J-S02043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

JOSEPH HARVILLE

                          Appellant                  No. 439 EDA 2015


            Appeal from the PCRA Order entered February 20, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0012109-2008


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                         FILED MARCH 15, 2016

        Appellant, Joseph Harville, appeals pro se from the February 20, 2015

order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        Police arrested Appellant on April 4, 2008 and charged him with

murder, conspiracy, burglary, and related offenses. On July 8, 2011, a jury

found Appellant guilty of all the charges against him.       The trial court

imposed life imprisonment without parole for second-degree murder.

        On December 7, 2012, this Court vacated Appellant’s burglary

conviction but otherwise affirmed the judgment of sentence. Our Supreme

Court denied Appellant’s petition for allowance of appeal on October 23,

2013.
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     Appellant filed this timely first PCRA petition on January 28, 2014. On

December 4, 2014, appointed counsel filed a no merit letter and petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

Appellant responded to the no merit letter on December 24, 2014.         On

January 21, 2015, the PCRA court issued a notice of intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.     On

February 20, 2015, the PCRA court issued the order on appeal dismissing

Appellant’s petition and permitting counsel to withdraw. This timely pro se

appeal followed.

     Appellant raises five issues for our review:

           1.    Whether the PCRA Court erred where it failed to hold
     an evidentiary hearing; where Appellant demonstrated a
     "layered claim" of ineffective assistance was effectuated in the
     instant case?

           2.    Whether the PCRA court erred where the
     Commonwealth had ‘lacked jurisdiction’ under the commanality
     [sic] clause of reenactment, where the elemental requisites of
     offense of, Burglary can/were-not [sic], as the requisite
     language as Statutorily stipulated, predates the repealed savings
     Clause and said adoption dates and said language cannot, thusly
     so, dates back to a repealed date of effectiveness absent some
     special provisions (savings-Clause [sic]), for that purpose?

           3.    Whether the PCRA court erred where the Relaters
     [sic] Due Process rights were violated where relators’ liberty
     interest pursuant to, (Pa.R.Crim.P. 571) was ignored as to
     specific offenses’ [sic] for which a jury had impermissible
     rendered a verdict for which relator was not arraigned and/or
     was considered by said jury in derogation of Due Process?




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              4.   Whether the PCRA court erred where Appellate [sic]
       clearly had (est)ablished [sic] a colorful showing of ineffective
       assistance and where the PCRA court failed to hold an
       evidentiary hearing on it’s [sic] merits?

              5.   Is the Appellant entitled a [sic] new sentencing
       hearing based on [a] newly recognized constitutional ruling ...
       [i]n [Commonwealth v. Newman, 99 A.d 86 (Pa. Super.
       2014) (en banc)], where it has been [held] to amend [sic] to an
       existing brief within (60)-day [sic] [filing] period begins to run
       upon the [date] of the underlying judicial decision of the [date]
       of, August 7, 2015 [?] and, [because] Appellant suffered a
       mandatory minimum sentence statute in his case pursuant to
       [Newman] and therefore his imposition of sentence is ‘illegal’
       and ‘unconstitutional’?

Appellant’s Brief at 6, Appellant’s Amended Brief at 3.1

       “In PCRA proceedings, an appellate court’s scope of review is limited

by the PCRA's parameters; since most PCRA appeals involve mixed

questions of fact and law, the standard of review is whether the PCRA court’s

findings    are   supported      by    the     record   and   free   of   legal   error.”

Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).                      A PCRA court

may dismiss a petition without a hearing when the petition does not present

an issue of material fact, when the PCRA court believes the petitioner is not

entitled to relief, and when a hearing would serve no purpose. Pa.R.Crim.P.

909(B)(2).




____________________________________________


1
  Appellant filed an amended brief to assert that his sentence is illegal under
Alleyne v. United States, 133 S.Ct. 2151 (2013). As we will explain in the
main text, that contention is without merit.



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       Appellant argues the PCRA court erred because Appellant’s counsel

rendered constitutionally ineffective assistance.             To establish counsel’s

ineffectiveness, a PCRA petitioner must plead and prove: (1) the underlying

issue is of arguable merit; (2) counsel lacked a strategically reasonable basis

for the act or omission; and (3) the petitioner suffered prejudice in that

counsel’s     ineffectiveness      affected    the   result    of   the   proceeding.

Commonwealth v. Harris, 852 A.2d 1168, 1173 (Pa. 2004).

       Appellant first argues the trial court erred in failing to consider

Appellant’s layered claim of ineffective assistance.            Appellant argues he

“suffered upon a layered claim of ineffectiveness” because he had different

counsel for trial and direct appeal.2 Appellant’s Brief at 10. Appellant’s first

argument fails to specify the substantive claim of ineffective assistance, and

therefore it does not merit relief.
____________________________________________


2
    This Court has explained:

              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[.]” [Commonwealth v. Collins, 888 A.2d 564, 584 (Pa.
       2005) (Saylor, J. concurring)]; […] In determining a layered
       claim of ineffectiveness, the critical inquiry is whether the first
       attorney that the defendant 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.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (some
citation omitted), appeal denied, 64 A.3d 631 (Pa. 2013).




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       Appellant’s argument in support of his second assertion of error is

largely unintelligible. He appears to argue the trial court lacked jurisdiction

over the burglary charge against him because the crime of burglary no

longer exists after the 1968 Pennsylvania Constitution.            This Court

considered and rejected that argument in Commonwealth v. Stultz, 114

A.3d 865 (Pa. Super. 2015), appeal denied, 125 A.3d 1201 (Pa. 2015). To

the extent we can understand Appellant’s second argument, Stultz is

directly on point and controlling.3 Appellant’s second argument fails.

       Appellant next asserts that trial counsel was ineffective for failing to

object to the Commonwealth’s failure to arraign Appellant on his burglary

charge.    The record does not support Appellant’s contention.     The record

reflects the Commonwealth arraigned Appellant on October 15, 2008, in

accord with Pa.R.Crim.P. 571. Appellant does not argue otherwise. Rather,

Appellant’s challenge pertains to a proceeding immediately prior to trial

during which the court crier, in announcing the charges against Appellant,

neglected to read the burglary charge and ask for Appellant’s plea.       N.T.

Trial, 6/29/11, at 5-6. Appellant cites no law supporting his argument that

the court crier’s omission precluded a trial on the burglary charge. Even if

____________________________________________


3
   The 1968 Constitution amended the 1874 Constitution via a limited
Constitutional Convention as well as through other amendments. Stultz,
114 A.3d at 875.




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such law existed, Appellant could not obtain relief because this Court

vacated Appellant’s burglary conviction on direct appeal.4 Appellant’s third

argument does not merit relief.

       For his fourth assertion of error, Appellant claims the PCRA court erred

in dismissing his petition without a hearing. As we noted above, the PCRA

court may dismiss a petition without a hearing if the petition does not

present an issue of material fact. Pa.R.Crim.P. 909(B)(2). Appellant has not

established the existence of any material fact relevant to any of his claims.

We therefore conclude the PCRA court did not err in declining to conduct a

hearing.

       Appellant’s final assertion of error appears in his supplemental brief.5

He argues his sentence is illegal pursuant to Alleyne.         In Alleyne, the

United States Supreme Court held any fact triggering a mandatory minimum

sentence must be submitted to a jury and found beyond a reasonable doubt.

Alleyne rendered many of Pennsylvania’s mandatory minimum statutes

unconstitutional. See, e.g., Commonwealth v. Newman, 99 A.3d 86 (Pa.

Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).


____________________________________________


4
  We observe that our decision to vacate Appellant’s burglary conviction did
not affect the second-degree murder conviction. A conviction for second-
degree murder does not require a conviction for the underlying felony.
Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012).
5
    Appellant did not seek permission to file a supplemental brief.



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       Alleyne does not apply here because Appellant was not subjected to a

mandatory minimum based on judicial fact-finding.     Appellant’s mandatory

life sentence resulted from the jury’s conviction for second-degree murder.6

Appellant cannot obtain relief under Alleyne.

       In summary, we have concluded that all of Appellant’s arguments lack

merit. We therefore affirm the order dismissing Appellant’s PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




____________________________________________


6
  Additionally, Alleyne applies only to cases pending on direct appeal as of
the date of the Alleyne decision. Commonwealth v. Newman, 99 A.3d
86, 90 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.
2015); see also Commonwealth v. Ruiz, ___ A.3d ___, 2105 WL
9632089 (Pa. Super. December 30, 2015).



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