J-S69008-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

DARIN DAVIS JR.

                         Appellant                  No. 1917 WDA 2016


              Appeal from the PCRA Order November 18, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012627-2008


BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                         FILED JANUARY 17, 2018

      Darin Davis Jr., appeals from the November 18, 2016 dismissal of his

second PCRA petition. We affirm.

      This matter arose from the July 21, 2008, shooting death of Jason

Glenn in Pittsburgh, Allegheny County, at approximately 9:30 p.m.           Mr.

Glenn approached Appellant outside Appellant’s apartment building on

Sandusky Court in Pittsburgh’s North Shore neighborhood. Mr. Glenn sought

to exchange his iPod for drugs. When Appellant would not return the iPod to

Mr. Glenn, the two engaged in a brief scuffle, which was witnessed by

Ladeana Anderson who was sitting in her car nearby.           Ms. Anderson later

expressed to police that Appellant had a platted hairstyle.




* Former Justice specially assigned to the Superior Court.
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     Following the scuffle, Mr. Glenn left the area, and Appellant briefly

entered his apartment before re-emerging and traveling in the same

direction as Mr. Glenn.     Shortly thereafter, Ms. Anderson heard two

gunshots. Another witness heard the same gunshots, and after investigating

the source of the sound, that witness discovered Mr. Glenn stumbling down

the street suffering from apparent gunshot wounds. The witness aided Mr.

Glenn as he collapsed, and asked him if he knew the shooter.      Mr. Glenn

responded that the shooter had “dreadlocks.”

     During an investigation into the shooting, police encountered Appellant

outside his apartment building, and stopped him since he matched the

description of the assailant provided by the eyewitnesses.        Appellant

accompanied the detectives to the police department, and after being

provided with Miranda warnings, he agreed to be interviewed.      Appellant

told police officers that he had fought with Mr. Glenn on the night in

question, that he took Mr. Glenn’s iPod, and that the iPod could be found on

his bedside table.    A search warrant was obtained and executed on

Appellant’s residence, and the iPod was found exactly where Appellant had

indicated it would be. No firearm was recovered.

     Based on the foregoing, and the accounts of the incident provided by

various witnesses, Appellant was charged with first-degree murder and theft

by unlawful taking.   A jury convicted him of both offenses, and Appellant

was sentenced to life in prison without parole for first-degree murder, and

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no further penalty for theft by unlawful taking.    Appellant appealed, and

argued that the evidence was insufficient to establish murder in the first

degree.      On March 12, 2012, we affirmed the trial court’s ruling.

Commonwealth v. Davis, 47 A.3d 1242 (Pa.Super. 2012) (unpublished

memorandum).        Appellant filed a petition for allowance of appeal to the

Supreme Court.

      While Appellant’s petition for allowance of appeal was pending,

Appellant filed his first PCRA petition, alleging only that his sentence was

illegal pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012), which

prohibited the use of mandatory life-without-parole sentences for juvenile

offenders.     Counsel was appointed, but the trial court held Appellant’s

petition in abeyance pending the outcome of his petition for allowance of

appeal.     His petition for allowance of appeal was denied by the Supreme

Court on December 31, 2012.        Commonwealth v. Davis, 63 A.3d 1243

(Pa. 2012).     On January 28, 2013, counsel filed a motion to withdraw,

contending that Appellant’s PCRA petition was meritless since he was twenty

years old at the time of the offense.       The PCRA permitted counsel to

withdraw, and on June 11, 2013, it filed its Rule 907 notice of intent to

dismiss.     On August 26, 2013, the court dismissed Appellant’s first PCRA

petition.

      On April 7, 2014, Appellant filed the instant PCRA petition, his second,

alleging various claims of ineffective assistance of counsel and challenging

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the sufficiency of the evidence underpinning his conviction. On January 24,

2014, counsel entered his appearance, but, on June 17, 2015, filed a motion

to withdraw. On November 17, 2015, the PCRA court granted that motion

and filed its Rule 907 notice of its intent to dismiss. Subsequently, on

November 18, 2016, it entered an order dismissing Appellant’s second PCRA

petition.

       Appellant filed a timely notice of appeal pursuant to the prisoner

mailbox rule. The court directed Appellant to file a Rule 1925(b) statement

of errors complained of on appeal.               Appellant served a copy of that

statement on the Judge and District Attorney’s office, but failed to file a copy

with the clerk of courts. Thereafter, the PCRA court authored a Rule 1925(a)

opinion acknowledging the claimed errors raised in Appellant’s 1925(b)

statement, but erroneously analyzing only the issue raised in Appellant’s first

PCRA petition.1 This matter is now ready for our review.

       Appellant raises three questions for our consideration:

       1. Whether Appellant’s ineffective assistance of counsel claim
          predicated on trial counsel’s failure to file a motion for
          judgment of acquittal raising the claim that all circumstantial
          and physical evidence properly admitted in this case is
          insufficient to prove beyond a reasonable doubt that Appellant
          killed Jason Glenn with the requisite element of specific
          intent, and that he was conscious of his intent, was previously
____________________________________________


1
   We can offer no explanation as to why the PCRA court noted the three
issues raised by Appellant and then proceeded to analyze an issue from the
first PCRA petition, which it had previously dismissed.



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         litigated or waived as a result of PCRA counsel’s
         ineffectiveness, and, if so, whether Appellant was prejudiced
         thereby?

      2. Whether Appellant was denied the effective assistance of
         counsel, as guaranteed under the United States and
         Pennsylvania constitutions, when trial counsel failed to secure
         and present identification expert testimony to show that
         police identification errors can substantially and injuriously
         influence the jury’s verdict?

      3. Whether trial counsel was ineffective by failing to register an
         objection or move for mistrial when the prosecutor, without
         establishing a proper foundation supported by record
         evidence, elicited testimony from Detective Weismantle which
         pervasively caused the jury to infer that Appellant, who was
         described in the police report as having platted hair when he
         was arrested, engaged in an altercation with the victim over
         the taking of an iPod when a fellow gang member with
         dreadlocks shot the victim and then disposed of the murder
         weapon as part of a gang-related criminal conspiracy?

Appellant’s brief at 4 (some capitalization omitted).

      As a preliminary matter, the Commonwealth raises a challenge to the

timeliness of this PCRA petition.   The timeliness of Appellant’s petition

implicates our jurisdiction. Commonwealth v. Miller, 102 A.3d 988, 992

(Pa.Super. 2014). If a PCRA petition is untimely, “neither this Court nor the

trial court has jurisdiction over the petition.”        Id. Any PCRA petition,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment of sentence becomes final” unless an exception to the

one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1).




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       Herein, the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on December 31, 2012. Thus, his judgment of sentence

became final on April 1, 2013,2 at the expiration of the period during which

he could petition the United States Supreme Court for review.         As such,

Appellant had until April 1, 2014, to file a timely PCRA petition. Appellant

filed the instant PCRA petition on April 7, 2014, rendering it facially

untimely. Nevertheless, Appellant contends that his petition, which is dated

October 8, 2013, was timely filed pursuant to the prisoner mailbox rule,

since that is when he placed it in the prison mailing system.

       We note that the certified record is devoid of any indication as to when

Appellant mailed his PCRA petition, other than the date he himself placed on

that petition. Under these circumstances, we could remand this matter for

an evidentiary hearing limited to Appellant’s contention that his petition was

timely filed. However, due to our disposition of this matter discussed infra,

we accept Appellant’s argument that he mailed his second PCRA petition

prior to the expiration of the one-year filing requirement pursuant to the

PCRA. Hence, we will consider the merits of his appeal.




____________________________________________


2
  We note that March 31, 2013, was a Sunday, and therefore, Appellant’s
judgment of sentence became final on Monday, April 1, 2013, the first
business day following the expiration of the ninety-day period to seek
review.



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      It is well-established that 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 from legal

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

In order to bring a claim properly before us, a petitioner bears the burden of

proving that his issues have not been previously litigated or waived. Id. at

1055 (citing Commonwealth v. Clark, 961 A.2d 80 (Pa. 2008)). Under the

PCRA, an issue is waived “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

postconviction proceeding.”     42 Pa.C.S. § 9544(b).      In addition, an issue

“not raised in the lower court [is] waived and cannot be raised for the first

time on appeal.” Pa.R.A.P. 302(a).

      With these principles in mind, we turn to Appellant’s three claimed

errors. Appellant first contends that PCRA counsel was ineffective for failing

to raise a claim in his first PCRA that trial counsel was ineffective for failing

to file a motion for judgment of acquittal during trial. Upon review of the

certified record, we observe that, at no point prior to this appeal, has

Appellant argued that trial counsel was ineffective for failing to move for a

judgment of acquittal at the conclusion of trial.         Although the instant

petition, and Appellant’s objection to counsel’s motion to withdraw,

challenged the sufficiency of the evidence underpinning his conviction, he did

not contest trial counsel’s or PCRA counsel’s stewardship in this regard.


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Moreover, Appellant previously challenged the sufficiency of that evidence on

direct appeal, and this Court affirmed his judgment of sentence.            See

Commonwealth v. Davis, 47 A.3d 1242 (Pa.Super. 2012) (unpublished

memorandum).         Since Appellant is raising this claim for the first time on

appeal, it is waived. Pa.R.A.P. 302(a).

         Appellant’s second and third issues raise claims regarding trial

counsel’s purported ineffectiveness during trial.     Thus, we consider them

together.     In his second issue, Appellant claims that trial counsel was

ineffective for failing to offer an expert witness on eyewitness identification.

Appellant’s third issue asserts that trial counsel was ineffective for failing to

object to the Commonwealth’s supposed prosecutorial misconduct during

trial.    As these claims arose from trial counsel’s conduct during trial,

Appellant was obligated to raise them in his first PCRA petition. As Appellant

failed to do so, these claims are waived.        Smith, supra; 42 Pa.C.S. §

9544(b).      Having determined that Appellant has not preserved any claims

for review, we discern no error in the PCRA court’s dismissal of his second

PCRA petition.3
____________________________________________


3
  Additionally, we observe that Appellant’s Rule 1925(b) statement of errors
complained of on appeal does not appear on the docket, and he did not
serve a copy of that document on the Allegheny County clerk of courts.
These failures serve as an independent basis for finding waiver of his claims.
Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002) (finding waiver
where appellant failed to properly file Rule 1925(b) statement with clerk of
courts).



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     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/2018




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