Com. v. Alston, K. ( 2014 )

J-S49007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KHALIAF ALSTON
Appellant No. 1966 EDA 2013
Appeal from the Order Dated June 14, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0700412-2005
BEFORE: OLSON, OTT and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 26, 2014
Appellant, Khaliaf Alston, appeals pro se from the order entered on
June 14, 2013, dismissing his first petition filed under the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court has provided us with a thorough explanation of the
underlying facts and procedural posture of this case:
On March 9, 2005, [Appellant] and his co-defendant, Ernest
[Cannon], were talking with the victim, Mark Williams, at
the intersection of 24th and Somerset Streets in
Philadelphia. Kenneth Hicks, a friend of Williams, walked up
to the men and asked Williams if everything was okay.
Hicks recognized [Appellant] and Cannon from his
neighborhood. When Williams responded that he was okay,
Hicks began to walk away. At that point, he heard Williams
yell for help. Hicks turned around and saw Williams in a
physical struggle with [Appellant and Cannon]. According
to Hicks, [Appellant and Cannon] knocked Williams to the
ground. Hicks then heard multiple gunshots and saw
[Appellant and Cannon] fleeing.
J-S49007-14
Williams died as a result of his injuries. He had sustained
gunshot wounds to the hands, wrist, ankle, foot[,] and
abdomen. The abdominal wound was deemed a contact
wound. Police recovered eight [] spent bullet casings at the
scene.
On March 11, 2005, police went to an apartment [in
Philadelphia], where [Appellant] was staying with his
girlfriend. . . . The police obtained consent to search the
apartment and thereafter recovered the murder weapon, a
.40 caliber handgun, from a toilet inside the apartment.
Ballistics testing established that this weapon [was] the one
that killed Williams.
...
On February 16, 2007, following a bench trial . . . ,
[Appellant] was convicted of third degree murder, criminal
conspiracy, possessing an instrument of crime[,] and
violating . . . the Uniform Firearms Act[.1] On April 12,
2007, [the trial court] sentenced [Appellant] to life
imprisonment [for the] third degree murder [conviction.fn.1].
...
fe sentence was imposed in
accordance with 42 [Pa.C.S.A.] § 9715(a), as he had
been previously convicted of and sentenced for second
degree murder in another matter. . . .
-sentence motion[.
Appellant] then filed an appeal in the Pennsylvania Superior
April 15, 2009. . . . The Pennsylvania Supreme Court
February 23, 2010. [Commonwealth v. Alston, 974 A.2d
1175 (Pa. Super. 2009) (unpublished memorandum) at 1-7,
appeal denied, 989 A.2d 914 (Pa. 2010)].
____________________________________________
1
18 Pa.C.S.A. §§ 2502(c), 903(a), 907, 6106, and 6108, respectively.
-2-
J-S49007-14
On June 21, 2010, [Appellant] filed a pro se PCRA petition
[wherein Appellant raised no cognizable claim for relief.
pro se PCRA petition stated that
issues will be garnered once counsel is appoi
Pro Se PCRA Petition, 6/21/10, at 3.] . . .
The [PCRA] court appointed counsel to represent [Appellant.
However,] PCRA counsel [did not file an amended PCRA
pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc
pro se petition were either without merit or had been
previously litigated, and that there were no additional issues
which could be raised in an amended PCRA petition. On
December 8, 2011, after reviewing the trial record and
petition without a hearing, holding that
the petition had no merit. [Further, even though counsel
had not filed a separate petition to withdraw representation,
the PCRA court also granted counsel leave to withdraw in
the case. Appellant then filed a pro se notice of appeal to
the Superior Court].
. . . On January 23, 2013, the Superior Court vacated the
[concluding] that PCRA counsel did not comply with the
requirements of Turner/Finley, and, therefore, it was
improper for [the PCRA] court to permit counsel to withdraw
under such circumstances. [Commonwealth v. Alston, 64
A.3d 284 (Pa. Super. 2013) (unpublished memorandum) at
1-10].
[The PCRA] court subsequently appointed new PCRA
counsel. [Again, however, appointed counsel failed to file
an amended PCRA petition. Instead, appointed counsel filed
Turner and Finley. Within these filings, counsel declared
that the PCRA court should permit him to withdraw
-3-
J-S49007-14
order entered June 14, 2013, the PCRA] court dismissed the
instant PCRA petition for lack of merit. The court also
permitted PCRA counsel to withdraw.
PCRA Court Opinion, 10/10/13, at 1-4 (some internal footnotes omitted).
Appellant filed a timely, pro se notice of appeal. On June 10, 2013,
the PCRA court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant did not file a Rule 1925(b) statement.
appeal lists the following nine issues:
1. Was trial counsel ineffective for failing to properly
investigate and locate witnesses that would have been
helpful to defense[?]
2. Did the trial court make error when it allowed the
hearsay testimony of Officer Pitts to be permitted[?]
3. Was trial counsel ineffective for advising [Appellant] not
to call witnesses that would have been helpful to [the]
defense[?]
4. Did the trial court err when it denied [a] defense motion
for [mistrial] for improper vouching for the witness by the
prosecutor[?]
trial court acting as [a] fact finder in non-jury trial heard
hearing[?]
6. Was trial counsel ineffective when he filed motion that he
knew would bring out facts about prior cases[?]
7. Did [the] prosecutor commit error when he knowingly
allowed the witness to commit perjury while testifying[?]
-4-
J-S49007-14
8. Was the trial court bias[ed] to [Appellant] where she
made several ingredious [sic] comments during trial and
sentencing but since [Appellant] still does not have access
proving through the record prejudice. Justice demands that
[he] receives transcripts and the prejudice will be shown.
9. Was [Appellant] improperly sentenced to a life sentence
pursuant to 42 Pa.C.S.A. § 9715(a)[?]
a Rule 1925(b) statement of errors complained of on appeal, despite being
included in the
claims on appeal are waived because Appellant did not plead any of the
claims in his PCRA petition.2 42 Pa.C.S.A. § 954 To be eligible for
relief under [the PCRA], the petitioner must plead and prove by a
Commonwealth v. Wilson ppellant
failed to plead [certain] claims [in his PCRA petition], th[ose] issues are
____________________________________________
2
We note that, on appeal, Appellant has not claimed that the PCRA court
-5-
J-S49007-14
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
-6-