J-S47014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ADRIAN ALLEYNE

                            Appellant                 No. 3468 EDA 2016


                 Appeal from the PCRA Order October 19, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000906-2014


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                           FILED AUGUST 07, 2017

        Adrian Alleyne appeals from the order, entered in the Court of

Common Pleas of Montgomery County, dismissing, without a hearing, his

petition filed pursuant to the Post-Conviction Relief Act (“PCRA”).         42

Pa.C.S.A. §§ 9541-46.        After careful review, we affirm based on the well-

reasoned PCRA court opinion.

        Alleyne was charged with making false alarms to agencies of public

safety,1 stalking,2 harassment,3 and disorderly conduct.4       These charges

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1
    18 Pa.C.S.A. § 4905(a).
2
    18 Pa.C.S.A. § 2709.1(a)(1).
3
    18 Pa.C.S.A. § 2709(a)(7).
4
    18 Pa.C.S.A. § 5503(a)(4).
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arose out of Alleyne’s attempts to contact his ex-girlfriend, Jennifer

Stallings.   The evidence presented at trial showed that on November 15,

2013, Stallings received numerous calls from the payphone located outside

the public library near Laurel House, the women’s shelter where Stallings

was living. The payphone was also used to make a false report of a fire at

Laurel House, and Alleyne was seen lingering in the vicinity.

        Following a non-jury trial on October 31, 2014, the court convicted

Alleyne of all charges. On January 15, 2015, the court sentenced Alleyne to

an aggregate term of four to ten years’ imprisonment. Alleyne filed a post-

sentence motion for reconsideration of sentence, which was denied on

January 27, 2015.     Alleyne timely appealed, and this Court affirmed his

judgment of sentence on December 7, 2015.            The Supreme Court of

Pennsylvania denied Alleyne’s petition for allowance of appeal on June 28,

2016.

        Alleyne timely filed the instant PCRA on August 3, 2016. On August

10, 2016, counsel was appointed to represent Alleyne.       Alleyne’s counsel,

having found no meritorious claims to pursue, filed 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), on September

15, 2016. On September 21, 2016, the PCRA court issued a Pa.R.Crim.P.

907 notice of its intention to dismiss Alleyne’s PCRA petition without a

hearing and permitting PCRA counsel to withdraw.          Alleyne responded,

objecting to the dismissal, and the PCRA court entered its final order of

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dismissal on October 20, 2016.            Alleyne timely appealed, and raises the

following issues for our review:

       1.   Did trial counsel render ineffective [assistance] that
       undermined the truth determining process causing Mr. Alleyne to
       be deprived of a fair trial and did appellate/P.C.R.A. counsel
       render ineffective [assistance] and deprive Mr. Alleyne of a
       meaningful appeal?5

       2.     Did the prosecutor commit misconduct in withholding
       discovery materials that would have changed the outcome of the
       trial had they been provided . . . and did the prosecutor commit
       misconduct depriving appellant of a fair trial?

Appellant’s Brief, at 4.

       After thorough review of Alleyne’s arguments, the record, and relevant

case law, we rely upon the well-reasoned opinion of the Honorable William

R. Carpenter in disposing of Alleyne’s claims. See PCRA Opinion, 01/23/17.

Judge Carpenter properly determined that trial counsel was not ineffective in

in failing to compel discovery of Stalling’s phone records to establish

Stalling’s communication with Alleyne at the time of the incident, as any

calls Stalling may have made are irrelevant to his claims that he did not

make threatening phone calls or call in a 911 false report.          Further, the
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5
   Alleyne presented this issue more clearly in his Pa.R.A.P. 1925(b)
statement, alleging: “Trial counsel was ineffective for failing to request
discovery materials and order from the higher court to ensure that [Alleyne]
was able to prepare a defense and present evidence in [his] favor.” Concise
Statement of Matters Complained of on Appeal, 11/22/16, at 1. Further,
because Alleyne failed to raise the claims that his appellate counsel and his
PCRA counsel were both ineffective in his 1925(b) statement, he has waived
those issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii).




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PCRA court properly determined that Alleyne’s claims of prosecutorial

misconduct were waived, as those claims could have been raised on direct

appeal. See 42 Pa.C.S.A. § 9544(b) (an issue is waived if appellant “could

have raised it but failed to do so before trial, at trial, ... on appeal or in a

prior state post [-]conviction proceeding.”).

      Accordingly, we affirm the order dismissing Alleyne’s PCRA petition,

and direct the parties to attach a copy of Judge Carpenter’s opinion in the

event of further proceedings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2017




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