J-S93029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYRIQUE I. JACKSON

                            Appellant                No. 3708 EDA 2015


             Appeal from the PCRA Order dated November 19, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009821-2007


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

MEMORANDUM BY SOLANO, J.:                            FILED MARCH 28, 2017

        Appellant, Tyrique I. Jackson, appeals pro se from the order dismissing

his petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541–9546.         Upon review, we affirm on the basis of the PCRA

court’s opinion.

        On November 5, 2008, a jury convicted Appellant of third-degree

murder.      We previously summarized the facts underlying Appellant’s

conviction as follows:

        On April 22, 2007, Ryan Haywood, Cedric Dowtin, David Alston,
        and Sterling Almond all met on East Bringhurst Street in
        Philadelphia so that Mr. Haywood could videotape Mr. Dowtin
        perform a rap. Mr. Dowtin’s rap was about a dispute he was
        having with Appellant. While Mr. Dowtin was rapping about
        Appellant, a small crowd formed to watch his performance.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        Appellant then arrived on the scene with a large group of people.
        Appellant called out to Mr. Dowtin, asking him if he was talking
        about Appellant in his rap. Then, Appellant pulled out a gun and
        fired a series of shots in the direction of Mr. Dowtin and the
        crowd that was watching him perform. Mr. Alston and another
        man, who was part of the crowd, Terrell Martin, were both shot
        but were able to run to safety. Mr. Almond, however, was shot
        through his left arm, with the bullet traveling through his chest.
        Mr. Almond was transported to the hospital where he was
        pronounced dead.

Commonwealth v. Jackson, 4 A.3d 201 (Pa. Super. 2010) (unpublished

memorandum at 1-2).

         On December 19, 2008, the trial court sentenced Appellant to 20 –

40 years’ incarceration.       Appellant filed a direct appeal and this Court

affirmed his judgment of sentence. See id. Appellant then petitioned the

Supreme Court for allowance of appeal.          The Supreme Court denied this

request on November 27, 2012.            Appellant did not seek review with the

United States Supreme Court, such that his conviction became final on

February 25, 2013. U.S. S.Ct. Rule 13; 42 Pa.C.S. § 9545(b)(3).

        On April 2, 2013, Appellant filed the instant PCRA petition pro se. On

December 19, 2013, the PCRA court appointed counsel, Attorney O’Hanlon,

to represent Appellant. Attorney O’Hanlon filed a “no merit” letter pursuant

to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), and sought

to withdraw his appearance on February 20, 2014. On May 27, 2014, the

PCRA court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907. On May 29, 2014, Appellant

hired    counsel,   Attorney   Cooley,   who   substituted   his   appearance   on



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Appellant’s behalf and requested additional time to review Appellant’s case.

The PCRA court granted Attorney Cooley’s request.            However, Attorney

Cooley ultimately petitioned to withdraw his appearance, which the PCRA

court granted on August 18, 2015.       The PCRA court once again appointed

Attorney O’Hanlon to represent Appellant.

      On October 13, 2015, the PCRA court entered an order noting that

counsel had filed a “Finley letter” and advising of its Rule 907 Notice to

dismiss the PCRA petition without a hearing.          Appellant filed a pro se

response on October 28, 2015.          On November 19, 2015, “after again

reviewing the no-merit letter filed by Mr. O’Hanlon and all filings,” the PCRA

court issued the order dismissing Appellant’s PCRA petition and granting

Attorney O’Hanlon’s request to withdraw his appearance. Appellant’s pro se

appeal followed.

      Appellant raises ten issues for our review:

         [1.]     Whether the PCRA court abused its discretion in
         dismissing Petitioner’s petition for post-conviction relief
         without first affording [P]etition[er] the opportunity to
         correct and amend his petition and proceed pro se?

         [2.]      Whether the lower court erred in dismissing
         Petitioner’s claim that trial counsel was ineffective for
         failing to investigate, interview, and present eyewitness
         Rodney Stevens at trial?

         [3.]     Whether the lower court erred in dismissing
         Petitioner’s claim that trial counsel’s failure to object to the
         trial court’s jury instruction on third degree murder and
         request a supplemental “beyond a reasonable doubt”
         charge was ineffective?




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         [4.]     Whether the lower court erred in dismissing
         Petitioner’s claim that trial counsel’s failure to present the
         testimony of character witnesses who were available to
         establish Petitioner’s reputation for peacefulness and non-
         violence deprived Petitioner of effective assistance of
         counsel?

         [5.]      Whether the lower court erred in dismissing
         Petitioner’s claim that trial counsel was ineffective for
         failing to object to the prosecutor’s improper remarks
         during closing arguments and move for a mistrial, or in the
         alternative request a cautionary instruction?

         [6.]      Whether the lower court erred in dismissing
         Petitioner’s claim that appellate counsel was ineffective for
         failing to argue (on direct appeal) how the trial court’s
         error prejudiced the Petitioner?

         [7.]      Whether the lower court erred in dismissing
         Petitioner’s claim that appellate counsel was ineffective for
         failing to challenge the legal sufficiency of the verdict?

         [8.]     Whether the lower court erred in dismissing
         Petitioner’s claim that trial counsel was ineffective for
         failing to request a charge on Petitioner’s theory of
         defense?

         [9.]      Whether the lower court erred in dismissing
         Petitioner’s claim that trial counsel’s failure to request an
         instruction on the limited purpose for which the jury could
         consider evidence that Petitioner was a violent and
         dangerous man?

         [10.]     Whether the lower court erred in dismissing
         Petitioner’s claim that trial counsel’s failure to object to the
         trial court requiring substantial doubt in order for an
         acquittal was ineffective?

Appellant’s Brief at 4.

      Preliminarily, we recognize there is no absolute right to an evidentiary

hearing on a PCRA petition because it is within the PCRA court’s discretion to

refuse to hold a hearing if the petitioner’s allegations are either “patently



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frivolous” or have no evidentiary or record support. See Commonwealth

v. Khalifah, 852 A.2d 1238, 1239–40 (Pa. Super. 2004).            We review a

denial of a post-conviction petition to determine whether the record supports

the PCRA court’s findings and whether its order is otherwise free of legal

error.    See Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super.

2011).     The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.   Commonwealth v. Carr,

768 A.2d 1164, 1166 (Pa. Super. 2001).

         To be eligible for relief pursuant to the PCRA, an appellant must

establish, among other things, that his conviction or sentence resulted from

one or more of the enumerated errors or defects found in 42 Pa.C.S. §

9543(a)(2).      He must also establish that the issues raised in the PCRA

petition have not been previously litigated or waived.          See id. at §

9543(a)(3).      An allegation of error “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.” Id. at § 9544(b).

         Here, Appellant, in nine of his ten issues, asserts that he received

ineffective assistance of counsel.       Counsel is presumed effective, and

Appellant bears the burden to prove otherwise.         The test for ineffective

assistance of counsel is the same under both the Federal and Pennsylvania

Constitutions.    See Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Jones, 815 A.2d 598,

611 (Pa. 2002). Appellant must demonstrate: (1) his underlying claim is of

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arguable merit; (2) the particular course of conduct pursued by counsel did

not have some reasonable basis designed to effectuate his interests; and (3)

but for counsel's ineffectiveness, there is a reasonable probability that the

outcome      of     the   proceedings   would   have   been   different.   See

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001), abrogated on

other grounds by Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). A

failure to satisfy any prong of the test for ineffectiveness will require

rejection of the claim. See Jones, supra at 611.

     Upon review of the record, we conclude that the Honorable Jeffrey P.

Minehart, sitting as the PCRA court, has authored an opinion which

accurately and adequately addresses each of the issues raised by Appellant

on appeal.        Judge Minehart’s April 12, 2016 opinion cites the record and

expands upon the aforementioned prevailing legal authority in reviewing

Appellant’s claims and explaining why they lack merit.          Accordingly, we

adopt the PCRA court’s opinion as our own. The parties shall attach a copy

of the PCRA court’s opinion in any further proceedings.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017


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