J-S32010-17

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*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

CALVIN METZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 3094 EDA 2015

Appeal from the PCRA Order October 2, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0002989-2010

BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 29, 2017

Appellant, Calvin Metz, appeals from the order entered in the 

Philadelphia County Court of Common Pleas, dismissing his first petition 

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

Appellant broke into his estranged wife’s house and removed approximately 

$6,585.00 worth of property. As a result, Appellant was arrested and 

charged with burglary and related offenses. Appellant entered a negotiated 

guilty plea to burglary on September 8, 2010. That same day, the court 

sentenced Appellant to a term of one (1) to two (2) years’ imprisonment, 

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1 42 Pa.C.S.A. §§ 9541-9546. 
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followed by a consecutive term of four (4) years’ probation. Appellant did 

not seek direct review. 

The court held a violation of probation hearing for Appellant on July 2, 

2013. At the hearing, the parties stipulated that Appellant had failed to 

report for probation and changed his residence without notifying his 

probation officer. As a result, the court found Appellant in technical violation 

and revoked probation. On August 29, 2013, the court re-sentenced 

Appellant to a term of five (5) to ten (10) years’ imprisonment for the 

burglary conviction. Appellant filed pro se post-sentence motions, which the 

court denied. Appellant did not seek further direct review, and his judgment 

of sentence became final on September 28, 2013. 

Appellant timely filed a pro se PCRA petition on September 16, 2014, 

and an amended pro se PCRA petition on January 13, 2015. The PCRA court 

appointed PCRA counsel, who subsequently filed a motion to withdraw and 

Turner/Finley2 no-merit letter on July 11, 2015. Appellant filed a pro se

response on August 13, 2015. On September 4, 2015, the PCRA court 

issued notice of its intent to dismiss Appellant’s PCRA petition pursuant to 

Pa.R.Crim.P. 907. Appellant did not respond. The PCRA court denied relief 

and allowed counsel to withdraw on October 2, 2015. The PCRA court 

appointed Attorney Douglas Earl to represent Appellant on October 5, 2015. 

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

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 
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Appellant timely filed a notice of appeal on October 6, 2015. On October 9, 

2015, the PCRA court ordered Appellant to file a concise statement of errors 

complained of on appeal per Pa.R.A.P. 1925(b). Appellant did not comply. 

On March 25, 2016, Appellant filed a “Motion for Remand” with this Court so 

he could file a Rule 1925(b) statement nunc pro tunc. This Court granted 

the motion on April 21, 2016, and directed Appellant to file a Rule 1925(b) 

statement. 

On May 3, 2016, Appellant timely filed a counseled Rule 1925(b) 

statement and an amended Rule 1925(b) statement nunc pro tunc. In his 

amended Rule 1925(b) statement Appellant, for the first time, claimed: 

PCRA counsel was ineffective for failing to request reinstatement of 

Appellant’s direct appeal rights nunc pro tunc so Appellant could challenge 

the discretionary aspects of his sentence; and the court relied primarily on 

Appellant’s prison tapes when it imposed an excessive sentence, which 

overemphasized the need to protect the public and ignored Appellant’s 

rehabilitative needs. Appellant also claimed that he raised a meritorious 

sentencing issue in his PCRA petition.3 

Appellant presents one issue in his brief:

DID THE [PCRA] COURT ERR BY RULING THAT ISSUES 

NOT RAISED IN THE RESPONSE TO THE RULE 907 NOTICE 

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3 Appellant challenged his August 29, 2013 judgment of sentence on several 

grounds in his PCRA petition, but his amended Rule 1925(b) statement fails 

to specify which sentencing issue he wanted to preserve.
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ARE WAIVED?

(Appellant’s Brief at 3). 

Appellant argues this Court should address the issues Appellant raised 

in his amended Rule 1925(b) statement. Appellant baldly asserts he did not 

waive these issues for appellate review. Regarding Appellant’s 

ineffectiveness of PCRA counsel claim, Appellant essentially avers this Court 

should not follow its decision in Commonwealth v. Smith, 121 A.3d 1049 

(Pa.Super. 2015), appeal denied, 136 A.3d 981 (2016), which held that a 

petitioner’s failure to raise an ineffectiveness of counsel claim after receiving 

Rule 907 notice results in waiver of the claim. Appellant, however, fails to 

argue why this Court should abandon its decision in Smith and address the 

merits of this issue. Likewise, Appellant merely restates the sentencing 

issues from his amended Rule 1925(b) statement, but he does not provide 

any supporting argument. Appellant concludes this Court should address 

Appellant’s issues, vacate his judgment of sentence, and remand this case 

for a sentencing hearing. We disagree. 

Our standard of review of a grant or denial of a PCRA petition is limited 

to examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the 

findings of the PCRA court if the record contains any support for those 
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findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal 

denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over 

the PCRA court’s legal conclusions. Commonwealth v. Spotz, 610 Pa. 17, 

44, 18 A.3d 244, 259 (2011). 

A PCRA petitioner must plead and prove his allegation of error has not 

been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n 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 post-conviction 

proceeding.” 42 Pa.C.S.A. § 9544(b). Where PCRA counsel seeks to 

withdraw from representation, the petitioner must preserve any challenge to 

counsel’s ineffectiveness in a response to counsel’s no-merit letter or, if 

applicable, the court’s Rule 907 notice. See Commonwealth v. Pitts, 603 

Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009). A petitioner’s failure to raise an 

ineffectiveness of PCRA counsel claim after receiving Rule 907 notice results 

in waiver of the claim. Id. See also Commonwealth v. Ousley, 21 A.3d 

1238, 1245 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30 A.3d 487 

(2011) (stating Pitts prohibits this Court’s review of petitioner’s 

ineffectiveness of PCRA counsel claim, where issue was raised for first time 

in PCRA appeal). 

A claim that a sentence is manifestly excessive challenges the 

discretionary aspects of sentencing. Commonwealth v. Lutes, 793 A.2d 

949 (Pa.Super. 2002). Objections to the discretionary aspects of sentence 
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are generally waived if they are not raised at the sentencing hearing or 

raised in a motion to modify the sentence imposed at that hearing. 

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal 

denied, 574 Pa. 759, 831 A.2d 599 (2003). “Challenges to the discretionary 

aspects of sentencing are not cognizable under the PCRA.” Commonwealth 

v. Fowler, 930 A.2d 586, 593 (Pa.Super. 2007), appeal denied, 596 Pa. 

715, 944 A.2d 756 (2008).

In the instant case, Appellant timely filed a pro se PCRA petition on 

September 16, 2014, and an amended pro se PCRA petition on January 13, 

2015. The PCRA court appointed PCRA counsel, who subsequently filed a 

motion to withdraw and Turner/Finley no-merit letter. Appellant 

responded to PCRA counsel on August 13, 2015. On September 4, 2015, 

the PCRA court issued Rule 907 notice to Appellant. Appellant did not 

respond. The PCRA court denied relief and allowed counsel to withdraw on 

October 2, 2015. In his amended Rule 1925(b) statement, Appellant, for 

the first time, claimed: PCRA counsel was ineffective for failing to request 

reinstatement of Appellant’s direct appeal rights nunc pro tunc so Appellant 

could challenge the discretionary aspects of his sentence. Appellant did not 

raise this specific allegation of ineffectiveness of PCRA counsel in his August 

13, 2015 response to counsel’s withdrawal petition or in response to the 

PCRA court’s Rule 907 notice. See Pitts, supra. Therefore, Appellant’s 

ineffectiveness of PCRA counsel claim is waived. See id.; Ousley, supra. 
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Appellant’s remaining arguments relate to his August 29, 2013 

judgment of sentence, and it appears Appellant has abandoned these issues 

on appeal. Appellant’s sentencing claims are completely undeveloped and 

vague, consisting of a single conclusory statement that Appellant did not 

waive these issues on appeal, which lacks any cogent nexus between 

relevant law and the facts of this case. Thus, Appellant waived his 

sentencing issues. See Commonwealth v. Johnson, 604 Pa. 176, 985 

A.2d 915 (2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 

165 (2010) (explaining appellant waives issue on appeal where he fails to 

present claim with citations to relevant authority or develop issue in 

meaningful fashion capable of review).4

To the extent Appellant claims the court relied primarily on Appellant’s 

prison tapes when it imposed an excessive sentence, his challenge 

implicates the discretionary aspects of sentencing. See Lutes, supra. 

Appellant failed to raise this argument at the sentencing hearing or in his 

motions to reconsider sentence. Instead, Appellant raised this issue for the 

first time on appeal in his May 3, 2016 amended Rule 1925(b) statement. 

Therefore, Appellant waived his excessive sentence claim on this ground as 

well. See Fowler, supra; Mann, supra. 

Moreover, even if Appellant had properly preserved his issues on 

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4 Appellant waived his ineffectiveness of counsel claim on this ground also. 
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appeal, they would merit no relief and we would affirm based on the PCRA 

court opinions. (See PCRA Court Opinions, filed March 15, 2016, at 1-3, and 

September 2, 2016, at 1-3) (finding: Appellant did not request direct 

appeal; court imposed sentence of five to ten years’ imprisonment after 

Appellant violated probation for burglary; burglary is first degree felony, 

which carries maximum penalty of twenty years’ imprisonment; including 

Appellant’s negotiated sentence of one to two years’ imprisonment, 

Appellant’s sentence is still within lawful maximum; Appellant’s Alleyne5

challenge merits no relief because court did not impose mandatory minimum 

sentence; court properly considered Appellant’s recorded prison statements 

during sentencing hearing because statements were party admissions 

pursuant to Pa.R.E. 803(25); there were no genuine issues of fact which 

required evidentiary hearing). Accordingly, we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/29/2017

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5 Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). 
Circulated 06/09/2017 09:59 AM


Circulated 06/09/2017 09:59 AM