J-S64026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EDWARD N. DANIELS

                            Appellant                  No. 539 EDA 2016


             Appeal from the PCRA Order dated February 16, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012194-2009
                                          CP-51-CR-0012199-2009

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                          FILED OCTOBER 20, 2016

        Appellant, Edward Daniels, appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Upon careful review, we affirm.

        The underlying facts are as follows. On June 27, 2009, Appellant,

along with Donnell Murchison and Antonio Wright, entered the Piazza

Navona Apartments in the Northern Liberties section of Philadelphia. All

three men waited in the hallway of the seventh floor. As Rian Thal, who was

allegedly expecting a shipment of $500,000 worth of powder cocaine from

Texas, and her associate, Timothy Gilmore, were exiting the elevator,

Appellant, Wright, and Murchison pulled out their guns and announced a
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*
    Former Justice specially assigned to the Superior Court.
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robbery. Gilmore resisted, and Wright shot him. Murchison then shot Thal in

the back of the head. Upon noticing that Gilmore was still alive, Wright shot

Gilmore twice more, also in the head. Both victims died at the scene.

Appellant, Wright, and Murchison fled without obtaining the targeted drugs.

See Trial Court Opinion, 4/3/12, at 2-6.

        A jury convicted Appellant of two counts of second-degree murder,

robbery, criminal conspiracy, and carrying firearms on a Philadelphia public

street without a license.1 Following the conclusion of the trial, Appellant was

sentenced to serve two consecutive terms of life without parole for second-

degree murder, with concurrent sentences of ten to twenty years for

conspiracy, and two and a half to five years for carrying firearms.2

        Appellant thereafter filed an appeal with this Court. We vacated one

conviction for criminal conspiracy, but otherwise affirmed Appellant’s

judgment of sentence. Commonwealth v. Daniels, No. 188 EDA 2012 (Pa.

Super., Sept. 27, 2013) (unpublished memorandum), allowance of appeal

denied, No. 537 EAL 2013 (Pa., Feb. 19, 2014).

        On April 14, 2014, Appellant filed a pro se PCRA petition. Counsel was

appointed to represent him, and counsel filed an amended petition on

May 25, 2015. The amended petition claimed that trial counsel was
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1
 18 Pa.C.S. § 2502(b); 18 Pa.C.S. § 3701(A)(1)(i); 18 Pa.C.S. § 903(c); &
18 Pa.C.S. § 6108.
2
    The robbery charges merged for sentencing purposes.



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ineffective in failing to make various objections at trial, and Appellant

requested an evidentiary hearing. The Commonwealth moved to dismiss the

petition on November 12, 2015. On January 19, 2016, the PCRA court issued

notice of its intention to dismiss the petition without a hearing, pursuant to

Rule 907(4) of the Pennsylvania Rules of Criminal Procedure. Appellant did

not respond to the notice. On February 16, 2016, the PCRA court dismissed

the petition.

      The following day, Appellant filed a timely notice of appeal to this

Court. The PCRA court did not order Appellant to file a concise statement of

errors complained of on appeal, and Appellant did not file one.

      In its Rule 1925(a) opinion, the PCRA court explained that it dismissed

Appellant’s petition because, although the petition did recite the standard for

a finding of ineffectiveness, it did not adequately allege facts or sufficiently

apply the law to establish a basis upon which Appellant could be entitled to

relief. The PCRA court stated:

      Other than setting forth the issues in bullet point fashion and
      providing general principles of law, defendant failed to discuss
      each of his claims in the context of the three-part ineffectiveness
      test, the law applicable to his claims, and the evidence presented
      at trial. The failure to do so was fatal to his claims in relation to
      the evidence and the applicable law because the law is clear that
      a PCRA litigant has the never shifting burden to plead and prove
      the merits of each of the prongs of the ineffectiveness test.
      Defendant did not provide a clue as to the factual context of his
      claims and instead merely made conclusory assertions that the
      claims had arguable merit, counsel had no rational basis for not
      objecting, and that he was prejudiced by counsel’s failure to
      object or take other action. This was wholly insufficient to obtain
      relief.

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PCRA Court Opinion, 3/9/16, at 5-6.3

       In Appellant’s brief to this Court, Appellant requests relief in the form

of a new trial or a remand to the PCRA court for an evidentiary hearing

based on the following issues, as stated:

       A.     Did trial counsel render ineffective assistance of counsel
              when they failed to object to or motion the trial court for a
              mistrial as a result of the prejudicial argument made by
              the prosecutor in her opening statement?

       B.     Did trial counsel render ineffective assistance of counsel
              when they failed to object to or motion the trial court for a
              mistrial as a result of the prosecutors’ misconduct?

       C.     Did trial counsel render ineffective assistance of counsel
              when they failed to object to or motion the trial court
              for a mistrial as a result of trial court error or
              misconduct?

Appellant’s Brief at 4.

       In support of these claims, Appellant cites seventeen instances where

the prosecutor made allegedly prejudicial comments during his opening

statement, seventeen instances of alleged prosecutorial misconduct, and


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3
  The court added that, in any event, Appellant’s claims based on his trial
counsel’s failure to make objections at trial could not meet the prejudice
prong of the ineffective assistance of counsel analysis: “Finally, it is noted
that this Court did review the cited passages from the record defendant
claims were improper and prejudicial and which trial counsel erred by not
objecting to. None of them would have entitled defendant to relief because
the evidence of guilt was overwhelming and therefore, there would not have
been a different outcome if only counsel proffered objections.” PCRA Court
Opinion, 3/9/16, at 7.




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thirty-three instances of alleged judicial misconduct. Appellant’s brief

appears to be a substantially verbatim reproduction of his amended PCRA

petition. Appellant does not address the reasons given by the PCRA court for

his petition’s dismissal.

      The standard of review of the dismissal of a PCRA petition is “whether

the PCRA court's determination is supported by the record and free of legal

error.” Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014) (citation

omitted). The reviewing court is obligated to examine each of the issues

raised in the PCRA petition. Commonwealth v. Jordan, 772 A.2d 1011,

1014 (Pa. Super. 2001). It is the Appellant’s burden to convince an appellate

court that the PCRA court erred in denying relief. Commonwealth v.

Miner, 44 A.3d 684, 688 (Pa. Super. 2012).

      A PCRA petitioner bears the burden of pleading and proving his claims

on their merits. Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.

Super. 2015) (citing 42 Pa.C.S. §§ 9543(a), 9545(b)), appeal denied, 136

A.3d 981 (Pa. 2016). A petitioner claiming ineffective assistance of counsel

must prove the three prongs of the test established in Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987): “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel's actions or

failure to act; and (3) [the petitioner] suffered prejudice as a result of

counsel's error.” Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014)




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(citations omitted).4 Counsel is presumed effective, and a petitioner bears

the burden of proving otherwise. Id. 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) (citation omitted), appeal denied, 990 A.2d 727

(Pa. 2010).

       Because a PCRA petition claiming ineffectiveness therefore must plead

and prove facts showing that he can establish each prong of the Pierce

ineffectiveness test, the petitioner may not merely recite the Pierce

standard, but must meaningfully discuss and develop each of his claims

under the applicable facts and law. Commonwealth v. Steele, 961 A.2d

786, 797-807 (Pa. 2008). While petitioners claiming ineffectiveness often

focus on establishing that a claim has merit, see Commonwealth v.

Williams, 782 A.2d 517, 526 n.5 (Pa. 2001), they may not neglect the

other two prongs of the Pierce test. “[B]oilerplate allegations and bald

assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a

petitioner's burden to prove that counsel was ineffective.” Commonwealth

v. Paddy, 15 A.3d 431, 443 (Pa. 2011); see Steele, 961 A.2d at 797 (“In

multiple claims in this case, Appellant only addresses the first prong, arguing
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4
  The standard for proving a claim of ineffective assistance of counsel is the
same under both the state and federal constitutions, although the law of our
Commonwealth breaks the test into three elements rather than two. See
Commonwealth v. Jones, 811 A.2d 994, 1007 n.7 (Pa. 2002).



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that the underlying claim has arguable merit, followed by a bald assertion of

the lack of a reasonable basis and the fact of prejudice. Such undeveloped

claims, based on boilerplate allegations, cannot satisfy Appellant's burden of

establishing ineffectiveness”).

      Here, the PCRA court denied Appellant’s claim without a hearing. To

justify an evidentiary hearing on a PCRA petition, a petitioner must offer to

prove facts that will entitle him to relief. Reid, 99 A.3d at 501 n.26 (citation

omitted). A PCRA court may decline to hold an evidentiary hearing where the

petition raises no genuine issues concerning any material fact and no

legitimate purpose will be served by the proceeding. Pa.R.Crim.P. 907.

Evidentiary hearings on PCRA claims “are not discovery expeditions; rather,

they are conducted when necessary to offer the petitioner an opportunity to

prove that which he already has asserted, and only when his proffer

establishes a colorable claim about which there remains a material issue of

fact.” Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012) (citation

omitted).

      The PCRA court concluded that Appellant’s petition failed to plead facts

setting forth a colorable claim that he was entitled to relief. We agree. While

Appellant did recite the Pierce standard for a finding of ineffectiveness, he

did not adequately allege facts or sufficiently apply the law to establish his

claims. Instead, Appellant listed each asserted error on counsel’s part, set

forth the general principles of law, and then declared that counsel was

obviously ineffective, without actually engaging with the facts or the law to

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demonstrate how the court should reach that conclusion. See, e.g.,

Amended PCRA Petition at 18.

        Appellant’s petition is rife with bald assertions and boilerplate language

that cannot satisfy his burden to prove ineffectiveness. To take just one

example, Appellant asserted that trial counsel was ineffective for failing to

object or move for a mistrial when the prosecutor “improperly had [a

witness] make an unduly suggestive in court identification of the petitioner.”

See Amended PCRA Petition ¶ 61(b). Appellant repeats this same statement

in his brief to this Court. See Appellant’s Brief at 25 (¶ b). He follows the

statement with a citation to a single page of the trial transcript, which shows

only that the witness identified the defendant in response to a question by

counsel.5    Appellant    fails   to   explain   what   was    improper    about    this
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5
    See N.T. 11/15/11, p. 225, which reads, in its entirety:

        Q.    When you walked to the Piazza, did you see any people
              that are here now?
        A.    When I went to the Piazza?
        Q.    Yes.
        A.    Yes.
        Q.    Point to them.
        A.    (Indicating).
        Q.    Tell me what he is wearing?
        A.    The guy with the striped sweater on.
        Q.    This gentleman right here? (Indicating).
        A.    Yes.
              [COUNSEL FOR COMMONWEALTH:]                     For   the   record,
              indicating Mr. Daniels.
              THE COURT: So indicated.
(Footnote Continued Next Page)


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identification or to cite or discuss any law governing in-court identifications

that would support his claim for relief with respect to it. Regarding prejudice

resulting from the identification, Appellant’s petition said only:

      The petitioner was prejudiced by trial counsel’s failure to object
      to the prosecutor’s misconduct or motion the trial court for a
      mistrial.    The    prosecutor’s  misconduct    buttressed     the
      Commonwealth’s case that was essentially based on
      identification testimony. Had an objection been lodged by trial
      counsel or a request for a mistrial been made by trial counsel,
      the result the trial would have been different.

Amended PCRA Petition ¶¶ 74-76 (paragraphing omitted). His brief to this

Court contains these exact same sentences, except that it replaces “The

petitioner” with “Appellant.” Appellant’s Brief at 30. With only such

conclusory allegations, the PCRA court correctly concluded that Appellant did

not carry his burden of establishing a claim warranting relief. See Paddy, 15

A.3d at 443; Smith, 121 A.3d at 1054.6




                       _______________________
(Footnote Continued)

      Q.     You saw Mr. Daniels, the guy with the striped shirt. Did
             you see Donney?
      A.     Yes.
      Q.     Donnell Murchison?
      A.     Yes.
      Q.     Where were they standing?
      A.     Like walking right off to the left where [the page ends at
             this point].
6
  In spite of the inadequacies of Appellant’s petition, we have reviewed each
of his claims carefully to determine whether any merit relief. We have found
none that call the PCRA court’s holding into question.



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      Nor did Appellant offer to prove any allegedly disputed facts that would

have warranted an evidentiary hearing. See Reid, 99 A.3d at 501 n.26;

Pa.R.Crim.P. 907. His petition focused solely on facts that are already of

record as part of the transcript of his trial, and no hearing was needed to

prove those facts. Appellant made no proffer to prove anything else. The

PCRA court therefore did not err in concluding that there were no genuine

issues of material fact and in denying relief without an evidentiary hearing.

      Appellant’s brief to this Court fails to address these concerns. It

therefore fails to establish any basis for reversal. In Commonwealth v.

Miner, this Court confronted a similar situation. The PCRA court concluded

that the petition claiming ineffectiveness “did not allege and clarify facts,

and did not proffer those facts in a fashion sufficiently related to the law, so

as to present any meritorious claims entitling Appellant to a remedy.” 44

A.3d at 688. On appeal, the appellant failed in his brief to argue, much less

establish, how the PCRA court erred in evaluating and denying his petition.

This Court found that:

      Aside from the question of whether Appellant's factual assertions
      and arguments, as he now presents them on appeal, would
      establish ineffectiveness, the fatal flaw in Appellant's brief is that
      it does not demonstrate his petition articulated his claims to the
      PCRA court. That is, Appellant argues to us as if we were the
      PCRA court in the first instance instead of telling us how the
      court was wrong in its evaluation of his petition.

Id.




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      Here, similarly, Appellant’s brief to this Court has failed to rebut the

PCRA court’s holding that his petition is deficient, even after having received

the Commonwealth’s motion to dismiss, the PCRA court’s Rule 907 notice of

intention to dismiss, and the PCRA court’s 1925(a) opinion. Appellant has

therefore not carried his burden to prove that the PCRA court erred in

denying him relief. See Miner, 44 A.3d at 688.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2016




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