Com. v. Davis, M. ( 2015 )


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  • J-S35034-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MICHAEL DAVIS,
    Appellant                  No. 24 EDA 2015
    Appeal from the PCRA Order June 2, 2014
    in the Court of Common Pleas of Delaware County
    Criminal Division at No.: CP-23-CR-0003651-2007
    BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                               FILED JUNE 09, 2015
    Appellant, Michael Davis, appeals pro se from the order dismissing his
    petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
    §§ 9541-9546. We affirm.
    We summarize the factual and procedural history of this case from the
    PCRA court’s opinion and our own independent review of the record as
    follows. On January 20, 2007, the victim, after ignoring the front doorbell
    and the backdoor buzzer, interrupted Appellant as he attempted to enter the
    victim’s residence by using a screwdriver to pry open a bedroom window.
    Appellant ran across the street, entered the office of a nearby construction
    yard, asked for someone named Tony, and then stole a truck from the yard.
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    J-S35034-15
    The victim called the police who searched the area and pursued the truck.
    Appellant led the police on a chase, struck two vehicles, and was arrested
    after being struck by a police car.            The officers found the screwdriver and
    two syringes in Appellant’s possession.
    On April 15, 2008, Appellant waived his right to a jury trial. On the
    same day, the court convicted Appellant of attempted burglary, possession
    of an instrument of crime, receiving stolen property, possession of drug
    paraphernalia, and fleeing or attempting to elude a police officer.1 On June
    10, 2008, the court sentenced Appellant to an aggregate term of not less
    than twenty-five nor more than fifty years’ imprisonment.             The attempted
    burglary was Appellant’s third crime of violence conviction. The trial court
    imposed the mandatory minimum sentence of at least twenty-five years’
    total confinement. (See PCRA Court Opinion, 12/15/14, at 3-4); see also
    42 Pa.C.S.A. § 9714(a)(2).
    Appellant timely filed a counseled direct appeal on July 9, 2008. On
    January 5, 2010, this Court affirmed the judgment of sentence.                  (See
    Commonwealth v. Davis, 
    991 A.2d 355
    (Pa. Super. 2010) (unpublished
    memorandum)).         The Pennsylvania Supreme Court denied leave to appeal
    ____________________________________________
    1
    18 Pa.C.S.A. §§ 901, 907, 3925, 35 P.S. § 780-113(a)(32), and 75
    Pa.C.S.A. § 3733, respectively.
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    on November 3, 2010.          (See Commonwealth v. Davis, 
    9 A.3d 627
    (Pa.
    2010)).
    On January 6, 2011, Appellant timely filed a pro se PCRA petition
    positing claims of constitutional violations, ineffective assistance of counsel,
    illegal sentence, and lack of jurisdiction. The PCRA court appointed counsel
    on January 21, 2011.         On April 26, 2011, counsel filed an application to
    withdraw with a supporting Turner/Finley2 no merit letter. Appellant filed
    pro se amendments to his PCRA petition on August 10, 2011 and December
    2, 2013.
    The PCRA court permitted counsel to withdraw and notified Appellant
    on January 29, 2014 of its intention to dismiss his PCRA petition without a
    hearing pursuant to Pennsylvania Rule of Criminal Procedure 907.           See
    Pa.R.Crim.P. 907. Appellant filed a pro se response on April 21, 2014.
    The PCRA court dismissed the petition on June 2, 2014.         Appellant
    timely appealed on June 19, 2014.3
    Appellant raises the following question for our review:4
    ____________________________________________
    2
    Commonwealth v. Turner, 
    544 A.2d 927
    (Pa. 1988); Commonwealth
    v. Finley, 
    550 A.2d 213
    (Pa. Super. 1988) (en banc).
    3
    Pursuant to the PCRA court’s order, Appellant filed a timely Rule 1925(b)
    statement on August 4, 2014. The court entered its Rule 1925(a) opinion on
    December 15, 2014. See Pa.R.A.P. 1925.
    4
    Appellant’s brief lists one issue with four subparts. (See Appellant’s Brief,
    at 7).    However, he argues his claims as one overarching question
    (Footnote Continued Next Page)
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    []Did the PCRA court commit an error of law, or abuse [its]
    discretion, in permitting PCRA counsel to withdraw with a no
    merit response, when the following underlying issues retained
    merit[:]
    [I.] Should PCRA counsel be found to have
    provided ineffective assistance of counsel when:
    A) [] Counsel refused to investigate,
    plead[,] and attempt to prove the
    ineffectiveness of appellate counsel in
    failing   to    address    trial   counsel’s
    ineffectiveness regarding his failure to
    [thoroughly] prepare and provide proper
    evidentiary testing of a factual account
    by a police officer during the trial?
    B)      Counsel failed to address a layered
    ineffective counsel claim that trial
    counsel erred in failing to present a
    suggestion to the fact finder that they
    find appellant guilty of criminal trespass
    rather than criminal attempted burglary,
    if guilt was to be found at all?
    C)    Counsel erred in failing to argue
    that     appellate     counsel     provided
    ineffective assistance in failing to file a
    reply brief in the direct appeal to counter
    misstatements         made      by      the
    Commonwealth in their brief[,] which
    ultimately found there [sic] way into the
    language of the decision of [this]
    [C]ourt?
    [II.] Should this Court rule the mandatory sentence
    imposed upon Appellant under 42 Pa.C.S.A. [§] 9714
    _______________________
    (Footnote Continued)
    containing two issues with the first issue containing three subparts. (See 
    id. at 10-31).
       Therefore, we have amended his questions to reflect his
    arguments and for ease of reference.
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    [] as an illegal sentence and [render] the entire
    sentence void?
    (Appellant’s Brief, at 7) (most capitalization omitted).
    Before we may address the merits of Appellant’s issues, we must
    determine whether he properly preserved them for our review.                Rule
    1925(b) provides, in relevant part:
    (b) Direction to file statement of errors complained of on
    appeal; instructions to the appellant and the trial court.—
    If the judge entering the order giving rise to the notice of appeal
    (“judge”) desires clarification of the errors complained of on
    appeal, the judge may enter an order directing the appellant to
    file of record in the trial court and serve on the judge a concise
    statement of the errors complained of on appeal (“Statement”).
    *    *    *
    (2) Time for filing and service.—The judge shall allow the
    appellant at least 21 days from the date of the order’s entry on
    the docket for the filing and service of the Statement. Upon
    application of the appellant and for good cause shown, the judge
    may enlarge the time period initially specified or permit an
    amended or supplemental Statement to be filed. . . . In
    extraordinary circumstances, the judge may allow for the filing
    of a Statement or amended or supplemental Statement nunc pro
    tunc.
    (3) Contents of order.—The judge’s order directing the
    filing and service of a Statement shall specify:
    (i) the number of days after the date of entry of the
    judge’s order within which the appellant must file
    and serve the Statement;
    (ii) that the Statement shall be filed of record;
    (iii) that the Statement shall be served on the judge
    pursuant to paragraph (b)(1);
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    (iv) that any issue not properly included in the
    Statement timely filed and served pursuant to
    subdivision (b) shall be deemed waived.
    4) Requirements; waiver.
    *   *    *
    (ii) The Statement shall concisely identify each
    ruling or error that the appellant intends to challenge
    with sufficient detail to identify all pertinent issues
    for the judge
    *     *   *
    (vii) Issues not included in the Statement
    and/or not raised in accordance with the provisions
    of this paragraph (b)(4) are waived.
    Pa.R.A.P. 1925(b)(2), (3), (4)(ii) and (vii); see also Commonwealth v.
    Arrington, 
    86 A.3d 831
    , 849 (Pa. 2014), cert. denied, 
    135 S. Ct. 479
    (2014).
    Here, the record reflects that on June 19, 2014, the trial court issued
    an order in technical compliance with Rule 1925(b) requiring Appellant to file
    a statement “no later than twenty-one (21) days from the date hereof.”
    (Concise Statement Order, 6/19/14, at 1).      The order provided that “any
    issue not properly included in the statement timely filed and served in
    compliance with this order and Pa.R.A.P. No. 1925(b) shall be deemed
    waived.” (Id. at 2) (capitalization omitted and emphasis in original).
    On July 8, 2014, due to Appellant’s limited ability to access the
    appellate rules caused by his incarceration, he requested an extension within
    which to file his Rule 1925(b) statement.      (See Motion for Extension of
    Time, 7/08/14, at 1).     The PCRA court granted him an extension and
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    required Appellant to file a statement “no later than thirty (30) days from
    July 8, 2014.” (Concise Statement Order, 7/09/14, at unnumbered page 1).
    The order provided that “any issue not properly included in the statement
    timely filed and served in compliance with this order as well as Pa.R.A.P. No.
    1925(b) shall be deemed waived.”                (Id. at unnumbered page 2)
    (capitalization omitted and emphases in original). Appellant filed his timely
    concise statement on August 4, 2014.
    Here,   Appellant’s   claim   that   PCRA   counsel   provided   ineffective
    assistance of counsel is not included in his Rule 1925(b) statement. (See
    Appellant’s Statement of Matters Complained of on Appeal, 8/04/14, at 1-2).
    Instead, he merely asserts that trial counsel was ineffective.         (See id.).
    Accordingly, all of Appellant’s claims of ineffectiveness of PCRA counsel are
    waived. See Pa.R.A.P. 1925 (b)(4)(vii); Arrington, supra at 849.
    Moreover, they would not merit relief.
    Our standard of review is well-settled:
    [A]n appellate court reviews the PCRA court’s findings of
    fact to determine whether they are supported by the record, and
    reviews its conclusions of law to determine whether they are free
    from legal error. The scope of review is limited to the findings of
    the PCRA court and the evidence of record, viewed in the light
    most favorable to the prevailing party at the trial level.
    Commonwealth v. Freeland, 
    106 A.3d 768
    , 775 (Pa. Super. 2014)
    (citation omitted).
    A PCRA petitioner is eligible for relief if the claim is cognizable under
    the PCRA and has not been previously litigated or waived. See 42 Pa.C.S.A.
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    J-S35034-15
    §§ 9543 and 9544; see also Commonwealth v. Ligons, 
    971 A.2d 1125
    ,
    1137 (Pa. 2009). “We also note that a PCRA petitioner is not automatically
    entitled to an evidentiary hearing.    We review the PCRA court’s decision
    dismissing a petition without a hearing for an abuse of discretion.”
    Commonwealth v. Miller, 
    102 A.3d 988
    , 992 (Pa. Super. 2014) (citation
    omitted).
    To succeed on an ineffective assistance of counsel claim, a petitioner
    must overcome the presumption that counsel is effective and demonstrate
    that counsel’s deficient performance prejudiced him.      See Strickland v.
    Washington, 
    466 U.S. 668
    , 687 (1984); Commonwealth v. Bennett, 
    57 A.3d 1185
    , 1195 (Pa. 2012). An appellant must demonstrate that: (1) his
    underlying claim is of arguable merit; (2) counsel had no reasonable
    strategic basis for his action or inaction; and (3) the appellant suffered
    actual prejudice as a result. See Commonwealth v. Pierce, 
    527 A.2d 973
    ,
    975 (Pa. 1987). A failure to satisfy any prong of the Pierce test will require
    rejection of the claim.   See Commonwealth v. Spotz, 
    84 A.3d 294
    , 311
    (Pa. 2014).
    In Appellant’s first claim, he argues that he received ineffective
    assistance of counsel because his PCRA counsel failed to investigate, plead
    and attempt to prove trial counsel’s failure to impeach Colwyn Borough
    Police Officer Steven Sibbett’s testimony. (See Appellant’s Brief, at 10-21).
    The PCRA court properly found that Appellant’s Rule 1925(b) statement was
    too vague to allow for meaningful review where it did not identify the
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    testimony. (See PCRA Ct. Op., at 16); see also Pa.R.A.P. 1925(b)(4)(ii).
    Appellant’s claim would be waived for that reason as well. Furthermore, the
    record supports the court’s determination that Appellant failed to plead and
    prove all three prongs of the Pierce test where trial counsel in fact
    challenged Officer Sibbett’s testimony and there was overwhelming evidence
    identifying Appellant as the perpetrator.    Appellant’s first claim would not
    merit relief.
    In his second claim, Appellant argues that he received ineffective
    assistance of counsel because PCRA counsel failed to address trial counsel’s
    failure to argue that the evidence was sufficient for criminal trespass but not
    attempted burglary.      (See Appellant’s Brief, at 21-24).   Our independent
    review of the record reveals that this Court addressed the merits of
    Appellant’s sufficiency argument on direct appeal. (See 
    Davis, supra
    at *6
    (holding that “Appellant’s attempted burglary conviction was supported by
    adequate evidence[.]”)).       Accordingly, there is no arguable merit to
    Appellant’s sufficiency claim.   Additionally, the PCRA court properly found
    that trial counsel did attack the legal sufficiency of the attempted burglary
    charge during closing argument.      (See PCRA Ct. Op., at 27).    The record
    belies Appellant’s claim. Therefore, Appellant has failed to plead and prove
    the arguable merit prong of the Pierce test where the record contradicts
    Appellant’s instant argument.      Appellant’s second claim would not merit
    relief.
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    In his third claim, Appellant argues that he received ineffective
    assistance of counsel from PCRA counsel because he failed to argue that
    direct appeal counsel did not file a reply brief to address a new matter in the
    direct appeal, which resulted in this Court adopting the Commonwealth’s
    factual misstatements that his hand was inside the home. (See Appellant’s
    Brief, at 25-28). Again, the PCRA court properly found that Appellant’s Rule
    1925(b) statement was too vague to allow for meaningful review where it
    did not identify the alleged misstatements. (See PCRA Ct. Op., at 38); see
    also Pa.R.A.P. 1925(b)(4)(ii). Furthermore, the record supports the court’s
    determination that Appellant failed to plead and prove all three prongs of the
    Pierce test where the victim testified repeatedly that Appellant’s hand was
    underneath the open window.
    Accordingly, we would find no abuse of discretion in the PCRA court’s
    denial of relief on Appellant’s first issue even were it not waived.
    In his remaining issue, Appellant argues that the imposition of a
    mandatory minimum sentence is illegal pursuant to Alleyne v. United
    States, 
    133 S. Ct. 2151
    (2013).        (See Appellant’s Brief, at 30-31).    We
    disagree.
    “[W]e note that issues pertaining to Alleyne go directly to the legality
    of the sentence . . . [and] are questions of law[.] . . . Our standard of review
    over such questions is de novo and our scope of review is plenary.”
    Commonwealth v. Cardwell, 
    105 A.3d 748
    , 750 (Pa. Super. 2014)
    (citations omitted).
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    J-S35034-15
    Furthermore,
    . . . [N]either our Supreme Court, nor the United States
    Supreme Court has held that Alleyne is to be applied
    retroactively to cases in which the judgment of sentence had
    become final. . . . This Court has recognized that a new rule of
    constitutional law is applied retroactively to cases on collateral
    review only if the United States Supreme Court or our Supreme
    Court specifically holds it to be retroactively applicable to those
    cases.
    Miller, supra at 995 (citations omitted).
    Here, Appellant was sentenced on June 10, 2008. This Court affirmed
    the judgment of sentence on January 5, 2010, and our Supreme Court
    denied allocator on November 3, 2010.              Appellant did not seek a writ of
    certiorari from the United States Supreme Court.             Therefore, Appellant’s
    judgment of sentence became final on February 1, 2011, when the period for
    him to file a petition for a writ of certiorari expired.       See 42 Pa.C.S.A. §
    9545(b)(3).      As already noted, Alleyne was not decided until 2013.
    Accordingly, Alleyne does not apply to Appellant.            See Miller, supra at
    995.5
    Order affirmed.
    ____________________________________________
    5
    We note that “[n]o Pennsylvania case has applied Alleyne to sentences
    enhanced solely by prior convictions.” Commonwealth v. Lane, 
    81 A.3d 974
    , 976 n.5 (Pa. Super. 2013), appeal denied, 
    92 A.3d 811
    (Pa. 2014).
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/9/2015
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