J-S30003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MIKOS MILLER

                            Appellant              No. 1007 EDA 2015


                  Appeal from the PCRA Order March 31, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002208-2005


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED OCTOBER 18, 2016

        Appellant, Mikos Miller, appeals from the order entered in the

Northampton County Court of Common Pleas, which dismissed his first

petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm and

grant counsel’s petition to withdraw.

        This Court previously set forth the relevant facts and convoluted

procedural history of this case as follows:2

          At approximately 1:00 a.m. on June 6, 2005, Appellant,
          HyQawnn Wallace, Alex Kulp, and Terrill Gibbs invaded a
          residence located on 624 Elm Street, Bethlehem, that was
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
2
  We recognize a number of procedural irregularities throughout the history
of this case, none of which affects our current jurisdiction. Due to our
disposition, we decline to address them.
J-S30003-16


       occupied by nine people. The four cohorts were each
       armed with a shotgun and also were in possession of one
       handgun. They bound their victims and terrorized them
       with the weapons, robbed eight people, placed a gun to
       the head of a thirteen-year-old boy who was mentally
       challenged, beat [one victim] with a weapon, ransacked
       the home, and stole numerous items. During the criminal
       episode, one of the occupants of the house escaped and
       contacted police, who arrived while the four perpetrators
       were still at the scene and in the process of placing [one of
       the victims] in the trunk of a car. Appellant admitted to
       police that he was caught red-handed and acknowledged
       that he would be doing prison time for his actions.

       On February 9, 2006, a jury convicted Appellant of eight
       counts of robbery, nine counts of simple assault, and one
       count each of aggravated assault, burglary, conspiracy to
       commit robbery, conspiracy to commit burglary, and
       conspiracy to commit simple assault. The Commonwealth
       issued notice of intent to seek the mandatory minimum
       sentence applicable to the crimes due to the fact that they
       were committed while Appellant was in visible possession
       of a firearm. At the March 6, 2006 sentencing proceeding,
       the court had the benefit of a newly-compiled presentence
       report, to which Appellant had no corrections. Appellant
       had a criminal history and self-identified as a member of
       the Bloods gang.

       After consideration of the presentence report, facts of the
       crime, arguments of counsel, Appellant’s failure to display
       remorse, and all the factors outlined in the Sentencing
       Code, the court imposed its sentence. Appellant received
       concurrent sentences of five to ten years imprisonment as
       to each of the eight robbery convictions. That five-to-ten-
       year sentence was imposed consecutively to an identical
       term for burglary. For the aggravated assault [conviction],
       conspiracy to commit burglary, and conspiracy to commit
       robbery, Appellant also received five to ten year terms of
       incarceration, which were all consecutive to one another
       and the other two sentences already imposed. Finally, the
       court gave a consecutive sentence of six to twelve months
       imprisonment as to one count of simple assault.          No
       penalty was imposed on the remaining [conspiracy to
       commit simple assault conviction. The other eight counts

                                   -2-
J-S30003-16


       of simple assault merged for purposes of sentencing.] The
       total term of incarceration amounted to twenty-five and
       one-half to fifty-one years.

       Appellant’s post-sentencing rights were explained, but he
       did not file a post-sentence motion. Instead, he proceeded
       to file a direct appeal and challenged the discretionary
       aspects of his sentence. He failed to comply with the
       dictates of Pa.R.A.P. 2119(f) by placing in his brief a
       separate statement of reasons relied upon for the appeal
       of the discretionary aspects of the sentence imposed.
       Since the Commonwealth objected to the lack of the
       statement, we were prohibited from addressing the sole
       contention raised in that appeal and affirmed.
       Commonwealth v. Miller, 915 A.2d 146 (Pa.Super.
       2006) (unpublished memorandum).

       Appellant immediately filed a PCRA petition and contended
       that counsel was ineffective for failing to properly present
       Appellant’s allegation as to the soundness of his sentence.
       The PCRA court, after conducting a hearing, concluded that
       counsel was not ineffective because all sentencing
       challenges were meritless. That PCRA petition was denied
       by [order docketed on] June 28, 2007. Within one year of
       our decision in Appellant’s direct appeal, Appellant filed a
       second PCRA petition seeking reinstatement of his
       appellate rights nunc pro tunc. The PCRA court granted
       him relief on October 5, 2007.

       In the ensuing appeal nunc pro tunc, Appellant’s
       allegations again pertained to the discretionary aspects of
       his sentence. We concluded that these averments were
       not preserved since Appellant did not file a post-sentence
       motion.     Commonwealth v. Miller, 963 A.2d 569
       (Pa.Super. 2008) (unpublished memorandum).             The
       Supreme Court denied review on January 16, 2009.
       Commonwealth v. Miller, 964 A.2d 2 (Pa. 2009).

       On April [1], 2010, Appellant filed a timely pro se PCRA
       petition from his nunc pro tunc direct appeal. … Counsel
       was appointed and amended that petition by requesting
       the right to file a post-sentence motion nunc pro tunc.
       That relief was granted by the court, and the
       Commonwealth [did] not challenge that ruling. Appellant

                                  -3-
J-S30003-16


         filed his post-sentence motion [nunc pro tunc], which was
         dismissed by an order entered on March 4, 2011.
         Appellant filed [a nunc pro tunc] appeal to this Court on
         March 25, 2011 from dismissal of his post-sentence
         motion.

Commonwealth v. Miller, No. 1889 EDA 2011, unpublished memorandum

at 1-5 (Pa.Super. filed March 8, 2013) (internal footnote and some internal

citations omitted). This Court affirmed Appellant’s judgment of sentence on

March 8, 2013, concluding Appellant’s challenges to the discretionary

aspects of his sentence merited no relief. See id. Appellant did not pursue

further direct review.

      On April 2, 2014, Appellant filed the current counseled PCRA petition,

claiming trial counsel was ineffective for: (1) failing to conduct adequate

pre-trial investigation to prepare for Appellant’s defense; (2) failing to

challenge   fingerprint evidence   presented at   trial, or   to   conduct an

independent analysis of the fingerprint evidence; (3) declining to file pre-

trial suppression motions challenging the identification of Appellant and

Appellant’s arrest, or a motion to sever Appellant’s case from his co-

defendants; and (4) conceding Appellant’s guilt during closing arguments.

The court held a PCRA hearing on May 2, 2014.        On June 17, 2014, the

PCRA court denied relief.

      In December 2014, Appellant wrote a letter to the Clerk of Courts

claiming he had asked PCRA counsel to file an appeal from the denial of

PCRA relief, but counsel failed to do so. The court appointed new counsel for


                                    -4-
J-S30003-16


Appellant on January 14, 2015. On March 23, 2015, counsel filed a motion

to file a nunc pro tunc appeal. In the alternative, counsel asked the court to

enter a new “final” order denying PCRA relief from which counsel could

timely file an appeal.       On March 31, 2015, the court granted Appellant’s

motion and entered a “final” order re-affirming its June 17, 2014 denial of

PCRA relief. Appellant timely filed a notice of appeal on April 14, 2015.3

       Preliminarily, appellate counsel has filed a Turner/Finley4 brief and

motion to withdraw as counsel.                 Before counsel can be permitted to

withdraw from representing a petitioner under the PCRA, Pennsylvania law

requires counsel to file a “no-merit” brief or letter pursuant to Turner and
____________________________________________


3
   The court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a
voluntary pro se Rule 1925(b) statement, but his filing constitutes a legal
nullity because Appellant is still represented by counsel. See Pa.R.A.P. 3304
(stating where litigant is represented by attorney before court and litigant
submits for filing petition, motion, brief or any other type of pleading in
matter, it shall not be docketed but forwarded to counsel of record). See
also Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993) (holding
there is no constitutional right to hybrid representation at trial or on appeal;
this Court will not review pro se documents filed by represented appellants);
Commonwealth v. Nischan, 928 A.2d 349 (Pa.Super. 2007), appeal
denied, 594 Pa. 704, 936 A.2d 40 (2007) (explaining pro se filings submitted
by counseled defendants are legal nullities). On August 3, 2015, Appellant
filed a pro se motion seeking to amend his April 2, 2014 PCRA petition to
add a challenge to the legality of his sentence under Alleyne v. United
States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and its
progeny. The court entered an order on January 22, 2016, stating it would
not entertain the pro se filing because Appellant was represented by counsel
and not entitled to hybrid representation, and an appeal was pending.
4
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



                                           -5-
J-S30003-16


Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).

           [C]ounsel must…submit a “no-merit” letter to the [PCRA]
           court, or brief on appeal to this Court, detailing the nature
           and extent of counsel’s diligent review of the case, listing
           the issues which the petitioner wants to have reviewed,
           explaining why and how those issues lack merit, and
           requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of his right to proceed pro se or

with privately retained counsel.         Id.     “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

        Instantly, appellate counsel filed a motion to withdraw as counsel and

a Turner/Finley brief detailing the nature of counsel’s review and explaining

why Appellant’s issues lack merit.             Counsel’s brief also demonstrates he

reviewed the certified record and found no meritorious issues for appeal.

Counsel notified Appellant of counsel’s request to withdraw and advised

Appellant regarding his rights. Thus, counsel substantially complied with the

Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.

        Appellant raises the following issues in the brief filed on appeal:5

           DID [THE] PCRA COURT ERR IN DISMISSING CLAIMS
           RAISED IN [APPELLANT’S] PCRA PETITION DATED APRIL
           2, 2014?

           IS [APPELLANT] ENTITLED TO A REMAND FOR
           SENTENCING BASED ON THE PENNSYLVANIA SUPREME
____________________________________________


5
    Appellant filed a pro se response to counsel’s Turner/Finley brief.



                                           -6-
J-S30003-16


         COURT’S DECISION IN COMMONWEALTH V. HOPKINS[,
         ___ Pa. ___, 117 A.3d 247 (2015)]?

(Turner/Finley Brief at 5).

       As a second prefatory matter, the timeliness of a PCRA petition is a

jurisdictional requisite.        Commonwealth v. Turner, 73 A.3d 1283

(Pa.Super. 2013), appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). A PCRA

petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment of sentence becomes final.                42

Pa.C.S.A. § 9545(b)(1).          A judgment of sentence is deemed final “at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.”            42 Pa.C.S.A. § 9545(b)(3).

Pennsylvania law makes clear that a PCRA petition brought after a nunc pro

tunc direct appeal is considered a first PCRA petition, and the one-year time

clock will not begin to run until the nunc pro tunc direct appeal renders the

appellant’s   judgment      of    sentence   final.    Turner,    supra     at   1286;

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007), appeal

denied, 596 Pa. 715, 944 A.2d 756 (2008); Commonwealth v. O’Bidos,

849 A.2d 243, 252 n.3 (Pa.Super. 2004), appeal denied, 580 Pa. 696, 860

A.2d 123 (2004).

       Instantly, the court reinstated Appellant’s post-sentence motion rights

nunc   pro    tunc   on   October     29,    2010,    without   objection   from   the

Commonwealth. Appellant subsequently filed timely post-sentence motions

                                         -7-
J-S30003-16


nunc pro tunc, which the court denied by final order entered March 4, 2011.

Appellant timely filed a direct appeal nunc pro tunc on March 25, 2011, and

this Court affirmed the judgment of sentence on March 8, 2013. Appellant

did not pursue further direct review. Thus, Appellant’s judgment of sentence

became final on April 7, 2013, upon expiration of time to file a petition for

allowance of appeal with our Supreme Court.           See Pa.R.A.P. 1113(a)

(stating except as otherwise prescribed by this rule, petition for allowance of

appeal with Pennsylvania Supreme Court shall be filed within 30 days after

entry of order or judgment sought to be reviewed).         Appellant filed the

current PCRA petition on April 2, 2014, which is timely. See 42 Pa.C.S.A. §

9545(b)(1).    This petition constitutes Appellant’s “first” PCRA petition

following the date Appellant’s judgment of sentence became final.         See

Turner, supra; Fowler, supra; O’Bidos, supra.

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,

959 A.2d 319 (2008). This Court grants great deference to findings of the

PCRA court if     the   record contains any support for       those   findings.

Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).       If the record supports a post-

conviction court’s credibility determination, it is binding on the appellate


                                     -8-
J-S30003-16


court. Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999),

appeal denied, 563 Pa. 659, 759 A.2d 383 (2000).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Stephen G.

Baratta, we conclude Appellant’s first issue merits no relief. The PCRA court

opinion comprehensively discusses and properly disposes of that question.

(See PCRA Court Opinion, filed March 31, 2015, at 6-15)6 (finding: trial

counsel testified at PCRA hearing that contesting Appellant’s identification

and participation was unwise, due to overwhelming evidence that Appellant

was at scene of crimes; counsel testified he discussed trial strategy with

Appellant to present defense as “drug deal gone bad,” and Appellant agreed

with this strategy; Appellant offered no alibi witnesses; court credited

counsel’s testimony; Appellant failed to show counsel lacked reasonable

basis in pursuing chosen strategy, so this ineffectiveness claim fails;

additionally,   counsel     testified   trial   strategy   was   consistent   with   co-

defendant’s strategy, so motion to sever was not necessary; counsel

explained any pre-trial motions concerning identification would have been

unsuccessful based on amount of evidence against Appellant and agreed-

upon trial strategy; counsel’s testimony was credible; Appellant cannot show
____________________________________________


6
  The PCRA court refers to the current April 2, 2014 petition as Appellant’s
third PCRA petition. We have already decided this petition constitutes
Appellant’s first PCRA petition for timeliness purposes, given the nunc pro
tunc relief granted in this case.



                                           -9-
J-S30003-16


prejudice to support ineffectiveness claims concerning counsel’s failure to file

pre-trial motions; Appellant also claims counsel failed to interview key

Commonwealth witnesses and failed to test fingerprint evidence linking

Appellant to crimes; counsel testified Appellant was involved in every step of

decision-making process, and Appellant did not ask counsel to interview

certain witnesses or to test fingerprint evidence independently because

Appellant agreed to pursue “drug deal gone bad” trial strategy; Appellant did

not indicate how interviews of Commonwealth’s witnesses would have

changed outcome of trial or produce any alibi witnesses for counsel to

interview; counsel’s decision not to test fingerprint evidence was reasonable

trial strategy, which Appellant agreed to; this ineffectiveness claim fails).

Therefore, we affirm Appellant’s first issue on the basis of the PCRA court’s

opinion.

       In his second issue, Appellant argues the trial court imposed

mandatory minimum sentences in this case pursuant to 42 Pa.C.S.A. § 9712

(stating any person who is convicted of crime of violence shall be sentenced

to mandatory minimum five years’ imprisonment if, during commission of

offense, person visibly possessed firearm that placed victim in reasonable

fear of death or serious bodily injury).7          Appellant claims the jury did not

____________________________________________


7
  Although Appellant cites Hopkins, supra in his statement of questions
presented, that case dealt with a mandatory minimum sentence under 18
Pa.C.S.A. § 6317 (imposing mandatory minimum sentence of two years’
(Footnote Continued Next Page)


                                          - 10 -
J-S30003-16


expressly find beyond a reasonable doubt that Appellant visibly possessed a

firearm during commission of the crimes, so imposition of the mandatory

minimum sentences violates Alleyne, supra (holding any fact increasing

mandatory minimum sentence for crime is considered element of crime to be

submitted to fact-finder and found beyond reasonable doubt).         Appellant

insists the mandatory minimum sentences imposed in his case are

unconstitutional in light of Alleyne and its progeny. Appellant concludes he

is serving an illegal sentence and entitled to resentencing without imposition

of the mandatory minimum sentences. We disagree.

      Preliminarily, we observe that Appellant raised his Alleyne challenge

for the first time in his August 3, 2015 pro se motion to amend his PCRA

petition. Appellant’s pro se filing constitutes a legal nullity because he was

represented by counsel when Appellant filed it. See Pa.R.A.P. 3304; Ellis,

supra; Nischan, supra. Additionally, Appellant’s appeal from the denial of

PCRA relief was already pending when he filed this motion.                See

Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000) (holding that

when appellant’s PCRA appeal is pending before court, subsequent PCRA

petition cannot be filed until resolution of review of pending PCRA petition by

highest state court in which review is sought, or upon expiration of time for

seeking such review).
                       _______________________
(Footnote Continued)

imprisonment if defendant committed drug delivery in school zone). Section
6317 is inapplicable in this case.



                                           - 11 -
J-S30003-16


      Recently in Commonwealth v. Washington, ___ Pa. ___, 142 A.3d

810 (2016), the Pennsylvania Supreme Court resolved the issue of whether

a petitioner could raise an Alleyne challenge to the legality of his sentence

involving a mandatory minimum sentence in a timely PCRA petition, where

the petitioner’s judgment of sentence became final prior to the Alleyne

decision. The Washington Court stated:

         [A] new rule of law does not automatically render final,
         pre-existing sentences illegal.      A finding of illegality
         concerning such sentences may be premised on such a
         rule only to the degree that the new rule applies
         retrospectively. In other words, if the rule simply does not
         pertain to a particular conviction or sentence, it cannot
         operate to render that conviction or sentence illegal. …

                                  *     *      *

         [N]ew constitutional procedural rules generally pertain to
         future cases and matters that are pending on direct review
         at the time of the rule’s announcement.

Id. at ___, 142 A.3d at 814-15 (emphasis added). See also id. at ___, 142

A.3d at 815 (stating: “[I]f a new constitutional rule does not apply, it cannot

render an otherwise final sentence illegal”). The Washington Court applied

the retroactivity analysis delineated in Teague v. Lane, 489 U.S. 288, 109

S.Ct. 1060, 103 L.Ed.2d 334 (1989), and determined the new constitutional

rule announced in Alleyne is not a substantive or watershed procedural rule

that would warrant retroactive application.        Washington, supra at ___,

142 A.3d at 818-19.     The Court held the defendant was not entitled to

retroactive application of Alleyne because his judgment of sentence became


                                      - 12 -
J-S30003-16


final before Alleyne was decided. Id.

       Instantly, the court sentenced Appellant on March 6, 2006, imposing

mandatory minimum sentences for some of Appellant’s offenses, pursuant to

Section 9712.       Due to the grant of nunc pro tunc relief multiple times

throughout the history of this case, Appellant’s judgment of sentence

became final on April 7, 2013.          The United States Supreme Court decided

Alleyne on June 17, 2013, more than two months after Appellant’s

judgment      of   sentence     was    already     final.   See   Alleyne,   supra.

Consequently, Appellant is not entitled to relief under Alleyne at this

juncture.     See Washington, supra (holding Alleyne does not apply

retroactively on collateral review to challenge to mandatory minimum

sentence as “illegal”).       Thus, Appellant’s second issue merits no relief.

Following our independent examination of the record, we conclude the

appeal is frivolous and affirm; we grant counsel’s petition to withdraw.8

       Order affirmed; counsel’s petition to withdraw is granted.




____________________________________________


8
   Our disposition addresses all issues presented in Appellant’s pro se
response to appellate counsel’s Turner/Finley brief, so we need not further
discuss any of those claims. To the extent Appellant complains PCRA
counsel was ineffective for failing to preserve the Alleyne challenge in
Appellant’s April 2, 2014 PCRA petition, that claim is meritless in light of our
disposition. Additionally, Appellant filed an application for appointment of
new counsel for this appeal. We deny Appellant’s request.



                                          - 13 -
J-S30003-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




                          - 14 -
                                                                     Circulated 09/27/2016 02:54 PM




     IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
                COMMONWEALTH OF PENNSYLVANIA
                        CRIMINAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA


                     v.
MIKOS MILLER,

                                Defendant


                                  ORDER OF COURT


AND NOW, this-:?1'7a;·. -~f March, 2015, upon consideration of Defendant's, Mikos

Miller, Nunc Pro Tune Petition to Perfect Appeal, said petition is hereby GRANTED.

This Court hereby reaffirms the Order entered on June 17, 2014, denying Miller's

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

PA.CONS.STAT.ANN.§§
                 9541-9546.

                             STATEMENT OF REASONS

Factual Background and Procedural History

      This is the Miller's third PCRA filing. On February 9, 2006, a jury convicted Miller

of one count of Aggravated Assault (F2), 18 PA.CONS.STAT.ANN. § 27_02r{~)(~); three

counts of Conspiracy (F1), 18 PA.CONS.STAT.ANN. § 903(a)(1); eight counts of Robbery

(F1), 18 PA.CONS.STAT.ANN. § 3701(a)(1)(ii); one count of Burglary (F1), 18

PA.CONS.STAT.ANN. § 3502(a)(1); and nine counts of Simple Assault (M2), 18

PA.CONS.STAT.ANN. § 2701(a)(3). On March 6, 2006, the Honorable William F. Moran

sentenced Miller to an aggregate period of twenty-five and one half (25%) to fifty-one

(51) years' imprisonent.
       With regard to the criminal episode in this case, the record shows that on June 6,

2005, Miller and three co-defendants            invaded   a residence on 624 Elm Street,

Bethlehem, Northampton County, Pennsylvania, which was occupied by nine people.

The co-conspirators       were each armed with shotguns and possessed one handgun.

After entering the house, they bound the victims and terrorized them with weapons.

They then placed a gun to the head of a thirteen-year-old boy with mental disabilities,

"pistol-whipped" one of the victims, ransacked the residence and stole numerous items.

One of the victims escaped during the alleged robbery and called the police. The police

arrived while the assailants were still present and in the process placing a victim into a

car trunk. The assailants then fled the crime scene. The police identified and arrested

Miller approximately one block away from the residence and discovered certain items

that were stolen from the residence during the arrest.

       Although Miller did not file any post-sentence motions, he filed a direct appeal

challenging    the   discretionary    aspects    of   sentencing.   The   Superior   Court   of

Pennsylvania determined that Miller had failed to place in his brief a separate statement

of reasons relied upon for the appeal of the discretionary aspects of sentence pursuant

to Pa. R.A. P. 2119(f).    As a result, the Superior Court refused to address the sole issue

raised in the appeal and affirmed Judge Moran's sentence.

       On January 22, 2007, Miller filed his first PCRA petition, in which he asserted

that trial counsel was ineffective for failing to properly prosecute his appeal of the

discretionary aspects of his sentence. This Court denied PCRA relief on June 28, 2007.

On July 25, 2007, Miller filed a Motion for Leave to File Appeal Nunc Pro Tune, in which

he sought to reinstate his appellate rights. After a hearing, Judge Moran granted that




                                                 2
relief on through an Order and Statement of Reasons filed on October 5, 2007. Miller

filed an appeal nunc pro tune regarding the discretionary aspects of sentencing. The

Superior Court affirmed Miller's judgment of sentence on S~'c1u'            ,11   ioo~i, finding that

the issue had not been preserved due to Miller's failure to file a post-sentence motion.

On January \ \J, 2009, the Supreme Court denied allocatur.

       Miller filed a second PCRA on April 1, 2010. In an amended petition, filed on

July 26, 2010, Miller sought a reinstatement of his right to file post-sentence motions.

On October 25, 2010, with no objection from the Commonwealth, this Court granted the

petition, reinstating Miller's right to file post-sentence motions. Miller filed a Post-

Sentence Motion on November 4, 2010. Judge Moran denied and dismissed the Post-

Sentence Motion without a hearing on February 24, 2011, and issued a Corrected Order

on March 4, 2011. Miller appealed this decision to the Superior Court on March 25,

2011. On . \I\ (l(c.,\\ 1J2013, the Superior Court affirmed the sentence.

       On April 2, 2014, Miller filed the instant PCRA Petition. As Judge Moran has

since retired from his commission, this case was reassigned to the undersigned. In his

PCRA Petition, Miller raises claims that were not proffered in his first two PCRA

petitions. Now, Miller asserts that he was denied his right to effective assistance of

counsel, as guaranteed by Article I, Section 9 of the PennsylvaniaConstitution, and the

Sixth and Fourteenth Amendments of the United States Constitution. Specifically, he

argues that:

       (1) Trial counsel failed to conduct a pretrial investigation or adequately
           prepare to defend the Defendant;

       (2) Trial counsel failed to challenge alleged fingerprint evidence and/or
           conduct independent testing of fingerprint evidence which was
           introduce[d] by the Commonwealth at trial;


                                                3
      (3) Trial counsel failed to file pretrial motions, including motions.
          challenging the identification of the defendant, motions to exclude
          evidence obtained as 'fruits' of an unlawful arrest and a motion to
          sever the trial of the instant Defendant and other defendants on the
          basis of antagonistic defenses;

      (4) Trial counsel was ineffective in conceding Defendant's guilt during
          closing argument without previously discussing with the Defendant and
          obtaining the Defendant's consent to such trial strategy.

See Petition for Post Conviction Collateral Relief, 04/02/14, at 2.

       Because this third PCRA was brought within one year of the final order affirming

the discretionary aspects of the original sentence and it raised new claims of ineffective

assistance of counsel, we entertained the new claims.

       On May 2, 2014, a PCRA hearing was held, in which both Miller and trial

counsel, Bohdan Zelechiwsky,      Esquire, testified.   Miller testified that he had limited

awareness of the evidence against him before trial, as he had seen trial counsel only a

few times before going to trial and the fingerprint evidence had not been produced until

approximately two days before trial. As such, he argued that trial counsel had failed to

adequately prepare for trial, as trial counsel had not thoroughly investigated certain

witnesses and the evidence.    He also asserted that trial counsel had failed to file certain

pretrial motions, including a motion challenging the identification of the witnesses, a

suppression motion on the theory of an unlawful arrest, and a motion to sever his trial

from that of his co-defendant.     Additionally,   Miller complained that trial counsel had

conceded his guilt using the same strategy as his co-defendant, that of a "drug deal

gone bad."

       In response, trial counsel argued that he had met with. Miller on multiple

occasions and reviewed the facts of the case carefully with the petition as soon as he




                                              4
received discovery.        Trial Counsel testified that given the heinous nature of the crimes

committed and the evidence against Miller, Miller had chosen a strategy that arguably

had the highest probability of success.          Trial Counsel reflected that this strategy had

been chosen after the receipt of discovery.              Further, counsel noted that no alibi

witnesses were suggested and no other defense was presented, other than Miller was

at the scene and that it was not a robbery but rather a "drug transaction gone bad."

Miller and his co-defendant were of one mind with regard to the trial strategy.

        Further, trial counsel stated that Miller had been highly involved and outspoken

during trial preparation, and had not requested that trial counsel file any of the motions

suggested in his current PCRA Petition, including a motion to sever or to challenge

Miller's identification.    Additionally, trial counsel testified that it made sense to try Miller

and his co-defendant together, as they shared the same trial strategy. Due to the trial

strategy, trial counsel chose not to interview the eyewitnesses or independently test the

fingerprint evidence, as the trial strategy acknowledged Miller's presence at the scene.

Further, Miller offered no alibi witnesses.

        On May 14, 2014, Miller submitted his "Brief in Support of Motion for Post-

Conviction Collateral Relief."      On May 29, 2014, the Commonwealth submitted its "Brief

in Response to Defendant's Petition for PCRA Relief." On June 17, 2014, this Court

entered an Order denying PCRA relief.

        On July 2, 2014, upon the retirement and resignation of Miller's PCRA counsel

from the conflicts counsel team, Brian M. Monahan, Esquire was appointed to represent

Miller. Upon finding the existence of a conflict of interest with Attorney Monahan, this

Court appointed Christopher M. Brett, Esquire to represent Miller on July 11, 2014.




                                                  5
Attorney Brett failed to file an appeal from this Court's order of June 17, 2014. Attorney

Brett has since been placed on administrative suspension. We appointed counsel to

represent Miller in his PCRA hearing of May 2, 2014 and during the appellate period in

conformance with Pa.R.Crim.     P. 904. The Superior Court of Pennsylvania interpreted

Rule 904 in Commonwealth v. Jackson, 965 A.2d 280 (Pa. Super. 2009) as requiring

the following: "if the appointment of counsel is deemed necessary for purposes of

conducting an evidentiary hearing, then the petitioner requires the assistance of counsel

throughout the litigation of the issue. Such litigation necessarily includes the appeals

process." According to Miller's letter of December 29, 2014, no appeal was filed despite

Miller's desire to pursue appellate relief. Therefore, we were bound under Rule 904 to

appoint new counsel for Miller, as he required the assistance of counsel for purposes of

appeal. This Court appointed James F. Brose, Esquire to represent Miller. The time for

filing an appeal from our June 17, 2014 order has since elapsed. In order to permit

counsel to perfect Miller's appeal rights with respect to the denial of his PCRA petition,

we hereby enter this Order denying his PCRA.

Legal Standard

       Counsel is presumed to be effective; the burden of proving otherwise rests with

the petitioner. See Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). Generally,

"where matters of strategy and tactics are concerned, counsel's assistance is deemed

constitutionally effective if he chose a particular course that had some reasonable basis

designed to effectuate his client's interest." Commonwealth v. Puksar, 951 A.2d 267,

277 (Pa. 2008).      Further, "[c]ounsel's performance is presumed constitutionally

adequate, and will be deemed ineffective only upon a petitioner's three-pronged




                                            6
showing that counsel's ineffectiveness     was such that, 'in the circumstances       of the

particular   case, [it] so undermined    the truth-determining   process that no reliable

adjudication of guilt or innocence could have taken place." Commonwealth v. Dennis,

950 A.2d 945, 954 (Pa. 2008) (quoting Commonwealth v. Rios, 920 A.2d 790, 799

(Pa. 2007)).

       In order for a petitioner to prevail on his claims of ineffective assistance of

counsel, the petitioner must plead and prove, by the preponderance of the evidence,

three elements: "(1) the underlying legal claim has arguable merit; (2) counsel had no

reasonable basis for his or her action or inaction; and (3) [the petitioner] suffered

prejudice because of counsel's action or inaction." Commonwealth v. Hutchison, 25

A.3d 277, 285 (Pa. 2011) (citing Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)).

The failure of a petitioner to satisfy any of the prongs set forth above requires a rejection

of the ineffectiveness claim. See Dennis, 950 A.2d at 954.

       Under the first prong, if a claim lacks merit, the court's inquiry ceases, as counsel

will not be deemed ineffective for failing to pursue a baseless or meritless issue. See

Commonwealth v. Johnson, 588 A.2d 1303, 1305 (Pa. 1991 ). In order to prove the

second prong of this test ("the Pierce standard"), the "reasonable basis" prong, a

petitioner must prove that "an alternative not chosen offered a potential for success

substantially greater than the course actually pursued." Hutchison, 25 A.3d at 285

(citing Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006).               In order to

establish the third prong of the test, a petitioner must prove "that there is a reasonable

probabllity that the outcome of the proceedings would have been different but for·

counsel's action or inaction." Id.




                                             7
         The petitioner's abstract allegations of ineffectiveness will not be considered.

See Commonwealth v. DeHart, 650 A.2d 38, 43 (Pa. 1994). Instead, "a petitioner

must allege actual prejudice and be able to identify a specific factual predicate that

demonstrates how a different course of action by prior counsel would have better

served his interest."      kL.   Further, "an evaluation of counsel's performance is highly

deferential, and the reasonableness of counsel's decision cannot be based upon the

distorting effects of hindsight." Commonwealth v. Basemore, 744 A.2d 717, 735 (Pa.

2000).

Discussion

A.       Trial s.trategy

         First, Miller alleges that trial counsel was ineffective because he chose and

pursued a strategy under which Miller's guilt was not contested. Miller argues that he is

not guilty of the crimes for which he was convicted, and that trial counsel's strategy

resulted in a guilty verdict. Trial Counsel's strategy, which was apparently based on the

discovery and formed after discussion with Miller, was to admit Miller's presence at the

scene of the crime, but to also frame it as a "drug transaction gone wrong." Essentially,

Miller argues, the trial strategy was tantamount to admitting his guilt, because questions

as to his identity and involvement in the crime were not contested.

         We note Miller did not identify any alleged alibi witnesses, nor did he present a

summary of anticipated testimony by his alibi witnesses.

         In determining whether counsel's acts or omissions were reasonable, defense

counsel is accorded broad discretion to determine tactics and strategy.               See

Commonwealth v. Thomas, 744 A.2d 713, 717 (Pa. 2000). We find that the cases of




                                                8
Commonwealth v. Johnson, 815 A.2d 563 (Pa. 2002) and Commonwealth v. Lofton,

292 A.2d 327 (Pa. 1972) are instructive in determining whether an admission of guilt .

can constitute a reasonable defense strategy. In both of those cases, the Supreme

Court of Pennsylvania found that defense counsel had a reasonable basis for pursuing

the trial strategy and, as a result, the claim of ineffective assistanceof counsel failed.

       In Johnson, supra, defense counsel chose to not present diminished capacity

evidence because it did not promote his defense strategy: that the co-defendant had

shot the victims instead. See Johnson 815 A.2d at 576-77. Defense counsel deemed

that an investigation into the diminished capacity would not promote his trial strategy,

because the only credible defense based on the evidence was to admit partial

participation but to deny that the defendant had the motive to kill the victims and to

promote the idea that his client had stopped facilitating the commission of the crime

prior to the shootings. See id. The Supreme Court of Pennsylvaniafound that defense

counsel had a reasonable basis for the strategy chosen, and therefore he was not

ineffective for failing to present diminished capacity evidence. See id. at 578-79.

       In Lofton, supra, another homicide case, defense counsel chose a trial strategy

conceding a degree of guilt. Defense counsel in that case conceded that the defendant

was guilty of first degree murder in the face of overwhelming evidence. Lofton, 292

A.2d at 330. Instead, defense counsel concentrated on avoiding the death penalty by

casting the defendant as only a "lookout" for the other felons and by arguing that the

defendant did not reasonably believe that a killing would occur during the robbery. See

id.   The Supreme Court of Pennsylvania found that: "While we believe that a

concession by counsel at a degree of guilt hearing that his client is guilty of first degree




                                             9
murder should be offered only with the utmost of caution and only in those cases where

the evidence to that effect is truly overwhelming, we cannot conclude on this record that

[defendant's] counsel's strategy lacked any 'reasonable basis."'       Id. As a result, the

Lollon court rejected the defendant's ineffective assistance of counsel claim. See id.

       Similarly, in the instant case, trial counsel testified at the PCRA hearing that

based upon the evidence uncovered during discovery and a careful review of the facts

with Miller, it would be ineffective to argue that Miller was not present at the scene of the

crime. Trial Counsel testified that the evidence uncovered included (1) the identification

of the Miller by the police and the victims of the crime, in part based upon an easily

identifiable hairstyle (an "afro"), and (2) items belonging to the victims found with the

Petitioner at the time of arrest, approximately one block away from the house, after the

assailants had allegedly fled the residence.        Later, the Commonwealth made trial

counsel aware of fingerprint evidence that linked Miller to the scene of the crime.

Further, trial counsel submitted that the heinous nature of the crime would make

contesting identity and guilt a dangerous strategy during sentencing.           Finally, trial

counsel testified that he had carefully reviewed the evidence with Miller, who agreed

that this strategy gave him the highest probability of success based on the evidence.

We find trial counsel's testimony to be credible.

       We also find that Miller has failed to show that trial counsel lacked a reasonable

basis for pursuing this trial strategy. Here, Miller has not proven by the preponderance

of the evidence that "an alternative not chosen offered a potential for success

substantially greater than the course actually pursued." Williams, 899 A.2d at 1064.

Further, Miller apparently agreed with the strategy throughout pretrial activities and his




                                             10
trial.   He cannot prove ineffective assistance of counsel by merely showing that, in

hindsight, the trial strategy chosen did not produce the desired result. As a result, we

find that Miller has failed to prove his ineffective assistance of counsel claim.

B.       Pretrial Motions

         Miller also asserts that trial counsel failed to file pretrial motions, chiefly, that he

failed to file a motion to sever his trial from that of his co-defendant.     In his brief, Miller

contends that "Given the co-defendant's          admissions, his defense, while not entirely

antagonistic, was certainly inconsistent with the [Petitioner's] contention that he had

nothing to do with the criminal activity."    Brief in Support at 7. Miller thus argues that a

motion to sever should have been filed because the trial strategies for him and his co-

defendant were inconsistent.

         At the PCRA hearing, however, trial counsel testified that Miller had understood

and agreed with the trial strategy throughout pretrial discussions, jury selection and the

trial.   Further, trial counsel stated that the defense strategies of Miller and the co-

defendant were in line with each other, and that he therefore did not deem a motion to

sever necessary based on the coinciding trial strategies.           Additionally, trial counsel

testified that any motions questioning Miller's identification by multiple victims would be

ineffective, given the weight and nature of the evidence against Miller, including

fingerprints, the timing of the arrest and Miller's easily-identifiable afro.      We find this

testimony to be credible.

         Miller has not shown that the result of the trial would have been different had trial

counsel filed these motions by the preponderance of the evidence, failing to establish

prejudice, the third prong of the Pierce standard. Further, trial counsel has shown that




                                                11
the course of action chosen, to not file the motions suggested by Miller during his most

recent PCRA hearing, complied with the agreed-upon trial strategy. Therefore, we find

that Miller's ineffective assistance of counsel claims against trial counsel must fail.

C.     Trial Preparation

       With regard to PCRA claims of ineffective assistance of counsel, our Supreme

Court has found that: "Counsel has a duty to undertake reasonable investigations or to

make    reasonable    decisions   that   render    particular   investigations   unnecessary."

Basemore, 744 A.2d at 735 (citing Strickland v. Washington, 466 U.S. 668, 691

(1984)).   Further, "[w]here counsel has made a strategic decision after a thorough

investigation of law and facts, it is virtually unchallengeable; strategic choices made

following a less than complete investigation are reasonable precisely to the extent that

reasonable professional judgment supports the limitation of the investigation." _Id. This

evaluation of counsel's performance is "highly deferential" and the evaluation of the

reasonableness of the decisions "cannot be based upon the· distorting effects of

hindsight. Id. Additionally, "reasonableness in this context depends, in critical part,

upon the information supplied by the defendant." Id. As a result, if counsel is not given

notice of particular mitigating evidence, he cannot be found ineffective for failing to

pursue that piece of evidence. See id.

       Here, Miller claims ineffective assistance of counsel because trial counsel failed

to adequately prepare for trial. Miller submits that trial counsel failed to interview key

Commonwealth witnesses and independently test fingerprint evidence that linked him to

the home robbery. Further, Miller claims that he was not involved in the process of




                                              12
 determining a trial strategy, as trial counsel failed to adequately review discovery with

 him.

           In response, trial counsel testified at the PCRA hearing that he met with Miller on

 multiple occasions and that Miller was involved in every step of the decision making

 process. Further, trial counsel asserts that that Miller never requested that he interview

 those witnesses or independently test the evidence, as Miller wished to pursue the

 strategy that the criminal event was not a robbery but rather a "drug transaction gone

 wrong."

        Miller asserts that under Commonwealth v. Dennis, 950 A.2d 945 (Pa. 2008),

 trial counsel was ineffective for failing to investigate potential alibi witnesses, failing to

. interview witnesses who had identified him, and failing to prepare an independent

 investigation of the fingerprints found at the scene of the crime. In Dennis, a homicide

 case, our Supreme Court examined whether counsel was ineffective for failing to

 investigate eyewitnesses and a possible alibi witness, as well as for failing to discover

 evidence related to the murder weapon. Dennis, 950 A.2d at 957. The court discussed

 cases in Pennsylvania which stand for the proposition that "at least where there is a

 limited amount of evidence of guilt, it is per se unreasonable not to attempt to

 investigate and interview known eyewitnesses in connection with defenses that hinge

 on the credibility of other witnesses." ki; at 960 (emphasis in original). Such an

 omission is not, however, is not per se prejudicial. See id. The Dennis court found that

 the defendant had failed to properly plead and prove that trial counsel's failure to

 interview certain witnesses and vet a potential alibi witness, and therefore that his claim

 of ineffectiveness of counsel lacked arguable merit. See id. at 961-64.




                                                13
         Similarly, we find here that the claim of ineffective assistance of counsel based

upon the failure to interview eyewitnesses lacks arguable merit. At the PCRA hearing,

Miller testified that he wished to challenge the identification of him by eyewitnesses, as

he argued that their identifications were not wholly independent.        In response, trial

counsel argued that he did not interview the witnesses because of the wealth of

evidence against Miller and because such interviews would not have contributed to his

trial strategy.   Miller did not offer the testimony of any of the witnesses, nor state how

such interviews would have changed the outcome of the trial.         Further, Miller did not

mention any alibi witnesses to trial counsel, nor did he present any evidence regarding

any such witnesses at his PCRA hearing.            As such, we find that these claims lack

arguable merit.

         With regard to Miller's claim of inadequate trial preparation based on the failure

of trial counsel to independently test the fingerprint evidence, we find that such a

decision    was reasonably     based on the trial strategy employed.          Miller agreed

continuously to this strategy throughout pretrial discussions, jury selection and the trial.

As the strategy did not attack Miller's presence at the crime scene, Trial Counsel cannot

be held ineffective for failing to independently investigate that evidence.    Again, Miller

also failed to present evidence at the hearing to show by the preponderance of the

evidence that an independent investigation by trial counsel with regard to the fingerprint

evidence would have produced a different result. We find that this claim lacks arguable

merit.




                                              14
       Accordingly, Miller's claims of ineffective assistance of counsel must be rejected,

as Miller has failed to establish ineffective assistance of counsel by the preponderance

of the evidence.



                                                        BY THE COURT:




                                            15
