J-S33010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DAYVON COX

                             Appellant                 No. 936 WDA 2015


                Appeal from the PCRA Order December 22, 2014
        in the Court of Common Pleas of Beaver County Criminal Division
                        at No(s): CP-04-CR-0000122-2006

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:               FILED: July 1, 2016

        Appellant, Dayvon Cox, takes this pro se appeal from the order

denying his timely first Post Conviction Relief Act1 (“PCRA”) petition without

a hearing.     Appellant intends to challenge the failures of prior counsel for

failing to (1) challenge the trial court’s decisions not to replace jurors during

trial, (2) assert a violation of Batson v. Kentucky, 476 U.S. 79 (1986)

during jury selection, (3) seek the appointment of a defense expert for the

sexually violent predator (“SVP”) proceeding, and (4) admit evidence that

DNA evidence of a third-party was obtained during sexual assault tests of

the rape victim. Additionally, Appellant claims his sentence is illegal under

Alleyne v. United States, 133 S. Ct. 2151 (2013). For the reasons that



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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follow, we remand this matter for a determination of the status of

Appellant’s privately retained counsel.

      This Court previously summarized the facts and procedures underlying

Appellant’s convictions as follows:

            In the prosecution of this case, the Commonwealth
            presented testimony from [J.M.], Misty Martin and
            Brandon Morgan. They testified to a meeting in East
            Rochester between the three (3) of them and
            [Appellant] and Brandon Revis. The purpose of this
            meeting was for Morgan to take [Appellant] and
            Revis to another individual who could supply them
            with marijuana. After reaching their destination and
            not finding the individual, [Appellant] pulled out a
            gun, struck Morgan in the head with it and forced
            Morgan back into the vehicle and made him drive.
            At this point, [Appellant] was in control of the
            vehicle’s passengers.    [Appellant] held a gun to
            [J.M.]’s head before again pointing the gun at
            Morgan. After forcing Morgan to pull into a parking
            lot, [Appellant] shot out the driver’s window in
            Morgan’s vehicle and asked Morgan if he thought “he
            was joking around”. Next, [Appellant] forced Morgan
            to drive toward Rochester. Morgan continued driving
            into Monaca and [Appellant] forced Morgan, at
            gunpoint, out of the driver’s seat and into the back
            seat. [Appellant] then began driving the vehicle.
            [Appellant] struck Morgan in the head with his gun
            once again and demanded any money that Morgan
            had with him. At this point, [Appellant] forced [J.M.]
            and Martin to remove their clothing.             Next,
            [Appellant] forced Morgan to withdraw three-
            hundred dollars ($300.00) at an ATM, while
            accompanied by Revis, and demanded any jewelry
            [J.M.] and Martin were wearing. After driving to
            another parking lot, [Appellant] told the three (3)
            victims to get out of the vehicle and then forced
            [J.M.] to return to the vehicle and perform oral sex
            on him, as well as, vaginal sex. [Appellant] also
            pointed his gun at Misty Martin and forced her to
            perform oral sex on Brandon Morgan. After a short


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          time, [Appellant] left Morgan and Martin and drove
          [J.M.] to an alleyway where he forced [J.M.] to
          engage in sexual activity with [four men in addition
          to Appellant] who had assembled there.

           Morgan and Martin were able to stop Aliquippa Police
       Officer Donald Lane as he was responding to a possible
       burglary call. They explained what had happened and a
       police bulletin was issued describing Morgan’s vehicle and
       [J.M.].   At approximately 3:45 a.m., Ambridge Police
       Officer Michael McQuaide located [J.M.], who was then
       transported to Aliquippa Hospital where a medical
       examination was conducted. At the hospital, [J.M.] told
       the investigating police officers that Appellant forced her to
       perform oral sex and engage in vaginal intercourse with
       him and four other men, who were later identified as
       Brandon Revis, Demarkus Walker, Enrico Jackson and
       Carlos Hicks. Walker subsequently stated that he and
       Jackson watched Appellant rape [J.M.]. When Appellant
       finished with her, all the men took turns raping and
       sexually assaulting her. When Appellant was arrested, he
       was found to be in possession of jewelry that belonged to
       [J.M.].

           Appellant was charged with multiple counts of rape,
       involuntary deviate sexual intercourse (IDSI), sexual
       assault, kidnapping, unlawful restraint, robbery, terroristic
       threats, simple assault, aggravated assault, and criminal
       conspiracy, and one count each of carrying a firearm
       without a license and robbery of a motor vehicle. On
       September 26, 2006, a jury convicted Appellant of three
       counts of kidnapping, four counts of robbery, one count of
       sexual assault, one count of carrying a firearm without a
       license, three counts of terroristic threats, one count of
       simple assault and one count of aggravated assault with a
       deadly weapon.     [18 Pa.C.S. §§ 2901, 3701, 3124.1,
       6106, 2706, 2701 and 2702, respectively.] The trial court
       ordered a pre-sentence investigation and report. The trial
       court also ordered an investigation to be conducted
       pursuant to Pennsylvania’s version of Megan’s Law[,
       former 42 Pa.C.S. §§ 9791-9799.9].

         A Megan’s Law hearing was conducted on February 7,
       2007, after which the trial court determined that Appellant


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          is a sexually violent predator. That same day, the trial
          court sentenced Appellant to serve an aggregate term of
          twenty-three to fifty-four years of incarceration. Appellant
          filed a post-sentence motion with several supplements, all
          of which were denied on July 5, 2007.

Commonwealth v. Cox, 1873 WDA 2007 (Pa. Super. Dec. 2, 2008)

(unpublished memorandum at 1-4).        Appellant was represented at trial by

Gerald V. Benyo, Esq.

        Although Appellant did not take a timely appeal, the trial court

reinstated his direct appeal rights on October 1, 2008. Id. at 4. Appellant,

represented by Patrick K. Nightingale, Esq., took a direct appeal, and this

Court affirmed on December 2, 2008. Id. at 35. The Pennsylvania Supreme

Court denied allowance of appeal on November 5, 2009. Commonwealth

v. Cox, 197 WAL 2009 (Pa. Nov. 5. 2009).

        Appellant, acting pro se, filed a timely PCRA petition, which the PCRA

court received on October 27, 2010. The court appointed counsel, Mitchell

P. Shahen, Esq., on December 7, 2010. Attorney Shahen filed an amended

PCRA petition on April 11, 2012. In his amended petition, Appellant claimed

prior counsel failed to challenge (1) the systematic exclusion of blacks from

the jury selection process, (2) references to Appellant’s codefendant’s guilty

pleas    and   codefendant’s   agreement    to   testify   truthfully,   (3)   the

Commonwealth’s improper remarks during opening statements, trial, and

closing statements, and (4) contact between the victim’s family and two

jurors in the courthouse’s parking garage. Additionally, Appellant asserted



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trial counsel was ineffective for failing to seek admission of evidence of the

victim’s sexual conduct, namely, the presence of seminal fluid that was not

matched to the victim’s boyfriend, Appellant, or Appellant’s codefendants.

Attorney Shahen’s petition also listed two claims that Appellant raised in his

pro se petition, but which counsel believed lacked merit.

      Subsequently, Attorney Shahen filed two motions: (1) a counseled

motion for a Grazier hearing on July 13, 2012,2 and (2) a motion to add

Appellant’s pro se claims to the amended PCRA petition on August 16, 2012.

The PCRA court, on August 23, 2012, granted leave to add claims to the

amended petition, but directed counsel to address whether those claims

lacked merit. On August 28, 2012, the court denied the amended petition

without a hearing and denied the motion for a Grazier hearing as moot.

The court did not issue a Pa.R.Crim.P. 907 notice in advance of its order

denying the amended petition.

      On September 14, 2012, Attorney Shahen filed a “no-merit petition

and memo” with respect to Appellant’s claims raised in Appellant’s initial pro

se petition. Attorney Shahen’s no-merit letter, however, did not address all

claims raised in his counseled amended petition.3       The PCRA court, on


2
  See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Appellant
previously filed a pro se motion for a Grazier hearing, which the PCRA court
docketed on June 29, 2012.
3
  Attorney Shahen’s no-merit letter addressed only one of the five claims set
forth in counsel’s amended petition.



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September 17, 2012, issued a Rule 907 notice of its intent to dismiss

Appellant’s “pro se petitions.”   On October 12, 2012, the court received a

pro se response from Appellant.

      No further action was taken until October 31, 2013, when the PCRA

court received Appellant’s pro se motion for a Grazier hearing.          On

December 23, 2013, the PCRA court scheduled a hearing on the motion.

Following a hearing, the court, on January 13, 2014, granted leave to

Attorney Shahen to withdraw and apprised Appellant of his right to proceed

pro se or with privately retained counsel. The court granted Appellant leave

to file an amended petition within 120 days. Appellant requested, and was

granted, an extension of time.

      On July 14, 2014, Chris R. Eyster, Esq., entered an appearance on

Appellant’s behalf, and filed a counseled PCRA petition. Appellant, through

counsel, asserted (1) trial counsel was ineffective for failing to seek

appointment of a defense expert for the SVP proceeding, (2) his sentence

was illegal under Alleyne, and (3) the Commonwealth, at sentencing,

committed prosecutorial misconduct by denying that it had offered a plea

deal to Appellant for ten to thirty years’ imprisonment.

      On July 22, 2014, without knowledge of Attorney Eyster’s petition, the

PCRA court entered an order denying Appellant’s first PCRA petition without

a hearing.   On July 30, 2014, Appellant filed a motion for reconsideration

and, on August 12, 2014, the PCRA court vacated its order. On October 29,



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2014, the court issued a notice of its intent to dismiss.      Appellant filed a

counseled response on November 24, 2014. The court denied the petition

without a hearing on December 22, 2014.

      Appellant filed a pro se notice of appeal, along with a letter to the clerk

of the court indicating that “previously retained counsel no longer represents

him in the above captioned matter” and was asked to remove himself as

counsel of record. Notice of Appeal, 1/11/15. The trial court apparently did

not forward the pro se notice of appeal to this Court, and Attorney Eyster, on

May 20, 2015, filed an application for relief in this Court requesting that the

appeal be docketed. Appellant filed a similar application for relief pro se.4

      This Court entered the following order on June 8, 2015:

            Upon consideration of appellant Cox’s pro se May 26,
         2015 “Application for Relief Seeking Permission to Docket
         Appellant’s Notice of Appeal,” it is hereby ORDERED: As
         Chris Rand Eyster, Esquire is listed as counsel of record for
         appellant, the prothonotary is directed to forward the
         instant application to counsel pursuant to Commonwealth
         v. Jette, 23 A.2d 1032 (Pa. 2011).

            Upon consideration of appellant Cox’s May 20, 2015
         “Application for Relief,” filed by Chris Rand Eyster, Esquire,
         the application is GRANTED such that the Clerk of Courts
         of Beaver County is DIRECTED to forward appellant’s
         Notice of Appeal to this Court forthwith.

Order, 6/8/15. Attorney Eyster has taken no further action in this Court.


4
  Although Appellant’s pro se application for relief is technically a nullity
because Attorney Eyster remains counsel of record, we note Appellant
asserted he could no longer pay Attorney Eyster and instructed counsel to
withdraw his appearance.



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     Appellant filed a pro se brief presenting the following questions for

review:

          Whether the PCRA court erred in finding that direct appeal
          counsel did not render ineffective assistance of counsel in
          violation of the 6th Amendment under the U.S.
          Constitution for counsel’s failure to argue on appeal that
          the trial court abused its discretion, therein violating the
          appellant’s Due Process rights under the 14th Amendment
          of the U.S. Constitution, by allowing a juror to remain on
          the jury after finding out that the juror was untruthful on
          his questionnaire and whether the inability of the appellant
          to have this critical withheld information made
          available/known to him at the time of the initial voir dire,
          effectively deprived the defense of its opportunity to utilize
          one of its peremptory challenges to have the juror
          removed, causing appellant to be prejudiced?

          Whether the PCRA Court erred in finding that direct appeal
          counsel did not render ineffective assistance of counsel in
          violation of the 6th Amendment under the U.S.
          Constitution for counsel’s failure to argue on appeal that
          the trial court abused its discretion, for refusing to remove
          2 jurors who had ex-parte communication with the mother
          and father of one of the alleged victims, causing the
          appellant to be denied his U.S. Constitutional right to a fair
          trial?

          Whether the PCRA Court erred in finding that direct appeal
          counsel did not render ineffective assistance under the 6th
          Amendment of the U.S. Constitution for counsel’s failure to
          argue on appeal that the trial court violated appellant's
          Due Process rights under the U.S. Constitution, 8th
          Amendment right to be free from cruel and unusual
          punishment when it abused its discretion in sentencing
          appellant to an illegal sentence pursuant to United States
          v. Alleyne, 133 S. Ct. 2151 (2013)?

          Whether the PCRA Court erred in finding that direct appeal
          counsel did not render ineffective assistance under the 6th
          Amendment of the U.S. Constitution for counsel’s failure to
          argue on appeal that the trial court abused its discretion
          when it allowed the Commonwealth to use its peremptory


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         strike to exclude a juror on the basis of race, thereby
         violating appellant’s 14th Amendment right to a fair trial
         under the U.S. Constitution, and 8th Amendment right to
         Equal Protection of the law and federal law, pursuant to
         Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106
         S. Ct. 1712 (1986)?

         Whether the PCRA Court erred in finding that direct appeal
         counsel did not render ineffective assistance under the 6th
         Amendment of the U.S. Constitution when counsel did not
         move the Court for appointment of a defense expert,
         whose testimony would have rebut the Commonwealth’s
         psychiatric expert who condemned appellant as a
         psychopath and SVP?

         Whether the PCRA Court erred in finding that direct appeal
         counsel did not render ineffective assistance under the 6th
         Amendment of the U.S. Constitution when counsel failed to
         take steps to seek admission of evidence consisting of the
         victim’s sexual activities with a third party, other than her
         paramour or one of the other codefendant’s for the
         purpose of attacking her credibility?

Appellant’s Pro Se Brief at 4-5.

      Preliminary, we must address Appellant’s pro se status in this appeal.

It is well settled that a PCRA petitioner has a right to counsel for the

purposes of his first PCRA petition and that the right extends through the

appeals process.   See Pa.R.Crim.P. 904; Commonwealth v. Smith, 121

A.3d 1049, 1053 (Pa. Super. 2015).            “[O]nce counsel has entered an

appearance    on   a   [petitioner’s]   behalf   he   is   obligated   to   continue

representation until the case is concluded or he is granted leave by the court

to withdraw his appearance.” Smith, 121 A.3d at 1053 (citation omitted).

      Instantly, Attorney Eyster has taken no further action of record after

this Court’s June 8, 2015 order forwarding Appellant’s pro se application for


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relief to counsel pursuant to Jette, and granting counsel’s application for

relief to proceed based on Appellant’s pro se notice of appeal. However, he

remains the attorney of record until he is granted leave to withdraw his

appearance.   See Smith, 121 A.3d at 1053.        Therefore, we remand this

matter to the PCRA court to determine the status of Attorney Eyster. If the

court determines Attorney Eyster remains as counsel, counsel shall file in

this Court an advocate’s brief or follow the procedures for withdrawal set

forth in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

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

Attorney Eyster no longer represents Appellant, the court shall determine

whether Appellant wishes to proceed pro se, see Grazier, 713 A.2d at 82,

or is entitled to the appointment of counsel for the purposes of this appeal,

see Smith, 121      A.3d at 1053.        The   PCRA court shall make       its

determinations within sixty days of this decision and transmit its findings to

this Court as a supplemental record.

      Case remanded with instructions. Panel jurisdiction retained.




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