J-S30035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVINE AHIEM,                              :
                                               :
                       Appellant               :       No. 58 EDA 2018

                Appeal from the PCRA Order December 15, 2017
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006822-2016,
              CP-51-CR-0006825-2016, CP-51-CR-00068282016

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 25, 2019

        Davine Ahiem (“Ahiem”), pro se, appeals from the Order dismissing his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        The PCRA court summarized the relevant facts underlying Ahiem’s

conviction as follows:

              Each of the three above-captioned cases relate to [Ahiem’s]
        arrest[,] on May 20, 2016[,] following reports and [an]
        investigation that he had actively participated, along with two co-
        defendants[,] Curtis Tucker and Kenneth Wilson, in the
        concerted[,] planned attack[,] and vehicle pursuit along
        residential streets in Northeast Philadelphia[,] of three people,
        including two children, by shooting [at them] with multiple
        weapons, including one military-style deadly firearm….


____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S30035-19


PCRA Court Opinion, 11/8/18, at 1.

        Pursuant to a plea agreement, Ahiem pled guilty, at three docket

numbers[,] to three counts of aggravated assault and criminal conspiracy,2

and one count each of possession of an instrument of crime and persons not

to possess, use, manufacture, control, sell or transfer firearms (“the firearms

offense”).3 In accordance with the plea agreement, the trial court sentenced

Ahiem to an aggregate prison term of 15 to 30 years.4 Ahiem filed no post-

sentence motions or direct appeals from his judgments of sentence.

        On August 25, 2017, Ahiem filed a pro se PCRA Petition with regard to

the sentences imposed at each of the three docketed cases. The PCRA court

appointed counsel, who subsequently filed a Motion to Withdraw from

representation, and No-Merit Letter in accordance with Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc).               Thereafter, the PCRA court issued a

Pa.R.Crim.P. 907 Notice of intent to dismiss Ahiem’s Petition without a

hearing. Ahiem filed no response to the Rule 907 Notice. On December 4,

2017, the PCRA court entered an Order granting counsel’s Motion to Withdraw

____________________________________________


2 It appears from the docket that two of the three conspiracy convictions
subsequently were nolle prossed by the Commonwealth.

3   18 Pa.C.S.A. §§ 2702, 903, 907, 6105.

4   A number of charges were nolle prossed in accordance with the agreement.




                                           -2-
J-S30035-19


and dismissing Ahiem’s PCRA Petition. On December 7, 2017, Ahiem filed a

pro se Notice of Appeal.5

       On April 10, 2018, this Court entered an Order directing Ahiem to file

an amended notice of appeal, within 10 days, identifying the date of the Order

at issue on appeal. Ahiem has not filed an amended notice of appeal.

       As our Supreme Court has explained,

       [i]n the event of a defective notice of appeal, [Pa.R.A.P.] 902
       encourages, though it does not require, appellate courts to
       remand the matter to the lower court so that the procedural defect
       may be remedied. As the note following Rule 902 explains, the
       rule creates a preference for correcting procedurally defective,
       albeit timely, notices of appeal[,] so that appellate courts may
       reach the merits of timely appeals. See Pa.R.A.P. 902, Note. The
       note further indicates that dismissal of a defective appeal remains
       an alternative where the appellate court determines that an
       appellant has failed to take the necessary steps to correct an
       identified defect.

Commonwealth v. Williams, 106 A.3d 583, 587-88 (Pa. 2014). Although

Ahiem has not complied with this Court’s Order to cure the defect, we decline

to quash or dismiss his appeal, as his misstep does not prejudice the

Commonwealth or impede our review.

       Ahiem presents the following claims for our review:



____________________________________________


5 Ahiem filed his single Notice of Appeal prior to June 1, 2018, and accordingly,
the Pennsylvania Supreme Court’s holding in Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), does not apply. See id. at 977 (stating that “when
a single order resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed[,]” effective for appeals filed after
June 1, 2018).


                                           -3-
J-S30035-19


     A. Did the trial court violate [section] 303.1(a) of the Sentencing
        Guidelines[, 24 Pa. Code § 303.1(a)]?

     B. Did the trial court violate [section] 303.1(d) of the Sentencing
        Guidelines[, id. § 303.1(d)]?

     C. Did the trial court violate [section] 303.5(b) of the Sentencing
        Guidelines, [id. § 303.5(b)]?

     D. Did the trial court violate [section] 303.8(d)(2) of the
        Sentencing Guidelines[, id. § 303.8(d)(2)]?

     E. Did the trial court violate [section] 303.8(f)(3) of the
        Sentencing Guidelines[, id. § 303.8(f)(3)]?

     F. Did the trial court violate [section] 303[.8](g)(2) of the
        Sentencing Guidelines[, id. § 303.8(g)(2)]?

     G. Did [] PCRA counsel fail to meet the requirement[s] of
        Turner/Finley?

     H. Did the PCRA court err in accepting PCRA counsel’s “No[-]Merit”
        [L]etter?

     I. Did [the PCRA court] fail [sic] in dismissing [the Petition] for
        not meeting [the] requirements under 42 Pa.C.S.A. § 9543?

     J. Did [PCRA] counsel fail to investigate, raise, and address all of
        the issues presented in the pro se PCRA Petition?

     K. Did [the] trial court abuse its discretion by convicting [Ahiem]
        of 18 Pa.C.S.A. § 6105(a)(1)?

     L. Did [the] trial court miscalculate [Ahiem’s] New Jersey prior
        convictions?

Brief for Appellant at ii-iv (unnumbered) (footnote added).

     Initially, we observe our standard of review:

     We review the denial of PCRA relief to decide whether the PCRA
     court’s factual determinations are supported by the record and are
     free of legal error. When supported by the record, the PCRA
     court’s credibility determinations are binding on this Court, but we

                                    -4-
J-S30035-19


       apply a de novo standard of review to the PCRA court’s legal
       conclusions. We must review the PCRA court’s findings and the
       evidence of record in a light most favorable to the Commonwealth
       as the winner at the trial level.

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018).

       Ahiem first claims that the trial court violated section 303.86 of the

Sentencing Guidelines, 24 Pa. Code § 303.8.           Brief for Appellant at 1.

According to Ahiem, his prior convictions in New Jersey were not properly

scored, “resulting in a miscalculation of his prior record score.” Id. Ahiem

challenges the grading of his firearms offense as a felony, arguing that the

trial court erred by concluding that his prior conviction for violating N.J. Stat.

Ann. § 2C:12-1(b)(3) (“the New Jersey Statute”) is not a felony, for the

purpose of grading of the firearms offense. Brief for Appellant at 2. Ahiem

directs our attention to our Supreme Court’s holding in Commonwealth v.

Chapman, 136 A.3d 126 (Pa. 2016), which held that a violation of the New

Jersey Statute did not constitute a felony for purposes of sentencing under




____________________________________________


6 Although Ahiem’s Statement of Questions Presented identified section
303.1(a) of the Sentencing Guidelines as the basis for his first claim, he
focuses on section 303.8 in the Argument section of his brief.


                                           -5-
J-S30035-19


section 106 of the Crimes Code.7 Id. at 133-34.

        In its Opinion, the PCRA court addressed this issue, which formed the

basis of a claim of ineffective assistance of counsel, and concluded that it lacks

merit. See PCRA Court Opinion, 11/8/18, at 11-12. We affirm based on the

PCRA court’s Opinion with regard to this claim. See id.

        Additionally, we observe that Ahiem’s New Jersey conviction of

distributing a controlled substance on school property, N.J.C. 2C § 35-7, is

sufficient to support the grading of the firearms offense as a felony of the

second degree.      In particular, the elements of the New Jersey offense are

sufficient to establish the Pennsylvania crime of possession of a controlled

substance with the intent to deliver, pursuant to 35 P.S. § 780-113(a)(30).

That the New Jersey offense includes an additional element, i.e., that the

offense take place on school property, does not negate its applicability.

        Ahiem’s second through sixth claims challenge the discretionary aspects

of his sentence.8        The PCRA does not provide an appellant relief for

discretionary aspects of sentence claims. See Commonwealth v. Fowler,



____________________________________________


7 Section 106 of the Crimes Code provides that offenses that are not
specifically denominated felonies or misdemeanors in the Crimes Code, but
which carry maximum sentences of five years or less, are classified as
misdemeanors; whereas, crimes not specifically denominated felonies or
misdemeanors in the Crimes Code, but which carry maximum sentences of
more than five years, are classified as felonies. See 18 Pa.C.S.A. § 106(b)
(4), (6).

8   Ahiem presents these claims together in the Argument section of his brief.

                                           -6-
J-S30035-19


930 A.2d 586, 593 (Pa. Super. 2007) (explaining that “[c]hallenges to the

discretionary aspects of sentencing are not cognizable under the PCRA.”)

(citations omitted); see also Commonwealth v. Jordan, 772 A.2d 1011,

1016 (Pa. Super. 2001) (observing that “[t]his Court’s case law has stated

that a challenge to the discretionary aspects of sentencing is a matter that

must be reviewed in the context of a direct appeal and cannot be reviewed in

the context of the PCRA.”); 42 Pa.C.S.A. § 9543(a)(2).

      Even if Ahiem could challenge the discretionary aspects of his sentence

on collateral review, he still would not be entitled to relief. This Court has

declared that,

      [w]here the plea agreement contains a negotiated sentence[,]
      which is accepted and imposed by the sentencing court, there is
      no authority to permit a challenge to the discretionary aspects of
      that sentence. If either party to a negotiated plea agreement
      believed the other side could, at any time following entry of
      sentence, approach the judge and have the sentence unilaterally
      altered, neither the Commonwealth nor any defendant would be
      willing to enter into such an agreement. Permitting a discretionary
      appeal following the entry of a negotiated plea would undermine
      the designs and goals of plea bargaining, and would make a sham
      of the negotiated plea process….

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991)

(internal citations, quotation marks and footnote omitted).            Accord

Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (holding that

a challenge to the discretionary aspects of a negotiated sentence is

unreviewable). Having entered a negotiated guilty plea, and having received




                                     -7-
J-S30035-19


the negotiated sentence, Ahiem cannot now challenge the discretionary

aspects of his sentence. See Reichle, 589 A.2d at 1141.

      In his seventh claim, Ahiem argues that the PCRA court improperly

permitted his counsel to withdraw pursuant to Turner/Finley.        Brief for

Appellant at 8. Ahiem asserts that the PCRA court failed to conduct its own

independent review of the record, and ignored errors by his counsel. Id. at

9-10. Ahiem also argues that he raised additional issues in his pro se PCRA

Petition, which counsel and the PCRA court failed to address. Id. According

to Ahiem, counsel failed to argue or address his claim of a violation of

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United

States, 570 U.S. 99 (2013).

      Similarly, in his eighth claim, Ahiem argues that the PCRA court

improperly accepted PCRA counsel’s No-Merit Letter. Brief for Appellant at

11.   Ahiem argues that several of the issues in the No-Merit Letter were

incorrect. Id. Once again, Ahiem challenges the discretionary aspects of his

sentence, and that his plea was invalid based upon these sentencing issues.

Id. at 12.

      In his ninth claim, Ahiem argues that the PCRA court improperly

dismissed his Petition, concluding that Ahiem had failed to meet the

requirements of 42 Pa.C.S.A. § 9543. Id. at 4.

      Our review discloses that, in its Opinion, the PCRA court addressed the

claims addressed in counsel’s Motion to Withdraw. See PCRA Court Opinion,


                                    -8-
J-S30035-19


11/8/18, at 13. In addition, the PCRA court observed that Ahiem “failed to

articulate any allegations[,] within his [P]etition[,] in accordance with the

requisites of a claim predicated upon counsel’s ineffectiveness. None of the

claims within the [P]etition indicted the truth-determining process; nor did

any allege that a determination as to guilt or innocence could not be made.”

Id. at 13.       Thus, the PCRA court, in fact, properly conducted its own

independent review and determined that the claims raised in the Petition

lacked merit and were frivolous. See id. Accordingly, we cannot grant Ahiem

relief on any of these claims.

         In his tenth claim, Ahiem contends that his PCRA counsel rendered

ineffective assistance by concluding that Ahiem had failed to meet the

requirements for relief under the PCRA. Brief for Appellant at 13. Underlying

this assertion is Ahiem’s claim that his plea counsel failed to investigate and

ascertain the evidence that the Commonwealth would use at sentencing. Id.

at 14.

         Generally, “when counsel files a Turner/Finley no-merit letter to the

PCRA court, a petitioner must allege any claims of ineffectiveness of PCRA

counsel     in   a   response     to     the   court’s   notice    of   intent   to dismiss.”

Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa. Super. 2012). “Once [an

appellant has] filed a notice of appeal, he [has] waived his right to complain

about PCRA counsel’s stewardship, because [the appellant is] unable to raise

those     claims     for   the   first    time   in   his   Rule    1925(b)      statement.”


                                               -9-
J-S30035-19


Commonwealth v. Smith, 121 A.3d 1049, 1055 (Pa. Super. 2015). Thus,

any claims of ineffective assistance of PCRA counsel are waived. See id.

     In his eleventh and twelfth claims, Ahiem argues that the trial court

improperly convicted him of the firearms offense, and improperly calculated

his prior record score for that offense. Brief for Appellant at 22-23. Once

again, Ahiem challenges the application of his violation of the New Jersey

Statute as the basis for establishing the firearms offense as a felony. Id. at

23. For the reasons discussed supra, Ahiem is not entitled to relief on this

claim.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/19




                                    - 10 -
                                                                                         Circulated 06/27/2019 03:22 PM




                         IN THE COURT OF COMMON PLEAS
                     FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                         TRIAL DIVISION - CRIMINAL SECTION


COMMONWEALTH OF                                               CP-51-CR-0006822-2016
PENNSYLVANIA                                                  CP-51-CR-0006828-2016
                                                              CP-51-CR-0006825-2016

           vs.

                                                             SUPERIOR COURT
DA VINE AHIEM                                                NO. 58 EDA 2018


                                                                 CP-51-CR-0006822-2016   Comm. v AHIEM. o;v,N-E
                                                                                   Opinion
                                           OPINION
                               FILED
                              NOVO 8 2018
                                                                       I
                                                                     II I lllll 1111111111111111
                                                                             8187561281

COYLE,J.                     Appeals/Post Trial              NOVEMBER 8, 2018
                         Office of Judicial Records


       Appellant, Davine Ahiem, filed a pro se appeal from the Order entered by this Court, the

Honorable Anne Marie B. Coyle Judge of the Court of Common Pleas for the First Judicial

District of Pennsylvania on January 18, 2018, dismissing his petition which sought relief

pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 el seq. in the above-captioned

matters.

I. FACTUAL HISTORY

       Each of the three above-captioned cases relate to the Appellant's arrest on May 20, 2016

following reports and investigation that he had actively participated, along with two co-

defendants Curtis Tucker and Kenneth Wilson, in the concerted planned attack and vehicle

pursuit along residential streets in Northeast Philadelphia of three people, including two children,

by shooting with multiple weapons, including one military style deadly firearm, at three people.
II. PROCEDURAL HISTORY

       On March 27, 2017, Davine Ahiem appeared before this Court with the assistance of

capable trial counsel Marni Jo Snyder, Esquire, and tendered guilty pleas pursuant to expressed

negotiations with the assigned Assistant District Attorney Michael Luongo, Esquire representing

the Commonwealth of Pennsylvania to specified indicted criminal offenses docketed as follows:

       CP-5 l-CR-0006822-2016:
              Count 1: 18 §2702 §§Al-Aggravated Assault F 1;
              Count 2: 18 §903- Conspiracy-Aggravated Assault Fl;
              Count 5: 18 §907- Possession Criminal Instrument Ml;
              Count 8: 18 §6105§§Al- Possession of Firearm Prohibited F2;
       CP-5l-CR-0006825-2016:
              Count 1: 18 §2702 §§Al-Aggravated Assault Fl;
              Count 2: 18 §903- Conspiracy-Aggravated Assault F 1;
       CP-5l-CR-0006828-2016:
              Count 1: 18 §2702 §§Al-Aggravated Assault Fl;
              Count 3: 18 §903- Conspiracy-Aggravated Assault Fl;


       Following the full execution, submission and review of three respective written colloquy

forms into the transcribed record by counsel for both parties and Appellant, this Court conducted

an extensive recorded oral colloquy.     After Appellant unequivocally demonstrated that the

proffered guilty pleas were tendered knowingly, voluntarily and intelligently, this Court imposed

the negotiated sentence.

       The negotiated sentence for all three cases totaled an aggregate sentence under state

supervision of a fifteen (15) years minimum period of confinement to a maximum period of

thirty (30) years of confinement. Rehabilitative conditions were imposed and a number of

criminal charges were no/le prossed pursuant to the previous negotiations. On March 28, 2018,

Amended Sentencing Orders were entered to correct scriveners' errors for cases docketed under

CP-51-CR-0006825-2016 and CP-51-CR-0006828-2016. No post-sentence motions or direct

appeal were filed. Thus the judgement of sentences became final on June 2, 2017.

                                               2
       On August 25, 2017, Davine Aheim, filed pro se Petitions as to each of the three above-

captioned cases, pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq.

(hereinafter referred to as "PCRA."), seeking relief by generally asserting: that his trial and

sentencing counsel had been ineffective; that tendered guilty pleas had been unlawfully induced;

and that the imposition of the respective sentences had been greater than the maximum periods

lawfully permitted. The forms of relief requested included a release from custody and discharge

of his cases; correction and imposition of sentence no less than six (6) years to no more than

twelve (12) years of incarceration. James Lloyd, III, Esquire was appointed to represent

Appellant

        James R. Lloyd, III, Esquire was appointed as counsel on behalf of Appellant. Following

an examination of the case, Mr. Lloyd filed a Finley letter, indicating that the issues raised by the

Appellant were without merit and that there were no additional issues which could be raised in a

counseled Amended Petition. After conducting a review of the record, this Court dismissed

Appellant's motion on December 4, 2017.1 Mr. Lloyd was permitted to withdraw as counsel,

and Appellant filed a timely Notice of Appeal.



11. ISSUES

        Appellant challenged this Court's ruling that the petitioned allegations of ineffective

assistance of counsel, unlawfully induced guilty pleas, violations of the Constitution, illegally

imposed sentences lacked merit.




        I The dismissal occurred more than twenty days after Appellant was served with notice of the
forthcoming dismissal of his PCRA petition. Pa. R. Crim. P. 907.


                                                        3
III. STANDARD OF REVIEW

         It is well settled that upon entry of a guilty plea, a petitioner waives all defects and

defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and

the legality of the sentence imposed. Commonwealth v. Guth, 735 A.2d 709, 711 n.3 (Pa. Super.

1999).

         In order to prevail on an ineffectiveness claim, a petitioner must establish that his claim is

of arguable merit, that counsel had no reasonable basis for his action, and that counsel's action

prejudiced him.     Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987).

Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis

for relief only if the ineffectiveness caused petitioner to enter an involuntary or unknowing plea.

Commonwealth v. Allen, 557 Pa. 135, 144, 732 A.2d 582, 587 (1999).

         When petitioning the court to withdraw a plea, a petitioner must show prejudice

amounting to "manifest injustice." Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154,164

(1999). Manifest injustice requires a showing that the plea was involuntary, or was entered

without knowledge of the charges, the right to a jury trial, and awareness of the consequences of

the plea. Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002). Where the

record demonstrates that a guilty plea colloquy informed the petitioner of the nature of the

charges against him, the voluntariness of the plea is established. A petitioner is bound by the

statements of his plea, and he may not assert grounds for withdrawing the plea that contradict

those statements. Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999).

         Review of guilty pleas under the Post-Conviction Relief Act is commensurately

circumscribed, explicitly permitting such a challenge only where the plea is "unlawfully induced

where the circumstances make it likely that the inducement caused the petitioner to plead guilty



                                                  4
and the petitioner is innocent." See 42 Pa.C.S. § 9543(a)(2)(iii).



IV. DISCUSSION

       The purpose of the Post-Conviction Relief Act is to afford collateral relief to those

individuals convicted of crimes they did not commit and to those serving illegal sentences. 42

Pa.C.S. § 9542. Claims pursuant to the Post Conviction Relief Act are extraordinary assertions

that the judicial system failed; they are not merely direct appeal claims that are made at a later

stage of the judicial proceedings. Commonwealth v. Rivers, 567 Pa. 239, 249, 786 A.2d 923,

929 (2001).

       In his petition, Appellant alleged that counsel was ineffective for failing to object to the

imposed sentences for various reasons. In determining whether counsel rendered ineffective

assistance, the court must use a three-pronged test. First, the court must ascertain whether the

issue underlying the claim has arguable merit. This requirement is based upon the principle that

counsel will not be found ineffective for failing to pursue a frivolous claim or strategy. Second,

if the petitioner's claim does have arguable merit, the court must determine whether the course

chosen by counsel had some reasonable basis designed to serve the best interest of the petitioner.

Finally, if a review of the record reveals that counsel was ineffective, the court must determine

whether the petitioner has demonstrated that counsel's ineffectiveness worked to his prejudice.

Commonwealth v. Breisch, 719 A.2d 352 (Pa. Super. 1998); Commonwealth v. Pendola, 416 Pa.

Super. 568, 611 A.2d 761 (1992), appeal denied, 629 A.2d 1378 (Pa. 1993). Failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v.

Hudson. 820 A.2d 720, 726 (Pa. Super. 2003).

        In order to establish prejudice, a petitioner must show that counsel's ineffectiveness was



                                                  5
of such magnitude that the verdict essentially would have been different absent the ineffective

assistance.   Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300, 1308 (1994). See also

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       In the context of a PCRA claim, petitioner must not only establish ineffective assistance

of counsel, he must also plead and prove that counsel's stewardship so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken place.

See 42 Pa.C.S.A. §9543 (a)(2)(ii); Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995);

Commonwealth v. Rowe, 411 Pa. Super. 363, 601 A.2d 833 (1992).

        Counsel is never ineffective for failing to make a frivolous objection or motion.

Commonwealth v. Groff, 356 Pa. Super. 477, 514 A.2d 1382, 1386 (1986), appeal denied, 531

A.2d 428 (Pa. 1987); Commonwealth v. Davis, 313 Pa. Super. 355, 459 A.2d 1267, 1271 (1983).

Similarly, counsel is never ineffective for failing to raise a frivolous issue in post-verdict motions

or on appeal.     Commonwealth v. Thuy, 424 Pa. Super. 482, 623 A.2d 327, 355 (1993);

Commonwealth v. Tanner, 410 Pa. Super. 398, 600 A.2d 201, 206 (1991).

        The law presumes that trial counsel was effective. Commonwealth v. Quier, 366 Pa.

Super. 275, 531 A.2d 8, 9 (1987); Commonwealth v. Norris, 305 Pa. Super. 206, 451 A.2d 494,

496 (1982).     Therefore, when a claim of ineffective assistance of counsel is made, it is the

petitioner's burden to prove such ineffectiveness; that burden does not shift. Commonwealth v.

Cross, 535 Pa. 38, 634 A.2d 173, 175 (1993), cert. denied, 115 S.Ct. 109, 130 L.Ed.2d 56 (Pa.

1994); Commonwealth v. Marchesano, 519 Pa. 1, 544 A.2d 1333, 1335-36 (1988);

Commonwealth v. Tavares, 382 Pa. Super. 317, 555 A.2d 199, 210 (1989), appeal denied, 571

A.2d 382 (Pa. 1989).

        For an action or inaction by counsel to be considered prejudicial, there must be a



                                                  6
reasonable probability that the outcome of the proceedings would have been different but for

counsel's alleged error. Commonwealth v. Cox, 581 Pa. 107, 863 A.2d 536, 546 (Pa. 2004);

Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 573- 74 (Pa. 2002). All three prongs of

the above test must be satisfied. If a petitioner fails to meet even one prong of the test, his

conviction will not be reversed on the basis of ineffective assistance of counsel. Commonwealth

v. Pappas, 2004 PA Super 32, 845 A.2d 829, 844 (Pa. Super. 2004). Appellant failed to meet any

prongs of this test within his pro se Petition pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §9541 et seq.

   A. Ineffective Assistance Claims Related to Failing to Raise Sentencing Obiections

         Appellant's contentions that his trial counsel should have filed objections to the imposed

sentence were founded upon the claim that he had been completely unaware of salient sentencing

terms of the negotiations and similarly oblivious to the fact that the charged crimes for which he

had entered guilty pleas included three counts of Aggravated Assault. More specifically, Mr.

Ahiem alleged that he had never been advised that consecutive sentences were to be imposed

that computed to an aggregate fifteen to thirty years period of confinement. The totality of

circumstances presented within the transcribed record from the plea and sentencing proceedings,

however, unequivocally demonstrate that Appellant had knowingly, intelligently and voluntarily

entered the negotiated guilty pleas and is so doing knowingly waived any and all defects and

defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and

the legality of the sentence imposed. Commonwealth v. Guth, 735 A.2d 709, 711 n.3 (Pa. Super.

1999).

         On March 27, 2017, following off the record discussions by and between the parties and

their counsel, three fully completed and executed written guilty plea forms were presented to this



                                                  7
Court for review reflecting the detailed negotiations as it applied to each case and demonstrating

Appellant's knowledge and voluntary intentions to plead guilty. Upon presentation, introduction

of the written and signed colloquy forms and identification on the record of all negotiations, this

Court conducted a thorough oral recorded examination of the Appellant who had been duly

sworn to tell the truth.

        During this colloquy, this Court formally advised Davine Ahiem of all rights and

responsibilities that applied to the entry of the guilty pleas. All salient terms of the negotiations

were reviewed again on the record. All aspects of the negotiations were duly identified and

assessed. During the oral colloquy, the prosecutor orally recited the underlying facts that formed

the basis for the charges at issue.

       As a result, Appellant had been provided full and fair opportunity to amend, accept or

deny the underlying facts that had been recited by the prosecution during this colloquy. Overall,

Appellant had formally demonstrated in writing and orally that he understood and accepted the

supporting facts. He similarly acknowledged his awareness of the precise negotiated terms

including the consecutive sentences as well as the aggregate period of confinement as welJ as the

voluntariness of his tendered pleas. Each of the general claims of ineffectiveness of counsel

stemming from an asserted lack of knowledge or involuntariness or general illegality of

proceedings had failed to meet any of the required elements to warrant relief.

   1. Illegality of Sentence Claims

           Appellant had asserted that counsel had been ineffective for failing to raise a merger,

       double jeopardy, or Pa.R.Cr.P. § 110 objection to the negotiated sentences. Gleaned from

       these assertions was the misperception that the crime of Violation of the Uniform

       Firearms Act, 18 §6105§§Al- Possession of Firearm Prohibited Person, F2, had merged



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  with each of the three counts of 18 §2702 §§Al-Aggravated Assault, Fl. The elements of

  each named offense however differed significantly. Each offense required proof of facts

  which the other did not. Thus, the offenses did not merge and likewise double jeopardy

  and Rule 110 could not have applied. Objections to the sentencing on those bases would

  have been denied and deemed frivolous. Thus, counsel could not have been ineffective

   for failing to make a frivolous objection or motion. Commonwealth v. Groff, 356 Pa.

   Super. 4 77, 514 A.2d 1382, 1386 (1986), appeal denied, 531 A.2d 428 (Pa. 1987);

   Commonwealth v. Davis, 313 Pa. Super. 355, 459 A.2d 1267, 1271 (1983).

      Similarly, Appellant had claimed that the sentences had been illegally imposed as

   exceeding the maximum sentences permitted and consecutively imposed. A simple

   review of the Orders of Sentence reflect however that all negotiated periods of

   confinement were well within the statutory limits for each offense as graded. Secondarily,

   the consecutive periods were imposed pursuant to the expressed negotiations knowingly

   and voluntarily accepted by Appellant.

      Moreover, pursuant to 42 Pa. C.S.A. § 9781(d)(l) and (3), this Court was well within

   its discretionary right to impose the sentences consecutively. The sentencing court's

   exercise of discretion by imposing consecutive as opposed to concurrent sentences is not

   viewed as raising a substantial question that would allow the granting of allowance of

   appeal in our Commonwealth. Com. v. Marts, 889 A.2d 608 (Pa. Super. 2005).

2. Ineffectiveness of Counsel For Failure To Claim Violation of Miranda Rights

      Appellant had argued that this plea counsel had been ineffective for failing to raise a

   claim that his Miranda rights had been violated following arrest. The admitted facts

   presented by the prosecutor at the time of the proffer of the negotiated guilty pleas



                                            9
included the signed waiver of his Miranda rights and resulting formal statement given to

investigating officers following his arrest. Mr. Ahiem had claimed to investigators that he

had fired number of shots indiscriminately into the air for no apparent reason from his

lone backseat passenger seat of the pursuing vehicle also occupied by the co-conspirators.

   The transcribed record also reflected similar written waivers of Miranda rights had

been executed by the charged co-conspirators followed by statements given by each one

that implicated Davine Ahiem. The recited DNA evidence linked Appellant to at least

one, if not two, of the recovered military style and revolver firearms previously fired

from the pursuing vehicle. Appellant acknowledged the supporting facts and raised no

complaint concerning any Miranda violation when he tendered the guilty pleas. He

acknowledged his waiver of Miranda rights by accepting the supporting facts as read into

the record.

    Furthermore, by knowingly, voluntarily and intelligently proffering the guilty pleas

petitioner waived all defects and defenses except those concerning the validity of the

plea, the jurisdiction of the trial court, and the legality of the sentence imposed.

Commonwealth v. Guth, 735 A.2d 709, 711 n.3 (Pa. Super. 1999).

    Additionally, as succinctly stated within Mr. Lloyd's Finley review of the record:

            "With respect to the claim that petitioner's statement to police
        should have been suppressed as violative of his Miranda rights, the
        claim fails all three prongs. Attached as Exhibit 1 hereto is
        petitioner's written, signed waiver of his Miranda rights. Thus, a
        motion to suppress would have failed. Counsel did not employ
        poor strategy by opting not to litigate a wholly frivolous motion.
        Finally, had the proposed motion been litigated, a court applying
        controlling authority would have denied it based upon the record in
        the matters sub Judice. Accordingly, petitioner suffered no
        prejudice by not litigating a frivolous motion.

              With respect to the next claim, undersigned counsel assumes


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           arguendo that plea counsel miscalculated the PRS in this matter
           due to the fact that petitioner's multiple prior convictions occurred
           in another state, thereby rendering it difficult to determine the
           appropriate corresponding offense in Pennsylvania for counsel.
           Even making these assumptions, the claim cannot prevail under the
           facts of this case. This is due to the fact that petitioner cannot not
           show by a preponderance of the evidence that he suffered
           prejudice."

3. Objection to Sufficiency of Evidence of Aggravated Assault.

       Appellant's claim that his counsel had been ineffective for failing to raise sufficiency

   of evidence as it related to each of three counts of Aggravated Assault, depended upon

   the legally deficient notion that serious bodily injury must have resulted to the named

   complainant for the first degree felony grading and definition of Aggravated Assault

   under 18 §2702 §§Al to be sustained. This is an incorrect perception of the law.

       The statutory definition of Aggravated Assault pursuant to 18 §2702 §§Al, graded as

   a felony of first degree, includes the attempt to cause serious bodily injury as an

   alternative qualifying offense element. In this case, sufficient evidence supported

   Appellant's first degree felony convictions for Aggravated Assault under 18 §2702 §§A 1.

   Thus trial counsel could not have been faulted for failing to raise this frivolous claim.

4. Sufficiency of 18 §6105§§Al- Possession of Firearm Prohibited Person, F2.

       Appellant had argued that his counsel had been ineffective for failing to argue that the

   previous offenses for which he had been convicted in the State of New Jersey could not

   have qualified to support his conviction pursuant to Violation of the Uniform Firearms

   Act, 18 §6105§§Al- Possession of Firearm Prohibited Person, F2. The record however

   demonstrated that Davine Ahiem had been earlier adjudicated delinquent as a juvenile on

   December 6, 2004 in the State of New Jersey for Robbery. In addition, he had been

   convicted as an adult, also within the State of New Jersey, prior to the arrest in the instant


                                             11
   matters, for multiple offenses including: Obstruction of Administration of Law with an

   arrest date of 3/4/08 and conviction date of 4/14/08; Unlawful Possession of a Handgun

   with an arrest date of 5/19/08 and conviction date of 10/28/08; and for Distribution of a

   ControlJed Dangerous substance on School Property with an arrest date of 5/28/08 and

   conviction date of 1/12/09. This criminal history was uncontradicted.

          As to the illegal narcotics dealing conviction under New Jersey Code of Criminal

   Justice 2C § 35-7, this statute provided as follows in relevant part: "(a)   Any   person

   who violates subsection a. of N.J.S.2C:35-5 by distributing, dispensing or possessing

   with intent to distribute a controlled dangerous substance or controlled substance analog

   while on any school property used for school purposes which is owned by or leased to

   any elementary or secondary school or school board, or within 1,000 feet of such school

   property or a school bus, or while on any school bus, is guilty of a crime of the third

   degree and shall, except as provided in N.J .S.2C:35- l 2, be sentenced by the court to a

   term of imprisonment."

          Thus, the New Jersey conviction for Appellant's illegal sales of narcotics within

   the school zone constituted an elemental equivalent to the enumerated qualifying offense

   of 35 P.S. § 780-1 l 3(a)(30)-Possession of Controlled Substance With Intent to Deliver,

   The conviction duly supported the second degree felony grading of Violation of the

   Uniform Firearms Offense, 18 Pa.C.S.A. § 6105§§Al-Possession of Firearm by

   Prohibited Person. Trial attorney had employed a reasonable alternative resolution to this

   issue with the negotiated guilty plea. No prejudice was demonstrated.

B. Cumulative Errors

   Finally, Appellant had argued that he was entitled to relief because of the cumulative



                                            12
effect of various irrelevant errors.   According to Appellant, these errors collectively and

cumulatively denied Mr. Ahiem his rights to due process of law and his rights under the Fifth,

Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the

corresponding provisions of the Pennsylvania Constitution. A petitioner however cannot be

prejudiced by non-existent errors. No number of failed claims may collectively attain merit if

each could not do so individually. Commonwealth v. Williams, 615 A.2d 716, 722 (Pa. 1992);

Commonwealth v. Ellis, 700 A.2d 948, 962 n6 (Pa. Super. 1997); Commonwealth v. Baez, 554

Pa. 66 (1998). No relief was due.


V. CONCLUSION

       A claim that does not show, nor even allege, that the truth-determining process was

undermined or that a determination as to guilt or innocence could not be made, is not cognizable

under the PCRA. 42 Pa.C.S. § 9543(a) (2). Appellant had failed to articulate any allegations

within his petition in accordance with the requisites of a claim predicated upon counsel's

ineffectiveness. None of the claims within the petition indicted the truth-determining process;

nor did any allege that a determination as to guilt or innocence could not be made. Accordingly,

for the foregoing reasons, the petition seeking post-conviction collateral relief was properly

dismissed for lack of merit.




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