J-S07012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DOMINIQUE DANIELS,

                         Appellant                   No. 1892 EDA 2017


              Appeal from the PCRA Order Entered May 5, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0011105-2013


BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 01, 2018

      Appellant, Dominique Daniels, appeals pro se from the post-conviction

court’s May 5, 2017 order denying his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant presents claims of

ineffective assistance of counsel, and he also challenges the legality of his

sentence. After careful review, we affirm.

      On June 22, 2015, Appellant entered a negotiated guilty plea to third-

degree murder, possessing an instrument of crime, tampering with evidence,

unsworn falsification to authorities, and false reports to police. Appellant’s

convictions were premised on his murdering his stepmother, who suffered a

total of 73 stab wounds, and 60 other cuts and lacerations, totaling “133 knife
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related injuries.” N.T. Plea/Sentencing Hearing, 6/22/15, at 44.1 In exchange

for pleading guilty, Appellant was sentenced on June 22, 2015, to an

aggregate term of 25 to 50 years’ incarceration. Appellant did not file a direct

appeal.

       On May 23, 2016, Appellant filed a pro se PCRA petition. Counsel was

appointed, but rather than filing an amended petition on Appellant’s behalf,

counsel filed a petition to withdraw and a Turner/Finley2 ‘no-merit’ letter.

On March 24, 2017, the court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition. Appellant did not respond, and on May 5, 2017,

the court issued an order dismissing his petition and granting counsel’s

petition to withdraw.

       Appellant filed a timely, pro se notice of appeal. He also timely complied

with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.            Therein, Appellant raised the following

claims:

       A) The [PCRA] court abused its discretion when it denyed [sic] []
          Appelants [sic] PCRA petition that clearly raised and argued
          ineffective trial councel [sic].

       B) Ineffective trial councel [sic]

____________________________________________


1 For a detailed recitation of the evidence the Commonwealth would have
presented against Appellant at trial, see id. at 34-45.

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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         1) Trial councel [sic] was ineffectave [sic] for withholding
            sections of [the] discovery packet until the day [the] plea
            bargen [sic] was offered.

         2) Trial councel [sic] was ineffectave [sic] for forcing false
            admition [sic] of guilt.

         3) Trial councel [sic] was ineffectave [sic] for failing to
            submit [Appellant’s] evidence to the courts[.]

         4) Trial councel [sic] was ineffectave [sic] for advising and
            influsing [sic] [Appellant] to lie during [the] guilty plea
            acceptance hearing.

         5) Trial councel [sic] was ineffectave [sic] for not allowing
            [Appellant] to rightfully and leagaly [sic] testify before
            the court[.]

Rule 1925(b) Statement, 7/25/17, at 2 (pages unnumbered; unnecessary

capitalization omitted).

      Herein, Appellant states the following two issues for our review, which

we have reordered for ease of disposition:

      1. Did the PCRA court deny [Appellant] his state and federal due
         process rights pursuant to Cole v. Arkansas[, 333 U.S. 196
         (1948),] and its progeny because the PCRA court refused to
         correct [Appellant’s] illegal sentence even though the
         Commonwealth conceded that [Appellant] was convicted and
         sentenced on offences [sic] for which he was never charged?

      2. Did the PCRA court deny [Appellant] his state and federal
         constitutional rights to effective assistance of counsel pursuant
         to Strickland v. Washington, [104 S.Ct. 2053 (1984),]
         Brady v. Maryland[, 373 U.S. 83 (1963),] and their progenies
         because counsel 1) failed to investigate[,] 2) withheld
         exculpatory evidence[, and] 3) overrode [Appellant’s]
         expressed desire to testify?

Appellant’s Brief at vi (unnecessary capitalization omitted).

      To begin, we recognize that “[t]his Court’s standard of review from the

grant or denial of post-conviction relief is limited to examining whether the


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lower court’s determination is supported by the evidence of record and

whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 516,

520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4

(Pa. 1995)).

       In Appellant’s first issue, he contends that because the trial court

permitted the Commonwealth to amend the charges pending against him on

the day he pled guilty, he was effectively “convicted and sentenced on

offenses for which he was never charged[,]” thus rendering his sentence for

those offenses illegal. Appellant’s Brief at 6. Preliminarily, we agree with the

Commonwealth that Appellant’s sentencing claim does not constitute a

challenge to the legality of his sentence. As the Commonwealth points out,

“[o]ur Supreme Court has held that a claim involving the underlying charges

does not implicate the legality of the sentence for those charges.”

Commonwealth’s Brief at 11 (citing Commonwealth v. Spruill, 80 A.3d 453,

461-62 (Pa. 2013) (“[E]very criminal defense claim on direct appeal, if

successful, will result in some effect upon the ‘sentence,’ since it is the

judgment of sentence that is the appealable order. But, that does not convert

all claims into sentencing claims, much less into claims that a sentence was

‘illegal.’”)).   Because Appellant’s sentencing claim does not implicate the

legality of his sentence, we conclude that he has waived it by not raising it in

his PCRA petition, or in his Rule 1925(b) statement. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the

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Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”). Moreover, even if Appellant had asserted this

issue in his PCRA petition and Rule 1925(b) statement, we would also deem it

waived because he did not raise it in a direct appeal from his judgment of

sentence. See 42 Pa.C.S. § 9543(a)(3) (stating that, to be eligible for PCRA

relief, the petitioner must demonstrate his claim was not waived); 42 Pa.C.S.

§ 9544(b) (stating that 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 post[-]conviction proceeding”).

      Notwithstanding Appellant’s waiver of his sentencing claim, we note that

we would deem it meritless. The record demonstrates that at the start of

Appellant’s guilty plea proceeding, the court permitted the Commonwealth to

amend the charges against Appellant to include tampering with evidence, false

reports to police, and unsworn falsification to authorities.         See N.T.

Plea/Sentencing at 6. Defense counsel stated that he had discussed those

amendments with Appellant, and that the defense had no objection to the

addition of those charges. Id. The court informed Appellant of the maximum

sentences for each of his charges, including the amended offenses. Id. at 21-

22. It also explained to Appellant the elements of all the offenses to which he

was pleading guilty, including the three additional offenses that were added

by the amendment. Id. at 25-30. Appellant confirmed that he understood

those elements and the nature of the charges against him. Id. at 30, 46. He

then stated he was guilty of each of the offenses of third-degree murder,

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possessing an instrument of crime, false reports to police, tampering with

evidence, and unsworn falsification to authorities. Id. at 50-51. The court

accepted Appellant’s plea and sentenced him for those crimes. Id. at 50, 59-

60. In light of this record, we would ascertain nothing illegal, nor improper,

regarding the Commonwealth’s amendment of the charges against Appellant,

or the court’s imposition of his sentence for those offenses.

      Next, we address Appellant’s claim that his trial counsel acted

ineffectively. We conclude that Appellant has waived his ineffectiveness issues

for our review. In Appellant’s pro se petition, his entire statement under the

“facts in support of the alleged error(s) upon which [his] motion is based” was

the following: “I had insufent [sic] counsel when accepting my plea bargain.”

Pro Se PCRA Petition, 5/23/16, at 3 (unnecessary capitalization omitted).

Then, in the section of his petition where Appellant “ask[ed] that the [c]ourt

consider the following argument, citation and discussion of authorities[,]”

Appellant simply stated, “I had ineffective counsel[.]” Id. at 7. At no point

in his pro se petition did Appellant specify any way in which counsel had

rendered deficient representation. He also did not list any witnesses that he

would call at an evidentiary hearing.          On appeal, Appellant offers no

explanation for why he was unable to assert his arguments with more

specificity in his pro se petition. His failure to do so is especially curious given

that he raised five particular claims of trial counsel’s ineffectiveness in his Rule

1925(b) statement, and he articulates specific contentions on appeal. In light

of this record, we conclude that Appellant waived his current claims for our

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review by not specifically alleging them in his PCRA petition. See Pa.R.A.P.

302(a). Moreover, to the extent that the claims Appellant raises herein differ

from those set forth in his Rule 1925(b) statement, they are waived on that

basis as well. See Pa.R.A.P. 1925(b)(4)(vii).

      Nevertheless, even had Appellant properly preserved the ineffectiveness

claims he asserts herein, we would discern no abuse of discretion or error of

law in the PCRA court’s dismissing his petition. Where, as here, a petitioner

claims that he received ineffective assistance of counsel, our Supreme Court

has directed that the following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
      “Counsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel's performance
      was deficient and that such deficiency prejudiced him.”
      [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
      886 [(Pa. 2010)] (citing Strickland, supra). In Pennsylvania, we
      have refined the Strickland performance and prejudice test into
      a three-part inquiry. See [Commonwealth v.] Pierce, [515 Pa.
      153, 527 A.2d 973 (Pa. 1987)].            Thus, to prove counsel
      ineffective, the petitioner must show that: (1) his underlying claim
      is of arguable merit; (2) counsel had no reasonable basis for his
      action or inaction; and (3) the petitioner suffered actual prejudice
      as a result. Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282,
      291 (2010). “If a petitioner fails to prove any of these prongs, his
      claim fails.” Commonwealth v. Simpson, [620] Pa. [60, 73],
      66 A.3d 253, 260 (2013) (citation omitted). Generally, counsel's
      assistance is deemed constitutionally effective if he chose a
      particular course of conduct that had some reasonable basis
      designed to effectuate his client's interests. See Ali, supra.
      Where matters of strategy and tactics are concerned, “[a] finding
      that a chosen strategy lacked a reasonable basis is not warranted

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      unless it can be concluded that an alternative not chosen offered
      a potential for success substantially greater than the course
      actually pursued.” Colavita, 606 Pa. at 21, 993 A.2d at 887
      (quotation and quotation marks omitted).           To demonstrate
      prejudice, the petitioner must show that “there is a reasonable
      probability that, but for counsel's unprofessional errors, the result
      of the proceedings would have been different.” Commonwealth
      v. King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
      quotation marks, and citation omitted).           “‘[A] reasonable
      probability is a probability that is sufficient to undermine
      confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
      86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins, 598
      Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466 U.S.
      at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      Presently, Appellant contends that defense counsel acted ineffectively

by not “conduct[ing] any reasonable investigation [or] present[ing] evidence

to [the] courts.”   Appellant’s Brief at 2.   He also complains that defense

counsel did not file any pretrial motions on his behalf, or ask for any

continuances to “consult with [Appellant] and defense witnesses….” Id. at 3.

Additionally, Appellant argues that defense counsel was ineffective for not

examining Appellant’s cell phone records, which he claims would have

“confirm[ed] that Appellant was at his father’s house” during the time of the

victim’s murder. Id. Appellant also avers that defense counsel was ineffective

for not investigating Appellant’s claim that the detective who first interviewed

him caused him physical injuries, including a dislocated shoulder “and multiple

lacerations….”   Id. at 4.    Finally, Appellant claims that defense counsel

ineffectively “told [Appellant] that he did not believe it was a good idea for

[Appellant] to take the stand because [the Commonwealth] would tear



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[Appellant] to pieces.” Id. at 5. Appellant maintains that counsel’s ineffective

advice in this regard denied him his right to testify and present a claim of self-

defense. Id.

      The record does not support Appellant’s assertions of ineffective

assistance of counsel.    First, Appellant does not specifically articulate how

counsel’s alleged failings caused him to enter an involuntary plea.          See

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (“A

defendant is permitted to withdraw his guilty plea under the PCRA if ineffective

assistance of counsel caused the defendant to enter an involuntary plea of

guilty.”). In any event, Appellant’s underlying arguments are also meritless.

For instance, Appellant does not explain what exculpatory evidence defense

counsel would have uncovered with further investigation, what pretrial

motions counsel should have filed, or what witnesses counsel unreasonably

failed to interview.

      We also point out that, at the guilty plea colloquy, the trial court

explained the pretrial and trial process to Appellant in great detail, stressing

that Appellant would have the right to call witnesses on his behalf, cross-

examine any Commonwealth witnesses, and testify on his own behalf. N.T.

Plea/Sentencing Hearing at 16. Among other things, the court also informed

Appellant that if he went to trial, he could “present a defense, justification or

excuse.” Id. Appellant acknowledged that he understood that by pleading

guilty, he was “giv[ing] up all those trial rights[.]” Id. at 19. Appellant also

confirmed that no one had made any promises to him to induce his guilty plea,

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nor had anyone threatened or “applied any force” to coerce him into pleading

guilty. Id. at 24. Appellant stated that it was his decision to plead guilty, and

he was making that decision of his own free will. Id. at 25. He confirmed

that he had discussed the plea with his attorney, and that he was satisfied

with his counsel’s representation. Id. Defense counsel also declared that he

had met with Appellant “on numerous occasions” to discuss “all options with

[Appellant,]” and “it was [Appellant’s] decision” to plead guilty. Id. at 49.

Counsel further stated that Appellant “understood the ramifications of a guilty

plea,” and that on each of the “numerous occasions” that counsel spoke with

Appellant, “there was never any sign of mental disability, disturbance or

anything of that nature.” Id. Counsel confirmed that Appellant had “always

… been articulate, and understanding, and intelligent of his situation.” Id.

      We further point out that, in regard to Appellant’s argument that counsel

should have investigated his cell phone records, the Commonwealth stated at

the plea proceeding that those records disproved Appellant’s claim that he

was staying at his father’s house on the date the victim was murdered. Id.

at 42-43. The record also belies Appellant’s assertion that defense counsel

was ineffective for not investigating Appellant’s accusation that a detective

caused his shoulder to be dislocated during an interview. At the plea colloquy,

the Commonwealth explained that Appellant had been hospitalized with a

dislocated shoulder before he was interviewed by a detective, and that

Appellant had told police numerous times that his shoulder injury happened

when he was “jumped, beat[en] and robbed” by “three unknown black males”

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two days before his stepmother was found dead. Id. at 38. Finally, Appellant

has not demonstrated that defense counsel’s advice not to testify on his own

behalf was unreasonable, where the Commonwealth’s evidence that the victim

suffered a total of “133 knife[-]related injuries[,]” including “73 stab

wounds[,]” would have contradicted Appellant’s claim of self-defense. Id. at

43-44.

      In sum, Appellant has waived both his sentencing challenge and his

ineffectiveness arguments for our review. Notwithstanding, we would deem

all of Appellant’s claims and sub-claims meritless, as they are not supported

by the record of Appellant’s guilty plea proceeding.    There, Appellant was

thoroughly colloquied, which demonstrated that he fully understood the

consequences of pleading guilty, and that he was doing so intelligently and

voluntarily. He also indicated that he was satisfied with defense counsel’s

representation. At the close of the proceeding, Appellant was sentenced in

accordance with the negotiated plea. In light of this record, we would discern

no abuse of discretion or error of law in the PCRA court’s denying Appellant’s

petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/18




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