J-S57041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
              v.                            :
                                            :
DANNY SILVA,                                :
                                            :
                    Appellant               :           No. 3701 EDA 2016

                 Appeal from the PCRA Order November 18, 2016
              in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0008101-2009

BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED OCTOBER 27, 2017

        Danny Silva (“Silva”), pro se, appeals from the Order dismissing his

first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We

affirm.

        In its Opinion, the PCRA court set forth the relevant factual and

procedural background, which we adopt herein for the purpose of this

appeal. See PCRA Court Opinion, 3/28/17, at 1-2.

        On appeal, Silva raises the following issues for our review:

        1. Whether the PCRA court err[e]d in dismissing [Silva’s] PCRA
           [Petition] without a[n] evidentiary hearing in light of his
           [n]ewly[-d]iscovered evidence?

        2. Whether [Silva] suffered ineffective assistance of counsel
           where prior plea counsel failed to conduct any form of pretrial
           investigation prior to STRONGLY ADVISING [Silva] to enter
           such a plea of guilty where the evidence clearly demonstrates
           [Silva’s] innocence?



1
    See 42 Pa.C.S.A. §§ 9541-9546.
J-S57041-17



      3. Whether [Silva] suffered layered ineffective assistance of
         counsel where court-appointed PCRA counsel failed to conduct
         any form of interview of [Silva’s] witnesses[,] as proffered in
         [Silva’s] PCRA [Petition,] to ascertain[] the circumstances of
         their initial statements?

Brief for Appellant at 4 (unnumbered, emphasis in original).2

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We grant great deference to
      the factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      In his first issue, Silva contends that the affidavit of Fabian Pabon

(“Pabon”) constitutes newly-discovered evidence, which satisfies the PCRA’s

timeliness exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii).       Brief for

Appellant at 7-8 (unnumbered). Silva claims that the PCRA court erred by

dismissing his Petition without conducting an evidentiary hearing to assess




2 The Argument section of Silva’s brief fails to comply with the requirements
of Pa.R.A.P. 2119(a), which provides that “the argument shall be divided
into as many parts as there are questions to be argued; and shall have at
the head of each part--in distinctive type or in type distinctively displayed--
the particular point treated therein ….”


                                  -2-
J-S57041-17


the credibility and significance of Pabon’s recantation of his statement to

police. Id. at 8.

      In its Opinion, the PCRA court addressed Silva’s first issue, set forth

the relevant law, and determined that the court lacked jurisdiction because

Silva had failed to establish the newly-discovered evidence exception to the

PCRA’s timeliness requirements. See PCRA Court Opinion, 3/28/17, at 3-6.

We agree with the reasoning of the PCRA court, which is supported by

evidence of record and is free of legal error, and affirm on this basis as to

Silva’s first issue. See id.

      In his second issue, Silva contends that his plea counsel, Fortunado

Perri, Esquire (“Attorney Perri”), induced Silva to enter a guilty plea without

conducting any form of pretrial investigation, despite Attorney Perri’s access

to (1) investigative reports that challenged Pabon’s account of events; and

(2) “[Silva’s] alibi that entailed surveillance footage during the time of the

decedent being shot and killed.”    Brief for Appellant at 10 (unnumbered).

Silva further asserts that Attorney Perri’s failure to investigate “implicates

trial strategy prior to inducing [Silva] to enter an unknowing guilty plea.”

Id. at 11. Silva also claims that Attorney Perri was ineffective for failing to

perfect a direct appeal, as evidenced by the affidavit of his mother, Dolores

Rios (“Rios”). Id. Silva contends that Rios’s affidavit states that, when she

inquired as to the status of Silva’s appeal for sentence reduction, Attorney

Perri told her that it was too late to file an appeal, as the 30-day period in



                                  -3-
J-S57041-17


which to file an appeal had expired. Id. at 12. Silva asserts that, even if

the record is insufficient to determine whether he requested that an appeal

be filed, Attorney Perri may still be deemed ineffective for failing to

adequately appraise Silva of his appellate rights. Id.

      In its Opinion, the PCRA court addressed Silva’s second issue, set forth

the relevant law, and determined that the court lacked jurisdiction because

Silva had failed to specify how his ineffectiveness claim satisfied any of the

PCRA’s timeliness exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

See PCRA Court Opinion, 3/28/17, at 6-7. We agree with the reasoning of

the PCRA court, which is free of legal error, and affirm on this basis as to

Silva’s second issue. See id.

      In his final claim, Silva contends that, upon receiving the affidavits of

Pabon and Rios, he forwarded them to his court-appointed PCRA counsel,

Lee Mandell, Esquire (“Attorney Mandell”), but received no response or

acknowledgment from Attorney Mandell.              Brief for Appellant at 7-8

(unnumbered).      Silva asserts that the PCRA court erred by “adopting

[Attorney] Mandell’s assertion of a no-merit letter without [Attorney]

Mandell[] conducting the barest of investigation[,] i.e. investigating []

Pabon.” Id. at 9. Silva also claims that Rios’s affidavit establishes Attorney

Perri’s ineffectiveness in failing to file a direct appeal. Id. at 11-12.

      In its Opinion, the PCRA court addressed Silva’s third issue, set forth

the relevant law, and determined that the court lacked jurisdiction because



                                   -4-
J-S57041-17


Silva had failed to specify how his layered ineffectiveness claim satisfied any

of   the   PCRA’s   timeliness   exceptions    set   forth   at   42   Pa.C.S.A.

§ 9545(b)(1)(i)-(iii).   See PCRA Court Opinion, 3/28/17, at 7.        The PCRA

court further determined that Silva had failed to raise his layered

ineffectiveness claim in response to the court’s Pa.R.Crim.P. 907 Notice of its

intent to dismiss Silva’s Petition. Id. We agree with the reasoning of the

PCRA court, which is free of legal error, and affirm on this basis as to Silva’s

third issue. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/27/2017




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                                                                 RIMINAL TRIAL DIVISION                                              Criminal ,.i._._., ... � •• .: 'JOit
                                                                                                                                    ArstJudicial oistnct of PA
           COMMONWEALTH
                                                                                                                      CP-51-CR-0008101-2009

                                                v,
                                                                                                                      Superior Court No.
                                                                     CP· I-CR-0008101,2009 Cornm. v Silva, D.v,ny     3701 EDA 2016
           DANNY SILVA                                                                 Qp,nlon



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      March 28, 2017

                                                                                        OPINION

           PROCEDURAL HISTORY:

                               On June 21, 2010, Danny ilva (hereafter, petitioner) entered into a negotiated guilty plea' to

            charges of murder of the third deg ee (H-3) and possessing instruments of crime (Piq (M-1).2 That

            same day, consistent with the ncga['ations, petitioner wa.s sentenced to a term of not less than 18

            years nor more than 36 years in pri on.3 Notes of Testimony (N.T.) 6/21/10 at 30. Petitioner did

            not file post-sentence motions or                               notice of appeal.

                                On January 6, 2015, pctitio er filed an untimely PCRA petition, prose. On June 10, 2015,

            Lee Mandell. Esquire was appoint d to represent petitioner on collateral attack," On June 3, 2016,

            this Court issued an Order instruc                               g PCRA counsel to submit a filing by September 2, 2016.5 On



            1 A I the time of his                    guilty plea, petitioner as represented by Fortunato Pcm, Esquire.
            2   18 Pa.C.S. §§ 2502(c) and 907(a}, respec vdy.

            l As to the charge of third.degree murder, petitioner was sentenced co not less than 18 years nor more than 36 years in
            prison, with credit for time served. As to e charge of PIC, petitioner W:IS sentenced to a concurrent term of not less
            than one yeir nor more than five years in rison. N.T. <i/21/10 at 30.

            � Mr, Mandell was appointed pursuant to a.R.Crim.P. 904((.) and Cnmmonwea)rh v. Perez., 799 A.2d 848 (Pa.Super,
            2002) (holding that an indigent petitioner · entitled 10 appointment of counsel on a first PCRA petition, even where
            petition is untimely on its face).

            s This matter was forwarded to the Court · n May 25, 2016, at which time this Court noted that the docket did not
            reflect any submission by Mr. Mandell sin e his appointment.
          ·-··-----------�- - ... �--·-----               . ..... -�-·--·--·--· � ....   ·----   ·-·-··   --· ...   --· ......   --   -




August 25, 2016, counsel submitte a Finlcy6 "no merit" letter and a motion to withdraw as counsel.

Having considered the pleadings a , d conducted its own independent review of the record, on

October 18, 2016, this Court sent etitioner notice of its intent to deny and dismiss petitioner's

PCRA petition without a hearing                rsuant to Pa.RiCrim.P. 907 (907 Notice). Consistent with its

907 Notice, on November 18, 201 , this Court denied and dismissed petitioner's PCRA petition.'

This timely appeal followed.

LEGAL ANALYSIS:

           Petitioner raises the follow g issues on appeal:8

       1) Whether the PCRA Court rrcd in dismissing his PCRA Motion without an evidentiary

           hearing in light of his newl -discovcrcd evidence?

       2) Whether the PCRA Court rred in dismissing his PCRA Motion without an evidentiary

           hearing where petitioner d monstrated that his guilty plea was unintelligently entered where

           there was no factual basis     t     permit the plea court to accept such a plea?

       3) Whether petitioner suffere ineffective assistance of counsel where prior plea counsel failed

            to conduct any form of pr trial investigation prior to strongly advising petitioner to enter a

           guilty plea?

       4) Whether petitioner suffere layered ineffective assistance of counsel where court-appointed

            PCRA counsel failed to co duct an interview of petitioner's witnesses as proffered in

            petitioner's PCRA petition to ascertain the circumstances of their initial statement?

       5) Whether petitioner sufferc layered ineffective assistance of counsel where PCRA counsel

            failed to have independent           NA testing conducted upon the blood evidence collected?



 6   Comm@"'-'l'filrh v, Eiuky, 550 A.2d 213     a.Super 198B).
 7   Counsel was also permitted 10 withdraw

 a These issues have been rephrased and c nsolidaicd foe ease of disposition.

                                                                  2



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   6) Should this matter be rema dcd for a full evidentiary hearing where petitioner has

        demonstrated a str.ongprin. fade case that a serious misc:wiage of justice erupted in the

        form of ineffective assistan e of counsel?

   7) Whether petitioner is servi g an unconstitutional sentence in light of the retroactivity of

        Alleyne v. United States?

   I.       Newly-Discovered E Idence

        Petitioner claims that his p titian satisfied the second exception to the one-year time bar,

pursuant to 42 Pa.C.S. § 9545(b)(1 (ii), because of newly-discovered evidence, and that the matter

should be remanded for a full evid ntiary hearing. Petitioner's proffered evidence docs not satisfy

the strictures of the timeliness exc ption, and, therefore, his claim fails.

    A PCR.A petition not filed wi ' one year of the date that a petitioner's judgment of sentence

became "final" must allege, and th petitioner must prove, one of the exceptions enumerated in 42

Pa.C.S. § 9545(b)(1), as well as the 'due diligence" provision of§ 9545(b)(2):

        (1 )(i) the failure to raise the claim previously was the result of interference by
        government officials with e presentation of the claim in violation of the
        Constitution or laws of thi Commonwealth or the Constitution or laws of the
        United States;

         (l)(ii) the facts upon which the claim is predicated were unknown to the petitioner
         and could not have been as c.rtained by the exercise of due diligence; or

         (1)(iii) the right asserted is constitutional right that was recognized by the Supreme
         Court of the United States r the Supreme Court of Pennsylvania after the time
         period provided in this sec on and has been held by that court to apply retroactively.

         (2) Any petition invoking a exception provided in paragraph (1) shall be filed within
         60 days of the date the c · could have been presented.



         In support of his claim, pe tioner submitted a post-conviction affidavit from Fabian Pabon

 (Pabon), where Pabon recanted his statement to police that he observed petitioner shooting the

 victim. Because these facts were as erted in Pabon's first statement to police and petitioner could

                                                         3
                                                            -- ·---------------·--·            ...   ···-· ------   .




have proceeded to trial and confr nred Pabon with bis inconsistent accounts of the shooting, this



         The timeliness exception · 42 Pa.C.S. § 9545(b){l)(ii) docs not require any merits analysis of



Court has made clear that the exc     tion merely requires that the petitioner "must establish that: 1)

'tl-iefacl! upon which the claim wa predicated were unknown' and 2) 'could not have been ascertained

by the exercise of due diligence."' cl., q11oti11g 42 Pa.C.S. § 9545(b)(l)(il} If petitioner alleges and

proves these two components, the a PCRA court bas jurisdiction over the claim, lg., dti11g

Commonwealth v. Lambert, 884          .2d 848, 852 (Pa. 2005).

                                       onviction affidavit of Pabon, which was notarized but was not

dated.                                 formation and the statement became known to him recently. ln

the affidavit, Pabon asserts that he lied when he spoke to police in the weeks following the shooting,

and further asserts that:

         I did not see Danny Silvas ooting and killing Ayres Robinson on March 7, 2009. I was at n
         friend's house on that nigh when I heard gunshots .. I then went outside a couple of minutes
         later to see what had happ ned. I did not see Danny Silva at the scene of the crime or
         anywhere.

 p

          Pabon's post-conviction af idavit provides facts which are essentially identical to Pabon's

 assertions in his first statement to olice following the shooting: On March 12, 2009, Pabon ·

 provided a written statement to po ice asserting that, at the time of the shooting, Pabon was inside

 his cousin's house when he heard g nshots outside. Pabon stated that he "went outside and saw

 people tunning up s•h Street. I wen up to where the guy was shot and saw that it was [the victim]."



 On Match 25, 2009, Pabon provid          a written statement to police asserting that he observed

 petitioner and the victim having a fi ·tfight in the street on the night of March 7, 2009. Pabon

                                                       4
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              observed that the victim appeared to be winuing the fistfight, and that petitioner proceeded to step

              backwards, pull out a handgun, an fire multiple shots into the victim's body. Also on March 25,

              2009, Pabon identified petitioner y photo array as the shooter. At petitioner's guilty plea hearing,

              the Commonwealth proffered the xpccted proofs it would have presented had the case gone to

              trial, and asserted that Pabon wou      testify consistently with his March 25, 2009 written statement

              and identification of petitioner as     e shooter. N.T. 6/21/10,    at   20-22.

                       First, it is noted that chis   urt conducted a colloquy with petitioner at his guilty plea

               hearing and explained to him that is decision to plead guilty meant that his appellate rights were

               limited only to this Court's jurisdi tion to accept bis plea, to the legality of his sentence, or to the

               voluntariness of his plea. N.T. 6/ 1/10 at 30-32. Petitioner replied that he understood. Td. 'Ibis

               Court also made clear that petition r would be bound by the answers he provided under oath in his

               colloquy, and petitioner replied thrit hc understood. Id. at 13-14. Du.ring the Commonwealth's

               proffer of the evidence it would h ve provided if the case had proceeded to trial, Pabon's March 25,

               2009 statement identifying petitio er as the shooter was read into the record; chis Court then asked

               petitioner if these were the facts t which he was pleading guilty, and petitioner replied "Yes, Your

                Honor." ld. nt 25.

                        In any event, Pabon's Mar h 12, 2009 statement was available at the time of petitioner's

                guilty plea. lf petitioner was com· ced that Pabon was lying in his March 25, 2009, statement, he

                had every right to refuse to plead     ulty, go to trial, and have his counsel confront Pabon with his

                March 12'" statement where Pabo did not identify petitioner as the shooter. Petitioner instead

                admitted that Pabon's March 25th tatemcnt was accurate.and agreed to a negotiated deal which

                allowed him to avoid the charge o first degree murder. Further, petitioner has not demonstrated

                why he could not have, through re sonablc diligence, presented this drum earlier, as the facts

                asserted in Pabon's posr-convictio affidavit are virtually identical to Pabon's assertions in his March


                                                                       5
12th statement. As petitioner did ot satisfy either prong of the timeliness exception for after·

discovered facts, this Court did n t have jurisdiction to entertain this claim.

     IL        Guilty Plea Unintelli ibly Entered Without Factual Basis

          Petitioner claims that his       · t'j plea was not entered intelligibly and that there was no factual

basis to support the plea," As this claim does not meet any of the timeliness exceptions, it fails.

          Because this petition was led more than a year after judgment became final, it must meet

one of the timeliness exceptions s ted in 42 Pa.C.S. § 9545(b)(1), supra. The burden is on petitioner

to allege and prove that a timclinc s exception applies. Q2romonweal.th,.Y:.&�mk'-t9n1 65 .A.3d 339

(Pa. 2013). Petitioner failed to all       e or prove that a timeliness exception applied to this claim. This

Court therefore lacked jurisdictio to decide on the merits of the claim. and it fails.

     III.      Ineffective Assis tan        ofTrial Counsel

            In claims (3) and (6), pctiti ner argues that he suffered ineffective assistance of counsel and

that the matter should be remand d for a full evidenciru:y hearing. Specifically, he argues that

counsel was ineffective in failing t conduct any pretrial investigation prior to advising petitioner to

 enter a guilty plea.

            Allegations of ineffective a sistance of counsel arc insufficient to overcome otherwise



 where petitioner never argued that an exception to the PCRA timeliness provisions is applicable, his

 untimely petition was properly dis issed). Petitioner failed to specify how these claims satisfied one




 9 Petitioner entered his plea after an exte ive oral colloquy as well as aflcr reviewing and signing a written guilty plea
 colloquy form. J\t petitioner's guilty plea caring, the Commonwealth put forth the evidence II planned to introduce at
 trial to prove the case. In addition to P11b n's statement, the Commonwealth would have presented testimony from a
 medical examiner, additional cycwirnesse an officer of the Crime Scene Unit, and a firearms examiner. N.T. 6/21/10 :11
 20-24. Petitioner asserted that those were e facts to which he w:is pleading guilty. id. at 25. In the guilty plea colloquy
 foan, petitioner affirmed that the crimes , nd clements of the crimes to which he was pleading guilty were read 10 him.
 Written Colloquy at 3. There was, thus, i fact, 11 factual basis for petitioner's guilty pica.

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       of the three timeliness exceptions s t forth at 42 Pa.C.S. § 9545(b)(l) (i)-(iil). Therefore this Court

       lacked jurisdiction to hear the meri   of the claims. and they fail.

           Iv.      Ineffective Assistance ofPCRA Counsel

                 Petitioner claims he suffere layered ineffective assistance of PCRA counsel due to PCRA ·

       counsel's failure to conduct an int    · cw of petitioner's witnesses [sic] as proffered in bis PCRA

       petition to ascertain the circumstan es of their initial statements. This claim docs not satisfy any of

       the timeliness exceptions, nor was i raised at the proper time, and it therefore fails.

                 When counsel files a Finley no-merit letter to the PCRA court, the petitioner must allege any

       claims of ineffectiveness of PCRA ounscl in response to the court's notice of intent to dismiss

       pursuant to Pa.R.Crim.P. 907 (907       otice). Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa.Super,

       2012).    Sss also                       kard, SS A.3d 1177; 1186 (Pa. 2012) (finding petitioner's

       claims of PCRA counsel's effective ess to have been "properly preserved, having been raised at the

        PCRA level in the first instance").    s petitioner did not raise this claim in bis response to this

        Court's 907 Notice, it has been wai ed, and this claim fails.

                 Additionally, counsel cann t be found ineffective for failure to raise a meritless claim.

        Commonwealth v. Fears, 86 A.3d 95 (Pa. 2014). As this petition was not timely filed, every claim

        must have.met one of the three ti eliness exceptions in 42 Pa.C.S. § 9545(b)(1). Petitioner claims

        PCRA counsel was ineffective for ailing to interview Fabian Pabon. However, as was discussed in

        claim (1), Jtpm, Pabon's affidavit d es not constitute newly-discovered evidence for the purposes of

        § 954S(b)(l)(iI). PCRA counsel th rcfore cannot be considered ineffective for failing to interview

        Pabon.




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    V.       Ineffective Counsel ue to Failure to Test DNA Evidence

   Petitioner, for the first time on ppcal, claims be suffered layered ineffective assistance of

counsel due to PCRA counsel's fail e to conduct independent DNA testing of blood samples.l'' In

addition to the time bar discussed tpra, this claim has been waived.

         To be eligible for llCRA r ief, among other requirements, the allegation of error must not

have been waived. 42 Pa.C.S. § 95 3(a)(3). An issue is deemed waived if the petitioner could have

raised it but failed to do so before · 1, dw:ing trial, during unitary review, on direct appeal, or in a

prior PCRA proceeding. 42 Pa.C .. §9544(b). Superior Court has held that it" ... will not consider

a claim oo appeal which was not           lled to the trial court's attention at the time when any error

committed could have been correc ed." Commonwealth v. Brown, 701 A.2d 252, 254 (Pa. 1997)

(citations omitted). At the guilty pea hearing, the Commonwealth put forth the evidence it planned

to introduce at trial to prove the c se, They did not present or reference any DNA evidence. See

N.T. 6/21/10 at 20k24. In his PC·             petition, petitioner made no claim that DNA testing should

have been done. Because the cl              docs not satisfy any timeliness exception, and because the claim

has been waived, it fails.

     VI.       Constitutionality of eatence in Light ofAlleyne y. United States

           Petitioner, pleading the       eliness exception under 42 Pa.C.S. § 9545(b)(l)(iii), claims that



 retroactively and that the sentence he is serving is therefore unconstitutional. Speci6cally, petitioner

 claims that he must be re-sentence or granted other relief under Alleyne because his sentence is

 partially based on facts which tri crcd a mandatory minimum sentence. Because Alleyne is not




 10 Petitioner did not indicate to which bl d samples he is referring nor did he: indicate why he: did not request past·
 conviction DNA testing pursuant to 42 .C.S. § 9543.1. Petitioner merely claims that DNJ\ resting should have been
 done by PCRA counsel, bu! never menri ns that he requested PCRA counsel to do this.

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applied retroactively, and because etitioner's case was decided prior to Alleyne, petitioner's

sentence is constitutional and his c aim fails.

           The United States Suprcm Court held in Alleyne that "any fact that increases the

mandatory minimum is an 'clemen ' that must be submitted to the jury." lg. at 2155. There

are only limited circumstances in            hich new rules will apply to cases with a final conviction.

Schriro v. Sununerlin, 542 U.S. 34 , 351-52 (1989). Such circumstances arise when the new



accuracy of the criminal proceedin ." Id. at 352. The Third Circuit Court of Appeals and

our Superior Court have both fo              d that Alleyne is a procedural rather than a substantive

watershed rule of criminal proced c, therefore it does not apply retroactively to convictions

already finalized. U.S. v. Reyes, 75 F.3d 210, 212 (3d Cir. 2014); Commonwealth v.

Galloway, 2016 WL 1384692 at *6 (Pa.Super. 2016); Commonwealth v, Riggle, 119 A.3d

 1058, 1064-65 (Pa.Super, 2015)

 PCRA relief)."

            Here, petitioner's judgmen became final before Alleyne was decided." Since the

 rule announced in Alleyne docs n t apply retroactively, it has no bearing on this matter.

            Petitioner's claim that he p ed guilty to a mandatory sentence is also incorrect.

 Petitioner was sentenced to 18 to 6 years for third degree murder per negotiations, and was

 not subject to a mandatory minim m sentence.                 5.££ 18 Pa.CS.§ 1102(d)             ("[A} person who

 has been convicted of murder of              e third degree ... shall be sentenced to a term which

 shall be fixed by the court at not           ore than 40 years."); petitioner's sentence for the PIC




 11 ln .cr,mm.Qo\\'\'il)th y R11iz.. our Superi r Court held that� may only apply retroactively ifjudgment was not yet
 lin:il when � was decided on June 17, 2013. 131 A.3d 54, 59-60 (Pa.Super 2015).

 11   Petitioner's judgment became final Jul 21, 2010, thirty days after sentencing,

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      charge was also not a· mandatory s ntence, � 18 Pa.C.S. § 1104 ("A person who has been

      convicted of a misdemeanor may e sentenced to imprisonment for a definite term which

      shall be fixed by the court and s   be not more than .. •. [f]ive years in the case of a

      misdemeanor of the first degree.") Therefore Alleyne docs not apply to petitioner, and the

      claim fails.

              Accordingly, the judgmen    of sentence should be affirmed.

                                                              BY THE COURT:



                                                                �.��
                                                              M�RESA SARMINi                       J.




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                                                                          Received 7/19/2017 5:56:20 PM Superior Court Eastern District


                                                                               Filed 7/19/2017 5:56:00 PM Superior Court Eastern District
                                                                                                                        3701 EDA2016



                                    IN THE SUPERIOR COURT OF PENNSYLVANIA




 Commonwealth of Pennsylvania                                                 3701 EDA 2016
                  v.
 Danny Silva
   Appellant




                                                       PROOF OF SERVICE


   I hereby certify that this 19th day of July, 201 , I have served the attached document(s) to the persons on the date(s) and

in the manner(s) stated below, which service sat sties the requirements of Pa.RAP. 121:



Service

Served:                       Danny Silva
Service Method:               First Class Mail
Service Date:                 7/19/2017
Address:                      JP-6253      SCI-C al Township
                              1 Kelley Drive
                              Coal Township, P 17866
Phone:
Pro Se:




                /s/ Lindsey Rebecca Harteis
                  (Signature of Person Serving)

Person Serving:               Harteis, Lindsey R becca
Attorney Registration No:     313918
Law Firm:
Address:                      Office of the Distric Attorney
                              Three S. Penn Sq.
                              Philadelphia, PA 1 107
Representing:                 Appellee Comma wealth of Pennsylvania




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