Com. v. McCoy, P. ( 2017 )

J-S95037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PHILLIP McCOY, :
:
Appellant : No. 2115 EDA 2015
Appeal from the PCRA Order June 30, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0008542-2008
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 28, 2017
Phillip McCoy (“McCoy”) appeals from the Order dismissing his first
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
In its Opinion, the PCRA court set forth the relevant factual and
procedural history, which we adopt for the purpose of this appeal. See
PCRA Court Opinion, 4/29/16, at 1-6.
On appeal, McCoy raises the following issues for our review:
1. Whether the [PCRA c]ourt erred as a matter of law, in that []
McCoy should have been given a hearing on the merits of his
[Petition], because it contained genuine issues of fact:
a. [W]hether trial counsel was ineffective for the failure to
contact an available potential fact and alibi witness?
1
See 42 Pa.C.S.A. §§ 9541-9546.
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b. Whether [McCoy’s trial counsel] was ineffective for his
failure to object to prejudicial remarks in the
prosecutor’s closing statement?
c. Whether other failures of trial counsel[, to] raise post-
trial and post-sentence motions which may have
prevented an illegal sentence, miscalculations of credit,
as well as preserving issues for appeal, created
ineffective assistance of counsel?
2. Whether court[-]appointed PCRA counsel’s performance was
deficient[,] and thereby denied [] McCoy his right to counsel
in a post-conviction collateral proceeding?
Brief for Appellant at 8.
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court and
the evidence of record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford
no such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
The PCRA court has the discretion to dismiss a petition without a
hearing when the court is satisfied “that there are no genuine issues
concerning any material fact, the petitioner is not entitled to post-conviction
collateral relief, and no legitimate purpose would be served by further
proceedings.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011);
see also Pa.R.Crim.P. 907. “To obtain reversal of a PCRA court’s decision to
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dismiss a petition without a hearing, an appellant must show that he raised
a genuine issue of fact which, if resolved in his favor, would have entitled
him to relief, or that the court otherwise abused its discretion in denying a
hearing.” Paddy, 15 A.3d at 442 (quoting Commonweath v. D’Amato,
856 A.2d 806, 820 (Pa. 2004)). An evidentiary hearing “is not meant to
function as a fishing expedition for any possible evidence that may support
some speculative claim of ineffectiveness.” Commonwealth v. Jones, 811
A.2d 994, 1003 n.8 (Pa. 2002) (citation omitted).
In his first issue, McCoy asserts three separate bases on which he
claims that the PCRA court erred by not granting him an evidentiary hearing
prior to dismissing his Petition. We will address each sub-issue separately.
In his first sub-issue, McCoy contends that his trial counsel should
have investigated McCoy’s alibi defense, and called “key” alibi and fact
witnesses, “if those people exist.” Brief for Appellant at 17-18. McCoy
argues that, based on the record before it, the PCRA court could not have
determined whether trial counsel was ineffective for failing to call potential
fact or alibi witnesses, and erred by not conducting an evidentiary hearing
on this issue. Id. at 19.
In the Turner/Finley2 “no merit” letter, PCRA counsel stated that
McCoy had not provided any information regarding the identity of any of the
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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“key” witnesses whom trial counsel had allegedly failed to interview and call
at trial. Turner/Finley “No Merit” Letter at 12. PCRA counsel further
indicated that, although he had requested this information, McCoy never
responded to his request. Id.3
In its Opinion, the PCRA court addressed McCoy’s first sub-issue, set
forth the relevant law, and determined that an evidentiary hearing was
unnecessary, as McCoy failed to establish any prong of the standard for
determining the ineffectiveness of counsel based on the failure to call a
witness at trial. See PCRA Court Opinion, 4/29/16, at 9-10, 14-15. Viewing
the record in the light most favorable to the Commonwealth, as the
prevailing party at the PCRA level, we agree with the reasoning of the PCRA
court, which is supported by the record and is free of legal error, and affirm
on this basis as to McCoy’s first sub-issue. See id.; see also Jones, 811
A.2d at 1003 n.8 (wherein this Court declined to remand for an evidentiary
hearing when the appellant merely asserted that counsel did not have a
3
Notably, McCoy failed to identify any potential fact or alibi witness in his
pro se PCRA Petition, Response to the PCRA court’s Pa.R.Crim.P. 907 Notice
of its intent to dismiss the Petition, Concise Statement of matters
complained of on appeal, or in his appellate brief. See Commonwealth v.
Lord, 719 A.2d 306, 309 (Pa. 1998) (providing that if an appellant is
directed to file a concise statement of matters to be raised on appeal
pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are
waived); Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super.
2001) (providing that “[a] Concise Statement which is too vague to allow the
court to identify the issues raised on appeal is the functional equivalent of no
Concise Statement at all.”).
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reasonable basis for his lack of action, but made no proffer of evidence as to
counsel’s lack of action).
In his second sub-issue, McCoy contends that the prosecutor’s remarks
in his closing statement were prejudicial and improper, and denied him a fair
trial. Brief for Appellant at 19. McCoy claims that “none of these statements
were objected to, no move for a mistrial was made, and this was never
raised in a post-trial motion.” Id. at 20. McCoy contends that the
prosecutor’s remarks were improper, and that he was prejudiced by them.
Id. McCoy asserts that the PCRA court erred by not conducting an
evidentiary hearing prior to dismissing his Petition because he “raised not
only the claim of prosecutorial misconduct …, but also his [trial] counsel’s
failure to raise this matter in post-trial motions or on appeal.” Id. at 24.
In the Turner/Finley “no merit” letter, PCRA counsel stated that,
although McCoy had failed to identify any improper remark allegedly made
by the prosecutor, PCRA counsel had nevertheless undertaken an
independent review of the notes of testimony of the prosecutor’s closing
argument. Turner/Finley “No Merit” Letter at 12. Based on his review,
PCRA counsel determined that none of the remarks made by the prosecutor
violated McCoy’s rights, or caused prejudice to his case. Id. at 13. PCRA
counsel further determined that trial counsel was not ineffective for failing to
object to the prosecutor’s remarks. Id.
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In its Opinion, the PCRA court addressed McCoy’s second sub-issue,
and determined that an evidentiary hearing was unnecessary, as McCoy had
failed to identify any improper remark allegedly made by the prosecutor in
his closing statement.4 See PCRA Court Opinion, 4/29/16, at 15. Viewing
the record in the light most favorable to the Commonwealth, as the
prevailing party at the PCRA level, we agree with the reasoning of the PCRA
court, which is supported by the record and is free of legal error, and affirm
on this basis as to McCoy’s second sub-issue. See id.; see also Pa.R.A.P.
302(a) (providing that issues not raised in the lower court are waived and
cannot be raised for the first time on appeal).5
In his third sub-issue, McCoy contends that, after sentencing, trial
counsel filed an inadequate post-sentence Motion. Brief for Appellant at 25.
McCoy asserts that the Motion “does not allege problems in the illegality of
sentence, calculation of credit for time served, prosecutorial misconduct, nor
does it properly preserve anything other than the discretionary aspect of
sentencing for appeal.” Id. McCoy claims that his trial counsel should have
raised an illegal sentence claim, because McCoy “was sentenced utilizing a
4
McCoy failed to identify any remark made by the prosecutor in his pro se
PCRA Petition, Response to the PCRA court’s Pa.R.Crim.P. 907 Notice of its
intent to dismiss the Petition, or in his Concise Statement of matters
complained of on appeal.
5
Although McCoy, in his appellate brief, points to four specific remarks made
by the prosecutor, McCoy’s belated efforts are insufficient to overcome his
failure to identify the prosecutor’s objectionable remarks in the PCRA court.
See Pa.R.A.P. 302(a).
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factual predicate of serious bodily injury, which was marked by the jury as
‘yes.’” Id. at 26.6 McCoy argues that the PCRA court erred by dismissing
his Petition without an evidentiary hearing on his claim that his sentence is
unconstitutional under Commonwealth v. Valentine, 101 A.3d 801 (Pa.
Super. 2014).7 Brief for Appellant at 26.
In the Turner/Finley “no merit” letter, PCRA counsel explained that
the sentence imposed was legal because, for each crime, the sentence
imposed was less than the statutory maximum, and within the applicable
standard guideline range. Turner/Finley “No Merit” Letter at 14. Thus,
PCRA counsel concluded that trial counsel was not ineffective for failing to
6
Our review discloses that the jury verdict report included the following
question, which the jury answered in the affirmative: “Does the evidence
establish, beyond a reasonable doubt, that the defendant’s attempt to
commit murder caused serious bodily injury to Angel Carrion?” Verdict
Report, 9/25/09, at 1 (unnumbered).
7
In Valentine, this Court held that, in light of Alleyne v. United States,
133 S. Ct. 2151 (2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc), the trial court could not overcome the constitutional
infirmity of 42 Pa.C.S.A. §§ 9712 and 9713 by permitting the jury, on the
verdict slip, to determine beyond a reasonable doubt whether the appellant
possessed a firearm that placed the victim in fear of immediate serious
bodily injury in the course of committing a theft for purposes of the
mandatory minimum sentencing provisions of section 9712(a), and whether
the crime occurred in whole or in part at or near public transportation, for
purposes of the mandatory minimum sentencing provisions of section
9713(a). Valentine, 101 A.3d at 811-12.
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challenge the legality of McCoy’s sentence. Id. at 15.8
In its Opinion, the PCRA court addressed McCoy’s third sub-issue, set
forth the relevant law, and determined that an evidentiary hearing was
unnecessary, as McCoy’s sentence was not illegal because it fell within the
applicable standard guideline ranges. See PCRA Court Opinion, 4/29/16, at
18-19; see also id. at 19 (wherein the PCRA court further noted that, when
sentencing McCoy, the sentencing court had the benefit of a presentence
investigation report, and closely considered that report, as well as McCoy’s
criminal history, the precise circumstances of the case, McCoy’s
reprehensible and dangerous conduct, his testimony at sentencing, and his
personal circumstances). Viewing the record in the light most favorable to
the Commonwealth, as the prevailing party at the PCRA level, we agree with
the reasoning of the PCRA court, which is supported by the record and is
free of legal error, and affirm on this basis as to McCoy’s third sub-issue.
See id.9
8
PCRA counsel did not address McCoy’s claim that trial counsel was
ineffective for failing to raise a challenge concerning credit for time served.
However, as McCoy’s brief is devoid of any argument on this issue, we deem
it abandoned.
9
Our review of the sentencing Order, as well as the notes of testimony for
the sentencing hearing, discloses no indication that the prosecution
requested, or that the sentencing court imposed, any mandatory minimum
sentence. As such, we must conclude that McCoy’s reliance on Valentine is
misplaced. Moreover, even if a mandatory minimum sentence had been
imposed, it would not be subject to retroactive correction under the auspices
of the PCRA. See Commonwealth v. Ciccone, 2016 Pa. Super. LEXIS 756,
at *14 (Pa. Super. 2016).
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In his second issue, McCoy contends that PCRA counsel was ineffective
because he made no effort to communicate with McCoy after sending McCoy
an introductory letter. Brief for Appellant at 29. McCoy asserts that PCRA
counsel was also ineffective for failing to investigate McCoy’s claims. Id. at
29-30.
In its Opinion, the PCRA court addressed McCoy’s second issue, set
forth the relevant law, and determined that McCoy failed to establish a
layered ineffectiveness claim regarding PCRA counsel because all of McCoy’s
issues lacked merit. See PCRA Court Opinion, 4/29/16, at 20-21. Viewing
the record in the light most favorable to the Commonwealth, as the
prevailing party at the PCRA level, we agree with the reasoning of the PCRA
court, which is supported by the record and is free of legal error, and affirm
on this basis as to McCoy’s second issue. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
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Circulated 02/03/2017 03:44 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0008542-2008
CP-51-CR-0008542-2008 Comm. 1/. Mccoy. Phillip
Opinion
2115 EDA 2015
PHILLIP MCCOY
I
II I I II II I 111111111111111
7440353661
FILED
OPINION APR ~9 2016
SCHULMAN, S.I., J. ~ala/Post 1l1aJ
Office of Judicial Records
Appellant appeals this Court's Order dismissing his Petition filed under the Post-
Conviction Relief Act, 42 Pa. C.S.A. §§ 9541-9546 ("PCRA"). This Court submits the following
Opinion pursuant to Pa. R.A.P. No. 1925 and recommends that Appellant's appeal be denied.
PROCEDURAL BACKGROUND
On September 25, 2009, a jury convicted Appellant of attempted murder, aggravated
assault, violating section 6106 of the Uniform Firearms Act, and possessing an instrument of a
crime. On November 13, 2009, this Court sentenced Appellant to concurrent terms of fifteen (15)
to thirty (30) years' incarceration on the charge of attempted murder, three and one-half (3 12) to
seven (7) years' incarceration on the charge of violating the Uniform Firearms Act, and two and
one-half (2 Yi) to five (5) years' incarceration on the charge of possessing an instrument of a
crime.1
Appellant filed a post-sentence motion on November 18, 2009, which this Court denied
on November 20, 2009. Appellant subsequently filed a direct appeal challenging the sufficiency
of the evidence and on May 23, 2012, the Superior Court affirmed the jury's verdicts and this
1 This Court imposed no sentence on the charge of Aggravated Assault.
Court's judgment of sentence. See Commonwealth v. McCoy, 3632 EDA 2009 (Pa. Super. 2012)
(Memorandum Opinion, J. Fitzgerald).
On October 22, 2012, Appellant filed a timely PCRA Petition. On February 18, 2015,
James R. Lloyd, Esquire was appointed as Appellant's counsel, and on May 12, 2015, counsel
filed a Turner/Finley "no merit" letter and petitioned this Court for permission to withdraw. See
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 379
Pa. Super. 390, 550 A.2d 213 (1988) (en bane).
On May 22, 2015, this Court issued Appellant a notice of dismissal pursuant to Pa. R.
Crim. P. 907, advising that his PCRA Petition would be dismissed within twenty (20) days on
the basis of his counsel's "no merit" letter. On June 4, 2015, Appellant filed a response to this
Court's notice of dismissal, and on June 30, 2015, this Court entered an Order dismissing
Appellant's Petition and granting counsel's request to withdraw his representation.
On July 9, 2015, Appellant filed a notice of appeal, and on August 24, 2015, he filed a
Statement of Matters Complained of on Appeal.
RELEVANT FACTUAL HISTORY
The pertinent facts are summarized in this Court's Rule 1925(a) opinion that was filed on
April 11, 2011, which states:
Appellant was charged with shooting Angel Carrion ("Mr. Carrion") in the early morning
hours of February 3, 2008. At the time of the shooting, Mr. Carrion was working as manager of
the Platinum Club, which is located at 4101 Torresdale Avenue, in the city and county of
Philadelphia, Pennsylvania. The Platinum Club has three floors - a first floor bar, a second-floor
restaurant and bar, and a third-floor dancing area. (See N.T., 9/23/09, pp. 35-38).2
Mr. Carrion testified that at approximately 1 :40 a.m., on February 3, 2008, he was sitting
at the second-floor bar with his female companion when an altercation erupted between two
groups in the restaurant area. The quarrel involved the bartender's sister, who advised Mr.
Carrion that "someone hit her in the bathroom." Mr. Carrion alerted the security guard and
directed that the assailant be escorted from the bar, along with her group of friends. Among this
2
group were Appellant and his fiance, Jessica Lynch Rodriquez. ili.L, 9/23/09, pp. 36-38; N.T.,
9/22/09, pp. 52-56).
While being escorted from the establishment, Appellant approached Mr. Carrion and
demanded a refund for the $10 dollar cover-charge that he paid before entering the premises. As
Mr. Carrion explained:
I was speaking with the female and [Appellant] came up to me, and he was like ..
. 'You better give me my fucking money,' this and this and that. And I looked at
him and said, 'Money? I never took no money. I don't touch no money until the
end of the night.' Then I was like, 'I don't know what you talking about, get out
of my face.' And then I called the bouncer [who] came over and escorted
[Appellant] out.
[Appellant] was screaming, 'Where's my money?' But saying it in a cursing way
and screaming at me. And I'm looking at him like, 'who is this guy? I never seen
him in my life.' He just started screaming at me for his money. I never took no
money. I don't touch no money until the end of the night.3
Q:!.T., 9/23/09, pp. 39-41).
After Appellant was removed from the bar, Mr. Carrion resumed his conversation with
his friend for the next ten (10) or :fifteen (15) minutes, until she advised that she wanted to leave.
Having keys to the first-floor exit, Mr. Carrion offered to escort his friend to this door, which
opened onto the intersection of Torresdale Avenue and Paul Street. The door was made of glass,
and as Mr. Carrion inserted the key inside its lock, he looked through the glass and saw
Appellant and his friends walking southbound on Torresdale Avenue. Upon seeing Mr. Carrion,
Appellant immediately turned from his friends - who continued walking southbound - and
walked toward the door screaming: "There go that bitch-ass nigger right there." Q:!.T., 9/23/09,
pp. 45-48).
Appellant threatened to "light [the] fucking bar up" while Mr. Carrion opened the door
and let his friend exit. As Mr. Carrion explained, Appellant stood alone in the middle of Paul
Street, about six (6) feet from the Platinum Club's front door, shouting obscenities and threats:
I could see [Appellant] facing towards me.... He just started screaming, 'I'll
light this fucking bar up.' When [Appellant] seen me he said, 'There go that bitch-
ass nigger right there.' Exactly when he seen me, that was the first words .... He
said, 'I'll light this fucking bar up.' And that's when I nodded my head, like,
'Yeah, whatever,' you know. And the lady was confused. She was scared. I let
her out. I slammed the door; I locked it.
Q:!.T., 9/23/09, pp. 47-50).
3
After his friend exited, Mr. Carrion immediately turned his back on Appellant and locked
the front door. He then heard two (2) or three (3) "pops," and was shot twice in his back. (NL,
9/23/09, pp. 46-47, 183). Mr. Carrion did not actually see Appellant with a gun, but testified he
was "positive" that Appellant was the person who confronted him both inside and outside of the
bar, shouting obscenities and threats at him. Similarly, after the police had arrived and he was
transported to the hospital, Mr. Carrion gave a Statement to Detective Brian Kelly and identified
Appellant in a photo array as the person who screamed obscenities and threats just seconds
before shots were fired. Q:i.L, 9/23/09, pp. 51, 61, 157-164).4
The Commonwealth also presented the testimony of Philadelphia Police Officer, Erica
5
Coss. Officer Coss was off-duty on the evening of the shooting and had gone to the Platinum
Club around 1 :30 a.m. to celebrate the birthday of her cousin, who is Appellant's fiance. She
arrived at the club before her cousin, and sat by the bar talking to the bartender. Shortly after her
cousin's group arrived, Officer Coss saw Mr. Carrion tell them to leave because of the
altercation near the restaurant area. The officer testified that Appellant subsequently became
"argumentative" and told Mr. Carrion: "If I'm leaving, I want my fucking money back .... Ijust
paid to get in here, I want my fucking money back." (N.T., 9/22/09, pp. 46-52, 57-60).
After her cousin and Appellant were escorted from the premises, Officer Coss remained
inside the bar for an additional ten or fifteen minutes. She left a little after 2:00 a.m. and walked
southbound down Torresdale Avenue, in the direction of her vehicle. As she crossed the
intersection ofTorresdale Avenue and Paul Street, she saw Appellant standing in the middle of
Paul Street "yelling at somebody inside the bar." Although Appellant's friends continued
walking down Torresdale Avenue and were "telling [Appellant] to come on," Appellant
remained in the middle of the street yelling "obscenities." At this point, Officer Coss "walked
right by" Appellant and was about "a foot or two" away from him while he voiced his vitriol.
When she passed Appellant by no more than six feet, the officer heard three consecutive
gunshots and ran for cover in a nearby alley. The shots came from behind her, and in the vicinity
of where Appellant stood, but Officer Coss never actually saw Appellant holding a gun. Q:i.L,
9/22/09, pp. 61-66).6
Detective John Hughes was among the officers who responded to the shooting. He
testified that three (3) shell casings were recovered near the crosswalk on Paul Street, in front of
the shattered glass door of the Platinum Club. A bullet projectile was recovered inside the club,
and there was a bullet hole in the first-floor bar. Q:i.L, 9/22/09, pp. 153-164). Sergeant Jason
Hendershot also responded to the shooting. After interviewing several patrons of the Platinum
Club, he learned that the altercation that occurred inside the premises, just prior to the shooting,
4
involved a group of females who left in a black limousine. He therefore relayed a description of
the limousine and its occupants over police radio. CM, 9/23/09, pp. 4-12).
The limousine, with its occupants, was stopped about forty-five (45) minutes later by
Officer Jerome Jackson, as it pulled up at the 5000 block of Master Street - "almost in front of
[Appellant's] house." Appellant stood outside the vehicle, near the sidewalk, and told the officer
"he was [t]here to pick up his girlfriend." After obtaining Appellant's biographical information
and patting him down for weapons - but finding none - the officer told Appellant he could leave.
The limousine, on the other hand, was secured and ultimately towed, and its female occupants
were transported to the police station to be interviewed. (N.T., 9/23/09, pp. 129-156).
On the basis of Mr. Carrion's and Officer Coss' Statements and photo identifications,
Detective Kelly subsequently obtained a search warrant for Appellant's home, which was
executed at 1 :00 p.m. on February 3, 2008. The police found no firearm inside the residence, but
recovered forty-two (42) live .40 caliber bullets. A few days later, on February 9, 2008, the
police also searched the limousine pursuant to another search warrant, but recovered no firearm.
(N.T., 9/23/09, pp. 17-24, 157-164).7
The Commonwealth's ballistician expert testified that the .40 caliber bullets recovered
from Appellant's home were not the same brand as the shell casings recovered from the shooting
scene. However, because the bullets from inside Appellant's home were .40 caliber, and the
shell casings recovered from the crime scene also were .40 caliber, they all could be fired from
the same .40 caliber gun. The expert further testified that all of the shell casings recovered
outside the Platinum Club were fired from one .40 caliber gun. (N.T., 9/22/09, pp. 187-212).
Last, the parties stipulated that the certified record from the Pennsylvania State Police
states that Appellant purchased a .40 caliber Smith & Wesson firearm in 1998, and purchased
another .40 caliber Smith & Wesson firearm in 2004. The parties further stipulated that
Appellant lacked a valid license to carry a firearm. CM, 9/23/09, pp. 182-186).
2 Only the second and third floors were open at the time of the shooting.
3Mr. Carrion also testified that patrons are patted down by an armed security guard
before entering the Platinum Club, to ensure no weapons are brought inside. (N.T.,
9/23/09, pp. 71-76).
4
Mr. Carrion's sister, Maria Mendez, also was inside the Platinum Club when Appellant
and his friends were escorted from the premises. Ms. Mendez testified that Appellant was
angry at Mr. Carrion because he was "getting thrown out" after having paid $10 to enter
the establishment. According to Ms. Mendez, Appellant was "screaming" inside the bar,
"saying he was going to light up the place." (N.T., 9/23/09, pp. 109-112).
5Officer Coss works in the 181h police district. The Platinum Club is located in the 15th
police district. (N.T., 9/23/09, pp. 46-48).
5
6 Following the shooting, Officer Coss simply drove home. She testified that she had
"proceed[ed] to dial 911, and ... was doing so, [but] saw a police car pulling up and ...
immediately terminated the phone call." Rather than approach the officer and dislose
· what she witnessed, or otherwise offer assistance, Officer Coss just drove home and
never returned to the scene. ili,L, 9/22/09, pp. 65-69, 113-116).
Officer Coss did not come forward and give a Statement until 8:00 a.m. that morning,
after she learned that her cousin had been taken to the police station as a witness, after
she received multiple phone calls from her cousin's mother, and after her cousin was
arrested for lying to the detectives. ili,L, 9/22/09, pp. 115-136). The officer claimed she
was "a little bit fearful" about corning forward because she "had a family member
involved," and because she knew Appellant. However, after she came forward, Officer
Coss identified Appellant as the individual she saw shouting obscenities outside the
Platinum Club just seconds before Mr. Carrion was shot. (Id., pp. 69- 72).
Internal Affairs investigated Officer Coss' failure to timely come forward and disclose
what she witnessed, and the officer was disciplined with a fifteen (15) day suspension
without pay. (Id., pp. 137-144).
7The detective as well obtained a warrant for Appellant's arrest, but Appellant
voluntarily turned himself in before the warrant was executed. ili,L, 9/23/09, p. 179).
(Trial Court Opinion, 4/11/11, at 2- 7, footnotes in original).
At the conclusion of trial, the jury convicted Appellant of attempted murder, aggravated
assault, possessing an instrument of a crime, and violating section 6106 of the Uniform Firearms
Act. ili,L, 9/25/09, pp. 8-15).
DISCUSSION
Appellant's 1925(b) Statement, which contains the same claims as his PCRA Petition,
avers, verbatim, as follows:
NOW COMES, Phillip McCoy, via Pro-Se, respectfully files His preliminary concise
statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b) as follows:
1. Ineffectiveness of pretrial counsel for failure to file appropriate pretrial motions to
suppress, quash or dismiss despite defendants request of counsel to do so.
2. ineffectiveness of pretrial counsel for failing to raise PA rule of criminal
procedure violation rule 529, By the Honorable Judge Oniell at preliminary on
7/3/08, Causing petitioners illegal detention by Judge who lacks jurisdiction As to
6
petitioners bail. Denying petitioner maximum opportunity to prepare a defense,
Putting sanctions on petitioner prior to trial and conviction and taking away
petitioners right to the presumption of innocence.
3. Ineffectiveness of trial counsel for failure to investigate key witnesses, Fact
witnesses that would have been able to demonstrate that petitioner was not
perpetrator of the crimes charged. These fact witnesses had they been contacted
would have testified and had verifiable testimony as to events of the night in
question, That would have rebutted Commonwealths witnesses non coroberating
testimony, These fact witnesses were available for pretrial I trial counsel to testify
at any pretrial I trial proceedings. Counsels neglect in calling any of these fact
witnesses at trial denied petitioner a fair trial as no eyewitnesses or forensic
evidence connects petitioner to the crime.
4. ineffectiveness of trial counsel for failure to object to prosecutors misleading
prejudicial remarks in closing arguments.
5. Ineffectiveness of appellant counsel for failing to raise state created s[p]eedy trial
violation, Rules of criminal procedure rule 600.
6. Ineffectiveness of appellant counsel for not articulating the challenge to
sufficiency of evidence explaining that the commonwealth had not established
any of the specific elements of the offenses charged to petitioner beyond a
reasonable doubt. If not for error of counsel the verdict most certainly would
have been not guilty.
7. Ineffectiveness of appellant counsel for failing to ask for reconsideration of
petitioners sentence, or correcting petitioners sentence and time credited.
8. Ineffectiveness of appellant counsel for not correcting or arguing petitioners pro
se motion, Showing numerous violations of rules of criminal procedure and
procedural due process rights of petitioner.
Appellant additionally alleges that his PCRA counsel was ineffective for the following
reasons:
9. Ineffective 'retained' PCRA counsel['s) ... failure to notify the court appellant
had retained counsel by entering his appearance as counsel of record, failure to
amend PCRA denying appellant meaningful review of additional issues of merit
such as:
A) Ineffective trial counsel, counsel's prejudicial statement in closing denied
appellant meaningful adversarial testing, denying appellant of guaranteed
61h amend[ment] right to effective assistance of counsel role of an
7
advocate. (Anders v. California, 87 S. Ct. 1396). In line with (U.S. v.
Cronic 104 S. Ct. 2039) Cronic (466 U.S 648).
10. Ineffective 'court appointed' PCRA counsel, counsel's failure to raise underlying
issues denying Pro-Se appellant meaningful review in line with (Com v Mostellar,
633 A.2d 615).
A. Legal Standard
The standard when reviewing the denial of post-conviction relief "is limited to examining
whether the lower court's determination is supported by the evidence of record and whether it is
free oflegal error." Commonwealth v. Jones, 590 Pa. 202, 240-241 (2006). "While [appellate
courts] will always defer to [the] PCRA court's factual determinations where supported by the
record, the ultimate question of whether facts rise to the level of arguable merit is a legal
determination." Id. Appellate courts "will not disturb the findings of the PCRA court if they are
supported by the record, even where the record could support a contrary holding." Id. In other
words, the findings of the PCRA court "will not be disturbed unless they have no support in the
certified record." Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super. 2006).
B. PCRA Counsel's Finley Letter
PCRA counsel filed a Turner/Finley letter advising that he "contacted [Appellant] and
reviewed all the documents" concerning Appellant's above-referenced claims, and concluded
that such claims are meritless. Counsel filed a contemporaneous motion requesting permission
to withdraw his representation, which this Court granted.
The Turner and Finley decisions "establish the procedure for withdrawal of court-
appointed counsel in collateral attacks on criminal convictions." Commonwealth v. Pitts, 603
Pa. 1, fn. 1 (Pa. 2009). "Independent review of the record by competent counsel is required
before withdrawal is permitted." Id. "Such independent review requires proof of: 1) A 'no
merit' letter by PCRA counsel detailing the nature and extent of his review; 2) The 'no merit'
8
letter by PCRA counsel listing each issue the petitioner wished to have reviewed; 3) The PCRA
counsel's 'explanation', in the 'no-merit' letter, of why the petitioner's issues were meritless; 4)
The PCRA court conducting its own independent review of the record; and 5) The PCRA court
agreeing with counsel that the petition was meritless." Id.
PCRA counsel's no-merit letter detailed the nature and extent of counsel's review of
Appellant's claims, listed each issue Appellant raised in his PCRA Petition, and explained why
each issue is meritless. Upon independently reviewing the record, this Court agrees with counsel
that Appellant's Petition was meritless, and it therefore dismissed the Petition and granted
counsel's request to withdraw his representation.
C. Appellant's Claims of Error
Appellant's 1925(b) Statement repeats the claims raised in his PCRA Petition, in which
Appellant alleged that his trial and appellate counsel rendered him ineffective assistance. This
Court will address Appellant's claims in the order that Appellant raised them in his 1925(b)
Statement.
"It is well-established that counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel's performance was deficient and that such
deficiency prejudiced him." Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). "[A]
PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence,
that his conviction or sentence resulted from the 'ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." Commonwealth v. Spotz, 624 Pa. 4,
33 (Pa. 2014). "Thus, to prove counsel ineffective, Appellant must demonstrate that: (1) the
underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable
9
basis; and (3) Appellant was prejudiced by counsel's act or omission." Id. "If a petitioner fails to
prove any of these prongs, his claim fails." Spotz, 624 Pa. 4, 33. Moreover, "it is well-settled
that a court is not required to analyze the elements of an ineffectiveness claim in any particular
order of priority; instead, if a claim fails under any necessary element of the ... test, the court
may proceed to that element first." Koehler, 36 A.3d 121, 132.
1. Whether trial counsel was ineffective for failing to file a pretrial motion to
quash, a pretrial motion to dismiss, and a pretrial motion to suppress.
This Court agrees with PCRA counsel that a pretrial motion to quash would have been
meritless because the Commonwealth's evidence supported e primafacie case for charges of
attempted murder, aggravated assault, possessing an instrument of a crime, and violating section
6106 of the Uniform Firearms Act. "At the preliminary hearing stage of a criminal prosecution,
the Commonwealth need not prove the defendant's guilt beyond a reasonable doubt, but rather,
must merely put forth sufficient evidence to establish a prima facie case of guilt."
Commonwealth v. Karenty, 583 Pa. 514, 529 (Pa. 2005) (citations omitted here). "Aprimafacie
case exists when the Commonwealth produces evidence of each of the material elements of the
crime charged and establishes probable cause to warrant the belief that the accused committed
the offense." Id. "Furthermore, the evidence need only be such that, if presented at trial and
accepted as true, the judge would be warranted in permitting the case to be decided by the jury."
Id.
The victim in this case, Mr. Carrion, testified at trial that he quarreled with Appellant
inside the Platinum Club and that Appellant called Mr. Carrion a "bitch-ass nigger" and
threatened to "light up the place." Appellant consequently was ejected from the club. A few
minutes later, Mr. Carrion escorted his friend to a glass exit door and saw Appellant walking
10
outside the premises. Appellant approached Mr. Carrion and again called him a "bitch-ass
nigger" and threatened to "light [the] fucking bar up." After Mr. Carrion let his friend exit by
way of the glass door, he turned his back toward Appellant, heard two (2) or three (3) pops, and
was shot twice in the back. Mr. Carrion subsequently identified Appellant in a photo array as the
person who shouted threats and obscenities at Mr. Carrion just seconds before Mr. Carrion was
shot. (N.T., 9/23/09, pgs. 36-51, 61, 157-164). Independent of any other evidence, Mr.
Carrion's account of the incident supported e prtma facie case against Appellant on charges of
attempted murder, aggravated assault, possessing an instrument of a crime, and violating section
6106 of the Uniform Firearms Act.
Regarding trial counsel's alleged ineffectiveness for failing to file a pretrial motion to
dismiss under Pa. R. Crim. P. 600, this Court agrees with PCRA counsel that Appellant's claim
is meritless.8 Appellant's rule-based claim is not even cognizable under the PCRA. "[T]o be
eligible for PCRA relief, appellant must plead and prove by a preponderance of the evidence that
his conviction resulted from [i]neffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable adjudication of guilt
or innocence could have taken place." Commonwealth v. Dukeman, 565 A.2d 1204, 1206 (Pa.
Super. 1989) (citing 42 Pa. C.S.A. § 9543(a)(2)(ii)). Counsel's purported "ineffectiveness for
failure to file a motion to dismiss due to a violation of Rule [600] has absolutely no effect on the
8 Counsel stated in his Finley letter that he "assume[d] arguendo" that Appellant's claim
"refer[red] to a motion to dismiss pursuant to Rule 600," as Appellant "ha[d] not provided any
information regarding what particular motion to dismiss he contends should have been filed prior
to trial despite a request from [PCRA] counsel."
]]
'truth-determining' process." Id. Accordingly, Appellant's claim warrants "summar[y]
dismiss[al] without a hearing and without ever reaching [its) merits." Id.9
Regarding trial counsel's alleged ineffectiveness for failing to file a pretrial motion to
suppress physical evidence, PCRA counsel stated in his Finley letter that he requested Appellant
to advise "what particular motion to suppress he contends should have been filed prior to trial,"
but that Appellant had "not provided any information" in response to counsel's request.
Notwithstanding Appellant's failure to identify the scope of his claim, PCRA counsel
"assume[ d] arguendo" that Appellant was "referring to a motion to suppress the 40 caliber
bullets recovered from his home pursuant to a search warrant." This Court agrees with counsel
that any such motion would have been meritless.
Police officers obtained a warrant to search Appellant's residence for "[ajny and all
firearms and[/]or ballistic evidence" relating to the shooting. Detective Brian Kelly's affidavit of
probable cause submitted in support of the warrant had stated:
On 2-3-08 at 2am, the complainant [Mr. Carrion] was working as the manager of the
Platinum Club [T)he complainant observed an altercation between 2 groups of males
and females [and] took action to have the parties ejected from the club. While
escorting the groups from the club, the complainant was approached by [Appellant] ....
Appellant began screaming at the complainant demanding a refund. Security personnel
assisted the complainant in removing [Appellant] from the premises. The complainant
then returned to his duties inside the club. At appx. 2: 15am ... the complainant escorted
a customer out the front door of the club at which time he observed [Appellant] standing
in front of the premises, screaming 'I'll light this place up, you punk ass pussy'. The
complainant then locked the door from inside the club and turned to go back into [the]
premises when he heard 3 gunshots. The complainant felt a burning sensation in his
upper back and discovered he had been shot. ...
On the same date, off duty PIO Erica Coss ... was inside the club attending a birthday
celebration for her cousin .... Coss related that she observed the confrontation inside the
9
Appellant's claim would fail on its merits in any event. Plaintiff was arrested on February 18,
2008, two weeks after the shooting incident. As noted in counsel's Finley letter, the docket
reflects (a) that between September 2008 and the commencement of trial on September 21, 2009,
multiple continuances were granted because of the unavailability of defense counsel, and (b) that
365 days of non-excludable time therefore had not accrued by the time of trial.
12
club and that a few moments after ... (Appellant was] ejected from the club, she (Coss)
left the club. She related that once outside the club, she observed (Appellant] standing in
the street in front of the club. She stated that she heard [Appellant] yelling at someone at
the front of the club and that she kept walking towards her vehicle. She stated that as she
walked, she heard 3 gunshots coming from where [Appellant] was standing. She related
that there were no other persons standing where (Appellant] was standing. She related
that she took cover and that when she emerged, [Appellant] was gone.
The scene was processed ... and recovered from the street in front of the Platinum Club
... were [three] 40 caliber S&W spent casings.
PIO Coss was shown a photo array of 8-like photos and positively identified [Appellant]
as the same person ... standing in front of the Platinum Club when the complainant was
shot.
Records check on [Appellant] shows residence as 5014 Master St. Real Estate files
checked with owner of 5014 Master St. as (Appellant].
"The standard for evaluating whether probable cause exists for the issuance of a search
warrant is the totality of circumstances[.]" Commonwealth v. Jones, 542 Pa. 418, 424 (1995)
(citations omitted here). "A magistrate is to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before him, including the veracity and basis
of knowledge of persons supplying hearsay information, there is a fair probability that
contraband of a crime will be found in a particular place." Id. "The information offered to
establish probable cause must be viewed in a common sense, nontechnical manner and deference
must be accorded to the issuing magistrate." Id. "The duty of a court reviewing the decision is
to ensure that the magistrate had a substantial basis for concluding that probable cause existed."
Detective Kelly's affidavit supported that Appellant shot Mr. Carrion, and that Appellant
owned and lived at the residence which the police sought to search. It is reasonable to conclude
there was "a fair probability" that a firearm and/or ballistics evidence relating to the shooting
would be found where the shooter resided. Furthermore, this Court agrees with PCRA counsel
13
that even if the hypothesized motion had any merit and justified exclusion of the bullets, the
remaining evidence easily sustained Appellant's convictlons.l?
2. Whether trial counsel was ineffective for failing to file a motion to modify
bail pursuant to Pa. R. Crim. P. 529.
Contrary to Appellant's representations, his trial counsel filed motions to modify bail
before his preliminary hearing and before trial, and Appellant's claim of error therefore is
meritless. Moreover, "to be eligible for PCRA relief, appellant must plead and prove by a
preponderance of the evidence that his conviction resulted from [i]neffective assistance of
counsel which, in the circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken place." Dukeman,
565 A.2d 1204, 1206 (citing 42 Pa. C.S.A. § 9543(a)(2)(ii)). There is zero evidence that any
failure to obtain further bail modifications - for a defendant charged with attempted murder --
"so undermined the truth-determining process that no reliable adjudication of guilt or innocence
could have taken place." Quoting Dukeman supra.
3. Whether trial counsel was ineffective for failing to investigate "key
witnesses."
PCRA counsel advised in his Finley letter that
(Appellant] has not provided any information regarding the identity of any of the 'key'
fact witnesses that trial counsel failed to interview and call at trial. A request from
undersigned counsel for this precise information has not garnered a response from
petitioner. Accordingly, based on the Petition and available record, undersigned counsel
has been unable to independently identify any witness who was willing to testify for the
10
As counsel noted, the remaining evidence "would still: Place [Appellant] at the scene of the
shooting; Establish that (Appellant] was screaming at Mr. Carrion immediately before the
shooting; Establish that (Appellant] was threatening to 'light up' the club immediately before the
shooting; Establish that (Appellant] left immediately after the shooting; Indicate that Mr. Carrion
was shot with a 40 caliber firearm; Establish, by stipulation, that [Appellant) purchased two 40
caliber firearms before the shooting; and Establish, by stipulation, that [Appellant] did not have a
license to carry a firearm."
14
defense. In addition, the Petition and record do not establish that such a witness (I)
existed, (2) was available to testify for the defense in September of 2009, and (3) was
known to trial counsel.
''To establish counsel was ineffective for failing to call a witness, appellant must show:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew
of, or should have known of, the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have
denied appellant a fair trial." Commonwealth v. Thomas, 615 Pa. 477, 496 (Pa. 2012). "[T]rial
counsel will not be found ineffective for failing to investigate or call a witness unless there is
some showing by the appellant that the witness's testimony would have been helpful to the
defense." Commonwealth v. Michaud, 70 A.3d 862, 868 (2013).
Because Appellant fails to establish any prong of the applicable standard, his claim of
error is meritless.
4. Whether trial counsel was ineffective "for failure to object to prosecutor('s]
misleading prejudicial remarks in closing arguments."
Appellant fails to identify a single remark of the Commonwealth that purportedly was
improper, let alone does he establish that trial counsel's failure to object to such remark had "so
undermined the truth-determining process that no reliable adjudication of guilt or innocence
could have taken place." Appellant's claim of error therefore is meritless.
5. Whether trial counsel was ineffective for failing to file a pretrial motion
asserting a "speedy trial violation" pursuant to Pa. R. Crim. P. 600.
This issue is addressed above and is meritless.
15
6. Whether appellate counsel was ineffective for "not articulating the challenge
to the sufficiency of evidence explaining that the commonwealth had not established any of
the specific elements of the offenses charged to petitioner beyond a reasonable doubt."
A direct appeal alleging there was insufficient evidence to support the "specific elements
of the offenses charged" would have been meritless, and Appellant's claim that his counsel was
ineffective for failing to raise this issue is, therefore, equally meritless.
A person may be convicted of attempted murder if he takes a "substantial step towards an
intentional killing" with a "specific intent to kill." Commonwealth v. Anderson, 538 Pa. 574,
582 (Pa. 1994) (citing 18 Pa. C.S.A. §§ 901(a) and 2502(a)). "A person may be convicted of
aggravated assault ... if he 'attempts to cause serious bodily injury to another, or causes such
injury intentionally, knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life."' Commonwealth v. Matthew, 589 Pa. 487, 491 (2006)
(quoting 18 Pa. C.S. § 2702(a)(l)). A person may be convicted of possessing an instrument of
crime if he "possessed an instrument that is commonly used for criminal purposes, under
circumstances not manifestly appropriate for lawful use, with the intent to employ it criminally."
Commonwealth v. Foster, 651 A.2d 163, 165 (Pa. Super. 1994). A person may be convicted of
carrying a firearm without a license with evidence establishing (a) that he carried a firearm, (b)
"that the firearm was unlicensed, and (c) that where the firearm was concealed on or about his
person, it was outside his home or place of business." Commonwealth v. Parker, 847 A.2d 745,
750 (Pa. Super. 2004).
Viewed in a light most favorable to the Commonwealth, 11 the evidence established that
an angered Appellant had a verbal altercation with the victim and then shot him in the back, and
11
"The standard ... when reviewing the sufficiency of the evidence is whether viewing all the
evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient
16
that Appellant lacked a valid license to carry a firearm. This evidence sustains a finding of each
element of the above-referenced crimes. Moreover, to the extent Appellant claims the evidence
was insufficient to establish that he actually was the shooter, the Superior Court specifically
addressed this issue on direct appeal and held:
Instantly, the jury was free to believe the Commonwealth's evidence .... Mr.
Carrion testified that he saw Appellant and his friends walking on Torresdale A venue as
he was escorting his friend out of the bar. He stated that after Appellant saw him through
the glass doors of the club, he turned away from his friends and walked toward the door,
again screaming at Mr. Carrion. Appellant was alone screaming obscenities. Mr.
Carrion turned away from Appellant and heard three pops as he locked the front door.
He identified Appellant in a photo array and gave a statement to Detective Kelly. He
stated that Appellant was the person who screamed obscenities and threats seconds before
he was shot.
Officer Coss also testified that she saw Appellant yelling at someone inside the
bar. She also stated that she passed Appellant and heard three consecutive gun shots. She
identified Appellant as the person she saw shouting obscenities outside the club just
seconds before Mr. Carrion was shot. The jury was free to believe all, some, or none of
the witnesses' testimony. [citations omitted here].
The trial court found: 'Viewed in a light most favorable to the Commonwealth,
the above evidence and testimony support a finding that Appellant stood outside the front
door of the Platinum Club and shot the victim in the back ... .' Trial ct. Op. at 10. We
Agree.
McCoy, 3632 EDA 2009, pgs. 10-11.
evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt."
Gibbs, 981 A.2d 274, 280-281 (citations omitted here). "[T]he facts and circumstances
established by the Commonwealth need not preclude every possibility of innocence." Id. "Any
doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of fact may be drawn from the
combined circumstances." -Id. "The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence."
Id. "Moreover, in applying the above test, the entire record must be evaluated and all evidence
actually received must be considered." Id. "Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced is free to believe all, part or
none of the evidence." Id.
17
7. Whether appellate counsel was ineffective "for failing to ask for
reconsideration of [Appellant's] sentence, or correcting [Appellant's] sentence and time
credited."
Each of Appellant's sentences- i.e., the 15 to 30 years' incarceration for attempted
murder, the 3Y2 to 7 years' incarceration for violating the Uniform Firearms Act (concurrent),
and the 2112 to 5 years' incarceration for possessing an instrument of a crime (concurrent)- was
within Pennsylvania's statutory limits and guideline ranges. Consequently, any challenge to
Appellant's sentences on direct appeal could only have concerned this Court's exercise of
discretion.
"Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed on appeal absent a manifest abuse of discretion. 11 Commonwealth
v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2015) (citations omitted here). "In this context, an
abuse of discretion is not shown merely by an error in judgment. 11 Id. "Rather, the appellant
must establish, by reference to the record, that the sentencing court ignored or misapplied the
law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision." Id. "An abuse of discretion may not be found merely
because an appellate court might have reached a different conclusion." Commonwealth v. Perry,
612 Pa. 557, 565 (2011). "In determining whether a sentence is manifestly excessive, the
appellate court must give great weight to the sentencing judge's discretion, as he or she is in the
best position to measure factors such as the nature of the crime, the defendant's character, and the
defendant's display of remorse, defiance, or indifference.11 Commonwealth v. Andrews, 720 A.2d
764, 768 (Pa. Super. 1998).
18
"Where pre-sentence reports exist," appellate courts "presume that the sentencing judge
was aware of relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors." Commonwealth v. Devers, 519 Pa. 88,
101-102 (1988). "A pre-sentence report constitutes the record and speaks for itself." Id. at 102.
"[S]entencers are under no compulsion to employ checklists or any extended or systematic
definitions of their punishment procedure." Id. "Having been fully informed by the pre-sentence
report, the sentencing court's discretion should not be disturbed." Id. "This is particularly true ...
in those circumstances where it can be demonstrated that the judge had any degree of awareness
of the sentencing considerations, and there [courts] will presume also that the weighing process
took place in a meaningful fashion." Id.; see also Commonwealth v. Best, 120 A.3d 329, 348-349
(Pa. Super. 2015) (quoting Devers, supra).
This Court conducted a hearing and closely considered the presentence report,
Appellant's criminal history, the precise circumstances of this case, Appellant's reprehensible
and dangerous conduct, Appellant's testimony at sentencing, and Appellant's personal
circumstances. (N.T., 11/13/09). Upon consideration of the above factors, this Court imposed
an aggregate sentence of 15 to 30 years' incarceration on the verdicts arising out of Appellant's
shooting of someone in the back. There is zero indication that this Court "exercised its judgment
for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision," and any appeal challenging this Court's exercise of discretion in sentencing would
have been frivolous.
19
8. Whether appellate counsel was ineffective "for not correcting or arguing
[Appellant's] pro se motion" on direct appeal.
The Superior Court docket indicates that Appellant filed a pro se motion on direct appeal
on March 25, 2011, and that on April 13, 2011, the motion was denied "without prejudice to the
Appellant's right to re-apply for the requested relief via counsel."12 Appellant now claims that
his counsel on direct appeal was ineffective "for not correcting or arguing petitioners pro se
motion, [s]howing numerous violations of rules of criminal procedureand procedural due
process rights of petitioner." However, in neither his PCRA Petition nor in his 1925(b)
Statement does Appellant identify a specific rule or due process right that his counsel failed to
raise - i.e., a right or claim that is in addition to or distinct from those already addressed above in
reference to Appellant's other claims. Because Appellant's above-referenced claims invoking
specific rules of procedure and due process rights are meritless for the reasons already set forth,
his counsel on direct appeal could not have been ineffective for failing to raise them.
9-10. Whether PCRA counsel rendered ineffective assistance.
Appellant alleges his PCRA counsel failed to pursue and develop the claims raised in his
PCRA Petition. As noted, Appellant specifically asserts:
9. Ineffective 'retained' PCRA counsel['s] ... failure to notify the court appellant
had retained counsel by entering his appearance as counsel of record, failure to
amend PCRA denying appellant meaningful review of additional issues of merit
such as:
A) Ineffective trial counsel, counsel's prejudicial statement in closing denied
appellant meaningful adversarial testing, denying appellant of guaranteed
61h amend[ment] right to effective assistance of counsel role of an
advocate. (Anders v. California, 87 S. Ct. 1396). In line with (U.S. v.
Cronic 104 S. Ct. 2039) Cronic (466 U.S 648).
12
Counsel's Finley letter erroneously states that the Superior Court docket does not "reflect[] the
filing of a pro se motion."
20
10. Ineffective 'court appointed' PCRA counsel, counsel's failure to raise underlying
issues denying Pro-Se appellant meaningful review in line with (Com v Mostellar,
633 A.2d 615).
"Where the defendant asserts a layered ineffectiveness claim he must properly argue each
prong of the three-prong ineffectiveness test for each separate attorney." Commonwealth v.
Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations omitted here). "Layered claims of
ineffectiveness are not wholly distinct from the underlying claims, because proof of the
underlying claim is an essential element of the derivative ineffectiveness claim." Id. "[T]he
critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact,
render ineffective assistance of counsel. ... If that attorney was effective, then subsequent counsel
cannot be deemed ineffective for failing to raise the underlying issue." Id.
Because Appellant's myriad claims of ineffectiveness against his trial and direct appeal
counsel are meritless for the reasons already set forth, his layered claims of ineffectiveness
against PCRA counsel also are meritless. 13
CONCLUSION
For the reasons set forth in the foregoing Opinion, this Court's Order dismissing
Appellant's PCRA Petition should be affirmed.
DATE:-``~-
13
Appellant lastly complains that this Court abused its discretion by declining to conduct an
evidentiary hearing pertaining to his PCRA Petition. "A PCRA court is only required to hold a
hearing where the petition, or the Commonwealth's answer, raises an issue of material fact."
Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014). "If a PCRA petitioner's offer of
proof is insufficient to establish a prima facie case, or his allegations are refuted by the existing
record, an evidentiary hearing is unwarranted." Id. As shown above, all of Appellant's claims
either are refuted by the existing record or are unaccompanied by an offer of proof sufficient to
establish a prima facie case. In such circumstances, an evidentiary hearing was unwarranted.
21