J-S47020-19; J-S47021-19; J-S47022-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1286 MDA 2018

Appeal from the PCRA Order Entered July 5, 2018

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

No(s): CP-22-CR-0001985-2010

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1935 MDA 2018

Appeal from the Order Entered October 22, 2018

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

No(s): CP-22-CR-0001985-2010

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 784 MDA 2019

Appeal from the Order Entered April 17, 2019

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

No(s): 

CP-22-CR-0001985-2010
J-S47020-19; J-S47021-19; J-S47022-19

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BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 16, 2020

Appellant Eric Diaz appeals pro se from the order dismissing his timely 

first Post Conviction Relief Act1 (PCRA) petition and the related orders denying 

his requests for library access and release pending appeal. These appeals 

involve Appellant’s challenges to the legality of the intermediate punishment

sentences2imposed following revocations of his original 2011 probationary 

sentence and the conditions of his most recent intermediate punishment 

sentence. Appellant further claims that the PCRA court erred in dismissing his 

claims of ineffective assistance of PCRA counsel and by refusing to appoint 

new PCRA counsel. For the reasons that follow, we conclude that Appellant 

has not established that he is eligible for relief under the PCRA and affirm in 

1286 MDA 2018, dismiss the appeal in 1935 MDA 2018 related to library 

access, and affirm the order denying relief in 784 MDA 2019 related to his 

request for release pending appeal.

Appellant’s original conviction involved his March 2009 possession of 

child pornography. On July 12, 2011, Appellant entered a negotiated guilty 

____________________________________________

1 42 Pa.C.S. §§ 9451-9546.

2 The General Assembly substantially revised the statutes governing county 

intermediate punishment sentencing during the pendency of this appeal,

effective December 19, 2018. See 2019, Dec. 18, P.L. 776 No. 115. Those 

changes, in part, deleted references to county intermediate punishment and 

substituted the phrase “restrictive conditions of probation” or “probation.” 

See id. The changes, however, are not material to the decision herein. 
J-S47020-19; J-S47021-19; J-S47022-19

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plea to two counts of possession of child pornography.

3

 On November 22, 

2011, the trial court imposed the negotiated sentences of five years’ probation 

to run concurrently. At the sentencing hearing, the Commonwealth stated 

that Appellant was determined not to be a sexually violent predator. The trial 

court advised Appellant of the ten-year sexual offender registration 

requirements in effect at the time. 

Appellant subsequently violated a condition of his original probationary 

sentence.4 On March 14, 2012, the trial court imposed a violation of probation 

sentence of five year’s county intermediate punishment, with six months to 

be served in Dauphin County prison (the first revocation sentence). Order, 

3/14/12. 

On July 31, 2013, the trial court issued a bench warrant for Appellant’s

violation of the first revocation sentence. On November 19, 2013, the trial 

court issued an order releasing Appellant from Dauphin County to the state of 

Maryland. In May of 2014, Appellant was convicted of a new sexual offense 

in Maryland. On July 31, 2014, the trial court issued a capias for Appellant’s 

return to Pennsylvania.

Following several continuances, the trial court conducted a revocation 

hearing on October 3, 2016. At the hearing, the Commonwealth argued for a 

____________________________________________

3 18 Pa.C.S. § 6312(d).

4 The record does not contain the details of Appellant’s violation of his original 

sentence of probation. 
J-S47020-19; J-S47021-19; J-S47022-19

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state term of incarceration. Appellant, through counsel, requested a county 

term of imprisonment. At the conclusion of the hearing, the trial court 

sentenced Appellant to five years’ county intermediate punishment, with one 

year in county prison, and a consecutive term of five years’ probation (the 

second revocation sentence). The trial court also ordered sex offender 

conditions as part of Appellant’s supervision. Appellant did not take a direct 

appeal from the second revocation sentence. 

The Commonwealth subsequently charged Appellant with new offenses 

at CP-22-CR-3178-2017 (3178-2017). According to the public docket in 

3178-2017, the charges included six new counts of possession of child 

pornography. The date of the offenses charged in 3178-2017 ranged from 

February to April of 2017. The offenses apparently resulted from a search of 

Appellant’s cell phone when he was at a work release center. On May 31, 

2017, Dauphin County Adult Probation and Parole issued a detainer for 

Appellant for a violation of the second revocation sentence. 

On October 3, 2017, Dauphin County Adult Probation and Parole 

released Appellant from “the total confinement phase of the restrictive portion 

of” the second revocation sentence. However, it appears that Appellant 

remained in custody in Dauphin County Prison, based on the May 31, 2017 

detainer for the violation of the second revocation sentence. 

On October 31, 2017, the PCRA court docketed Appellant’s pro se PCRA 

petition seeking relief from the second revocation sentence. Appellant 

asserted that the first and second revocation sentences were illegal because 
J-S47020-19; J-S47021-19; J-S47022-19

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an intermediate punishment sentence cannot contain a provision for 

confinement in prison that exceeds ninety days. Appellant’s PCRA Pet., 

10/31/17, at 4 (citing 42 Pa.C.S. §§ 9756(c.1), 9804(a)). Appellant also cited 

Commonwealth v. Milhomme, 35 A.3d 1219 (Pa. Super. 2011), to claim 

that the illegality of the first revocation sentence tainted the second revocation 

sentence. Id. Further, Appellant claimed that the second revocation sentence 

was improper because the VOP court imposed a consecutive sentence when 

his original plea agreement called for concurrent sentences. Id. at 8. 

Additionally, Appellant argued that the second revocation sentence 

contained an illegal condition. In support, Appellant attached to his pro se

PCRA petition a Dauphin County Adult Probation and Parole form advising him 

of the following probation condition:

12. I understand that all electronic devices including, but not 

limited to, computers, cameras, video recorders, cell phones, 

tablets, e-readers and other electronic devices in my residence or 

under my control are subject to search by the Probation Office. 

Id. at C1. Appellant asserted this condition was unconstitutional in light of 

Commonwealth v. Wilson, 67 A.3d 736 (Pa. 2013). Id. at 8. Appellant 

also claimed that the trial court impermissibly delegated the imposition of this 

probation condition to Dauphin County Adult Probation and Parole. Id. (citing 

Commonwealth v. MacGregor, 912 A.2d 315 (Pa. Super. 2006)). 

Appellant also claimed that he was currently detained for violating the 

terms of the second revocation sentence. Appellant requested that the 
J-S47020-19; J-S47021-19; J-S47022-19

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detainer be lifted due to the illegality of the second revocation sentence. Id.

at 6. 

The PCRA court appointed counsel for Appellant. On May 15, 2018, 

PCRA counsel filed a motion to withdraw and a no-merit letter.5 PCRA counsel 

asserted Appellant’s claim that a county intermediate punishment sentence 

could not exceed ninety days of total or partial incarceration lacked merit. 

Specifically, PCRA counsel suggested that Appellant misread the statutory 

bases for intermediate punishment, partial confinement, and total 

confinement. Mot. to Withdraw, 5/15/18, at 5-10 (unpaginated). PCRA 

counsel also noted that the original plea agreement to impose concurrent 

sentence did not bind the trial court in a subsequent revocation proceeding. 

Id. at 10. 

As to Appellant’s assertion that his new charges arose from a search of 

his cell phone, PCRA counsel stated:

While counsel understands [Appellant’s] new charges are based 

on a search of a cell phone he allegedly was using or possessed 

while at the work release center, counsel believes that this issue 

is best dealt with on direct appeal for his new charges as the 

conditions are alleged to provide the basis for his new charges and 

were never previously challenged, at this docket, either on direct 

appeal or at the time of his resentencing hearings. Thus, this issue 

possibly may be ruled waived by [Appellant].

Id. at 10.

____________________________________________

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S47020-19; J-S47021-19; J-S47022-19

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On June 5, 2018, the PCRA court granted PCRA counsel’s motion to 

withdraw and issued a Pa.R.Crim.P. 907 notice with an accompanying opinion 

addressing Appellant’s issues. First, the PCRA court rejected Appellant’s 

arguments that the second revocation sentence was illegal. As to Appellant’s 

contention that he could not be ordered to serve more than ninety days in 

county prison as part of a county intermediate sentence, the PCRA court 

noted:

In this case, [Appellant] was sentenced in October 2016 to 

restrictive intermediate punishment—that is, the offender was to 

be housed full time for a portion of the intermediate punishment 

program. An intermediate punishment sentence is not the same 

as a sentence of partial or full confinement as contemplated by 42 

Pa.C.S.[ §§] 9755 and 9756.

PCRA Ct. Op. 6/5/18, at 6. The PCRA court also found no merit to Appellant’s 

claim that the original plea agreement bound the trial court to sentence 

concurrently following a revocation of the original sentence. Id. 

Second, the PCRA court found that Appellant waived his challenge to the 

probation condition in the second revocation sentence and, in the alternative, 

concluded that the claim was meritless. The PCRA court also noted that 

Appellant’s claim targeted “his new docket based upon the search of his person 

and the search of the cell phone he possessed in violation of the special 

conditions.” Id. at 6-7. 

On June 21, 2018, the PCRA court received Appellant’s pro se answer to 

PCRA counsel’s motion to withdraw and the PCRA court’s Rule 907 notice. 

Appellant’s answer included a motion for appointment of new PCRA counsel. 
J-S47020-19; J-S47021-19; J-S47022-19

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Among other claims, Appellant asserted that PCRA counsel was ineffective for 

failing to meet with him, discuss his claims, and develop his issues. On July 

5, 2018, the PCRA court entered the order dismissing Appellant’s PCRA 

petition. 

In 1286 MDA 2018, Appellant, acting pro se, timely appealed the July 

5, 2018 order dismissing his PCRA petition and timely submitted a Pa.R.A.P. 

1925(b) statement. The PCRA court filed a responsive opinion.

After taking his appeal from the order dismissing his PCRA petition, 

Appellant filed pro se motions in the PCRA court requesting more library 

access, which the PCRA court denied on October 22, 2018. Further, he 

requested release from confinement pending appeal, which the trial court 

denied on April 17, 2019. This Court docketed Appellant’s timely pro se

appeals from the orders denying additional library access and release pending 

appeal at 1935 MDA 2018 and 784 MDA 2019, respectively.6

1286 MDA 2018

In 1286 MDA 2018, Appellant presents fourteen questions, which we 

have reordered as follows:

____________________________________________

6 Additionally, Appellant has filed several pro se applications for relief in all 

three appeals. In 1286 MDA 2018, Appellant filed applications for relief 

seeking to strike the PCRA court’s opinion and for summary relief. In 1935 

MDA 2018, Appellant filed an application for extension of time to file a reply 

brief and an application to strike the Commonwealth’s brief. In 784 MDA 

2019, Appellant filed applications for an extension of time and to strike the 

Commonwealth’s brief. In light of our disposition herein, we deny Appellant’s 

applications for relief as moot. 
J-S47020-19; J-S47021-19; J-S47022-19

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[1.] Where a trial court accepts a guilty plea made pursuant to a 

negotiated plea bargain and imposes a concurrent sentence in 

compliance with the terms of the plea bargain, following a 

probation revocation, is the court then bound by the plea bargain 

to impose concurrent sentences pursuant to Commonwealth v. 

Adebaike, 846 A.2d 759 (Pa. Super. 2004)?

[2.] Whether a trial court can override the requirements set forth 

in Title 42 Pa.C.S.[] § 9802 - “Eligible Offender” by sentencing a 

[d]efendant convicted on a sexual offense charge to a sentence of 

county intermediate punishment probation?

[3.] Whether a trial court may impose a sentence of more than 

ninety (90) days of incarceration in either partial or total 

confinement in combination with a sentence of county 

intermediate punishment probation in violation of Title 42 

Pa.C.S.[] § 9755(h) and § 9756(c.1)?

[4.] Whether a sentence imposed at a revocation hearing is illegal 

if the underlying sentence was illegal pursuant to [Milhomme] 

and if so should both sentences be vacated as legal nullities? 

[5.] Is it illegal for the trial court upon sentencing to simply state 

“Sexual Offender Conditions” and to not specifically delineate each 

condition separately on a sentencing order and instead have a 

county probation office(r) draft up a pre-printed document that 

specifies conditions out individually in contradiction to the 

precedent set forth in [MacGregor] and Commonwealth v. 

Vilsaint, 893 A.2d 753 (Pa. Super. 2006)?

[6.] Is it illegal to impose a condition of probation to authorize a 

county probation/parole officer to search electronic “data” 

pursuant to Title 42 Pa.C.S.[] § 9912(d)(2) as “property” does not 

encompass electronic “data” according to Riley v. California, 134 

S.Ct. 2473 (2014) as described in United States v. Lara, 815 

F.3d 605 (C.A.9 (Cal.) 2016)?

[7.] Is the Dauphin County Adult Probation/Parole Department’s 

“Special Conditions for Sexual Offenders” item 12 illegal pursuant 

to [Wilson] and Commonwealth v. Walter, 655 A.2d 554 ([Pa. 

Super.] 1995) as the consent to search clause sets forth no criteria 

for “when” a search can be conducted and does not provide any 

form of “neutral” review of the request to search such as the 

“reasonable suspicion” requirement set forth in Title 42 Pa.C.S.[] 

§ 9912(d)(2)?
J-S47020-19; J-S47021-19; J-S47022-19

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[8.] Is it illegal to impose as a part of a sentence of Probation, 

Parole and/or Intermediate Punishment a condition that prohibits 

access and/or participation in a social networking website 

pursuant to either the ruling in Packingham v. North Carolina, 

137 S. Ct. 1730 ([] 2017), the First Amendment of the United 

States Constitution and/or Article I, Section 7 of the Pennsylvania 

Constitution?

[9.] Is court appointed counsel considered to be ineffective when 

counsel never comes out to see her client who is incarcerated and 

if counsel continually fails to respond to direct and indirect 

requests for a visit and for basic information critical to the case?

[10.] Is the [PCRA] court negligent for not responding at all to a 

Motion to Request New Counsel when a [d]efendant brings up 

concerns regarding the protection of his Constitutional and Due 

Process rights as well as concerns of a violation of Pa.R.Crim.P. 

Rule 904(H)(2)(b) and if so, would said negligence of the court 

constitute a violation of the Judicial Code of Conduct Rules 2.15(B) 

and 2.15(D)?

[11.] Is the [PCRA] court negligent for dismissing a PCRA Petition 

without giving the [d]efendant an ample opportunity to then 

proceed pro se, by privately retained counsel, or not at all 

pursuant to Commonwealth v. Dukeman, . . . 605 A.2d 418 

([Pa. Super.] 1992)?

[12.] Is the [PCRA] court negligent for not holding a Grazier 

hearing [Commonwealth v. Grazier, . . . 713 A.2d 81 ([Pa. 

1988)] and colloquy with the [p]etitioner to ensure that his 

decision to proceed pro se is knowing, voluntary and intelligent?

[13.] If a judge imposes an initial lawful sentence of probation and 

another judge fills in at a revocation hearing and imposes an illegal 

sentence, should the illegal sentence be vacated and remanded 

back to the original sentencing judge? 

[14.] If illegally imposed sentences get vacated by the Superior 

Court, would it be a violation of the Judicial Code of Conduct Rule 

2.11(A)(5) to then have the case be remanded to the same judge 

who imposed said illegal sentences, because the imposition of 

sentences constitutes an act of making a judicial decision and to 

rule in a particular way? 

Appellant’s Brief at 8-13. 
J-S47020-19; J-S47021-19; J-S47022-19

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Before addressing Appellant’s claims, we initially note that our standard 

of review from the denial of a PCRA petition “is limited to examining whether 

the PCRA court’s determination is supported by the evidence of record and 

whether it is free of legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 

1242 (Pa. Super. 2011) (citation omitted). “We defer to the PCRA court’s 

factual findings and credibility determinations supported by the record. In 

contrast, we review the PCRA court’s legal conclusions de novo.” 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) 

(en banc) (citations omitted). 

Section 9542 of Title 42, defines the scope of the PCRA as follows: 

This subchapter provides for an action by which persons convicted 

of crimes they did not commit and persons serving illegal 

sentences may obtain collateral relief. The action established in 

this subchapter shall be the sole means of obtaining collateral 

relief and encompasses all other common law and statutory 

remedies for the same purpose that exist when this subchapter 

takes effect, including habeas corpus and coram nobis. This 

subchapter is not intended to limit the availability of remedies in 

the trial court or on direct appeal from the judgment of sentence, 

to provide a means for raising issues waived in prior proceedings 

or to provide relief from collateral consequences of a criminal 

conviction.

42 Pa.C.S. § 9542. Our Supreme Court has stated that “[t]he purpose of 

[PCRA] is not to provide convicted criminals with the means to escape welldeserved sanctions, but to provide a reasonable opportunity for those who 

have been wrongly convicted to demonstrate the injustice of their conviction.” 

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 787 (Pa. 2000) (citation 

omitted); see also Commonwealth v. Grafton, 928 A.2d 1112, 1114 (Pa. 
J-S47020-19; J-S47021-19; J-S47022-19

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Super. 2007) (stating “[t]he purpose behind the passage of the PCRA was to 

bring finality to criminal judgments while allowing criminal defendants a fair 

opportunity to address, and seek redress for, errors that occurred during trial 

and/or sentencing.” (citation omitted)). 

To be eligible for relief under the PCRA, a petitioner must establish that 

he “has been convicted of a crime under the laws of this Commonwealth and 

is at the time relief is granted . . . currently serving a sentence of 

imprisonment, probation or parole for the crime” or “serving a sentence which 

must expire before the person may commence serving the disputed sentence.” 

42 Pa.C.S. § 9543(a)(1)(i), (iii). 

Generally, a petitioner may only file a PCRA petition after a conviction 

and sentence has become final. Commonwealth v. Leslie, 757 A.2d 984, 

985 (Pa. Super. 2000) (per curiam). A petitioner must also demonstrate that 

his claims were not previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). 

An issue is waived under the PCRA when “the petitioner could have raised it 

but failed to do so before trial, at trial, . . . , on appeal or in a prior state 

postconviction proceeding.” 42 Pa.C.S. § 9544(b). 

A critical threshold question in this appeal is whether Appellant is still 

serving his second revocation sentence. Although a petitioner may seek PCRA 

relief from VOP proceedings, instantly, Appellant did not file his petition while 

he was serving his VOP sentence. Rather, Appellant filed his PCRA petition

after the Dauphin County Adult Probation and Parole issued a detainer for his 

alleged violation of a condition of that sentence, but prior to the final 
J-S47020-19; J-S47021-19; J-S47022-19

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disposition of the alleged VOP before the trial court. Accordingly, it appears 

that Appellant is no longer subject to a sentence of incarceration or probation, 

but is currently in custody in Dauphin County Prison based on the probation 

violation detainer related to the alleged third violation in this case that has yet 

to be finalized before the appropriate court. 

A revocation of an intermediate punishment sentence, like a revocation 

of probation, is a specialized proceeding upon an original conviction. Cf. 

Pa.R.Crim.P. 708 (relating to hearings and dispositions for a violation of 

probation, intermediate punishment, or parole); Martin v. Pa. Bd. of Prob. 

& Parole, 840 A.2d 299, 303 (Pa. 2003) (noting that in a state parole case in 

which the defendant committed a new offense, a detainer “is an outstanding 

parole-violation charge and essentially constitutes an untried indictment, 

information, or complaint that is to be resolved at a probation revocation 

hearing”). Our courts recognize that a defendant may obtain judicial review 

of a detainer issued upon a violation alleged by a county probation office by 

filing a petition for writ of habeas corpus. See Commonwealth v. Kelly, 931 

A.2d 694, 695-96 (Pa. Super. 2007) (addressing a challenge to a county 

probation detainer as a “pre-trial habeas corpus case”), abrogated on other 

grounds by Commonwealth v. Dantzler, 135 A.3d 1109, 1112 n.5 (Pa. 

Super. 2016) (en banc)). 

Moreover, it is well settled that

when a parolee or probationer is detained pending a revocation 

hearing, due process requires a determination at a pre-revocation 

hearing . . . that probable cause exists to believe that a violation 
J-S47020-19; J-S47021-19; J-S47022-19

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has been committed. Where a finding of probable cause is made, 

a second, more comprehensive hearing, a [second] hearing, is 

required before a final revocation decision can be made.

Commonwealth v. Heilman, 876 A.2d 1021, 1026 (Pa. Super. 2005) 

(citation omitted); see also Gagnon v. Scarpelli, 411 U.S. 778, 781-82

(1973). A defendant has a right to counsel in a revocation proceeding and 

may also seek suppression of evidence giving rise to the revocation. See 

generally Commonwealth v. Arter, 151 A.3d 149, 167 (Pa. 2016) (holding 

that the Pennsylvania Constitution extends the application of the exclusionary 

rule to parole and probation revocation proceedings); Commonwealth v. 

Fowler, 419 A.2d 34, 35 (Pa. Super. 1980) (noting that a magistrate erred in 

requiring a defendant to proceed uncounseled in a preliminary VOP hearing).

Lastly, if the trial court revokes a defendant’s intermediate punishment 

sentence, the sentencing alternatives available to the court are “the same as 

the alternatives at the time of the initial sentencing.” See 42 Pa.C.S. § 

9773(b) (repealed eff. Dec. 18, 2019). The provisions for revoking an 

intermediate punishment sentence under former Section 9773 and revoking a 

probationary sentence under 9771 are analogous. See Commonwealth v. 

Philipp, 709 A.2d 920, 921 (Pa. Super. 1998); see also Commonwealth v. 

Mullins, 918 A.2d 82, 85 (Pa. 2007) (describing probation as “a suspended 

sentence of incarceration served upon such lawful terms and conditions as 

imposed by the sentencing court” and noting that “[p]robation revocation is 

not a second punishment for the original conviction, but an integral element 

of an original conditional sentence” (citations omitted)).
J-S47020-19; J-S47021-19; J-S47022-19

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In light of the foregoing, it appears that Appellant’s attempt to raise his 

claims in a PCRA petition was premature. Appellant is currently in custody 

based on detainer for a violation of his intermediate punishment sentence and

the filing of the detainer essentially commenced a discrete proceeding for 

revocation and resentencing based on the original conviction. See Martin, 

840 A.2d at 303. The PCRA is intended as a remedy for the illegality of a final

conviction and sentence, not as a means to preview or test possible legal 

challenges to pending proceedings. Here, Appellant still has ample 

opportunities to raise his claims in challenges to the detainer, during a 

violation and revocation hearing in the instant case, as well as pre-trial 

proceedings on his new charges. 

Furthermore, the distinction between the PCRA and alternative methods 

of addressing Appellant’s claims is not a mere formality. If this Court were to 

construe Appellant’s claims under the PCRA, his right to counsel would derive 

from our rules of criminal procedure. See Commonwealth v. Laboy, 230 

A.3d 1134, 1138 (Pa. Super. 2020). However, in the course of a violation and 

revocation proceeding, a constitutional right to counsel may arise, such that 

counsel’s requests to withdraw from representation would be held to a more 

stringent standard than in a PCRA proceeding or appeal. See Fowler, 419 

A.2d at 35; see generally Pa.R.Crim.P. 122 (discussing right to counsel in 

criminal proceedings); Commonwealth v. Wright, 961 A.2d 119, 134 (Pa. 

2008) (noting a defendant may seek change of appointed counsel in a criminal 

proceeding based on irreconcilable differences); Commonwealth v. 
J-S47020-19; J-S47021-19; J-S47022-19

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Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (noting that the procedures 

for withdrawal in Anders v. California, 386 U.S. 738 (1967), which apply in 

a direct appeal, provide “greater protection” than a Turner/Finley filing,

which applies in PCRA proceedings or appeals from PCRA proceedings).

Similarly, any discussion of the merits of Appellant’s claims within the 

framework of the PCRA would necessarily implicate varying burdens of proof

between issues raised in the first instance in a trial court, on direct appeal, 

and in a PCRA proceeding and a PCRA appeal. See 42 Pa.C.S. § 9543(a) 

(noting that a PCRA petitioner must plead and prove all requirements for 

eligibility for relief); compare, e,g., Commonwealth v. Brown, 196 A.3d 

130, 144 n.6 (Pa. 2018) (noting that “PCRA proceedings bear some similarities 

to civil actions, including that it is the criminal defendant, rather than the 

Commonwealth, who must initiate the claim and satisfy the required burden 

of proof by a preponderance of the evidence” (citation omitted)), with

Commonwealth v. Enimpah, 106 A.3d 695, 701 (Pa. 2014) (discussing 

Commonwealth’s burden in a suppression hearing to produce evidence and 

prove an accused’s constitutional rights were not violated), and

Commonwealth v. Wright, 116 A.3d 133, 137 (Pa. Super. 2015) (noting 

that the Commonwealth has the burden of proof in a VOP revocation 

proceeding). 

Accordingly, under the unique circumstances of this appeal, we conclude 

that the PCRA court properly dismissed Appellant’s PCRA petition. However, 

in light of our conclusion that Appellant has not established that he is currently 
J-S47020-19; J-S47021-19; J-S47022-19

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or will be serving his second revocation sentence, we decline to opine on the 

merits of the claims raised in this appeal.

1935 MDA 2018

With respect to Appellant’s appeal from the PCRA court’s denial of 

additional library access, we conclude that Appellant’s request for additional 

library access is moot and dismiss this appeal as it relates to Appellant’s claim 

for PCRA relief in 1286 MDA 2018. 

We add that Appellant only contends that this appeal involves a 

collateral order without addressing any of the merits of his claim. Moreover, 

the question of whether a prisoner has access to a law library has not been 

held to be a substantial constitutional right. Rather, as the United States 

Supreme Court has noted, “prison law libraries and legal assistance programs 

are not ends in themselves, but only the means for ensuring a reasonably 

adequate opportunity to present claimed violations of fundamental 

constitutional rights to the courts.” Lewis v. Casey, 518 U.S. 343, 351 

(1996) (citation and quotation marks omitted). The touchstone of any claim 

related to prison library access is “meaningful access to the courts” and a 

defendant must show an actual harm, such as the inability to pursue a legal 

claim based on the lack of library access. See id. 

Here, Appellant fails to demonstrate “any actual injury” as it relates to 

meaningful access to the courts. Accordingly, even assuming we were to 

consider the merits of this appeal, the deficiencies in Appellant’s brief would 

have required dismissal due to his failure to develop any meaningful appellate 
J-S47020-19; J-S47021-19; J-S47022-19

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arguments. See Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 

2010) (reiterating that “when defects in a brief impede our ability to conduct 

meaningful appellate review, we may dismiss the appeal entirely or find 

certain issues to be waived.” (citation omitted)).

784 MDA 2019

Lastly, in 784 MDA 2019, Appellant contends that he is entitled to 

release under Pa.R.Crim.P 521, which governs bail after a finding of guilt. 

However, as noted above, Appellant is currently in custody on a detainer for 

an alleged violation of an intermediate probation sentence when Appellant 

took this PCRA appeal. Our decision does not prevent Appellant from 

requesting the trial court to lift the detainer, as in any case in which a detainer 

is imposed. See Commonwealth v. Dunleavy, 805 A.2d 562, 565 (Pa. 

Super. 2002). Therefore, we affirm the order entered in this appeal to docket 

784 MDA 2019. 

Conclusion

In sum, we affirm the PCRA court’s order in 1286 MDA 2018 because 

Appellant failed to demonstrate that he was, or would have been subject, to 

the terms of the second revocation sentence when he filed the underlying 

PCRA. We dismiss the appeal in 1935 MDA 2018 regarding the order denying 

Appellant additional access to the prison library as moot in light of our decision 

in 1286 MDA 2018 relating to Appellant’s PCRA petition. In the appeal at 784 

MDA 2019, we affirm the order denying Appellant’s request for release 
J-S47020-19; J-S47021-19; J-S47022-19

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pending appeal under Pa.R.Crim.P. 521, because there is no right to release

on bail during the pendency of a PCRA appeal. 

For the above reasons, we affirm the PCRA court’s order in 1286 MDA 

2018. We dismiss the appeal in 1935 MDA 2018 as moot. Order in 784 MDA 

2019 affirmed. Applications for relief denied. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2020