J-S40043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMAR AHMAD MCCRAY                         :
                                               :
                       Appellant               :   No. 2991 EDA 2016

                  Appeal from the PCRA Order August 24, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000508-2012


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                 FILED JANUARY 08, 2018

        Jamar Ahmad McCray appeals from the order entered August 24, 2016,

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

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1     McCray sought relief from the judgment of sentence of an

aggregate term of 90 months’ to 15 years’ imprisonment, originally imposed

on February 15, 2013, following his convictions of possession with intent to

deliver a controlled substance (“PWID”), possession of drug paraphernalia,

and persons not to possess firearms.2 As will be discussed infra, the PCRA

court granted the petition, in part, based on McCray’s allegation that his
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2 See 35 P.S. §§ 780-113(a)(30) and (a)(32), and 18 Pa.C.S. § 6105,
respectively.
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sentence was illegal, and resentenced him on August 30, 2016, to an

aggregate term of 81 months’ to 15 years’ imprisonment.     The court denied

his other claims. On appeal, McCray argues the PCRA court erred in failing to

grant him relief on two claims asserting the ineffective assistance of trial

counsel, and contends the sentence imposed in August of 2016, was also

illegal. For the reasons below, we affirm.

       The facts underlying McCray’s arrest and conviction were summarized

in the memorandum decision affirming McCray’s sentence on direct appeal,

and we need not reiterate them in detail herein. See Commonwealth v.

McCray, 105 A.3d 34 (Pa. Super. 2014) (unpublished memorandum at *1-

*3).    To summarize, a detective with the Delaware County Criminal

Investigations Narcotics Unit learned that McCray was selling cocaine from his

residence.   The detective utilized a confidential informant to conduct two

controlled buys from McCray. Thereafter, he obtained and executed a search

warrant at the residence, at which time he recovered a substantial amount of

cocaine, along with drug paraphernalia and a firearm. See id. McCray was

arrested and charged with, inter alia, PWID, possession of drug paraphernalia,

and persons not to possess firearms.

       A jury convicted McCray of PWID and possession of drug paraphernalia.

The jury also specifically found McCray was in possession of a firearm, and

based on that finding, as well as McCray’s prior record, the trial court

adjudicated him guilty of persons not to possess firearms.         See N.T.,



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12/19/2012    (Verdict),   at   4,    11-12.   On   December   20,   2012,   the

Commonwealth notified McCray of its intent to invoke one of three mandatory

minimum sentences, pursuant to 18 Pa.C.S. §§ 6317 (drug-free school zone),

18 Pa.C.S. § 7508 (drug weight), or 42 Pa.C.S. § 9712.1 (possession of

firearm with drug offense). The case proceeded to sentencing on February

15, 2013, at which time the court imposed a sentence of seven and one-half

to 15 years’ imprisonment on the PWID charge, a concurrent term of five to

10 years’ imprisonment on the firearms charge, and a concurrent term of

three to six months’ imprisonment on the paraphernalia offense. Notably, the

trial court stated it was imposing a mandatory minimum sentence pursuant to

Section 7508 on the PWID charge, although McCray’s actual sentence was

above the mandatory minimum seven-year term. See N.T., 2/15/2013, at

25-26; 18 Pa.C.S. § 7508(a)(3)(iii) (mandatory seven-year minimum

sentence when defendant possesses at least 100 grams of cocaine, and has

prior drug trafficking conviction).

      McCray’s judgment of sentence was affirmed on direct appeal, and the

Pennsylvania Supreme Court subsequently denied his petition for allowance

of appeal. See Commonwealth v. McCray, 104 A.3d 3 (Pa. 2014). On

February 4, 2015, McCray filed a timely, pro se PCRA petition. Counsel was

promptly appointed, and filed an amended petition on August 14, 2015,

challenging only the legality of McCray’s mandatory minimum sentence in light

of the United States Supreme Court’s decision in Alleyne v. United States,



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133 S.Ct. 2151 (U.S. 2013).3 The PCRA court conducted a brief hearing on

January 14, 2016, at which time McCray’s attorney raised the following two

additional claims: (1) McCray’s prior record score was incorrectly calculated,4

and (2) trial counsel was ineffective for failing to request further inquiry when,

during a charging conference, both the prosecutor and trial court referred to

a sleeping juror. See N.T., 1/14/2016, at 5-7. Before the PCRA court ruled

on his petition, McCray filed a motion requesting to proceed pro se. On March

9, 2016, the PCRA court entered an order granting McCray’s petition, in part,

after concluding McCray’s mandatory minimum sentence violated Alleyne and

its progeny. See Order 3/9/2016, at 1-2. The court further ordered McCray


____________________________________________


3 In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct.
at 2155. In interpreting that decision, the courts of this Commonwealth have
determined that most of our mandatory minimum sentencing statutes,
including 18 Pa.C.S. § 7508, are unconstitutional because the language of
those statutes “permits the trial court, as opposed to the jury, to increase a
defendant’s minimum sentence based upon a preponderance of the evidence”
standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. (Pa.
Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). See
Commonwealth v. Mosley, 114 A.3d 1072, 1091 (Pa. Super. 2015)
(invalidating 18 Pa.C.S. § 7508), appeal denied, ___ A.3d ___ [387 MAL
2015/714 MAL 2015] (Pa. February 9, 2017). Further, our courts have held
that the unconstitutional provisions of the mandatory minimum statutes are
not severable from the statute as a whole. Commonwealth v. Hopkins, 117
A.3d 247, 262 (Pa. 2015); Newman, supra, 99 A.3d at 101.

4 However, PCRA counsel subsequently explained to the court that after
further research, he believed McCray’s prior record score was correct.




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would be resentenced, and directed PCRA counsel to file an amended petition

or “no merit” letter within 60 days to address the other claims raised in

McCray’s pro se petition. See id. at 2.

       Counsel did not comply with the court’s directive to file an amended

petition. Moreover, McCray filed a pro se amended petition on April 20, 2016,

followed by another request to proceed pro se and petition for a Grazier5

hearing. Thereafter, the PCRA court conducted a Grazier hearing on May 23,

2016. Although McCray expressed his desire to proceed without counsel, the

PCRA court denied his request, at that time, because the court wanted to

insure McCray’s rights were protected during his resentencing and PCRA

evidentiary hearings. See N.T., 5/23/2016, at 20-21 (the court stated: “I’m

not ready to let [counsel] out at this point.       There’s just too much.”).

However, the PCRA court effectively continued the hearing, indicating it would

permit McCray to renew his request at a later date. See id. at 22 (“But I’d

rather you talk to [counsel] before those hearing, and if you still want to

proceed pro se, then we’ll see how it goes.         So, for today, that’s my

decision.”).

       On June 23, 2016, the PCRA court conducted a hearing on McCray’s

remaining claims asserting the ineffective assistance of trial counsel for (1)

failing to request the court question a sleeping juror and (2) failing to object
____________________________________________


5   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).




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under the Pennsylvania Constitution when the prosecutor questioned McCray

regarding his post-arrest silence.6 Thereafter, on August 24, 2016, the PCRA

court entered an order denying, in part, McCray’s PCRA petition, and rejecting

both his sleeping juror and post-arrest silence claims.

       McCray appeared for resentencing on August 30, 2016, at which time

the court imposed a term of 81 months’ to 15 years’ imprisonment for PWID,

and concurrent terms of five to 10 years’ imprisonment for the firearms

charge, and three to 12 months’ imprisonment for the paraphernalia offense.

McCray filed two pro se petitions, requesting that counsel be allowed to

withdraw and permitting him to proceed pro se, as well as a pro se notice of

appeal. By order dated September 29, 2016, the PCRA court granted McCray’s

request to proceed pro se. This appeal follows.7, 8

____________________________________________


6 Although McCray challenged the court’s denial of a mistrial based upon this
improper questioning on direct appeal, this Court concluded McCray waived
any challenge under the state constitution because counsel’s objection at trial
was limited to “impeachment under the Fifth Amendment to the United States
Constitution.” McCray, supra, 105 A.3d 34 (unpublished memorandum at
*9-*10).

7 On September 26, 2016, the PCRA court ordered McCray to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
McCray complied with the court’s directive and filed a concise statement on
October 14, 2016.

8 We note that although the PCRA court granted McCray’s petition in part, and
ordered that he be resentenced, we still have jurisdiction to consider the
remaining claims for which the court denied relief. See Commonwealth v.
Grove, 170 A.3d 1127, 1137 (Pa. Super. 2017) (“PCRA court’s order granting
relief with regard to sentencing and denying all other claims … was a final
appealable order”).

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     Our review of an order denying PCRA relief is well-established:

     This Court reviews a PCRA court’s decision in the light most
     favorable to the prevailing party. Commonwealth v. Hanible,
     612 Pa. 183, 30 A.3d 426, 438 (2011). Our review is limited to a
     determination of whether the record supports the PCRA court’s
     factual findings and whether its legal conclusions are free from
     error. Id. “A PCRA court’s credibility findings are to be accorded
     great deference, and where supported by the record, such
     determinations     are   binding    on    a    reviewing    court.”
     Commonwealth v. Treiber, ___ Pa. ___, 121 A.3d 435, 444
     (2015) (citing Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d
     297, 301 (2011)). We review the PCRA court’s legal conclusions
     de novo. Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595,
     603 (2013).

Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016).

     McCray’s first two issues assert the ineffective assistance of trial

counsel.   When considering an allegation that counsel rendered ineffective

assistance, we bear in mind the following:

             “In order to obtain relief under the PCRA premised upon a
     claim that counsel was ineffective, a petitioner must establish
     beyond a preponderance of the evidence that counsel’s
     ineffectiveness ‘so undermined the truth-determining process that
     no reliable adjudication of guilt or innocence could have taken
     place.’” Commonwealth v. Payne, 794 A.2d 902, 905 (Pa.
     Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When
     considering such a claim, courts presume that counsel was
     effective, and place upon the appellant the burden of proving
     otherwise. Id. at 906. “Counsel cannot be found ineffective for
     failure to assert a baseless claim.” Id.

           To succeed on a claim that counsel was ineffective,
     Appellant must demonstrate that: (1) the claim is of arguable
     merit; (2) counsel had no reasonable strategic basis for his or her
     action or inaction; and (3) counsel’s ineffectiveness prejudiced
     him. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.
     2003).



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Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).                “To

demonstrate prejudice, a petitioner must show that there is a reasonable

probability that, but for counsel’s actions or inactions, the result of the

proceeding would have been different.” Commonwealth v. Mason, 130 A.3d

601, 618 (Pa. 2015).

       McCray’s first ineffectiveness claim stems from a conversation between

the trial court and both attorneys during the charging conference.          See

McCray’s Brief at 6-7.       In particular, McCray points to a comment by the

prosecutor that “a couple” of the jurors had fallen asleep, to which the court

responded, “I know there were a couple that were asleep and the one lady

was like this all the time.”9 N.T., 12/19/2012, at 272. McCray insists trial

counsel rendered ineffective assistant “by ignoring the fact that jurors had

been sleeping during his trial” and failing to move for a mistrial. McCray’s

Brief at 8.

       The PCRA court addressed this claim as follows:

       [McCray] alleges trial counsel was ineffective for not raising the
       issue of sleeping jurors with the Court. [McCray] bases this
       allegation solely on comments made on the record by the
       prosecutor and the Court during a charging conference. [McCray]
       has never alleged he observed any juror sleeping during trial. At
       the PCRA hearing both [McCray’s] trial counsel and the District
____________________________________________


9 At the PCRA hearing, trial counsel testified she believed the court’s comment
about “one lady” being “like this all the time” referred to a gesture the juror
was making, not that the particular juror had been sleeping. N.T., 6/23/2016,
at 18. The prosecutor agreed with this characterization, and testified “when
[the trial judge] indicated she saw a juror ‘like this,’ she made a gesture with
(sic) the person had their head down or their head back.” Id. at 27.

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      Attorney testified denying seeing any juror sleeping during trial.
      Trial Counsel testified she extensively observed the jury during
      the entire trial and did not see any juror sleeping. She further
      testified that if she had seen a juror sleeping she would have
      raised the issue with the Court because at that point in the trial
      they were looking for a mistrial. The Assistant District Attorney
      testified that although he did not make the comments in jest, he
      believes he was speaking colloquially and exaggerating some of
      the reactions of the jurors. The burden is on [McCray] to show
      the events he has alleged actually happened.           Regardless,
      [McCray] fails to show how trial counsel’s ineffectiveness in not
      bringing the sleeping juror issue to the Court prejudiced him.
      Prejudice is not established simply because [McCray] was
      convicted. [McCray] has an affirmative obligation to show actual
      prejudice resulted from the ineffectiveness alleged. He must show
      how he was prejudiced by the action of his counsel. Our Appellate
      Courts have consistently rejected the claim that trial counsel was
      ineffective for failure to request dismissal of a sleeping juror
      absent a showing of actual prejudice. See Commonwealth v.
      Lawson, 762 A.2d 753, 758 (Pa. Super. 2000).

            Here, [McCray] failed to establish that his trial counsel’s
      alleged failure so undermined the truth-determining process that
      no reliable adjudication of guilt or innocence could have taken
      place. At the PCRA hearing, [McCray] did not present any
      evidence that shows how he was prejudiced by trial counsel’s
      alleged error. A review of [McCray’s] claim fails to show how the
      outcome of the proceeding would have been different if his trial
      attorney had not committed the alleged error. Furthermore, on
      [his] direct appeal, the Superior Court [] found the trial record
      riddled with overwhelming evidence of [McCray’s] guilt. [See
      McCray, supra, 105 A.3d 34 (unpublished memorandum at
      *10)]. Accordingly, any purported error was harmless and non-
      prejudicial.

PCRA Court Opinion, 11/14/2016, at 3-4.

      Upon our review of the record, the parties’ briefs, and the relevant case

law, we find the PCRA court thoroughly addressed and properly disposed of

this claim in its opinion, and we rest on its well-reasoned basis.    See id.

Accordingly, McCray is entitled to no relief on his first issue.


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      Next, McCray asserts trial counsel was ineffective for failing to properly

object to the prosecutor’s questioning regarding his post-arrest silence. See

McCray’s Brief at 10-12. On direct appeal, McCray raised a variation of this

claim, arguing the trial court erred in failing to grant “his request for a mistrial

after the prosecutor made reference to his post-arrest silence.”          McCray,

supra, 105 A.3d 34 (unpublished memorandum at *8). The panel concluded

McCray was entitled to no relief under the Federal Constitution because the

United States Supreme Court has held that once a defendant chooses to

testify, the Fifth Amendment is not offended when a prosecutor uses a

defendant’s post-arrest silence to impeach his credibility.        See id. at *9.

Although McCray also argued the prosecutor’s question violated his state

constitutional rights, the panel found McCray had waived that claim since

counsel’s objection was based solely on the Fifth Amendment.               See id.

McCray now argues counsel’s failure to object based upon state constitutional

grounds    constituted   ineffective   assistance   because    the   Pennsylvania

Constitution prohibits all reference to a defendant’s post-arrest silence, even

if the defendant testifies at trial. See McCray’s Brief at 11. He insists he was

prejudiced by the prosecutor’s questioning, and trial counsel had no

reasonable basis for failing to make a proper objection. See id. at 11-12.




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       While we agree the prosecutor’s reference to McCray’s post-arrest

silence was impermissible under the Pennsylvania Constitution,10 we conclude

McCray is entitled to no relief because he failed to demonstrate prejudice.

Indeed, this Court has held that an impermissible reference to a defendant’s

post-arrest    silence    is   subject   to    a   harmless   error   analysis.   See

Commonwealth v. Mitchell, 839 A.2d 202, 214 (Pa. 2003). Although the

panel on direct appeal found this particular claim was waived, it also concluded

that any error was harmless. The panel stated:

             Additionally, as analyzed supra, the evidence of [McCray’s]
       guilt was overwhelming. Hence, we conclude that transient
       questioning on the matter was harmless error, Mitchell, supra,
       and that the trial court did not abuse its discretion in denying the
       mistrial request.

McCray, supra, 105 A.3d 34 (unpublished memorandum at *8). We agree.

See id. at *6 (detailing the “overwhelming” proof against McCray including

the fact he was “twice observed by a detective selling drugs to a CI[,]” he was

alone in the home at 6:00 a.m. when the warrant was executed, and there

were “various indicia that he lived in the home.”).             Accordingly, because

McCray is unable to establish he was prejudiced by counsel’s failure to object

based on a state constitutional violation, he is entitled to no relief on his

second claim.



____________________________________________


10 See Commonwealth v. Mitchell, 839 A.2d 202, 213 (Pa. 2003) (“[T]his
court has been consistent in prohibiting the post-arrest silence of an accused
to be used to his detriment.”).

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      In his final claim, McCray contends his August 30, 2016, sentence is

illegal. McCray argues the trial court improperly applied the deadly weapon

enhancement pursuant to 204 Pa. Code § 303.10 “based on the findings of

§ 9712.1, which is now unconstitutional and void” under Alleyne. McCray’s

Brief at 13. He reasons:

      The deadly weapon enhancement is being brought about from §
      9712.1, and has resulted in enhancing the sentence pursuant to
      the § 7508 charge. This factor was not presented to the jury.
      [The PCRA court] has ruled this to be unconstitutional pursuant to
      my case. Therefore, leaving the deadly weapon enhancement
      intact is unconstitutional as well.

Id.

      McCray’s claim fails for two reasons. First, as the Commonwealth points

out in its brief, McCray did not file a notice of appeal from his August 30, 2016,

judgment of sentence.      See Commonwealth’s Brief at 26-27.        Rather, the

notice of appeal herein references only the August 24, 2016, order denying,

in part, PCRA relief.    See Notice of Appeal, 9/21/2016.         Therefore, his

sentence is not before us for review.

      Nevertheless, even if we were to find his present appeal included the

August 30, 2014, judgment of sentence, this Court has held that “[t]he

imposition of the deadly weapon sentencing enhancement does not implicate”

Alleyne.   Commonwealth v. Shull, 148 A.3d 820, 830 n.6 (Pa. Super.

2016). See also Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10

(Pa. Super. 2014) (explaining that unlike a mandatory minimum sentence

which a court must impose, “[i]f the enhancement applies, the sentencing


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court is required to raise the standard guideline range; however, the court

retains the discretion to sentence outside the guideline range.”), appeal

denied, 104 A.3d 1 (Pa. 2014). Accordingly, McCray is entitled to no relief on

his final claim.11

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/18




____________________________________________


11 In the argument portion of this claim, McCray also asserts his prior record
score was incorrect. See McCray’s Brief at 14. Assuming we have jurisdiction
to address this challenge to his sentence, see supra, we would find this claim
waived because it was not included in his court-ordered concise statement.
See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph (b)(4) are
waived.”).

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