J-S63013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARCUS LEE GRAHAM,

                            Appellant                No. 619 MDA 2014


                  Appeal from the PCRA Order March 12, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003377-2005


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARCUS LEE GRAHAM,

                            Appellant                No. 620 MDA 2014


                     Appeal from the Order March 12, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003378-2005


BEFORE: BOWES, PANELLA, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 31, 2014

       Marcus Lee Graham appeals from the March 12, 2014 orders denying

PCRA relief in two related actions. We affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        Appellant pled guilty to first-degree murder, robbery, conspiracy to

commit robbery, and related charges of kidnapping and burglary stemming

from an incident that occurred over a two-day period commencing March 3,

2005.    He and his co-defendants, Luis Fargas and Michael Hall, abducted

Jonathan Yocum and stripped, bound, and threatened him until he provided

the PIN number to his ATM card.       Appellant continued to hold Mr. Yocum

prisoner while Fargas and Hall took the victim’s Jeep and withdrew $500

from the victim’s account at a convenience store ATM.         The next day, the

three men held Mr. Yocum at gunpoint as they entered his home and stole

his checkbook, a PlayStation, and several large jugs of change. They forced

Mr. Yocum to fill out a withdrawal slip for $2,000, drove him to the bank

where he secured the cash, and then took the money from the victim. The

three co-conspirators continued to hold Mr. Yocum while they had breakfast

and shopped, and later, forced him to make another withdrawal from a bank

drive-through using a personal check.

        Appellant decided that Mr. Yocum had to be killed.      He and his co-

conspirators purchased plastic wrap and duct tape.        Appellant dropped off

Fargas near his home after paying him $200 for a gun and warning him not

to tell anyone about the events.     Appellant and Hall wrapped Mr. Yocum’s

head in multiple layers of plastic wrap and his body in layers of duct tape.

Then, Appellant fatally shot Mr. Yocum in the head, wrapped his body in a

green blanket, and left it in the back seat of his vehicle.




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      Appellant’s co-conspirator Hall was sentenced to life in prison; Fargas

was sentenced to twelve to twenty years imprisonment.           Appellant was

charged with first-degree murder and the Commonwealth notified him that it

intended to seek the death penalty. Appellant pled guilty to all charges and

received an aggregate sentence of life imprisonment plus forty to eighty

years incarceration.

      Appellant filed a post-sentence motion challenging his sentence as

excessive, and subsequently sought to withdraw his guilty plea alleging that

his counsel coerced it. Trial counsel, John Elder and Michael Dautrich, were

permitted to withdraw and new counsel was appointed. After a hearing on

Appellant’s petitions, the trial court denied relief. Appellant timely appealed

asserting the same issues.    Appellate counsel Jill Scheidt filed an Anders

brief and sought leave to withdraw.        This Court affirmed judgment of

sentence on December 2, 2009, and granted counsel’s motion to withdraw.

Commonwealth v. Graham, 990 A.2d 44 (Pa.Super. 2009).              Appellant’s

petition seeking an extension of time to file a petition for allocatur was

denied on January 27, 2010.

      Appellant filed the instant pro se PCRA petition on November 1, 2010,

and the trial court appointed counsel.       Counsel filed a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

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

requested leave to withdraw as counsel.       Appellant filed a response.    A


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hearing was held and Appellant retained new counsel, who filed an amended

PCRA petition with the court’s permission. Following an evidentiary hearing

on October 23, 2013, the PCRA court denied relief. This appeal followed.

      Appellant presents five issues for our review:

      1. Did the P.C.R.A. Court violate Appellant’s rights under the
         Sixth and Fourteenth Amendments by finding that plea
         counsel was not ineffective for advising Appellant to plead
         guilty when counsel had failed to investigate and interview
         potential alibi witnesses and/or timely notice Appellant’s alibi
         defense?

      2. Did the P.C.R.A. Court violate Appellant’s rights under the
         Sixth and Fourteenth Amendments by finding that plea
         counsel was not ineffective for misadvising Appellant as to the
         Commonwealth’s expert opinion and failing to move to
         suppress an alleged incriminating letter, which Appellant
         averred had been tampered with and/or forged by co-
         defendant, Luis Fargas?

      3. Did the P.C.R.A. Court violate Appellant’s rights under the
         Sixth and Fourteenth Amendments by finding that plea
         counsel was not ineffective for failing to explain or require the
         Court to explain the elements of each offense so that
         Appellant could make a knowing and intelligent decision
         whether to plead guilty?

      4. Did the P.C.R.A. Court violate his rights under the Sixth and
         Fourteenth Amendments by finding that plea counsel was not
         ineffective for failing to ‘federalize’ Appellant’s claims on
         direct appeal?

      5. Did the P.C.R.A. Court violate Appellant’s rights under the
         Sixth, Eighth and Fourteenth Amendments by finding that
         Appellant was not entitled to relief pursuant to Miller v.
         Alabama, the Eighth and the Fourteenth Amendments to the
         U.S. Constitution?

Appellant’s brief at 4.




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      In reviewing the grant or denial of PCRA relief, “[a]n appellate court

reviews the PCRA court’s findings of fact to determine whether they are free

from legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

We evaluate the record “in the light most favorable to the prevailing party at

the PCRA level.”   Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super.

2014) (en banc). In our review of the record, we “afford great deference to

the factual findings of the PCRA court and will not disturb those findings

unless they have no support in the record.”    Commonwealth v. Pander,

2014 PA Super 201, *3 (en banc). Where the issue involves a question of

law, “our standard of review is de novo and our scope of review is plenary.”

Henkel, supra at 20.

      Appellant presents claims of plea counsel ineffectiveness. We review

such claims under the following principles:

      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. In Pennsylvania, . . . 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. If a petitioner fails to prove any of these prongs, his
      claim fails.      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. . . .      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. A reasonable probability
      is a probability that is sufficient to undermine confidence in the
      outcome of the proceeding.


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Spotz, supra at 311-12 (citations and quotation marks omitted).

      Appellant’s first contention is that plea counsel was “constitutionally

ineffective” for advising him to plead guilty prior to interviewing potential

alibi witnesses, weighing their testimony, and evaluating the viability of an

alibi defense. Appellant contends that a package containing affidavits from

multiple witnesses who allegedly would have established an alibi for

Appellant was delivered to defense counsel’s office.       The package also

contained evidence that a necklace which, according to a co-defendant, was

taken from the victim by Appellant, had been purchased prior to the crime

and presented to Appellant as a gift. Finally, Appellant avers that counsel

was advised that cellular phone records existed that would corroborate his

alibi, but counsel did not obtain them.

      At the PCRA evidentiary hearing, it was established that the crime

spree began at approximately 7:00 p.m. on March 3, 2005, and continued

through the morning of March 4, 2005. The testimony of Appellant’s father

shed no light on the whereabouts of Appellant during the time the crimes

were committed, and thus, the PCRA court held that the absence of his

testimony was not prejudicial.      The trial court found not credible the

testimony of Appellant’s mother, Geneva DeBooth, in light of her prior

conviction for retail theft, her obvious bias, and inconsistencies between her

testimony and that of her daughter Shaneva. Trial Court Opinion, 3/11/14,

at 7-8.   The court also discredited Shaneva’s affidavit and testimony as it


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contradicted her prior sworn statement in which she told police that

Appellant admitted to her that he killed Mr. Yocum.

      Felicia Ortiz testified that she collected the affidavits, a receipt for a

silver necklace purchased by Sarita Brown for Appellant, and a videotape

depicting Appellant wearing the necklace prior to March 3, 2005, and

delivered them to Attorney Elder’s office.      The witness had no personal

knowledge of the content of the affidavits or the purchase of the necklace.

The PCRA court found, and the record supports, that her testimony shed no

light on the whereabouts of Appellant during the relevant time.

      Attorney Michael Dautrich testified that he was aware of the affidavits

of the two women and the potential for an alibi defense, but that he believed

their testimony to be false since Appellant had confessed to counsel his

involvement in the crime.     Furthermore, Mr. Dautrich maintained that he

could not ethically present knowingly false testimony at trial.         Moreover,

Appellant had instructed counsel in writing to “throw away” his mother and

sister’s statements, which he construed as a direction to abandon any alibi

defense.

      The   PCRA   court   credited   the   testimony   of   Attorney   Dautrich.

Furthermore, it concluded that trial counsel had a reasonable strategy for

not interviewing Felicia Ortiz regarding the receipt for a silver necklace and

the videotape depicting Appellant wearing that necklace in October 2004.

Since Ms. Ortiz had no knowledge of Appellant’s whereabouts during the


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relevant time, her testimony had no probative value to Appellant’s potential

alibi defense.   Furthermore, we find little relevance in evidence that

Appellant owned a silver necklace prior to the events involving Mr. Yocum.

That fact alone does not discredit Luis Fargas’ preliminary hearing testimony

that Appellant ripped a silver chain from the neck of the victim.

      After a thorough review of the record, we find ample support for the

PCRA court’s factual and credibility determinations. Additionally, in light of

the statements provided to police by witnesses detailing Appellant’s

admitted participation in the murder, as well as video surveillance that

depicted co-defendant Fargas and two other males in the victim’s car at the

bank, we find counsel had a reasonable strategy for not pursuing the alibi

defense and that Appellant failed to establish prejudice.

      Second, Appellant alleges that trial counsel was ineffective in failing to

seek suppression of two letters he sent to Luis Fargas while the two men

were in prison. He maintains that the letters were tampered with to render

them incriminating in nature. At a minimum, Appellant contends, counsel’s

failure to consult with a handwriting expert to prove that the letters were

altered was “patently unreasonable.” Appellant’s brief at 28. He avers that

counsel should have asked the court to compel the Commonwealth to turn

over a copy of its handwriting expert’s report and sought a continuance in

order to consult his own expert.




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       The PCRA court concluded that the letters were not determined to be

incriminating until the day of Appellant’s plea, and that a motion to suppress

at that time may have prompted the Commonwealth to withdraw its plea

offer. Moreover, the court found that Attorney Dautrich had discussed with

Appellant the weight and sufficiency of the evidence against him, the pros

and cons of the plea, and informed Appellant of the contents of the report

authored     by    the   Commonwealth’s        handwriting   expert.   Nonetheless,

Appellant opted for the plea.

       We find that Appellant has failed to proffer any basis for suppression of

the letters.      He avers that the writings were altered and contends that

counsel should have consulted a handwriting expert, the inference being that

an expert could have confirmed the tampering.            However, it is Appellant’s

burden to demonstrate prejudice, i.e., that but for counsel’s errors and

omissions, the result would have been different. Appellant did not offer any

evidence substantiating his claim that a handwriting expert could or would

have discredited the letters, and thus, failed to demonstrate prejudice at the

evidentiary hearing.1

       Next, Appellant alleges that Attorneys Elder and Dautrich were

ineffective because they failed to explain the elements of each offense with
____________________________________________


1
 Appellant’s brief contains a side-by-side comparison of the text of the letter
Appellant contends he sent to Luis Fargas and the alleged altered letter.
This is not record evidence and has been disregarded by this Court in
evaluating Appellant’s claim.



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which he was charged, resulting in an unknowing and unintelligent plea.

Attorney Dautrich testified to the contrary that he and Attorney Elder

provided that information to Appellant, and there was “no question” in his

mind that Appellant understood the nature of the offenses. N.T., 11/23/13,

at 39, 42.    Furthermore, Appellant answered affirmatively when the trial

court asked him whether he understood the nature of the charges to which

he was pleading guilty and signed and initialed the written guilty plea

colloquies. See Commonwealth Exhibits 4 and 5.

      This Court held in Commonwealth v. Hickman, 799 A.2d 136, 141

(Pa.Super. 2002), that in order to demonstrate prejudice due to counsel’s

inadequate advice, “the defendant must show that it is reasonably probable

that, but for counsel’s errors, he would not have pleaded guilty and would

have gone to trial.” Although Appellant testified at the evidentiary hearing,

he did not represent that he would have proceeded to trial had he been

properly informed. Furthermore, Mr. Dautrich testified that he and Mr. Elder

ensured that Appellant knew the elements of the offenses charged, the

Commonwealth’s evidence supporting those charges, and the consequences

if he was found guilty.       The PCRA court expressly credited Attorney

Dautrich’s testimony, and we have no basis to disturb that credibility

determination. Appellant’s claim fails.

      Appellant contends that appellate counsel, Ms. Jill Scheidt, was

ineffective for failing to “federalize” his claims on direct appeal. In essence,


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he claims that counsel should have alleged that his excessive sentence

constituted cruel and unusual punishment in violation of the Eighth

amendment of the United States Constitution.               Moreover, counsel should

have argued that his plea was unknowing, unintelligent, and involuntary,

and contrary to protections afforded by the Fifth, Sixth, and Fourteenth

Amendments.            According   to    Appellant,   “[a]ny reasonably      competent

attorney” would have cited to federal law to ensure that these claims would

be deemed fairly presented in state court to permit federal habeas review.

Appellant’s brief at 34.

      The Commonwealth relies upon Halloran v. Ryan, 835 F.2d 506 (3rd

Cir. 1987), for the proposition that it is sufficient for purposes of habeas

corpus review if the legal theory and the facts supporting that theory were

presented to the state courts, and that no specific reference to federal law is

required.     See McCandless v. Vaughn, 172 F.3d 255 (3rd Cir. 1999).

Thus, any failure on the part of appellate counsel to cite federal law in

support of Appellant’s claims on direct appeal is not fatal to a future federal

habeas proceeding.

      We find, contrary to Appellant’s representation, that appellate counsel

did   argue     that   Appellant’s      sentence    constituted   “cruel   and   unusual

punishment” in violation of the Eighth Amendment of the United States

Constitution.     See Graham, supra (unpublished memorandum at 7).                    In

addressing that argument, this Court relied upon Lockyer v. Andrade, 538


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U.S. 63, 72 (2003), for the proposition that sentences for terms of years

violate the Eighth Amendment when they are grossly disproportionate to the

crimes for which they are imposed. We rejected Appellant’s claim that his

sentence met that criteria, given “the particular brutality and severity” of

Appellant’s conduct.        Id.     Thus, the facts do not support Appellant’s

contention that appellate counsel failed to federalize his Eighth Amendment

claim.

       Furthermore, Appellant’s claim on appeal that his guilty plea was not

knowing, intelligent, and voluntary due to trial counsel’s coercion is, in

reality, an ineffectiveness claim under the Sixth Amendment’s right to

counsel. Thus, the claim by definition is “federalized.” On direct appeal, this

Court found no indication that Appellant’s plea had been coerced by counsel

given his denial during the guilty plea colloquy that any threat or promise

had been made to him.          Id. at 10, citing Commonwealth v. Stork, 737

A.2d 789 (Pa.Super. 1999).2           Thus, this challenge to the effectiveness of

appellate counsel’s representation is unavailing.

____________________________________________


2
   Generally, such claims are deferred for collateral review pursuant to
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). Since the trial court
held an evidentiary hearing on the post-sentence motion alleging that
counsel coerced the plea, which is an ineffectiveness claim at its core, we
surmise that the claim was reviewed on direct appeal pursuant to the
exception delineated in Commonwealth v. Bomar, 826 A.2d 831 (Pa.
2003) (limited in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013))
(permitting consideration of such claims on direct appeal where the record
was fully developed at a hearing in the trial court).



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       Finally, Appellant alleges that his life sentence is illegal under the

United States Supreme Court’s decision in Miller v. Alabama, __U.S.__,

132 S.Ct. 2455 (2012), which held unconstitutional mandatory life sentences

without the possibility of parole for juveniles. The PCRA court dismissed this

claim based on the fact that Appellant was eighteen years and five months

old when he murdered Mr. Yocum, and hence, not a juvenile.                     See

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013) (holding

that Miller did not create a newly-recognized constitutional right for the

nineteen and twenty-one-year-old petitioners for purposes of the exception

to the PCRA time-bar). Cintora is controlling herein and precludes relief.3

Furthermore,      since   our   Supreme        Court   held   in   Commonwealth v.

Cunningham, 81 A.3d 1 (Pa. 2013), that Miller’s prohibition does not apply

retroactively, and Appellant’s judgment of sentence became final prior to the

decision in Miller, no relief is due on that basis as well.

       Orders affirmed.
____________________________________________


3
   Appellant cites and attempts to distinguish our unpublished memorandum
in Commonwealth v. Graves, 83 A.3d 1073 (Pa.Super. 2013), where we
denied relief to a twenty-one-year-old under Miller.              Unpublished
memoranda of this Court have no precedential value. See I.O.P. Rule
65.37(A) of the Superior Court of Pennsylvania (“An unpublished
memorandum decision shall not be relied upon or cited by a Court or a party
in any other action or proceeding, except that such a memorandum decision
may be relied upon or cited (1) when it is relevant under the doctrine of law
of the case, res judicata, or collateral estoppel, and (2) when the
memorandum is relevant to a criminal action or proceeding because it
recites issues raised and reasons for a decision affecting the same defendant
in a prior action or proceeding.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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