J-S59027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
    JAMES DUKES                                :
                                               :
                 Appellant                     :   No. 2036 EDA 2016

                    Appeal from the PCRA Order June 20, 2016
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0002732-2008


BEFORE:        BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 29, 2017

        James Dukes appeals, pro se, from the order entered in the Philadelphia

County Court of Common Pleas, dated June 20, 2016, dismissing his first

petition filed pursuant to the Post-Conviction Relief Act (“PCRA”).1     Dukes

seeks relief from the aggregate judgment of sentence of 17 to 40 years’

imprisonment imposed on December 9, 2009, after he was convicted of third-

degree murder, firearms not to be carried without a license, and possession

of an instrument of crime (“PIC”).2 On appeal, Dukes raises numerous related




____________________________________________



    Former Justice specially assigned to the Superior Court.

1
     42 Pa.C.S. §§ 9541-9546.

2
     18 Pa.C.S. §§ 2502(c), 6106(a)(1), and 907(a), respectively.
J-S59027-17




claims of ineffective assistance of counsel, as well as trial court error. Based

on the following, we affirm.

      The facts underlying Dukes’ convictions were recounted by a panel of

this Court in the memorandum decision that affirmed his judgment of

sentence on direct appeal:

      On July 12, 2007, Kevin July (“July”), and a cohort, Kevin Brown
      (“Brown”), armed themselves with firearms and drove to the area
      of 60th and Spruce Streets in Philadelphia with a mutual friend,
      Ramir Harris (“Harris”). At this location, July and Brown got out
      of the vehicle and crossed the street. Harris remained in the
      vehicle talking on his cell phone. Meanwhile, [Dukes] was loitering
      in and around a hair salon on 60th and Spruce Streets. [Dukes]
      saw July and Brown walking across the street and began
      “screaming and snapping.” [Dukes] was observed as being
      “hyped, little mad.” When [Dukes] got closer, he said, “didn’t I
      tell y’all niggas I didn’t want to see y’all up here no more?” A
      heated argument ensued.

             Adul Allen (“Allen”) approached the scene and shared a
      cigarette with Harris as the fight escalated. [Dukes] accused
      Brown of having shot at his girlfriend and him several days before,
      an accusation to which July replied, “he ain’t got nothing to do
      with it.” Harris heard [Dukes] say, “nigga, you reaching?”

           [Dukes] then backed up and was the first person to draw a
      gun. Almost instantaneously, Brown drew his weapon and the two
      exchanged shots.1    [Dukes] missed, but Brown’s shots hit
      [Dukes], severely wounding him, and causing him to drop his gun.
      As [Dukes] retreated, July pulled out a weapon and joined with
      Brown to fire a combined total of 13 additional shots at [Dukes]
      who was now unarmed, wounded, and retreating.

         _____________________________

         1
           Conflicting evidence was presented as to whether [Dukes]
         or Brown fired his weapon first or whether [Dukes] actually


                                     -2-
J-S59027-17




        succeeded in firing a shot before he was wounded and
        disarmed.

        _____________________________

           [Dukes] staggered toward Allen, again, a bystander who
     was fleeing the shoot-out.      July and Brown’s shots missed
     [Dukes], but one bullet hit Allen in the upper chest. [Dukes]
     collapsed on the sidewalk and Allen collapsed nearby. Allen died
     as a result of the gunshot wound which severed his aorta,
     pulmonary artery, lung, and exited through his back near his
     fourth rib. July continued to chase [Dukes] down the street firing
     shots until [Dukes] escaped behind a bus.

           July and Brown jumped into a car driven by Harris and fled
     the scene. Brown stated to July, “I was trying to shoot around
     you. I didn’t want to hit you.” Brown, seated in the back of the
     vehicle, handed a black, semi-automatic handgun to July who was
     in the front seat. July stashed both his weapon and Brown’s
     behind the glove compartment; Harris testified that both guns
     were semi-automatics. Harris stopped the vehicle to get out, as
     he was afraid; before he did, he asked July, “what the fuck were
     you doing?” July told him that he engaged in the shootout
     because his “rep was on the line.”

            Tyresse Warring testified at trial. Warring was one block
     away from 60th and Locust Streets when he heard gunfire. Upon
     arriving at the scene, Warring observed [Dukes] and Allen
     wounded on the ground. He also saw [Dukes]’s firearm, which he
     removed from the scene and stashed in nearby bushes. Warring
     stated that the gun was a semi-automatic. Later that evening,
     Warring went to retrieve the gun but it was gone. However,
     another eyewitness, Thomas Dickerson, testified that [Dukes] had
     pulled a black revolver, which does not eject shells, from his
     waistband. Dickerson also testified that he observed Warring take
     the revolver.

           Police and paramedics responded to the scene. [Dukes] was
     transported to the hospital and treated for a gunshot wound to his
     right chest. Surgeons were unable to remove the projectile for
     fear of causing further bodily harm. Dr. Edwin Lieberman opined


                                   -3-
J-S59027-17




     that the cause of Allen’s death was a gunshot wound to the chest
     and the manner of death was homicide.

           Police Officer Robert Flade searched the area and recovered
     21 pieces of ballistics evidence, including 14 fired cartridge
     casings, a bullet specimen, two bullet jackets, two bullet jacket
     fragments, and numerous blood stains. He photographed and
     documented strike marks and bullet holes on vehicles and objects,
     including one located behind where July and Brown had been
     standing during the shooting, indicating that [Dukes] fired a shot
     during the altercation.

            Thereafter, Officer John Cannon of the Firearms
     Identification Unit examined the ballistics evidence recovered. He
     determined that nine of the fired casings were .9 millimeter Lugar
     cartridge casings, all fired from the same weapon. Five of the
     fired casings were .357 Sigma cartridge casings, all fired from the
     same gun. Additionally, the rifling patterns of the bullet jackets
     led Officer Cannon to believe that the shots had been fired in the
     same direction by two separate guns. He noted that it was
     possible that a revolver had also been fired at the scene. The
     officer conceded on cross-examination that he could not tell which
     person fired which weapon or from where the casings originally
     came to rest. He also conceded that there are revolvers that will
     fire .9 millimeter cartridges.

            During a series of interviews, Harris told the police what he
     had witnessed on the night in question and identified [Dukes] and
     Brown. A warrant was obtained for [Dukes]’s arrest as well as for
     Brown’s and July’s. [Dukes] eventually contacted the police and
     stated he was willing to provide a statement. [Dukes] waived his
     rights and acknowledged the confrontation with July and Brown
     on the corner of 60th and Spruce Streets. [Dukes] stated that the
     two men “started reaching for their guns. One pulled out his gun
     and started shooting and hit me in the neck.” [Dukes] averred
     that he ran and told a young boy to get the gun after he dropped
     it just before he collapsed. [Dukes] told the police that he had a
     .9 millimeter weapon. He denied ever firing his gun.




                                    -4-
J-S59027-17




Commonwealth v. Dukes, 38 A.3d 925 [338 EDA 2010] (Pa. Super. 2011)

(unpublished memorandum at 1-6; record citations omitted), appeal denied,

63 A.3d 1243 (Pa. 2012).

       Beginning on May 20, 2009, Dukes, July, and Brown were jointly tried

by a jury.3 Dukes raised the defense of self-defense at trial. On June 4, 2009,

the jury convicted him of third-degree murder, firearms not to be carried

without a license, and PIC. On December 9, 2009, the court sentenced Dukes

to a term of 17 to 40 years’ imprisonment for the murder charge and a

concurrent term of two-and-one-half to five years’ incarceration for the PIC

offense.4 Dukes filed a post-sentence motion, which was denied on December

29, 2009.      A panel of this Court affirmed his judgment of sentence on

November 21, 2011, and the Pennsylvania Supreme Court denied his petition

for allowance of appeal on October 11, 2012. See id.

       Subsequently, Dukes filed a pro se PCRA petition and amended petition

on January 25, 2013, and April 22, 2013, respectively.           Counsel was

appointed, who then filed amended petitions on July 14, 2014, and November




____________________________________________


3
   The jury convicted July of third-degree murder, attempted murder,
aggravated assault, PIC, and carrying a firearm without a license. Brown was
convicted of aggravated assault, PIC, and carrying a firearm without a license.

4
   The court did not impose any further penalty with regard to the firearms
offense.

                                           -5-
J-S59027-17




16, 2015.     On June 20, 2016, following an evidentiary hearing, the court

denied Dukes’ petition. This appeal followed.

       Subsequently, the court ordered Dukes to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on July 7, 2016.

Dukes filed a counseled concise statement on July 18, 2016. The PCRA court

issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 30, 2016.

Subsequently, on October 27, 2016, Dukes filed a pro se application for relief

with this Court, requesting that he be permitted to waive his right to counsel.

By per curiam order, we remanded the matter for the PCRA court to conduct

an on-the-record determination as to Dukes’ request.                  See Order,

11/22/2016. Thereafter, the PCRA court conducted a Grazier5 hearing on

December 8, 2016, and permitted Dukes to proceed pro se, finding he made

a knowing, intelligent, and voluntary waiver of counsel. We may now address

the substantive claims.6

       Dukes identifies the following issues in his statement of questions

involved:

       1. Was trial counsel ineffective for failing to request a self defense
          and voluntary manslaughter charge? [Unreasonable belief]




____________________________________________


5
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).

6
    Dukes filed a pro se concise statement on December 15, 2016.

                                           -6-
J-S59027-17




        2. Was trial counsel ineffective in requesting that the voluntary
           manslaughter charge that the trial court had given to the jury
           as to [Dukes] should be withdrawn?

        3. Was trial counsel ineffective in agreeing with the prosecutor
           and the trial court that the voluntary manslaughter charge that
           was given to the jury should be withdrawn and/or that it did
           not apply to [Dukes] and advising the jury of this?

        4. Was PCRA counsel ineffective in failing to raise on PCRA review
           that trial counsel denied [Dukes] effective assistance, where
           trial counsel suffered from psychiatric disorders during trial
           that adversely affected his ability to effectively defend
           [Dukes]?
        5. Was [Dukes] denied effective assistance of counsel where trial
           counsel suffered from psychiatric disorders during trial that
           adversely affected his ability to effectively defend [Dukes]?

        6. Did the trial court err in removing the voluntary manslaughter
           [charge] in [Dukes’] case?

Dukes’ Brief at 2-3.

        Preliminarily, we note:     “[A]lthough this Court is willing to construe

liberally materials filed by a pro se litigant, pro se status generally confers no

special benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245,

252 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (some

citations omitted). “[A]ny layperson choosing to represent himself in a legal

proceeding must, to some reasonable extent, assume the risk that his lack of

expertise and legal training will prove his undoing.”          Commonwealth v.

Gray,     608   A.2d   534,   550     (Pa.   Super.   1992),   quoting   Vann   v.

Commonwealth Unemployment Compensation Bd. of Review, 494 A.2d




                                        -7-
J-S59027-17




1081, 1086 (Pa. 1985).         As such, we cannot serve as Dukes’ counsel and

litigate his claims for him.

      Based on the nature of his claims, and the PCRA court’s opinion, we will

analyze Dukes’ first three issues together. We note they are interconnected,

all alleging trial counsel was ineffective for failing to request self-defense and

voluntary manslaughter charges. Dukes’ Brief at 7. The PCRA court set forth

the background concerning these allegations as follows:

           At the center of [Dukes’] instant appeal are the following
      exchanges with the court and [Dukes’] counsel at trial about self
      defense and voluntary manslaughter charges, as it applied to
      [Dukes].

         THE COURT: All right. The Court will read the criminal
         homicide introduction first degree, make it specific. The
         homicide introduction is applicable only to Kevin Brown –
         I’m sorry – Kevin July and [Dukes]. First degree Kevin July
         and [Dukes]. And I’ll inform that jury of this so they
         understand a little bit better.        As well as voluntary
         manslaughter applies to Defendant July and [Dukes]. And
         there is the justification. I didn’t have anything regarding
         justification for Dukes; is that correct?

         [TRIAL DEFENSE COUNSEL]: I don’t think there was a self
         defense with [Dukes].

         THE COURT: I want to make sure that applies only to July
         and Brown.

      (Trial Tr. 74-75, May 28, 2009).

         THE COURT: The question that the jury posed in verbatim
         is: ‘Judge Tucker stated in the courtroom that voluntary
         manslaughter applies to both [Dukes] and July[.] On
         [Dukes’] charge sheet, which the verdict sheet, voluntary
         manslaughter is not an option. Which is it?’ So, we – you

                                        -8-
J-S59027-17




        and I talked about this before in open court whether you
        agree that voluntary manslaughter does not apply to your
        client; is that correct?

        [TRIAL DEFENSE COUNSEL]: That’s correct.

        THE COURT: So, in essence what I will do is I’ll inform the
        jury with your permission.

        [TRIAL DEFENSE COUNSEL]: Sure.

        THE COURT:      Simply state to them that voluntary
        manslaughter does not apply to your client.

        [TRIAL DEFENSE COUNSEL]: That is fine. In fact, Judge, I
        have no objection to Your Honor sending back a handwritten
        statement to the jury telling them that.

     (Trial Tr. 31-32, June 2, 2009).

PCRA Court Opinion, 9/30/2016, at 5.

     On appeal, Dukes asserts that because he was charged with murder,

     [t]rial counsel had a legal obligation and moral duty to protect
     [Dukes’] due process and that is the right to a fair and impartial
     trial and to receive the benefit of a lesser included offense,
     voluntary manslaughter and self-defense charge.

Dukes’ Brief at 7. Moreover, he states:

           The facts in this case set forth [Dukes’] voluntary
     statement[,]    corroborated     with    Commonwealth        witness
     testimony[,] did support a finding of unreasonable belief voluntary
     manslaughter, however, here the prosecutor sought to prove a
     transferred intent 303(B) killing, which requires an intent to kill or
     cause serious bodily injury, but can be transferred to an
     unintended victim.      Had counsel requested and presented
     [Dukes’] self-defense argument for the voluntary manslaughter
     charge (unreasonable belief) it would negate the intent and malice
     and if accepted results in an acquittal.


                                     -9-
J-S59027-17




Id. at 8 (citation and record citation omitted).    Likewise, Dukes contends

counsel was ineffective for requesting that the voluntary manslaughter charge

be withdrawn.   Id. at 11.   He complains counsel did not discuss with him

whether a voluntary manslaughter or self-defense charge would be given, and

that he was not present when the jury asked a question during deliberations

regarding the charges.    Id. at 12-14.      Lastly, Dukes claims counsel was

ineffective for agreeing with the prosecutor and the trial court that the

voluntary manslaughter charge should be withdrawn and that it did not apply

to his case. Id. at 14-16.

      Our review of an order denying PCRA relief is well-established:      “In

reviewing the denial of PCRA relief, we examine whether the PCRA court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). “Great deference is granted to

the findings of the PCRA court, and these findings will not be disturbed unless

they have no support in the certified record.” Commonwealth v. Carter, 21

A.3d 680, 682 (Pa. Super. 2011) (citation omitted), appeal denied, 72 A.3d

600 (Pa. 2013).    Moreover, “[t]he PCRA court’s credibility determinations,

when supported by the record, are binding on this Court.” Commonwealth

v. Spotz, 18 A.3d 244, 259 (Pa. 2011).




                                    - 10 -
J-S59027-17




     “It is well-established that 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.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland

v. Washington, 466 U.S. 668, 687-691 (1984). Moreover,

     “[t]o plead and prove ineffective assistance of counsel a petitioner
     must establish: (1) that the underlying issue has arguable merit;
     (2) counsel’s actions lacked an objective reasonable basis; and
     (3) actual prejudice resulted from counsel’s act or failure to act.”
     Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127
     (Pa. 2011). Where the petitioner “fails to plead or meet any
     elements of the above-cited test, his claim must fail.”
     Commonwealth v. Burkett, 2010 PA Super 182, 5 A.3d 1260,
     1272 (Pa. Super. 2010).

Commonwealth v. Stewart, 84 A.3d 701, 706-707 (Pa. Super. 2013),

appeal denied, 93 A.3d 463 (Pa. 2014).

     In addressing Dukes’ claims, the PCRA court found the following:

           The decision to seek a voluntary manslaughter charge falls
     squarely within trial strategy and counsel is granted deference to
     make the strategic decision of seeking a complete acquittal rather
     than a manslaughter verdict. Courts will not find ineffective
     assistance unless “in light of all the alternatives available to
     counsel, the strategy actually employed [i.e. the decision to seek
     a complete acquittal] was so unreasonable that no competent
     lawyer would have chosen it.” Commonwealth v. Garcia, 535
     A.2d 1186, 1188 (Pa. Super. 1988). Courts have often found the
     strategic choice of an attorney to not include a lesser charge in an
     attempt to limit the jury’s options does not constitute ineffective
     assistance of counsel. See e.g. Commonwealth v. McGrogan,
     297 A.2d 456, 459 (Pa. 1972) (finding a reasonable basis for trial
     counsel to seek acquittal rather than voluntary manslaughter
     based upon the evidence presented at trial); Commonwealth v.
     Ort, 581 A.2d 230, 233 (Pa. Super. 1990) (noting that a defense

                                    - 11 -
J-S59027-17




     strategy to seek a complete acquittal would be inconsistent with
     [] seeking voluntary manslaughter charge); Commonwealth v.
     Garcia, 535 A.2d 1186, 1189 (Pa. Super. 1988) (“Indeed, it is
     well settled that a strategy aspiring to achieve an acquittal, rather
     than a compromise verdict of manslaughter, is considered
     effective assistance of counsel.”); Commonwealth v. Ulatoski,
     407 A.2d 32, 34 (Pa. Super. 1979) (holding trial counsel was not
     ineffective for failing to request a voluntary manslaughter charge
     because testimony at evidentiary hearing demonstrated trial
     counsel’s belief that the jury would acquit his client).

            Upon hearing the testimony of [Dukes’] trial counsel at the
     PCRA evidentiary hearing, this court found that trial counsel
     pursued a reasonable trial strategy of seeking a complete acquittal
     rather than a compromise verdict of manslaughter. As there was
     a reasonable basis for trial counsel’s actions, [Dukes’] entire
     ineffective assistance of counsel claim failed.       At the PCRA
     evidentiary hearing, trial counsel testified he sought a strategy of
     complete acquittal based on ballistic evidence, statements by
     [Dukes] introduced at trial, and eyewitness testimony. First,
     counsel testified that the ballistic evidence was inconclusive as to
     whether [Dukes] fired a gun, which supported the trial strategy
     that [Dukes] did not fire any shots. Counsel also recalled a
     statement by [Dukes] that was introduced at trial, which
     supported pursuing complete acquittal.               At trial, the
     Commonwealth introduced a statement by [Dukes] about the
     events the night of the shooting; [Dukes] stated he did not have
     a chance to pull out his gun and never fired his gun. Counsel
     testified that “self defense was a case where it would have been
     inconsistent with what we were arguing so therefore, that’s why I
     didn’t ask for self defense. It would have been inconsistent with
     what we were saying.” [Dukes’] trial counsel did not want to
     pursue an inconsistent defense.

            Furthermore, trial counsel also testified that an eyewitness
     recounted [Dukes] firing his weapon first, which would have
     negated presenting a theory of self defense. In counsel’s own
     words, “[Dukes] would have started it to begin with so he wouldn’t
     have a self defense claim itself and it couldn’t even be a misbelief
     because [Dukes] was the one that pulled the gun first.” Trial
     counsel testified his overall strategy for the trial was “[Dukes] was
     a victim just as the other fellow was a victim because [Dukes] was

                                    - 12 -
J-S59027-17




       the one that was shot and he was the one that went in the hospital
       for a couple of months….” Trial counsel did not believe that a
       voluntary manslaughter or self defense charge would apply or fit
       in with his overall defense strategy of seeking an acquittal
       “because there is no show (sic) that [Dukes] fired anything and if
       he did do anything he was the one who had pulled the firearm out
       first…..”

              Based on the testimony from the PCRA evidentiary hearing
       and the court’s recollection of the evidence presented at trial,
       [Dukes’] defense counsel was reasonable in seeking a complete
       acquittal rather than a compromise verdict of manslaughter. See
       Commonwealth v. McGrogan, 297 A.2d 456 (Pa. 1972). As this
       court found counsel had a reasonable basis in effectuating his
       client’s interest, the court also concluded that [Dukes] did not
       receive ineffective assistance of counsel and post-conviction relief
       was not warranted. See Commonwealth v. Garcia, 535 A.2d
       1186 (Pa. Super. 1988).

PCRA Court Opinion, 9/30/2016, 7-9 (record citations omitted).

       We agree with the court’s well-reasoned analysis, and our review

reveals its findings and credibility determinations are supported by the record.

Of importance, the court found counsel’s testimony credible, and we will not

disturb   the    court’s   credibility   determinations.   See   Spotz,   supra.

Accordingly, Dukes has failed to meet the second prong of the ineffectiveness

test, that counsel’s actions lacked an objectively reasonable basis.          See

Stewart, supra. Therefore, we find no relief is warranted on these claims.7

____________________________________________


7
   We note that included in this argument, Dukes references the fact that trial
counsel filed his concise statement four days late. A review of the record
reveals that while his concise statement was untimely, a panel of this Court
still addressed all of his claims. See Dukes, 38 A.3d 925 [338 EDA 2010]



                                          - 13 -
J-S59027-17




       With respect to Dukes’ fourth and fifth claims, which we will address

together, he argues trial counsel was ineffective because counsel suffered

from a psychiatric disorder during trial, which adversely affected his ability to

effectively defend Dukes, and PCRA counsel was ineffective for failing to raise

the argument that trial counsel was ineffective due to his psychiatric disorders.

Dukes’ Brief at 16-18. Dukes reiterates his earlier argument that counsel was

ineffective because he failed to request voluntary manslaughter and self-

defense charges at trial. Id. at 18. Additionally, he states he notified PCRA

counsel of trial counsel’s mental health and disciplinary history, but PCRA

counsel responded that he did “not believe that this issue is relevant and

refused to raise this issue[.] Id. at 16.8

       Dukes presents a layered claim of ineffectiveness, to which we note the

following:

       Layered claims of ineffectiveness are not wholly distinct from the
       underlying claims because proof of the underlying claim is an
       essential element of the derivative ineffectiveness claim. In
       determining a layered claim of ineffectiveness, the critical inquiry
       is whether the first attorney that the [appellant] asserts was
       ineffective did, in fact, render ineffective assistance of counsel. If
       that attorney was effective, then subsequent counsel cannot be
       deemed ineffective for failing to raise the underlying issue.


____________________________________________


(Pa. Super. 2011) (unpublished memorandum at 7-17).             Therefore, Dukes
was not prejudiced by counsel’s untimely filing.

8
  The PCRA court did not address these claims as they were raised in Dukes’
pro se concise statement, filed on December 15, 2016.

                                          - 14 -
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Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012)

(quotation marks and quotations omitted), appeal denied, 64 A.3d 631 (Pa.

2013).

       By way of background, it appears trial counsel represented Dukes from

2008 to 2013. The 2014 news article,9 from which Dukes learned of counsel’s

temporary suspension, stated counsel was suspended for two years,

retroactive to February of 2013. The article indicated trial counsel suffered

from attention-deficit hyperactivity disorder and a form of depression.

       Dukes’ claim fails for several reasons. First, it is another argument of

his aforementioned claims that trial counsel was ineffective for failing to

request manslaughter and self-defense charges, which we have already

determined is erroneous.          Second, Dukes fails to explain how counsel’s

disorders affected his defense of seeking a complete acquittal. Indeed, the

article did not provide any basis for Dukes to conclude counsel’s psychological

disorders affected counsel’s representation of him.    See Reproduced Record,

Newspaper Article (“Before a psychologist identified the disorders in a 2011

diagnosis, they caused [trial counsel] to forget to file pleadings, petitions, and

appeal notices, as well as provide his clients with updates. None of the clients’

proceedings suffered irreparable harm from [trial counsel]’s mistakes the


____________________________________________


9
  We note this article was not included in the certified record, but was included
in the reproduced record.

                                          - 15 -
J-S59027-17




ruling states.”); see also Disciplinary Board File No. 180 DB 2011 (Pa. 2014).

Because Dukes failed to prove trial counsel was ineffective, he is not entitled

to relief on his layered allegation of ineffective assistance of PCRA counsel.

Accordingly, both claims fail.

      Lastly, Dukes argues the trial court erred in removing the voluntary

manslaughter charge from the jury charge. See Dukes’ Brief at 19-20. We

conclude this issue is waived. See 42 Pa.C.S.A. § 9544(b) (“For purposes of

this subchapter, an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.”). We note that generally, claims of

trial court error, other than those enumerated in 42 Pa.C.S. § 9543(a)(2)(i-

viii), are not cognizable under the PCRA.       Furthermore, Dukes could have

raised this claim at trial or on direct appeal, but he failed to do so. Accordingly,

we need not address Dukes’ final argument further.

      Based on our disposition, we affirm the order of the PCRA court denying

Dukes relief.

      Order affirmed.




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J-S59027-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2017




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