J-S53024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHERMAINE ANTHONY CAVE,

Appellant No. 271 EDA 2017

Appeal from the PCRA Order December 19, 2016

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0002337-2014

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 18, 2017

Appellant, Shermaine Anthony Cave, appeals pro se from the order 

entered on December 19, 2016, denying Appellant relief on his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

The PCRA court explained the underlying facts and procedural posture 

of this case. We quote, in part, the trial court’s summary.

On November 11, 2014, Pennsylvania State Police troopers 

stopped the car in which [Appellant] was riding as a 

passenger for speeding. The car was owned and driven by 

[Appellant’s] girlfriend or ex-girlfriend. Based on 

observations made and information learned by the troopers 

during the stop, as well as their interactions with 

[Appellant] and the driver, the troopers called in a K-9 unit 

to perform an exterior sniff of the vehicle. The dog alerted 

to the presence of narcotics and actually jumped into the 

vehicle through an open window.
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The vehicle, [Appellant], and the driver were transported 

back to the police barracks. A search warrant was obtained 

and a search of the vehicle uncovered approximately [12] 

pounds of suspected marijuana and [91] clear plastic 

baggies. During a subsequent interview, [Appellant] . . . 

admitted that the marijuana was his. . . . 

[Appellant] was arrested and charged with possession with 

intent to deliver (PWID) a controlled substance and related 

offenses. He retained [] private counsel of his choosing 

(“Plea Counsel”).

[Appellant] and Plea Counsel discussed the possibility of 

filing a motion to suppress the results of the search, a plea 

to PWID being offered by the Commonwealth, and the 

relative merits of accepting the plea versus going to trial. 

Discussions took into consideration Plea Counsel’s 

considered opinion that a suppression motion would likely 

not be fruitful because counsel believed, among other 

things, that [Appellant] lacked the requisite expectation of 

privacy to challenge the search since he was neither the 

owner nor operator of the vehicle that was searched. 

Discussions also took into consideration [Appellant’s] 

admission and his strong and consistent desire to protect 

his ex-girlfriend. Plea Counsel gave [Appellant] a full 

assessment of his case and trial prospects. In the end, 

[Appellant] made a conscious decision to accept the 

Commonwealth’s plea offer and to insulate, or at least 

minimize the criminal consequences for, his friend.

On July 16, 2015, after several defense delays, [Appellant 

pleaded] guilty to PWID. The plea was effectuated through 

a written guilty plea form that was signed by [Appellant] 

and Plea Counsel and was accompanied by a thorough oral 

colloquy conducted by the [trial] court. Plea Counsel went 

over and explained the form to [Appellant] and was present 

with [Appellant] for the colloquy and acceptance of the plea.

[On December 18, 2015, Appellant] was [] sentenced to 

[18] to [60] months in [prison]. [Appellant] did not file a 

direct appeal. . . . 

On August 19, 2016, [Appellant] filed a pro se PCRA petition 

alleging ineffective assistance of counsel. [Appellant] 
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claim[ed] that Plea Counsel was ineffective for failing to file 

a suppression motion challenging the search of his friend’s 

car. According to [Appellant], Plea Counsel’s failure to file 

such a motion resulted in a “coerced” guilty plea. In 

addition, [Appellant] alleg[ed] that, at the time he entered 

his plea, he believed he was pleading to simple possession 

rather than PWID.

After the PCRA petition was filed, [the PCRA court] 

scheduled a hearing and appointed the Monroe County 

Public Defender’s Office to represent [Appellant]. On 

October 6, 2016, the assigned public defender filed [a nomerit letter and a request to withdraw as counsel, pursuant 

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

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988) (en banc)].

PCRA Court Opinion, 2/21/17, at 1-3.

On December 19, 2016, the parties appeared before the PCRA court 

for the scheduled hearing. However, at the beginning of the hearing, the 

PCRA court declared that it would first rule upon appointed counsel’s petition 

to withdraw. N.T. PCRA Hearing, 12/19/16, at 4-5. After hearing argument 

from counsel and Appellant, the PCRA court declared:

Well, you know[, Appellant,] I had a chance to read the file. 

I had a chance to read the Turner/Finley [no-merit] letter. 

I had a chance to read the motion to withdraw and now to 

hear what we argued about today and you know I have to 

agree with counsel, you know, on several matters.

First let’s work backwards. The plea – I don’t believe that 

there’s any real issue with respect to that because there 

was a plea form that was signed that you signed.

You and I had a colloquy which is a fancy way of saying a 

discussion about that form and your plea. There was 

absolutely no question about what the plea was for.
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Then you were sentenced on that plea and there was no 

question about the fact that it was a possession with intent 

to deliver as opposed to possession or some other type of a 

crime. So I don’t think that goes anywhere and I believe 

there is no merit to that and I think that’s a point well taken 

from the attorney’s Turner/Finley letter.

. . .

With respect to the fact that you were coerced into the plea; 

again we had that same colloquy, you signed the written 

form, we had the sentencing. I was there. You know there 

was no coercion. Whether someone suggested that you’d 

be silly if you didn’t do it or that you could be facing other 

consequences doesn’t necessarily mean coercion.

And then finally with respect to the stop, you know the 

record just doesn’t support a violation. I know you want to 

read it differently I know you want to interpret the law 

differently; but I think that counsel has done a pretty good 

job of that.

So I’m going to grant counsel’s motion to withdraw. . . . 

[Plea Counsel] who represented you is here and I know that 

you have some legal argument that you would like to have 

made and so if you want to I’ll give you a chance to make 

that argument and then a chance to file a brief if you would 

like to on your own; or if you want to see if you can get 

another attorney to come and represent you I’ll give you 

some time to do that.

So I’m going to grant the petition of the Public Defender’s 

Office . . . to withdraw in this case believing that they have 

met the standards.

N.T. PCRA Hearing, 12/19/16, at 8-10.

In granting counsel’s petition to withdraw, the PCRA court explicitly 

held that there was no merit to any of Appellant’s claims and that “no 

purpose would be served by any further proceedings.” N.T. PCRA Hearing, 

12/19/16, at 8-10; Pa.R.Crim.P. 907(1). Therefore, under the Rules of 
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Criminal Procedure, the PCRA court should have concluded the proceeding 

and given Appellant notice that it intended to dismiss the petition in 20 days, 

without holding a hearing. Pa.R.Crim.P. 907(1). However, instead of ending 

the proceeding and issuing Appellant the requisite notice pursuant to 

Pennsylvania Rule of Criminal Procedure 907, the PCRA court continued with 

the hearing – where Appellant acted pro se – and heard testimony from Plea 

Counsel. See N.T. PCRA Hearing, 12/19/16, at 13-19. The PCRA court then 

denied Appellant relief on his claims.

Appellant filed a timely notice of appeal and Appellant now raises the 

following claims to this Court:

[1.] Was the PCRA court’s dismissal of [] Appellant’s PCRA 

petition unsupported by the record; and based on legal 

error, because his detention was in violation of his 

constitutional rights pursuant to the 4th Amendment of the 

U.S. Const. and Article 1, Section 8 of the Pa. Const.

[2.] Was the PCRA court’s dismissal of [] Appellant’s PCRA 

petition unsupported by the record and based on legal error, 

because Appellant’s conviction violated the due process 

clause of the [14th] Amendment to the U.S. Const. and due 

process clause of the Pa. Const.; and prior counsel was 

ineffective for failing to argue the above issue(s) (inter alia).

[3.] Was the PCRA court in error by not finding Appellant’s 

plea was unlawfully coerced, based on the 

supported/attached documents plus, all herein.

Appellant’s Brief at 5 (some internal capitalization omitted).

Appellant has failed to support the above claims with any relevant 

argument. To be sure, Appellant’s argument to this Court consists entirely 

of conclusory and undeveloped legal quotations and citations and 
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incomprehensible statements. See id. at 6-12. Further, Appellant has 

failed to explain how any of the cited law applies to his particular case. Id. 

This substantially impedes our ability to conduct effective appellate review of 

Appellant’s claims. Therefore, Appellant’s claims on appeal are waived.1 

Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999) (“[the 

Pennsylvania Supreme Court] has held that an issue will be deemed to be 

waived when an appellant fails to properly explain or develop it in his brief”);

____________________________________________

1 As noted above, at the beginning of the scheduled evidentiary hearing, the 

PCRA court granted counsel’s petition to withdraw and concluded that “there 

[were] no genuine issues concerning any material fact and that [Appellant] 

is not entitled to post-conviction collateral relief, and no purpose would be 

served by any further proceedings.” See N.T. PCRA Hearing, 12/19/16, at 

8-10; Pa.R.Crim.P. 907(1). At that point, the PCRA court should have ended 

the proceeding and issued Appellant notice that it intended to dismiss 

Appellant’s PCRA petition in 20 days, without holding a hearing. 

Pa.R.Crim.P. 907(1). The PCRA court failed to give Appellant the requisite 

notice and mistakenly continued with an unnecessary evidentiary hearing 

that Appellant was not entitled to receive under the Rules of Criminal 

Procedure – and, if Appellant were entitled to the hearing (which Appellant 

was not), Appellant would have had a rule-based right to have counsel 

represent him at the hearing. See Pa.R.Crim.P. 904(C) and 908(C). 

Nevertheless, since Appellant’s PCRA petition had no merit, since Appellant 

was not entitled to an evidentiary hearing, and since the PCRA court 

properly granted counsel’s petition to withdraw, the PCRA court did not 

violate Appellant’s rule-based right to counsel. Further, since Appellant does 

not claim that the PCRA court erred in failing to issue the required Rule 907 

notice, any such claim is waived. Commonwealth v. Taylor, 65 A.3d 462, 

467 (Pa. Super. 2013) (“[t]he failure to challenge the absence of a Rule 907 

notice constitutes waiver”); Commonwealth v. Boyd, 923 A.2d 513, 514 

n.1 (Pa. Super. 2007) (“[a]lthough the notice requirement set forth in Rule 

907 has been held to be mandatory, Appellant has not objected to its 

omission and thereby has waived the issue”) (internal citations omitted).
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Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (“to the extent 

appellant’s claims fail to contain developed argument or citation to 

supporting authorities and the record, they are waived”); Commonwealth 

v. Rivera, 685 A.2d 1011, 1013 (Pa. Super. 1996) (“[w]hile this Court is 

willing to liberally construe materials filed by a pro se litigant, [an a]ppellant 

is not entitled to any particular advantage because she lacks legal training. . 

. . [W]e decline to become the appellant’s counsel. When issues are not 

properly raised and developed in briefs, when the briefs are wholly 

inadequate to present specific issues for review[,] a [c]ourt will not consider 

the merits thereof”) (internal quotations and citations omitted).

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/18/2017