Com. v. Thomas, D.

J-S23025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARNELL THOMAS A/K/A DARYL :
THURSTON :
: No. 1150 EDA 2016
Appellant
Appeal from the PCRA Order Dated April 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013003-2007
BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED JULY 18, 2017
Appellant, Darnell Thomas, a/k/a Daryl Thurston, appeals pro se from
the order denying his petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On June 17, 2011, a jury convicted Appellant of first-degree murder,
kidnapping, possessing an instrument of crime (PIC), abuse of a corpse, and
criminal conspiracy.1 Appellant’s convictions arose from the April 17, 2007
murder of Juan Carlos Rosa in Philadelphia. On June 30, 2011, the trial
court sentenced Appellant to life without parole. The PCRA court
summarized the subsequent procedural posture as follows:
Following imposition of sentencing, [Appellant][ filed a
post-sentence motion, which was denied on July 6, 2011.
1
18 Pa.C.S. §§ 2502(a), 2901, 907, 5510, and 903.
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Subsequent thereto, [Appellant] filed a notice of appeal as well
as a requested Pa.R.A.P. 1925(b) statement. On April 15, 2013,
the Superior Court affirmed the judgment of sentence.
Commonwealth v. Darnell Thomas a/k/a/ Daryl Thurston, (1957
EDA 2011). [Appellant] thereafter filed a petition for allowance
of appeal, which the Pennsylvania Supreme Court denied on
November 13, 2013. (275 EAL 2013).
On November 26, 2014, [Appellant] filed a pro se petition
pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §
9741 et seq. Counsel was appointed to represent him and on
November 25, 2015, counsel filed a no-merit letter and a motion
to withdraw as counsel. This Court thereafter sent [Appellant] a
notice to dismiss pursuant to Pa.R.Crim.P. 907. [Appellant] filed
a response to counsel’s no-merit letter and to the 907 notice.
On April 4, 2016, this Court issued an order denying [Appellant]
PCRA relief and granting PCRA counsel’s motion to withdraw.
[Appellant] thereafter filed a notice of appeal and a requested
1925(b) statement.
PCRA Court Opinion, 7/21/16, at 2.
On appeal, Appellant presents the following seven issues for our
review:
1. Did the PCRA Court err in not addressing the 18 Pa.C.S.A. §
102(a)(1)(4) – Territorial Applicability issue in the correct
context as stated in the initial PCRA?
2. Did the PCRA Counsel (O’Hanlon) fulfill all of the requirements
in accordance with Turner/Finley?
3. Did the PCRA Court err in not acknowledging the prejudice
PCRA Counsel (O’Hanlon) illustrated by not addressing
Appellant’s “layered” claims of ineffective assistance of
counsel in exactitude?
4. Did the PCRA Counsel (O’Hanlon) err not to properly
investigate and/or review the “void” in the record regarding
the prejudice Appellant suffered by his former trial counsel
allowing his case to proceed to trial with the Death Penalty
attached without accomplice liability?
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5. Did the PCRA Counsel (O’Hanlon) err in not investigating
Appellant’s claim of record inconsistencies, unscientific
testimony and bias regarding questionable DNA evidence?
6. Did the PCRA Counsel (O’Hanlon) err by not addressing the
prejudice and duress suffered by Appellant, who was forced to
argue on the record against his former trial counsel,
prosecution and the judge?
7. Did the PCRA Counsel (O’Hanlon) err in not effectuating
Appellant’s legal interests in accordance with Strickland [v.
Washington, 466 U.S. 668 (1984)]?
Appellant’s Brief at 2.
Preliminarily, we recognize that in reviewing the propriety of the PCRA
court’s order denying Appellant relief, we are limited to ascertaining whether
the record supports the determination of the PCRA court and whether the
ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523,
532 (Pa. 2009). We pay great deference to the factual findings of the
PCRA court, “but its legal determinations are subject to our plenary review.”
Id. The PCRA court has discretion to dismiss a petition without a hearing
when the court is satisfied that no genuine issues of material fact have been
raised, no legitimate purpose would be served by further proceedings, and
the petitioner is not entitled on the merits to post-conviction relief. Pa.
R.Crim.P. 909(B). Instantly, because the PCRA court denied Appellant’s
petition without a hearing, we “must examine the issues raised in the PCRA
petition in light of the record in order to determine whether the PCRA court
erred in concluding there were no genuine issues of material fact and in
denying relief without an evidentiary hearing.” Commonwealth v.
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Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008) (internal citation
omitted).
In his first issue, Appellant invokes the provision of the Crimes Code
setting forth its territorial applicability, 18 Pa.C.S.A. § 102, and asserts that
the Philadelphia Court of Common Pleas lacked jurisdiction because “the
assault on the victim occurred in Pennsylvania . . . but the death of the
victim occurred in Trenton, New Jersey.” Appellant’s Brief at 15. This claim
lacks merit because it has been litigated and resolved previously by our
Court. We recently explained:
Before we can address appellant’s claim on its merits, we must
first determine whether the issue has been previously litigated.
A claim that has been previously litigated is not cognizable for
collateral relief. 42 Pa.C.S.A. § 9544(a)(2). The PCRA defines a
matter as having been previously litigated when “the highest
appellate court in which the petitioner could have had review as
a matter of right has ruled on the merits of the issue.” Id.
“[T]he fact that a petitioner presents a new argument or
advances a new theory in support of a previously litigated issue
will not circumvent the previous litigation bar.”
Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super.
2010), citing Commonwealth v. Hutchins, 760 A.2d 50 (Pa.
Super. 2000).
Commonwealth v. Roane, 142 A.3d 79, 94 (Pa. Super. 2016).
In Appellant’s direct appeal, we addressed his jurisdictional argument
and concluded:
Instantly, Appellant openly declared his intent to kill
Victim, struck him with a handgun, and beat him unconscious in
Philadelphia. Appellant and his cohorts wrapped Victim in bed
sheets and plastic before dragging Victim's body to a car. Later,
Victim was found dead in Trenton, New Jersey. Thus,
Appellant’s crimes began in Philadelphia, and his conduct in
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Philadelphia showed complicity in Victim's murder. Therefore,
the Philadelphia Court of Common Pleas had jurisdiction over
Appellant’s criminal case. See 18 Pa.C.S.A. § 102(a)(4),
[Commonwealth v.] Seiders, [11 A.3d 495, 496-497 (Pa.
Super. 2010].
Commonwealth v. Thomas, No. 1957 EDA 2011, 2013 WL 11272742, at
*5 (Pa. Super. Ct. Apr. 15, 2013) (unpublished memorandum). Accordingly,
because Appellant’s first issue has been litigated previously, it lacks merit.
In his next six issues, Appellant assails the effectiveness of PCRA
counsel. In examining such claims, we recognize:
In order to obtain relief on a claim of ineffectiveness of
counsel, a PCRA petitioner must satisfy the performance and
prejudice test set forth in Strickland v. Washington . . . . In
Pennsylvania, we have applied the Strickland test by requiring
that a petitioner establish that (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s
action or failure to act; and (3) the petitioner suffered prejudice
as a result of counsel's error, with prejudice measured by
whether there is a reasonable probability that the result of the
proceeding would have been different. Commonwealth v.
Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). In other
words, prejudice is assessed in terms of whether the petitioner
has shown that the demonstrated ineffectiveness sufficiently
undermines confidence in the verdict. Commonwealth v.
Fletcher, 586 Pa. 527, 896 A.2d 508, 516 n. 10 (2006).
Counsel is presumed to have rendered effective assistance, and,
if a claim fails under any required element of the Strickland
test, the court may dismiss the claim on that basis.
Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010).
Commonwealth v. Montalvo, 114 A.3d 401, 409–10 (Pa. 2015).
Consistent with the foregoing, we have reviewed the parties’ briefs and
the record, and conclude there is no merit to Appellant’s claims of PCRA
counsel’s ineffectiveness. The Honorable Jeffrey P. Minehart, who sat as
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both the trial and PCRA court in this case, has authored an opinion which
capably addresses Appellant’s ineffectiveness of counsel issues, including the
determination that PCRA counsel complied with the requirements of
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). See Trial
Court Opinion, 7/21/16, at 10-11 (“review of PCRA counsel’s no-merit letter
establishes that he complied with the [] requirements. . . . This Court
carefully reviewed counsel’s no-merit letter in conjunction with the entire
record and determined that it complied with the law”). Accordingly, we
adopt the PCRA court’s opinion as our own in affirming the order denying
Appellant’s petition for post-conviction relief. The parties shall attach a copy
of the PCRA court’s July 21, 2016 opinion to any future filings relating to the
merits of this appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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Circulated 06/30/2017 11:25 AM