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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

EDDIE FELICIANO,

                        Appellant                   No. 27 MDA 2015


         Appeal from the PCRA Order entered December 18, 2014,
              in the Court of Common Pleas of Berks County,
           Criminal Division, at No(s): CP-06-CR-0003359-2010


BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED JULY 10, 2015

     Eddie Feliciano (“Appellant”) appeals pro se from the order denying his

first petition for relief under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. sections 9541-46. We affirm the PCRA court’s order in part, and

remand for resentencing.

     The pertinent facts have been summarized as follows:

           On Monday, January 18, 2010, Detective Christopher
        Mayer of the Reading Police Department was working in an
        undercover capacity in the Vice Section handling drug
        transactions, among other matters. At the time, Detective
        [Pasquale] Leporace was also working in the Vice Section
        of the Reading Police Department.          After receiving
        information from a confidential source, Detective Leporace
        instructed Detective Mayer to accompany the confidential
        source to the 800 block of Locust Street in the City of
        Reading, Berks County, Pennsylvania, to attempt to
        purchase five bags containing cocaine from [Appellant].

           A few moments after Detective Mayer and the
        confidential source arrived in the 800 block of Locust

*Retired Senior Judge specially assigned to the Superior Court.
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         Street, [Appellant] exited 848 Locust Street and walked to
         the passenger side of Detective Mayer’s vehicle. Detective
         Mayer was driving a blue, late-80’s model Chevrolet pickup
         truck. [Appellant] approached the passenger side of the
         truck and handed the confidential source five bags
         containing a substance that subsequently tested positive
         for cocaine. Detective Mayer took the five packets from
         the confidential source and handed [Appellant] $40 in pre-
         recorded U.S. currency. [Appellant] walked away from the
         truck, and Detective Mayer and the confidential source
         went to the Vice Office, where Detective Mayer performed
         a preliminary Valtox test on the substance in the packets.
         The substance tested positive for cocaine. Detective Mayer
         then placed the five packets containing cocaine into an
         evidence envelope, which he sent to the Bethlehem
         Regional Laboratory for chemical testing.

            On January 21, 2010, Detective Mayer returned to the
         800 block of Locust Street with the confidential source
         around 2:30 [p.m.] Detective Mayer was driving the same
         blue truck.    After parking the truck, Detective Mayer
         encountered an unnamed Hispanic female (hereinafter
         “Jane Doe”). Detective Mayer stepped out of the truck and
         spoke with Jane Doe. She told [Detective Mayer], “he’s
         bagging it up. He will be out.” Jane Doe walked into 848
         Locust Street, and Detective Mayer returned to the driver’s
         seat of the truck. A few moments later, [Appellant] exited
         848 Locust Street, approached the truck, and got in the
         passenger side. [Appellant] instructed Detective Mayer to
         drive around the block. During the ride, Detective Mayer
         handed [Appellant] $40 in pre-recorded U.S. currency in
         exchange for five bags containing a substance that
         subsequently tested positive for cocaine.

Commonwealth v. Feliciano, 67 A.3d 19, 21-22 (Pa. Super. 2013) (en

banc) (citation omitted).

      Appellant was arrested and charged with multiple drug and conspiracy

offenses.   Over Appellant’s objection at his jury trial, the trial court

permitted the statement made by Jane Doe. See N.T., 3/23/11, at 29. The



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jury convicted Appellant of all charges. On March 30, 2011, the trial court

imposed an aggregate term of seven years and three months to fourteen

years and six months of imprisonment.

       Appellant filed a timely appeal to this Court.     After a panel of this

Court originally reversed and remanded for a new trial based upon its belief

that   Jane     Doe’s   statement   was   inadmissible,     we   granted   the

Commonwealth’s petition for reargument. Feliciano, 67 A.3d at 23. In a

published opinion, we rejected Appellant’s challenges to the sufficiency of

the evidence, as well as to the chain of custody of the drugs. Additionally,

we concluded that the trial court properly admitted Jane Doe’s statement to

Detective Mayer under the co-conspirator exception to the hearsay rule. Id.

at 26-27.     On November 16, 2013, our Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Feliciano, 81 A.3d 75

(Pa. 2013).

       On February 24, 2014, Appellant filed a pro se PCRA petition, and the

PCRA court appointed counsel. On July 9, 2014, PCRA counsel filed a motion

to withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988) (en banc).        In his “no-merit” letter, PCRA counsel

addressed each issue raised by Appellant in his pro se petition, and

concluded that Appellant’s claims were either previously litigated or lacked

arguable merit. The PCRA court granted PCRA counsel’s motion to withdraw

on September 11, 2014.       After conducting an independent review of the

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record, the PCRA court filed, on November 6, 2014, Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition. Appellant filed his response on

November 18, 2014. By order entered December 18, 2014, the PCRA court

denied Appellant’s PCRA petition. This timely pro se appeal followed. Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

      Within his pro se brief, Appellant raises the following issues:

           A. Whether trial counsel provided ineffective assistance by
           failing to conduct a thorough investigation of the
           unidentified Jane Doe co-conspirator who could have
           provided material and favorable testimony?

           B. Whether trial counsel provided ineffective assistance in
           failing to challenge whether the Commonwealth’s
           investigation of Appellant was improperly protracted
           resulting in sentencing manipulation?

           C. Whether direct appeal counsel provided ineffective
           assistance in failing to seek remand during the pendency
           of [allocatur] in the Pennsylvania Supreme Court between
           6/13/13 and 11/26/13 to challenge the legality of
           Appellant’s sentence pursuant to [Alleyne v. United
           States], 133 S.Ct. 2151 (2013)?

           D. Whether PCRA counsel provided ineffective assistance
           for failing to file an amended petition raising the ineffective
           assistance of trial and appellate counsel?

Appellant’s Brief at 3.

      This Court may only overturn a PCRA court’s dismissal of a PCRA

petition    based   on    an   error   of   law   or   an   abuse   of   discretion.

Commonwealth v. Johnson, 841 A.2d 136, 140 (Pa. Super. 2003), appeal

denied, 858 A.2d 109 (Pa. 2004).            “Great deference is granted to the

findings of the PCRA court, and these findings will not be disturbed unless


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they have no support in the certified record.” Commonwealth v. Daniels,

947 A.2d 795, 798 (Pa. Super. 2008), citing Commonwealth v. McClellan,

887 A.2d 291, 298 (Pa. Super. 2005), appeal denied, 897 A.2d 453 (Pa.

2006).      Moreover, a PCRA court may decline to hold a hearing on the

petition if the PCRA court determines that the petitioner’s claim is patently

frivolous and is without a trace of support either in the record or from other

evidence. Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

         To be eligible for post-conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated errors or defects in 42

Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been

previously litigated.     Commonwealth v. Carpenter, 725 A.2d 154, 160

(Pa. 1999). An issue has been “previously litigated” if 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, or if the issue has been raised and decided

in   a    proceeding    collaterally   attacking   the   conviction   or   sentence.

Carpenter, 725 A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has

not been previously litigated, the petitioner must then prove that the issue

was not waived.        Carpenter, 725 A.2d at 160.       An issue will be deemed

waived under the PCRA “if the petitioner could have raised it but failed to do

so before trial, at trial, during unitary review, on appeal, or in a prior state

post-conviction proceeding.” 42 Pa.C.S.A. § 9544(b).




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      In his first issue, Appellant asserts that trial counsel was ineffective for

failing to fully investigate and/or present the testimony of the unidentified

Jane Doe.     The PCRA court, citing this Court’s conclusion that sufficient

evidence    established      Jane   Doe   as    a   co-conspirator,     concluded    that

Appellant’s present claim is previously litigated under the PCRA. See PCRA

Opinion, 2/23/15, at 6-7. Even were we to disagree, Appellant still would

not be entitled to relief.

      In order to establish that trial counsel was ineffective for failing to

investigate   and/or   call    a    witness    at   trial,   a   PCRA   petitioner   must

demonstrate that:

         (1) the witness existed; (2) the witness was available to
         testify for the defense; (3) [trial] 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 [the appellant] a fair trial.

Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted).

Appellant has not met this burden.             Specifically, Appellant has failed to

proffer any evidence that Jane Doe would be willing to testify on Appellant’s

behalf, let alone provide favorable testimony. See Pa.R.Crim.P. 902(A)(15)

(explaining that “any request for an evidentiary hearing shall include a

signed certification at to each intended witness”).

      Moreover, our review of the record supports the PCRA court’s

conclusion that Appellant could not establish prejudice:




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            Appellant asserts that [Jane Doe’s] testimony would
         have changed the outcome of the trial. This is not so.
         There was more than sufficient independent evidence to
         convict [Appellant] without this testimony, as the
         testimony and exhibits showed that Appellant gave
         Detective Mayer $40 in pre-recorded currency and the
         detective received directly from Appellant five bags
         containing a substance that tested positive for cocaine. As
         there was no prejudice, we need not address the other
         [ineffectiveness] prongs.

PCRA Court Opinion, 2/23/15, at 7.

      Appellant next claims that trial counsel was ineffective in failing to

challenge whether the length of the Commonwealth’s investigation and

charging choices resulted in “sentencing manipulation.” Appellant’s Brief at

10.   Our review of the record support’s the PCRA court’s conclusion that

Appellant did not raise this claim in his original PCRA petition, and did not

petition to amend his petition to include it once PCRA counsel was permitted

to withdraw. See id., at 6 n.2. Thus, Appellant’s claim is waived under the

PCRA, and we need not address it further. Carpenter, supra.

      In his third claim, Appellant asserts that appellate counsel was

ineffective for failing to seek a remand of his case while his allowance of

appeal was pending so that he could raise an illegality of sentence claim

under Alleyne v. United States, 133 S.Ct. 2151 (2013). The PCRA court

found merit to this claim, and determined that PCRA counsel was ineffective

in this regard. The PCRA court explained:

            This PCRA petition, Appellant’s first, was filed on
         February 24, 2014, the day his judgment of sentence
         became final.       Thus, it appears that we may have
         jurisdiction to review the legality of his sentence.

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          The United States Supreme Court has held that “[w]hen
       a decision of this Court results in a [‘]new rule,[’] that rule
       applies to all criminal cases still pending on direct review.”
       Schriro v. Summerlin, 542 U.S. 348, 351 (2004), citing
       Griffin v. Kentucky, 479 U.S. 314, 328 (1987). We now
       find Alleyne may be applied retroactively to Appellant, as
       his case was still pending on direct review when Alleyne
       was decided. The fact that this case is now on collateral
       review may be of no moment.

         We now turn to the merits of Appellant’s issue of
       whether Section 18 Pa.C.S.A. §6317(b), (Drug Free School
       Zones) is unconstitutional under Alleyne. The Superior
       Court, in Commonwealth v. Bizzel, [107 A.3d 102 (Pa.
       Super. 2014)], very recently stated:

       “. . . the United States Supreme Court’s decision in
       Alleyne rendered unconstitutional those portions of
       Pennsylvania’s mandatory minimum sentencing statutes
       that allow a judge to increase a defendant’s sentence
       based upon a preponderance of the evidence standard as
       opposed to utilizing the beyond a reasonable doubt
       standard. Thus, Alleyne rendered 18 Pa.C.S. § 6317(b)
       unconstitutional.”

       Id. at [104].

          Appellant raises a valid constitutional issue that applies
       to his sentences.

                                   ***

          PCRA counsel was ineffective for failing to raise this new
       constitutional rule in an Amended PCRA petition. He was
       appointed March 10, 2014, well after Alleyne was decided,
       and it appears that this constitutional rule was applicable
       to his client’s case.

          Appellant preserved the issue of ineffectiveness of PCRA
       counsel by raising it in his objection to our Notice of Intent
       to Dismiss. See Commonwealth v. Rykard, 55 A.3d
       1177 (Pa. Super. 2012) citing Commonwealth v. Pitts,
       987 A.2d 875 (Pa. 2009).

         Accordingly, we respectfully request that the Superior
       Court vacate Appellant’s sentence and remand this matter


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         for resentencing, without application of the mandatory
         minimum sentences, as Appellant’s sentence was still
         under direct review when Alleyne was decided.       It
         appears that this new constitutional rule concerning
         mandatory minimum sentences applies to Appellant
         retroactively.    Further, §6317(b) has been rendered
         unconstitutional in its entirety.

PCRA Court Opinion, 2/23/15, at 9-10 (emphasis omitted).                  See also

Commonwealth v. Hopkins, 2015 Pa. LEXIS 1282, ___ A.3d ___ (Pa.

2015) (affirming unconstitutionality of § 6317 in its entirety and concluding

that its provisions are non-severable).

       Our review of the record supports the trial court’s conclusion that

PCRA counsel should have raised appellate counsel’s ineffectiveness for

failing to amend Appellant’s allocatur petition to include an Alleyne claim.

Appellant challenges PCRA counsel’s ineffectiveness in his fourth and final

issue. Although Appellant’s claim regarding PCRA counsel’s failure to raise

trial counsel’s ineffectiveness lacks merit, we agree with the PCRA court that

PCRA    counsel     should   have   raised   a   claim   of   appellate   counsel’s

ineffectiveness.

       In sum, we affirm the PCRA court’s dismissal of Appellant’s PCRA

petition to the extent he claimed ineffectiveness of trial counsel. However,

as requested by the PCRA Court, we grant Appellant collateral relief in the

form of vacating his judgment of sentence pursuant to Alleyne, and remand

for resentencing.




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     Order affirmed in part.      Judgment of sentence vacated.   Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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