J-S18006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

CHRISTOPHER CHARLES FAUST

                            Appellant                 No. 3386 EDA 2015


                Appeal from the PCRA Order November 2, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002079-2008


BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                     FILED APRIL 18, 2017
        Appellant, Christopher Faust, appeals pro se from the order

entered in the Delaware County Court of Common Pleas, denying his first

post-conviction relief petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. As explained

below, we find that Faust is entitled to resentencing on his convictions for

third-degree murder and attempted murder convictions. We affirm the order

in all other respects.

        A prior panel of this Court summarized the relevant factual and

procedural history of this case.1


____________________________________________



    Former Justice specially assigned to the Superior Court.
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      [O]n February 24, 2008, Appellant shot seven times at three
      young men, Anthony Dunn, Joshua LaSalle, and Yahshaw
      Humphrey while they were walking along Sixth Street in Upper
      Darby. Mr. Dunn was killed during the crime, but Mr. Humphrey
      was the intended target. The two victims who survived the
      shooting identified Appellant as the perpetrator, stated that he
      was wearing an orange sweatshirt, and they denied being
      armed. Mr. Humphrey specified that the orange hoodie had an
      Aeropostale logo on the front.

             Another eyewitness, Justine Holley, confirmed that the
      shooter, whom she identified as Appellant, was wearing an
      orange hoodie and described him as holding a large chrome gun
      as he shot at the three victims. After Ms. Holley and Mr. LaSalle
      identified Appellant as the perpetrator during photographic
      arrays, and based upon the fact that Mr. Humphrey branded him
      as the shooter, police obtained an arrest warrant for Appellant
      and a search warrant for his house. Those documents were
      secured on April 3, 2008, and executed that day.

             When he observed police approaching his residence,
      Appellant attempted to escape. Inside his home, police
      recovered the orange Aeropostale sweatshirt, a newspaper
      article about the homicide posted on a bedroom wall, and .22
      caliber ammunition, which had been utilized during the shooting.
      Derek Wood testified that in March 2008, Appellant asked him to
      sell a large chrome gun, which Appellant told Mr. Wood he might
      have used to kill someone.

           Following Appellant’s arrest, since Appellant was seventeen
      and one-half years old, police secured the presence of his
      mother, Doris Faust, at the police station. While Appellant’s
      mother [and adult sister were] in the room, police informed her
      and Appellant that they were investigating a homicide and read
                       _______________________
(Footnote Continued)
1
 In addition to summarizing the relevant factual and procedural history, the
panel adopted the trial court’s recitation of the evidence adduced at trial.
See Commonwealth v. Faust, No. 237 EDA 2011, at 1-4 (Pa. Super., filed
December 7, 2012) (unpublished memorandum). We also adopt the trial
court’s recitation of that proof for the purposes of the instant appeal. See
Trial Court Opinion, 6/29/12, at 2-23.



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      Appellant his Miranda rights. Appellant executed a written
      waiver of those rights, which Mrs. Faust signed as his guardian.
      Police then left the room so Mrs. Faust could consult with her son
      alone. They returned for questioning between twenty to thirty
      minutes later, when Appellant admitted to shooting Mr. Dunn.

            While incarcerated, Appellant was in the same prison as
      Mr. LaSalle, whom Appellant attempted to intimidate. Appellant
      also wrote letters to Mr. Wood that confirmed that he was
      attempting to obtain a retraction of Mr. LaSalle’s identification of
      him as the shooter and that expressed Appellant’s regret at not
      having destroyed the evidence seized with the warrant.

            Before proceeding to the nonjury trial, Appellant litigated
      motions to suppress his statements, the evidence seized with the
      warrant, and the results of the photographic identifications. After
      the February 17, 2010 denial of his motions, Appellant
      proceeded to trial on August 24, 2010. On September 9, 2010,
      Appellant was adjudicated guilty of [third-degree murder,
      attempted murder, aggravated assault, possession of a firearm
      by a prohibited person, carrying an unlicensed firearm,
      possession of an instrument of crime, [] recklessly endangering
      another person] and acquitted of first degree murder.

See Faust, No. 237 EDA 2011, at 1-3.

      For the third-degree murder conviction, the trial court sentenced Faust

to seventeen to forty years’ incarceration, with the first five years of the

sentence served as a mandatory minimum sentence pursuant to 42

Pa.C.S.A. § 9712(a). Additionally, for the attempted murder conviction, the

trial court sentenced Faust to five to ten years’ incarceration, which was also

a mandatory minimum sentence pursuant to § 9712(a). Therefore, Faust’s

aggregate sentence was twenty-two to fifty years’ imprisonment followed by

a four-year probationary sentence. Faust appealed. This Court affirmed




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Faust’s convictions; the Supreme Court of Pennsylvania subsequently denied

allowance of appeal.

      On May 21, 2014, Faust filed, pro se, a timely PCRA petition. The PCRA

court appointed counsel, who filed a “no merit” letter and petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The PCRA court later issued a notice of its intent to dismiss Faust’s petition

without a hearing and granted counsel’s petition to withdraw. Faust filed a

response,   generally   objecting   to   PCRA     counsel’s   “no-merit”   letter.

Nevertheless, the PCRA court dismissed Appellant’s petition without a

hearing. Faust timely appealed.

      He raises the following issues on appeal:

      I. []PCRA[] counsel was constitutionally ineffective in his failure
      to request, in an amended PCRA petition, a remand to create a
      record on [Faust’s] claims of ineffective assistance as to []trial[]
      counsel.

      II. []PCRA[] counsel was constitutionally ineffective in his failure
      to raise, in an amended PCRA petition, that [Faust] was entitled
      to be resentenced on murder in the third degree, attempted
      murder (merged with aggravated assault), possession of a
      firearm and of an instrument of crime, in light of the
      Pennsylvania Supreme Courts [sic] decision in Commonwealth v.
      [] Hopkins, dated December 17, 2013 at No: CP-15-CR-
      0001260-2013, decided June 15, 2015, rendering mandatory
      minimum sentences unconstitutional.

      III. []PCRA[] counsel was constitutionally ineffective in his failure
      to raise in an amended PCRA petition, trial counsel’s failure to
      call witnesses to assert justifiable/imperfect self[-]defense claim
      and exculpatory witness “Mayra Calhoun,” [Faust’s] sister, to
      assert [Faust’s] Miranda violation claim. All of which would have

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      helped assert [Faust’s] defense and/or Miranda violation claim,
      most likely, rendering a different outcome, most favorable to
      [Faust].

Appellant’s Brief, at 2 (unpaginated).

      The principles that guide our review of a PCRA petition are well-

settled:

      Our standard of review of the denial of a PCRA petition is limited
      to examining whether the evidence of record supports the
      court’s determination and whether its decision is free of legal
      error. This Court grants great deference to the findings of the
      PCRA court if the record contains any support for those findings.
      [A] petitioner is not entitled to a PCRA hearing as a matter of
      right; the PCRA court can decline to hold a hearing if there is no
      genuine issue concerning any material fact and the petitioner is
      not entitled to post-conviction collateral relief, and no purpose
      would be served by any further proceedings. A reviewing court
      on appeal must examine each of the issues raised in the PCRA
      petition in light of the record in order to determine whether the
      PCRA court erred in concluding that there were no genuine
      issues of material fact and in denying relief without an
      evidentiary hearing.

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015)

(internal citations and quotation marks omitted; brackets in original).

      Prior to reaching the merits of Faust’s arguments, we must first

determine whether he has preserved his issues for our review. Through his

first and third issues on appeal, Faust raises claims of PCRA counsel’s

ineffectiveness. See Appellant’s Brief, at 2. “[A]bsent recognition of a

constitutional right to effective collateral review counsel, claims of PCRA

counsel ineffectiveness cannot be raised for the first time after a notice of

appeal has been taken from the underlying PCRA matter.” Commonwealth


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v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012). Thus, a petitioner’s failure

to raise an ineffectiveness of counsel claim after receiving a notice of intent

to dismiss results in waiver of the claim. See Commonwealth v. Pitts, 981

A.2d 875, 880 n.4 (Pa. 2009); see also Commonwealth v. Rigg, 84 A.3d

1080,    1084     (Pa.   Super.     2014)      (waiving   claim   of   PCRA   counsel’s

ineffectiveness of by failing to assert claim in response to Rule 907 notice);

Commonwealth v. Ousley, 21 A.3d, 1238, 1245 (Pa. Super. 2011)

(finding that the holding in Pitts prohibits this Court’s review of petitioners’

ineffectiveness of PCRA counsel claim, where issues raised for first time in

PCRA appeal).

        Although Faust filed a response, objecting to the “no-merit” letter,

after receiving the PCRA court’s Rule 907 notice, we could find no evidence

of record that Faust raised these specific claims of PCRA counsel’s

ineffectiveness prior to his Rule 1925(b) statement.2 Thus, he has waived

these two claims.

____________________________________________


2
  In its opinion, the PCRA court notes that it addressed, and dismissed,
Faust’s claims of PCRA counsel ineffectiveness due to a letter entitled “Notice
of Objection” the court received on November 13, 2015. We were unable to
locate this letter in the record.

  While we recognize that under the prisoner mailbox rule, this letter could
constitute Faust’s second timely response to the court’s Rule 907 notice,
without the letter, we are unable to determine whether the letter was in fact
timely or if Faust raised issued of PCRA counsel’s ineffectiveness. See Smith
v. Pa Bd. of Prob. and Parole, 683 A.2d 278, 281 (Pa. 1996) (stating that
under the prisoner mailbox rule, timeliness of filing from an incarcerated pro
(Footnote Continued Next Page)


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      Faust’s final contention on appeal is that PCRA counsel was ineffective

for failing to raise in an amended PCRA petition that Faust was entitled to be

resentenced on his convictions for murder in the third degree, attempted

murder, possession of a firearm, and possession of an instrument of crime

due to our Supreme Court’s holding in Commonwealth v. Hopkins, 117

A.3d 247 (Pa. 2015). See Appellant’s Brief, at 2 (unpaginated). We

recognize that while Faust’s allegation appears to challenge PCRA’s counsel’s

ineffectiveness, he is also raising a challenge to the legality of his mandatory

minimum sentence. Thus, he did not waive the challenge by failing to

include it in a response to the court’s Rule 907 notice. See Commonwealth

v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012) (challenges to the

application of a mandatory minimum sentence is a non-waivable challenge

to the legality of the sentence).

      Faust bases his claim upon Hopkins. There, the Court applied the

principles announced in Alleyne v. United States, 113 S.Ct. 2151 (2013)

to determine that 18 Pa.C.S.A. § 6317, setting a mandatory minimum

sentence    for   those      dealing    illegal   drugs   near   schools   zones,   was

                       _______________________
(Footnote Continued)

se party is measured form the date the prisoner places the filing in the
institution’s mailbox). However, because it is ultimately an appellants’
responsibility to ensure that the certified record contains all the items
necessary to review his claims, we will not concern ourselves with the
content or timing of this alleged letter. See, e.g., Commonwealth v.
Tucker, 143 A.3d 955, 963 (Pa. Super. 2016); Commonwealth v. B.D.G.,
959 A.2d 362, 372 (Pa. Super. 2008).



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unconstitutional. See 117 A.3d at 262-263. While Faust’s mandatory

minimum sentences were not imposed pursuant to § 6317, we recognize

that the particular section of the Sentencing Code under which Faust’s

mandatory minimum sentences were imposed has been found to be

unconstitutional pursuant to Alleyne. See Commonwealth v. Newman,

99 A.3d 86, 104 (Pa. Super. 2014) (en banc) (holding the mandatory

minimum sentencing scheme under § 9712 unconstitutional pursuant to

Alleyne). See also Commonwealth v. Valentine, 101 A.3d 801 (Pa.

Super. 2014).

      Generally, an Alleyne claim does not apply retroactively to cases on

collateral review. See Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016). However, in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super

2015), this Court recognized that an Alleyne claim constitutes a non-

waivable challenge to the legality of a sentence and may be raised for the

first time in a timely-filed PCRA petition if the petitioner’s judgment of

sentence was not final when Alleyne was decided. See 131 A.3d at 60-61.

      Here, Faust’s petition for allowance of appeal with the Pennsylvania

Supreme Court was not denied until September 10, 2013. Alleyne was

decided on June 17, 2013. As Faust’s judgment of sentence was not final

when Alleyne was decided, the decision may be applied to Faust’s case

retroactively.




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     Thus, as the Commonwealth concedes, see Commonwealth’s Brief, at

7-9, Faust is entitled to resentencing without the application of the

mandatory minimum sentence set forth in § 9712(a). See Ruiz, 131 A.3d at

60-61. While Faust contends that he is entitled to resentencing on all of his

convictions, the application of Ruiz only mandates resentencing on the

convictions in which the mandatory minimum was applied—Faust’s third-

degree murder and attempted murder convictions.

     The PCRA court erred in dismissing Faust’s PCRA petition raising an

Alleyne challenge. Accordingly, we reverse the order in part, affirm in part,

vacate the judgment of sentence, and remand for resentencing on Faust’s

third-degree murder and attempted murder convictions.

     Order reversed. Judgment of sentence vacated. Case remanded for

resentencing consistent with this memorandum. Jurisdiction relinquished.

     Judge Solano joins the memorandum.

     Justice Fitzgerald concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2017




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