J-S44010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NICKIE ROBERT LOGAN

                            Appellant               No. 1220 WDA 2014


                   Appeal from the PCRA Order June 23, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0004530-2011
                                          CP-02-CR-0004829-2011
                                          CP-02-CR-0006403-2011




BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED OCTOBER 14, 2015

        Appellant Nickie Robert Logan appeals pro se from the order entered in

the Allegheny County Court of Common Pleas, which dismissed his petition

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

affirm.

        On February 1, 2012, a jury convicted Appellant of:         fleeing or

attempting to elude police,2 receiving stolen property,3 and two counts of

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    75 Pa.C.S. § 3733(a).
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recklessly endangering another person (“REAP”)4 at CP-02-CR-00004530-

2011 (“Docket No. 4530”);5 fleeing or attempting to allude police, receiving

stolen property, unauthorized use of an automobile,6 resisting arrest or other

law enforcement,7 and accident involving damage to attended vehicle 8 at CP-

02-CR-0004829-2011 (“Docket No. 4829”);9 and receiving stolen property,

criminal mischief,10 and two counts of theft by unlawful taking,11 at CP-02-

CR-0006403-2011 (“Docket No. 6403”).12, 13

                       _______________________
(Footnote Continued)
3
    18 Pa.C.S. § 3925.
4
    18 Pa.C.S. § 2705.
5
 These convictions stemmed from Appellant’s theft of a Buick Century on
March 31, 2011.
6
    18 Pa.C.S. § 3928(a).
7
    18 Pa.C.S. § 5104.
8
    75 Pa.C.S. § 3743.
9
  These convictions stemmed from Appellant’s theft of a Jeep Cherokee on
January 28, 2011.
10
     18 Pa.C.S. § 3304(a)(2).
11
     18 Pa.C.S. § 3921(a).
12
   Police filed this criminal complaint against Appellant for his involvement in
the theft of eight vehicles with damaged steering columns and doors that
were stolen in January and March of 2011, including the Buick Century and
the Jeep Cherokee. One conviction of theft by unlawful taking at this
criminal information stemmed from Appellant’s theft of the Jeep Cherokee.
All other convictions at this criminal information stemmed from Appellant’s
theft of a Pontiac Grand Am.
(Footnote Continued Next Page)


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      On March 19, 2012, the court sentenced Appellant to an aggregate

term of eight (8) to seventeen (17) years’ incarceration, plus two years’

probation.14    On March 28, 2012, Appellant filed post-sentence motions,

which the court denied the next day. On April 26, 2012, Appellant filed a

notice of appeal. After complying with Pa.R.A.P. 1925(b), Appellant filed a

                       _______________________
(Footnote Continued)


13
   The jury acquitted Appellant of charges of escape, possessing instruments
of crime, aggravated assault, theft of a motor vehicle, two charges of
loitering and prowling, two additional charges of theft by unlawful taking (for
the Buick Century and a Chevrolet Blazer), and an additional charge of
receiving stolen property (for the Chevrolet Blazer).
14
   At Docket No. 4530, the court sentenced Appellant to consecutive terms
of twelve (12) to thirty-six (36) months of incarceration for fleeing or
attempting to elude police, (18) to thirty-six (36) months of incarceration for
receiving stolen property and six (6) to twelve (12) months of incarceration
for each of his REAP convictions. The court imposed restitution in that case
of $1,250.00.

At Docket No. 4829, the court sentenced Appellant to consecutive terms of
eighteen (18) to thirty-six (36) months of incarceration for fleeing or
attempting to allude police, eighteen (18) to thirty-six (36) months of
incarceration for receiving stolen property, and two (2) years of probation
for resisting arrest or other law enforcement. The court also imposed a
$2,000.00 fine for an accident involving damage to a vehicle and no further
penalty for unauthorized use of an automobile.         The court imposed
restitution in that case of $1,542.20.

At Docket No. 6403, the court sentenced Appellant to eighteen (18) to
thirty-six (36) months of incarceration for each of his theft by unlawful
taking convictions, the first of which it imposed concurrently with his
sentence at Docket No. 4829 for receiving stolen property, and the second of
which it imposed consecutively with his other sentences. The court imposed
no further penalties for Appellant’s remaining convictions and found
restitution in this case to be $3,122.56.




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notice of discontinuance of action on November 1, 2012, and did not pursue

a direct appeal with this Court.

        On February 4, 2013, Appellant filed a timely pro se PCRA petition.15

The court appointed counsel who filed five motions for an extension of time

to file an amended PCRA petition. On October 29, 2013, Appellant filed a

notice of his intent to proceed pro se. On January 10, 2014, the PCRA court

conducted a Grazier16 hearing. The PCRA court granted Appellant’s request

to proceed pro se on January 13, 2014. On June 4, 2014, the PCRA court

filed a notice of intent to dismiss the petition without a hearing, pursuant to

Pennsylvania Rule of Criminal Procedure 907. On June 24, 2014, the PCRA

court dismissed Appellant’s PCRA petition without a hearing.          Appellant

timely filed a notice of appeal.17         The next day, the PCRA court ordered


____________________________________________


15
  Appellant filed a pro se amended PCRA petition, which he dated March 26,
2013, the same day Richard J. Narvin, Esq. entered his appearance for
Appellant. Although the amended petition was not docketed, it became part
of the record on August 26, 2015, when the court granted Appellant’s
motion to supplement the record. The PCRA court refers to Appellant’s
amended PCRA petition in its Pa.R.A.P. 1925(a) opinion, and we shall
consider Appellant’s issues contained therein preserved for appellate review.
16
     Commonwealth v.Grazier, 713 A.2d 81 (Pa.1998).
17
   Although Appellant’s notice of appeal was not filed with the court until July
28, 2014, we deem Appellant’s notice of appeal timely because he mailed it
from prison on July 22, 2014. See Commonwealth v. Patterson, 931
A.2d 710, 714 (Pa.Super.2007) (“Pursuant to the prisoner mailbox rule, we
deem a document filed on the day it is placed in the hands of prison
authorities for mailing.”).



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Appellant to file a concise statement of errors complained of on appeal, and

he timely complied on August 14, 2014.

      Appellant raises the following issues for our review:

         1. CAN SUBJECT MATTER JURISDICTION BE ESTABLISHED
         WITHOUT THE COMMONWEALTH SHOWING A NEXUS OF
         LIABILITY?

         2. DID PRE-TRIAL/TRIAL COUNSEL RENDER INEFFECTIVE
         ASSISTANCE CAUSING [APPELLANT] PREJUDICE IN THE
         JUDICIAL PROCESS AND TO BE CONVICTED OF CRIMES
         HE HAS NOT COMMITTED?

         3. DID THE TRIAL COURT COMMIT MISCONDUCT BY
         ALLOWING THE PROSECUTION OF THE SAME CRIME IN
         DIFFERENT CRIMINAL INFORMATION(S), AND DID THE
         TRIAL COURT COMMIT ERROR BY ALLOWING [APPELLANT]
         TO BE PROSECUTED FOR CRIME NOT CHARGED, AND DID
         THE TRIAL COURT COMMIT ERROR BY FAILING TO
         INSTRUCT THE JURY?

         4. DID THE DISTRICT ATTORNEY KNOWINGLY USE FALSE
         TESTIMONY AND FABRICATED EVIDENCE TO INFECT THE
         JURY TRIAL WITH UNFAIRNESS AND CAUSE MR. LOGAN
         TO BE CONVICTED OF CRIMES HE DID NOT COMMIT?

         5. DID THE TRIAL COURT IMPOSE SENTENCE(S) THAT
         VIOLATED   [APPELLANT’S]  RIGHT   UNDER  DOUBLE
         JEOPARDY, AND ARE THE SENTENCES OF RESTITUTION
         ERRONEOUS AND UNSUPPORTED BY PROOF OF ACTUAL
         DAMAGE TO PROPERTY OWNED BY COMMONWEALTH, AND
         ARE THE SENTENCES OF RESTITUTION A DOUBLE COUNT
         OF THE SAME RESTITUTION ALREADY IMPOSED?

         6. DID THE P.C.R.A. COURT COMMIT REVERSIBLE
         ERROR(S) IN IT’S REVIEW OF THE P.C.R.A. AND FIRST
         AMENDED P.C.R.A. PETITION AND, SHOULD THIS MATTER
         BE REMANDED FOR AN [EVIDENTIARY] HEARING?

Appellant’s Brief at 4.




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      Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”   Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

      To be eligible for PCRA relief, a petitioner must plead and prove, by a

preponderance of the evidence, that his conviction or sentence was the

result of one or more of the following:

               (i) A violation of the Constitution of this
            Commonwealth or the Constitution or laws of the United
            States 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.

                (ii) 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.

                (iii) A plea of guilty unlawfully induced where the
            circumstances make it likely that the inducement
            caused the petitioner to plead guilty and the petitioner
            is innocent.

               (iv) The improper obstruction by government officials
            of the petitioner’s right of appeal where a meritorious
            appealable issue existed and was properly preserved in
            the trial court.

               (v) Deleted.

               (vi) The unavailability at the time of trial of
            exculpatory evidence that has subsequently become

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            available and would have changed the outcome of the
            trial if it had been introduced.

               (vii) The imposition of a sentence greater than the
            lawful maximum.

               (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2).

      In his first argument, Appellant argues the trial court had no subject

matter jurisdiction over him. In his pro se brief, he suggests that because

the police and prosecutors did not own the stolen vehicles, they have failed

to establish a “nexus of liability” with Appellant, and that the Commonwealth

lacked standing to bring an action against him. See Appellant’s Brief at 7-

10.   He concludes that the trial court lacked jurisdiction, and that his

conviction and sentence must be vacated. Appellant is incorrect.

      Generally, “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Commonwealth v. Roney,

79 A.3d 595, 611 (Pa.2013) cert. denied sub nom. Roney v. Pennsylvania,

___ U.S. ___, 135        S.Ct. 56, 190      L. Ed. 2d 56 (2014) (quoting

Commonwealth v. Spotz, 18 A.3d 244, 275 (Pa.2011)). However, “[a]n

objection to lack of subject-matter jurisdiction can never be waived; it may

be raised at any stage in the proceedings by the parties or by a court in its

own motion.” Commonwealth v. Little, 314 A.2d 270, 272 (Pa.1974). An

issue regarding the jurisdiction of the trial court lies within the scope of the

PCRA. 42 Pa.C.S. § 9543(a)(2)(viii).


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      Here, Appellant did not raise his subject matter jurisdiction issue in his

amended PCRA petition, but instead raised the issue for the first time on

appeal. Because subject matter jurisdiction can be raised at any time, this

issue is properly before this Court; however, it merits no relief.

      “[T]he two requirements for subject matter jurisdiction as it relates to

criminal defendants [are] the competency of the court to hear the case, and

the provision of formal notice to the defendant of the crimes charged in

compliance with the Sixth Amendment of the United States Constitution and

Article I, Section 9, of the Pennsylvania Constitution.” Commonwealth v.

Jones, 929 A.2d 205, 210 (Pa.2007). “[T]he courts of common pleas have

statewide jurisdiction in all cases arising under the Crimes Code.” Id. See

also 42 Pa.C.S. § 931.       “The Commonwealth is the party plaintiff in a

criminal prosecution.   The district attorney’s function is to represent the

Commonwealth in these proceedings.” Commonwealth v. Jury, 636 A.2d

164, 171, (Pa.Super.1993), appeal denied, 644 A.2d 733 (Pa.1994) (quoting

Commonwealth v. Malloy, 450 A.2d 689, 692 (Pa.Super.1982)).

      Here, the Allegheny County Court of Common Pleas was competent to

hear Appellant’s criminal case. Appellant was given notice of the crimes with

which he was charged at Docket Nos. 4530, 4829, and 6403. Because the

district attorney represents the Commonwealth, who is the party plaintiff in

a criminal prosecution, Appellant’s argument that the district attorney and




                                      -8-
J-S44010-15


police lacked standing because they did not own the stolen vehicles is devoid

of merit.

        In his second issue, Appellant alleges his trial counsel was ineffective

for failing to conduct pre-trial discovery and discover double jeopardy

violations, for failing to present an alibi defense, for failing to file a motion in

limine to exclude evidence, and for erroneously advising him not to testify. 18

        This Court follows the Pierce19 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

            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. We have
            interpreted this provision in the PCRA to mean that the
            petitioner must show: (1) that his claim of counsel’s
            ineffectiveness has merit; (2) that counsel had no
            reasonable strategic basis for his action or inaction; and
            (3) that the error of counsel prejudiced the petitioner-i.e.,
            that there is a reasonable probability that, but for the error
            of counsel, the outcome of the proceeding would have
            been different. We presume that counsel is effective, and
            it is the burden of Appellant to show otherwise.


____________________________________________


18
   “Although this Court is willing to liberally construe materials filed by a pro
se litigant, pro se status confers no special benefit upon the appellant.”
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.2005). We will
address only the allegations of ineffectiveness that we can decipher that he
raised in his first amended PCRA petition. See Roney, supra.
19
     Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted).           The

petitioner bears the burden of proving all three prongs of this test.

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001).                  “If an

appellant fails to prove by a preponderance of the evidence any of the

Pierce prongs, the Court need not address the remaining prongs of the

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),

appeal denied, 990 A.2d 727 (Pa.2010) (citation omitted).

        First, Appellant claims his trial counsel was ineffective for failing to

conduct a pre-trial investigation, review discovery material, realize a double

jeopardy violation existed, and get the charges against him dismissed. He

claims that if counsel had carefully reviewed the criminal informations, he

would have realized Appellant was charged twice with stealing the same

cars.    Further, he avers that a more thorough investigation would have

proven he did not steal any of the vehicles, and his counsel’s failure to get

the charges against him dismissed, or alternately, to win his case,

constituted ineffective assistance of counsel. We disagree.

        Appellant’s first ineffective assistance of counsel claim fails the Pierce

test because it lacks arguable merit.      Nothing in the record indicates trial

counsel failed to conduct a pre-trial investigation or review discovery

material. Trial counsel displayed a detailed knowledge of Appellant’s case as


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J-S44010-15


he cross-examined all witnesses. See N.T., 1/30/12, at 43-52 (questioning

Officer Zawischa about lighting conditions and initial description of Appellant

and comparing Appellant’s actual appearance), 98-101 (questioning Officer

Myers about whether Appellant was wearing gloves when he was arrested

and pointing out discrepancies between his in-court testimony and his

description in the original police criminal complaint), 129-130 (questioning

Detective Moriarity about the lack of fingerprints or DNA on any of the stolen

vehicles). Further, there was no double jeopardy violation to discover.

      The double jeopardy clause provides: “No person shall … be subject for

the same offence to be twice put in jeopardy of life or limb[.]” U.S. Const.

amend. V.    “For double jeopardy purposes, it is not enough that the two

offenses be part of the same episode; double jeopardy principles bar double

prosecution only for a single offense.”      Commonwealth v. Downs, 575,

483 A.2d 884, 887 (Pa.Super.1984). “To determine whether a defendant’s

protection against multiple punishments for the same offense has been

violated, this Commonwealth applies the test set forth in Blockburger v.

U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).” Commonwealth v.

Jackson, 10 A.3d 341, 345 (Pa.Super.2010) (quoting Commonwealth v.

Beckwith, 674 A.2d 276, 279 (Pa.Super.1996)). This test provides:

         In both the multiple punishment and multiple prosecution
         contexts, […] where the two offenses for which the
         defendant is punished or tried cannot survive the “same-
         elements” test, the double jeopardy bar applies. The
         same-elements test, sometimes referred to as the
         “Blockburger” test, inquires whether each offense

                                    - 11 -
J-S44010-15


           contains an element not contained in the other; if not, they
           are the “same offence” and double jeopardy bars
           additional punishment and successive prosecution.

Id. (quoting United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849,

125 L.Ed.2d 556 (1993)).

      Police issued three criminal complaints against Appellant for the many

crimes he committed.      Appellant is correct the criminal complaint at 6403

refers to his theft of eight vehicles, including the theft of the Buick Century

and the theft of the Jeep Cherokee.      However, Appellant was not charged

twice with the same crimes. Regarding the Jeep Cherokee, he was charged

and convicted of fleeing or attempting to allude police, receiving stolen

property, unauthorized use of an automobile, resisting arrest or other law

enforcement, and accident involving damage to vehicle at Docket No. 4829,

and theft by unlawful taking at Docket No. 6403. Each of these crimes has

different elements. His allegation that his counsel was ineffective for failing

to get the charges against him dismissed is devoid of merit because he was

not charged twice with the same crimes.

      Next, he contends counsel was ineffective for failing to present an alibi

defense.    Specifically, he complains that his parole agent, Michael Kotcho,

would have testified that he was with Appellant on January 28, 2011, six to

seven hours after one of the alleged thefts and that Appellant told him, at

that time, that he was at his residence at the time of the theft.         Again,

Appellant’s argument is devoid of merit.


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      An alibi defense is “a defense that places the defendant at the relevant

time in a different place than the scene involved and so removed therefrom

as to render it impossible for him to be the guilty party.” Commonwealth

v. Kolenda, 676 A.2d 1187, 1190 (Pa.1996) (internal citations omitted).

“The alibi defense, either standing alone or together with other evidence,

may be sufficient to leave in the minds of the jury a reasonable doubt which,

without it, might not otherwise exist.” Id.

      Here, Appellant’s parole officer’s testimony would not have removed

Appellant from the scene of the crimes so as to render it impossible for him

to be the guilty party. It may have established where he was after one of

the car thefts, but that would not have affected where he was during the

crime(s) for which he was convicted.

      Further, his parole officer could not have testified about where

Appellant told him that he was during the crime, because the testimony

would have been impermissible hearsay. See Commonwealth v. Kuder,

62 A.3d 1038, 1055 (Pa.Super.2013), appeal denied, 114 A.3d 416

(Pa.2015)   (“hearsay   is   inadmissible,    because   such   evidence   lacks

guarantees of trustworthiness fundamental to our system of jurisprudence”);

Pa.R.E. 802.

      Next, Appellant argues counsel was ineffective for failing to file a

motion in limine to exclude evidence, or to object to the introduction of

evidence. Appellant avers that the jacket found in the Jeep Cherokee and


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the receipt in the pocket did not belong to him, and the prosecution had no

reason to introduce them into evidence. He claims his counsel’s failure to

exclude the prejudicial evidence constitutes ineffective assistance of counsel

that entitles him to a new trial. We disagree.

      Even if Appellant’s claim had merit, and the court excluded the

evidence, Appellant cannot prove the introduction of the jacket and receipt

into evidence was prejudicial, considering the overwhelming amount of other

evidence against him.

      Officer Lee Myers testified that he arrested Appellant after Appellant

drove a stolen Buick Century, attempted to flee from a marked police vehicle

with its emergency lights activated, wrecked two other vehicles, and

attempted to run from police on foot. N.T., 1/30-2/1/12, at 85-89. Officer

Myers observed that the Buick’s passenger window and steering column

were broken and that the car was running without a key. Id. at 91. Officer

Robert Pedley testified that a search incident to arrest revealed two

screwdrivers in Appellant’s pants pockets.       Id. at 106.   Sergeant Ralf

Zawischa identified Appellant as the person he had attempted to arrest after

Appellant fled from his marked police vehicle in a stolen Jeep Cherokee, then

fled on foot after punching Sergeant Zawischa in the face.      Id. at 32-36.

The Jeep Cherokee also had a smashed door and broken steering column,

and it was running without a key.     Id. at 38.   Detective Daniel Soroczak




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testified that the condition of these cars was the same as the condition of

two other stolen vehicles. Id. at 139-140.

          Based on the testimony presented in court against Appellant, the

introduction of the jacket and the receipt into evidence did not change the

outcome of the trial. Because Appellant fails to plead and prove the third

prong of the Pierce test, this ineffective assistance of counsel claim is

without merit.

          Next,   Appellant   argues   that   trial    counsel   was   ineffective   for

erroneously advising him not to testify.              Again, his allegation merits no

relief.

          “Claims alleging ineffectiveness of counsel premised on allegations that

trial counsel’s actions interfered with an accused’s right to testify require a

defendant to prove either that counsel interfered with his right to testify, or

that counsel gave specific advice so unreasonable as to vitiate a knowing

and intelligent decision to testify on his own behalf.”          Commonwealth v.

Miller, 987 A.2d 638, 660 (Pa.2009) (internal quotations and citations

omitted).

          The trial court conducted a colloquy regarding Appellant’s decision not

to testify on his behalf.

             THE COURT: Now, you have had a full opportunity to
             speak with [DEFENSE COUNSEL], not just in the last half
             an hour here, but up to and preparing for trial and
             throughout the course of the trial; is that correct?




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       [APPELLANT]: Yeah. I’ve had various opportunities in the
       bullpen to speak with him, but he hasn’t been to the jail to
       visit me; but outside of that, we’ve been in communication
       with one another.

       THE COURT: So are you satisfied today with the services
       that he’s provided to you?

       [APPELLANT]: At this point we have a few discrepancies
       about issues, but we’re doing good. You know, he’s fairly
       trying to do the best he can.

       THE COURT: Okay. Basically he has spoken to you about
       your rights as a defendant in a criminal trial?

       [APPELLANT]: Yes, ma’am.

       THE COURT:       And he’s explained to you that as a
       defendant in a criminal trial, you have absolutely no
       obligation whatsoever to testify. Is that correct?

       [APPELLANT]: Yes, ma’am.

       THE COURT: And you understand that the burden of proof
       remains at all times on the Commonwealth and that you as
       a defendant need do nothing.

       [APPELLANT]: Yes, ma’am.

       THE COURT: Likewise, however, you have the absolute
       right to testify if you choose to. And you’ve discussed this
       with [defense counsel]?

       [APPELLANT]: Yes, ma’am.

       THE COURT: Understand that if you do testify, you testify
       under oath and subject to cross-examination.

       [APPELLANT]: Yes, ma’am.

       THE COURT: And having discussed your right to testify or
       your right to remain silent with [defense counsel], have
       you reached a decision whether or not you wish to testify
       in this this case?

                                  - 16 -
J-S44010-15



                                  *     *      *

         [APPELLANT]: I will not testify.

                                  *     *      *

         [APPELLANT]: I apologize. Yes. He discussed with me my
         right to testify, and I’m giving that up right now.

N.T., 1/30/12, at 172-175.

      Appellant’s trial counsel did not interfere with his right to testify;

rather, he discussed this right with Appellant. Appellant voluntarily gave up

his right to testify and cannot now claim he was deprived of it. Further, his

testimony would not have changed the outcome of his case. Thus, Appellant

failed to establish the underlying claim had merit and failed to establish

prejudice.

      In his third and fifth issues on appeal, Appellant challenges the legality

of his sentence.

      “In reviewing an illegal sentence claim, the issue is a question of law

and, as such, our scope of review is plenary and our standard of review is de

novo.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011),

appeal denied, 38 A.3d 487 (Pa.2011) (internal citations omitted).

         “A court may entertain a challenge to the legality of the
         sentence so long as the court has jurisdiction to hear the
         claim. In the PCRA context, jurisdiction is tied to the filing
         of a timely PCRA petition.” Commonwealth v. Berry,
         877 A.2d 479, 482 (Pa.Super.2005) (en banc), appeal
         denied, 917 A.2d 844 ([Pa.]2007). “A sentence is illegal
         where a statute bars the court from imposing that


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           sentence” or where the sentence subjects a defendant to
           double jeopardy. Id. at 483 (citations omitted).

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.Super.2007), appeal

denied, 944 A.2d 756 (Pa.2008).

      First, Appellant claims that he was punished twice for the same

offense.        However, as discussed previously, although he was charged at

three different criminal informations, he was not charged twice for the same

crime.     Because each of his charges and convictions was based on a

separate crime, he was not subjected to double jeopardy.

      Next, Appellant argues that he was prosecuted for a crime with which

he was not charged, and that he did not receive notice he would be charged

with the crime of theft by receiving stolen property.         Again, his argument

lacks merit. Police filed a criminal complaint against Appellant on April 28,

2011, charging him with six counts of receiving stolen property.

      Next, Appellant contends his sentences of restitution were illegal. He

seems      to    argue   that   because   the      Commonwealth   did   not   present

photographic evidence of the damaged vehicles, there was no “nexus of

liability” between himself and the damage done to the cars, which makes the

restitution unsupported.         Appellant’s Brief at 39-40.      His sentences of

restitution were legal.

      We observe:

           In the context of criminal proceedings, an order of
           “restitution is not simply an award of damages, but,
           rather, a sentence.” Commonwealth v. C.L., 963 A.2d

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        489, 494 (Pa.Super.2008). An appeal from an order of
        restitution based upon a claim that a restitution order is
        unsupported by the record challenges the legality, rather
        than     the   discretionary  aspects,   of    sentencing.
        Commonwealth v. Redman, 864 A.2d 566, 569
        (Pa.Super.2004),     appeal denied,    875   A.2d 1074
        ([Pa.]2005).

Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa.Super.2012).

     The relevant statute on restitution provides, in pertinent part:

        § 1106. Restitution for injuries to person or property

        (a) General rule.--Upon conviction for any crime wherein
        property has been stolen, converted or otherwise
        unlawfully obtained, or its value substantially decreased as
        a direct result of the crime, or wherein the victim suffered
        personal injury directly resulting from the crime, the
        offender shall be sentenced to make restitution in addition
        to the punishment prescribed therefor.

                                 *       *       *

        (c) Mandatory restitution.—

                                     *       *       *

           (2) At the time of sentencing the court shall specify the
           amount and method of restitution. In determining the
           amount and method of restitution, the court:

              (i) Shall consider the extent of injury suffered by the
              victim, the victim’s request for restitution as
              presented to the district attorney in accordance with
              paragraph (4) and such other matters as it deems
              appropriate.

                                     *       *       *

              (4) (i) It shall be the responsibility of the district
              attorneys of the respective counties to make a
              recommendation to the court at or prior to the time
              of sentencing as to the amount of restitution to be

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               ordered. This recommendation shall be based upon
               information solicited by the district attorney and
               received from the victim.

               (ii) Where the district attorney has solicited
               information from the victims as provided in
               subparagraph (i) and has received no response, the
               district attorney shall, based on other available
               information, make a recommendation to the court
               for restitution.

18 Pa.C.S. § 1106.

      Here, the court imposed restitution for the damage Appellant caused

to the vehicles he stole in the amount of $1,250.00 at Docket No. 4530,

$1,542.20 at Docket No. 4829, and $3,122.56 at Docket No. 6403.                 At

sentencing, Appellant’s counsel stated: “[W]e don’t dispute that the damage

was done to those vehicles, and those are accurate reflections of the value.”

N.T., 3/19/12, at 5.    The statute does not require photographic evidence.

Thus, Appellant stipulated to the restitution and his issue is meritless.

      In his third and fifth issues, while still claiming to challenge the legality

of his sentence, Appellant also challenges the propriety of the trial court’s

jury instructions. Appellant claims the trial court impermissibly altered the

burden of proof by telling the jury it could find Appellant guilty of theft by

receiving stolen property if: “the defendant received, retained or disposed of

the property, either knowing that it had been stolen or believing that

it had probably been stolen.”         Appellant’s Brief at 28 (quoting N.T., at

246). He also claims the trial court improperly instructed the jury when it

stated: “the Commonwealth has charged here that the crime the defendant

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intended to commit with the screwdrivers, those being the instruments they

allege meet the standard for this count of receiving stolen property.”

Appellant’s Brief at 30 (quoting N.T., at 250). He claims this error caused

the jury to impermissibly convict him of receiving stolen property when it

acquitted him of possessing an instrument of crime.          Unfortunately for

Appellant, challenges to a trial court’s jury instructions are not cognizable

under the PCRA. 42 Pa.C.S. § 9543(a)(2). Accordingly, these claims fail.20

       In his fourth issue, Appellant alleges prosecutorial misconduct.      He

claims the prosecutor knowingly used false testimony and fabricated items

as evidence “to infect the trial [] with unfairness” and to “shift the burden of

proof” to Appellant.      Prosecutorial misconduct is not cognizable under the

PCRA. 42 Pa.C.S. § 9543(a)(2). Therefore, Appellant’s fourth claim fails.




____________________________________________


20
   We note that counsel was not ineffective for failing to object to these jury
instructions. The court properly instructed the jury on the crime of receiving
stolen property. N.T., 1/30-2/1/15, at 243-246. The court then gave the
jury proper instructions on possessing an instrument of crime. Id. at 250-
251. In its concluding sentence, however, the court misspoke and uttered
the phrase to which Appellant refers above, naming the count as “receiving
stolen property” rather than possessing an instrument of crime. Id. This,
however, was harmless error. The jury convicted Appellant of receiving
stolen property, but acquitted Appellant of possessing an instrument of
crime. The crime of receiving stolen property does not require possessing
an instrument of crime. 18 Pa.C.S. § 3925. Therefore, despite Appellant’s
contention, the jury permissibly convicted him of receiving stolen property
even though it acquitted him of possessing an instrument of crime.



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      In his sixth and final issue, Appellant argues the PCRA court erred by

failing to conduct an evidentiary hearing on Appellant’s issues, and that its

Pa.R.A.P. 1925(a) opinion is not supported by the record. We disagree.

      “A PCRA petitioner is not entitled to an evidentiary hearing as a matter

of right, but only where the petition presents genuine issues of material fact.

A PCRA court’s decision denying a claim without a hearing may only be

reversed upon a finding of an abuse of discretion.”         Commonwealth v.

Keaton, 45 A.3d 1050, 1094 (Pa.2012) (citing Pa.R.Crim.P. 909(B)(2);

Commonwealth v. Harris, 852 A.2d 1168, 1180 (Pa.2004)).

      Here, as previously discussed, Appellant’s amended PCRA petition does

not present an issue of material fact that would warrant an evidentiary

hearing.   Thus, the PCRA court did not err in dismissing Appellant’s PCRA

petition without a hearing. For the foregoing reasons, we affirm the PCRA

court’s order dismissing Appellant’s petition for relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




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