J-S34021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

JAMES COPELAND

                            Appellant                 No. 172 EDA 2016


            Appeal from the PCRA Order Dated December 18, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1007631-1999

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 16, 2017

        Appellant, James Copeland, appeals pro se from the order denying his

petition filed under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541–9546. We affirm.

        In a prior appeal, we summarized the procedural background of this

case as follows:

        Appellant’s first jury trial occurred in 2000, but that jury was
        unable to reach a verdict. His second trial was held in 2002, and
        that jury found Appellant guilty of two counts of first degree
        murder and one count of carrying a firearm without a license. In
        2006, however, this Court vacated Appellant’s sentence and
        reversed his convictions due to an erroneous jury instruction on
        alibi.  Appellant was then tried for a third time in 2011.
        Following his third trial, the subject of the instant appeal,
        Appellant was again convicted of two counts of first degree
        murder and one count of carrying a firearm without a license.
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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       The trial court sentenced Appellant to two consecutive life terms
       of imprisonment and no further penalty for the firearm
       conviction.

Commonwealth v. Copeland, 81 A.3d 75 (Pa. Super. 2013) (unpublished

memorandum at 1). This Court affirmed Appellant’s judgment of sentence.

Id.   Appellant sought relief with the Pennsylvania Supreme Court, but his

petition for allowance of appeal was denied on December 18, 2013.

Commonwealth v. Copeland, 82 A.3d 1053 (Pa. 2013).

       On April 22, 2014, Appellant filed the underlying PCRA petition pro se.1

The PCRA court appointed counsel on January 15, 2015.          Counsel filed a

Turner/Finley2 no-merit letter on June 5, 2015, along with a motion to

withdraw as counsel.           On July 20, 2015, Appellant filed a pro se

“Opposition/Response to Finley Letter”; on September 10, 2015, Appellant

filed a pro se amended PCRA petition. On September 16, 2015, the PCRA

Court issued notice of its intent to dismiss Appellant’s petition pursuant to

Pa.R.Crim.P. 907.        On September 26, 2015, Appellant filed a pro se

response, amended PCRA petition, and “Objection to Counsel’s Finley

Letter.” Appellant’s counsel filed a response to Appellant’s pro se amended
____________________________________________
1
  Appellant’s petition was timely because it was filed within a year of his
sentence becoming final. See 42 Pa.C.S. § 9545(b). Appellant’s sentence
became final on March 18, 2014, when the 90-day period for filing a writ of
certiorari with the United States Supreme Court expired. See U.S. Sup. Ct.
R. 13. Therefore, Appellant had until March 18, 2015 to file a timely PCRA
petition.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Finley v.
Pennsylvania, 550 A.2d 213 (1987) (en banc).


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PCRA petition on November 6, 2015.          On November 19, 2015, the PCRA

court filed another notice of intent to dismiss Appellant’s petition pursuant to

Pa.R.Crim.P. 907.      On November 30, 2015, Appellant filed a pro se

“Objection and Counterstatement to the Court’s Notice of Intent to Dismiss

Pursuant to Pennsylvania Rules of Criminal Procedure 907 with an

Addendum to Amend, Raise and Incorporate Prejudice and Cumulative Error

into Original PCRA.”    On December 18, 2015, the PCRA court dismissed

Appellant’s PCRA petition and granted counsel’s motion to withdraw.

Appellant, acting pro se, filed this timely appeal.

      Appellant presents four claims of trial counsel’s ineffectiveness:

      1. Appellant was denied effective assistance of counsel, as
         guaranteed under the U.S. and Pennsylvania Constitutions,
         when trial counsel failed to object after the trial judge was
         substituted before a verdict was recorded; thus violating
         Pa.R.Crim.P. 601, Presence of Judge, law of case doctrine,
         and the coordinate jurisdiction rule.

      2. Appellant was denied effective assistance of counsel, as
         guaranteed under the U.S. and Pennsylvania Constitutions,
         when trial counsel failed to object to inadmissible testimonial
         hearsay in the form of autopsy reports testified to by the
         Commonwealth’s medical examiner, inadmissible fabricated
         ballistics evidence, and the testimony of Dereck Cary who was
         incarcerated at the time of the events he testified about,
         therefore he could not have witnessed the events he states he
         saw.

      3. Appellant was denied effective assistance of counsel, as
         guaranteed under the U.S. and Pennsylvania Constitutions,
         when trial counsel failed to object after the trial judge
         neglected to instruct the jurors about the use of a written
         charge, in violation of Pa.R.Crim.P. 646, Materials Permitted
         in Possession of Jurors.


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      4. Appellant was denied effective assistance of counsel, as
         guaranteed under the U.S. and Pennsylvania Constitutions,
         when trial counsel erred in advising [A]ppellant not to take
         the stand.

Appellant’s Brief at 3-4.

      In reviewing the propriety of the PCRA court’s order denying Appellant

relief, we are limited to ascertaining whether the evidence supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002), appeal

denied, 808 A.2d 571 (Pa. 2002).          We defer to the findings of the PCRA

court, which will not be disturbed unless they have no support in the

certified record.    Id.    In addition, to be entitled to relief under the PCRA,

Appellant must plead and prove by a preponderance of the evidence that the

conviction or sentence arose from one or more of the errors enumerated in

Section 9543(a)(2) of the PCRA. One such error is “[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).

      Instantly, all four of Appellant’s issues challenge the effectiveness of

trial counsel.      The law presumes trial counsel has rendered effective

assistance.   Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.

2010). The burden of demonstrating ineffectiveness rests on Appellant as

the petitioner.     Id.    To satisfy this burden, the petitioner must plead and

prove that: (1) the underlying claim is of arguable merit; (2) counsel lacked

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a reasonable basis for taking the actions that are claimed to have been

ineffective; and (3) the ineffectiveness of counsel caused petitioner

prejudice. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

To demonstrate prejudice, the petitioner must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”          Commonwealth v.

King, 57 A.3d 607, 613 (Pa. 2012) (quotation marks and citation omitted).

If a petitioner fails to prove by a preponderance of the evidence any of the

Pierce   prongs,   the   court   need   not   address   the   remaining   prongs.

Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009),

appeal denied, 990 A.2d 727 (Pa. 2010). Where the underlying claim is

meritless, “the derivative claim of ineffective assistance of counsel for failing

to object has no arguable merit.” Commonwealth v. Spotz, 47 A.3d 63,

122 (Pa. 2012).    “[C]ounsel cannot be considered ineffective for failing to

pursue a meritless claim.” Commonwealth v. Lopez, 739 A.2d 485, 495

(Pa. 1999), cert. denied, 530 U.S. 1206 (2000).

      Consistent with the foregoing legal authority, we have reviewed the

record and conclude that Appellant’s claims of trial counsel ineffectiveness

do not warrant relief. The Honorable Steven R. Geroff, sitting as the PCRA

court, has ably addressed Appellant’s four claims, referencing prevailing

statutory and case law, as well as the evidence presented at trial. The PCRA

court explained:    (1) although substitution of the trial judge during jury


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deliberations occurred in violation of Pa.R.Crim.P. 601, Appellant was not

prejudiced3; (2) there is no arguable merit to Appellant’s claims regarding

the admission of testimony from Dr. Gulino, the Chief Medical Examiner for

the City and County of Philadelphia, the ballistics evidence from Detective

John Finor, and previously recorded testimony of Derrick Cary; (3) Appellant

was not prejudiced by trial counsel’s failure to object when the trial court did

not follow Pa.R.Crim.P. 646 and instruct the jurors about materials they

were permitted to possess; and (4) trial counsel had a reasonable basis for

advising Appellant not to testify on his own behalf due to impeachment

concerns, and Appellant was not prejudiced by his failure to testify because

____________________________________________
3
  This is the first issue presented in Appellant’s brief, yet he did not raise it
until he filed his pro se amended PCRA petition on September 10, 2015. In
response to the filing, PCRA counsel noted, “petitioner is not entitled to
review of this claim because he did not seek or obtain permission to file an
amended petition. See Pa.R.Crim.P. 905; Commonwealth v. Rykard, 55
A.3d 1177, 1192 (Pa. Super. 2012).” PCRA Counsel’s Response, 11/6/15, at
1, n1. PCRA counsel also stated:

                Although it is clear that [Rule 601] was violated . . .
         [Appellant] is not entitled to any relief because he did not and
         cannot prove that it is likely that a different verdict would have
         resulted had trial counsel proffered an objection. . . . Because
         the jury was given information it earlier had been exposed to
         [the jury was provided with portions of two witnesses’ police
         statements that previously had been introduced into evidence],
         no prejudice occurred. This is especially so because [Appellant]
         has not shown that the jury was unduly influenced by the
         statements and the Superior Court noted in its opinion affirming
         the judgment of sentence [that] the evidence was more than
         sufficient to support the verdict.

    Id. at 2.


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his alibi evidence was presented through another witness. Accordingly, we

adopt the PCRA court’s opinion in affirming the order denying Appellant

post-conviction relief.   The parties are instructed to attach a copy of the

June 21, 2016 opinion to any future filings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2017




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