therein. Accordingly,

Rose’s claim of PCRA counsel’s ineffectiveness at issue C merits no relief.

With respect to issues D through G, these issues were not raised in the

amended petition and were instead raised for the first time by PCRA counsel

in his various responses to the Rule 907 notice. As explained above, t o prevail

on a claim of ineffective assistance of counsel, a PCRA petitioner must

demonstrate: (1) that the underlying claim has arguable merit; (2) that no

reasonable basis existed for counsel ’ s actions or failure to act; and (3) that

the petitioner suffered prejudice as a result of counsel ’ s error. See Johnson

,

139 A.3d at 1272. Regarding the prejudice prong, a petitioner must

demonstrate that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel ’ s action or inaction

.

See i d

. Counsel cannot be deemed ineffective for failing to seek leave to

amend Rose’s petition to add a meritless claim. See id

.

In issue D, Rose claims that PCRA counsel was ineffective for failing to

seek leave to amend the petition to include a claim of prosecutorial misconduct

based on Rose’s belief that the Commonwealth knew in advance of Watson’s

testimony that Frizz was present during the burglary and assault

. Notably, a

claim of prosecutorial misconduct is not cognizable under the PCRA

. See

Commonwealth v. Wholaver

, 177 A.3d 136, 174 (Pa. 2018) (holding that

petitioner’s PCRA claim regarding the prosecutor’s alleged misconduct was

waived because it took place during trial and therefore could have been, butJ

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- 23

-

was not, raised at trial ) : see also 42 Pa.C.S.A. § 9543(a)(3) (providing that

to be eligible for post

- conviction relief, a petitioner must plead and prove that

his claim has not been previously litigated or waived); Id . § 9544(b)

(providing that “an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding ”). Accordingly, PCRA counsel cannot be

regarded as ineffective for failing to seek leave to add a claim which is not

cognizable under the PCRA

. See Johnson , 139 A.3d at 1272. Accordingly,

Rose’s claim of PCRA counsel’s ineffectiveness in issue D merits no relief.

In issues E through F, Rose claims that PCRA counsel was ineffective for

failing to seek leave to amend the petition to add claims of ineffectiveness by

trial counsel and appellate counsel. Where a petitioner alleges multiple layers

of ineffectiveness, he is required to plead and prove, by a preponderance of

the evidence, each of the three prongs of ineffectiveness relevant to each

layer of representation

. See Commonwealth v. Parrish

, 273 A.3d 989,

1004 n.11 (Pa. 2022). Specifically, our Supreme Court ha s explained:

To be eligible for relief on [layered claims of ineffective

assistance of counsel, a petitioner] must plead and prove that: (1)

trial counsel was ineffective for a certain action or failure to act;

and (2) [subsequent] counsel was ineffective for failing to raise

trial counsel ’ s ineffectiveness. As to each relevant layer of

representation, [a petitioner] must meet all three prongs

of the

. . . test for ineffectiveness

. A failure to satisfy any of

the three prongs of the

. . . test requires rejection of a claim of

ineffective assistance of trial counsel, which, in turn, requires

rejection of a layered claim of ineffective assistance of

[subsequent] counsel.J

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- 24

- 24

- Thus, if the petitioner cannot prove the underlying claim of

trial counsel ineffectiveness, then petitioner ’ s derivative claim of

[subsequent] counsel ineffectiveness of necessity must fail, and it

is not necessary for the court to address the other two prongs of

the

. . . test [ i.e.

, the reasonable basis and prejudice prongs] as

applied to [subsequent] counsel.

Commonwealth v. Chmiel

, 30 A.3d 1111, 1128 (Pa. 2011) (citations

omitted and formatting altered

, emphasis added ).

In his appellate brief

, Rose alleges multiple layers of ineffectiveness

,

concluding that PCRA counsel was ineffective for not raising a claim of

ineffectiveness by trial or appellate counsel in issues E through G

. However,

whereas Rose endeavors to make out an ineffectiveness claim for trial or

appellate counsel in these three claims, he failed to plead or prove, let alone

discuss

, the three prongs of the ineffectiveness test with respect to PCRA

counse l. As Rose failed to present any argument as to the reasonable basis

and prejudice prongs regarding PCRA counsel ’s stewardship for these claims

,

his layered ineffectiveness claims fail because he has not developed his

assertions of PCRA counsel’s ineffectiveness beyond bald allegations. See

Bradley

, 261 A.3d at 402; see also Parrish , 273 A.3d at 1004 n.11

.

Accordingly, we conclude that Rose failed to plead a sufficient layered claim

of PCRA c ounsel ’ s ineffectiveness, and furthermore failed to show that a

remand is necessary for further review of his undeveloped claim s

. See

Parrish , 273 A.3d at 1002.

Therefore, as Rose is not entitled to relief on any of his claims, we affirm

the order dismissing his petition.J

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-

Order affirmed.

Date: 5/20 /202 4