J-S21012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARKEZ PRIEST

                            Appellant                 No. 905 WDA 2016


                   Appeal from the PCRA Order June 8, 2016
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0001503-2009


BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED JUNE 8, 2017

        Markez Priest appeals, pro se, from the order entered in the Court of

Common Pleas of Beaver County, dismissing his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.          After

careful review, we affirm the PCRA court’s order on the basis of the opinion

authored by the Honorable Richard Mancini.

        On July 9, 2009, Priest shot and killed Darius Odom while Odom was

walking with the mother of Priest’s child. On April 30, 2010, a jury convicted

him of first-degree murder and a firearms offense. On June 29, 2010, Priest

was sentenced to life imprisonment. His judgment of sentence was affirmed



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S21012-17



by this Court. See Commonwealth v. Priest, 18 A.3d 1235 (Pa. Super.

2011).

       Priest filed a PCRA petition on July 5, 2011, which resulted in the court

reinstating Priest’s appellate rights, specifically to challenge the weight of

the evidence. This Court affirmed, see Commonwealth v. Priest, 82 A.3d

466 (Pa. Super. 2013) (Table), and our Supreme Court denied allowance of

appeal. See Commonwealth v. Priest, 80 A.3d 776 (Pa. 2013) (Table).

       On April 23, 2014, Priest filed a pro se PCRA petition,1 followed on May

29, 2014, by an amended pro se petition.            These petitions raised the

following issues:     (1) the legality of Priest’s sentence in light of Miller v.

Alabama, 312 S. Ct. 2455 (2012); (2) ineffectiveness of trial counsel for

failing to present DNA evidence found on the victim; (3) ineffectiveness of

trial counsel for failing to present the victim’s blood toxicology report; (4)

ineffectiveness of trial counsel for failing to present the ballistics report; (5)

trial court error in admitting video of victim receiving treatment at the

hospital; and (6) prosecutorial misconduct during closing argument.

       Counsel was appointed to represent Priest and subsequently filed a “no

merit” letter pursuant to Turner/Finley.2 On November 12, 2014, the PCRA
____________________________________________


1
  Because Priest’s first PCRA petition resulted in the reinstatement of his
appellate rights, his April 2014 petition was properly treated as a timely first
PCRA petition.
2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



                                           -2-
J-S21012-17



court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.

Priest filed a response to the court’s Rule 907 notice, as well as a “Nunc Pro

Tunc Motion for Post Conviction Relief.” These filings raised three additional

grounds for relief:      (1) trial counsel ineffectiveness for failure to raise a

voluntary manslaughter defense; (2) illegality of sentence pursuant to

Alleyne v. United States, 133 S. Ct. 2151 (2013), and Commonwealth v.

Valentine, 101 A.3d 801 (Pa. Super. 2014); and (3) trial counsel

ineffectiveness for failing to subpoena Priest’s telephone records to show his

location at the time of the offense. On February 13, 2015, the PCRA court

directed appointed counsel to review the third issue, relating to telephone

records.     On January 11, 2016, counsel filed a second “no merit” letter

concluding that claim was meritless.           Priest filed a response, in which he

raised one new ground for relief: the discovery of a new alibi witness and/or

ineffective assistance of trial counsel in failing to call the witness. On April

8, 2016, the PCRA court issued another Rule 907 notice and, on June 8,

2016, the court dismissed Priest’s petition and granted counsel leave to

withdraw.

        This timely appeal follows, in which Priest raises the following claims

for our review:3




____________________________________________


3
    We have reworded Priest’s claims for the sake of clarity and brevity.



                                           -3-
J-S21012-17


      1. Whether the PCRA court erred in denying relief where trial
      counsel was ineffective for failing to present exculpatory DNA
      evidence.

      2. Whether the PCRA court erred in denying relief where trial
      counsel was ineffective for failing to obtain and present Priest’s
      cell phone records.

      3. Whether the PCRA court erred in denying relief where trial
      counsel was ineffective for failing to present the victim’s
      toxicology report.

      4. Whether the PCRA court erred in failing to find that Priest’s
      sentence is illegal pursuant to Miller.

See Brief of Appellant, at 4-5.

      We begin by noting that our standard of review of the denial of a PCRA

petition is limited to examining whether the evidence of record supports the

court’s determination and whether its decision is free of legal error.

Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011). This Court

grants great deference to the findings of the PCRA court if the record

contains any support for those findings.     Commonwealth v. Boyd, 923

A.2d 513 (Pa. Super. 2007). We give no such deference, however, to the

court’s legal conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194

(Pa. Super. 2012).

      In its opinion dated June 8, 2016, the PCRA court concluded that all of

Priest’s appellate issues were without merit.    Specifically, the court found

that: (1) trial counsel was not ineffective for failing to introduce DNA found

under the victim’s fingernails that did not match Priest’s DNA profile or blood

type, as the jury’s determination would ultimately be based upon the



                                     -4-
J-S21012-17



credibility of the eyewitness identifications and, in any event, the mere

presence of DNA from another individual under the victim’s fingernails does

not serve to exculpate Priest, see Trial Court Opinion, 6/8/16, at 7-9; (2)

trial counsel was not ineffective for failing to subpoena Priest’s cellphone

records because PCRA counsel attempted to obtain them and they were not

available and the cellular provider advised that, in any event, such records

would not pinpoint the location of the user, see id. at 15-16; (3) trial

counsel was not ineffective for failing to present the victim’s toxicology

reports to discredit his identification of Priest as his assailant because the

same records also noted that the victim was “speaking in clear, full

sentences” and “ha[d] full mental status,” which could ultimately have had

the effect of bolstering the victim’s identification in the eyes of the jury, see

id. at 9-10; and (4) Miller is not applicable to the defendant, as he was 20

years old at the time he committed his offense.4

       We have reviewed the record and the briefs submitted by the parties

in this matter and conclude that Judge Mancini thoroughly and correctly

____________________________________________


4
  Priest argues that Miller prohibits the imposition of a mandatory life
sentence in his case because “[w]hile clearly no longer a juvenile, [Priest],
at age 20 years old, was barely a legal adult” and his brain was still
developing. Brief of Appellant, at 18. However, this Court has previously
declined to extend PCRA relief under Miller to defendants 18 years of age
and older based on the same argument. See Commonwealth v. Cintora,
69 A.3d 759, 764 (Pa. Super. 2013) (rejecting “immature brain” argument
and holding petitioners older than 18 at time of murder not within ambit of
Miller).



                                           -5-
J-S21012-17



disposes of the issues Priest raises on appeal. Accordingly, we affirm on the

basis of his opinion and instruct the parties to attach a copy in the event of

further proceedings in this matter.

      Order affirmed. Motion to Strike Appellee’s Brief denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2017




                                      -6-
\
\
                                                                                  Circulated 05/23/2017 10:08 AM




             IN THE COURT OF COMMON PLEAS OF BEAVERGOUNTY
                               PENNSYLVANIA
                             CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

              vs.                                               No.:   1503 of2009

MARKEZ PRIEST


                     MEMORANDUM OPINION and ORDER

MANCINI,J.                                                                JUNE   <{;' , 2016


    · The Superior Court of Pennsylvania has sununarized the relevant facts as follows:

             As of July of 2009, Chalese Jackson maintained an intermittent
     relationship with [Appellant] and was the mother of his child. On July 8,
     2009, Ms. Jackson had informed [Appellant] via telephone that she was
     ending this relationship because [she] "didn't want to be with him." That
     night, [Appellant] called Ms. Jackson because he wished to-continue the
     relationship.

            In the early hours  of
                                July 9, 2009, Ms. Jackson was approached by
     [Darius] Odom on Todd Street; that night they had planned to meet ·
     Kevonna Thomas, with whom Mr. Odom had a relationship, and Jamie
     Turner. Ms. Jackson and Mr. Odom began walking up Todd Street towards
     Ms. Jackson's home in order to charge Mr. Odom's cell phone. While
     walking to Ms. Jackson's home, they were approached by an individual
     walking towards them. Mr. Odom held his hands up and said "whoa, whoa,
     whoa;" Ms. Jackson ran away. Ms. Jackson heard a gunshot and looked
     back; upon doing so, she observed the gunman and Mr. Odom fighting. Ms.
     Jackson also heard a second gunshot.

         At trial (and at previous pre-trial proceedings) Ms. Jackson did not
     identify the shooter. However, Beaver County Detective Timmie Patrick
     testified that, during a [police] interview on July 9, 2009, Ms. Jackson did
     identify [ Appellant] as the shooter. [Specifically) he testified as follows on
     direct examination:]



                                            1
               [At-that point when] I asked her during the time [of the interview] .
               who is the shooter, you had to see him, do you know the name of the
               shooter? At that point, Miss Jackson wrote the name Markez Priest,
               which is indicated down below. She wrote the name, tapped twice
               real hard, stood up, and started crying and sobbing and began to
               walk out of the interview room, which was about maybe five to
               seven yards. She was visibly and physically upset and crying.

               Also, in a voluntary statement written during the same interview,
               Ms. Jackson wrote: "Then somebody or Markez was walking up to
               us, shot one time."

                   Following the shooting, Mr. Odom was flown to UPMC
           Presbyterian, as that facility possesses the nearest Level One Trauma
           center. [Mr. Odom suffered gunshot wounds to his right arm and the back
           of his neck.] Four employees ofUPMC involved with the treatment of Mr.
           Odom on July 9, 2009 (Jaclyn Kuzminsky, a certified respiratory therapist,
           Dr. Brian Bane, an anesthesiologist, Nathan Sullivan, a registered nurse,
           and Dr. Raquel Forsythe, a trauma surgeon) testified that Mr. Odom said
           "Markez shot me" immediately prior to being intubated. Furthermore, the
           trauma bays at UPMC Presbyterian were videotaped for educational
           purposes; the videotape portrayed Mr. Odom saying the name "Markez"
           three times, then saying "shot me."

                  Numerous witnesses testified that they were aware of no other
           individual in Aliquippa named "Markez." [Mr. Odom died at
           approximately 10:09 A.M. on July 9, 2009, as a result.of his gunshot
           wounds.]

Commonwealth v. Priest, 18 A.3d 1235, 1237-38 (Pa.Super. 2011).

                                       Procedural History

           On September 21, 2009 the Petitioner was charged by Criminal Information with

two counts: Criminal Homicide' and Firearms not to be Carried without a License.' The

Petitioner's trial by jury was held the week of April 26, 2010. On April 30, 20 IO the jury

returned a verdict finding the Petitioner guilty of Murder of the First Degree and the

1
    18 Pa.C.S.A. §2501(a).
2
    18 Pa.C.S.A. §6106(a)(l ).


                                                2
    aforementioned firearms offense. On June 29, 2010 he was sentenced to incarceration for

    life.3 The Petitioner filed a timely notice of appeal to the Superior Court on July 28, 2010

    and the judgment of sentence was affirmed on April 21, 2011. See Commonwealth v.

    Priest, 18 A.3d 1235 (Pa.Super. 2011).

           The Petitioner filed his first pro se PCRA on July 5, 2011. Attorney Steven

    Valsamidis was appointed to represent the Petitioner and filed an Amended PCRA

    Petition on January 24, 2012. This Petition alleged that Trial Counsel was ineffective for

    failing to file a post-sentence motion challenging the weight of the evidence.4 A hearing

    upon said Petition was held on June 6, 2012. On September 5, 2012 the Court reinstated

the Petitioner's right to file post-sentence motions nunc pro tune, specifically permitting

the Petitioner to file a challenge to the weight of the evidence. The Petitioner filed his

post-sentence motion on September 14, 2012. The Court denied said motion on October

    12, 2012, and the Petitioner filed a timely appeal to the Superior Court on October 19,

2012. The Superior Court affirmed on June 20, 2013. See Commonwealth v. Priest, 82

A.3d 466, 1660 WDA 2012 (unpublished memorandum opinion). The Supreme Court of

Pennsylvania denied his Petition for Allowance of Appeal on November 20, 2013. See

Commonwealth v. Priest, 80 A.3d 776, 342 WAL 2013.




3
  As to Count Two, Firearms not to be Carried without a License, the Petitioner was sentenced to
incarceration
4
               for two to four years, to be served concurrent to the life sentence for homicide.
  At the hearing upon this Petition, the Petitioner testified that he had raised additional potential issues
with Attorney Valsamidis, who had explained to the Petitioner via letter why he (Attorney Valsamidis)
did not believe such issues were meritorious. See Transcript of PCRA Hearing of June 8, 2012 at 49-51.


                                                      3
        The Petitioner filed his secondpro·se PCRApetition on April 23, 2014 and an

amended prose petition on May 29, 2014. Attorney Sherri Hurst was appointed to

represent the Petitioner.

        The Petitioner's initial prose petitions raised six issues, which may be

paraphrased as follows: ( 1) the Petitioner challenged the legality of his sentence, citing

Miller v. Alabama, 132 S.Ct. 2455 (2012); (2) the Petitioner alleged that trial counsel was

ineffective in failing to present DNA and other trace evidence found on the victim;

(3) the Petitioner alleged that trial counsel was ineffective in failing to present the

victim's blood toxicology report; (4) the Petitioner alleged that trial counsel was

ineffective in failing to present the ballistics report; (5) the Petitioner alleged that the trial

court erred in admitting a video of the victim receiving treatment at the hospital; and

(6) the Petitioner alleged that the prosecution committed misconduct during closing

argument.

       On November 11, 2014 appointed Counsel filed a "no merit" letter which

concluded that all six issues raised were without merit. Appointed counsel further averred

that her review of the case did not disclose additional meritorious claims. On November

12, 2014 the Court issued a Preliminary Order providing the Petitioner notice of intent to

dismiss his Petition.

       On January 8, 2015 the Petitioner filed a written response to the Court's notice of

intent to dismiss and a separate "Nunc Pro Tune Motion for Post Conviction Relief",

These filings raised issues duplicative of his first petitions and three new grounds for

relief: (1) the Petitioner alleged that trial counsel was ineffective in failing to raise a


                                                4
voluntary manslaughter defense; (2) the Petitioner alleged that his sentence was illegal,

citing Alleyne v. United States, 133 S.Ct. 2151 (2013) and Conunonwealth v. Valentine,

101 A.3d 801 (Pa.Super. 2014); and (3) the Petitioner alleged that trial counsel was

ineffective infailing to subpoena cellular telephone records to show the Petitioner's

location at the time of the offense.

         On February 24, 2015, the Court Ordered that appointed Counsel review the third

supplemental issue raised by the Petitioner, regarding the cellular telephone records.' On

January 11, 2016 Counsel filed a second "no merit" letter which concluded that this claim

was also without merit. The Petitioner filed a response to this letter on February 12, 2016,

in which he raised claims duplicative of those stated above and one new ground for relief:

the discovery of a new alibi witness and/or ineffective assistance of trial counsel in

failing to discover and call this witness. On April 8, 2016, pursuant to Pa.R.Crim.Pro.

907(1) the Court provided the Petitioner notice of the Court's intention to dismiss his

PCRA Petition without a hearing for the reasons set forth in Counsel's "no merit" letters

and the Petitioner filed a written response on April 26, 2016.

         Counsel petitioning to withdraw from PCRA representation must proceed
         ... under Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
         Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Similar
         to the Anders situation, Turner/Finley counsel must review the case
         zealously. Turner/Finley counsel must then submit a "no-merit" letter to the
         trial 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.


5
  The Court noted in this Order that the first and second supplemental issues raised by the Petitioner were patently
frivolous and need not be reviewed by Counsel. The Court shall discuss these issues below.


                                                           5
      /\
.~/    I




                          Counsel must also send to the petitioner.H) a copy of the "no-.
                  merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a
                  statement advising petitioner of the right to proceed pro se or by new
                  counsel. ... [W]here counsel submits a petition and no-merit letter that do
                  satisfy the technical demands of Turner/Finley, the court ... must then
                  conduct its own review of the merits of the case. If the court agrees with
                  counsel that the claims are without merit, the court will permit counsel to
                  withdraw and deny relief.

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

       quotations omitted).

                  The Court finds that Counsel has complied with the technical demands of Tmner I

       Finley and has conducted an independent review of the case. For the reasons that follow,

       the Court finds that the Petitioner's ten claims are without merit and do not entitle him to

       relief. The Court has paraphrased the Petitioner's arguments for brevity and clarity.

                                                          Opinion
                                                                                                6
       (])        Legality of sentence, citing Miller v. Alabama, 132 S.Ct. 2455 (2012)

                  The Petitioner argues that his mandatory sentence of incarceration for life without

       parole violates Eighth and Fourteenth Amendments of the United States Constitution; in

       support of this argument he cites Miller v. Alabama and related cases. In Miller v.

       Alabama the United States Supreme Court held as follows:

                 Graham [Graham v. Florida, 130 S.Ct. 2011(2010)], Roper [Roper v.
                 Simmons, 125 S.Ct. 1183 (2005)), and our individualized sentencing
                 decisions make clear that a judge or jury must have the opportunity to
                 consider mitigating circumstances before imposing the harshest possible
                 penalty for juveniles. By requiring that all children convicted of homicide
                 receive lifetime incarceration without possibility of parole, regardless of
                 their age and age-related characteristics and the nature of their crimes, the
                 mandatory sentencing schemes before us violate this principle of

       6
           See Pro Se PCRA Petition and Supplemental Memorandum of Law, filed April 23, 2014.


                                                              6
          · proportionality, and so the Eighth Amendment's ban on cruel and unusual ·
            punishment.

    132 S.Ct. 2455, 2467 (emphasis added).

           The record indicates that the Petitioner was born on December 30, 1988 and the

subject offense took place on July 9, 2009. As the Petitioner was twenty (20) years old at

the time of the offense, the case of Miller v. Alabama, affords him no relief. There is no

binding authority to support the Petitioner's claim that his sentence is otherwise illegal or

unconstitutional.

(2)        Ineffective assistance of Trial Counsel in/ailing to raise DNA evidence 7

           The Petitioner avers that there was DNA found under the victim's fingernails and

a hair and other trace evidence found on the victim's clothing that did not match the

Petitioner's DNA profile or blood type. The Petitioner argues that Trial Counsel was

ineffective in failing to present this evidence, as such evidence may show that the

victim's assailant was someone other than the Petitioner.

           PCRA Counsel concluded that Trial Counsel's failure to elaborate on the lack of a

DNA match was a reasonable trial strategy, as the jury's determination would ultimately

be based upon the credibility of the victim's identification, Chalese Jackson's prior

identification, and the Petitioner's alibi defense.

           The standard of review for allegations of ineffective assistance of counsel is

clearly defined. In order to be eligible for relief, a petitioner must plead and prove by a




7
    See Pro Se Amended PCRA Petition, filed May 29, 2014 at ,r "I".


                                                          7
preponderance of the evidence that the conviction and-sentence resulted from the

following:

       (a)(2)(ii)- Ineffective assistance of counsel which, in the circumstances of
       the particular case so undermine the truth determining process that no
       reliable adjudication of guilt or innocence could have taken place.

42 Pa.C.S. §9543(a).

       Counsel is presumed to be effective. Commonwealth v. Rios, 920 A.2d 790, 799

(2007). In order to overcome this presumption, the defendant must establish three

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

reasonable strategic basis for his action or inaction; and (3) that, but for the errors and

omissions of counsel, there is a reasonable probability that the outcome of the

proceedings would have been different. Commonwealth v. Bath, 907 A.2d 619, 622

(Pa.Super. 2006). The defendant's failure to satisfy any prong of this test will cause the

entire claim to fail. Commonwealth v. Bridges, 886 A.2d 1127, 1131 (2005). 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. Howard, 719 A.2d 233,

237 (1998). Nor can a claim of ineffective assistance generally succeed through

comparing, by hindsight, the trial strategy employed with alternatives not pursued. Id. A

finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be

concluded that an alternative not chosen offered a potential for success substantially

greater than the course actually pursued. Id. If the defendant fails to demonstrate that

trial counsel's act or omission adversely affected the outcome of the proceedings, the


                                              8
claim maybe dismissed on that basis alone and the court need not first determine whether

the first and second prongs have been met. Rios, 920 A.2d at 800. Counsel cannot be

deemed ineffective for failing to raise a meritless claim. Commonwealth v. Rivera, 108

AJd 779, 789 (Pa. 2014).

        The Court finds that the Petitioner has failed to prove that Trial Counsel's failure

to present the DNA and trace evidence adversely affected the outcome of his trial. As

stated by PCRA Counsel, the determination for the jury would ultimately be based upon

credibility determinations. The evidence cited by the Petitioner would have no impact

upon these determinations and such evidence is ~10t exculpatory. See e.g. Commonwealth

v. Heilman, 867 A.2d 542, 547 (Pa.Super.2005) ("In DNA as in other areas, an absence

of evidence is not evidence of absence."); Commonwealth v. Smith, 889 A.2d 582, 585

(Pa.Super.2005) ("Merely detecting DNA from another individual on the victim's

fingernails, in the absence of any evidence as to how and when that DNA was deposited,

would not exculpate appellant by pointing to a different assailant.").8

(3)     Ineffective assistance of Trial Counsel infailing to raise the victim's blood
           . l ogy report 9
        toxico

         The Petitioner avers that a blood toxicology indicates that the victim's blood

alcohol content was 0.126%. The Petitioner argues that Trial Counsel was ineffective in

failing to present this evidence, as such evidence would have challenged the reliability of

the victim's identification.



8
  The cited cases specifically address requests for post-conviction DNA testing under 42 Pa.C.S. §9543.1, which is
not at issue in the present case.
9
  See Pro Se Amended PCRA Petition, filed May 29, 2014 at~ ''II".


                                                         9
            PCRA Counsel concluded that Trial Counsel's failure to raise the-victim's blood

 toxicology was a reasonable trial strategy, as the report that states that the victim's blood

 alcohol content was O .126% further stated that "the patient is speaking in clear, full

 sentences ... '' and "[the patient] has full mental status". Had Trial Counsel attempted to

 attack the victim's identification with his blood alcohol content, the same identification

may have been bolstered by the additional comments and therefore Trial Counsel made a

reasonable decision to forego this argument.

            The Court finds that the Petitioner has failed to prove that Trial Counsel's failure

to raise the victim's blood toxicology report adversely affected the outcome of his trial.

As stated by PCRA Counsel, the subject report, as a whole, does not impeach the victim's

identification of his assailant. Further, the jury was able to view a video of the victim

receiving treatment and identifying the Petitioner as his assailant and therefore had the

ability to evaluate the victim's credibility.

(4)        Ineffective assistance of Trial Counsel in/ailing to raise the inconclusive ballistics
           Report 10

           The Petitioner avers that the ballistics report shows that "the bullets recovered

from the victim [were] not fired from the same unknown firearm, which indicates more

than one assailant was involved in the crime for which Petitioner was convicted ... " The

Petitioner argues that Trial Counsel was ineffective in failing to present this evidence and

cross-examine Trooper Robert Hagins, an expert forensic firearm and toolmark examiner,

regarding such evidence.


10
     See Pro Se Amended PCRA Petition, filed May 29, 2014 at ~ "III".


                                                         10
           PCRA Counsel concluded that Trial Counsel's failure to raise the ballistics reports

was a reasonable trial strategy, as the reports were inconclusive and would have no

relevance to the facts to be determined by the jury. Further, the Petitioner's hypothetical

argument of multiple assailants could be confusing and misleading.

           The Court finds that the Petitioner has failed to prove that Trial Counsel's failure

to raise the ballistics report adversely affected the outcome of his trial. The referenced

ballistics report states "Examinations to determine whether Item 8.1 (R-1) and Item 8.2

(R-2) [referencing the two bullets removed from the victim] were discharged from the

same unknown firearm were inconclusive due to a lack of sufficient matching individual

characteristics." Because the report is inconclusive, and because there is no evidence to

support the Petitioner's theory regarding multiple assailants, the Petitioner was not

prejudiced by Trial Counsel's failure to raise such evidence.

(5)        Admission of video of the victim receiving treatment at the hospital 11

           The Petitioner avers that this Court erred in admitting the video of the victim

receiving treatment at the hospital. The Petitioner argues that the probative value of this

video was far outweighed by the prejudicial value. The Petitioner also appears to argue

that this Court erred in determining that the victim's statements on the video were

admissible as a dying declaration.

           PCRA Counsel concluded that this matter has been previously litigated and the

Court agrees. The Petitioner is not eligible for relief based upon allegations of error that

have been previously litigated or waived. See 42 Pa.C.S. §9543. A matter has been

11
     See Pro Se Amended PCRA Petition, filed May 29, 2014 at~ "IV".


                                                       11
· ·· previously litigated· if "the highest appellate· court in which the petitioner could have had

 review as a matter of right has ruled on the merits of the issue" 42 Pa.C.S. §9544(a)(2).

 The Petitioner raised these matters on direct appeal and the Superior Court affirmed,

 holding that this Court did not e11' in finding that that the video was admissible as a dying

 declaration and that the prejudicial impact did not outweigh the probative value.

 Commonwealth v. Priest, 18 A.3d 1235, 1240"42 (Pa.Super. 2011). As review by the

 Pennsylvania Supreme Court is not "a matter of right", this matter has been previously

 litigated and the Petitioner is not entitled to relief. See 42 Pa.C.S. §5105(b); see also

 Commonwealth v. Derk, 913 A.2d 875, 882 n.4 (Pa.Super. 2006).

 (6)        Prosecutorial misconduct during the Commonwealth's closing statement 12

            So far as this Court is capable of determining, the Petitioner avers that the

 Commonwealth argued in closing that the victim was "down" when shot the second time

 though Dr. Smith testified that the victim was below the shooter. The Petitioner further

 avers that such testimony is inconsistent with that of the eyewitness to the shooting. The

 Petitioner argues that the Commonwealth's alleged misstatement constitutes prosecutorial

 misconduct.

            PCRA Counsel concluded that the alleged misrepresentation by the prosecution

 during closing argument, specifically, the doctor's testimony and the position of the

 victim when he was shot, have no relevance to the issue to be determined by the jury.

            Initially, the Court observes that this claim could have been raised at Trial and that

 the Petitioner did not submit this allegation of error as ineffective assistance of counsel;

 12
      See Pro Se Amended PCRA Petition, filed May 29, 2014 at~ "V".


                                                        12
therefore it-is waived. See 42 Pa.C.S. §9544(b). Regardless, the Courtwill address the

merits of this allegation under the rubric of ineffective assistance of counsel in failing to

object to the Commonwealth's closing argument.

           Dr. Smith, an expert forensic pathologist, testified as follows:

           A.        . .. Now, the other shot, the shot that went into the back of the neck, we
                     could see from that one diagram as I pointed out that shot was coming from
                     above downward, because it ended up down here. So the direction is
                     roughlythis way, so the shot is coming fromup here. Well, that is almost
                     impossible if two people are standing facing each other, so the only logical
                     way that shot probably could have occurred is if the victim were below the
                     shooter or if the victim were bending over in a fashion like this and the shot
                     came in this particular manner (indicating).

           Q.        The second shot came from in front or behind?
                                                      13
           A.        Behind, behind and to the right.

The Commonwealth's closing argument included the following statement:

           Then what happens? Does Markez run away to leave him there to die? No. Markez
           finishes the job. What do we know about how that job was finished? Darius wasn't
           upright. Doc Smith testified Darius was down. Not only was he down, but that
           shot came from behind him.14

           "[P]rosecutorial misconduct will not be found where comments were based on the

evidence or proper inferences therefrom or were only oratorical flair." Commonwealth v.

Culver, 51 A.3d 866 (Pa.Super. 2012). The Court finds that the challenged statements are

a reasonable inference from the evidence presented. The jury was also properly instructed

that counsels, arguments were not evidence and that they were to rely upon their own

recollection of the evidence.15 As such, the Court finds that there is no prosecutorial



13
     Trial Transcript, April 28, 2010 at 760.
14
     Trial Transcript, April 29, 2010 at 871.
15
     Trial Transcript, April 29, 2010 at 858.


                                                    13
misconduct-and that Trial Counsel was not ineffective for failing to object to the

challenged statement.

(7) Ineffective assistance of Trial Counsel in failing to raise a defense of voluntary
mans Iaug h ter 16                   ·



           The Petitioner avers that Trial Counsel was ineffective in failing to present a

defense of voluntary manslaughter, in that the Petitioner killed the victim in the heat of

passion following the serious provocation of seeing the victim with the mother of his (the

Petitioner's) child.

           The Court did not request that P9RA Counsel review this claim because it is

clearly without merit. The Petitioner testified at trial that he did not shoot the victim.17

The Petitioner may not now allege that he committed perjury at trial and that he actually

shot the victim under heat of passion. Further, over the Commonwealth's objection, the

Court instructed the jury as to voluntary manslaughter.18

(8) Legality of sentence, citing Alleyne v. United States. 133 S. Ct. 2151 (2013) and
Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014)19

           The Petitioner argues that his sentence is unconstitutional under Alleyene and

Pennsylvania caselaw applying Alleyne.

           The Court did not request that PCRA Counsel review this claim because it is

clearly without merit. Alleyne held that facts leading to an increase in a mandatory

minimum sentence are elements of the crime and must be presented to a jury and proven

beyond a reasonable doubt. 133 S.Ct. at 2155 (2013). Valentine held that two
16
     Pro Se Nunc Pro Tune PCRA I Response to Court's Notice of Intent to Dismiss, filed January 8, 2015 at 1 "IV".
17
   Trial Transcript, April 29, 2010 at 829-34.
18
   Trial Transcript, April 20, 2010 at 850-54 & 887-97.
19
   Pro Se Nunc Pro Tune PCRA, filed January 8, 2015.


                                                          14
- Pennsylvania Statutes requiring mandatory minimum sentences (42 Pa.C.S. §9712 and                                 .

 §9713) were unconstitutional in light of the Alleyne decision. 101 AJd at812 (Pa.Super.

2014). There is no legal application of the above-referenced cases to the mandatory

sentence imposed in the present case as all elements of First Degree Murder were proven

to the jury beyond a reasonable doubt.

(9) Ineffective assistance of Trial Counsel in failing to subpoena cellular telephone
records to show the Petitioner's location. at the time of the offense"

            The Petitioner argues that Trial Counsel was ineffective in failing to subpoena

cellular telephone records from the time of the homicide, which the Petitioner avers

would show his location and support his alibi defense.

            PCRA Counsel avers that she made multiple attempts to obtain cell tower records,

however such information from the time of the homicide is no longer available. Counsel

further avers that records received from the applicable wireless provider contained strict

limitations upon their applicability, specifically stating that the information sought would

only identify the cell tower that connected the call and not the location of the user and

that the cell tower that connected the call may not be the nearest tower to the user for

several reasons, such as topography and weather conditions.

           As stated above, "a PCRA petitioner advancing an ineffectiveness claim must

prove: (1) the claim has arguable merit; (2) counsel lacked any reasonable basis for his

action or omission; and (3) petitioner was prejudiced by counsel's conduct."

Commonwealth v. Gwynn, 943 A.2d 940, 945 (Pa. 2008). Trial Counsel is presumed


20
     Pro Se Nunc Pro Tune PCRA I Response to Court's Notice of Intent to Dismiss, filed January 8, 2015 at~ "II".


                                                          15
 effective and it is-the defendant's burden to prove the elements of ineffectiveness. See

 Commonwealth v. Fisher, 741 A.2d 1234, 1245 (Pa. 1999). See also Commonwealth v.

 Howard, 749 A.2d 941, 949 (Pa.Super. 2000) ("When a petitioner alleges trial counsel's

 ineffectiveness in a PCRA petition, he must prove by a preponderance of the evidence

 that his conviction or sentence resulted from ineffective assistance of counsel which in

 the circumstances of the particular case so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.").

            Non-existent cellular telephone records cannot sustain the Petitioner's burden of

proof. Any alleged prejudice from Trial Counsel's failure to obtain such records is pure

speculation.

(10) Discovery of a new alibi witness I Ineffective assistance of counsel in failing to call a
         ,
known witness 21



            The Petitioner avers that he has identified a new alibi witness and further (and

inconsistently) avers that Trial Counsel was aware of this witness and provided

ineffective assistance of counsel in failing to call the witness at Trial. The Petitioner does

not identify the witness or the testimony that she would have been able to provide.

           "Where a petitioner requests an evidentiary hearing, the petition shall include a

signed certification as to each intended witness stating the witness's name, address, date

of birth and substance of testimony and shall include any documents material to that

witness's testimony. Failure to substantially comply with the requirements of this

paragraph shall render the proposed witness's testimony inadmissible." 42 Pa.C.S.


21
     Pro Se Response to Counsel's "no merit" letter, filed February 12, 2016 at~ "V".


                                                           16
§954~(d)(l). See also Pa.R.. Crim.Pro, 902(A)(l5).The Petitioner'sexceedingly vague.

(and contradictory) statement regarding the existence of this unnamed witness does not

afford him relief.



       An appropriate Order follows:




                                          17
                           IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY
                                            PENNSYLVANIA
                                           CRIMINAL DIVISION

     COMMONWEALTH OF PENNSYLVANIA

                                  vs.                                        No.:   1503 of 2009

     MARKEZ PRIEST


                                                      ORDER

                   AND NOW, this        <j;hJ day of June, 2016, for the reasons set forth in the
     foregoing Memorandum Opinion, it is hereby ORDERED that the that the Petition for
     Relief under the Post-Conviction Relief Act in the above-captioned matter is
     DISMISSED without Hearing. The Petitioner had been provided the requisite notice of
     the Court's intention to dismiss.his petition without a hearing and has filed a written
     response.
                   It is further ORDERED that Attorney Sherri Hurst is granted leave to withdraw
     from further representation.
                   The Petitioner is hereby advised of his right to appeal this Order to the Superior
     Cou11 of Pennsylvania within thirty (30) days of this date.
                   The Clerk of Courts shall send a copy of this Order to the Petitioner by certified
     mail, return receipt requested, in accordance with Pa.R.Crim.P. 907(4).

           : :,
                            ..                                BY THE COURT,
                           -.»



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