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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 from the PCRA Order, June 16, 2017, 

in the Court of 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.: FILED JANUARY 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 repeatedly failed to appear for his 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 plea to Persons Not 

to Possess Firearms,[1] with the remaining charges 

nolle prossed. 

1 18 Pa.C.S.A. § 6105(a). 
J. S66037/18 

At the plea hearing, the Court conducted a thorough 

colloquy to ensure that [a]ppellant's decision to plead 

guilty was knowingly, intelligently and voluntarily 

made. Among other things, 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 Thompson were 

in the area of the 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 of the police officers, make eye 

contact, and immediately grab at the 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 officer did 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. It took the officer a few 

seconds, and then the officer recognized 

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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 in the 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 back to that 

black Ford Expedition. 

Recovered from the Ford Expedition's tire 

well, on top of a tire, was a black -in -color 

revolver with wooden grips 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 ineligible to 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). 

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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 responsibility for 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 

eight years' incarceration. ([See notes of 

testimony, 8/13/13 at 12-13.]) 

Appellant did not file a post -sentence motion or direct 

appeal. However, on June 17, 2014, he filed a pro se 

PCRA petition, claiming that he did not receive 

sufficient credit for time served. PCRA counsel 

thereafter was appointed, and on July 27, 2016, in lieu 

of filing an amended PCRA petition, he filed Motion for 

Credit for Time Served. On January 4, 2017, the 

Court denied the 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 he was under 

the false impression that he would receive two years' 

credit for time served, but did not receive two years' 

credit (it was applied to his pre -violation sentence in 

his PWID cases, not to his current Firearms or V.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 full two years' 

credit for time served. 

The Commonwealth did not oppose, and the Court 

granted, an evidentiary hearing to resolve 

[a]ppellant's issues on the record. Appellant, who was 

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no longer incarcerated, failed to attend the scheduled 

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 court ordered appellant to file a concise statement 

of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). 

Appellant filed his timely Rule 1925(b) statement on August 25, 2017, and the 

PCRA court filed its Rule 1925(a) opinion on January 12, 2018. 

Appellant raises the following issues for our review: 

1. Did the [PCRA] court err in denying [appellant's] 

motion for time credit in his concurrent 

sentences in this matter[?] 

2. Did the [PCRA] court err in denying relief based 

on ineffective assistance of counsel for failure to 

alert the court and [appellant] that the 

contemplated credit discussed at [appellant's] 

sentencing would not be applied under the time 

credit regulations consistent with what 

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[appellant] reasonably believed he would be 

credited based on the court's assertions, as 

cited supra, and where this failure to alert the 

court and [appellant] led [appellant] to agree to 

consolidation of his cases for the purpose of the 

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 by the 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 support for the findings in the 

certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) 

(citations omitted). "This Court grants great deference to the findings of the 

PCRA court, and we will not disturb those findings merely because the 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 properly dismissed for failure to prosecute. Pennsylvania Rule of 

Criminal Procedure 908 provides a PCRA petitioner with 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 

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[PCRA] hearing and shall provide the [petitioner] an opportunity to have 

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

In the instant matter, the PCRA court scheduled an evidentiary hearing 

on May 19, 2017, to receive and consider testimony as to whether the 

ineffectiveness of appellant's plea counsel3 induced him to enter an 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 present at 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 for the 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 he did not know appellant's whereabouts 

and that appellant had also failed to show up for a meeting with his parole 

officer two 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. 

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aver that appellant's failure to attend the June 16, 2017 hearing was the result 

of lack of proper notice. Additionally, PCRA counsel previously noted on the 

record that he was in frequent contact with appellant and that they "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 brief at 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 think this 

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, given you ordered a hearing. So if Your 

Honor wants, you can dismiss the case right now. 

Id. at 5. 

Our supreme court has recognized that the 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]ppellant forfeited his right 

to prosecute his PCRA petition[]" in this case. (PCRA court opinion, 1/12/18 

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at 5.) It logically follows that where a petitioner knowingly and repeatedly 

fails to appear for an evidentiary hearing and present evidence on allegations 

set forth in his PCRA petition, he waives any right to litigate these 

underdeveloped claims on appeal. Moreover, absent testimony from appellant 

to support the allegations of ineffectiveness raised in his PCRA petition, the 

PCRA court was free to conclude that appellant has failed to meet his burden 

of proving first prong of the 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 petitioner must establish "first[,] the underlying claim has arguable 

merit; second, that counsel 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 

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