J. 

### S66037/18 NON-PRECEDENTIAL DECISION 

## - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA v. PHILLIP ALLEN, No. 1991 EDA 2017 

### Appellant Appeal 

### fromthe PCRA Order, June 16, 2017, in 

### the Courtof Common Pleas of Philadelphia County Criminal Division at Nos. 

### CP-51-CR-0000070-2012, CP-51-CR-0005939-2010, CP-51-CR-0007583-2010

BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: 

### FILEDJANUARY

### 07, 

### 2019 Phillip Allen appeals 

### from the June 16, 2017 

### order denying his 

### petition filed 

### pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 

### 9541-9546,after he 

### repeatedlyfailedto appear

### forhis

### evidentiary hearing. 

### After careful review, we 

### affirm. The PCRA 

### court summarized the 

### relevant facts and procedural 

### history of

### this case as 

### follows: Appellant was charged 

### with Persons Not to Possess Firearms, Firearms Not to Be Carried 

### without a License, Carrying Firearms on Public 

### Streets or Public Property and Knowing and 

### Intentional Possession

### of a Controlled Substance. On 

### August 13, 2013, 

### [appellant] entered an open 

### guilty pleato Persons Not to Possess 

### Firearms,[1] with the remaining charges 

### nolleprossed.

1 18 Pa.C.S.A. § 

### 6105(a).J. 

### S66037/18

At the plea hearing, the Court conducted a 

### thorough colloquyto ensure

### that [a]ppellant'sdecision to plead 

### guilty was 

### knowingly, 

### intelligently and 

### voluntarily made. Among 

### otherthings, the following facts were set 

### forth on the record as 

### though 

### they would have been presented 

### at

### trial: On December 15th 

### of 2011, Police 

### Officer Tomon and Police Officer Thompsonwere in the area ofthe 900 block of North 18th 

### Street in the 

### city and 

### county of Philadelphia when 

### they observed 

### [appellant], who is seated at the bar 

### of the court, 

### exit a Chinese store, shake 

### the hands of a few 

### individuals, look in the direction ofthe police 

### officers, make eye 

### contact, and 

### immediatelygrab atthe 

### right side of his 

### waistband. 

### [Appellant] continued to

### walk northbound on 18th 

### Street. The 

### officers followed in 

### their vehicle. As 

### Officer Tomon 

### went to 

### exit his vehicle and to ask 

### [appellant] to stop, 

### [appellant] took off running northbound on 18th 

### Street, eastbound on Girard, and then southbound on North 17th 

### Street. During 

### that entire time, the 

### officer was between 15 and 20 

### feet behind 

### [appellant]. [Appellant] continued to grab onto the 

### right side 

### of his 

### waistband. The 

### officerdid lose 

### [appellant] for a small period of 

### time when 

### [appellant] ran behind a house and hid behind a 

### dumpster. 

### [Appellant] then came 

### out from behind the dumpster. At 

### that point the officer observed an 

### object in 

### [appellant's] right hand 

### that was 

### approximately seven to 

### eight inches long. 

### Ittookthe 

### officer afew seconds, and then the 

### officer recognized 

### _2J. 

### S66037/18
it to be a 

### firearm. At 

### that point 

### [appellant] ran behind a Ford Expedition. The 

### officer lost 

### sight of 

### [appellant]. [Appellant] then reappeared from 

### that Ford Expedition 

### with nothing in his 

### right hand. 

### [Appellant] then 

### jumped over a few fences and was stopped inthe area of

### the 1700 block 

### of Ridge 

### [Avenue] in a rear yard. Recovered 

### from 

### [appellant] [were] three packets of crack cocaine. The 

### officer retraced his 

### footsteps backto 

### that black Ford Expedition. Recovered 

### from the Ford 

### Expedition's

### tire well, on top of a 

### tire, was a black-in

### -color revolverwithwoodengrips and a 7.5 inch barrel, .22 caliber model, loaded 

### with five rounds and one spent round. In 

### addition, 

### [appellant] has two 

### prior [possession 

### with intent to 

### deliver a 

### controlled substance ("PWID")2] convictions, making him 

### ineligibleto 

### carry a 

### firearm. One 

### of the CP numbers is 

### CP-51-CR-0007583-2010. THE COURT: Are those facts, 

### correct, 

### [appellant]? [APPELLANT]: Yes. THE COURT: I do accept 

### your 

### guilty plea as being made 

### knowingly, 

### intentionally and 

### voluntarily. [Notes of

### testimony, 

### 8/13/13 at

### 9-11.] On the same date, the parties proceeded to sentencing on the above case, as well as two (2)

2 35 P.S. § 

### 780-113(a)(30). 

## -3J. 

### S66037/18 violation of parole (V.O.P.) cases 

### stemming from his 

### prior PWID convictions. Upon considering all the 

### relevant facts and 

### circumstances, including but not limited to 

### [a]ppellant's accepting 

### responsibilityfor his actions, his young age 

### (22), expression of remorse, 

### familial background and 

### support, as well as the 

### testimony of his 

### sister, the Court imposed a 

### mitigated sentence of 21/2 to 7 

### years' incarceration 

### for Persons Not to Possess 

### Firearms,[Footnote] a 

### concurrent term of 21/2 to 7 

### years' incarceration 

### for V.O.P. 

### at No. 

### 0005939, and a consecutive 

### term of 3

### years' probation 

### for V.O.P. at No. 

### 0007583. 

### ([See notes 

### of

### testimony, 

### 8/13/13 at 

### 3-26.]) [Footnote] The 

### Commonwealth requested a standard guidelines sentence of

### four to 

### eightyears' incarceration. 

### ([See notesof 

### testimony, 

### 8/13/13 at 

### 12-13.]) Appellant did not

### file a post-sentence motion or

### direct appeal. However, onJune 17, 2014, hefiled a

### prose PCRA 

### petition, claiming 

### that he did not receive 

### sufficient credit for time served. PCRA counsel 

### thereafterwas

### appointed, and onJuly27,2016, in lieu of

### filing an amended PCRA 

### petition, hefiled Motion

### for Credit 

### for Time Served. On January 4, 2017, the Court deniedthe 

### motion, but

### permitted counsel to file an amended PCRA 

### petition. On February 6, 2017, counsel 

### for 

### [a]ppellant filed an amended PCRA 

### petition, claiming 

### that: (1) his 

### guilty plea was 

### involuntarily entered because hewas under the false impression

### that he would receive two 

### years' creditfortime served, but did not receive two 

### years' credit 

### (it was applied to his pre

### -violation sentence in his PWID cases, notto his 

### current Firearms orV.O.P. cases); and (2) counsel was 

### ineffective for allowing him to plead 

### guilty under a false 

### impression/failing to 

### inform him 

### that he would not receive a fulltwo

### years' creditfortime served. The 

### Commonwealth did not oppose, and 

### the Court granted, an 

### evidentiary hearing to resolve 

### [a]ppellant's issues onthe record. Appellant, whowas 

## -4J. 

### S66037/18

no longer incarcerated, failed to 

### attend thescheduled hearing on 

### multiple occasions, however, leading to 

### multiple continuances. A final hearing date was scheduled 

### for June 16, 2017, 

### with counsel accepting service 

### for 

### [a]ppellant on the record. On June 16, 2017, despite notice of the 

### evidentiary hearing, 

### [a]ppellant failed to appear. At said hearing, counsel 

### for 

### [a]ppellant indicated 

### that [a]ppellant had also failed to 

### meet with his 

### state parole 

### officer two days earlier. 

### Additionally, the Commonwealth confirmed 

### that [a]ppellant was not in 

### custody, and counsel 

### for 

### [a]ppellant confirmed to the Court 

### that he advised 

### [a]ppellant of his need to 

### attend the hearing. Accordingly, 

### with 

### [a]ppellant knowingly failing to appear, the Court dismissed the PCRA 

### petition for failure to prosecute [on June 16, 

### 2017]. 

### ([See notes of

### testimony, 

### 6/16/17 at

### 3-7.]) PCRA 

### court opinion, 

### 1/12/18 at 1-4 

### (citations to notes 

### of 

### testimony reformatted). On June 20, 2017, 

### appellant filed a 

### timely notice 

### of appeal. On 

### August 16, 2017,the PCRA 

### courtordered

### appellantto file a concise

### statement of 

### errors complained of on appeal, in accordance 

### with Pa.R.A.P. 

### 1925(b). Appellantfiled his

### timely Rule 

### 1925(b) 

### statement on

### August25, 2017, and the PCRA 

### courtfiled its Rule 

### 1925(a) opinion onJanuary 12, 2018. 

### Appellant raisesthe following issues

### forour review:
1. Did 

### the [PCRA] 

### courterr in denying 

### [appellant's] motion 

### for time credit in his 

### concurrent sentences in 

### this 

### matter[?] 2. Did the [PCRA] 

### courterr in denying 

### relief based on 

### ineffective assistance ofcounsel

### forfailureto 

### alert the 

### court and 

### [appellant] 

### that the contemplated 

### credit discussed at 

### [appellant's] sentencingwould not be applied under the

### time credit regulations consistent with what 

## -5J. 

### S66037/18 [appellant] reasonably believed he would be credited based on the court's assertions, as cited 

### supra, and where this 

### failure to 

### alert the 

### courtand 

### [appellant] led 

### [appellant] to agreeto 

### consolidationof his cases

### forthe purposeofthe proposed sentence, which depended on 

### credit for time served to be applied to both his 

### front and back cases, which were to run 

### concurrent to one another? Appellant's 

### brief at 3 

### (full capitalization, citations to case law, and 

### footnote 

### omitted). Proper appellate review of a PCRA 

### court's dismissal of a PCRA 

### petition
is 

### limited to the 

### examination of 

### "whether the PCRA 

### court's determination is supported bythe record and free of legal 

### error." 

### Commonwealth v. 

### Miller, 102 A.3d 988, 992 (Pa.Super. 

### 2014) 

### (citation 

### omitted). "The PCRA 

### court's findings will not be 

### disturbed unless

### there is no 

### supportforthefindings inthe certified 

### record." 

### Commonwealth v.

### Lawson, 90A.3d 1, 4 (Pa.Super. 2014) 

### (citations 

### omitted). "This Court 

### grants great deference to the findings ofthe PCRA 

### court, and wewill not

### disturb those 

### findings merely becausethe record could 

### support a 

### contrary holding." 

### Commonwealth v. 

### Hickman, 799 A.2d 136, 140 (Pa.Super. 2002) 

### (citation 

### omitted). Upon review, we agree 

### with the PCRA 

### court 

### that appellant's PCRA 

### petition was 

### properlydismissed 

### forfailureto prosecute. Pennsylvania Rule of Criminal Procedure 908 provides a PCRA 

### petitionerwith a rule-based 

### right to appear, in person, at 

### the PCRA hearing. Specifically, Rule 908(C) provides 

### that, 

### "[t]he judge shall 

### permit the 

### [petitioner] to appear in person at the


## -6J. 

### S66037/18 [PCRA] hearing and shall provide the 

### [petitioner] an 

### opportunity to have 

### counsel." Pa.R.Crim.P. 908(C) Inthe 

### instant 

### matter, the PCRA 

### court scheduled an 

### evidentiary hearing

on May 19, 2017, to receive and consider 

### testimony as to 

### whether the ineffectiveness ofappellant's plea counsel3 induced him to

### enteran 

### unknowing and 

### involuntary guilty plea. The 

### Commonwealth did not 

### object to 

### this 

### evidentiary hearing. (Notes of

### testimony, 

### 4/7/17 at 2.) The record reflects 

### that appellant was 

### initially presentat the May 19, 2017 

### evidentiary hearing, but left to 

### attend 

### work and did not 

### testify. The PCRA 

### court subsequently continued the hearing to June 2, 

### 2017, and PCRA counsel4 accepted service

on 

### appellant's behalf. 

### Appellant failed to appear 

### forthe 

### evidentiary hearing scheduled 

### for June 2, 2017. Following a second 

### continuance, a 

### third evidentiary hearing was scheduled 

### for June 16, 2017, 

### with PCRA counsel accepting service 

### for appellant on the record. 

### (See notes 

### of 

### testimony, 

### 6/16/17 at 

### 5-6.) Appellant again failed to appear at 

### the hearing. At said hearing, PCRA counsel indicated

### that hedid not know

### appellant'swhereabouts and 

### that appellant had also failed to show up 

### for a 

### meeting 

### with his parole 

### officertwo days 

### earlier. 

### (Id. at

### 3-4.) The 

### Commonwealth, in

### turn, confirmed 

### that appellant was not in custody. 

### (Id. at

### 4.) Notably, PCRA counsel did not

3 

### Appellant was represented during his 

### guilty plea proceedings by Olwyn Conway, Esq.

4 

### Appellant was represented during his PCRA proceedings by his 

### current counsel, Henry McGregor Sias, Esq. 

## -7J. 

### S66037/18

aver

### thatappellant'sfailureto 

### attendtheJune 16,2017 hearingwasthe result of lack of proper notice. 

### Additionally, PCRA counsel 

### previously noted on 

### the record 

### that he was in 

### frequent contactwith appellant and 

### thatthey 

### "text all the

### time[.]" (See notes of

### testimony, 

### 4/7/17 at 3.) 

### Appellant, in

### turn, does not argue on appeal 

### that he was unaware of said hearing or 

### "was otherwise excusably engaged." (PCRA 

### court opinion 

### 1/12/18 at 5 (emphasis 

### omitted);
see 

### also appellant's briefat 

### 6-7.) On the 

### contrary, the record reflects 

### that PCRA counsel advised 

### appellant of his need to 

### testify at the hearing, and conceded 

### that the mandates of Rule 908 were satisfied and the PCRA 

### court had the discretion to dismiss 

### appellant's petition. (Notes of 

### testimony, 

### 6/16/17 at 

### 6.) [PCRA 

### counsel]: Procedurally,Your Honor, I

### thinkthis is the Rule 908 hearing and given

### that [appellant] has failed to appear, 

### there is no need

### for a 907 notice, as 

### far as I know, givenyou ordered a hearing. So ifYour Honor

### wants, you can dismissthe case 

### right now. 

### Id. at 5. Oursupreme

### court has recognized

### thatthe PCRA 

### court"has an essential role in ensuring the 

### timely resolution of PCRA 

### matters" and 

### "[t]he court, not counsel, 

### controls the scope, 

### timing and pace of the proceedings 

### below." 

### Commonwealth v. 

### Renchenski, 52 A.3d 251, 260 (Pa. 

### 2012), citing 

### Commonwealth v. 

### Porter, 35 A.3d 4, 

### 24-25 (Pa. 

### 2012). Given the record before us, we agree 

### with the PCRA 

### court

### that, 

### "[a]ppellantforfeited his 

### right to prosecute his PCRA 

### petition[]" in 

### this case. (PCRA 

### courtopinion, 

### 1/12/18


## -8J. 

### S66037/18
at 5.) 

### It logically follows 

### that where a 

### petitioner knowingly and 

### repeatedly fails to appear

### for an 

### evidentiary hearing and 

### present evidenceon 

### allegations set 

### forth in his PCRA 

### petition, he waives any 

### right to 

### litigate these underdeveloped claimsonappeal. Moreover, absent

### testimonyfromappellant to 

### support the allegations of ineffectiveness raised in his PCRA 

### petition, the PCRA 

### court wasfree to conclude

### that appellant has failed to 

### meet his burden of proving 

### first prong 

### ofthe ineffectiveness 

### test; namely, 

### that the claim has arguable 

### merit. See 

### Commonwealth v. 

### Charleston, 94 A.3d 1012, 1020 (Pa.Super. 

### 2014) 

### (stating, to prevail on a claim of 

### ineffective assistance 

### of counsel, a 

### petitionermust establish

### "first[,]the underlying claim hasarguable 

### merit; second,

### thatcounsel had no reasonable basis 

### for his action or 

### inaction; and 

### third, that Appellant was 

### prejudiced[]" (citation 

### omitted)), 

### appeal denied, 104 A.3d 523 (Pa. 

### 2014). Accordingly, we discern no 

### error on the 

### part of the PCRA 

### court in dismissing 

### appellant's PCRA 

### petition. Order

### affirmed. Judgment Entered.

Joseph D. 

### Seletyn, Prothonotary Date: 

### 1/7/19

_9