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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEONARD CHASE, JR.                         :
                                               :
                       Appellant               :   No. 1122 MDA 2019

              Appeal from the PCRA Order Entered June 19, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0003518-2010


BEFORE:      STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 08, 2020

        Appellant, Leonard Chase, Jr., appeals from the June 19, 2019 Order

entered in the York County Court of Common Pleas dismissing his first Petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S §§ 9541-

46, as meritless. After careful review, we affirm.

        The relevant facts and procedural history are as follows. On April 7,

2011, a jury convicted Appellant of five counts of Robbery and one count of

Criminal Conspiracy to Commit Robbery.1 The court sentenced Appellant to

an aggregate term of 35 to 70 years’ incarceration, comprised of five

consecutive terms of 7 to 14 years’ incarceration for each of his Robbery
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S §§ 3701(a)(1)(ii) and 903(a)(1), respectively. The court tried
Appellant with his co-defendant, Travis Lamont Bryant.
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convictions, and a concurrent term of 6 to 12 years’ incarceration for his

Criminal Conspiracy conviction.2 Appellant filed Post-Sentence Motions, which

the trial court denied on October 24, 2011.

        Appellant filed a direct appeal challenging the sufficiency and weight of

the evidence, a jury instruction, and the discretionary aspects of his sentence.

This Court affirmed Appellant’s Judgment of Sentence on December 20, 2012.

See Commonwealth v. Chase, No. 2064 MDA 2011 (Pa. Super. filed Dec.

20, 2012) (unpublished memorandum).              On October 23, 2013, the

Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of

Appeal. See Commonwealth v. Chase, 77 A.3d 1285 (Pa. 2013) (table).

Appellant did not seek further review of his Judgment of Sentence. Appellant’s

Judgment of Sentence, thus, became final on January 21, 2014.3

        On December 8, 2014, Appellant filed pro se the instant PCRA Petition

in which he claimed that: (1) the Commonwealth’s evidence was insufficient

to support his conviction; (2) the court gave an invalid jury instruction; (3)

the initial search and seizure by police was constitutionally invalid; (4) the

court erred in imposing a mandatory minimum sentence and incorrectly

applied the deadly weapons enhancement; (5) the sentencing court

incorrectly computed Appellant’s prior record score (“PRS”); (6) the jury’s

____________________________________________


2 The court did not impose any mandatory minimum sentences. Appellant’s
individual sentences are at the top end of the guideline range and did not
exceed the statutory maximums.

3   See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).

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verdict on multiple counts was constitutionally invalid; (7) his trial counsel

was ineffective; and (8) his constitutional rights had been violated. Petition,

1/8/14, at 3-4.

       On December 10, 2014, the PCRA court appointed counsel.4 After an

unexplained delay of more than four years, on February 25, 2019, PCRA

counsel filed a Petition to Withdraw as Counsel along with a “no-merit” letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998),

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

their progeny, after concluding that Appellant’s Petition presented no issues

of arguable merit.

       On May 29, 2019, the PCRA court issued a Pa.R.Crim.P. 907 Notice of

its intent to dismiss Appellant’s Petition without a hearing as meritless, and

granted counsel’s Motion to Withdraw. Appellant did not file a Response to

the court’s Rule 907 Notice. On June 19, 2019, the PCRA court dismissed

Appellant’s Petition.

       This timely pro se appeal followed. Both Appellant and the PCRA court

have complied with Pa.R.A.P 1925.

       Appellant raises the following issues on appeal:

       I. Did the [PCRA] court err when it denied relief [on the claim that]
       evidence presented during trial was insufficient to sustain a


____________________________________________


4 On December 30, 2014, the PCRA court vacated its first Order appointing
Bruce Blocher, Esquire, as counsel, and instead appointed William H. Graff,
Jr., Esquire, as counsel.

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      conviction on all five counts of robbery[,] a violation of the U.S.
      Constitution Fourteenth Amendment right?

      II. Did the [PCRA] court err when it denied relief [on the claim
      that] the court gave invalid jury instructions[,] a U.S. Constitution
      Fourteenth Amendment violation?

      III. Did the [PCRA] court err when it denied relief [on the claim of
      an] unreasonable search and seizure [in] violation of the U.S.
      Constitution Fourth and Fourteenth Amendment?

      IV. Did the [PCRA] court err when it denied relief [on the claim of]
      prosecutorial misconduct[,] a U.S. Constitutional violation of
      Appellant’s Fourteenth Amendment right?

      V. Did the [PCRA] court err when it denied relief [on Appellant’s
      claim that the] court’s interpretation of 19 Pa.C.S.[] §
      3701(a)(1)(ii) violates the U.S. Constitution Fifth and Fourteenth
      Amendment[s]?

      VI. Did the [PCRA] court err when it denied relief for Claim F,
      Appellant convicted on multiplicity [sic,] a violation of the U.S.
      Constitutional Fourteenth Amendment right?

      VII. Did the [PCRA] court err when it denied relief [on Appellant’s
      claim that] Pennsylvania’s mandatory minimum sentencing act
      and deadly weapon enhancement violates the U.S. Constitution
      Sixth and Fourteenth Amendment?

      VII. Did the [PCRA] court err when it denied relief [on Appellant’s
      claim of] ineffective assistance of counsel[,] a violation of []
      Appellant’s U.S. Constitutional Fourteenth Amendment right?

      IX. Did the [PCRA] court err when it denied relief [on Appellant’s
      claim that the] sentencing court incorrectly computed Appellant’s
      [PRS] and deadly weapon enhancement which resulted in an
      inappropriate sentence[,] a Fourteenth Amendment due process
      violation?

Appellant’s Brief at 5-6 (reordered for ease of disposition).

Cognizability of Claims

      Before we address the merits of Appellant’s claims, we must first

determine which, if any, of them are cognizable under the PCRA. The PCRA


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specifically permits challenges asserting (1) constitutional violations; (2)

ineffective assistance of counsel; (3) an unlawful inducement of a guilty plea;

(4) obstruction of a defendant's right to an appeal; (5) newly discovered

exculpatory evidence that was not available at the time of the trial; (6) an

imposition of a sentence greater than the lawful maximum; and (7) a lack of

jurisdiction. See 42 Pa.C.S. § 9543(a)(2). Based on our review, Appellant’s

first seven issues are either not cognizable under the PCRA, are waived, or

have been previously litigated.

      This Court has consistently held that challenges to the sufficiency of the

evidence are not cognizable under the PCRA. See Commonwealth v. Price,

876 A.2d 988, 995 (Pa. Super. 2005) (rejecting a sufficiency claim that was

raised on PCRA appeal without an ineffective assistance of counsel analysis

because it is not cognizable under the PCRA); see also Commonwealth v.

Bell, 706 A.2d 855, 861 (Pa. Super. 1998) (holding that sufficiency claims are

not cognizable under the PCRA).

      In addition, issues previously raised and litigated on direct appeal are

not cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(3) (providing that

a petitioner must plead and prove by a preponderance of the evidence that

the allegation of error has not been previously litigated); see also

Commonwealth v. Spotz, 18 A.3d 244, 281 (Pa. 2011) (recognizing that a

claim that has been previously litigated is not cognizable under the PCRA).




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      Relatedly, an issue a petitioner could have raised “before trial, at trial,

during unitary review, on appeal or in a prior state postconviction

proceeding[,]” but failed to raise, is waived. 42 Pa.C.S § 9544(b).

      Issue I

      In his first issue, Appellant claims that his Robbery convictions violated

his due process rights because the Commonwealth presented insufficient

evidence to sustain each of the elements of the offense. Appellant’s Brief at

13-28.

      Appellant previously litigated his challenge to the sufficiency of the

Commonwealth’s evidence on direct appeal, and this Court affirmed that the

evidence was sufficient. See Chase, No. 2064 MDA 2011, at 9-15. This claim

is, therefore, not cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(3).

See also Price, 876 A.2d at 995; Bell, 706 A.2d at 861.

      To the extent that Appellant attempts to avoid the PCRA’s prohibition

against relitigating previously litigated claims by arguing that the evidence

was insufficient to satisfy due process, Appellant has waived this argument by

not raising it at trial or on direct appeal. See 42 Pa.C.S § 9544(b). Therefore,

even if Appellant had not previously litigated this claim, he would not be

entitled to relief under the PCRA.

      Issue II

      In his second issue, Appellant claims the trial court violated his due

process rights by providing the jury with an instruction on the Robbery charge

that “contradicts the law” and “made it ‘reasonably likely’ that the jury applied

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the improper instructions in an unconstitutional way.” Appellant’s Brief at 33-

34.   The crux of Appellant’s claim is that the trial court’s jury instruction

essentially directed the jury to convict Appellant of multiple counts of Robbery

even though Appellant’s crimes arose in the course of only one event.

Although Appellant attempts to frame this issue in federal constitutional law

terms, our review indicates that it is merely an attempt to relitigate an issue

he unsuccessfully raised on direct appeal. See Chase, No. 2064 MDA 2011,

at 17-19. Therefore, he is not eligible for relief under the PCRA.       See 42

Pa.C.S. § 9543(a)(3).

      Issue III

      In his third issue, Appellant claims that a warrantless search of his

vehicle by police was an unreasonable search and seizure in violation of the

Fourth Amendments of the U.S. Constitution. Appellant’s Brief at 34-36. Our

review of the record indicates that Appellant failed to raise this issue before

the trial court, for example, by filing a motion to suppress the evidence

obtained from the allegedly illegal search.    Appellant’s failure to raise this

claim prior to the filing of his PCRA Petition results in its waiver.    See 42

Pa.C.S. § 9544(b).

      Issue IV

      In his fourth issue, Appellant claims prosecutorial misconduct occurred

during his trial as a result of testimony given by a police officer that differed

slightly by from an account given by another officer in the Criminal Complaint,

which resulted in a violation of his due process rights. Appellant’s Brief at 77-

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80. Appellant could have raised this issue on direct appeal, but failed to do

so. Accordingly, this claim is waived. See 42 Pa.C.S. § 9544(b).

      Issue V

      In what essentially amounts to a sufficiency of the evidence claim, in his

fifth issue, Appellant argues that the Commonwealth and the trial court

misinterpreted the Robbery statute when it charged him with multiple counts

of Robbery because his “victims” were mere bystanders because did not

subject them to any direct threats or thefts, and because they did not have a

property interest in the items Appellant stole. See, e.g., Appellant’s Brief at

61-62. He concludes, therefore, no robbery of them occurred. This Court’s

review of the record indicates that Appellant unsuccessfully raised this issue

on direct appeal. See Chase, No. 2064 MDA 2011, at 9-14. Therefore, he is

not eligible for relief under the PCRA. See 42 Pa.C.S. § 9543(a)(3).

      Issue VI

      In his sixth issue, Appellant claims that his conviction of five counts of

Robbery arising from one act of theft violates the double jeopardy clause of

the U.S. Constitution. Appellant’s Brief at 44-53. This Court’s review of the

record indicates that Appellant unsuccessfully raised this issue on direct

appeal within the context of his challenge to the court’s jury instruction. See

Chase, No. 2064 MDA 2011, at 17-19. Therefore, he is not eligible for relief

under the PCRA. See 42 Pa.C.S. § 9543(a)(3).




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      Issue VII

      In his seventh issue, Appellant claims that the trial court improperly

calculated his Prior Record Score and misapplied the sentencing guidelines.

Appellant’s Brief at 42-44.   Although Appellant attempts to argue that the

court’s alleged error violated his due process rights, in fact, this issue

implicates the discretionary aspects of his sentence. See Commonwealth v.

Keiper, 887 A.2d 317, 319 (Pa. Super. 2005) (explaining that a “challenge to

the calculation of the Sentencing Guidelines raises a question of the

discretionary aspects of a defendant's sentence.”); Commonwealth v.

Sanchez, 848 A.2d 977, 986 (Pa. Super. 2004) (holding that a miscalculation

of the prior record score “constitutes a challenge to the discretionary aspects

of [a] sentence.”).

      Appellant raised a challenge to the discretionary aspects of his sentence

on direct appeal. See Chase, No. 2064 MDA 2011, at 17-23. Therefore, he

is not eligible for relief under the PCRA. See 42 Pa.C.S. § 9543(a)(3). To the

extent that the arguments set forth by Appellant in support of his discretionary

aspects of sentence claim in the instant appeal differ from those asserted

before the trial court and on direct appeal, we find that Appellant has waived

those arguments. See 42 Pa.C.S. § 9544(b).

      Summary- Issues I-VII

      In sum, following our review of the record, we conclude that, for the

reasons articulated above, Appellant is not entitled to relief on his first seven

issues. Thus, we proceed to address the merits of issues VIII and IX only.

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Cognizable Issues

      Standard of Review of PRCA Orders

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

Because most PCRA appeals involve questions of fact and law, we employ a

mixed standard of review. We defer to the PCRA court’s factual findings and

credibility determinations supported by the record, and we review the PCRA

court’s legal conclusions de novo. Commonwealth v. Roney, 79 A.3d 595,

603 (Pa. 2013).

      Issue VIII

      In his eighth issue, Appellant claims that his trial counsel was ineffective

for failing to “investigate and [] present substantial mitigating evidence to the

jury” and for failing to “assert and preserve [his] Federal and State

Constitutional rights[.]” Appellant’s Brief at 53-54. In particular, Appellant

asserts that counsel failed to depose the Commonwealth’s key witnesses and

to investigate a third suspect who Appellant alleges was likely one of the two

actors who committed the robbery. Id. at 54-55. Appellant also claims that

his counsel failed to assert a claim based on Alleyne v. U.S., 570 U.S. 99

(2013), before his Judgment of Sentence became final and failed to preserve

Appellant’s illegal sentence claim. Id. at 55-56.

      We review ineffective assistance of counsel (“IAC”) claims with the

following precepts in mind.    To warrant relief based on an ineffectiveness

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claim, a petitioner must show that such ineffectiveness “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. Jones, 912 A.2d 268, 278 (Pa. 2006); accord 42 Pa.C.S.

§ 9543(a)(2)(ii). We presume that counsel has rendered effective assistance.

Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013).

      To overcome this presumption, a petitioner must establish that: (1) the

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for

his   act   or   omission;   and   (3)    petitioner   suffered   actual   prejudice.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to

establish prejudice, a petitioner must demonstrate “that there is a reasonable

probability that, but for counsel’s error or omission, the result of the

proceeding would have been different.”            Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012) (citation omitted). We will deny an IAC claim if the

petitioner fails to meet any one of these prongs. Commonwealth v. Jarosz,

152 A.3d 344, 350 (Pa. Super. 2016). We will not deem counsel ineffective

for failing to raise a meritless claim. Jones, 912 A.2d at 278. Moreover, trial

counsel’s approach must be “so unreasonable that no competent lawyer would

have chosen it.”     Commonwealth v. Ervin, 766 A.2d 859, 862–863 (Pa.

Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233, 234 (Pa.

1981)). “[B]olierplate allegations and bald assertions of no reasonable basis

and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that




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counsel was ineffective.” Commonwealth v. Chmiel, 30 A.3d 1111, 1128

(Pa. 2011) (citation omitted).

      Appellant’s IAC claim consists of nothing more than boilerplate

assertions that his counsel was ineffective.         He has utterly failed to

demonstrate that (1) any of his underlying claims are of arguable merit; (2)

his counsel’s performance lacked a reasonable basis; and (3) his counsel’s

alleged ineffectiveness of counsel caused him prejudice.        Having failed to

satisfy the IAC test, we conclude that the trial court did not err in finding that

Appellant is not entitled to relief on this claim.

      Issue IX

      In his final issue, Appellant claims that the court sentenced him to an

illegal mandatory minimum sentence and that its application of the deadly

weapon enhancement violated his constitutional rights. Appellant’s Brief at

36-41 (citing 42 Pa.C.S § 9712.1 and Alleyne, supra).            He argues that

Alleyne required the trial court to submit the application of the deadly weapon

enhancement to the jury because the deadly weapon enhancement is an

“element” that increased the penalty for his crimes. Appellant’s Brief at 37-

38.

      Appellant has raised a challenge to the legality of his sentence.       We

“review the legality of sentence de novo and our scope of review is plenary.”

Commonwealth v. Foust, 180 A.3d 416, 422 (Pa. Super. 2018) (citation

omitted).




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      In Alleyne, the U.S. Supreme Court held that, other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory minimum must be submitted to a jury and proved beyond

a reasonable doubt.     Alleyne, 570 U.S. at 103.       Later, this Court, in

Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa. Super. 2014), expressly

held that the imposition of sentencing enhancements does not implicate

Alleyne. 91 A.3d at 1270 n.10.

      Appellant asserts that he was illegally sentenced pursuant to 42 Pa.C.S.

§ 9712.1. That statute provided that defendants convicted of certain drug

offenses with firearms were subject to the imposition of a mandatory minimum

sentence. 42 Pa.C.S. § 9712.1(a). However, pursuant to Alleyne, this Court

held that statute to be unconstitutional. Commonwealth v. Newman, 99

A.3d 86, 88 (Pa. Super. 2014).

      Appellant’s reliance on Alleyne and reference to 42 Pa.C.S. § 9712.1 in

support of his illegal sentence claim are misplaced. First, the trial court did

not impose on Appellant a mandatory minimum sentence. Second, Section

9712.1 pertained to certain drug offenses committed with firearms. Instantly,

the jury convicted Appellant of Robbery, which is not a drug offense. Last,

the deadly weapon enhancement imposed on Appellant’s sentence is not a

mandatory minimum sentence; rather, it merely raises the recommended

sentence under the sentencing guidelines. See Buterbaugh, 91 A.3d at 1270

n.10. For each of the foregoing reasons, Appellant is not entitled to relief on

this claim.

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     Having found Appellant’s claims either not cognizable under the PCRA

or without merit, we affirm the Order denying PCRA relief.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/08/2020




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