J-S47001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
                v.                           :
                                             :
                                             :
 DARRYL MATTHEW NELSON                       :
                                             :
                        Appellant            :   No. 891 WDA 2017

                 Appeal from the PCRA Order May 17, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0000529-2012


BEFORE:    OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                              FILED OCTOBER 11, 2018

      Appellant, Darryl Matthew Nelson, appeals pro se from the order entered

on May 17, 2017 in the Criminal Division of the Court of Common Pleas of

Allegheny County that dismissed, without a hearing, his petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.             We

vacate   the    order     dismissing   Appellant’s   petition,   affirm   Appellant’s

convictions, and vacate Appellant’s judgment of sentence and remand for

resentencing.

      The PCRA court summarized the historical facts and procedural history

in this case as follows:

      On December 12, 2011, agents from the Attorney General’s Office
      in conjunction with Detectives from [the] Monroeville Police
      Department were conducting surveillance of potential drug activity
      near the Days Inn Motel when they noticed what they believed to
      be a drug transaction occurring at [that location]. The police
      made a stop of a motor vehicle after [observing] what they

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     believed to be a drug transaction and found the individuals in that
     motor vehicle were in [] possession of stamp bags of heroin and
     a syringe[, which they appeared to be using] to inject the heroin.
     As a result of this stop, the police then began to focus on two
     particular rooms at the Days Inn, those being Rooms 319 and 329.

     During approximately a [one and one-half hour] period, the police
     observed what appeared to be seven different drug transactions,
     which occurred after an individual left Room 319, walked to the
     stairwell, [and] walked down several steps to meet an individual
     or individuals. In less than a minute, the individuals would depart
     and the individual who left Room 319 would return to that room.
     The police also saw an individual leave Room 329[, briefly enter
     Room 319, then leave Room 319 and go] down to another
     stairwell to meet another individual.

     Based upon their belief that ongoing drug transactions were
     occurring, the police obtained passkeys for both Rooms 319 and
     329, and the police initially approached Room 319, knocked on
     the door, and announced themselves as police officers. While at
     the door, they noticed a strong odor of marijuana emanating from
     Room 319. Receiving no answer from the occupants of that room,
     the police used the motel passkey to enter that room. The police
     found four individuals in that room, including [Appellant]. One of
     the other four occupants, Gerald Lee, had rented the room and he
     signed [a] consent to search form. As a result of that search,
     police found four hundred seven stamp bags of suspected heroin,
     which were in plain view in the room. They also found a [45
     caliber] semi-automatic handgun under the bed and a loose [45]
     caliber shell behind the bed.

     On April 8, 2013, [Appellant] was found guilty of one count of
     possession with intent to deliver a controlled substance [(PWID)],
     one count of possession of a controlled substance, and one count
     of criminal conspiracy to possess a controlled substance. A
     presentence report was ordered, and, on July 10, 2013,
     [Appellant] was sentenced to a period of incarceration of not less
     than three nor more than six years, to be followed by a period of
     probation of five years for his conviction of [PWID] and a
     consecutive sentence of two to four years for his conviction of
     criminal conspiracy to possess a controlled substance. [Appellant]
     was RRRI eligible, and accordingly, received two RRRI sentences.




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     Following his conviction, [Appellant] filed a timely appeal to [this
     Court. On November 19, 2015, we affirmed Appellant’s judgment
     of sentence, rejecting the sufficiency and suppression claims
     raised on appeal.      Appellant thereafter filed a petition for
     allowance of appeal to the Pennsylvania Supreme Court on or
     about December 17, 2015, which the Supreme Court denied on
     March 23, 2016].

     On or about May 9, 2016, [Appellant filed a timely pro se petition
     for collateral relief. In his petition, Appellant asserted a litany of
     errors, many of which were raised and rejected on direct appeal.
     Appellant specifically alleged that he received a sentence greater
     than the lawful maximum. Appellant’s petition also contained a
     request that counsel be appointed to represent him in litigating
     his PCRA petition.          Pursuant to Appellant’s request for
     court-appointed counsel, the PCRA court appointed Patrick K.
     Nightingale, Esquire (hereinafter referred to as “PCRA Counsel”)
     to represent Appellant].

     On February 8, 2017, PCRA [counsel filed a petition to withdraw
     as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927
     (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
     Super. 1988) (en banc) (hereinafter referred to as
     “Turner/Finley letter”). In his Turner/Finley letter, PCRA
     counsel requested permission to withdraw because, he concluded,
     the claims raised in Appellant’s petition were without merit.
     Specifically, counsel averred that the denial of Appellant’s motion
     to suppress and his sufficiency arguments were previously
     litigated.    In addition, PCRA Counsel determined that any
     argument that Alleyne v. United States, 570 U.S. 99 (2013)
     should be applied retroactively to Appellant’s claims was
     meritless.     Lastly, PCRA counsel concluded that Appellant’s
     ineffective assistance of counsel claim, premised upon trial
     counsel’s failure to seek severance of Appellant’s case, was
     without merit].

     After reviewing [Appellant’s PCRA petition and court-appointed
     counsel’s Turner/Finley letter, the PCRA court issued an order
     granting PCRA counsel’s motion to withdraw on February 8, 2017.
     The PCRA court’s order also included a notice of intention to
     dismiss pursuant to Pa.R.Crim.P. 907, advising Appellant that the
     court intended to dismiss his PCRA petition without a hearing for
     the reasons set forth in PCRA counsel’s Turner/Finley letter. The
     order also advised Appellant of his rights to obtain privately

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     retained counsel in order to pursue his PCRA petition, proceed
     without counsel, or withdraw his PCRA petition with prejudice.
     Lastly, the court’s order advised Appellant that he must file a
     notice with the court within thirty (30) days of the date of the
     order, explaining how he intended to proceed.[] Appellant was
     also advised that failure to file this notice within thirty (30) days
     would result in the court entering a final order dismissing his PCRA
     petition].

     On or about March 13, 2017, [Appellant filed a handwritten
     petition, in which he opposed dismissal of his PCRA petition
     (hereafter referred to as “petition in opposition”). In his petition
     in opposition, Appellant raised claims identical to those asserted
     in his direct appeal. While the petition in opposition indicated that
     the issues raised therein had not been previously litigated, they
     were the same sufficiency challenges that were previously
     asserted and rejected by this Court on direct appeal].

     On or about May 17, 2017, th[e PCRA court issued a final order
     dismissing Appellant’s PCRA petition without a hearing. The
     court’s final order advised Appellant of his right to file an appeal
     within thirty (30) days. Appellant filed the instant appeal on June
     1, 2017, and the PCRA court issued an order directing Appellant
     to file his Rule 1925(b) statement no later than August 8, 2017.
     Appellant thereafter timely filed his 1925(b) statement. The PCRA
     court issued its Rule 1925(a) opinion on June 22, 2018].

PCRA Court Opinion, 6/22/18, at 2-7 (footnotes omitted).

     Appellant’s pro se brief raises the following questions for our review:

     Did [the] trial court err in denying [Appellant’s] motion to
     suppress evidence that was the product of a forcible entry without
     a warrant, which was not justified under any recognized exception
     to the warrant requirement?

     Was the evidence sufficient to support [Appellant’s] convictions
     for possession of a controlled substance with intent to deliver and
     conspiracy where the Commonwealth merely established that
     [Appellant] was present in a hotel room where drugs were found?

     Whether or not [Appellant] was improperly convicted of both
     [PWID] and conspiracy to commit PWID?



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      Whether or not the affidavit of complaint was void for being
      conclusory and failing to set forth the facts that [Appellant]
      committed an offense?

      Whether or not trial counsel was ineffective for failing to file [a]
      motion for severance [as requested by Appellant]?

      Whether or not PCRA Court erred in permitting counsel to
      withdraw?

Appellant’s Brief at 4.

      Appellant’s first two claims respectively assert that the trial court erred

in denying his motion to suppress and that the evidence was insufficient to

support his convictions.     Appellant litigated both of these claims on direct

appeal and neither contention presents a cognizable theory under the PCRA.

Hence, no relief is due on these issues.         See 42 Pa.C.S.A. § 9543(a)(3)

(eligibility for relief requires petitioner to plead and prove that allegation of

error has not been previously litigated) and (a)(2) (listing grounds for

collateral relief under the PCRA).

      We read Appellant’s third claim as asserting that his convictions for

PWID and conspiracy to commit PWID should have merged for sentencing

purposes. Viewed as such, no relief is due.

      Whether convictions merge for sentencing purposes is a question

implicating the legality of a sentence. Commonwealth v. Baldwin, 985 A.2d

830, 833 (Pa. 2009). Consequently, our standard of review is de novo and

the scope of our review is plenary. Id. Challenges to the legality of a sentence

present   cognizable      claims   under   the   PCRA.     See    42   Pa.C.S.A.


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§ 9543(a)(2)(vii) (petitioner eligible for relief if conviction or sentence resulted

from imposition of sentence greater than the lawful maximum).


      Merger of sentences is governed by 42 Pa.C.S.A. § 9765. Section 9765

provides:

      § 9765. Merger of sentences

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765.

      “To convict a person of PWID, the Commonwealth must prove beyond a

reasonable doubt that the defendant possessed a controlled substance and

did so with the intent to deliver it.” Commonwealth v. Bricker, 882 A.2d

1008, 1015 (Pa. Super. 2005).           “To sustain a conviction for criminal

conspiracy, the Commonwealth must establish that the defendant (1) entered

into an agreement to commit or aid in an unlawful act with another person or

persons, (2) with a shared criminal intent and (3) an overt act was done in

furtherance of the conspiracy.” Commonwealth v. McCall, 911 A.2d 992,

996-997 (Pa. Super. 2006). As these definitions make clear, PWID does not

require proof of an agreement with another person to commit PWID and

conspiracy to commit PWID does not require proof that a person possessed a

controlled substance with the intent to deliver it. Appellant is not entitled to

relief since § 9765 precludes merger of PWID and conspiracy to commit PWID.

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See Commonwealth v. Causey, 833 A.2d 165, 177 (Pa. Super. 2003) (“it

is well established that the completed crime and the conspiracy to complete

the crime are separate and distinct offenses and do not merge for sentencing

purposes”), appeal denied, 848 A.2d 927 (Pa. 2004).

      In his next claim, Appellant appears to assert that the criminal complaint

and affidavit of probable cause filed against him were void because they were

vaguely worded and lacked a notary’s seal. This claim could have been raised

on direct appeal but was not.      Hence, it is waived.     See 42 Pa.C.S.A.

§ 9544(b).

      Appellant’s fifth claim contends that trial counsel was ineffective in

failing to seek severance of his charges from those of his co-defendants. On

this issue, Appellant’s brief does not cite pertinent case law or incorporate a

discussion of the factors that would make severance of Appellant’s charges a

viable strategy.   As such, Appellant’s fifth claim is subject to dismissal as

underdeveloped. See Pa.R.A.P. 2119(a) and Pa.R.A.P. 2101.

      Even if we were to reach the merits of this claim, we would conclude

that Appellant is not entitled to relief.   In order to prevail on a claim of

ineffective assistance of counsel, a PCRA petition must plead and prove: (1)

that the underlying claim is of arguable merit; (2) that counsel had no

reasonable strategic basis for his or her action or inaction; and (3) that, but

for the errors and omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different. Commonwealth


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v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The failure to satisfy any

prong of this test will cause the entire claim to fail.   Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa. Super. 2008). Finally, counsel is presumed

to be effective, and the petitioner has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2003).

      Under   Pa.R.Crim.P.   583(2),    “[d]efendants   charged   in   separate

indictments or informations may be tried together if they are alleged to have

participated in the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses. Pa.R.Crim.P. 583(2). Under

Pa.R.Crim.P. 583, “[t]he court may order separate trials of offenses or

defendants, or provide other appropriate relief, if it appears that any party

may be prejudiced by offenses or defendants being tried together.”

Pa.R.Crim.P. 583.

      The evidence recovered in this case was clearly admissible against all of

the co-defendants since the heroin was seized from several common and

readily available locations throughout the hotel room.    Appellant’s defense

that he was merely present in the room and not part of the narcotics

distribution conspiracy did not warrant severance. Counsel was not ineffective

for failing to advance such a meritless claim.

      Appellant’s final claim asserts that the court erred in granting PCRA

counsel leave to withdraw. After careful review of the certified record, we are

constrained to agree that Appellant’s petition raised a viable claim under


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Alleyne, notwithstanding the contrary determinations reached by PCRA

counsel and the PCRA court. As our disposition of this issue turns on a precise

understanding of the procedural history of this case, we recite the relevant

facts below.

      After a bench trial, the court found Appellant guilty on April 8, 2013. On

April 19, 2013, the Commonwealth filed notice of its intent to seek the

mandatory minimum penalties under 42 Pa.C.S.A. § 9712.1 (five-year

mandatory minimum for presence of a firearm in close proximity to controlled

substance) and 18 Pa.C.S.A. § 7508 (three-year mandatory minimum for

more than five grams of heroin attributable to each defendant). On July 10,

2013, the court sentenced Appellant to an aggregate period of incarceration

of five to 10 years’ incarceration followed by five years’ probation. Thereafter,

Appellant filed a timely notice of appeal on August 9, 2013.         This Court

affirmed Appellant’s judgment of sentence on November 19, 2015.             It is

abundantly clear from this timeline that Appellant’s case was pending on direct

appeal after the United States Supreme Court issued its June 17, 2013

decision in Alleyne.    In fact, Alleyne was decided before the trial court

sentenced Appellant.

      On or about May 9, 2016, Appellant filed a timely pro se PCRA petition

form in which he checked the box next to the contention stating that he was

serving a sentence that exceeded the lawful maximum. Subsequently, PCRA

counsel raised the Alleyne issue in his Turner/Finley letter in which he


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wrongly concluded that Alleyne had no application in this case. The PCRA

court concurred in this erroneous assessment and, after finding no other

issues of merit, granted counsel’s petition to withdraw and dismissed

Appellant’s petition.   See PCRA Court Opinion, 6/22/18, at 11-14.     These

circumstances support our conclusion that Appellant preserved appellate

review of an Alleyne claim by raising and presenting the issue before the

PCRA court.    See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.

Super. 2011) (illegal sentencing claim raised in PCRA petition and presented

before PCRA court is preserved for appellate review), appeal denied, 30 A.3d

487 (Pa. 2011).

      This Court has held that Alleyne may be applied in cases that were

pending on direct review when the United States Supreme Court issued its

decision.   See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super.

2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). Our decision in

Newman specifically held that the mandatory minimum sentencing scheme

at 42 Pa.C.S.A. § 9712.1 was unconstitutional. Also, in Commonwealth v.

DiMatteo, 177 A.3d 182, 191-193 (Pa. 2018), our Supreme Court held that

the mandatory minimum sentences found in 18 Pa.C.S.A. § 7508 were

unconstitutional in light of Alleyne. In addition, the DiMatteo Court made

clear that PCRA petitioners serving an illegal sentence under Alleyne are not

barred from obtaining relief through a timely postconviction petition so long




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as their judgments of sentence were not final when the decision in Alleyne

was announced. Id. That is precisely the case here.

     Since Appellant possesses a viable challenge to his sentence under

Alleyne, we are compelled to grant relief.    Hence, we affirm Appellant’s

convictions, vacate his judgment of sentence, and remand for resentencing

after new PCRA counsel is appointed.

     Order dismissing petition vacated. Convictions affirmed. Judgment of

sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2018




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