J-S23025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
    DARNELL THOMAS A/K/A DARYL           :
    THURSTON                             :
                                         :   No. 1150 EDA 2016
                    Appellant

               Appeal from the PCRA Order Dated April 4, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013003-2007


BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                              FILED JULY 18, 2017

        Appellant, Darnell Thomas, a/k/a Daryl Thurston, appeals pro se from

the order denying his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On June 17, 2011, a jury convicted Appellant of first-degree murder,

kidnapping, possessing an instrument of crime (PIC), abuse of a corpse, and

criminal conspiracy.1 Appellant’s convictions arose from the April 17, 2007

murder of Juan Carlos Rosa in Philadelphia.      On June 30, 2011, the trial

court sentenced Appellant to life without parole.           The PCRA court

summarized the subsequent procedural posture as follows:

              Following imposition of sentencing, [Appellant][ filed a
        post-sentence motion, which was denied on July 6, 2011.

1
    18 Pa.C.S. §§ 2502(a), 2901, 907, 5510, and 903.
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     Subsequent thereto, [Appellant] filed a notice of appeal as well
     as a requested Pa.R.A.P. 1925(b) statement. On April 15, 2013,
     the Superior Court affirmed the judgment of sentence.
     Commonwealth v. Darnell Thomas a/k/a/ Daryl Thurston, (1957
     EDA 2011). [Appellant] thereafter filed a petition for allowance
     of appeal, which the Pennsylvania Supreme Court denied on
     November 13, 2013. (275 EAL 2013).

           On November 26, 2014, [Appellant] filed a pro se petition
     pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §
     9741 et seq. Counsel was appointed to represent him and on
     November 25, 2015, counsel filed a no-merit letter and a motion
     to withdraw as counsel. This Court thereafter sent [Appellant] a
     notice to dismiss pursuant to Pa.R.Crim.P. 907. [Appellant] filed
     a response to counsel’s no-merit letter and to the 907 notice.
     On April 4, 2016, this Court issued an order denying [Appellant]
     PCRA relief and granting PCRA counsel’s motion to withdraw.
     [Appellant] thereafter filed a notice of appeal and a requested
     1925(b) statement.

PCRA Court Opinion, 7/21/16, at 2.

     On appeal, Appellant presents the following seven issues for our

review:

     1. Did the PCRA Court err in not addressing the 18 Pa.C.S.A. §
        102(a)(1)(4) – Territorial Applicability issue in the correct
        context as stated in the initial PCRA?

     2. Did the PCRA Counsel (O’Hanlon) fulfill all of the requirements
        in accordance with Turner/Finley?

     3. Did the PCRA Court err in not acknowledging the prejudice
        PCRA Counsel (O’Hanlon) illustrated by not addressing
        Appellant’s “layered” claims of ineffective assistance of
        counsel in exactitude?

     4. Did the PCRA Counsel (O’Hanlon) err not to properly
        investigate and/or review the “void” in the record regarding
        the prejudice Appellant suffered by his former trial counsel
        allowing his case to proceed to trial with the Death Penalty
        attached without accomplice liability?



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      5. Did the PCRA Counsel (O’Hanlon) err in not investigating
         Appellant’s claim of record inconsistencies, unscientific
         testimony and bias regarding questionable DNA evidence?

      6. Did the PCRA Counsel (O’Hanlon) err by not addressing the
         prejudice and duress suffered by Appellant, who was forced to
         argue on the record against his former trial counsel,
         prosecution and the judge?

      7. Did the PCRA Counsel (O’Hanlon) err in not effectuating
         Appellant’s legal interests in accordance with Strickland [v.
         Washington, 466 U.S. 668 (1984)]?

Appellant’s Brief at 2.

      Preliminarily, we recognize that in reviewing the propriety of the PCRA

court’s order denying Appellant relief, we are limited to ascertaining whether

the record supports the determination of the PCRA court and whether the

ruling is free of legal error.   Commonwealth v. Johnson, 966 A.2d 523,

532 (Pa. 2009).     We pay great deference to the factual findings of the

PCRA court, “but its legal determinations are subject to our plenary review.”

Id. The PCRA court has discretion to dismiss a petition without a hearing

when the court is satisfied that no genuine issues of material fact have been

raised, no legitimate purpose would be served by further proceedings, and

the petitioner is not entitled on the merits to post-conviction relief.   Pa.

R.Crim.P. 909(B).     Instantly, because the PCRA court denied Appellant’s

petition without a hearing, we “must examine the issues raised in the PCRA

petition in light of the record in order to determine whether the PCRA court

erred in concluding there were no genuine issues of material fact and in

denying relief without an evidentiary hearing.”         Commonwealth v.




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Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008) (internal citation

omitted).

      In his first issue, Appellant invokes the provision of the Crimes Code

setting forth its territorial applicability, 18 Pa.C.S.A. § 102, and asserts that

the Philadelphia Court of Common Pleas lacked jurisdiction because “the

assault on the victim occurred in Pennsylvania . . . but the death of the

victim occurred in Trenton, New Jersey.” Appellant’s Brief at 15. This claim

lacks merit because it has been litigated and resolved previously by our

Court. We recently explained:

      Before we can address appellant’s claim on its merits, we must
      first determine whether the issue has been previously litigated.
      A claim that has been previously litigated is not cognizable for
      collateral relief. 42 Pa.C.S.A. § 9544(a)(2). The PCRA defines a
      matter as having been previously litigated when “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.” Id.
      “[T]he fact that a petitioner presents a new argument or
      advances a new theory in support of a previously litigated issue
      will    not     circumvent    the    previous   litigation  bar.”
      Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super.
      2010), citing Commonwealth v. Hutchins, 760 A.2d 50 (Pa.
      Super. 2000).

Commonwealth v. Roane, 142 A.3d 79, 94 (Pa. Super. 2016).

      In Appellant’s direct appeal, we addressed his jurisdictional argument

and concluded:

            Instantly, Appellant openly declared his intent to kill
      Victim, struck him with a handgun, and beat him unconscious in
      Philadelphia. Appellant and his cohorts wrapped Victim in bed
      sheets and plastic before dragging Victim's body to a car. Later,
      Victim was found dead in Trenton, New Jersey.              Thus,
      Appellant’s crimes began in Philadelphia, and his conduct in


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      Philadelphia showed complicity in Victim's murder. Therefore,
      the Philadelphia Court of Common Pleas had jurisdiction over
      Appellant’s criminal case.   See 18 Pa.C.S.A. § 102(a)(4),
      [Commonwealth v.] Seiders, [11 A.3d 495, 496-497 (Pa.
      Super. 2010].

Commonwealth v. Thomas, No. 1957 EDA 2011, 2013 WL 11272742, at

*5 (Pa. Super. Ct. Apr. 15, 2013) (unpublished memorandum). Accordingly,

because Appellant’s first issue has been litigated previously, it lacks merit.

      In his next six issues, Appellant assails the effectiveness of PCRA

counsel. In examining such claims, we recognize:

            In order to obtain relief on a claim of ineffectiveness of
      counsel, a PCRA petitioner must satisfy the performance and
      prejudice test set forth in Strickland v. Washington . . . . In
      Pennsylvania, we have applied the Strickland test by requiring
      that a petitioner establish that (1) the underlying claim has
      arguable merit; (2) no reasonable basis existed for counsel’s
      action or failure to act; and (3) the petitioner suffered prejudice
      as a result of counsel's error, with prejudice measured by
      whether there is a reasonable probability that the result of the
      proceeding would have been different.         Commonwealth v.
      Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). In other
      words, prejudice is assessed in terms of whether the petitioner
      has shown that the demonstrated ineffectiveness sufficiently
      undermines confidence in the verdict.         Commonwealth v.
      Fletcher, 586 Pa. 527, 896 A.2d 508, 516 n. 10 (2006).
      Counsel is presumed to have rendered effective assistance, and,
      if a claim fails under any required element of the Strickland
      test, the court may dismiss the claim on that basis.
      Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010).

Commonwealth v. Montalvo, 114 A.3d 401, 409–10 (Pa. 2015).

      Consistent with the foregoing, we have reviewed the parties’ briefs and

the record, and conclude there is no merit to Appellant’s claims of PCRA

counsel’s ineffectiveness.   The Honorable Jeffrey P. Minehart, who sat as




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both the trial and PCRA court in this case, has authored an opinion which

capably addresses Appellant’s ineffectiveness of counsel issues, including the

determination that PCRA counsel complied with the requirements of

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).               See Trial

Court Opinion, 7/21/16, at 10-11 (“review of PCRA counsel’s no-merit letter

establishes that he complied with the [] requirements. . . . This Court

carefully reviewed counsel’s no-merit letter in conjunction with the entire

record and determined that it complied with the law”).         Accordingly, we

adopt the PCRA court’s opinion as our own in affirming the order denying

Appellant’s petition for post-conviction relief. The parties shall attach a copy

of the PCRA court’s July 21, 2016 opinion to any future filings relating to the

merits of this appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2017




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