J-S68022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT DIXON

Appellant No. 25 WDA 2016

Appeal from the PCRA Order dated November 30, 2015

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000239-2013

BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 27, 2016

Pro se Appellant, Robert Dixon, appeals from the order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

On October 25, 2012, at approximately 10:00 P.M., Appellant and/or 

an unidentified accomplice called from a cell phone for a food delivery from a 

Chinese restaurant in Erie. N.T., 9/17/13, at 19, 22-25. When the delivery 

driver arrived, Appellant held him at gunpoint and robbed him. Based on a 

description given by the victim of his assailant, a police detective prepared a 

photographic array that included photographs of Appellant and of other 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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individuals similar in appearance. Id. at 31-32, 36-37, 39-40. Without 

hesitation, the delivery driver identified Appellant.

At Appellant’s hearing on his omnibus pretrial motion before the 

Honorable Ernest J. DiSantis, Jr., the police detective testified that when he 

investigated the cell phone number that was used to place the food delivery 

order with the Chinese restaurant, he learned that the number belonged to 

Jeffrey Steele,1 who then reported that someone named “Rob” had stolen his 

cell phone. N.T., 6/26/13, at 21-23. The detective testified that Mr. Steele 

gave a general description of “Rob,” which matched the description given by 

the delivery driver of his attacker. Id. at 23. According to the detective, 

Mr. Steele stated that he believed that “Rob” had just been arrested, which 

led the detective to search recent police reports for an arrestee whose 

appearance aligned with the delivery driver’s and Mr. Steele’s overlapping 

descriptions. Id. The detective thereby discovered Appellant, Robert Dixon. 

Id.2

Appellant’s counsel objected to the detective’s testimony about how 

Mr. Steele described “Rob” to police on the basis that Mr. Steele was not 

present to testify as to what he told the detective. N.T., 6/26/13, at 23. 

Although the court noted that Mr. Steele did not have to be present, it still 

____________________________________________

1 Mr. Steele did not testify at any point in these criminal proceedings.

2 None of this information from this hearing was introduced during 

Appellant’s jury trial. See generally N.T., 9/17/13.
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sustained the objection. Id. Appellant’s counsel then clarified that he was 

“not objecting to the way the investigation proceeded” but to the “specific 

facts from that conversation.” Id. After that explanation, the court 

reversed its ruling and deemed the detective’s recollection of Mr. Steele’s 

description of “Rob” to be admissible for purposes of this hearing. Id. 

However, the court decided that no additional information on this subject 

was needed, as there was “enough to give us a backdrop.” Id. The court 

then directed the testimony towards the next step in the detective’s 

investigation.

Ultimately, the court denied the omnibus pretrial motion regarding the 

identification testimony, and, on September 18, 2013, following trial by a 

jury before the Honorable William R. Cunningham,3 Appellant was convicted 

of robbery, theft by unlawful taking, receiving stolen property, and 

possession of a weapon.4 On November 26, 2013, Appellant was sentenced 

____________________________________________

3 On December 21, 2012, Appellant applied for a public defender, and one 

was assigned. On February 13, 2013, Appellant filed a pro se “Ineffective 

Assistance of Counsel Motion.” On February 15, 2013, his public defender 

petitioned to withdraw as counsel of record and to schedule a pro se

colloquy. On February 22, 2013, the trial court denied both the public 

defender’s petition to withdraw and the pro se “Ineffective Assistance of 

Counsel Motion,” which the trial court “treat[ed] as a motion for 

appointment of new counsel.” Order, 2/22/13. On August 6, 2013, 

Appellant filed a second pro se “Ineffective Assistance of Counsel Motion.” 

There is no indication on the docket of any response to this second motion. 

The same public defender represented Appellant during his trial.

4 18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 3925(a), and 907(b), respectively.
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to incarceration for a period of 10 years and 9 months to 21 years and 6 

months. Because Appellant had previously been convicted of robbery, which 

is a first-degree felony and a statutorily-defined “crime of violence,” this 

sentence included a mandatory minimum term of incarceration pursuant to 

the Sentencing Code, 42 Pa.C.S. § 9714(a) (“Sentences for second and 

subsequent offenses”). See id. § 9714(g) (defining “crime of violence” to 

include robbery); N.T., 11/26/13, at 7-9, 22.5

Appellant filed a direct appeal, and this Court affirmed the judgment of 

sentence on August 22, 2014. Commonwealth v. Dixon, No. 88 WDA 

2014 (Pa. Super., Aug. 22, 2014) (unpublished memorandum). Appellant’s 

petition for allowance of an appeal by the Supreme Court of Pennsylvania 

was denied on February 17, 2015. Commonwealth v. Dixon, 109 A.3d 

678 (Pa. 2015).

Appellant filed this timely pro se6PCRA petition on September 10, 

2015, alleging that his trial counsel “failed to conduct thorough questioning 

____________________________________________

5 Appellant had two prior convictions for robbery. However, because 

Appellant received concurrent sentences on the same day for both earlier 

robberies, the trial court in the underlying action decided to treat those two 

previous first-degree robbery convictions as if they were only one prior 

conviction. N.T., 11/26/13, at 7-9, 21. Thus, when sentenced in the current 

case, Appellant had only one “strike” against him instead of two.

6 On September 14, 2015, the PCRA court appointed private counsel to 

represent Appellant; PCRA counsel was given seven weeks thereafter to file 

a supplemental PCRA petition. However, before that time period expired, 

PCRA counsel petitioned for leave to withdraw as counsel on October 27, 

(Footnote Continued Next Page)
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at [the] preliminary [hearing] on how [the Detective] conducted his 

investigation, or how used [sic] the identification from a witness that was 

not present at any court proceeding.” PCRA Pet., 9/10/15, at 4. Appellant 

also challenged the photographic array, claiming that his photograph was 

the only one in the array in which the individual had braids, after the victim 

had already described his assailant to the police as having braids or 

dreadlocks. Id. Appellant continued that he intended to assert: “1) 

ineffective assistance of counsel 2) Confrontation Clause violation 3) hearsay 

rule violation 4) withholding exculpatory evidence 5) prosecutorial 

misconduct (erroneous photo array) 6) abusive discretion (allowance of 

erroneous photo array).” Id. Finally, Appellant requested “full discovery 

packets,” including a copy of the photographic array, and “preliminary 

hearing transcripts.” Id. at 7.

On November 10, 2015, the PCRA court filed a “Notice of Intent to 

Dismiss PCRA Pursuant to Pa. R. Crim. P. 907.” In this Rule 907 Notice, the 

court first addressed Appellant’s claim of ineffective assistance of counsel —

specifically, Appellant’s contention that his trial counsel was ineffective for 

(Footnote Continued) _______________________

2015. No action was taken by the PCRA court on this petition at that time, 

and it held no hearing pursuant to Commonwealth v. Grazier, 713 A.2d 

81 (Pa. 1998) (holding that when a first-time petitioner indicates in his pro 

se PCRA petition that he does not wish to be represented by an attorney, the 

PCRA court must conduct a hearing to elicit information regarding waiver of 

counsel under Pa.R.Crim.P. 121 before permitting the petitioner to proceed 

pro se); as discussed below, the court later granted PCRA counsel 

permission to withdraw after Appellant said he wished to proceed pro se. 
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failing to challenge the photographic lineup that the victim used to identify 

Appellant:

[Appellant’s] argument is belied by the record. . . . [O]n May 10, 

2013, [trial counsel] filed a Motion to Suppress, challenging the 

photographic line up presented to the victim for identification 

purposes. . . . After a hearing during which [trial counsel] 

thoroughly cross-examined the Commonwealth’s witnesses, the 

Court denied the Motion to Suppress. . . . [Appellant’s] claims 

related to [trial counsel’s] effectiveness as counsel are without 

merit.

Rule 907 Notice, 11/10/15, at 3-4.

The PCRA court stated that “[t]he remaining claims raised by 

[Appellant] are previously litigated or waived,” including that “the Court 

abused its discretion in failing to suppress the photo lineup used by the 

victim to identify [Appellant] as the perpetrator of the crimes.” Rule 907 

Notice, 11/10/15, at 4. The court characterized Appellant’s claims of a 

Confrontation Clause violation, hearsay rule violation, and errors regarding 

the withholding of exculpatory evidence and prosecutorial misconduct as 

“bald claims” and rejected them. Id. The court added that the PCRA 

petition “is also the first time [Appellant] raises these claims.” Id. at 5. The 

PCRA court concluded that Appellant’s “claims are waived and/or meritless.” 

Id.

Under Rule 907, “[t]he defendant may respond to the proposed 

dismissal within 20 days of the date of the notice.” Pa.R.Crim.P. 907. 

Appellant therefore was required to respond to the Rule 907 Notice by 

November 30, 2015. He gave his “Response to Notice of Intent to Dismiss 
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PCRA Petition Without Hearing” to prison authorities for mailing on 

November 23, 2015, but it was not received by the Erie County Clerk of 

Courts until December 4, 2015. Appellant’s Brief, Exs. “E(2)”-“E(3).” In the 

meantime, on November 30, 2015, twenty days after November 10, 2015, 

the PCRA court denied Appellant’s petition.

On December 30, 2015, Appellant filed the instant pro se appeal.7 On 

January 25, 2016, PCRA counsel filed a notice of intent to file a brief under 

Anders v. California, 386 U.S. 738 (1967), stating that he “does not deem 

any of [Appellant’s] PCRA claims to be cognizable and colorable in that said 

claims have been finally litigated on direct appeal.”8 On February 9, 2016, 

Appellant motioned to proceed pro se with this Court.

On February 22, 2016, this Court remanded for purposes of 

establishing whether Appellant desired to proceed pro se on appeal pursuant 

____________________________________________

7 This Court is required to docket a pro se notice of appeal despite Appellant 

being represented by counsel. Commonwealth v. Williams, -- A.3d --, 

2078 MDA 2015, 2016 PA Super 262, 2016 WL 6900832, *3 (Pa. Super. 

Nov. 23, 2016). On January 5, 2016, the PCRA court ordered a Statement 

of Matters Complained of on Appeal to be filed; the order was served on 

both Appellant and his PCRA counsel. On January 19, 2016, Appellant filed a 

pro se Statement of Matters Complained of on Appeal. However, where an 

appellant is represented by counsel on appeal, his pro se Rule 1925(b) 

Statement is a “legal nullity.” Commonwealth v. Ali, 10 A.3d 282, 293 

(Pa. 2010).

8 We note that a Turner/Finley brief — and not an Anders brief — is the 

appropriate filing in this situation. See Commonwealth v. Widgins, 29 

A.3d 816, 817 n.2 (Pa. Super. 2011) (citing Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988) (en banc)).
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to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On March 11, 

2016, the PCRA court held a colloquy with Appellant on the record in which 

Appellant expressed his desire to represent himself. On March 16, 2016, the 

PCRA court entered an order declaring that Appellant had “knowingly, 

intelligently, and voluntarily waived his right to counsel” and may “proceed 

on a pro se basis.” Order, 3/16/16.

On April 4, 2016, in lieu of a Rule 1925 opinion, the PCRA court 

entered an order stating that “[t]he Notice of Intent which was filed 

November 10, 2015, addresses the issues raised in Appellant’s PCRA 

Petition. To the extent Appellant raises any new issues in his Statement of 

Matters Complained of on Appeal, those matters being raised for the first 

time on appeal are waived.” Order, 4/4/16.

Appellant’s issues, as stated in his brief, are as follows:

[1.] Whether the filing of the [A]ppellant’s [R]esponse to the 

lower Court’s 907 Notice of Intent to Dismiss PCRA Petition was 

filed in the timely manner consistent with the prison “mailbox 

rule.” This rule applies to all petitioners as not to violate one’s 

rights to due process upheld within U.S. Constitutional 

Amendment 5 and 14.

[2.] Whether [A]ppellant was sentenced illegally by the terms 

set within Alleyne v. United States, [133 S. Ct. 2151 (2013)], 

as [Appellant] was sentenced to a mandatory minimum though 

the facts used by the court to impose such mandatory were 

elements of the crime that were “not” proven beyond a 

reasonable doubt by a jury as to violate [Appellant’s] 6th

Amendment rights in conjunction with Due Process of law. 

Petitioner was sentence[d] “after” this said newly recognized 

right was declared. Also see U.S.C.A. 5, 8, and 14 and Pa. 

Const. Art. 1 § 10.
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[3.] Whether the Trial Court erred in not allowing [Appellant] to 

cross-examine witness Jeffrey Steele causing a confrontation 

clause violation as Mr. Steele was an identifying witness [who] 

was “never” present in the court room in order for [Appellant] to 

cross-examine.

[4.] Whether trial counsel was ineffective for [(a)] failure to 

raise the Alleyne claim as [Appellant] was sentenced to a 

mandatory minimum without the necessary elements of the 

crime being submitted to a jury and proven beyond a reasonable 

doubt after this said claim was declared and [(b)] counsel’s 

failure to object to or challenge a violation of the confrontation 

clause as identifying witness Jeffrey Steele was never present in 

the court for [Appellant] to cross-examine.

[5.] Whether [Appellant] has a right to receive the discovery 

notes in order to properly perfect and/or formulate [Appellant’s] 

claims on appeal. This is a violation of the Due Process Clause 

(U.S.C.A. Const. Amend. 5).

Appellant’s Brief at 3-4 (emphasis in original).9

Our standard of review of a PCRA court's dismissal of a PCRA petition 

is limited to examining whether the PCRA court's determination is supported 

by the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super. 2003) (en banc).

Response to the Rule 907 Notice

The first issue raised by Appellant is whether his Response to the Rule 

907 Notice was timely. “[U]nder the ‘prisoner mailbox rule’ a document is 

deemed filed when placed in the hands of prison authorities for mailing.” 

Commonwealth v. Whitehawk, 146 A.3d 266, 268 n.3 (Pa. Super. 2016). 

____________________________________________

9 The Commonwealth did not file a brief.
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However, the prisoner/appellant bears the burden of proving that he, in fact, 

delivered the document within the appropriate time period. 

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). The “cash slip” 

provided by prison authorities to an incarcerated petitioner, noting both the 

deduction from his account for mailing to the clerk of courts and the date of 

the mailing, constitutes sufficient proof of the date of mailing. Id.

Here, Appellant attached to his brief a copy of his prison “cash slip,” 

which shows that a deduction was made from his prison account on 

November 23, 2015, for the mailing of his pro se Response to the Erie 

County Clerk of Courts.10 The PCRA court never addressed the timeliness of 

the Response in any of its filings. See Order, 4/4/16; Opinion, 1/25/16; 

Order, 11/30/15. However, because Appellant has provided proof that he 

placed his Response in the hands of prison authorities for mailing within the 

____________________________________________

10 The “cash slips” provided by prison authorities to Appellant each noted a 

deduction from his account for the cost of postage and the date of that 

deduction. Appellant’s Brief at Ex. “E(2).” Two of the cash slips are labelled 

“Legal” and are dated “11/23/15” in Appellant’s handwriting, but, under the 

section “Business Office’s Space,” they have a stamped date of “Nov 30 

2015.” Id. at Ex. “E(2).” As these two cash slips are marked as “Legal” and 

their handwritten dates correspond with the date that Appellant alleges that 

he mailed his Response, see Appellant’s Brief at 9, we accept the first two 

cash slips as evidence of the date that Appellant gave his Response to prison 

authorities for mailing. We note, however, that Appellant’s response would 

be timely even if we used the stamped date of November 30, 2015. 

Appellant also attached to his brief a letter dated November 22, 2015, and 

addressed to the Erie County Office of Public Defender, which explains the 

presence of the second cash slip for postage labelled “Legal” on November 

23, 2015. Id. at Exs. “A,” “E(2).” 
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20-day period in which he had to respond to the PCRA court’s 907 Notice, 

we deem his Response timely.

The trial court dismissed Appellant’s petition without awaiting receipt 

of Appellant’s Response, and it therefore did not consider the content of that 

Response. In doing so, the trial court erred. Normally, in this situation we 

would remand to the trial court for consideration of the arguments made in 

Appellant’s Response. A thorough review of Appellant’s Response reveals, 

however, that it is mostly nonresponsive to the Rule 907 Notice. Parts of 

the Response raise claims that were not included in Appellant’s petition and 

that therefore were waived. The remainder fails to present any meritorious 

arguments in support of Appellant’s petition. Therefore, rather than 

remand, we shall consider and dispose of Appellant’s remaining issues. 

Legality of the Mandatory Minimum Sentence

The second issue raised by Appellant is whether the mandatory 

minimum aspect of his sentence is illegal in light of Alleyne v. U.S., 133 S. 

Ct. 2151, 2168 (2013), which held that, other than the fact of a prior 

conviction, any fact that increases the penalty for a crime beyond the 

prescribed statutory minimum must be submitted to a jury and proved 

beyond a reasonable doubt.11 

____________________________________________

11 This claim was raised for the first time in Appellant’s Response to the Rule 

907 Notice. Therefore, the PCRA court did not address this issue. A legalityof–sentence claim, however, is always subject to review if the PCRA petition 

(Footnote Continued Next Page)
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Appellant received a mandatory minimum sentence because he 

previously had been convicted of robbery. The courts of the Commonwealth 

and the United States Supreme Court have taken the position that Alleyne 

does not require that such a prior conviction be proven before a jury in order 

to support a mandatory minimum sentence. In Commonwealth v. 

Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en banc), this Court held that 

“[t]he Alleyne decision, therefore, renders those Pennsylvania mandatory 

minimum sentencing statutes that do not pertain to prior convictions

constitutionally infirm insofar as they permit a judge to automatically 

increase a defendant's sentence based on a preponderance of the evidence 

standard” (emphasis added). See also Apprendi v. N.J., 530 U.S. 466, 

490 (2000) (“Other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum 

must be submitted to a jury, and proved beyond a reasonable doubt” 

(emphasis added)); Commonwealth v. Aponte, 855 A.2d 800, 804 (Pa. 

2004). Appellant therefore is not eligible for relief pursuant to Alleyne, and 

his second issue is meritless. See Watley, 81 A.3d at 117.

(Footnote Continued) _______________________

is timely filed. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). 

This issue therefore may be addressed here.
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Right of Confrontation

The third issue raised by Appellant is whether his inability to crossexamine Jeffrey Steele violated his right of confrontation under the Sixth 

Amendment to the United States Constitution. The Confrontation Clause 

applies to both federal and state prosecutions and provides that, “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him. . . .” U.S. Const. amend. IV 

(emphasis added). The PCRA court found this issue to be waived because it 

had not been raised and preserved in the trial court proceedings. Rule 907 

Notice, 11/10/15, at 5. We agree. An issue raised in a PCRA petition will be 

found waived “if the petitioner could have raised it but failed to do so before 

trial, at trial, during unitary review, [or] on appeal.” 42 Pa.C.S. § 9544(b). 

Here, Appellant did not raise this claim of trial court error at any prior level 

of review until this collateral appeal. Therefore, this issue is waived.

Ineffectiveness of Trial Counsel

The fourth issue raised by Appellant is whether trial counsel was 

ineffective for (1) failure to raise the Alleyne claim, and (2) failure to raise a 

Confrontation Clause challenge in association with identifying witness Jeffrey 

Steele.

As noted above, Appellant raised the issue of ineffective assistance of 

counsel for failure to raise the Alleyne claim for the first time in his 

Response to the court’s notice of its intent to dismiss. A petitioner is limited 
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in terms of the issues that may be raised in responding to a Rule 907 notice. 

In Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa. Super. 2014), this 

Court held that after the PCRA court has issued a Rule 907 notice of 

dismissal, a petitioner may not raise new assertions of trial counsel 

ineffectiveness in his response to the notice. Rather, in order to raise 

additional claims of trial counsel ineffectiveness, the PCRA court must grant 

the petitioner leave to amend his petition. See id. Here, like the defendant 

in Rykard, Appellant neither sought nor was granted leave to amend his 

petition to include this claim. See id. Accordingly, Appellant is not entitled 

to relief on this first part of his fourth issue.12 Id.

The second part of Appellant’s fourth issue also is without merit. Mr. 

Steele never testified at any proceedings in this case. He was mentioned 

during the hearing on his omnibus pretrial motion by the investigating police 

detective who had questioned Mr. Steele as the owner of the stolen cell 

phone from which the delivery call was made. See N.T., 6/26/13, at 23. 

The PCRA court noted that during this hearing on the omnibus pretrial 

motion, Appellant’s counsel “thoroughly cross-examined the 

Commonwealth’s witnesses.” 907 Notice, 11/10/15, at 3. The record 

____________________________________________

12 Moreover, Appellant’s ineffectiveness claim based on Alleyne is meritless 

in light of the fact that Appellant is not eligible for relief pursuant to 

Alleyne. “[C]ounsel cannot be deemed ineffective for failing to raise a 

meritless claim.” Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 

2015).
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supports the PCRA court’s observation. See N.T., 6/26/13, 15-21, 24-25, 

37-38, 62-66. Mr. Steele was never called as a witness during Appellant’s 

trial. See generally N.T., 9/17/13. Nor was he directly or indirectly 

referenced at Appellant’s trial. Id.

Appellant’s argument on this point misapprehends the purpose of the 

Confrontation Clause. It is well-settled that —

[t]he Confrontation Clause provides that in all criminal 

prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him. At its most basic 

level, the Sixth Amendment’s Confrontation Clause seeks to 

ensure that the trial is fair and reliable by preserving an 

accused's right to cross-examine and confront the witnesses

against him.

Commonwealth v. Collins, 888 A.2d 564, 575 (Pa. 2005) (emphasis 

added) (internal quotation marks and citations omitted). Because there was 

no evidence by or regarding Mr. Steele at trial, there was no reason to test 

its reliability through cross-examination.

Right to Discovery

The last issue raised by Appellant is whether he has a due process 

right to “discovery notes” that he seeks in order to further his appeal. A 

petitioner’s right to PCRA discovery is governed by Pa.R.Crim.P. 902(E)(1): 

“no discovery shall be permitted at any stage of the proceedings, except 

upon leave of court after a showing of exceptional circumstances.” Appellant 

has not set forth any such exceptional circumstances in either his PCRA 

petition or his brief to this Court. See PCRA Pet., 9/10/15, at 7; Appellant’s 
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Brief at 12-13. Consequently, Appellant has established no right to receive 

such discovery.13

Conclusion

For all of the foregoing reasons, we find that the PCRA court properly 

dismissed Appellant’s petition. Accordingly, we affirm the PCRA court’s order 

of dismissal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/2016

____________________________________________

13 In his brief, Appellant adds that he has also not received “trial and 

sentencing transcripts” and he requests that this Court “grant an Order for 

Motion for Transcripts.” Appellant’s Brief at 22-23. Appellant’s brief does 

not list any issue regarding trial and sentencing transcripts in the Statement 

of Questions Involved, Appellant’s Brief at 3, and this issue therefore is 

waived. Pa.R.A.P. 2116(a) (“No question will be considered unless it is 

stated in the statement of questions involved or is fairly suggested 

thereby”).