J-S70008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ALI ELIJAH DAVIS

                         Appellant                   No. 457 EDA 2016


               Appeal from the PCRA Order February 17, 2014
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0002141-2008


BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 01, 2017

      Appellant, Ali Elijah Davis, appeals from the order entered on February

17, 2014, dismissing his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       Counsel filed with this Court a

petition to withdraw from further representation and a no-merit letter

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

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

Upon review, we grant counsel’s petition to withdraw and affirm the

dismissal of Appellant’s PCRA petition.

      The PCRA court summarized the facts and procedural history of this

case as follows:

        [O]n November 27, 2007, [Appellant] along with three
        co-defendants entered the [victims’] residence [] in the City
        of Easton, Northampton County, Pennsylvania. [Appellant]
        transported his co-defendants to the residence in his
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         mother’s vehicle. [Appellant], along with his three co-
         defendants entered the residence. Testimony established
         that three of this group converged upon an upstairs
         bedroom where they open fired in an “execution style”
         killing of [] three individuals, one adult male and two adult
         females. The testimony adduced at trial indicated that
         shortly before [Appellant] entered the residence, he was
         handed a handgun of the same caliber that was used in the
         “execution style” homicides.

         Following a jury trial, [Appellant] was convicted on January
         25, 2010 of three counts of [f]irst [d]egree [m]urder, 18
         [Pa.C.S.A.] § 2502(a) and [c]onspiracy to [c]ommit
         [m]urder, 18 [Pa.C.S.A.] § 903(a)(1). The jury did not find
         the necessary support for the imposition of the death
         penalty. As a result, [the trial court] sentenced [Appellant]
         on January 27, 2010 to three mandatory life sentences of
         incarceration without the possibility of parole to run
         consecutive to each other.

                                *          *        *

         [Appellant] filed post-sentence motions which were
         subsequently denied by [the trial court].           Thereafter,
         [Appellant] filed a direct appeal to [this] Court [] on August
         9, 2010. [We affirmed Appellant’s] judgment of sentence []
         on July 18, 2011. Commonwealth v. Davis, 32 A.3d 272
         (Pa.     Super.     2010)     (unpublished     memorandum).
         [Appellant’s] petition for allowance of appeal was denied by
         the Supreme Court of Pennsylvania on May 30, 2012.
         Commonwealth v. Davis, 47 A.3d 844 (Pa. 2012). On
         July 30, 2012, [Appellant] filed a petition for collateral relief
         pursuant to the PCRA wherein he raised the ineffectiveness
         of trial counsel. [The PCRA court] appointed Christopher
         Brett, Esquire to represent [Appellant] in his PCRA
         proceedings. A PCRA hearing was held [] on January 15,
         2014.1 On February 17, 2014, [the PCRA court] issued an
         [o]rder and accompanying [s]tatement of [r]easons
         dismissing [Appellant’s] PCRA petition.        A copy of the
____________________________________________


1
 The certified record also reveals that there was another evidentiary hearing
held on January 22, 2013.



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         [o]rder dismissing [Appellant’s] PCRA petition was “[h]and
         [d]elivered” to Attorney Brett, counsel of record for
         [Appellant] on February 18, 2014. No timely appeal was
         filed by Attorney Brett on behalf of [Appellant] following the
         dismissal of his PCRA petition.

PCRA Court Opinion, 3/12/2015, at 1-3 (record citations omitted).

       Thereafter, Appellant pursued reinstatement of his direct appeal rights

with both the PCRA court and this Court. The PCRA court appointed counsel

to represent Appellant.       Eventually, on January 15, 2016, the PCRA court

entered an order reinstating Appellant’s right to appeal from the denial of his

first PCRA petition on February 17, 2014. This timely appeal resulted.2

       PCRA counsel determined that there were no meritorious issues for

appellate review, counsel notified Appellant of his intent to withdraw from

representation and filed, in this Court, both a motion to withdraw as counsel

and an accompanying “no merit” brief pursuant to Turner/Finley.           See

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). Appellant

____________________________________________


2
    Counsel for Appellant filed a notice of appeal on January 29, 2016. On
February 4, 2016, the PCRA court entered an order directing counsel to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Counsel complied timely on February 23, 2016. We further note
that Appellant also filed the following pro se documents: a notice of appeal,
an application for reinstatement of direct appeal rights nunc pro tunc, and a
Rule 1925(b) concise statement.       On February 10, 2016, the PCRA court
entered an order that recognized the pro se filings, but then correctly
declined to take action. We remind Appellant that hybrid representation is
not permitted in Pennsylvania and when represented by counsel, pro se
filings are legal nullities. See Commonwealth v. Ali, 10 A.3d 282 (Pa.
2010). The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
February 29, 2016, relying on its prior decisions issued on February 17,
2014 and March 12, 2015.



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filed a pro se response to the petition to withdraw as counsel on July 18,

2016.

        Prior to reviewing the merits of this appeal, we first decide whether

counsel has fulfilled the procedural requirements for withdrawing as counsel.

Doty, 48 A.3d at 454.     As we have explained:

          Counsel petitioning to withdraw from PCRA representation
          must proceed ... under Turner, supra and Finley, supra
          and must review the case zealously.           Turner/Finley
          counsel must then submit a “no-merit” letter to the trial
          court, or brief on appeal to this Court, detailing the nature
          and extent of counsel's diligent review of the case, listing
          the issues which petitioner wants to have reviewed,
          explaining why and how those issues lack merit, and
          requesting permission to withdraw.

          Counsel must also send to the petitioner: (1) 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.

                             *        *           *

          Where counsel submits a petition and no-merit letter that ...
          satisfy the technical demands of Turner/Finley, the court—
          trial court or this 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.

Id.

        Here, we find all of the above-mentioned procedural requirements

have been satisfied. Counsel filed a no-merit brief and petition to withdraw

as counsel with this Court. On June 21, 2016, by per curiam order of this

Court, we directed Appellant’s counsel to provide the Prothonotary with


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copies of the letter to Appellant informing him of his right to retain counsel

or proceed pro se in this appeal.    While we did not receive a copy of the

letter from counsel, Appellant filed a pro se response to the no-merit brief

and attached a copy of a letter from counsel, dated June 8, 2016, informing

Appellant of his right to retain counsel or proceed pro se. Hence, because

Appellant received a copy of the letter, we conclude that the Turner/Finley

requirements were met. We now undertake our own review of the case to

consider whether the PCRA court erred in dismissing Appellant’s PCRA

petition and to determine whether the record supports any other issues of

potential merit.

      Counsel’s Turner/Finley brief reviews the claims presented in

Appellant’s July 30, 2012 PCRA petition, listing them as follows:

        a. [Whether Appellant’s] sentence of mandatory life without
           parole was unconstitutional and violated the [United
           States] Supreme Court’s decision in Miller v. Alabama,
           132 S.Ct. 2455 (2012)[?]

        b. [Whether a]ppellate counsel was ineffective because he
           did not properly support [A]ppellant’s arguments in his
           brief[?]

        c. [Whether a]t the PCRA hearing on January 22, 2013,
           PCRA counsel Brett pursued an additional claim of
           ineffective assistance of counsel [not presented in the
           PCRA petition] by arguing that trial counsel did not
           properly review a proposed plea agreement with
           [Appellant?]

Appellant’s Brief at 7.




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      Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the record evidence and free of legal error.          Commonwealth v.

Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016).

      In his first issue presented, Appellant avers that his mandatory

sentence of life imprisonment is unconstitutional in light of the United States

Supreme Court’s decision in Miller.     “The Miller decision applies to only

those defendants who were ‘under the age of 18 at the time of their

crimes.’” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016),

citing Miller, 132 S.Ct. at 2460.   Throughout his PCRA petition, Appellant

concedes that he was 20 years old at the time of the crimes.        See PCRA

Petition, 7/30/2012, at 3 (2 attachments thereto).           The PCRA court

recognized that Appellant “exceeded the age of majority when he committed

the crimes.”   PCRA Court Opinion, 2/17/2014, at 4.      The PCRA court also

rejected Appellant’s alternative argument that the right espoused in Miller

should be extended to young adults, whose biological process is still

developing. Id. We have rejected this precise argument previously. See

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (Miller’s

holding, that mandatory life without parole for those under the age of 18 at

the time of their crimes violates the Eighth Amendment's prohibition against

cruel and unusual punishments, does not extend to PCRA petitioners who

were 21 and 19 years old, respectively, at time they committed murders for




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which they were convicted, and cannot serve as basis for PCRA relief). We

agree with the PCRA court that no relief on this issue is due.

        Next, Appellant claims appellate counsel was ineffective for failing to

develop, or provide sufficient legal support, for several of his arguments on

direct appeal. More specifically, Appellant alleged in his PCRA petition that

counsel’s ineffectiveness caused the waiver of claims on direct appeal to this

Court pertaining to the weight and sufficiency of the evidence, suppression

of Appellant’s pre-arrest statements, the seizure of his cellular telephone,

and inflammatory media coverage for lack of legal development. See PCRA

Petition, 7/30/2012, at 4 (attachments at 5-6).

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

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated circumstances found in Section 9543(a)(2),

which    includes    the   ineffective   assistance   of   counsel.   42   Pa.C.S.A.

§ 9543(a)(2)(i).

        “Our standard of review requires us to determine whether the ruling of

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

Commonwealth v. Hutchinson, 25 A.3d 277, 284 (Pa. 2011) (internal

citation omitted).    “The PCRA court's credibility determinations are binding

on [an appellate court] when they are supported by the record.” Id.

“However, [we apply] a de novo standard of review to the PCRA court's legal

conclusions.” Id.

        We have previously determined:

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        It is well-established that counsel is presumed effective, and
        to rebut that presumption, the PCRA petitioner must
        demonstrate that counsel's performance was deficient and
        that such deficiency prejudiced him. To prevail on an
        ineffectiveness claim, the petitioner has the burden to prove
        that (1) the underlying substantive claim has arguable
        merit; (2) counsel whose effectiveness is being challenged
        did not have a reasonable basis for his or her actions or
        failure to act; and (3) the petitioner suffered prejudice as a
        result of counsel's deficient performance. The failure to
        satisfy any one of the prongs will cause the entire claim to
        fail.

Commonwealth v. Benner, 147 A.3d 915, 919–920 (Pa. Super.                  2016)

(internal citations omitted).   Upon review, for the reasons that follow, we

find no merit to Appellant’s claims that trial counsel was ineffective for failing

to support legal arguments on direct appeal to this Court.

      Regarding pre-arrest statements made to police, the trial court issued

a comprehensive, 65-page opinion detailing its reasons for denying

suppression on December 11, 2009.            More specifically, the trial court

detailed the four separate times police questioned Appellant, but noted that

each time Appellant was free to leave and not in police custody during the

interviews and, therefore, not entitled to warnings pursuant to Miranda v.

Arizona, 384 U.S. 436 (1966). Trial Court Opinion, 12/11/2009, at 43-56.

      On direct appeal, Appellant argued that police questioning amounted

to interrogations because the officers had underlying information tending to

implicate Appellant in the crimes. We found that Appellant failed to support

this argument with legal authority. See Commonwealth v. Davis, 32 A.3d

272 (Pa. Super. 2010) (unpublished memorandum) at 6.               However, we


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noted that the necessity of Miranda warnings turned on whether the person

is physically deprived of his freedom or reasonably believes his movement is

restricted. We determined that Miranda did not apply because the record

did not demonstrate that he was the subject of custodial interrogation.

Upon review, we agree that there was no merit to Appellant’s underlying

claim that statements to police should have been suppressed and, therefore,

direct appellate counsel was not ineffective for failing to develop these issues

on direct appeal.

      With regard to the seizure of his cellular telephone, the trial court, in

its suppression analysis, determined that: (1) police obtained Appellant’s

cellular telephone number from two witnesses, despite Appellant telling

police he did not have one;        (2) police then called the telephone when

Appellant answered his door and heard ringing inside the residence; and, (3)

Appellant admitted the cellular phone was his and voluntarily handed it over

to police, after the police explained they would obtain a warrant to secure it.

Id. at 58-60.      Even if appellate counsel had more fully developed this issue

on appeal, it lacks merit, because the evidence showed there was no police

coercion, no interrogation, and Appellant voluntarily surrendered his cellular

telephone. Accordingly, counsel cannot be ineffective for failing to develop a

meritless issue.

      Pertaining to news coverage, the trial court determined that Appellant

failed to proffer evidence that media coverage was sensational, inaccurate,

slanted, or unduly inflammatory towards Appellant.         Trial Court Opinion,

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8/2/2010, at 11. Moreover, each juror was subject to voir dire and not one

testified that he or she had a fixed bias against Appellant due to media

coverage. Id. Thus, the trial court stated that there was no reason for a

change of venue. Id.       On direct appeal, this Court “agree[d] with the trial

court’s reasoning and [] affirm[ed] its denial of Appellant’s motion for a

change of venue” because “Appellant ha[d] not advanced meritorious

grounds for relief.” Id.    Based on the foregoing, we concluded there was no

merit to Appellant’s claim that he was unfairly prejudiced by media

coverage. Hence, trial counsel effectively raised and presented the claim on

appeal, which we ultimately determined had no merit.

      Finally, we address Appellant’s claim that counsel was ineffective for

failing to develop weight and sufficiency claims on direct appeal.          Upon

review of the record, the Commonwealth presented overwhelming evidence

of Appellant’s guilt at trial, including the various statements Appellant made

to police, the testimony of two eyewitnesses who placed him at the scene of

the   crime   with   a   firearm,   and   evidence   that   Appellant   drove   his

co-defendants in his mother’s car to and from the scene on the Pennsylvania

Turnpike. Hence, Appellant’s underlying weight and sufficiency challenges

lack merit and, thus, afford no grounds for relief on Appellant’s derivative

ineffectiveness claim.     For all of the foregoing reasons, we conclude that

appellate counsel was not ineffective for failing to more fully develop issues

that we deemed waived on appeal.




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       In his third issue presented, Appellant contends trial counsel was

ineffective for failing to communicate and review with him purported plea

negotiations with the Commonwealth prior to trial. Appellant never raised

this issue in his original PCRA petition, nor in a formal amendment.

However, at the PCRA evidentiary hearing held on January 22, 2013, PCRA

counsel presented a “three-page letter” where “issues were narrowed down.”

N.T., 1/22/2013, at 3. The PCRA court “ma[de] that part of the record” and

considered the letter an “amended petition.”3         Id. at 5. However, we can

glean from the transcript of the January 22, 2013 hearing that one of the

issues before the PCRA court was trial counsel’s effectiveness regarding plea

negotiations with Appellant prior to trial.        Moreover, the PCRA court held

another hearing on January 15, 2014, wherein Appellant testified regarding

the issue of counsel ineffectiveness in relation to plea negotiations. At the

January 15, 2014 hearing, the PCRA court incorporated trial counsel’s

testimony from the January 22, 2013 hearing into the record.          Ultimately,

the PCRA court rejected the claim because it credited trial counsel’s

testimony that he consulted with Appellant about plea negotiations.

____________________________________________


3
   This letter, however, is not contained in the certified record or otherwise
noted on the docket. The incredibly convoluted procedural history of this
case has not been made easier by the PCRA court. The PCRA court
consistently accepted informal filings and oral amendments to the various
pro se PCRA petitions. As an appellate court, we review claims upon a cold
record. It is imperative that we have all of the proper documentation to
evaluate claims properly on appeal.



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       Regarding plea negotiations, we have stated:

         A criminal defendant has the right to effective counsel
         during a plea process as well as during a trial. Allegations
         of ineffectiveness in connection with the entry of a guilty
         plea will serve as a basis for relief only if the ineffectiveness
         caused the defendant to enter an involuntary or unknowing
         plea. Where the defendant enters his plea on the advice of
         counsel, the voluntariness of the plea depends on whether
         counsel's advice was within the range of competence
         demanded of attorneys in criminal cases.

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).

       Here, the PCRA court determined:

         The testimony established that the guilty plea offer was to
         an open plea that was meant to resolve all open charges
         against [Appellant] under both his criminal docket
         numbers[4] which involved four charges of homicide. If
         [Appellant] had pled guilty to four counts of [t]hird-[d]egree
         [h]omicide, he would have been exposed to a maximum
         sentence of twenty (20) to forty (40) years consecutively
         for each charge, for a total of eighty (80) to one hundred
         and sixty (160) years of incarceration. However, because it
         was an open plea, the [c]ourt had the discretion to fashion
         an appropriate sentence.       In choosing to go to trial,
         [Appellant] advanced his claim of innocence and, therefore,
         a plea would not have been appropriate. Further, by opting
         for trial, [Appellant] accepted the risk of a guilty verdict to
         [f]irst-[d]egree [m]urder in order to assert his innocence.

         The record establishes that [trial counsel] thoroughly
         explained [the] guilty plea offer to [Appellant] and directed
         six other adults to assist him in helping [Appellant]
         understand the terms, including [Appellant’s] parents, two
____________________________________________


4
   Appellant was charged with one count of homicide in an unrelated case.
After the trial in this matter, Appellant pled guilty to first-degree murder in
that other case and received a life sentence as a result. See PCRA Court
Opinion, 2/17/2014, at 2.



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        basketball      coaches,     and       two     court-appointed
        professionals[.] [The trial court found] that the record
        establish[ed] that [Appellant’s] decision to go to trial was
        free and voluntary, and against the advice of everyone who
        spoke with him. This record also suggests that [Appellant’s]
        independent decision to risk trial in the face of the advice by
        his family, professional supporters and attorney erodes the
        assertion that he is a young man who has a weaken[ed]
        intellect, borderline mental retardation and/or that he is a
        follower. Clearly, it was an independent decision based
        upon his evaluation of the risks and rewards.

PCRA Court Opinion, 2/17/2014, at 10-11.

      Upon review of the record, we discern no abuse of discretion or error

of law in denying Appellant’s ineffective assistance of counsel claim

pertaining   to   plea   negotiations.       Trial   counsel   testified   that   the

Commonwealth offered Appellant a plea deal to resolve four counts of

third-degree murder, leaving the sentence open for the trial court to impose.

N.T., 1/22/2013, 45-47.       However, counsel also explained the various

ranges of sentences that Appellant could receive for both first-degree and

third-degree murder and told Appellant he had the right to a jury trial. Id.

Appellant also spoke with family, friends, and his basketball coach prior to

rejecting the plea negotiation.    Id. at 48-49.      The PCRA court found trial

counsel’s testimony credible and we will not usurp that determination. As

such, Appellant’s final claim lacks merit.

      Moreover, after an independent examination of the certified record, we

do not find any other issues of potential merit.

      Order affirmed. Counsel’s petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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